[Federal Register Volume 63, Number 165 (Wednesday, August 26, 1998)]
[Rules and Regulations]
[Pages 45644-45649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22631]
[[Page 45643]]
_______________________________________________________________________
Part VII
Federal Trade Commission
_______________________________________________________________________
16 CFR Part 4
Electronic Freedom of Information Act of 1996; Miscellaneous Rules;
Final Rule and Proposed Rule
Federal Register / Vol. 63, No. 165 / Wednesday, August 26, 1998 /
Rules and Regulations
[[Page 45644]]
FEDERAL TRADE COMMISSION
16 CFR Part 4
Electronic Freedom of Information Act of 1996; Miscellaneous
Rules
AGENCY: Federal Trade Commission (FTC).
ACTION: Final rule.
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SUMMARY: The Federal Trade Commission is implementing the requirements
of the Electronic Freedom of Information Act Amendments of 1996 by
revising its Rules of Practice governing access to agency records. The
Commission is also making other ``housekeeping'' amendments to its
Rules, including changes to reflect the Commission's establishment of a
Consumer Response Center, which replaces the former Public Reference
Branch, and the transfer of responsibility for initial Freedom of
Information Act and Privacy Act requests to the Office of the General
Counsel.
DATES: These amendments are effective August 26, 1998.
FOR FURTHER INFORMATION CONTACT: Alex Tang, Attorney, (202) 326-2447,
Office of the General Counsel, FTC.
SUPPLEMENTARY INFORMATION: On October 2, 1996, the President signed the
Electronic Freedom of Information Act Amendments of 1996 (E-FOIA), Pub.
L. 104-231, 110 Stat. 3048, amending the Freedom of Information Act
(FOIA), 5 U.S.C. 552. In a separate document published elsewhere in
today's Federal Register, the Commission is seeking public comment on
its proposal to amend its Rules of Practice to incorporate, among other
things, procedures for expedited processing and aggregation of
requests. This document contains implementing Rule amendments that do
not require public comment. This document also includes Rule amendments
reflecting recent organizational changes that affected the agency units
responsible, respectively, for providing routine access to public
records and for processing initial requests for non-public records
under the FOIA and Privacy Act.
Making Certain Documents Previously Released Under the FOIA
Available For Routine Public Inspection And Copying
Section (a)(2) of the FOIA, 5 U.S.C. 552(a)(2), which lists the
agency records that must be made available for routine public
inspection and copying, was amended by adding two new subsections, 5
U.S.C. 552(a)(2) (D) and (E). Previously, section (a)(2) applied only
to final opinions and orders in the adjudication of cases, agency
policy statements and interpretations not published in the Federal
Register, and administrative staff manuals and instructions affecting
the public. See 5 U.S.C. 552(a)(2)(A), (B), (C). In practice, the
Commission makes these and numerous other materials available for
routine inspection and copying on its public record. See Commission
Rule 4.9(b), 16 CFR 4.9(b).
The FOIA, as amended by the E-FOIA, now requires that the
Commission also make routinely available ``copies of all records,
regardless of form or format, which have been released to any person
under [the FOIA] and which, because of the nature of their subject
matter, the agency determines have become or are likely to become the
subject of subsequent requests for substantially the same records.'' 5
U.S.C. 552(a)(2)(D). An index of those records must also be made
routinely available. 5 U.S.C. 552(a)(2)(E). Accordingly, the Commission
is revising its list of public records in Rule 4.9(b) to include these
items. The new provisions are being designated as Rules 4.9(b)(10) (ix)
and (x), respectively, and certain existing paragraphs are being
revised and redesignated.
These changes will likely reduce the number of requests made under
the FOIA, although the Commission expects a corresponding increase in
the number of requests received for public record materials. Because
placing previously released documents on the public record and
providing access through that process is generally less costly than
providing access through the Commission's FOIA process, this proposed
change to the Rules will probably decrease the overall costs to the
Commission and should eliminate search and review fees that might
otherwise be incurred by requesters with respect to such records.
