[Federal Register: September 18, 2008 (Volume 73, Number 182)]
[Rules and Regulations]
[Page 54255-54267]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18se08-15]
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Part IV
Election Assistance Commission
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11 CFR Chapter II
Freedom of Information, Government in the Sunshine, and Privacy Act
Requirements; Final Rule
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ELECTION ASSISTANCE COMMISSION
11 CFR Chapter II
RIN 3265-AA00
Freedom of Information, Government in the Sunshine, and Privacy
Act Requirements
AGENCY: United States Election Assistance Commission (EAC).
ACTION: Final rule.
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SUMMARY: The U.S. Election Assistance Commission is publishing notice
of its final rules implementing provisions of the Freedom of
Information Act, the Government in the Sunshine Act, and the Privacy
Act.
DATES: The rules promulgated today become effective September 18, 2008.
FOR FURTHER INFORMATION CONTACT: Tamar Nedzar, Attorney, U.S. Election
Assistance Commission, 1225 New York Avenue NW., Suite 1100,
Washington, DC 20005. Telephone (202) 566-3100.
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
The following is an outline of the preamble.
I. Disposition of Comments
II. Legal Basis for the Rulemaking
III. Discussion of the Rulemaking
IV. Rulemaking Analyses and Notices
I. Disposition of Comments
The EAC issued a notice of proposed rulemaking and requested public
comment on these rules on June 30, 2008 (73 FR 36,807). The comment
period ended on August 29, 2008. The EAC received no comments on this
rulemaking activity, and therefore made no changes to the proposed
rules. The regulations in this notice are the same in form and
substance as those posted in the Notice of Proposed Rulemaking
associated with this RIN.
II. Legal Basis for the Rulemaking
The U.S. Election Assistance Commission (EAC) is required to
promulgate this final rule pursuant to the Freedom of Information Act
(FOIA), 5 U.S.C. 552, as amended; the Government in the Sunshine Act
(Sunshine Act), 5 U.S.C. 552b; and the Privacy Act, 5 U.S.C. 552a, as
amended. The FOIA requires each federal agency to publish certain
information in the Federal Register, to make available for public
inspection and copying certain other information, and to make available
certain information to any members of the public upon specific request
for that information. The FOIA stipulates that an agency must
promulgate regulations specifying the schedule of fees applicable to
the processing of requests for information. The Government in the
Sunshine Act requires meetings of a federal agency headed by a
collegial body, a majority of whose members are appointed by the
President with the advice and consent of the Senate, to be open to
public observation. The EAC is a collegial body subject to the Act. The
Act specifies certain exemptions from the open meeting requirement, and
the procedures that an agency must follow to conduct or to close a
meeting. The Privacy Act creates requirements that apply to systems of
records pertaining to individuals that are established, maintained, or
controlled by a federal agency, and prescribes rights and limits to
access to such records.
III. Discussion of the Rulemaking
The United States Election Assistance Commission was created by
Congress in the Help America Vote Act of 2002. The Commission's primary
function is to serve as a national clearinghouse and resource for
information on and procedures for federal elections. The EAC conducts
studies on election administration and makes those studies available to
the public. The EAC also has adopted Voluntary Voting System
Guidelines; administers a voting system testing and certification
program; allocates election-related federal funding to the States; and
carries out administrative duties under the National Voter Registration
Act of 1993 (the Motor Voter Law), including developing and maintaining
a mail voter registration application form for elections to federal
office.
The EAC is committed to operating transparently, competently, and
subject to public scrutiny and accountability. To help implement these
goals, the EAC is promulgating these regulations to implement three
important federal statutes addressing access to information about the
EAC and its activities--the Freedom of Information Act, as amended,
including recent amendments found in the OPEN Government Act of 2007;
the Government in the Sunshine Act; and the Privacy Act.
Many of the provisions in today's rules are identical to or closely
resemble the requirements adopted by other federal agencies, and as
such represent regulatory ``best practices'' on the topics of FOIA,
open government, and protection of the privacy of information about
individuals.
IV. Regulatory Analyses and Notices
Regulatory Flexibility Act, as Amended
The Regulatory Flexibility Act, as amended by the Small Business
Regulatory Enforcement Fairness Act (SBREFA) of 1996 (5 U.S.C. 601 et
seq.) generally requires an agency to prepare a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements under the Administrative Procedure Act or any other
statute, unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
government jurisdictions. The EAC has considered the effects of this
regulatory action on small entities and certifies that these rules will
not have a significant impact on a substantial number of small
entities.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C.
1532) requires each agency to assess the effects of its regulatory
actions on State, local, and tribal governments and the private sector.
Any agency promulgating a rule likely to result in a federal mandate
requiring expenditures by a State, local, or tribal government or by
the private sector of $120.7 million or more in any one year must
prepare a written statement incorporating various assessments,
estimates, and descriptions that are delineated in the Act. The EAC has
determined that these rules would create no unfunded mandates because
they require no expenditures by a State, local, or tribal government
and will not have an impact of $120.7 million or more in any one year.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by
SBREFA, provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. If the rule meets the definition of a
major rule, as defined in SBREFA, the Comptroller General must provide
a report to Congress and the rule may not take effect until 60 days
after it has been published in the Federal Register. The current action
is a Final Rule that does not meet the definition of a major rule. The
EAC is submitting the necessary rule report to the Congress and the
Comptroller General of the United States.
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National Environmental Policy Act
The EAC analyzed these rules for the purpose of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and
determined that this action includes no circumstances that would have
any effect on the quality of the environment. The rules pertain solely
to the dissemination of information. Thus, these actions do not require
an environmental assessment or an environmental impact statement.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
the EAC to consider the impact of paperwork and other information
collection burdens imposed on the public. These rules do not impose any
reporting or recordkeeping requirements. They pertain solely to the
dissemination of information under the FOIA; access to information
about meetings and the decision-making process of the EAC; and
dissemination of information about what information is maintained about
identifiable individuals by the EAC and how they may gain access to and
correct or amend information about them.
Executive Order 12630 (Taking of Private Property)
These rules would not affect a taking of private property or
otherwise have taking implications under Executive Order 12630,
``Governmental Actions and Interference with Constitutionally Protected
Property Rights.''
Executive Order 12988 (Civil Justice Reform)
These rules meet applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, ``Civil Justice Reform,'' to minimize
litigation, eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (April 23, 1997, 62 FR 19885), requires
that agencies issuing economically significant rules, which also
concern an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, must include
an evaluation of the environmental health and safety effects of the
regulation on children. Section 5 of Executive Order 13045 directs an
agency to submit for a covered regulatory action an evaluation of its
environmental health or safety effects on children. The EAC has
determined that these rules are not covered regulatory actions as
defined under Executive Order 13045. This determination is based upon
the fact that these rules are not economically significant under
Executive Order 12866, because the changes would not have an impact of
$100 million or more in any one year, and do not constitute an
environmental health risk or safety risk that would disproportionately
affect children.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on federal programs and activities do
not apply to this rulemaking.
Executive Order 13211 (Energy Supply, Distribution, or Use)
The EAC has analyzed these rules under Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use.'' This rule is not a significant energy
action within the meaning of section 4(b) of the Executive Order. These
rules involve internal procedures of and dissemination of information
about the EAC, is not economically significant, and will not have a
significant adverse effect on the supply, distribution, or use of
energy.
List of Subjects
11 CFR Part 9405
Administrative practice and procedure, Confidential business
information, Freedom of information, Government employees.
