[Federal Register: November 17, 2008 (Volume 73, Number 222)]
[Rules and Regulations]
[Page 67791-67794]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17no08-16]
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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: LSC is revising its regulation on procedures for disclosure of
information under the Freedom of Information Act to implement changes
in that law made by the OPEN Government Act of 2007. LSC is also
designating the Office of Inspector General as a separate component for
receiving requests for its records and making two technical amendments.
DATES: This Final Rule is effective as of December 31, 2008.
FOR FURTHER INFORMATION CONTACT: Mattie Cohan, Senior Assistant General
Counsel, Office of Legal Affairs, Legal Services Corporation, 3333 K
St., NW., Washington, DC 20007; 202-295-1624 (phone); 202-337-6519
(fax); mcohan@lsc.gov (e-mail).
SUPPLEMENTARY INFORMATION: LSC is subject to the Freedom of Information
Act (FOIA) by the terms of the Legal Services Corporation Act. 42
U.S.C. 2996d(g).\1\ LSC has implemented FOIA procedures through the
adoption of regulations found at 45 CFR Part 1602.
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\1\ Absent this authority, LSC would not otherwise be subject to
FOIA since LSC is not an agency, department or instrumentality of
the Federal government. 42 U.S.C. 2996d(e)(1).
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On December 31, 2007, President Bush signed the Openness Promotes
Effectiveness in our National Government Act of 2007 (``OPEN Government
Act'' or ``Act'') into law. The OPEN Government Act amends FOIA in an
effort to improve media and public access to government records. In
order to bring LSC's FOIA regulations into conformance with the changes
to FOIA made by the OPEN Government Act provisions, the LSC Board of
Directors initiated a rulemaking on August 2, 2008 and LSC issued a
Notice of Proposed Rulemaking (NPRM) on August 14, 2008 (73 Fed. Reg.
45764) proposing revisions to the regulation and seeking public
comment. LSC received no comments on the NPRM and LSC adopts the
revisions to the regulation as proposed. The changes to Part 1602 are
discussed in greater detail below.
Section-by-Section Analysis
Definitions--45 CFR 1602.2
Section 1602.2(g)--Records
Under LSC's regulations, ``records'' are various materials ``made
or received by the Corporation in connection with the transaction of
the Corporation's business and preserved by the Corporation.'' 45 CFR
1602.2(g). Section 9 of the OPEN Government Act expands the statutory
definition of ``record'' to include any information that is maintained
for an agency by an entity under Government contract, for the purposes
of records management. LSC proposed to amend Sec. 1602.2(g) to conform
the regulation with the expanded statutory definition by specifically
referencing information maintained by LSC under contract for the
purposes of records management. LSC adopts the revisions as
proposed.\2\
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\2\ In accordance with Federal Register requirements, LSC is not
including any specific regulatory text language in this preamble.
Readers are referred to the regulatory text section supra.
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Section 1602.2(h)--Representatives of News Media
FOIA provides that ``representatives of the news media'' may not be
charged fees for search and review time associated with responding to
their FOIA requests. 5 U.S.C. 552(a)(4)(A)(ii)(II). The term
``representative of the news media'' is not defined in FOIA, but LSC's
FOIA regulation at Part 1602 currently contains a definition based on a
definition of that term appearing in guidance published by the Office
of Management and Budget. See 53 FR 6151 (March 1, 1988); 52 FR 10012
(March 27, 1987).
The OPEN Government Act of 2007 clarifies that ``freelance''
journalists and ``alternative media'' news sources (such as online news
sources) are ``representatives of the news media'' for the purposes of
the fee structure. Specifically, Sec. 3 of the OPEN Government Act
defines ``representative of the news media'' as ``any person or entity
that gathers information of potential interest to a segment of the
public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience.'' That section
goes on to provide:
In this clause, 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 are television or radio stations
broadcasting to the public at large and publishers of periodicals
(but only if such entities qualify as disseminators of `news') who
make their products available for purchase by or subscription by or
free distribution to the general public. These examples are not all-
inclusive. Moreover, as methods of news delivery evolve (for
example, the adoption of the electronic dissemination of newspapers
through telecommunications services), such alternative media shall
be considered to be news-media entities. A freelance journalist
shall be regarded as working for a news-media entity if the
journalist can demonstrate a solid basis for expecting publication
through that entity, whether or not the journalist is actually
employed by the entity. A publication contract would present a solid
basis for such an expectation; the Government may also consider the
past publication record of the requester in making such a
determination.
