[Federal Register Volume 63, Number 246 (Wednesday, December 23, 1998)]
[Rules and Regulations]
[Pages 70998-71014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33943]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of Federal Housing Enterprise Oversight
12 CFR Part 1710
RIN 2550-AA01
Releasing Information
AGENCY: Office of Federal Housing Enterprise Oversight, HUD.
ACTION: Final rule.
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SUMMARY: The Office of Federal Housing Enterprise Oversight (OFHEO) is
issuing a final rule which sets forth the basic policies of OFHEO
regarding disclosure of information it maintains and the procedures for
obtaining access to such information by the public. The rule implements
the Freedom of Information Act (FOIA) and establishes a schedule of
fees, which will be charged for the processing of record requests under
the FOIA. In addition, the rule sets forth procedures to be followed to
request testimony or the production of documents in legal proceedings
in which OFHEO is not a named party as
[[Page 70999]]
well as procedures for service of process upon OFHEO in any legal
proceeding.
EFFECTIVE DATE: January 22, 1999.
FOR FURTHER INFORMATION CONTACT: Gary L. Norton, Deputy General
Counsel, Christine C. Dion, Associate General Counsel, 1700 G Street
NW., Fourth Floor, Washington, DC 20552, telephone (202) 414-3829 (not
a toll-free number). The telephone number for the Telecommunications
Device for the Deaf is (800) 877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
Title XIII of the Housing and Community Development Act of 1992,
Pub. L. No. 102-550, known as the Federal Housing Enterprises Financial
Safety and Soundness Act of 1992 (1992 Act), established OFHEO as an
independent office within the Department of Housing and Urban
Development (HUD). OFHEO is responsible for ensuring the financial
safety and soundness and the capital adequacy of the Federal National
Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage
Corporation (Freddie Mac) (collectively, the Enterprises).
In order to carry out its regulatory responsibilities, OFHEO is
issuing this final rule governing the release of information to the
public. The rule implements the FOIA by establishing procedures by
which the public may inspect OFHEO records, request and obtain copies
of materials, and appeal denials of such requests under the FOIA. This
rule also includes a schedule of fees and procedures for determining
when fees should be waived or reduced for FOIA requests in conformance
with applicable guidelines of the Department of Justice (DOJ) and the
Office of Management and Budget (OMB). The final rule also implements
Executive Order 12600 by providing predisclosure notification
procedures for confidential commercial or financial information. In
addition, this final rule prescribes procedures for requesting access
to records or testimony in legal proceedings in which OFHEO is not a
named party. Also set forth in the final rule are procedures for
effecting service upon OFHEO in any legal process, including service of
process by litigants seeking access to OFHEO records.
OFHEO is aware of recent amendments to the FOIA resulting from the
Electronic Freedom of Information Act Amendments of 1996 (1996 Act),\1\
which was enacted to provide for public access to information in an
electronic format and for other purposes. OFHEO will implement the 1996
Act's amendments under separate rulemaking.
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\1\ Pub. L. No. 104-231, 110 Stat. 3048.
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Comments on the proposed rule \2\ were received from Fannie Mae and
Freddie Mac. Those comments were carefully considered in developing
this final rule and a discussion of the Enterprises' comments and
OFHEO's response to those comments follows.
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\2\ 60 FR 25162, May 11, 1995.
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II. Comments on the Proposed Releasing Information Rule
General Comments
Most of the Enterprises' comments related to their request that the
proposed rule be expanded to include provisions specifying how the
agency will process a request for information which is not required to
be disclosed under the FOIA because it is covered by an FOIA exemption.
The Enterprises commented that the absence of such provisions would
result in unnecessary burdens on OFHEO's staff by necessitating a case-
by-case review of requests for nonpublic information, and would lead to
uncertainty and unpredictability in the disclosure policy of future
OFHEO administrations. The Enterprises also noted that regulations
governing access to records subject to discretionary disclosure have
been adopted by the other financial institution regulatory agencies \3\
and that Congress intended OFHEO to act in a manner similar to those
agencies.
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\3\ See, e.g., 12 CFR part 261 Secs. 261.1-261.17 (Board of
Governors of the Federal Reserve System).
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OFHEO agrees with the Enterprises' comments that OFHEO's enabling
statute contains several provisions demonstrating congressional intent
that OFHEO consider the policies, rules, and procedures of the bank
regulatory agencies in implementing its operational and regulatory
authorities. In fact, it is the practice of OFHEO to carefully monitor
the law applicable to the bank regulatory agencies as well as the rules
and guidance of those agencies in order to more effectively carry out
OFHEO's role as the Enterprises' safety and soundness regulator.
For instance, the proposed regulation included provisions governing
requests for information in litigation in which OFHEO is not a party
which are similar to regulations adopted by the bank regulators. These
regulations are designed to ensure that appropriate limits are placed
on examination and other confidential information that may be sought as
evidence in such litigation. This final regulation contains the same
provisions. However, OFHEO has determined that, at this time, it is not
appropriate or necessary to adopt regulations governing how the agency
exercises its discretion in connection with other requests for
information that are not subject to mandatory release under the FOIA.
The other regulators have adopted those regulations primarily
because they receive numerous requests for certain categories of
information, which they regularly disclose under their discretionary
authority. Unlike the bank regulatory agencies, which have been in
existence for many years, OFHEO has not experienced a large volume of
requests by the public for nonpublic information. To date, each request
that has been received has been reviewed and processed on a case-by-
case basis under the FOIA. OFHEO believes that the existing procedures
are appropriate and effective and do not pose an undue burden on the
agency. OFHEO will, of course, monitor the volume and nature of
information requests on an ongoing basis and propose appropriate
amendments to the regulation if they are deemed necessary.
Fannie Mae expressed concern that a ``gap'' in the disclosure
coverage in OFHEO's final rule could result in FOIA requesters
asserting that HUD's rules, not OFHEO's, apply to such requests. Fannie
Mae further commented that HUD's existing and future disclosure rules
and policies may be inconsistent or conflict with OFHEO's disclosure
policies and with the appropriate treatment of sensitive OFHEO
supervisory records. Fannie Mae expressed concerns that the application
of HUD's disclosure rules could result in the release of highly
sensitive Enterprise information by HUD.
There is no ``gap'' in coverage. These regulations govern all OFHEO
records and requests for those records. The 1992 Act established OFHEO
as an independent office within HUD and expressly divided the
regulatory responsibilities over the Enterprises--HUD was assigned
programmatic oversight over the Enterprises' housing programs; \4\
OFHEO was assigned supervision and enforcement of the financial safety
and soundness of the Enterprises.\5\ Congress granted the Director
independent authority with respect to the capital adequacy and safety
and soundness regulation of the Enterprises.\6\ In addition, Congress
granted the OFHEO Director broad
[[Page 71000]]
authority to make such determinations, take such actions, and perform
such functions as the Director determines are necessary regarding the
management of OFHEO.\7\ The Director's independent management authority
is reinforced by the statutory provision prohibiting the Secretary of
HUD from merging or consolidating OFHEO or any of its functions or
responsibilities with any function or program administered by the
Secretary.\8\
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\4\ Sections 1321-1349 (12 U.S.C. 4541-4589).
\5\ Sections 1311-1319G (12 U.S.C. 4511-4526); sections 1361-
1379B (12 U.S.C. 4611-4641).
\6\ 1992 Act, section 1313(b)(1)-(8)(12 U.S.C. 4513(b)(1)-(8)).
\7\ 1992 Act, section 1313(b)(9) (12 U.S.C. 4513(b)(9)).
\8\ 42 U.S.C. 3534.
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This final rule governing the release of OFHEO information is being
promulgated under the Director's exclusive rulemaking authority. It
affects the management of OFHEO, i.e., OFHEO's disclosure policy, the
testimony of employees, and access to OFHEO records. For this reason,
OFHEO, not HUD, would decide whether or not to release OFHEO records.
Records under OFHEO's control are not covered by HUD's general rules on
information disclosure.
To date, FOIA requests involving OFHEO information or records,
which have been received by HUD, are referred to OFHEO's FOIA Officer
for response under OFHEO's disclosure rule and processing procedures.
Conversely, OFHEO's FOIA Officer ensures that FOIA requests for HUD
information or records are forwarded to HUD's FOIA Officer for response
under HUD's disclosure rules.
Freddie Mac commented that the 1992 Act did not specifically
delegate to OFHEO the function of public dissemination of information
about the Enterprises. Accordingly, Freddie Mac stated that OFHEO
generally should exercise its discretion concerning the release of
information about the Enterprises in a manner whereby the Enterprises,
not OFHEO, decide whether to release such information. Freddie Mac
commented that, to the extent that such nonpublic information
originates with the Enterprises, it is the Enterprise's property, not
OFHEO's. Therefore, Freddie Mac believes that OFHEO's determination to
release information should only be made after the Enterprises have had
the opportunity to comment on the effect of any disclosure of such
information to the public.
In response to this comment, OFHEO notes that OFHEO is subject to
the legal requirements of the FOIA. Under the FOIA, all responsive
records possessed by and within the control of OFHEO at the time such
requests are made must be released, unless OFHEO determines not to
release them under an applicable exemption or the records are
specifically excluded from FOIA's coverage. The nine exemptions of the
FOIA ordinarily provide the only bases for nondisclosure and generally
are discretionary in nature. Under the FOIA, discretion to exercise any
of the nine exemptions is confined to OFHEO, as the statute's
implementing agency. Submitters of information are not authorized under
the FOIA to invoke an exemption. However, under certain circumstances,
OFHEO must notify and consider input from submitters prior to releasing
records. As discussed below, exemption (b)(4) requires OFHEO to give
submitters of confidential commercial or financial information an
opportunity to object to the release of such information. However, even
in those instances and subject to certain notice requirements, the FOIA
requires OFHEO to make the final decision as to whether any information
will be released.
Below is OFHEO's response to the Enterprises' comments on the
specific sections as they appear in the proposed rule.
Section Comments
Subpart A--Information and Records Generally
Section 1710.1 General Rule
Stating that the lack of a definition for the term ``information''
may result in the disclosure of certain confidential information,
Fannie Mae requested that the term be defined in the final rule.