11 CFR Part 9407
Administrative practice and procedure, Government employees.
11 CFR Part 9410
Administrative practice and procedure, Freedom of information,
Government employees.
0
For the reasons set forth in the preamble, the Election Assistance
Commission establishes a new Chapter II, consisting of parts 9405,
9407, and 9410 in Title 11 of the code of Federal Regulations to read
as follows:
CHAPTER II--ELECTION ASSISTANCE COMMISSION
PART 9405--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM
OF INFORMATION ACT
Sec.
9405.1 Purpose and scope.
9405.2 Definitions.
9405.3 Policy on disclosure of records.
9405.4 Availability of records.
9405.5 Categories of exemptions.
9405.6 Discretionary release of exempt records.
9405.7 Requests for records.
9405.8 Appeals of denials of requests for records.
9405.9 Fees in general.
9405.10 Fees to be charged--categories of requesters.
9405.11 Miscellaneous fee provisions.
9405.12 Waiver or reduction of charges.
Authority: 5 U.S.C. 552, as amended.
Sec. 9405.1 Purpose and scope.
The regulations in this part implement the provisions of the
Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, with
respect to the availability of records for inspection and copying.
Sec. 9405.2 Definitions.
As used in this part, the term--
Chief FOIA Officer means the person designated under Sec.
9405.3(d) who has Commission-wide responsibility for the efficient and
appropriate compliance with the FOIA.
Commercial use request means a FOIA request from or on behalf of a
person who seeks information for a use or purpose that furthers his/her
commercial, trade, or profit interests, which can include furthering
those interests through litigation. The FOIA Officer will determine,
whenever reasonably possible, the use to which a requester will put the
requested documents. Where the FOIA Officer has reasonable cause to
doubt the use for which the requester claims to have made the FOIA
request or where that use is not clear from the FOIA request itself,
the FOIA Officer will seek additional clarification before assigning
the request to a specific category.
Commission means the U.S. Election Assistance Commission,
established by the Help America Vote Act of 2002, 42 U.S.C. 15301 et
seq.
Commissioner means an individual appointed to the Commission by the
President and confirmed by the Senate under section 203 of the Help
America Vote Act of 2002, 42 U.S.C. 15323.
Direct costs means those expenditures which the Commission actually
incurs in searching for, duplicating, and, in the case of commercial
use requesters, reviewing documents to respond to a FOIA request.
Direct costs include, but are not limited to, the salary of the
employee performing the work (the basic rate of pay for the employee
plus 16 percent of that basic rate to cover benefits) and the cost of
operating duplicating equipment. Direct costs do not include overhead
expenses, such as the cost of space and heating or lighting the
facility in which the records are stored.
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Duplication means the process of making a copy of a document
necessary to respond to a FOIA request. Examples of the form such
copies can take include, but are not limited to, paper copy, microform,
audio-visual materials, or machine readable documentation (e.g.,
magnetic tape, DVD, or CD). The Commission will honor a requester's
specified preference of form or format of disclosure if the records
requested are reasonably reproducible with reasonable efforts in the
requested form or format.
Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institute of graduate higher education, an institution of
professional education, and an institution of vocational education,
which operates a program or programs of scholarly research.
Executive Director means the Executive Director of the Commission
or his or her designee.
FOIA means Freedom of Information Act, 5 U.S.C. 552, as amended.
FOIA Officer means a person designated by the Chief FOIA Officer
under Sec. 9405.3(d) to carry out day-to-day implementation of the
FOIA activities of the Commission.
FOIA Public Liaison means a person designated by the Chief FOIA
Officer under Sec. 9405.3(d) to assist in the resolution of any
disputes between the requester and the Commission.
FOIA request means to seek the release of records under 5 U.S.C.
552, as amended.
General Counsel means the General Counsel of the Commission or his
or her designee.
Non-commercial scientific institution means an organization 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.
Record means any information that would be a Commission record
subject to the requirements of this part when maintained by the
Commission in any format, including, but not limited to, an electronic
format. Record includes information that is maintained for the
Commission by an entity under Government contract for the purposes of
records management.
Representative of the news media means any person or entity that
gathers information of potential interest to a segment of the public,
uses editorial skills to turn the raw materials into a distinct work,
and distributes that work to an audience. As used in this paragraph,
``news'' means information that is about current events or that would
be of current interest to the public. Examples of news media entities
include, but are not limited to, television or radio stations
broadcasting to the public at large, web logs, and publishers of
periodicals (but only in those instances in which these entities can
qualify as disseminators of news, as defined in this paragraph) who
make their products available for purchase or subscription by the
general public. As used in this paragraph, a ``web log'' means a
publicly available Web site, usually maintained by an individual, with
regular entries of commentary, descriptions of events, or other
material. A freelance journalist may be regarded as working for a news
media entity and therefore, considered a representative of the news
media if that person can demonstrate a solid basis for expecting
publication by a news organization (whether or not the journalist is
actually employed by the entity). A publication contract would present
a solid basis for such an expectation. The Commission may also consider
the past publication record of the requester in making this
determination.
Requester is any person who submits a FOIA request to the
Commission for release of a record under 5 U.S.C. 552, as amended.
Review means the process of examining a document located in
response to a commercial use request to determine whether any portion
of the document located is exempt from disclosure. Review also refers
to processing any document for disclosure, i.e., doing all that is
necessary to excise exempt portions of the document or otherwise
prepare the document for release. Review time includes time spent
considering any formal objection to disclosure made by a business
submitter requesting confidential treatment but does not include time
spent resolving general legal or policy issues regarding the
application of exemptions.
Search means all time spent reviewing, manually or by automated
means, Commission records for the purpose of locating those records
that are responsive to a FOIA request, including, but not limited to,
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.
Search time does not include review of material to determine whether
the material is exempt from disclosure.
Sec. 9405.3 Policy on disclosure of records.
(a) The Commission will make the fullest possible disclosure of
records to the public, consistent with the rights of individuals to
privacy, the rights of individuals and other entities with respect to
trade secrets and commercial or financial information entitled to
privileged and confidential treatment, and the need for the Commission
to promote free internal policy deliberations and to pursue its
official activities without undue disruption.
(b) All Commission records shall be available to the public unless
they are specifically exempt under this part.
(c) In the interest of efficiency and economy, the Commission's
preference is to furnish records to requesters in electronic format,
when possible.
(d) To carry out this policy, the Commission shall designate a
Chief Freedom of Information Act Officer (Chief FOIA Officer). The
Chief FOIA Officer shall designate one or more Commission officials, as
appropriate, as FOIA Public Liaison and/or as FOIA Officers. A FOIA
Public Liaison shall serve as a supervisory official to whom a FOIA
requester can raise questions about the service the FOIA requester has
received. A FOIA Officer shall have the authority, subject to the
direction and supervision of the Chief FOIA Officer, the requirements
of this part, and the FOIA, to make decisions concerning disclosure of
records to the public.
Sec. 9405.4 Availability of records.
(a) The FOIA and its provisions apply only to existing Commission
records; the FOIA does not require the creation of new records.
(b) In accordance with 5 U.S.C. 552(a)(2), the Commission shall
make the following materials available for public inspection and
copying:
(1) Statements of policy and interpretation that have been adopted
by the Commission but have not been published in the Federal Register;
(2) Administrative staff manuals and instructions to staff that
affect a member of the public;
(3) Copies of all records, regardless of form or format, that have
been released to any person under this paragraph and that, because of
their nature or subject matter, the Commission determines have become
or are likely to become the subject of subsequent requests for
substantially the same records; and
(4) A general index of the records referred to in paragraph (b)(3)
of this section.