The General Counsel (or designee) will determine, on a case-by-case
basis, which documents may be appropriate to make routinely available
on the public record under Rule 4.9(b)(10)(ix). The Commission,
however, does not intend that documents placed on the public record
under that Rule will include information that is legally exempt from
public disclosure. One example is information about an individual that,
even where it is not exempt from mandatory disclosure to that
individual as a first-party requester, would still be withheld in
response to subsequent requests from others if the materials are
otherwise exempt under the FOIA. See, e.g., 5 U.S.C. 552(b)(6), (7)(C).
Other examples include information that is submitted to the Commission
(either under compulsory process, or voluntarily in lieu thereof) in a
Commission law enforcement investigation, or confidential business
information. Again, that information may be released back to a first-
party requester, but would be withheld from others under FOIA Exemption
3, by virtue of sections 6(f) and 21 (b) and (f) of the FTC Act, 15
U.S.C. 46(f) and 57b-2 (b) and (f), and FOIA Exemption 4.
Likewise, the Commission does not intend for Rule 4.9(b)(10)(ix) to
apply where the public interest in the documents is insufficient to
conclude that the documents are likely to be requested by others.
Further, documents placed on the public record under the Rule will be
removed, consistent with the statutory language and purpose of the
requirement, when it appears that they are no longer likely to be
routinely requested.
Making Certain Records Available Electronically
Section (a)(2) of the FOIA, as amended, further provides that
documents subject to routine public inspection and copying under that
provision must also be made accessible to the public electronically
(e.g., by ``computer telecommunications,'' such as a direct computer
dial-in system or through the Internet). This provision, which became
effective on November 1, 1997, applies to all covered records created
on or after November 1, 1996. Furthermore, beginning December 31, 1999,
the agency must make the document index required under section
(a)(2)(E) of the FOIA and new Rule 4.9(b)(10)(x), as discussed earlier,
publicly accessible by computer telecommunications, whether or not the
agency employs such a system for making other required documents
electronically available. The Commission is using its Internet Web site
(WWW.FTC.GOV) to meet the requirements of this provision. Accordingly,
the Commission is amending Rule 4.9(a)(3), which identifies the
locations from which public record materials may be obtained, to
include the Commission's Web site address. This change is intended to
promote electronic access to Commission information and documents.
Providing Records In the Format Requested
The FOIA, as amended, now requires that records released thereunder
be made available in the form or format requested if the material is
``readily
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reproducible'' in that form or format. See 5 U.S.C. 552(a)(3)(B). The
Commission is amending Rule 4.11(a)(1)(iv)(C) to reflect this
requirement.
In most instances, records are reproduced in their existing format
(e.g., paper) because no particular format has been requested. In other
cases, no version of the requested records may exist in the particular
format specified by the requester (e.g., a request that paper-only
records be made available in electronic form, or that records
maintained in one electronic format be made available in a different
electronic format). The Commission has determined that, in those cases,
whether a record is ``readily reproducible'' in the requested format
will depend on whether the record can be converted to that format with
a reasonable amount of effort. The relevant time and cost to the
requester, if any, will be determined in accordance with Commission
Rule 4.8 before such records are converted and reproduced in the
requested format. (The companion rulemaking document being published by
the Commission in today's Federal Register proposes a new category of
fees to be charged for conversions of paper records to electronic
format.)
Searching For Electronic Records
New section (a)(3)(C) of the FOIA, 5 U.S.C. 552(a)(3)(C), requires
that the Commission, in processing a FOIA request, make reasonable
efforts to search for any responsive records that may exist in
electronic form or format, except when such efforts would significantly
interfere with the operation of the agency's automated information
systems. In practice, the Commission already follows this procedure.
Accordingly, the Commission is modifying Rules 4.8(a)(1) and
4.11(a)(1)(iv)(A) to conform its Rules with the statute and the
Commission's current practice.
Amended Time Limit For Responding To Initial Requests
Section (a)(6) of the FOIA provides that the agency must determine
whether requested records will be released or withheld, either in whole
or in part, and respond to the request within specified periods of
time. The E-FOIA increased the time available to the Commission to
respond to an initial request from 10 working days to 20 working days.
See 5 U.S.C. 552(a)(6)(A)(i), as amended. Rule 4.11(a)(1)(iii)(A) is
amended to incorporate that change into the agency's Rules of Practice.