Section 1710.1 restricts the disclosure of ``any information in the
possession of OFHEO that is confidential or otherwise of a nonpublic
nature'' including information of the Enterprises. The term
``information'' is not defined in the section or elsewhere in the
proposed rule because OFHEO intended that the term be given its common
meaning, i.e., any knowledge derived from experience with a particular
event or situation.\9\ This meaning would impose a broad-based
prohibition against the unauthorized disclosure of any nonpublic
information that is obtained by, produced by, accessed by, or disclosed
to an OFHEO employee in connection with his or her work experience with
OFHEO. OFHEO believes that all information which has not become part of
the body of public information, including, but not limited to,
information regarding the Enterprises or OFHEO, should be afforded
maximum safeguards and that the common, all-encompassing meaning of
``information'' provides such safeguards. Accordingly, it has been
determined that the final rule should not be revised to define the term
``information.'' Rather, the term has been added to section 1710.7(a)
in this final rule to make it clear that OFHEO intends that the
prohibitions against unauthorized disclosure apply very broadly to all
nonpublic OFHEO documents and information. Moreover, since Fannie Mae
raised the issue of the use of the term ``information,'' OFHEO
carefully reviewed the proposed rule regarding other informational-type
terms. For consistency, changes were made in the final rule to ensure
that the term ``record'' is contained in provisions relating to FOIA
requests. The term ``document'' is used in place of the terms
``record'' and ``material'' in all other provisions of the final rule
relating to requests for OFHEO nonpublic information.
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\9\ See Webster's II New Riverside University Dictionary (1994).
See e.g., Addison v. Holly Hill Fruit Products, 322 U.S. 607, 618
(1994) (when common words are not defined, they should be given
common meaning).
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OFHEO agrees with the Enterprises' comments that, for purposes of
clarification, the term ``employee'' should be defined in the final
rule. To that end, OFHEO has defined the term.
Consistent with that definitional recommendation, OFHEO determined
that it also would be beneficial to define certain other terms for
purposes of the entire part 1710. The final rule contains a new
subpart, which consolidates in one place various terms used throughout
part 1710. Those general definitions are contained in subpart A of the
final rule. Subparts A through E of the proposed rule are redesignated
in the final rule as subparts B through F, respectively, and, sections
1710.1-.3 are renumbered as 1710.6-.8, respectively. Definitions that
are specific to a particular subpart continue to be defined within that
subpart in the final rule.
Additionally, to effect a more appropriate placement of its
content, section 1710.41 of the proposed rule is renumbered as 1710.9
and is moved to subpart B in the final rule. The section enumerates
final orders and agreements that OFHEO shall make available to the
public.
Subpart B--Availability of Records of OFHEO
Section 1710.11 Official Records of OFHEO
Fannie Mae commented that section 1710.11(d) provides that certain
records exempt from FOIA disclosure may be released if ``specifically
authorized by the Director,'' without a requirement
[[Page 71001]]
that such authority be in writing. Fannie Mae noted that the proposed
rule requires written authorization for release of examination reports,
and official documents or information disclosure in third-party legal
proceedings. Fannie Mae requested that section 1710.11(d) be revised to
require specific Director authorization ``in writing.''
OFHEO has determined not to change section 1710.11(d) in the final
rule. The requested change would require the Director to approve in
writing any decision to disclose a document that is subject to
discretionary release under the FOIA. While the FOIA Officer may
consult generally with the Director, authority to approve in writing
any decision to disclose such documents has been delegated by the
Director to the FOIA Officer in accordance with the procedural
requirements of the FOIA, Executive Order 12600, and OFHEO's internal
information disclosure policy.
Section 1710.18 Special Procedures for Business Information
With respect to section 1710.18, addressing business information,
Freddie Mac commented that OFHEO should adopt the simple rule that any
submissions designated as confidential by a submitter, unless
frivolous, should be covered by the notice and other protections of the
rule. Freddie Mac stated that this simple rule is consistent with
FOIA's Exemption 4. Freddie Mac objected to the ``good faith''
requirement found in sections 1710.18(c) and 1710.18(e)(1) of the
proposed rule and requested that the requirement be deleted from the
final rule. Freddie Mac argued that the undefined ``good faith''
requirement is in contravention of Executive Order 12600. Freddie Mac
stated that, under the Executive order, notice and an opportunity to
object to disclosure of information is required and an agency's opinion
of a submitter's ``good faith'' is irrelevant. It further stated that
the ``good faith'' standard is inconsistent with the definition of
business information found at section 1710.18(b)(1) of the proposed
regulation. Freddie Mac expressed concerns that the ``good faith''
requirement at section 1710.18(e)(1) would make the process by which
OFHEO judges a submitter's designation as confidential business
information too subjective. Moreover, it alleged that to allow OFHEO
staff to make determination on the notice requirement would give it
``dangerous power'' and would not reflect respect for the fact that
business information submitted to OFHEO is the property of the
Enterprise and, therefore, any decision to disclose such information
should not be made without the views of the submitting Enterprise.
Freddie Mac further commented that the provision found at section
1710.18(i)(4), which allows OFHEO to dispense with notice procedures if
a designation is ``obviously frivolous,'' makes the ``good faith''
requirement unnecessary since it gives OFHEO the ability to disclose
when a confidential designation is unwarranted.
The ``good faith'' requirements for submitters of business
information under section 1710.18, as proposed, simply reiterate the
policy underlying Executive Order 12600 that submitters should not
frivolously designate submissions as being protected from disclosure
under Exemption 4. The good faith language conforms to that contained
in the FOIA regulations of DOJ, which is the lead agency responsible
for implementation of the FOIA. Moreover, it is consistent with FOIA
regulations of other Federal agencies, such as the Office of the
Comptroller of the Currency, the Office of Thrift Supervision, and the
Office of Personnel Management. OFHEO believes that the ``good faith''
requirement provides a workable standard and will not give rise to the
concerns raised by Freddie Mac. Accordingly, OFHEO has retained the
section's good faith requirements in the final rule.
Freddie Mac also commented that reports of examination and related
materials should be treated the same way as business information. It
requested that the same protections afforded to business information
under Executive Order 12600 and proposed that section 1710.18 be
extended to examination reports and related materials.
It is clear from the plain language of Executive Order 12600 that
examination reports are not the type of ``confidential commercial
information'' intended to be subject to its prenotification procedures.
OFHEO is not aware of, and Freddie Mac did not identify, any problems
that warrant extending the predisclosure notice requirements of this
section beyond the scope of Executive Order 12600. Additionally, OFHEO
notes that, while examination reports may contain confidential
commercial information, the reports are OFHEO-produced and OFHEO-owned
documents. OFHEO examination reports are exempt from disclosure under
the FOIA by a specific exemption (5 U.S.C. 552(b)(8)). For these
reasons, the prenotification requirements of section 1710.18 have not
been revised in the final rule to include examination reports.
With respect to the prenotification requirements for business
information, Fannie Mae requested that sections 1710.18(f) and (g)(2)
of the proposed rule be revised to provide a submitter with a minimum
period of 10 days in which to object to a request to disclose and to be
advised of an agency's intent to disclose.
In drafting sections 1710.18(f) and (g), OFHEO sought to be
consistent with the prenotification requirements applicable to FOIA
requests for business information set forth in Executive Order 12600.
Among other things, the Order provides a submitter of such information
a ``reasonable period of time'' in which to object to disclosure of the
information. The Order also requires that an agency give submitters
notice of agency intent to disclose within a ``reasonable number of
days'' prior to the specified disclosure date.
In order to codify OFHEO's prenotification practice, OFHEO
specified in section 1710.18(g)(1) that it would provide notice to a
submitter of its intent to disclose 10 business days before the
specified disclosure date. To fulfill its obligation under the Order to
also notify the requester, OFHEO stated in section 1710.18(g)(2) that
OFHEO would forward to the requester of business information a copy of
the notice to disclose at the same time that OFHEO forwards such notice
to the business submitter.
For purposes of consistency, OFHEO has determined to revise section
1710.18 in the final rule to include the 10-day notice provision in
subsection (f) relating to a submitter's opportunity to object to
disclosure. For purposes of clarification, OFHEO has further determined
to delete reference to submitters in section 1710.18(g)(2), as their
inclusion would be redundant to coverage provided under subsection
(g)(1). Subsection (e) has been modified to more fully correspond to
the language of Executive Order 12600.
The title of section 1710.18 has been changed in this final rule
from ``Business Information'' to ``Special Procedures for Business
Information'' to more fully highlight the unique treatment afforded to
such information under Executive Order 12600.
Subpart C--Fees for Provision of Information
Section 1710.23 Fees To Be Charged--Categories of Requesters
Commenting on section 1710.23(a) relating to fees charged FOIA
requesters, Fannie Mae noted that the proposal states that OFHEO ``will
seek clarification'' before assigning a fee
[[Page 71002]]
category if it reasonably doubts a use classification for purposes of
charging a fee for record copying, or if the purpose is not clear from
the request. Fannie Mae stated that this would obligate OFHEO to engage
in inquiries that may be administratively burdensome; that requesters
are in the best position to provide adequate information to avoid such
expense. Fannie Mae requested that the section be revised to state that
OFHEO ``may place the requester in the commercial use category or may
seek additional clarification.''
The Freedom of Information Reform Act of 1986 \10\ specifically
required OMB to promulgate guidelines containing a uniform schedule of
FOIA fees applicable to all agencies that are subject to the FOIA. The
uniform guidelines issued by OMB advise agencies to resolve doubtful or
unclear requests to ensure that the appropriate use category is
assigned to a requester for purposes of charging fees. Among other
things, the guidelines note the need to distinguish between requesters
whose use of information is for a use that furthers their business
interests, as opposed to a use that in some way benefits the public.
Section 1710.23(a), as proposed, follows OMB's guidelines. Accordingly,
OFHEO has determined to adopt this section as proposed.
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\10\ Pub. L. No. 99-570, 100 Stat. 3207.
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Subpart D--Testimony and Production of Documents in Legal Proceedings
in Which OFHEO Is Not a Named Party
Stating that any harm to the Enterprises is the same whether
sensitive information is made public under the FOIA or pursuant to
legal process, Freddie Mac requested that the prenotification
requirements for business information should also apply to any request
for information under subpart D of the proposed rule. For the reasons
noted earlier, OFHEO has determined not to extend its prenotification
procedures beyond the scope of Executive Order 12600 in this final
rule.