(c) In accordance with 5 U.S.C. 552(a)(3), the Commission shall
make available, upon proper request, all non-exempt Commission records,
or portions
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of records, not previously made public under 5 U.S.C. 552(a)(1) and
(a)(2).
(d) The Commission shall maintain and make available current
indexes and supplements providing identifying information regarding any
matter issued, adopted, or promulgated after July 4, 1967. These
indexes and supplements shall be published and made available on at
least a quarterly basis for public distribution unless the Commission
determines by Notice in the Federal Register that publication would be
unnecessary, impracticable, or not feasible due to budgetary
considerations. Nevertheless, copies of any index or supplement shall
be made available upon request at a cost not to exceed the direct cost
of duplication.
(e) If documents or files contain both disclosable and non-
disclosable information, the non-disclosable information will be
deleted and the disclosable information released, unless the
disclosable portions cannot be reasonably segregated from the other
portions in a manner which will allow meaningful information to be
disclosed.
(f) All records created in the process of implementing provisions
of 5 U.S.C. 552 will be maintained by the Commission in accordance with
the authority granted by the National Archives and Records Service of
the General Services Administration.
(g) The Commission encourages the public to explore the information
available on the Commission's Web site, located at http://www.eac.gov.
Sec. 9405.5 Categories of exemptions.
(a) No FOIA requests under 5 U.S.C. 552 shall be denied release
unless the record contains, or its disclosure would reveal, matters
that are:
(1) Specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense
or foreign policy and are, in fact, properly classified under such
Executive Order;
(2) Related solely to the internal personnel rules and practices of
the Commission;
(3) Specifically exempted from disclosure by statute, provided that
such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person that are privileged or confidential. Such information
includes confidential business information which concerns or relates to
the trade secrets, processes, operations, style of works, or apparatus,
or to the production, sales, shipments, purchases, transfers,
identification of customers, inventories, or amount of source of
income, profits, losses, or expenditures of any person, firm,
partnership, corporation, or other organization, if the disclosure is
likely to have the effect of either impairing the Commission's ability
to obtain such information as is necessary to perform its statutory
functions or causing substantial harm to the competitive position of
the person, firm, partnership, corporation, or other organization from
which the information was obtained, unless the Commission is required
by law to disclose such information. For purposes of this section,
trade secret means a secret, commercially valuable plan, formula,
process, or device that is used for the making, preparing, compounding,
or processing of trade commodities and that can be said to be the end
product of either innovation or substantial effort. Examples of trade
secrets may include, but are not limited to, plans, schematics,
specifications of materials used in production, source code used to
develop software, technical descriptions of manufacturing process,
quality control methodology, and test results. The following procedures
shall be used for submitting business information in confidence:
(i) Clearly mark any portion of any data or information being
submitted that in the submitter's opinion is a trade secret or
commercial and financial information that the submitter is claiming
should be treated as privileged and confidential and submit such data
or information separately from other material being submitted to the
Commission;
(ii) A request for confidential treatment shall be addressed to the
Chief FOIA Officer, U.S. Election Assistance Commission, 1225 New York
Avenue, NW., Suite 1100, Washington, DC 20005 and shall indicate
clearly on the envelope that it is a request for confidential
treatment.
(iii) With each submission of, or offer to submit, business
information which a submitter desires to be treated as confidential
under paragraph (a)(4) of this section, the submitter shall provide the
following, which may be disclosed to the public:
(A) A written description of the nature of the subject information
and a justification for the request for its confidential treatment, and
(B) A certification in writing under oath that substantially
identical information is not available to the public.
(iv) Approval or denial of requests shall be made only by the Chief
FOIA Officer or his or her designees. A denial shall be in writing,
shall specify the reason for the denial, and shall advise the submitter
of the right to appeal to the Commission.
(v) For good cause shown, the Commission may grant an appeal from a
denial by the Chief FOIA Officer or his or her designee if the appeal
is filed within 15 days after receipt of the denial. An appeal shall be
addressed to the Chief FOIA Officer, U.S. Election Assistance
Commission, 1225 New York Avenue, NW., Suite 1100, Washington, DC 20005
and shall clearly indicate that it is a confidential submission appeal.
An appeal will be decided within 20 days after its receipt (excluding
Saturdays, Sundays, and legal holidays) unless an extension, stated in
writing with the reasons therefore, has been provided to the person
making the appeal.
(vi) Any business information submitted in confidence and
determined to be entitled to confidential treatment shall be maintained
in confidence by the Commission and not disclosed except as required by
law. In the event that any business information submitted to the
Commission is not entitled to confidential treatment, the submitter
will be permitted to withdraw the tender unless it is the subject of a
request under the FOIA or of judicial discovery proceedings.
(5) Interagency or intra-agency memoranda or letters that would not
be available by law to a party in litigation with the Commission;
(6) Personnel and medical files and similar files, the disclosure
of which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
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 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 that 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
[[Page 54260]]
investigation, or by an agency conducting a lawful national security
intelligence 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) Any portion of a record that reasonably can be segregated from
the balance of the record shall be provided to any individual
requesting such record after deletion of the portions which are exempt.
The amount of information deleted and the exemption under which the
deletion is made shall be indicated on the released portion of the
record, unless including that indication would harm an interest
protected by an exemption in paragraph (a) of this section under which
the deletion is made. If technically feasible, the amount of the
information deleted shall be indicated at the place in the record where
such deletion is made.
(c) If a requested record is one of another government agency or
deals with subject matter to which a government agency other than the
Commission has exclusive or primary responsibility, the request for
such a record shall be promptly referred by the Commission to that
agency for disposition or guidance as to disposition.
(d) Nothing in this part authorizes withholding of information or
limiting the availability of records to the public, except as
specifically provided; nor is this part authority to withhold
information from Congress.
Sec. 9405.6 Discretionary release of exempt records.
The Commission may, in its discretion, release requested records
despite the applicability of the exemptions in Sec. 9405.5, if it
determines that it is in the public interest and that the rights of
third parties would not be prejudiced. The Executive Director will have
the authority to determine that requested records may be released
despite otherwise applicable exemptions.
Sec. 9405.7 Requests for records.
(a) Requests for copies of Commission records under the FOIA shall
be made in writing and addressed to the Chief FOIA Officer, U.S.
Election Assistance Commission, 1225 New York Avenue, NW., Suite 1100,
Washington, DC 20005. The request shall reasonably describe the records
sought with sufficient specificity with respect to names, dates, and
subject matter to permit the records to be located. A requester will be
promptly advised if the records cannot be located on the basis of the
description given and that further identifying information must be
provided before the request can be satisfied.
(b) Requests for Commission records and copies thereof shall
specify the preferred form or format (including electronic formats) of
the response. The Commission shall accommodate requesters as to form or
format if the record is readily available in that form or format. When
requesters do not specify the form or format of the response, the
Commission shall respond in the form or format in which the document is
most accessible to the Commission. In the interest of efficiency and
economy, the Commission's preference is to furnish records to
requesters in electronic format, whenever possible.
