00-29208. Access to Documents by Former Employees of the Department

AGENCY:

Department of Justice.

ACTION:

Final rule.

SUMMARY:

This final rule establishes procedures under which former employees of the Department of Justice may request access to documents that they originated, reviewed, or signed while employees of the Department, for the purpose of responding to an official inquiry by a federal, state, or local government entity or professional licensing authority. The rule designates component heads and the Assistant Attorney General for Administration as the deciding officials.

DATES:

This rule is effective November 15, 2000.

FOR FURTHER INFORMATION CONTACT:

Stuart Frisch, General Counsel, or Evelyn Tang, Attorney-Advisor, Office of the General Counsel, Justice Management Division, U.S. Department of Justice, 1331 Pennsylvania Avenue NW., Suite 520N, [phone].

SUPPLEMENTARY INFORMATION:

A. Background

Whom Does This Rule Affect?

This rule applies to former employees of the Department who, after they leave the Department, have a need for access to Department documents that they originated, reviewed, or signed while employed by the Department, for the purpose of responding to an official inquiry by a federal, state, or local government entity or professional licensing authority.

What Does This Rule Do?

A legitimate concern has been raised by current and former Department employees, that after they leave the Department, they may still be called upon to respond to official inquiries into their handling of matters at the Department. This is especially likely in the case of high-level employees. Without access to relevant documents to refresh their memories, it may be difficult to respond to such inquiries. To address this concern, this regulation establishes a procedure for former employees to request access to documents that they originated, reviewed, or signed while at the Department. As a general rule, former employees will be provided access to the documents if they are responding to an official inquiry by a federal, state, or local government entity or professional licensing authority—for example, responding to a Congressional committee request, an investigation by an Inspector General, an investigation by a state or local law enforcement agency, or a disciplinary action by a bar association. The Department may deny or limit access where providing the requested access would be unduly burdensome. This rule does not create a right enforceable at law by a party against the United States.

What Type of Documents Does the Rule Cover?

The rule covers only documents that a former employee originated, reviewed, or signed while employed by the Department. Documents include memoranda, drafts, reports, notes, written communications, and documents stored electronically that are in the possession of the Department.

B. Administrative Procedure Act

This rule is a rule of agency organization, procedure, and practice; it is therefore exempt from the notice requirement of 5 U.S.C. 553(b) and is made effective upon issuance.

C. Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation and by approving it certifies that it will not have a significant economic impact on a substantial number of small entities. This rule merely establishes procedures under which former employees of the Department of Justice may, for the purpose of responding to an official inquiry, request access to documents they originated, reviewed, or signed while employed by the Department.

D. Executive Order 12866

This regulation has been drafted and reviewed in accordance with Executive Order 12866. The Department has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and accordingly this rule has not been reviewed by the Office of Management and Budget.

E. Unfunded Mandates Reform Act of 1995

This rule will not, in the aggregate, result in this expenditure by state, local, and tribal governments, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

F. Small Business Regulatory Enforcement Fairness Act of 1996

The Department has determined that this action pertains to agency management and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804). Therefore, the reports to Congress and the General Accounting Office specified by the SBREFA are not required.

List of Subjects in 28 CFR Part 16

• Administrative practice and procedure
• Courts
• Freedom of Information
• Privacy
• Sunshine Act

For the reasons stated in the preamble, Title 28 of the Code of Federal Regulations is amended as follows:

1. The authority citation for Part 16 continues to read as follows:

Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C. 4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717.

2. Add Subpart G to Part 16 to read as follows:

Subpart G—Access to Documents by Former Employees of the Department

Sec. 16.300

Access to documents for the purpose of responding to an official inquiry.

16.301

Limitations.

Subpart G—Access to Documents by Former Employees of the Department

§ 16.300

Access to documents for the purpose of responding to an official inquiry.

(a) To the extent permitted by law, former employees of the Department shall be given access to documents that they originated, reviewed, or signed while employees of the Department, for the purpose of responding to an official inquiry by a federal, state, or local government entity or professional licensing authority. Documents include memoranda, drafts, reports, notes, written communications, and documents stored electronically that are in the possession of the Department. Access ordinarily will be provided on government premises.

(b) Requests for access to documents under this section must be submitted in writing to the head of the component where the employee worked when originating, reviewing, or signing the documents. If the employee requesting access was the Attorney General, Deputy Attorney General, or Associate Attorney General, the request may be granted by the Assistant Attorney General for Administration. This authority may not be delegated below the level of principal deputy component head.

(c) The written request should describe with specificity the documents to which access is sought (including time periods wherever possible), the reason for which access is sought (including the timing of the official inquiry involved), and any intended disclosure of any of the information contained in the documents.

(d) The requester must agree in writing to safeguard the information from unauthorized disclosure and not to further disclose the information, by any means of communication, or to make copies, without the permission of the Department. Determinations regarding any further disclosure of information or removal of copies shall be made in accordance with applicable standards and procedures.

§ 16.301

Limitations.

(a) The Department may deny or limit access under this subpart where providing the requested access would be unduly burdensome.

(b) Access under this subpart to classified information is governed by Executive Order 12958 and 28 CFR 17.46. Requests for access to classified information must be submitted to (or will be referred to) the Department Security Officer and may be granted by the Department Security Officer in consultation with the appropriate component head.

(c) Nothing in this subpart shall be construed to supplant the operation of other applicable prohibitions against disclosure.

(d) This subpart is not intended to, does not, and may not be relied upon to, create any right or benefit, substantive or procedural, enforcecable at law by a party against the United States.

Dated: November 7, 2000.

Janet Reno,

Attorney General.