Although LSC's existing definition of ``representative of the news
media'' is not substantively inconsistent with or contrary to the newly
clarified definition in the OPEN Government Act, LSC believes that it
is prudent to amend its regulatory definition to reflect the revised
statutory language. LSC believes that substituting the clarified
definition for the existing one will ensure that LSC's regulation
reflects the full intent of Congress. Accordingly, LSC proposed to
amend Sec. 1602.2(h) to reflect the statutory language. LSC adopts the
definition as proposed.
Requests for Records--45 CFR 1602.8
Agencies are required to make determinations on whether to comply
with FOIA requests within twenty (20) business days of receipt of a
request.
[[Page 67792]]
5 U.S.C. 552(a)(6)(A)(i). LSC has incorporated this requirement into
its regulations at 45 CFR 1602.8(i). The OPEN Government Act provides
additional instruction to clarify when the time limit begins to run.
Specifically, section 6 of the OPEN Government Act provides that:
The 20-day period under clause [5 U.S.C 552(a)(6)(A)(i)] shall
commence on the date on which the request is first received by the
appropriate component of the agency, but in any event not later than
ten days after the request is received by any component of the
agency that is designated in the agency's regulations under this
section to receive requests under this section. [sic] The 20-day
period shall not be tolled by the agency except:
(I) That the agency may make one request to the requester for
information and toll the 20-day period while it is awaiting such
information that it has reasonably requested from the requester
under this section; or
(II) If necessary to clarify with the requester issues regarding
fee assessment. In either case, the agency's receipt of the
requester's response to the agency's request for information or
clarification ends the tolling period.
Unlike some agencies subject to FOIA, LSC has had only one
component designated to receive requests, the Office of Legal Affairs.
The Office of Inspector General (OIG) is not a separate component
designated to receive FOIA requests under LSC's regulations, although
the General Counsel or designee forwards requests for records
maintained by the OIG for processing and response. Under the current
regulation, when FOIA requests are for OIG records and they are
referred over to the OIG, the 20-day time limit for response only
starts for the OIG when the OIG receives the request upon referral from
the Office of Legal Affairs. However, under the new statutory
requirements, the OIG's 20-day time limit will commence when the OIG
receives the request from the Office of Legal Affairs, but in no event
later than 10 working days from when the Office of Legal Affairs
receives the request. Thus, if for some reason the referral is not made
on a timely basis, the OIG could lose some or all of its response time
before its response would be deemed late through no action on inaction
on the part of the OIG.
Designating the OIG as a separate component authorized to receive
requests directly would ameliorate, although not entirely eliminate,
this potential problem. In addition, LSC notes that it is typical
practice in other agencies with Inspectors General for those Offices of
Inspector General to be separately designated components authorized to
receive and process FOIA request directly. Accordingly, LSC proposed to
revise 45 CFR 1602.8(i) to incorporate the provisions of the OPEN
Government Act discussed above and to designate the Office of Inspector
General as a component authorized to receive FOIA requests for its
records. LSC adopts the revisions as proposed.
In addition, LSC proposed to redesignate paragraph (i)(2) as
(i)(2)(i), and amend that paragraph to provide for the mutual referral
by the respective Offices of FOIA requests received for the others'
documents. LSC also proposed add a new paragraph (i)(2)(ii) to clarify
when the 20-day period under paragraph (i)(1) begins to run for each
respective Office. LSC adopts the revisions as proposed.
Exemptions for Withholding Records--45 CFR 1602.9
Under FOIA, entire documents or portions thereof may be withheld
from disclosure if one or more specified exemptions apply. 5 U.S.C.
552(b). If a particular document contains information that can be
withheld from disclosure which may reasonably be segregated from the
material which must be released, the agency must (with limited
exception) release the segregable portion of the record and indicate
the amount of information which has been deleted. Id. Section 12 of the
OPEN Government Act imposes a further requirement that the agency
inform requesters of the exemption under which redacted information is
being withheld. LSC proposes incorporating this new requirement into
its regulations by amending Sec. 1602.9(b) to insert the words ``and
the exemption under which the deletion is made'' after the words
``amount of information deleted'' where they appear in the second and
third sentences of that paragraph. LSC adopts the revision as proposed.
Officials Authorized to Grant or Deny Requests for Records--45 CFR
1602.10
Under the current regulation, because the OIG is not separately
designated to receive its own FOIA requests, the Counsel to the
Inspector General or designee is required to consult with the Office of
the General Counsel prior to granting or denying requests for records
which have been referred to the OIG. 45 CFR 1602.10(b). With the
change, discussed elsewhere herein, to designate the OIG as a unit
authorized to receive FOIA requests directly, this requirement is
obsolete. Accordingly, LSC is deleting this requirement from the
regulation by deleting the last sentence of Sec. 1602.10(b).