(This particular amendment is also included in the Commission
rulemaking document being published elsewhere in today's Federal
Register, which proposes other changes to Rule 4.11(a)(1)(iii)(A)
requiring public comment.) The E-FOIA did not change the time available
to respond to an administrative appeal of an initial denial of records,
which remains 20 working days. Therefore, no change is being made to
the corresponding portions of the Rules related to appeals.
Extensions Of Time For Responding To FOIA Requests
The FOIA permits agencies to extend the time limit for responding
to a FOIA request, including any appeal of a denied request, by up to
10 working days in ``unusual'' circumstances. 5 U.S.C. 552(a)(6)(B);
see Commission Rule 4.11(a)(1)(iii)(B). While the criteria for such
extensions were not amended, the FOIA now provides that when an agency
determines, in ``exceptional'' circumstances, that it cannot meet the
extended deadline, the requester will be so notified and given the
opportunity to modify the request or agree to an alternative time-
frame. 5 U.S.C. 552(a)(6)(B)(ii). The Commission's FOIA unit has
employed a similar procedure for many years to satisfy the needs of
requesters and to limit the Commission's costs in responding to
requests. Rules 4.11(a)(1)(iii)(B) and (C) and 4.11(a)(2)(ii)(B) have
been amended to incorporate this statutory change.
Estimating the Volume Of Withheld Materials
The amended statute now requires that, at both the initial and
administrative appeal levels, the agency must reasonably estimate the
volume of materials to which access is denied and to provide that
estimate to the requester, unless providing such an estimate would harm
an interest protected by an exemption in section (b) of the statute
that was cited as a basis for withholding materials. See 5 U.S.C.
552(a)(6)(F).
The statute does not state how specific the estimate must be. The
Commission has determined that a good-faith approximation of the number
of pages (or boxes of documents) being withheld should be sufficient to
comply with this provision, and has modified Rules 4.11(a)(1)(iv)(A)
(related to initial determinations) and 4.11(a)(2)(iii)(A) (related to
appeal determinations) to effect these statutory changes.
Guide To Requesting Information
The FOIA now requires that the agency prepare and make publicly
available reference material or a guide for requesting records or
information from the Commission, including an index of all major
information systems, a description of major information and record
locator systems maintained, and a handbook for obtaining various types
and categories of public information. See 5 U.S.C. 552(g). The
Commission has developed a handbook containing all of the required
guidance in one document, and is adding a new Rule 4.9(b)(8)(v) to
include that document in the list of agency records that are routinely
available to the public.
Organizational Changes
The Commission has established within its Bureau of Consumer
Protection a new Consumer Response Center, which is responsible for
providing access to public records previously provided by the
Commission's former Public Reference unit. The Commission has also
transferred agency staff responsible for processing initial requests
for non-public records under the FOIA and the Privacy Act, 5 U.S.C.
552a, from the Office of Information and Technology Management to the
Office of the General Counsel. Thus, the processing of initial requests
under the FOIA and Privacy Act, and initial determinations on all
requests for fee waivers, are now consolidated in the General Counsel's
office, which also retains its authority over the processing of appeals
in such matters. Initial request and appeal functions will remain
separate, however, and different staff and officials will process and
decide initial requests and appeals. Revisions are being made
throughout Rules 4.8, 4.11 and 4.13 to reflect these organizational
changes.
The Rules are also being amended to clarify the General Counsel's
responsibility for appeals of initial FOIA and Privacy Act requests and
related matters (e.g., initial denials of fee waivers, expedited
treatment, etc.), including the General Counsel's discretion to refer
unusual or difficult appeals of such matters to the Commission. See,
e.g., 16 CFR 4.11(a)(2)(iii)(A), 4.13(i)(1). In that regard, various
references to the ``Commission'' in Rules 4.8, 4.11 and 4.13 have been
deleted as unnecessary, as it is implicit that the Commission may
exercise any of the authority over appeals that it has otherwise
delegated to the General Counsel in cases where the General Counsel has
referred the appeal to the Commission.
Public Records Previously Omitted From Rule 4.9
In amending Rule 4.9 to include certain materials on the public
record, as required by the E-FOIA, the Commission is also taking the
[[Page 45646]]
opportunity to update that rule to include three additional categories
of records that the Commission is otherwise required by law, or has
determined as a matter of policy, to make routinely available on its
public record. These three categories are being added to Rule 4.9 as
paragraphs (b)(10) (xi), (xii), and (xiii), respectively.