Freddie Mac stated that, prior to the production of the
information, OFHEO should provide the Enterprises with the opportunity
to comment on the scope of any protective order governing the release
of sensitive, nonpublic commercial or examination materials directly
relating to them. As noted earlier, OFHEO believes that the provisions
of the proposed rule, including those contained in subpart D,
adequately safeguard the confidentiality of OFHEO documents and
information. However, OFHEO may solicit input from the Enterprises
whenever it is determined that such consultation would further
complement those safeguards. Accordingly, the provisions of subpart D
are being adopted as proposed.
SECTION-BY-SECTION ANALYSIS
I. General Definitions
Subpart A of the final rule provides definitions of terms used
throughout part 1710. Section 1710.1 explains the scope of subpart A.
Section 1710.2 defines the common terms used throughout part 1710.
II. Documents and Information Generally
Subpart B of the final rule contains general provisions relating to
disclosure of documents and information in the possession of OFHEO.
Section 1710.6 sets forth procedures for disclosure of such materials.
Section 1710.7 provides that the disclosure requirements of the FOIA
and the final rule apply to all OFHEO documents and information. It
also provides that if another statute sets specific procedure for
disclosure, OFHEO will process a request in accordance with the
procedures that apply to those specific documents. If a request is
received for disclosure of a document to the public which is not
required to be released under those provisions, OFHEO will consider the
request under the FOIA and the provisions of this final rule.
Section 1710.7 describes the relationship between the FOIA and the
Privacy Act of 1974 (Privacy Act), 5 U.S.C. 552a, and explains that
records that are available through an established distribution system
should preferably be obtained through that system, rather than pursuant
to the provisions of the FOIA.
Section 1710.8 of subpart B contains a general provision providing
that reports of examinations prepared by OFHEO are the property of
OFHEO and may only be disclosed in accordance with part 1710 or with
the prior written consent of the Director. The section further provides
that any unauthorized use or disclosure of such documents may be
subject to penalties under Federal law. Section 1710.8 explains that
the Director will make available to each Enterprise a copy of the
examination report of that Enterprise and that the Enterprise may not
disclose or use such reports except as expressly permitted by the
Director. The section also explains that the Director has discretion to
make the examination reports available for the confidential use of
Government agencies responsible for investigating and enforcing
applicable laws.
As noted earlier, section 1710.41 of the proposed rule is
renumbered as section 1710.9 in subpart B of this final rule. Section
1710.9 enumerates final orders and agreements that the Director is
required to make available to the public. The section also has been
modified to mirror those statutory requirements.
III. Availability of OFHEO Records
Subpart C implements the FOIA, 5 U.S.C. 552, and describes (1)
OFHEO records available to the public, (2) OFHEO information exempt
from disclosure, (3) OFHEO's record index, (4) request requirements,
(5) response requirements, (6) response content, (7) appeal procedures,
and (8) time limits for processing requests and appeals. Subpart C also
contains OFHEO's procedures for responding to FOIA requests for
confidential, commercial and financial information, i.e., business
information, provided to OFHEO.
Section 1710.11 describes OFHEO records that are available pursuant
to 5 U.S.C. 552(a) for public inspection and copying at the offices of
OFHEO. These records include any final orders and agreements made in
adjudication of cases, which are enumerated in section 1710.9 of the
final rule. Section 1710.11 also describes the categories of OFHEO
records that are exempt from disclosure. These exemptions follow the
exemptions provided in the FOIA.
Section 1710.12 sets forth the indexing requirements for records
OFHEO maintains which are required to be indexed under 5 U.S.C.
552(a)(2). The section contains the Director's determination that,
because of the lack of requests to date for records required to be
indexed, such indexes do not need to be published quarterly.
Section 1710.13 contains rules of procedure for requesting records
under the FOIA. Requests for OFHEO records should be in writing and
addressed to the FOIA Officer. Each request should contain sufficient
detail to allow the FOIA Officer to locate the record with a reasonable
amount of effort. If a request is too broad or too vague to allow the
record to be located with a reasonable amount of effort, OFHEO will
assist the requester in revising the request as appropriate.
Procedures for OFHEO's response to FOIA requests are explained in
sections 1710.14 and 1710.15. The FOIA Officer has been delegated the
responsibility in section 1710.14 to grant or deny such requests and to
determine fees. Paragraph (b) of section 1710.14 also provides that
OFHEO will refer FOIA
[[Page 71003]]
requests for records that originated in another Government agency to
that agency for response. In such cases, the requester will be notified
of the referral. Paragraph (c) of section 1710.14 states that OFHEO
will provide whatever records respond to a request, but will not create
a new record in order to respond. Moreover, to mirror the FOIA's
requirements, language has been added to the section in the final rule
noting that OFHEO will make reasonable efforts to provide information
in the format requested. Also, OFHEO will notify the requester if,
regardless of format, no records are responsive to the request.
Section 1710.15 requires the FOIA Officer to notify a requester in
writing of the determination to grant a request in whole or in part.
The response must describe the manner in which the record will be
disclosed and inform the requester of any fees that will be charged.
Similarly, the FOIA Officer's determination to deny a request in whole
or in part must be made in writing and signed by the FOIA Officer.
Consistent with section 1710.15(b), any denial is to contain a brief
statement describing the basis of the denial, including the FOIA
exemption(s) that is relied upon. Moreover, the denial must state that
the requester has a right to appeal and must explain OFHEO's appeal
procedures.
OFHEO's appeal procedures are set forth in section 1710.16 of the
final rule. Denials may be appealed to OFHEO's FOIA Appeals Officer
within 30 days after receipt of a denial letter. Appeals must be in
writing and must contain reasons for, or arguments in support of,
disclosure. OFHEO will respond to appeals in writing and will specify
the reason(s) for affirming any original denial. When a denial is
reversed in whole or in part, the request for disclosure will be
processed promptly. The decision on appeal is OFHEO's final action on a
request. Requesters have a right to seek judicial review of the final
action under 5 U.S.C. 552(a)(4).
Section 1710.17 of the final rule describes the time limits to
which OFHEO will adhere in responding to initial requests and appeals
of denials of requests. The response period for an initial request has
been revised from 10 days to 20 days in this final rule to reflect
statutory changes made by the 1996 Act. The section states that the
time limits applicable to either initial requests or appeals of denials
of requests may be extended up to a total of 10 days (excluding
weekends and legal holidays) in unusual circumstances, i.e., when the
records are in a location other than the main office of OFHEO, the
request is for a large number of records, or OFHEO must consult with
another agency or with various offices within OFHEO.
Section 1710.18 of the final rule contains OFHEO's procedures for
disclosure of sensitive, business information provided to OFHEO.
Generally, the section requires submitters of business information to
designate those portions of their submissions they believe may be
exempt from disclosure under Exemption 4 of the FOIA. If records so
designated are subsequently requested under the FOIA, in most cases the
submitter will have an opportunity to provide a written objection to
disclosure. The written objection must demonstrate why the information
is contended to be a trade secret or commercial or financial
information that is privileged or confidential and why disclosure would
cause competitive harm. Whenever possible, the submitter's claim of
confidentiality should be supported by a statement or certification by
an officer or authorized representative of the submitter. Information
that is provided by a submitter for the purpose of objecting to
disclosure may itself be subject to disclosure under the FOIA.
IV. Fees for Provision of Information
Subpart D of the final rule contains provisions relating to the
fees which will be assessed for services rendered in responding to and
processing requests for records under the FOIA. Fees are to be based on
the type of service provided, e.g., search, review, and duplication, as
well as the category of person making the request, e.g., commercial
user, educational institution, and news media. Generally, commercial
requesters will pay the full amount of permissible fees relating to
record search, review, and duplication. Educational and noncommercial
scientific institutions and the news media will pay only duplication
costs, excluding charges for the first 100 pages. All other requesters
will be assessed fees for search and duplication, except that the first
100 pages of duplication and the first 2 hours of search time will be
furnished without charge. As a matter of policy, OFHEO will not charge
fees for any individual request if the cost of collecting a fee would
equal or exceed the fee itself.
Additionally, under the final rule, OFHEO may furnish records
without charge or at a reduced charge where 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 Federal Government and is not primarily in the
commercial interest of the requester. In making this determination,
OFHEO will apply the six analytical factors set out by DOJ in its
advisory memorandum on making FOIA fee waiver determinations. The
memorandum, titled ``New FOIA Fee Waiver Policy Guidance,'' was issued
by the Assistant Attorney General for Legal Policy to the heads of all
Federal agencies on April 2, 1987. The factors enumerated in the
memorandum have been incorporated in section 1710.24.
Section 1710.25 contains a number of miscellaneous provisions
concerning fees, including a requirement that requesters pay in advance
fees likely to exceed $250.00. However, advance payment may not be
required in the case of a requester who has a history of prompt
payment. This section also includes a provision permitting interest to
be charged on fees over 30 days past due at the rate prescribed in 31
U.S.C. 3717 for an outstanding debt on a U.S. Government claim.
V. Testimony and Production of Documents in Legal Proceedings in
Which OFHEO Is Not a Named Party
Subpart E prescribes the policies and procedures of OFHEO with
respect to the testimony of official matters and production of official
documents of OFHEO in legal proceedings in which OFHEO is not a named
party. The subpart does not affect the rights and procedures governing
public access to OFHEO documents pursuant to the FOIA or the Privacy
Act.
Section 1710.31 sets forth the purpose of subpart E which is to (1)
ensure the confidentiality of OFHEO documents and information, (2)
maintain the impartial position of OFHEO in litigation in which OFHEO
is not a named party, (3) conserve the time of employees for their
official duties, and (4) enable the Director to determine when to
authorize testimony and the release of documents in legal proceedings
in which OFHEO is not a named party.
Section 1710.32 contains the definitions applicable to the subpart
E. Section 1710.33 provides the general policy of OFHEO with respect to
testimony and production of documents in any legal proceeding in which
OFHEO is not a named party, i.e., employees, including former
employees, are prohibited from disclosing any information obtained in
or resulting from their official capacities unless the Director
determines in writing that disclosure would be in the best interest of
OFHEO or in the public interest. Section 1710.33 further provides that,
[[Page 71004]]
prior to any authorized testimony or release of official documents, the
requesting party must obtain a protective order from the court before
which the action is pending to preserve the confidentiality of the
testimony or documents subsequently produced.