(c) The Commission shall determine within 20 working days after
receipt of a request, or 20 working days after an appeal is granted,
whether to comply with such request, unless in unusual circumstances
the time is extended. The 20-day period shall commence on the date on
which the request was first received by the appropriate component of
the Commission, but in any event, not later than 10 days after the
request is first received by the component of the Commission designated
to receive requests under this part. The 20-day period shall not be
tolled by the Commission except--
(1) The Commission may make one request of the requester for
information and toll the 20-day period while it is awaiting such
information that it has reasonably requested from the requester.
(2) If it is necessary to clarify with the requester issues
regarding fee assessment.
(3) Under paragraphs (c)(1) or (2) of this section, the
Commission's receipt of the requester's response to the Commission's
request for information or clarification ends the tolling period.
(d) In the event the time is extended under paragraph (c) of this
section, the requester shall be notified of the reasons for the
extension and the date on which a determination is expected to be made.
An extension may be made if it is--
(1) Necessary to locate records or transfer them from physically
separate facilities; or
(2) Necessary to search for, collect, and appropriately examine a
large quantity of separate and distinct records that are the subject of
a single request; or
(3) Necessary for consultation with another agency that has a
substantial interest in the determination of the request.
(e) If the Commission determines that an extension of time is
necessary to respond to a request satisfying the unusual circumstances
specified in paragraph (c) of this section, the Commission shall so
notify the requester and give the requester an opportunity to limit the
scope of the request so that it may be processed within the time limit
prescribed in paragraph (c) of this section or arrange with the
Commission an alternative time frame for processing the request or a
modified request.
(f) The Commission may aggregate and process as a single request
requests by the same requester, or a group of requesters acting in
concert, if the Commission reasonably believes that the requests
actually constitute a single request that would otherwise satisfy the
unusual circumstances specified in paragraph (c) of this section, and
the requests involve clearly related matters.
(g) The Commission will process requests under the FOIA based on
the order they are received.
(h) The Commission shall consider requests for the expedited
processing of requests in cases where the requester demonstrates a
compelling need for such processing.
(1) The term ``compelling need'' means, with respect to a request
made by a person primarily engaged in disseminating information,
urgency to inform the public concerning actual or alleged Federal
government activity.
(2) Requesters for expedited processing must include in their
requests a statement setting forth the basis for the claim that a
``compelling need'' exists for the requested information, certified by
the requester to be true and correct to the best of his or her
knowledge and belief.
(3) The Commission shall determine whether to grant a request for
expedited processing and notify the requester of such determination
within 10 days of receipt of the request. Denials of requests for
expedited processing may be appealed as set forth in Sec. 9405.8. The
Commission shall expeditiously determine any such appeal. As soon as
practicable, the Commission shall process the documents responsive to a
request for which expedited processing is granted.
(i) Any person denied access to records by the Commission shall be
notified immediately of the denial, including the reasons for the
decision
[[Page 54261]]
and notified of his or her right to appeal the adverse determination to
the Commission.
(j) The date of receipt of a request under this part shall be the
date on which the Chief FOIA Officer actually receives the request.
(k) Each request received by the Chief FOIA Officer will be
assigned an individualized tracking number. Requesters may call (866)
747-1471 and, using the tracking number, obtain information about the
request, including the date on which the Commission originally received
the request and an estimated date on which the Commission will complete
action on the request.
Sec. 9405.8 Appeals of denials of requests for records.
(a) Any person who has been notified under Sec. 9405.7(i) that
his/her request for inspection of a record or for a copy of a record
has been denied, or who has received no response within 20 working days
(or within such extended period as is permitted under Sec. 9405.7(d))
after the request has been received by the Commission, or who has
received no response within 20 days after a request for expedited
processing has been received by the Commission, may appeal the adverse
determination or the failure to respond by requesting the Commission to
direct that the record be made available or that the expedited
processing shall occur.
(b) The appeal request shall be in writing, shall clearly and
prominently state on the envelope or other cover and at the top of the
first page ``FOIA Appeal,'' and shall identify the record in the form
in which it was originally requested.
(c) The appeal request should be delivered or addressed to the
Chief FOIA Officer, U.S. Election Assistance Commission, 1225 New York
Avenue, NW., Suite 1100, Washington, DC 20005.
(d) The requester may state facts and cite legal or other
authorities as he or she deems appropriate in support of the appeal
request.
(e) The Commission will make a determination with respect to any
appeal within 20 working days after receipt of the appeal (or within
such extended period as is permitted under Sec. 9405.7). If, on
appeal, the denial of the request for a record or a copy is in whole or
in part upheld, the Commission shall advise the requester of the denial
and shall notify him or her of the provisions for judicial review of
that determination as set forth in 5 U.S.C. 552(a)(4).
(f) Because of the risk of misunderstanding inherent in oral
communications, the Commission will not entertain any appeal from an
alleged denial or failure to comply with an oral request. Any person
who has orally requested a copy of a record that he or she believes to
have been improperly denied should resubmit the request in writing as
set forth in Sec. 9405.7.
Sec. 9405.9 Fees in general.
(a) Generally. The Commission will charge fees that recoup the full
allowable direct costs it incurs. The Commission will use the most
efficient and least costly means to comply with requests for
documentation.
(b) Manual searches for records. The Commission will charge fees at
the salary rate(s) (basic pay plus 16 percent) of the employee(s)
making the search.
(c) Computer searches for records. The Commission will charge the
actual direct cost of operating the central processing unit (CPU) for
that portion of operating time that is directly attributable to
searching for records responsive to a FOIA request and operator/
programmer salary apportionable to the search.
(d) Review of records. Only requesters who are seeking documents
for commercial use may be charged for time spent reviewing records to
determine whether they are exempt from mandatory disclosure. Charges
may be assessed only for the initial review (i.e., the review
undertaken the first time the Commission analyzes the applicability of
a specific exemption to a particular record or portion of a record).
Records or portions of records withheld in full under an exemption that
is subsequently determined not to apply may be reviewed again to
determine the applicability of other exemptions not previously
considered. The costs for such a subsequent review are assessable. The
Commission will charge at the salary rate(s) (basic pay plus 16
percent) of the employee(s) reviewing records.
(e) Duplication of records. Records will be duplicated at a rate of
fifteen (15) cents per page. For copies prepared by computers, such as
tapes, CDs, DVDs, or printouts, the Commission shall charge the actual
cost, including operator time, of production. For other methods of
reproduction or duplication, the Commission will charge the actual
direct costs of producing the document(s). If the Commission estimates
that duplication charges are likely to exceed $25, it shall notify the
requester of the estimated amount of fees, unless the requester has
indicated in advance a willingness to pay fees as high as those
anticipated. Such a notice shall offer a requester the opportunity to
confer with agency personnel with the object of reformulating the
request to meet his or her needs at a lower cost.
(f) Other charges. The Commission will recover the full costs of
providing services such as those enumerated below when it provides them
in response to a direct request for such services:
(1) Certifying that records are true copies; or
(2) Sending records by special methods such as express mail.
(g) Payment of fees. Remittance 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. Remittance shall be made payable to the order of
the Treasury of the United States and mailed to the Chief FOIA Officer,
U.S. Election Assistance Commission, 1225 New York Avenue, NW., Suite
1100, Washington, DC 20005.
(h) Receipt of fees. A receipt for fees paid will be given upon
request. Refund of fees paid for services actually rendered will not be
made.