The first category comprises grants of early termination of waiting
periods by the Commission under the premerger review provisions of the
Hart-Scott-Rodino amendments to the Clayton Act. That Act requires that
such early terminations be published in the Federal Register. See 15
U.S.C. 18a(b)(2). Thus, the Commission recognizes that this information
should be treated as part of its public record. The second category is
reports on applicable energy consumption and efficiency submitted under
the Commission's Appliance Labeling Rule, 16 CFR 305.8. The Commission
has previously voted to make such reports routinely available to the
public without a FOIA request. The third category is a ``catch-all''
provision for any other documents that the Commission determines to
place on its public record as a matter of policy, where such records
would otherwise be considered non-public under the Commission's Rules
and, thus, subject to release only upon a written FOIA request. This
category includes, for example, particular responses to inquiries from
Congressional committees and subcommittees that the Commission
determines are of sufficient public interest or importance to make
available for routine public inspection and copying (after any portions
exempt from mandatory disclosure under the FOIA have been redacted).
Method of Payment
Rule 4.8 (i) is also being amended to delete the option for payment
of processing fees by credit card, which the Commission no longer
accepts. The Commission has found that the small volume of such
transactions did not justify their processing costs. Requesters
continue to have the option of paying fees by check or money order.
The Commission certifies that the Rule amendments set forth in this
notice do not require an initial or final regulatory analysis under the
Regulatory Flexibility Act because the amendments will not have a
significant economic impact on a substantial number of small entities.
See 5 U.S.C. 605(b). Most requests for access to FTC records are filed
by individuals, who are not ``small entities'' within the meaning of
that Act. 5 U.S.C. 601(6). In any event, the economic impact of the
rule changes on all requestors is expected to be minimal, if any. The
Rule amendments also do not contain information collection requirements
within the meaning of the Paperwork Reduction Act, 44 U.S.C. 3501-3520.
The Commission has also determined, in consultation with the Office of
Management and Budget, that none of the amendments constitutes a major
rule within the meaning of the Small Business Regulatory Enforcement
Fairness Act, 5 U.S.C. 801-808.
Furthermore, the notice-and-comment requirements of the
Administrative Procedure Act (APA), 5 U.S.C. 553, do not apply to these
Rule amendments. The Commission has determined that it is unnecessary
to obtain public comment on the amendments to implement the E-FOIA, to
the extent those amendments are required by statute and do not involve
an exercise of agency discretion. See 5 U.S.C. 553(B). The Rule
amendments that reflect organizational changes within the Commission
are matters relating to agency management or personnel that are
expressly exempt from the APA's requirements. See 5 U.S.C. 553(a)(2).
Finally, the addition of certain categories of public records to the
Commission's rules are merely technical amendments to rules of
procedure that do not require public comment. See 5 U.S.C. 553(A).
List of Subjects in 16 CFR Part 4
Administrative practice and procedure, Freedom of Information Act.
For the reasons set forth in the preamble, the Federal Trade
Commission amends Title 16, Chapter I, Subchapter A of the Code of
Federal Regulations as follows:
PART 4--MISCELLANEOUS RULES
1. The authority citation for part 4 continues to read as follows:
Authority: Sec. 6, 38 Stat. 721; 15 U.S.C. 46.
2. Section 4.8 is amended by revising paragraphs (a)(1), (c),
(e)(1), (g), (h) and (i) to read as follows:
Sec. 4.8 Costs for obtaining Commission records.
(a) * * *
(1) The term search includes all time spent looking, manually or by
automated means, for material that is responsive to a request,
including page-by-page or line-by-line identification of material
within documents.
* * * * *
(c) Information to determine fees. Each request for records shall
set forth whether the request is made for other than commercial
purposes and whether the requester is an educational institution, a
noncommercial scientific institution, or a representative of the news
media. The Assistant General Counsel for Legal Counsel (Management &
Access) or his or her designee initially, or the General Counsel on
appeal, will use this information, any additional information provided
by the requester, and any other relevant information to determine the
appropriate fee category in which to place the requester.