Section 1710.34 describes the procedures to which OFHEO will adhere
to enable the Director to determine whether to grant requests for
testimony concerning official matters or disclosure of official
documents. Section 1710.35 provides that the scope of permissible
testimony by an employee is limited to that set forth in the written
authorization granted that employee by the Director. The section
addresses OFHEO employees' authority to give opinion testimony in any
legal proceeding to which OFHEO is not a party. The section has been
modified in this final rule to clarify that generally OFHEO employees
do not give such testimony, but may do so if authorized by the
Director.
Section 1710.36 describes the manner in which authorized testimony
of employees will be made available. This section has been amended in
this final rule to clarify that testimony will ordinarily be made
available only through depositions or written interrogatories. A party
requesting authorized testimony must serve a subpoena on the employee
in accordance with applicable Federal or State rules of procedure, with
a copy of the subpoena sent by registered mail to the General Counsel.
Upon completion of an authorized deposition at OFHEO's office, a copy
of the transcript of the testimony shall be furnished at the requesting
party's expense to the General Counsel.
Section 1710.37 describes the manner in which official documents
authorized for release by the Director will be produced. Certified or
authenticated copies of OFHEO documents authorized by the Director to
be released under subpart E will be provided upon request.
Section 1710.38 describes the fees charged for documents produced
by OFHEO in connection with requests under subpart E. Unless waived or
reduced, OFHEO will charge for searches for documents, duplication of
documents, and certification or authentication of documents as detailed
in the section.
Section 1710.39 provides that an employee served with a demand in a
legal proceeding concerning OFHEO or the production of official OFHEO
documents or information, must notify the General Counsel of such
service. This notification will assist the General Counsel in advising
the Director as to whether the individual should be authorized to
testify or the material requested should be made available. When
authorization to testify or produce documents is not granted by the
Director, the General Counsel shall provide the party issuing the
demand or the court with a copy of the regulations contained in subpart
E, and also shall advise the party or the court that the employee upon
whom the demand has been made is prohibited from testifying or
producing the documents without the Director's prior approval.
Section 1710.39 also provides that any employee who has official
information that has not been approved for disclosure must respond to a
legal process by attending at the time and place required. The
individual shall respectfully decline to disclose the information on
the basis of subpart E of the final rule. If a court orders disclosure
contrary to the Director's instructions, the employee shall continue to
decline to disclose the information and shall advise OFHEO of the order
for such action as OFHEO may deem appropriate. Section 1710.39 advises
that any determination under subpart E to comply or not to comply with
any demand shall not constitute an assertion or waiver of privilege,
lack of relevance, technical deficiencies, or any other ground for
noncompliance. Moreover, it is noted that OFHEO reserves the right to
oppose any demand on any legal ground independent of its determination
under subpart E.
Section 1710.40 pertains to any person who is served with a request
to release OFHEO records who is not an OFHEO employee or former
employee. Such person may not disclose OFHEO records to any person
without the Director's prior written consent. Moreover, any person
served with a demand in a legal proceeding requiring that person to
produce OFHEO documents or to testify with respect thereto, must (1)
notify the General Counsel regarding the service, (2) object to
production of such documents or information contained therein on the
basis that the documents are the property of OFHEO and cannot be
released without OFHEO's consent, and (3) note that the documents'
production must be sought from OFHEO following procedures set forth in
final sections 1710.34(b) and (c) and 1710.37(b) of subpart E of the
final rule.
VI. Rules and Procedures for Service Upon OFHEO
Section 1710.51 of subpart F provides that, with limited
exceptions, any legal process on OFHEO must be issued and served upon
the General Counsel as well as any OFHEO personnel named in the caption
of the documents. Service may be effected by either personal delivery
or by registered or certified mail to the General Counsel at OFHEO's
office.
Regulatory Impact
Executive Order 12612, Federalism
Executive Order 12612 requires that Executive departments and
agencies identify regulatory actions that have significant federalism
implications. A regulation has federalism implications if it has
substantial direct effects on the States, on the relationship or
distribution of power between the Federal Government and the States, or
on the distribution of power and responsibilities among various levels
of Government. OFHEO has determined that this rule has no federalism
implications that warrant the preparation of a Federalism Assessment in
accordance with Executive Order 12612.
Executive Order 12866, Regulatory Planning and Review
This final rule has been reviewed by OMB pursuant to Executive
Order 12866.
Executive Order 12988, Civil Justice Reform
Executive Order 12988 sets forth guidelines to promote the just and
efficient resolution of civil claims and to reduce the risk of
litigation to the Federal Government. This final rule meets the
applicable standards of sections 3(a) and (b) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule does not include a Federal mandate that may result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100,000,000 or more (adjusted annually
for inflation) in any one year. Consequently, the rule does not warrant
the preparation of an assessment statement in accordance with the
Unfunded Mandates Reform Act of 1995.
Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires that
a regulation that has a significant economic impact on a substantial
number of small entities, small businesses, or small organizations must
include an initial regulatory flexibility analysis describing the
regulation's impact on small entities. Such an analysis need not be
undertaken if the
[[Page 71005]]
agency has certified that the regulation will not have a significant
economic impact on a substantial number of small entities. 5 U.S.C.
605(b).
OFHEO has considered the impact of the regulation under the
Regulatory Flexibility Act. The General Counsel has certified that this
final rule will not have significant economic impact on a substantial
number of small entities.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, requires
that regulations involving the collection of information receive
clearance from OMB. This rule contains no such collection of
information requiring OMB approval under the Paperwork Reduction Act.
Consequently, no information has been submitted to OMB for review under
the Paperwork Reduction Act.
List of Subjects in 12 CFR Part 1710
Administrative practice and procedure, Confidential business
information, Freedom of information.
Accordingly, for the reasons set out in the preamble, part 1710 is
added to chapter XVII of title 12 of the Code of Federal Regulations to
read as follows:
PART 1710--RELEASING INFORMATION
Subpart A--General Definitions
Sec.
1710.1 Scope.
1710.2 General definitions.
Subpart B--Documents and Information Generally
1710.6 General rule.
1710.7 Applicability.
1710.8 OFHEO examination reports.
1710.9 Orders and agreements available to the public.
Subpart C--Availability of Records of OFHEO
1710.11 Official records of OFHEO.
1710.12 Index identifying information for the public.
1710.13 Requests for records.
1710.14 Response to requests.
1710.15 Form and content of responses.
1710.16 Appeals of denials.
1710.17 Time limits.
1710.18 Special procedures for business information.
Subpart D--Fees for Provision of Information
1710.21 Definitions.
1710.22 Fees to be charged--general.
1710.23 Fees to be charged--categories of requesters.
1710.24 Limitations on charging fees.
1710.25 Miscellaneous fee provisions.
Subpart E--Testimony and Production of Documents in Legal Proceedings
in Which OFHEO Is Not a Named Party
1710.31 General purposes.
1710.32 Definitions.
1710.33 General policy.
1710.34 Request for testimony or production of documents.
1710.35 Scope of permissible testimony.
1710.36 Manner in which testimony is given.
1710.37 Manner in which documents will be produced.
1710.38 Fees.
1710.39 Responses to demands served on employees.
1710.40 Responses to demands served on nonemployees.
Subpart F--Rules and Procedures for Service Upon OFHEO
1710.51 Service of process.
Authority: 5 U.S.C. 301, 552; 12 U.S.C. 4513, 4522, 4526, 4639;
E.O. 12600, 3 CFR, 1987 Comp., p. 235.
Subpart A--General Definitions
Sec. 1710.1 Scope.
Definitions in Sec. 1710.2 relate to the meaning of terms used
throughout part 1710.
Sec. 1710.2 General definitions.
For the purpose of this part:
(a) Appeals Officer means the person designated by the Director to
process appeals of denials of requests for OFHEO records under the
FOIA.
(b) Director means the Director of OFHEO or his or her designee.
(c) Document means any record or paper, including but not limited
to a report, credit review, audit, examination, letter, telegram,
memorandum, study, calendar and diary entry, log, graph, pamphlet,
note, chart, tabulation, analysis, statistical or information
accumulation, any record of meetings and conversations, film
impression, magnetic tape, or any electronic media, disk, film, or
mechanical reproduction that is generated, obtained, or adopted by
OFHEO in connection with the conduct of its official business.
(d) Employee means any officer, former officer, employee, or former
employee of OFHEO; any conservator appointed by OFHEO; or any agent or
independent contractor acting on behalf of OFHEO, even though the
appointment or contract has terminated.
(e) FOIA means the Freedom of Information Act.
(f) FOIA Officer means the person designated to process requests
for OFHEO records under the FOIA.
(g) Official means concerning the authorized business of OFHEO.
(h) OFHEO means the Office of Federal Housing Enterprise Oversight.
(i) Person means any individual, or any agency, corporation,
partnership, trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization, or any other form of
entity not specifically listed herein, but does not include OFHEO or
any employee.
(j) Record means any document which is created or obtained by OFHEO
and which is under OFHEO control at the time of an FOIA request.
(k) Requester means any person seeking access to OFHEO records
under the FOIA.
Subpart B--Documents and Information Generally
Sec. 1710.6 General rule.
Except as authorized by this part or as otherwise necessary in
performing official duties, no employee shall in any manner disclose or
permit disclosure of any document or information in the possession of
OFHEO that is confidential or otherwise of a nonpublic nature,
including that regarding OFHEO or the Federal National Mortgage
Association (Fannie Mae) or the Federal Home Loan Mortgage Corporation
(Freddie Mac) (collectively, the Enterprises).
Sec. 1710.7 Applicability.
(a) General. The FOIA and the regulations in this part apply to all
OFHEO documents and information. However, if another law sets specific
procedure for disclosure, OFHEO will process a request in accordance
with the procedures that apply to those specific documents. If a
request is received for disclosure of a document to the public which is
not required to be released under those provisions, OFHEO will consider
the request under the FOIA and the regulations in this part.
(b) The relationship between the FOIA and the Privacy Act of 1974.