(i) Restrictions on assessing fees. The Commission shall not assess
search fees or duplication fees under this paragraph if the Commission
fails to comply with any time limit in these regulations. The
Commission will not charge fees to any requester, including commercial
use requesters, if the cost of collecting a fee would be equal to or
greater than the fee itself. With the exception of requesters seeking
documents for a commercial use, the Commission will not charge fees for
the first 100 pages of duplication and the first two hours of search
time.
(1) The elements to be considered in determining the ``cost of
collecting a fee'' are the administrative costs of receiving and
recording a requester's remittance and processing the fee for deposit
in the Treasury Department's special account.
(2) For purposes of these restrictions on assessment of fees, the
word ``pages'' means paper copies of 8.5'' x 11'' or 11'' x 14.'' Thus,
requesters are not entitled to 100 computer disks, for example.
(3) For purposes of these restrictions on assessment of fees, the
term ``search time'' means manual search. To apply this term to
searches made by computer, the Commission will determine the hourly
cost of operating the CPU and the operator's hourly salary plus 16
percent. When the cost of such search (including operator time and the
cost of operating the computer to process a request) equals the
equivalent dollar amount of two hours of salary of the person
performing the search (i.e., the
[[Page 54262]]
operator), the Commission will begin assessing charges for computer
search.
Sec. 9405.10 Fees to be charged--categories of requesters.
There are four categories of FOIA requesters: Commercial use
requesters; educational and non-commercial scientific institutions;
representatives of the news media; and all other requesters.
(a) Commercial use requesters. When the Commission receives a
request for documents for commercial use, it will assess charges that
recover the full direct costs of searching for, reviewing for release,
and duplicating the record sought. Commercial use requesters are
neither entitled to two hours of free search time nor 100 free pages of
duplication. The Commission may recover the cost of searching for and
reviewing records even if there is ultimately no disclosure of records
(see Sec. 9405.11(b)).
(b) Educational and non-commercial scientific institution
requesters. The Commission shall provide documents to requesters in
this category for the cost of reproduction alone, excluding charges for
the first 100 pages. To be eligible for inclusion in this category,
requesters must show that the record is being made as authorized by and
under the auspices of a qualifying institution and that the records are
not sought for a commercial use but are sought in the furtherance of
scholarly (if the request is from an educational institution) or
scientific (if the request is from a non-commercial scientific
institution) research.
(c) Representatives of the news media. The Commission shall provide
documents to requesters in this category for the cost of reproduction
alone, excluding charges for the first 100 pages. To be eligible for
inclusion in this category, the requester must fit the definition of a
representative of the news media as stated in Sec. 9405.2, and the
request must not be made for commercial use. For purposes of this
paragraph, a request for records supporting the news dissemination
function of the requester shall not be considered to be a request that
is for commercial use.
(d) All other requesters. The Commission shall charge requesters
who do not fit into any of the categories above fees that recover the
full reasonable direct cost of searching for and reproducing records
that are responsive to the request, except that the first 100 pages of
reproduction and the first two hours of search time shall be furnished
without charge.
Sec. 9405.11 Miscellaneous fee provisions.
(a) Charging Interest--notice and rate. The Commission may begin
assessing interest charges on an unpaid bill starting on the 31st day
following the day on which the billing was sent. The fact that the fee
has been received by the Commission within the 30-day grace period,
even if it is not processed, will suffice to stay the accrual of
interest. Interest will be at the rate prescribed in section 3717 of
title 31 of the United States Code and will accrue from the date of the
billing.
(b) Charges for unsuccessful search. The Commission may assess
charges for time spent searching, even if it fails to locate the
records or if the records located are determined to be exempt from
disclosure. If the Commission estimates that search charges are likely
to exceed $25, it shall notify the requester of the estimated amount of
fees, unless the requester has indicated in advance his willingness to
pay fees as high as those anticipated. Such a notice shall offer the
requester the opportunity to confer with agency personnel with the
object of reformulating the request to meet his or her needs at a lower
cost.
(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 the
Commission 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, the Commission 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. The Commission may not require a requester to
make an advance payment (i.e., payment before work is commenced or
continued on a request) unless:
(1) The Commission estimates or determines that allowable charges
that a requester may be required to pay are likely to exceed $250.
Then, the Commission will notify the requester of the likely cost and
obtain satisfactory assurance of full payment where the requester has a
history of prompt payment of FOIA fees or require an advance payment of
an amount up to the full estimated charges in the case of requesters
with no history of payment; or
(2) A requester has previously failed to pay a fee charged in a
timely fashion (i.e., within 30 days of the date of the billing). Then,
the Commission may require the requester to:
(i) Pay the full amount owed plus any applicable interest as
provided above or demonstrate that he or she has, in fact, paid the
fee, and
(ii) Make an advance payment of the full amount of the estimated
fee before the agency begins to process a new request or a pending
request from that requester.
(3) When the Commission acts under paragraphs (d)(1) or (2) of this
section, the administrative time limits prescribed in 5 U.S.C.
552(a)(6) will begin only after the Commission has received payments
described in paragraphs (d)(1) and (2) of this section.
(e) Effect of Debt Collection Act of 1982. The Commission shall
comply with the provisions of the Debt Collection Act, including
disclosure to consumer reporting agencies and use of collection
agencies, where appropriate, to encourage repayment.
Sec. 9405.12 Waiver or reduction of charges.
Records responsive to a request will be furnished without charge
when the Chief FOIA Officer determines, based on all available
information, that disclosure of the requested information is in the
public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester.
PART 9407--IMPLEMENTATION OF THE GOVERNMENT IN THE SUNSHINE ACT
Sec.
9407.1 Purpose and scope.
9407.2 Definitions.
9407.3 Open meetings.
9407.4 Notice of meetings.
9407.5 Closed meetings.
9407.6 Procedures for closing meetings.
9407.7 Recordkeeping requirements.
9407.8 Public availability of records.
Authority: 5 U.S.C. 552b.
Sec. 9407.1 Purpose and scope.
This part contains the regulations of the U.S. Election Assistance
Commission implementing the Government in the Sunshine Act (5 U.S.C.
552b). Consistent with the Act, it is the policy of the Commission that
the public is entitled to the fullest practicable information regarding
its decision making processes. This part sets forth the basic
responsibilities of the Commission with regard to this policy and
offers guidance to members of the public who wish to exercise the
rights established by the Act. These regulations also fulfill the
requirement
[[Page 54263]]
of 5 U.S.C. 552b(g) that each agency subject to the Act promulgates
regulations to implement the open meeting requirements of paragraphs
(b) through (f) of section 552b.
Sec. 9407.2 Definitions.
As used in this part, the term--
Commission means the U.S. Election Assistance Commission,
established by the Help America Vote Act of 2002, 42 U.S.C. 15301 et
seq.
Commissioner means an individual appointed to the Commission by the
President and confirmed by the Senate under section 203 of the Help
America Vote Act of 2002, 42 U.S.C. 15323.
Executive Director means the Executive Director of the Commission
or his or her designee.
General Counsel means the General Counsel of the Commission or his
or her designee.
Meeting means the deliberations of at least three Commissioners
where such deliberations determine or result in the joint conduct or
disposition of official Commission business. A deliberation conducted
through telephone or similar communications equipment in which all
persons participating can hear each other shall be considered a
meeting. For the purposes of this section, ``joint conduct'' does not
include situations where the requisite number of members is physically
present in one place but not conducting agency business as a body. In
addition, the term ``meeting'' does not include a process of notation
voting by circulated memorandum for the purpose of expediting
consideration of official Commission business. The term ``meeting''
also does not include deliberations on whether to:
(1) Schedule a meeting;
(2) Hold a meeting with less than seven days notice, as provided in
Sec. 9407.4(e);
(3) Change the subject matter of a publicly announced meeting or
the determination of the Commission to open or close a meeting or
portions of a meeting to public observation, as provided in Sec.