* * * * *
(e) Public interest fee waivers.--(1) Procedures. A requester may
apply for a waiver of fees. The requester shall explain why a waiver is
appropriate under the standards set forth in this paragraph. The
application shall also include a statement, as provided by paragraph
(d) of this section, of whether the requester agrees to pay costs if
the waiver is denied. The Assistant General Counsel for Legal Counsel
(Management & Access) or his or her designee initially, or the General
Counsel on appeal, will rule on applications for fee waivers.
* * * * *
(g) Aggregating requests. If the Assistant General Counsel for
Legal Counsel (Management & Access) or his or her designee initially,
or the General Counsel on appeal, reasonably believes that a requester,
or a group of requesters acting in concert, is attempting to evade an
assessment of fees by dividing a single request into a series of
smaller requests, the requests may be aggregated and fees charged
accordingly.
(h) Advance payment. If the Assistant General Counsel for Legal
Counsel (Management & Access) or his or her designee initially, or the
General Counsel on appeal, estimates or determines that allowable
charges that a requester may be required to pay are likely to exceed
$250.00, or if the requester has previously failed to pay a fee within
30 days of the date of billing, the requester may be required to pay
some or all of the total estimated charge in advance. Further, the
requester may be required to pay all unpaid bills, including accrued
interest, prior to processing the request.
(i) Means of payment. Payment shall be made by check or money order
payable to the Treasury of the United States.
* * * * *
3. Section 4.9 is amended by: redesignating paragraph (b)(10)(ix)
as (b)(10)(xiv); adding new paragraphs (b)(8)(v) and (b)(10)(ix), (x),
(xi), (xii) and (xiii); and revising paragraphs
[[Page 45647]]
(a)(3), (a)(4)(i), (b)(8)(iii) and (iv), and (b)(10)(viii) to read as
follows:
Sec. 4.9 The public record.
(a) * * *
(3) Location. All of the public records of the Commission are
available for inspection at the principal office of the Commission on
each business day from 9 a.m. to 5 p.m., and copies of some of those
records are available at the regional offices on each business day from
8:30 a.m. to 5 p.m. Copies of records that the Commission is required
to make available to the public electronically, pursuant to 5 U.S.C.
552(a)(2), may be obtained in that format from the Commission's Web
site on the Internet, WWW.FTC.GOV.
(4) Copying of public records--(i) Procedures. Reasonable
facilities for copying public records are provided at each office of
the Commission. Subject to appropriate limitations and the availability
of facilities, any person may copy public records available for
inspection at each of those offices. Further, the agency will provide
copies to any person upon request. Written requests for copies of
public records shall be addressed to the Supervisor, Consumer Response
Center, and shall specify as clearly and accurately as reasonably
possible the records desired. For records that cannot be specified with
complete clarity and particularity, requesters shall provide
descriptions sufficient to enable qualified Commission personnel to
locate the records sought. In any instance, the Commission, the
Supervisor of the Consumer Response Center, the General Counsel, the
Assistant General Counsel for Legal Counsel (Management & Access), or
the official in charge of each office may prohibit the use of
Commission facilities to produce more than one copy of any public
record, and may refuse to permit the use of such facilities for copying
records that have been published or are publicly available at places
other than the offices of the Commission.
* * * * *
(b) * * *
(8) * * *
(iii) Summaries or other explanatory materials relating to matters
to be considered at open meetings made available pursuant to
Sec. 4.15(b)(3)
(iv) Commission minutes of open meetings, and, to the extent they
are not exempt from mandatory public disclosure under the Sunshine Act
or the Freedom of Information Act, portions of minutes or transcripts
of closed meetings; and
(v) A guide for requesting records or information from the
Commission, including an index of all major information systems, a
description of major information and record locator systems maintained
by the Commission, and a handbook for obtaining various types and
categories of public information.