The Privacy Act of 1974 (Privacy Act), 5 U.S.C. 552a, applies to
records that are about individuals, but only if the records are in a
system of records as defined in the Privacy Act. Requests from
individuals for records about themselves which are contained in an
OFHEO system of records will be processed under the provisions of the
Privacy Act as well as the FOIA. OFHEO will not deny access by a first
party to a record under the FOIA or the Privacy Act unless the record
is not available to that individual under both the Privacy Act and the
FOIA.
(c) Records available through routine distribution procedures. When
the record requested includes material published and offered for sale,
e.g., by
[[Page 71006]]
the Superintendent of Documents or the Government Printing Office, or
which is available to the public through an established distribution
system (such as that of the National Technical Information Service of
the Department of Commerce), OFHEO will first refer the requester to
those sources. Nevertheless, if the requester is not satisfied with the
alternative sources, OFHEO will process the request under the FOIA.
Sec. 1710.8 OFHEO examination reports.
(a) General. Reports of examinations prepared by OFHEO may be
disclosed only in accordance with this part or with the prior written
consent of the Director. No person, agency, or authority, or director,
officer, employee, or agent thereof, shall disclose any such report or
information contained therein in any manner except as authorized in
accordance with this subpart. The report of examination is the property
of OFHEO and any unauthorized use or disclosure of such report may be
subject to the penalties provided in 18 U.S.C. 641.
(b) Enterprises. The Director makes available to each Enterprise a
copy of OFHEO's report of examination of such Enterprise. The report of
examination is the property of OFHEO and is provided to the Enterprise
for its confidential use only. Under no circumstance shall the
Enterprise or any director, officer, employee, or agent thereof, make
public or disclose in any manner the report of examination or any
portion of the contents thereof to any person or organization not
officially connected with the Enterprise as director, officer,
employee, attorney, auditor, or independent auditor. Any other
disclosure or use of this report except as expressly permitted by the
Director may be subject to the penalties of 18 U.S.C. 641.
(c) Government agencies. The Director may make available reports of
examination for the confidential use of Federal agencies responsible
for investigating or enforcing applicable Federal laws.
Sec. 1710.9 Orders and agreements available to the public.
(a) General. OFHEO shall make the following documents available to
the public:
(1) Any written agreement or other written statement for which a
violation may be redressed by the Director or any modification to or
termination thereof, unless the Director, in the Director's discretion,
determines that public disclosure would be contrary to the public
interest.
(2) Any order that is issued with respect to any administrative
enforcement proceeding initiated by the Director under 12 U.S.C. 4631
through 4641 that has become final in accordance with 12 U.S.C. 4633
and 12 U.S.C. 4634.
(3) Any modification to or termination of any final order made
public pursuant to this section.
(b) Delay of public disclosure under exceptional circumstances. If
the Director makes a determination in writing that the public
disclosure of any final order pursuant to paragraph (a) of this section
would seriously threaten the financial health or security of the
Enterprise, the Director may delay the public disclosure of such order
for a reasonable time.
(c) Documents filed under seal in public enforcement hearings. The
Director may file any document or part thereof under seal in any
hearing commenced by the Director if the Director determines in writing
that disclosure thereof would be contrary to the public interest.
(d) Retention of documents. The Director shall keep and maintain a
record, for not less than 6 years, of all documents described in
paragraph (a) of this section and all enforcement agreements and other
supervisory actions and supporting documents issued with respect to or
in connection with any enforcement proceedings initiated by the
Director under 12 U.S.C. 4631 through 4641.
(e) Disclosure to Congress. This section may not be construed to
authorize the withholding of any information from, or to prohibit the
disclosure of any information to, the Congress or any committee or
subcommittee thereof.
Subpart C--Availability of Records of OFHEO
Sec. 1710.11 Official records of OFHEO.
(a) OFHEO shall, upon a written request for records which
reasonably describes the information or records and is made in
accordance with the provisions of this subpart, make the records
available as promptly as practicable to any person for inspection and/
or copying, except as provided in paragraph (d) of this section.
(b) Records available. OFHEO records which are required by 5 U.S.C.
552(a)(2) to be made available for public inspection and copying are
maintained at OFHEO's offices located at 1700 G Street, NW., Fourth
Floor, Washington, DC 20552. The records include--
(1) Any final opinions, as well as orders made in adjudication of
cases as set forth in Sec. 1710.9 of subpart B of this part;
(2) Any statements of policy and interpretation that have been
adopted by OFHEO and are not published in the Federal Register;
(3) Any administrative staff manuals and instructions to staff that
affect a member of the public, and which are not exempt from disclosure
under 5 U.S.C. 552(b); and
(4) Any current indexes providing identifying information for the
public as to any matter which OFHEO has issued, OFHEO has adopted or
promulgated, and is required by 5 U.S.C. 552(a)(2) to be made available
or published.
(c) Copying. The cost of copying information available in the
offices of OFHEO shall be imposed on a requester in accordance with the
provisions of subpart D of this part.
(d) Records not available. Except as otherwise provided in this
part, or as may be specifically authorized by the Director, the
following information and records, or portions thereof, are not
available to the public:
(1) Any record, or portion thereof, which is--
(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) Is in fact properly classified pursuant to such Executive
order.
(2) Any record, or portion thereof, related solely to the internal
personnel rules and practices of OFHEO.
(3) Any record, or portion thereof, which is specifically exempted
from disclosure by statute (other than 5 U.S.C. 552(b)), 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) Any matter that is a trade secret or that constitutes
commercial or financial information obtained from a person and that is
privileged or confidential.
(5) Any matter contained in inter-agency or intra-agency memoranda
or letters which would not be available by law to a private party in
litigation with OFHEO.
(6) Any information contained in personnel and medical files and
similar files (including financial files) the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.
(7) Any records or information compiled for law enforcement
purposes, but only to the extent that the
[[Page 71007]]
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 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 or an Enterprise regulated and
examined by OFHEO which furnished information on a confidential basis,
and, in the case of a record of information compiled by a criminal law
enforcement authority in the course of a criminal 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.
(8) Any matter that is contained in or related to examination,
operating, or condition reports that are prepared by, on behalf of, or
for the use of OFHEO.
(9) Any geological and geophysical information and data, including
maps, concerning wells.
(e) Even if an exemption described in paragraph (d) of this section
may be reasonably applicable to a requested record, or portion thereof,
OFHEO may elect under the circumstances of any particular request not
to apply the exemption to such requested record, or portion thereof.
The fact that the exemption is not applied by OFHEO to any requested
record, or portion thereof, has no precedential significance as to the
application or nonapplication of the exemption to any other requested
record, or portion thereof, no matter when the request is received.
(f) Any reasonably segregable portion of a record shall be provided
to any person properly requesting such record after deletion of the
portions which are exempt under this subpart.
(g) To the extent necessary to prevent an invasion of personal
privacy, the Director may delete identifying details from a record
described in paragraph (b) of this section. In each case of such
deletion, the justification will be clearly explained in writing.
(h) This section does not authorize withholding of information or
limit the availability of records to the public, except as specifically
stated in this section. This section is not authority to withhold
information from Congress.
Sec. 1710.12 Index identifying information for the public.
(a) OFHEO will maintain and make available for public inspection
and copying a current index of materials available at the office of
OFHEO which are required to be indexed under 5 U.S.C 552(a)(2).
(b) Because of the lack of requests to date for material required
to be indexed, the Director has determined that it is unnecessary and
impracticable to publish quarterly, or more frequently, and distribute
(by sale or otherwise) copies of each index and supplements thereto, as
provided in 5 U.S.C. 552(a)(2). However, OFHEO will provide a copy of
such indexes to a member of the public upon request, at a cost not to
exceed the direct cost of duplication and mailing, if sending records
by other than ordinary mail.
Sec. 1710.13 Requests for records.
(a) Addressing requests. Requests for records in the possession of
OFHEO shall be made in writing. The envelope and the request both
should be clearly marked ``FOIA Request'' and addressed to: FOIA
Officer, Office of Federal Housing Enterprise Oversight, 1700 G Street
NW., Fourth Floor, Washington, DC 20552. A request improperly addressed
will be deemed not to have been received for purposes of the 20-day
time period set forth in paragraph (a) of Sec. 1710.17 of this subpart
until it is received, or would have been received with the exercise of
due diligence, by the FOIA Officer. Records requested in conformance
with this subpart and which are not exempt records may be obtained in
person or by mail as specified in the request. Records to be obtained
in person will be available for inspection or copying during business
hours on a regular business day in the office of OFHEO.
(b) Description of records. Each request must reasonably describe
the desired records in sufficient detail to enable OFHEO personnel to
locate the records with a reasonable amount of effort. A request for a
specific category of records will be regarded as fulfilling this
requirement if it enables responsive records to be identified by a
technique or process that is not unreasonably burdensome or disruptive
of OFHEO operations.
(1) Whenever possible, a request should include specific
information about each record sought, such as the date, title or name,
author, recipient, and subject matter of the record.
(2) If the FOIA Officer determines that a request does not
reasonably describe the records sought, he or she will either advise
the requester what additional information is needed to locate the
record or otherwise state why the request is insufficient. The FOIA
Officer will also extend to the requester an opportunity to confer with
OFHEO personnel with the objective of reformulating the request in a
manner which will meet the requirements of this section.
Sec. 1710.14 Responses to requests.
(a) Response to initial request. The FOIA Officer of OFHEO is
authorized to grant or deny any request for a record and to determine
appropriate fees.
(b) Referral to another agency. When a requester seeks records that
originated in another Federal Government agency, OFHEO will refer the
request to the other agency for response. If OFHEO refers the request
to another agency, it will notify the requester of the referral. A
request for any records classified by some other agency will be
referred to that agency for response.
(c) Creating records. If a person seeks information from OFHEO in a
format that does not currently exist, OFHEO will make reasonable
efforts to provide the information in the format requested. OFHEO will
not create a new record of information to satisfy a request.
(d) No responsive record. If no records are responsive to the
request, the FOIA Officer will so notify the requester in writing.
Sec. 1710.15 Form and content of responses.
(a) Form of notice granting a request. After the FOIA Officer has
granted a request in whole or in part, the requester will be notified
in writing. The notice shall describe the manner in which the record
will be disclosed, whether by providing a copy of the record with the
response or at a later date, or by making a copy of the record
available to the requester for inspection at a reasonable time and
place. The procedure for such an inspection may not unreasonably
disrupt the operation of OFHEO. The response letter will also inform
the requester of any fees to be charged in accordance with the
provisions of subpart D of this part.