9407.4(f);
(4) Change the time or place of an announced meeting, as provided
in Sec. 9407.4(g);
(5) Close a meeting or portions of a meeting, as provided in Sec.
9407.5; or
(6) Withhold from disclosure information pertaining to a meeting or
portions of a meeting, as provided in Sec. 9407.5.
Public observation means attendance by one or more members of the
public at a meeting of the Commission but does not include
participation in the meeting.
Public participation means the presentation or discussion of
information, raising of questions, or other manner of involvement in a
meeting of the Commission by one or more members of the public in a
manner that contributes to the disposition of Commission business.
Sec. 9407.3 Open meetings.
(a) The Commissioners shall not jointly conduct, determine, or
dispose of agency business other than in accordance with this section.
(b) Except as otherwise provided in this part, every portion of
every Commission meeting shall be open to public observation.
(c) No additional right to participate in Commission meetings is
granted to any person by this part. Meetings of the Commission, or
portions of a meeting, shall be open to public participation only when
an announcement to that effect is issued under Sec. 9407.4(b)(4).
Public participation shall be conducted in an orderly, non-disruptive
manner and in accordance with any procedures as the chairperson of the
meeting may establish. Public participation may be terminated at any
time for any reason.
(d) When holding open meetings, the Commission shall make a
diligent effort to provide appropriate space, sufficient visibility,
and adequate acoustics to accommodate the public attendance anticipated
for the meeting. When open meetings are conducted through telephone or
similar communications equipment, the Commission shall make an effort
to provide sufficient access to the public in a manner which allows the
public to clearly hear, see, or otherwise follow the proceedings. The
meeting room or other forum selected shall be sufficient to accommodate
a reasonable number of interested members of the public. The Commission
shall ensure that public meetings are held at a reasonable time and are
readily accessible to individuals with disabilities.
(e) Members of the public attending open Commission meetings may
use small electronic audio recording devices to record the proceedings.
The use of any other recording equipment and cameras requires advance
coordination with and notice to the Commission's Communications Office.
The chair or acting chair of the Commission may prohibit, at any time,
the use of any recording equipment during a public meeting if he or she
determines that such recording would disrupt the orderly conduct of the
meeting.
Sec. 9407.4 Notice of meetings.
(a) Except as otherwise provided in this section, the Commission
shall make a public announcement at least seven days prior to a
meeting.
(b) The public announcement shall include:
(1) The time and place of the meeting;
(2) The subject matter of the meeting;
(3) Whether the meeting is to be open, closed, or portions of a
meeting will be closed;
(4) Whether public participation will be allowed; and
(5) The name and telephone number of the person who will respond to
requests for information about the meeting.
(c) The public announcement requirement shall be implemented by:
(1) Publishing the announcement on the Commission's Web site; and
(2) Distributing the announcement to affected government entities
and persons and organizations that the Executive Director determines
may have an interest in the subject matter of the meeting.
(d) The announcement will be submitted for publication in the
Federal Register immediately following the public posting and
distribution noted in paragraph (c) of this section.
(e) A meeting may be held with less than seven days notice if a
majority of the Commission determines by recorded vote that the
business of the Commission so requires. The Commission shall make a
public announcement to this effect at the earliest practicable time.
The announcement shall include the information required by paragraph
(b) of this section and shall be issued in accordance with those
procedures set forth in paragraphs (c) and (d) of this section that are
practicable given the available period of time.
(f) The subject matter of an announced meeting or the determination
of the Commission to open or close a meeting or portions of a meeting
to public observation may be changed only if:
(1) A majority of the Commissioners determine by a recorded vote
that agency business so requires and that no earlier announcement of
the change was possible,
(2) The Commission publicly announces the change and the vote of
each Commissioner upon such change at the earliest practicable time.
(3) The announcement of the change noted in paragraph (f)(2) of
this section is issued in accordance with those procedures set forth in
paragraphs (c) and (d) of this section that are practicable given the
available period of time.
(g) The time or place of an announced meeting may be changed only
if a public
[[Page 54264]]
announcement of the change is made at the earliest practicable time.
The announcement shall be issued in accordance with those procedures
set forth in paragraphs (c) and (d) of this section that are
practicable given the available period of time.
Sec. 9407.5 Closed meetings.
(a) A meeting or portions of a meeting may be closed and
information pertaining to such meeting or portions of a meeting may be
withheld from the public only if the Commission determines that such
meeting or portions of a meeting or the disclosure of such information
is likely to:
(1) Disclose matters that are:
(i) Specifically authorized under criteria established by an
Executive Order to be kept secret in the interest of national defense
or foreign policy, and
(ii) To be properly classified under that Executive Order;
(2) Relate solely to the internal personnel rules and practices of
the Commission;
(3) Disclose matters specifically exempted from disclosure by
statute (other than the Freedom of Information Act, 5 U.S.C. 552)
provided that the statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Disclose the trade secrets and commercial or financial
information obtained from a person and privileged or confidential;
(5) Involve either accusing any person of a crime or formally
censuring any person;
(6) Disclose information of a personal nature, if disclosure would
constitute a clearly unwarranted invasion of personal privacy;
(7) Disclose either investigatory records compiled for law
enforcement purposes or information which, if written, would be
contained in such records but only to the extent that the production of
the records or information would:
(i) Interfere with enforcement proceedings,
(ii) Deprive a person of a right to either a fair trial or an
impartial adjudication,
(iii) Constitute an unwarranted invasion of personal privacy,
(iv) Disclose the identity of a confidential source or sources and,
in the case of a record compiled either by a criminal law enforcement
authority in the course of a criminal investigation or by an agency
conducting a lawful national security intelligence investigation,
confidential information furnished only by the confidential source or
sources,
(v) Disclose investigative techniques and procedures, or
(vi) Endanger the life or physical safety of law enforcement
personnel;
(8) Disclose information contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
use of an agency responsible for the regulation or supervision of
financial institutions;
(9) Disclose information the premature disclosure of which would be
likely to significantly frustrate implementation of a proposed action
of the Commission. This exception shall not apply in any instance where
the Commission has already disclosed to the public the content or
nature of the proposed action or where the Commission is required by
law to make such disclosure on its own initiative prior to taking final
action on the proposal; or
(10) Specifically concern the issuance of a subpoena by the
Commission; or the participation of the Commission in a civil action or
proceeding, an action in a foreign court or international tribunal, or
an arbitration; or the initiation, conduct, or disposition by the
Commission of a particular case of formal adjudication under the
procedures in 5 U.S.C. 554 or otherwise involving a determination on
the record after opportunity for a hearing.
(b) Before a meeting or portions of a meeting may be closed to
public observation, the Commission shall determine, notwithstanding the
exemptions set forth in paragraph (a) of this section, whether the
public interest requires that the meeting or portions of a meeting be
open consistent with Federal law. The Commission may open a meeting or
portions of a meeting that could be closed under paragraph (a) of this
section if the Commission finds it to be in the public interest to do
so and the disclosure is not otherwise prohibited by Federal law.
Sec. 9407.6 Procedures for closing meetings.