In addition, under the current regulation, the Office of the
General Counsel is required to consult with the OIG when a requested
record originated with the OIG but is now maintained elsewhere within
the Corporation. 45 CFR 1602.10(b). This ensures that the OIG has
notice of the request and an opportunity to participate in the
potential release of OIG records by the Office of General Counsel. With
the change, discussed elsewhere herein, to designate the OIG as a
component authorized to receive FOIA requests directly, it is
appropriate to adopt a parallel provision requiring the OIG to consult
with the Office of the General Counsel prior to granting or denying a
request for a record which originated in a component of the Corporation
other than the OIG but which is being maintained by the OIG.
Accordingly, LSC proposed to add a new last sentence of Sec.
1602.10(b) requiring such consultation. LSC adopts the revision as
proposed.
Fees--45 CFR 1602.13
FOIA provides for the assessment of fees on requesters associated
with the processing of their FOIA requests. 5 U.S.C. 552(a)(4). Prior
to the adoption of the OPEN Government Act, applicable fees could be
assessed when authorized under FOIA, regardless of the timeliness of
the response to the requester. Section 6 of the OPEN Government Act has
changed that, providing now that, for FOIA requests received on or
after December 31, 2008, an agency which fails to provide a timely
response may not assess search fees, except in cases involving unusual
or exceptional circumstances. In the case of requesters who are
representatives of the news media, since they are already not subject
to search charges, the OPEN Government Act provides that, for FOIA
requests received on or after December 31, 2008, applicable duplication
fees will not be charged when the agency provides an untimely response.
LSC proposed to implement this statutory change by amending Sec.
1602.13, Fees, by redesignating paragraph (b) as a paragraph (b)(1) and
adding a new paragraph (b)(2) to incorporate the statutory requirement.
LSC adopts the revision with minor modifications to the text for
clarity and to explicitly reference that the limitation on the charging
of fees applies only the requests received on or after the effective
date of the revision.
Technical Changes--References to LSC's Address
Although not required by the OPEN Government Act, LSC is taking
this
[[Page 67793]]
opportunity to make two technical changes to the regulation, both
referencing addresses for the submission of FOIA requests.
Section 1602.5--Public Reading Room
When the Corporation last amended Part 1602 in 2003, it was in the
process of moving its offices from 750 First St. NE., Washington, DC to
its current location at 3333 K St., NW., Washington, DC. Section
1602.5, which sets forth the address of LSC's public reading room and
is also the address referenced in the instructions for the submission
of FOIA requests in Sec. 1602.8(b), was amended at that time to
include both addresses. The reference to the First St. NE. address is
now obsolete. Accordingly, LSC proposed to delete the reference to that
obsolete address and amend the first sentence of Sec. 1602.5(a) to
reference LSC's current address. LSC adopts the revision as proposed.
Section 1602.8--Requests for Records
LSC proposed a technical change to Sec. 1602.8(b) to update the
email address requesters are required to use to submit FOIA requests.
The current regulation lists an email address of info@smtp.lsc.gov,
which is a general information email address. In order to improve
handling and processing of FOIA requests, LSC has since established a
dedicated FOIA email address to ensure that FOIA requests are
identified and processed separately from other general information
requests submitted to the Corporation. Accordingly, LSC proposed to
amend paragraph (b) to delete the old email address, and substitute the
correct dedicated FOIA e-mail address: FOIA@lsc.gov in the third
sentence of paragraph (b). LSC adopts the revision as proposed.
List of Subjects in 45 CFR Part 1602
Freedom of Information, Reporting and recordkeeping requirements.
0
For the reasons set forth above, LSC amends 45 CFR part 1602 as
follows:
PART 1602--PROCEDURES FOR DISCLOSURE OF INFORMATION UNDER THE
FREEDOM OF INFORMATION ACT
0
1. The authority citation for part 1602 continues to read as follows:
Authority: 42 U.S.C. 2996d(g); 5 U.S.C. 552.
0
2. Paragraphs (g) and (h) of Sec. 1602.2 are revised to read as
follows:
Sec. 1602.2 Definitions.