(b) Form of notice denying a request. When the FOIA Officer denies
a request in whole or in part, he or she will so notify the requester
in writing. The response will be signed by the FOIA Officer and will
include--
[[Page 71008]]
(1) The name and title or position of the person making the denial;
(2) A brief statement of the reason or reasons for the denial,
including the FOIA exemption or exemptions which the FOIA Officer has
relied upon in denying the request; and
(3) A statement that the denial may be appealed under Sec. 1710.16
of this subpart and a description of the requirements of that section.
Sec. 1710.16 Appeals of denials.
(a) Right of appeal. If a request has been denied in whole or in
part, the requester may appeal the denial to: FOIA Appeals Officer,
Office of Federal Housing Enterprise Oversight, 1700 G Street, NW.,
Fourth Floor, Washington, DC 20552.
(b) Letter of appeal. The appeal must be in writing and must be
sent within 30 days of receipt of the denial letter. An appeal should
include a copy of the initial request, a copy of the letter denying the
request in whole or in part, and a statement of the circumstances,
reasons, or arguments advanced in support of disclosure of the
requested record. Both the envelope and the letter of appeal must be
clearly marked ``FOIA Appeal.'' An appeal improperly addressed shall be
deemed not to have been received for purposes of the 20-day time period
set forth in paragraph (b) of Sec. 1710.17 until it is received, or
would have been received with the exercise of due diligence, by the
Appeals Officer.
(c) Action on appeal. The disposition of an appeal will be in
writing and will constitute the final action of OFHEO on a request. A
decision affirming in whole or in part the denial of a request will
include a brief statement of the reason or reasons for affirmance,
including each FOIA exemption relied on. If the denial of a request is
reversed in whole or in part on appeal, the request will be processed
promptly in accordance with the decision on appeal.
(d) Judicial review. If the denial of the request for records is
upheld in whole or in part, or, if a determination on the appeal has
not been mailed at the end of the 20-day period or the last extension
thereof, the requester is deemed to have exhausted his or her
administrative remedies, giving rise to a right of judicial review
under 5 U.S.C. 552(a)(4).
Sec. 1710.17 Time limits.
(a) Initial request. Following receipt of a request for records,
the FOIA Officer will determine whether to comply with the request and
will notify the requester in writing of his or her determination within
20 days (excluding Saturdays, Sundays, and legal holidays) after
receipt of the request.
(b) Appeal. A written determination on an appeal submitted in
accordance with Sec. 1710.16 of this subpart will be issued within 20
days (excluding Saturdays, Sundays, and legal holidays) after receipt
of the appeal. When a determination cannot be mailed within the
applicable time limit, the appeal will nevertheless be processed. In
such case, upon the expiration of the time limit, the requester will be
informed of the reason for the delay, of the date on which a
determination may be expected to be mailed, and of that person's right
to seek judicial review. The requester may be asked to forego judicial
review until determination of the appeal.
(c) Extension of time limits. The time limits specified in either
paragraph (a) or (b) of this section may be extended in unusual
circumstances up to a total of 10 days (excluding Saturdays, Sundays,
and legal holidays) after written notice to the requester setting forth
the reasons for the extension and the date on which a determination is
expected to be made. As used in this paragraph, unusual circumstances
means that there is a need to--
(1) Search for and collect the requested records from facilities
that are separate from the office processing the request;
(2) Search for, collect, and appropriately examine a voluminous
amount of separate and distinct records which are demanded in a single
request; or
(3) Consult with another agency having a substantial interest in
the determination of the request, or consult with various offices
within OFHEO that have a substantial interest in the records requested.
Sec. 1710.18 Special procedures for business information.
(a) In general. Business information provided to OFHEO by a
business submitter shall not be disclosed pursuant to an FOIA request
except in accordance with this section.
(b) Definitions. For the purpose of this section, the following
definitions shall apply:
(1) Business information means trade secrets or other commercial or
financial information, provided to OFHEO by a submitter, which arguably
is protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4), because disclosure could reasonably be expected to cause
substantial competitive harm.
(2) Business submitter means any person or entity which provides
business information, directly or indirectly, to OFHEO and who has a
proprietary interest in the information.
(c) Designation of business information. Submitters of business
information should use good-faith efforts to designate, by appropriate
markings, either at the time of submission or at a reasonable time
thereafter, those portions of their submissions which they deem to be
protected under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). Any such
designation will expire 10 years after the records were submitted to
the Government, unless the submitter requests, and provides reasonable
justification for, a designation period of longer duration.
(d) Predisclosure notification. (1) Except as is provided for in
paragraph (i) of this section, the FOIA Officer shall, to the extent
permitted by law, provide a submitter with prompt written notice of an
FOIA request or administrative appeal encompassing its business
information whenever required under paragraph (e) of this section. Such
notice shall either describe the exact nature of the business
information requested or provide copies of the records or portions
thereof containing the business information.
(2) Whenever the FOIA Officer provides a business submitter with
the notice set forth in paragraph (e)(1) of this section, the FOIA
Officer shall notify the requester that the request includes
information that may arguably be exempt from disclosure under 5 U.S.C.
552(b)(4) and that the person or entity who submitted the information
to OFHEO has been given the opportunity to comment on the proposed
disclosure of information.
(e) When notice is required. OFHEO shall provide a business
submitter with notice of a request whenever--
(1) The business submitter has in good faith designated the
information as business information deemed protected from disclosure
under 5 U.S.C. 552(b)(4); or
(2) OFHEO has reason to believe that the request seeks business
information the disclosure of which may result in substantial
commercial or financial injury to the business submitter.
(f) Opportunity to object to disclosure. Through the notice
described in paragraph (d) of this section, OFHEO shall, to the extent
permitted by law, afford a business submitter at least 10 days
(excluding Saturdays, Sundays, and legal holidays) within which it can
provide OFHEO with a detailed written statement of any objection to
disclosure. Such statement shall demonstrate why the information is
contended to be a trade secret or commercial or financial
[[Page 71009]]
information that is privileged or confidential and why disclosure would
cause competitive harm. Whenever possible, the business submitter's
claim of confidentiality should be supported by a statement or
certification by an officer or authorized representative of the
business submitter. Information provided by a submitter pursuant to
this paragraph may itself be subject to disclosure under the FOIA.
(g) Notice of intent to disclose. (1) The FOIA Officer shall
consider carefully a business submitter's objections and specific
grounds for nondisclosure prior to determining whether to disclose
business information. Whenever the FOIA Officer decides to disclose
business information over the objection of a business submitter, the
FOIA Officer shall forward to the business submitter a written notice
at least 10 days (excluding Saturdays, Sundays, and legal holidays)
before the date of disclosure containing--
(i) A statement of the reasons for which the business submitter's
disclosure objections were not sustained,
(ii) A description of the business information to be disclosed, and
(iii) A specified disclosure date.
(2) Such notice of intent to disclose likewise shall be forwarded
to the requester at least 10 days (excluding Saturdays, Sundays, and
legal holidays) prior to the specified disclosure date.
(h) Notice of FOIA lawsuit. Whenever a requester brings suit
seeking to compel disclosure of business information, the FOIA Officer
shall promptly notify the business submitter of such action.
(i) Exceptions to predisclosure notification. The requirements of
this section shall not apply if--
(1) The FOIA Officer determines that the information should not be
disclosed;
(2) The information lawfully has been published or has been
officially made available to the public;
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552); or
(4) The designation made by the submitter in accordance with
paragraph (c) of this section appears obviously frivolous; except that,
in such a case, the FOIA Officer will provide the submitter with
written notice of any final decision to disclose business information
within a reasonable number of days prior to a specified disclosure
date.
Subpart D--Fees for Provision of Information
Sec. 1710.21 Definitions.
For the purpose of this subpart, the following definitions shall
apply:
(a) Commercial use request means a request for information that is
from, or on behalf of, a requester seeking information for a use or
purpose that furthers the commercial, trade, or profit interests of the
requester or the person on whose behalf the request is being made. To
determine whether a request is properly classified as a commercial use
request, OFHEO shall determine the purpose for which the requested
records shall be used. If OFHEO has reasonable cause to doubt the
purpose specified in the request for which a requester will use the
records sought, or where the purpose is not clear from the request
itself, OFHEO shall seek additional clarification before assigning the
request to a specified category.
(b) Direct costs means the expenditures actually incurred by OFHEO
in searching for and reproducing records to respond to a request for
information. In the case of a commercial use request, the term also
means those expenditures OFHEO actually incurs in reviewing records to
respond to the request. The direct cost shall include the salary of the
employee performing work (the basic rate of pay for the employee plus
16 percent of that rate to cover benefits) and the cost of operating
duplication equipment. Not included in direct costs are overhead
expenses such as costs of space, and heating or lighting the facility
in which the records are stored.
(c) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, and an institution of vocational education,
which operates a program or programs of scholarly research.
(d) Noncommercial scientific institution refers to an institution
that is not operated on a commercial, trade, or profit 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.
(e) Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that would be of current interest to
the public. Examples of news media entities include television or radio
stations broadcasting to the public at large and publishers of
periodicals (but only in those instances in which the periodicals can
qualify as disseminators of ``news'') who make their products available
for purchase or subscription by the general public. These examples are
not intended to be all-inclusive. As traditional methods of news
delivery evolve, e.g., electronic dissemination of newspapers through
telecommunication services, such alternative media, would be included
in this category. ``Freelance'' journalists may be regarded as working
for a news organization if they can demonstrate a solid basis for
expecting publication through that organization even though they are
not actually employed by the organization. A publication contract would
be the clearest proof that a journalist is working for a news
organization, but OFHEO may look to the requester's past publication
record to determine whether a journalist is working for a news
organization.
(f) Reproduce and reproduction means the process of making a copy
of a record necessary to respond to a request for information. Such
copies take the form of paper copy, microfilm, audio-visual materials,
or machine readable documentation, e.g., magnetic tape or disk. The
copy provided shall be in a form that is reasonably usable by
requesters.