(a) A meeting or portions of a meeting may be closed and
information pertaining to a meeting or portions of a meeting may be
withheld under Sec. 9407.5(a) only when a majority of the members of
the Commission vote to take the action.
(b) A separate vote of the Commissioners shall be taken with
respect to each meeting or portion of a meeting proposed to be closed
and with respect to information which is proposed to be withheld. A
single vote may be taken with respect to a series of meetings or
portions of a meeting that are proposed to be closed, so long as each
meeting or portion of a meeting in the series involves the same
particular matter and is scheduled to be held no more than 30 days
after the initial meeting in the series. The vote of each participating
Commission member shall be recorded, and no proxies shall be allowed.
(c) A person whose interests may be directly affected by a portion
of a meeting may request in writing that the Commission close that
portion of the meeting for any of the reasons referred to in Sec.
9407.5(a)(5), (6), or (7) . Upon the request of a Commissioner, a
recorded vote shall be taken whether to close such meeting or a portion
of a meeting.
(d) Before the Commission may hold a meeting that is closed, in
whole or part, a certification shall be obtained from the General
Counsel that, in his or her opinion, the meeting may properly be
closed. The certification shall be in writing and shall state each
applicable exemption provision from Sec. 9407.5(a).
(e) Within one day of a vote taken under this section, the
Commission shall make publicly available a written copy of such vote
reflecting the vote of each Commissioner.
(f) In the case of the closure of a meeting or portions thereof,
the Commission shall make publicly available within one day of the vote
on such action a full written explanation of the reasons for the
closing with a list of all persons expected to attend the meeting and
their affiliation.
Sec. 9407.7 Recordkeeping requirements.
(a) The Commission shall maintain either a complete transcript or
electronic recording of the proceedings of each meeting.
(b) In the case of either a meeting or portions of a meeting closed
to the public under Sec. 9407.5(a)(8) or (10), the Commission shall
maintain a complete transcript, an electronic recording, or a set of
minutes of the proceedings. If minutes are maintained, they shall fully
and clearly describe all matters discussed and shall provide a full and
accurate summary of any actions taken and the reasons for which such
actions were taken, including a description of the views expressed on
any item and a record reflecting the vote of each Commissioner. All
documents considered in connection with any action shall be identified
in the minutes.
(c) The transcript, electronic recording, or copy of the minutes of
a meeting shall disclose the identity of each speaker.
[[Page 54265]]
(d) The Commission shall maintain a complete verbatim copy of the
transcript, a complete electronic recording, or a complete copy of the
minutes of the proceedings of each meeting for at least two years, or
for one year after the conclusion of any Commission proceeding with
respect to which the meeting was held, whichever occurs later.
Sec. 9407.8 Public availability of records.
The Commission shall make available to the public the transcript,
electronic recording, or minutes of a meeting, except for items of
discussion or testimony that relate to matters the Commission has
determined to contain information that may be withheld under Sec.
9407.5(a). This information shall be made available as soon as
practicable after each meeting on the Commission's Web site. Otherwise,
requests to receive or review transcripts, electronic recordings, or
minutes of a meeting should be addressed to the Communications
Director, U.S. Election Assistance Commission, 1225 New York Avenue,
Suite 1100, Washington, DC 20005. Copies of a transcript, a
transcription of the electronic recording, or the minutes of a meeting
(except for items of discussion or testimony that relate to matters
withheld under Sec. 9407.5) shall be furnished at cost to any person
upon written request pursuant to the requirements of 11 CFR part 9405.
PART 9410--IMPLEMENTATION OF THE PRIVACY ACT OF 1974
Sec.
9410.1 Purpose and scope.
9410.2 Definitions.
9410.3 Procedures for requests pertaining to individual records in a
record system.
9410.4 Times, places, and requirements for identification of
individuals making requests.
9410.5 Disclosure of requested information to individuals.
9410.6 Request for correction or amendment to record.
9410.7 Commission review of request for correction or amendment of
record.
9410.8 Appeal of initial adverse determination on amendment or
correction.
9410.9 Disclosure of record to person other than the individual to
whom it pertains.
9410.10 Fees.
9410.11 Penalties.
Authority: 5 U.S.C. 552a.
Sec. 9410.1 Purpose and scope.
(a) This part sets forth rules that inform the public as to what
information is maintained by the U.S. Election Assistance Commission
about identifiable individuals and that inform those identifiable
individuals how they may gain access to and correct or amend
information about them.
(b) The regulations in this part carry out the requirements of the
Privacy Act of 1974 (Pub. L. 93-579) and in particular 5 U.S.C. 552a as
added by that Act.
(c) The regulations in this part apply only to records disclosed or
requested under the Privacy Act of 1974 and not to requests for
information made under 5 U.S.C. 552, the Freedom of Information Act, or
requests for reports and statements filed with the Election Assistance
Commission which are public records and available for inspection and
copying.
Sec. 9410.2 Definitions.
As used in this part, the term--
Commission means the U.S. Election Assistance Commission,
established by the Help America Vote Act of 2002, 42 U.S.C. 15301 et
seq.
Commissioner means an individual appointed to the Commission by the
President and confirmed by the Senate under section 203 of the Help
America Vote Act of 2002, 42 U.S.C. 15323.
Individual means a citizen of the United States or an alien
lawfully admitted for permanent residence.
Maintain includes maintain, collect, use, or disseminate.
Record means any item, collection, or grouping of information about
an individual that is maintained by the Commission including, but not
limited to, his or her education, financial transactions, medical
history, and criminal or employment history and that contains his or
her name or the identifying number, symbol, or other identifying
information particularly assigned to the individual, such as finger or
voice print or a photograph.
Systems of records means a group of any records under the control
of the Commission from which information is retrieved by the name of
the individual or by some identifying number, symbol, or other
identifying information particularly assigned to the individual.
Sec. 9410.3 Procedures for requests pertaining to individual records
in a record system.
(a) Any individual may request the Commission to inform him or her
whether a particular record system named by the individual contains a
record pertaining to him or her. The request may be made in person or
in writing at the location of the record system and to the person
specified in the notice describing that record system.
(b) An individual, who believes that the Commission maintains
records pertaining to him or her but cannot determine which record
system contains those records, may request assistance by mail or in
person from the Executive Director, U.S. Election Assistance
Commission, 1225 New York Avenue, Suite 1100, Washington, DC 20005
during the hours of 9 a.m. to 5:30 p.m.
(c) Requests under paragraphs (a) or (b) of this section shall be
acknowledged by the Commission within 15 working days from the date of
receipt of the request. If the Commission is unable to locate the
information requested under paragraphs (a) or (b) of this section, it
shall so notify the individual within 15 working days after receipt of
the request. The notification may request additional information to
assist the Commission in locating the record, or it may advise the
individual that no record or document exists about that individual.
Sec. 9410.4 Times, places, and requirements for identification of
individuals making requests.
(a) After being informed by the Commission that a record system
contains a record pertaining to him or her, an individual may request
that the Commission disclose that record in the manner described in
this section. Each request for the disclosure of a record or a copy of
a record it shall be made in person or by written correspondence to the
U.S. Election Assistance Commission, 1225 New York Avenue, Suite 1100,
Washington, DC 20005 and to the person identified in the notice
describing the systems of records. Requests can also be made by
specifically authorized agents or by parents or guardians of
individuals.