(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 (either directly or maintained by a third party under
contract to the Corporation for records management purposes), 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 or entity
that gathers information of potential interest to a segment of the
public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience. In this
clause, 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 are television or radio stations broadcasting to
the public at large and publishers of periodicals (but only if such
entities qualify as disseminators of ``news'') who make their products
available for purchase by or subscription by or free distribution to
the general public. These examples are not all-inclusive. Moreover, as
methods of news delivery evolve (for example, the adoption of the
electronic dissemination of newspapers through telecommunications
services), such alternative media shall be considered to be news media
entities. A freelance journalist shall be regarded as working for a
news media entity if the journalist can demonstrate a solid basis for
expecting publication through that entity, whether or not the
journalist is actually employed by the entity. A publication contract
would present a solid basis for such an expectation; the Corporation
may also consider the past publication record of the requester in
making such a determination.
* * * * *
0
3. Paragraph (a) of Sec. 1602.5 is revised to read as follows:
Sec. 1602.5 Public reading room.
(a) The Corporation will maintain a public reading room its office
at 3333 K St. NW., Washington, DC, 20007. 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.
* * * * *
0
4. Paragraphs (b) and (i)(1)and (2) of Sec. 1602.8 are revised to read
as follows:
Sec. 1602.8 Requests for records.
* * * * *
(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 Act Request. All such requests shall be
addressed to the Corporation's Office of Legal Affairs or, in the case
of requests for records maintained by the Office of Inspector General,
to the Office of Inspector General. Requests by letter shall use the
address given in Sec. 1602.5(a). E-mail requests shall be addressed to
FOIA@lsc.gov or, in the case of requests for records maintained by the
Office of Inspector General, FOIA@oig.lsc.gov. 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 Legal Affairs, or as
appropriate, the Office of Inspector General. A request improperly
addressed will only be deemed to have been received as in accordance
with paragraph (i) of this section. Upon receipt of an improperly
addressed request, the General Counsel or designee (or Counsel to the
Inspector General or designee) shall notify the requester of the date
on which the time period began.
* * * * *
(i)(1)(i) 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.
(ii) In the case of a request for any Office of Inspector General
records made in accordance with this section, 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
[[Page 67794]]
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.
(i)(2)(i) If the General Counsel or designee determines that a
request or portion thereof is for the 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. If the Counsel to the
Inspector General or designee determines that a request or portion
thereof is for Corporation records not maintained by the Office of
Inspector General, the Counsel to the Inspector General or designee
shall promptly refer the request or portion thereof to the Office of
Legal Affairs and send notice of such referral to the requester.
(ii) The 20-day period under paragraph (i)(1) of this section shall
commence on the date on which the request is first received by the
appropriate Office (the Office of Legal Affairs or the Office of
Inspector General), but in no event later than 10 working days after
the request has been received by either the Office of Legal Affairs or
the Office of Inspector General. The 20-day period shall not be tolled
by the Office processing the request except that the processing Office
may make one request to the requester for information pursuant to
paragraph (c) of this section and toll the 20-day period while it is
awaiting such information that it has reasonably requested from the
requester under this section; or, if necessary to clarify with the
requester issues regarding fee assessment. In either case, the
processing Office's receipt of the requester's response to such a
request for information or clarification ends the tolling period.
* * * * *
0
5. Paragraph (b) introductory text of Sec. 1602.9 is revised to read
as follows:
Sec. 1602.9 Exemptions for withholding records.
* * * * *
(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 and the
exemption under which the deletion is being made 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 and the
exemption under which the deletion is being made shall be indicated at
the place in the record where the deletion occurs.
* * * * *
0
6. Paragraph (b) of Sec. 1602.10 is revised to read as follows:
Sec. 1602.10 Officials authorized to grant or deny requests for
records.
* * * * *
(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 the
Counsel to the Inspector General or designee 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 request for records or
portions of records which originated with any component of the
Corporation other than the Office of Inspector General, or which
contain information which originated with a component of the
Corporation other than the Office of Inspector General, but which are
maintained by the Office of Inspector General.
0
7. Paragraph (b) of Sec. 1602.13 is amended by redesignating paragraph
(b) as (b)(1) and adding paragraph (b)(2) to read as follows:
Sec. 1602.13 Fees.
* * * * *
(b) * * *
(2) If no unusual circumstances, as set forth in Sec. 1602.8
apply, for requests received on or after December 31, 2008, if LSC has
failed to comply with the time limits set forth in that section,
otherwise applicable search fees will not be charged to a requester. In
such cases, if the requester is a representative of the news media,
otherwise applicable duplication fees will not be charged.
Victor M. Fortuno,
Vice President and General Counsel.
[FR Doc. E8-26961 Filed 11-14-08; 8:45 am]
BILLING CODE 7050-01-P