(g) Review means the process of examining records located in
response to a request for information to determine whether any portion
of any record located is permitted to be withheld. It also includes
processing any records for disclosure, e.g., doing all that is
necessary to prepare the records for release. The term ``review'' does
not include the time spent resolving general legal or policy issues
regarding the application of exemptions. OFHEO shall only charge fees
for reviewing records in response to a commercial use request.
(h) The term search includes all time spent looking for material
that is responsive to a request for information, including page-by-page
or line-by-line identification of material within records. The term
``search'' includes the extraction of information from a computer using
existing programming. Searching for materials shall be done in the most
efficient and least expensive manner so as to minimize the costs of
OFHEO and the requester. For example, a line-by-line search for
responsive material should not be performed when merely reproducing an
entire document would be less expensive and the faster method of
complying with the request for information. A ``search'' for material
that is responsive to a request should be distinguished from a
``review'' of material to determine whether the material is exempt from
disclosure.
[[Page 71010]]
Sec. 1710.22 Fees to be charged--general.
(a) Policy. Generally, the fees charged for requests for records
pursuant to 5 U.S.C. 552 shall cover the full allowable direct costs of
searching for, reproducing, and reviewing records that are responsive
to a request for information. Fees shall be assessed according to the
schedule contained in paragraph (b) of this section and the category of
requesters described in Sec. 1710.23 of this subpart for services
rendered by OFHEO staff in responding to, and processing requests for,
records under this part. Fees assessed will be paid by check or money
order payable to the Office of Federal Housing Enterprise Oversight.
(b) Types of charges. The types of charges that may be assessed in
connection with the production of records in response to an FOIA
request are as follows:
(1) Searches. (i) Manual searches for records. Whenever feasible,
OFHEO will charge at the salary rate(s), i.e., basic pay plus 16
percent, of the employee(s) making the search. Charges for search time
will be billed by 15-minute segments.
(ii) Computer searches for records. Requesters will be charged at
the actual direct costs of conducting a search using existing
programming. These direct costs will include the cost of operating the
central processing unit for that portion of operating time that is
directly attributable to searching for records and the operator/
programmer salary, i.e., basic pay plus 16 percent, apportionable to
the search. A charge shall also be made for any substantial amounts of
special supplies or materials used to contain, present, or make
available the output of computers, based upon the prevailing levels of
costs to OFHEO for the type and amount of such supplies of materials
that are used. Nothing in this paragraph shall be construed to entitle
any person or entity, as of right, to any services in connection with
computerized records, other than services to which such person or
entity may be entitled under the provisions of this subpart. OFHEO will
not alter or develop programming to conduct a search.
(iii) Unproductive searches. OFHEO will charge search fees even if
no records are found which are responsive to the request or if the
records found are exempt from disclosure.
(2) Duplication. Records will be reproduced at a rate of $.15 per
page. For copies prepared by computer, such as tapes or printouts, the
requester shall be charged the actual cost, including operator time, of
production of the tape or printout. For other methods of reproduction,
the actual direct costs of reproducing the record(s) shall be charged.
(3) Review. Only requesters who are seeking records 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 initial review, i.e., the review undertaken the first
time OFHEO 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 properly assessable.
(4) Other services and materials. Where OFHEO elects, as a matter
of administrative discretion, to comply with a request for a special
service or materials, such as certifying that records are true copies
or sending records by special methods, the actual direct costs of
providing the service or materials will be charged.
Sec. 1710.23 Fees to be charged--categories of requesters.
(a) Fees for various requester categories. Paragraphs (b) through
(e) of this section state, for each category of requester, the types of
fees generally charged by OFHEO. However, for each of these categories,
the fees may be limited, waived or reduced in accordance with the
provisions set forth in paragraph (c) of Sec. 1710.24. If OFHEO has
reasonable cause to doubt the purpose specified in the request for
which a requester will use the records sought, or where the purpose is
not clear from the request itself, OFHEO will seek clarification before
assigning the request a specific category.
(b) Commercial use requester. OFHEO shall charge fees for records
requested by persons or entities making a commercial use request in an
amount that equals the full direct costs for searching for, reviewing
for release, and reproducing the records sought. Commercial use
requesters are not entitled to 2 hours of free search time nor 100 free
pages of reproduction of records. In accordance with Sec. 1710.22,
commercial use requesters may be charged the costs of searching for and
reviewing records even if there is ultimately no disclosure of records.
(c) Educational and noncommercial scientific institutions. OFHEO
shall charge fees for records requested by, or on behalf of,
educational institutions and noncommercial scientific institutions in
an amount which equals the cost of reproducing the records responsive
to the request, excluding the cost of reproducing the first 100 pages.
No search fee shall be charged with respect to requests by educational
and noncommercial scientific institutions. For a request to be included
in this category, requesters must show that the request being made is
authorized by and under the auspices of a qualifying institution, and
that the records are not sought for commercial use but are sought in
furtherance of scholarly research (if the request is from an
educational institution) or scientific research (if the request is from
a noncommercial scientific institution).
(d) News media. OFHEO shall charge fees for records requested by
representatives of the news media in an amount which equals the cost of
reproducing the records responsive to the request, excluding the costs
of reproducing the first 100 pages. No search fee shall be charged with
respect to requests by representatives of the news media. For a request
to be included in this category, the requester must qualify as a
representative of the news media and the request must not be made for a
commercial use. 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.
(e) All other requesters. OFHEO shall charge fees for records
requested by persons or entities that are not classified in any of the
categories listed in paragraphs (b), (c), or (d) of this section in an
amount that equals the full reasonable direct cost of searching for and
reproducing records that are responsive to the request, excluding the
first 2 hours of search time and the cost of reproducing the first 100
pages of records. In accordance with Sec. 1710.22, requesters in this
category may be charged the cost of searching for records even if there
is ultimately no disclosure of records, excluding the first 2 hours of
search time.
(f) For purposes of the exceptions contained in this section on
assessment of fees, the word ``pages'' refers to paper copies of 8\1/2\
x 11 or 11 x 14. Thus, requesters are not entitled to 100
microfiche or 100 computer disks, for example. A microfiche containing
the equivalent of 100 pages or a computer disk containing the
equivalent of 100 pages of computer printout meets the terms of the
exception.
(g) For purposes of paragraph (e) of this section, the term
``search time'' has as its basis, manual search. To apply this term to
searches made by computer, OFHEO will determine the hourly cost
[[Page 71011]]
of operating the central processing unit and the operator's hourly
salary plus 16 percent. When the cost of the search (including the
operator time and the cost of operating the computer to process a
request) equals the equivalent dollar amount of 2 hours of the salary
plus 16 percent of the person performing the search, i.e., the
operator, OFHEO will begin assessing charges for the computer.
Sec. 1710.24 Limitations on charging fees.
(a) In general. Except for requesters seeking records for a
commercial use as described in paragraph (b) of Sec. 1710.23, OFHEO
will provide, without charge, the first 100 pages of duplication and
the first 2 hours of search time, or their cost equivalent.
(b) No fee charged. OFHEO 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. 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 of processing the fee.
(c) Waiver or reduction of fees. OFHEO may grant a waiver or
reduction of fees if OFHEO determines that the disclosure of the
information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the Federal Government, and the disclosure of the
information is not primarily in the commercial interest of the
requester. Requests for a waiver or reduction of fees will be
considered on a case-by-case basis.
(1) The following factors will be considered by OFHEO in
determining whether a waiver or reduction of fees is in the public
interest:
(i) The subject of the request: Whether the subject of the
requested records concerns ``the operations or activities of the
Government.'' The subject matter of the requested records, in the
context of the request, must specifically concern identifiable
operations or activities of the Federal Government with a connection
that is direct and clear, not remote or attenuated. Furthermore, the
records must be sought for their informative value with respect to
those Government operations or activities; a request for access to
records for their intrinsic informational content alone will not
satisfy this threshold consideration.
(ii) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of Government operations or activities. The disclosable portions of the
requested records must be meaningfully informative on specific
Government operations or activities in order to hold potential for
contributing to increased public understanding of those operations and
activities. The disclosure of information that is already in the public
domain, in either a duplicative or substantially identical form, would
not be likely to contribute to such understanding, as nothing new would
be added to the public record.
(iii) The contribution to an understanding of the subject by the
general public: Whether disclosure of the requested information will
contribute to the ``public understanding.'' The disclosure must
contribute to the understanding of the public at large, as opposed to
the individual understanding of the requester or a narrow segment of
interested persons. A requester's identity and qualifications, e.g.,
expertise in the subject area and ability and intention to convey
information to the general public, will be considered.
(iv) The significance of the contribution in public understanding:
Whether the disclosure is likely to ``significantly enhance'' the
public understanding of Government operations or activities. The
public's understanding of the subject matter in question, as compared
to the level of public understanding existing prior to the disclosure,
must be likely to be enhanced by the disclosure to a significant
extent. The FOIA Officer shall not make a separate value judgment as to
whether information, even though it in fact would contribute
significantly to public understanding of the operations or activities
of the Government, is ``important'' enough to be made public.
(2) In order to determine whether the second fee waiver requirement
is met, i.e., that disclosure of the requested information is not
primarily in the commercial interest of the requester, OFHEO shall
consider the following two factors in sequence:
(i) The existence and magnitude of a commercial interest: Whether
the requester, or any person on whose behalf the requester may be
acting, has a commercial interest that would be furthered by the
requested disclosure. In assessing the magnitude of identified
commercial interests, consideration will be given to the effect that
the information disclosed would have on those commercial interests, as
well as to the extent to which FOIA disclosures serve those interests
overall. Requesters shall be given a reasonable opportunity in the
administrative process to provide information bearing upon this
consideration.
(ii) The primary interest in disclosure: Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large in comparison with the public interest in disclosure, that
disclosure is ``primarily in the commercial interest of the
requester.'' A fee waiver or reduction is warranted only where, once
the ``public interest'' standard set out in paragraph (c)(1) of this
section is satisfied, that public interest can fairly be regarded as
greater in magnitude than that of the requester's commercial interest
in disclosure. OFHEO will ordinarily presume that, where a news media
requester has satisfied the public interest standard, the public
interest will be serviced primarily by disclosure to that requester.
Disclosure to requesters who compile and market Federal Government
information for direct economic return will not be presumed to
primarily serve the ``public interest.''