(b) Each individual requesting the disclosure of a record or copy
of a record shall furnish the following information with his or her
request:
(1) The name of the record system containing the record;
(2) Proof as described in paragraph (c) of this section that he or
she is the individual to whom the requested record relates; and
(3) Any other information required by the notice describing the
record system.
(c) Proof of identity as required by paragraph (b)(2) of this
section shall be provided as described in paragraphs (c)(1) and (c)(2)
of this section. Requests made by an agent, parent, or guardian shall
be in accordance with the procedures described in Sec. 9410.9.
(1) Requests made in writing shall include a statement affirming
the individual's identity, signed by the individual and either
notarized or witnessed by two persons (including witnesses' addresses).
If the individual
[[Page 54266]]
appears before a notary, he or she shall submit adequate proof of
identification in the form of a driver's license, birth certificate,
passport, or other identification acceptable to the notary. If the
statement is witnessed, it shall include a sentence above the
witnesses' signatures that they personally know the individual or that
the individual has submitted proof of his or her identification to
their satisfaction. In cases involving records of extreme sensitivity,
the Commission may determine that the identification is not adequate
and may request the individual to submit additional proof of
identification.
(2) If the request is made in person, the requester shall submit
proof of identification similar to that described in paragraph (c)(1)
of this section, acceptable to the Commission.
Sec. 9410.5 Disclosure of requested information to individuals.
(a) Upon submission of proof of identification as required by Sec.
9410.4, the Commission shall allow the individual to see and/or obtain
a copy of the requested record or shall send a copy of the record to
the individual by registered mail. If the individual requests to see
the record, the Commission may make the record available either at the
location where the record is maintained or at a place more suitable to
the requestor, if possible. The record shall be made available as soon
as possible, but in no event later than 15 working days after proof of
identification. The individual may have a person or persons of his or
her own choosing accompany him or her when the record is disclosed.
(b) The Commission must furnish each record requested by an
individual under this part in a form intelligible to that individual.
(c) If the Commission denies access to a record to an individual,
he or she shall be advised of the reason for the denial and advised of
the right to judicial review.
(d) Upon request, an individual will be provided access to the
accounting of disclosures from his or her record under the same
procedures as provided above and in Sec. 9410.4.
Sec. 9410.6 Request for correction or amendment to record.
(a) Any individual who has reviewed a record pertaining to him or
her that was furnished under this part may request that the Commission
correct or amend all or any part of that record.
(b) Each individual requesting a correction or amendment shall send
or provide in person the written request to the Commission through the
person who furnished the record.
(c) Each request for a correction or amendment of a record shall
contain the following information:
(1) The name of the individual requesting the correction or
amendment;
(2) The name of the system of records in which the record sought to
be amended is maintained;
(3) The location of the system of records from which the individual
record was obtained;
(4) A copy of the record sought to be amended or corrected or a
sufficiently detailed description of that record;
(5) A statement of the material in the record that the individual
desires to correct or amend; and
(6) A statement of the basis for the requested correction or
amendment including any material that the individual can furnish to
substantiate the reasons for the correction or amendment sought.
Sec. 9410.7 Commission review of request for correction or amendment
of record.
(a) The Commission shall, not later than 10 working days after the
receipt of the request for a correction or amendment of a record under
Sec. 9410.6, acknowledge receipt of the request and inform the
individual whether additional information is required before the
correction or amendment can be considered.
(b) If no additional information is required, within 10 working
days from receipt of the request, the Commission shall either make the
requested correction or amendment or notify the individual of its
refusal to do so, including in the notification the reasons for the
refusal and the appeal procedures provided in Sec. 9410.8.
(c) The Commission shall make each requested correction or
amendment to a record if that correction or amendment will negate
inaccurate, irrelevant, untimely, or incomplete information in the
record.
(d) The Commission shall inform prior recipients of a record of any
amendment or correction or notation of dispute of the individual's
record if an accounting of the disclosure was made. The individual may
request a list of prior recipients if an accounting of the disclosure
was made.
Sec. 9410.8 Appeal of initial adverse determination on amendment or
correction.
(a) Any individual whose request for a correction or amendment has
been denied in whole or in part may appeal that decision to the
Commissioners no later than 180 days after the adverse decision is
rendered.
(b) The appeal shall be in writing and shall contain the following
information:
(1) The name of the individual making the appeal;
(2) Identification of the record sought to be amended;
(3) The record system in which that record is contained;
(4) A short statement describing the amendment sought; and
(5) The name and location of the Commission official who initially
denied the correction or amendment.
(c) Not later than 30 working days after the date on which the
Commission receives the appeal, the Commissioners shall complete their
review of the appeal and make a final decision thereon. However, for
good cause shown, the Commissioners may extend that 30-day period. If
the Commissioners extend the period, the individual requesting the
review shall be promptly notified of the extension and the anticipated
date of a decision.
(d) After review of an appeal, the Commission shall send a written
notice to the requestor containing the following information:
(1) The decision and, if the denial is upheld, the reasons for the
decision;
(2) The right of the requestor to institute a civil action in a
Federal District Court for judicial review of the decision; and
(3) The right of the requestor to file with the Commission a
concise statement setting forth the reasons for his or her disagreement
with the Commission's denial of the correction or amendment. The
Commission shall make this statement available to any person to whom
the record is later disclosed, together with a brief statement, if
appropriate, of the Commission's reasons for denying the requested
correction or amendment. The Commission shall also send a copy of the
statement to prior recipients of the individual's record if an
accounting of the disclosures was made.
Sec. 9410.9 Disclosure of record to person other than the individual
to whom it pertains.
(a) Any individual who desires to have a record covered by this
part disclosed to or mailed to another person may designate such person
and authorize the person to act as his or her agent for that specific
purpose. The authorization shall be in writing, signed by the
individual, and notarized or witnessed as provided in Sec. 9410.4(c).
(b) The parent of any minor individual or the legal guardian of any
individual who has been declared by a court of competent jurisdiction
to be incompetent due to physical or mental
[[Page 54267]]
incapacity or age may act on behalf of that individual in any matter
covered by this part. A parent or guardian who desires to act on behalf
of such an individual shall present suitable evidence of parentage or
guardianship, by birth certificate, certified copy of a court order, or
similar documents, and proof of the individual's identity in a form
that complies with Sec. 9410.4(c).
(c) An individual to whom a record is to be disclosed in person
under this part may have a person or persons of his or her own choosing
accompany him or her when the record is disclosed.
Sec. 9410.10 Fees.
(a) The Commission shall not charge an individual for the cost of
making a search for a record or the cost of reviewing the record. When
the Commission makes a copy of a record as a necessary part of the
process of disclosing the record to an individual, the Commission shall
not charge the individual for the cost of making that copy. When the
Commission makes a copy of a record in response to a request from an
individual, the Commission may charge the individual for the reasonable
cost of making the copy.
(b) If an individual requests that the Commission furnish a copy of
the record, the Commission shall charge the individual for the cost of
making the copy. The fee that the Commission has established for making
a copy is fifteen (15) cents per page.
Sec. 9410.11 Penalties.
Any person who makes a false statement in connection with any
request for a record or an amendment or correction thereto under this
part is subject to the penalties prescribed in 18 U.S.C. 494 and 495
and 5 U.S.C. 552a (i)(3).
Thomas R. Wilkey,
Executive Director, U.S. Election Assistance Commission.
[FR Doc. E8-21801 Filed 9-17-08; 8:45 am]
BILLING CODE 6820-KF-P