* * * * *
(10) * * *
(viii) The Commission's annual report submitted after the end of
each fiscal year, summarizing its work during the year (available for
inspection at each of the offices of the Commission with copies
obtainable from the Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402) and any other annual reports
made to Congress on activities of the Commission as required by law;
(ix) Records, as determined by the General Counsel or his or her
designee, that have been released in response to a request made under
the Freedom of Information Act, 5 U.S.C. 552, and which, because of the
nature of the subject matter, have become or are likely to become the
subject of subsequent requests for substantially the same records,
except where some or all of those records would be exempt from
disclosure under 5 U.S.C. 552 if requested by another party;
(x) A general index of the records referred to under paragraph
(b)(10)(ix) of this section;
(xi) Grants of early termination of waiting periods published in
accordance with the Hart-Scott-Rodino premerger notification provisions
of the Clayton Act, 15 U.S.C. 18a(b)(2);
(xii) Reports on appliance energy consumption or efficiency filed
with the Commission pursuant to Sec. 305.8 of this chapter;
(xiii) Other documents that the Commission has determined to place
on the public record; and
* * * * *
4. Section 4.11 is amended by revising paragraphs (a)(1)(i)(A);
(a)(1)(iii)(A), (B), introductory text, and (C); (a)(1)(iv)(A), (B),
and (C); (a)(2)(ii)(B); and (a)(2)(iii)(A) to read as follows:
Sec. 4.11 Disclosure requests.
(a) * * *
(1) * * *
(i) * * *
(A) A request under the provisions of the Freedom of Information
Act, 5 U.S.C. 552, as amended, for access to Commission records shall
be in writing and addressed as follows:
Freedom of Information Act Request, Assistant General Counsel for
Legal Counsel, (Management & Access), Office of the General Counsel,
Federal Trade Commission, 6th Street and Pennsylvania Avenue, NW.,
Washington, DC 20580.
* * * * *
(iii) Time limit for initial determination. (A) The Assistant
General Counsel for Legal Counsel (Management & Access) or his or her
designee will, within 20 working days of the receipt of a request,
either grant or deny, in whole or in part, such request.
(B) Except in exceptional circumstances as provided in paragraph
(a)(1)(iii)(C) of this section, the Assistant General Counsel for Legal
Counsel (Management & Access) or his or her designee may extend the
time limit by not more than 10 working days if such extension is: * * *
(C) If the Assistant General Counsel for Legal Counsel (Management
& Access) or his or her designee extends the time limit for initial
determination pursuant to paragraph (a)(1)(iii)(B) of this section, the
requester will be notified in accordance with 5 U.S.C. 552(a)(6)(B). In
exceptional circumstances, when the request cannot be processed within
the extended time limit, the requester will be so notified and provided
an opportunity to limit the scope of the request so that it may be
processed within such time limit, or to arrange an alternative time
frame for processing the request or a modified request. ``Exceptional''
circumstances will not include delays resulting from a predictable
workload of requests under this section. Unwillingness to make
reasonable modifications in the scope of the request or to agree to an
alternative time frame may be considered as factors in determining
whether exceptional circumstances exist and whether the agency has
exercised due diligence in responding to the request.
* * * * *
(iv) Initial determination. (A) The Assistant General Counsel for
Legal Counsel (Management & Access) or his or her designee will make
reasonable efforts to search, using either manual or electronic means,
for the requested records in electronic form or format, except when
such efforts would significantly interfere with the operation of the
Commission's automated information systems. Access will be granted to
requested records, or any portions thereof, that must be made available
under the Freedom of Information Act. Access will be denied to records
that are exempt under the Freedom of Information Act, 5 U.S.C. 552(b),
unless the Assistant General Counsel for Legal Counsel (Management &
Access) or his or her designee determines that such records fall within
[[Page 45648]]
a category the Commission or the General Counsel has previously
authorized to be made available to the public as a matter of policy.
Denials will set forth the reasons therefor and advise the requester
that this determination may be appealed to the General Counsel if the
requester believes either that the records are not exempt, or that the
General Counsel should exercise discretion to release such records
notwithstanding their exempt status. The Assistant General Counsel for
Legal Counsel (Management & Access) or his or her designee will also
provide a reasonable, good-faith estimate of the volume of any
materials to which access is denied, unless providing such an estimate
would harm an interest protected by an exemption in 5 U.S.C. 552(b)
that was cited as a basis for withholding materials.
(B) The Assistant General Counsel for Legal Counsel (Management &
Access) or his or her designee is deemed to be the sole official
responsible for all denials of initial requests, except denials of
access to materials contained in active investigatory files, in which
case the Director or Deputy Director of the Bureau or the Director of
the Regional Office responsible for the investigation will be the
responsible official.
(C) Records to which access has been granted will be made available
to the requester in any form or format specified by the requester, if
the records are readily reproducible in that form or format, or can be
converted to that form or format with a reasonable amount of effort,
and they will remain available for inspection and copying for a period
not to exceed 30 days from date of notification to the requester unless
the requester asks for and receives the consent of the Assistant
General Counsel for Legal Counsel (Management & Access) or his or her
designee to a longer period. Records assembled pursuant to a request
will remain available only during this period and thereafter will be
refiled. Appropriate fees may be imposed for any new or renewed request
for the same records.
* * * * *
(2) * * *
(ii) * * *
(B) The General Counsel may, by written notice to the requester in
accordance with 5 U.S.C. 552(a)(6)(B), extend the time limit for
deciding an appeal by not more than 10 working days pursuant to
paragraph (a)(1)(iii)(B) of this section, provided that the amount of
any extension utilized during the initial consideration of the request
under that paragraph will be subtracted from the amount of additional
time otherwise available. Where exceptional circumstances do not permit
the processing of the appeal within the extended time limit, the notice
and procedures set forth in paragraph (a)(1)(iii)(C) of this section
shall apply.
(iii) * * *
(A) The General Counsel has the authority to grant or deny all
appeals and to release as an exercise of discretion records exempt from
mandatory disclosure under 5 U.S.C. 552(b). In unusual or difficult
cases, the General Counsel may, in his or her sole discretion, refer an
appeal to the Commission for determination. A denial of an appeal in
whole or in part will set forth the basis for the denial; will include
a reasonable, good-faith estimate of the volume of any materials to
which access is denied, unless providing such an estimate would harm an
interest protected by an exemption in 5 U.S.C. 552(b) that was cited as
a basis for withholding materials; and will advise the requester that
judicial review of the decision is available by civil suit in the
district in which the requester resides, or has his principal place of
business, or in which the agency records are situated, or in the
District of Columbia.
* * * * *
5. Section 4.13 is amended by revising paragraphs (c), (d), (e),
(f), (h), (i), (j), and (k) to read as follows:
Sec. 4.13 Privacy Act rules.
* * * * *
(c) Procedures for requests pertaining to individual records in a
record system. An individual may request access to his or her records
or any information pertaining to that individual in a system of
records, and notification of whether and to whom the Commission has
disclosed a record for which an accounting of disclosures is required
to be kept and made available to the individual, using the procedures
of this section. Requests for the disclosure of records under this
section or to determine whether a system of records contains records
pertaining to an individual or to obtain an accounting of disclosures,
shall be in writing and if mailed, addressed as follows:
Privacy Act Request, Assistant General Counsel for Legal Counsel
(Management & Access), Office of the General Counsel, Federal Trade
Commission, 6th Street and Pennsylvania Avenue N.W., Washington, DC
20580.
If requests are presented in person at the Office of the General
Counsel, the individual shall be required to execute a written request.
All requests shall name the system of records that is the subject of
the request, and shall include any additional information specified in
the pertinent system notice as necessary to locate the records
requested. If the requester wants another person to accompany him or
her to review the records, the request shall so state. Nothing in this
section will allow an individual access to any information compiled in
reasonable anticipation of a civil action or proceeding.
(d) Times, places, and requirements for identification of
individuals making requests. Verification of identity of persons making
written requests to the Assistant General Counsel for Legal Counsel
(Management & Access) ordinarily will not be required. The signature on
such requests will be deemed a certification by the signatory that he
or she is the individual to whom the record pertains or is the parent
or guardian of a minor or the legal guardian of the individual to whom
the record pertains. The Assistant General Counsel for Legal Counsel
(Management & Access) or his or her designee may require additional
verification of a requester's identity when such information is
reasonably necessary to assure that records are not improperly
disclosed; provided, however, that no verification of identity will be
required if the records sought are publicly available under the Freedom
of Information Act.
(e) Disclosure of requested information to individuals. Within 10
working days of receipt of a request under Sec. 4.13(c), the Assistant
General Counsel for Legal Counsel (Management & Access) or his or her
designee will acknowledge receipt of the request. Within 30 working
days of the receipt of a request under Sec. 4.13(c), the Assistant
General Counsel for Legal Counsel (Management & Access) or his or her
designee will inform the requester whether a system of records
containing retrievable information pertaining to the requester exists,
and if so, either that the request has been granted or that the
requested records or information is exempt from disclosure pursuant to
Sec. 4.13(m). When, for good cause shown, the Assistant General Counsel
for Legal Counsel (Management & Access) or his or her designee is
unable to respond within 30 working days of the receipt of the request,
that official will notify the requester and inform him or her
approximately when a response will be made.
(f) Special procedures: Medical records. When the Assistant General
Counsel for Legal Counsel (Management & Access) or his or her designee
determines that disclosure of a medical
[[Page 45649]]
or psychological record directly to a requesting individual could have
an adverse effect on the individual, he or she will require the
individual to designate a medical doctor to whom the record will be
transmitted.
* * * * *
(h) Agency review of request for correction or amendment of record.
Whether presented in person or by mail, requests under Sec. 4.13(g)
will be acknowledged by the Assistant General Counsel for Legal Counsel
(Management & Access) or his or her designee within 10 working days of
the receipt of the request if action on the request cannot be completed
and the individual notified of the results within that time.
Thereafter, the Assistant General Counsel for Legal Counsel (Management
& Access) or his or her designee will promptly either make the
requested amendment or correction or inform the requester of his
refusal to make the amendment or correction, the reasons for the
refusal, and the requester's right to appeal that refusal in accordance
with Sec. 4.13(i).
(i) Appeal of initial adverse agency determination. (1) If an
initial request filed under Sec. 4.13(c) or Sec. 4.13(g) is denied, the
requester may appeal that denial to the General Counsel. The appeal
shall be in writing and addressed as follows:
Privacy Act Appeal, Office of the General Counsel, Federal Trade
Commission, 6th Street & Pennsylvania Avenue, NW., Washington, DC
20580.
Within 30 working days of the receipt of the appeal, the General
Counsel will notify the requester of the disposition of that appeal,
except that the General Counsel may extend the 30-day period for good
cause, in which case, the General Counsel will advise the requester of
the approximate date on which review will be completed. In unusual or
difficult cases, the General Counsel may, in his or her sole
discretion, refer an appeal to the Commission for determination.
(2)(i) If the General Counsel refuses to amend or correct the
record in accordance with a request under Sec. 4.13(g), the General
Counsel will notify the requester of that decision and inform the
requester of the right to file with the Assistant General Counsel for
Legal Counsel (Management & Access) a concise statement setting forth
the reasons for the requester's disagreement with the General Counsel's
determination and the fact that the requester's statement will be
treated as set forth in paragraph (i)(2)(ii) of this section. The
General Counsel will also inform the requester that judicial review of
the decision is available by a civil suit in the district in which the
requester resides, or has his principal place of business, or in which
the agency records are situated, or in the District of Columbia.
(ii) If the individual files a statement disagreeing with the
General Counsel's determination not to amend or correct a record, such
disagreement will be clearly noted in the record involved and the
individual's statement will be made available to anyone to whom the
record has been disclosed after September 27, 1975, or is subsequently
disclosed together with, if the General Counsel deems it appropriate, a
brief statement of his or her reasons for declining to amend the
record.
(j) Disclosure of record to person other than the individual to
whom it pertains. Except as provided by 5 U.S.C. 552a(b), the written
request or prior written consent of the individual to whom a record
pertains, or of his parent if a minor, or legal guardian if
incompetent, shall be required before such record is disclosed. If the
individual elects to inspect a record in person and desires to be
accompanied by another person, the Assistant General Counsel for Legal
Counsel (Management & Access) or his or her designee may require the
individual to furnish a signed statement authorizing disclosure of his
or her record in the presence of the accompanying named person.
(k) Fees. No fees will be charged for searching for a record,
reviewing it, or for copies of records made by the Commission for its
own purposes incident to granting access to a requester. Copies of
records to which access has been granted under this section may be
obtained by the requester from the Assistant General Counsel for Legal
Counsel (Management & Access) or his or her designee on payment of the
reproduction fees provided in Sec. 4.8(b)(6).
* * * * *
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 98-22631 Filed 8-25-98; 8:45 am]
BILLING CODE 6750-01-P