(3) Where only a portion of the requested record satisfies the
requirements for a waiver or reduction of fees under this paragraph, a
waiver or reduction shall be granted only as to that portion.
(4) A request for a waiver or reduction of fees must accompany the
request for disclosure of records and should include--
(i) A clear statement of the requester's interest in the records;
(ii) The proposed use of the records and whether the requester will
derive income or other benefit from such use;
(iii) A statement of how the public will benefit from release of
the requested records; and
(iv) If specialized use of the documents is contemplated, a
statement of the requester's qualifications that are relevant to the
specialized use.
(5) A requester may appeal the denial of a request for a waiver or
reduction of fees in accordance with the provisions of Sec. 1710.16.
Sec. 1710.25 Miscellaneous fee provisions.
(a) Notice of anticipated fees in excess of $25.00. Where OFHEO
determines or estimates that the fees chargeable will amount to more
than $25.00, OFHEO shall promptly notify the requester of the actual or
estimated amount of fees or such portion thereof that can be readily
estimated, unless the requester has indicated his or her willingness to
pay fees as high as those anticipated. Where a requester has been
notified that the actual or estimated fees may exceed $25.00, the
request will be deemed not to have been received until the requester
has agreed to pay the anticipated total
[[Page 71012]]
fee. A notice to the requester pursuant to this paragraph will include
the opportunity to confer with OFHEO personnel in order to reformulate
the request to meet the requester's needs at a lower cost.
(b) Aggregating requests. A requester may not file multiple
requests at the same time, each seeking portions of a record or
records, solely in order to avoid the payment of fees. When OFHEO
reasonably believes that a requester, or a group of requesters acting
in concert, is attempting to break a request into a series of requests
for the purpose of evading the assessment of fees, OFHEO may aggregate
such 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. OFHEO will presume that multiple
requests of this type made within a 30-day period have been made in
order to evade fees. Where requests are separated by a longer period,
OFHEO shall aggregate them only where there exists a solid basis for
determining that such aggregation is warranted, e.g., where the
requests involve clearly related matters. Multiple requests regarding
unrelated matters will not be aggregated.
(c) Advance payment of fees. (1) OFHEO does not require an advance
payment before work is commenced or continued, unless--
(i) OFHEO estimates or determines that the fees are likely to
exceed $250.00. If it appears that the fees will exceed $250.00, OFHEO
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. In the case of requesters with no history of
payment, OFHEO may require an advance payment of fees in an amount up
to the full estimated charge that will be incurred; or
(ii) The requester has previously failed to pay a fee in a timely
fashion, i.e., within 30 days of the date of a billing. In such cases,
OFHEO may require the requester to pay the full amount owed plus any
applicable interest, as provided in paragraph (d) of this section, or
demonstrate that the fee owed has been paid, prior to processing any
further record request. Under these circumstances, OFHEO may require
the requester to make an advance payment of the full amount of the fees
anticipated before processing a new request or finishing processing of
a pending request from that requester.
(2) A request for an advance deposit shall include an offer to the
requester to confer with identified OFHEO personnel to attempt to
reformulate the request in a manner which will meet the needs of the
requester at a lower cost.
(3) When OFHEO requests an advance payment of fees, the
administrative time limits described in 5 U.S.C. 552(a)(6) begin only
after OFHEO has received the advance payment.
(d) Interest. OFHEO may assess interest charges on an unpaid bill
starting on the 31st day following the day on which the bill was sent.
Once a fee payment has been received by OFHEO, even if not processed,
the accrual of interest shall be stayed. Interest charges shall be
assessed at the rate prescribed in 31 U.S.C. 3717 and shall accrue from
the date of the billing.
Subpart E--Testimony and Production of Documents in Legal
Proceedings in Which OFHEO Is Not a Named Party
Sec. 1710.31 General purposes.
The purposes of this subpart are to maintain the confidentiality of
official documents and information of OFHEO, conserve the time of
employees for their official duties, maintain the impartial position of
OFHEO in litigation in which OFHEO is not a named party, and enable the
Director to determine when to authorize testimony and to produce
documents in legal proceedings in which OFHEO is not a named party.
This subpart sets forth the procedures to be followed with respect to
testimony concerning official matters and production of official
documents of OFHEO in legal proceedings in which OFHEO is not a named
party. This subpart in no way affects the rights and procedures
governing public access to official documents pursuant to the FOIA or
the Privacy Act.
Sec. 1710.32 Definitions.
For the purpose of this subpart:
(a) Court means any entity conducting a legal proceeding.
(b) Demand means any order, subpoena, or other legal process for
testimony or documents.
(c) Legal proceeding means any administrative, civil, or criminal
proceeding, including a discovery proceeding therein, before a court of
law, administrative board or commission, hearing officer, or other body
in which OFHEO is not a named party or in which OFHEO has not
instituted the administrative investigation or administrative hearing.
(d) OFHEO Counsel means the General Counsel or his or her designee,
a Department of Justice attorney, or counsel authorized by OFHEO to act
on behalf of OFHEO or an employee.
Sec. 1710.33 General policy.
It is the policy of OFHEO that in any legal proceeding in which
OFHEO is not a named party, no employee shall, in response to a demand,
produce any documents contained in the files of OFHEO, or disclose any
information relating to, or based upon, documents contained in the
files of OFHEO, or disclose or produce any documents acquired as part
of the performance of that employee's official duties or because of
that employee's official status. Under appropriate circumstances, the
Director may grant exceptions in writing to this policy when the
Director determines that the testimony of employees or disclosure of
official documents would be in the best interest of OFHEO or in the
public interest. Prior to any authorized testimony or release of
official documents, the requesting party shall obtain a protective
order from the court before which the action is pending to preserve the
confidentiality of the testimony or documents subsequently produced.
The protective order shall be in a form satisfactory to OFHEO.
Sec. 1710.34 Request for testimony or production of documents.
(a) No employee shall give testimony concerning official matters or
produce any official documents in any legal proceeding to which OFHEO
is not a named party without the prior written authorization of the
Director.
(b) If testimony by an employee concerning official matters or the
production of official documents is desired, the requesting party, or
his or her attorney, shall submit a letter to the Director setting
forth the title of the case, the forum, the requesting party's interest
in the case, a summary of the issues in the litigation, the reasons for
the request, and a showing that the desired testimony, documents, or
information are not reasonably available from any other source. If an
appearance or testimony is requested, the letter shall also set forth
the intended use of the testimony, a general summary of the scope of
the testimony requested, and a showing that no document could be
provided and used in lieu of the testimony or other appearance
requested.
(c) The General Counsel is authorized to consult with the
requesting party or his or her attorney to refine and limit the request
so that compliance is less burdensome, or obtain information necessary
to make the determination described in Sec. 1710.33 of this subpart.
Failure of the requesting party, or his or her attorney, to cooperate
in good faith with the General Counsel to enable the
[[Page 71013]]
Director to make an informed determination under this subpart may serve
as the basis for a determination not to comply with the request.
Sec. 1710.35 Scope of permissible testimony.
(a) The scope of permissible testimony by an employee is limited to
that set forth in the written authorization granted that employee by
the Director.
(b) Employees are not authorized to give opinion testimony, except
as authorized by the Director. OFHEO, as the regulatory agency charged
with the responsibility of examining, supervising, and regulating the
financial safety and soundness and capital adequacy of the Enterprises
under the Federal Housing Enterprises Financial Safety and Soundness
Act of 1992, 12 U.S.C. 4501 et seq., relies on the ability of its
employees to gather full and complete information in order to carry out
its statutory responsibilities. The use of employees to give opinion
testimony would hamper OFHEO's ability to carry out its statutory
responsibilities and would cause a serious administrative burden on
OFHEO's staff.
Sec. 1710.36 Manner in which testimony is given.
(a) Authorized testimony of employees ordinarily will be made
available only through depositions or written interrogatories.
(b) Where, in response to a request, the Director determines that
circumstances warrant authorizing testimony by an employee, the
requesting party shall cause a subpoena to be served on the employee in
accordance with applicable Federal or State rules of procedure, with a
copy of the subpoena sent by registered or certified mail to the
General Counsel.
(c) Normally, authorized depositions will be taken at OFHEO's
office, at a time arranged with the employee that is reasonably fixed
to avoid substantial interference with the performance of the
employee's duties.
(d) Upon completion of the deposition of an employee, a copy of the
transcript of the testimony shall be furnished, at the expense of the
party requesting the deposition, to the General Counsel for OFHEO's
files.
Sec. 1710.37 Manner in which documents will be produced.
(a) An employee's authorization to produce official documents is
limited to the authority granted that employee by the Director.
(b) Certified or authenticated copies of official OFHEO documents
authorized by the Director to be released under this subpart will be
provided upon request.
Sec. 1710.38 Fees.
Unless waived or reduced, the following fees shall be charged for
documents produced by OFHEO in connection with requests subject to this
subpart:
(a) Searches for documents. OFHEO will charge at the salary
rates(s), i.e., basic pay plus 16 percent, of the employee(s) making
the search. Charges for search time will be billed by 15 minute
segments.
(b) Copying of documents. The standard copying charge for documents
in paper copy is $.15 per page. When responsive information is provided
in a format other than paper copy, such as in the form of computer
tapes and disks, OFHEO will assess the direct costs of the tape, disk,
or whatever medium is used to produce the information, as well as any
related reproduction costs. Normally, only one copy will be provided.
Additional copies will be provided only upon a showing of demonstrated
need.
(c) Certification or authentication of documents. OFHEO will charge
$3.00 for each certification or authentication of documents.
(d) Computer searches. Services of personnel in the nature of a
computer search shall be charged at rates prescribed in paragraph (a)
of this section. A charge shall be made for the computer time involved,
based upon the prevailing level of costs to OFHEO and upon the
particular types of computer and associated equipment and the amount of
time that such equipment is utilized. A charge shall also be made for
any substantial amount of special supplies or documents used to
contain, present, or make available the output of computers, based upon
prevailing levels of costs to OFHEO and upon the type and amount of
such supplies or documents that are used.
(e) Other costs. When other services and documents not specifically
identified in this section are requested and provided, their actual
cost to OFHEO shall be charged.
(f) Payments of fees. A bill will be forwarded to the requesting
party upon completion of the production. Payment shall be made by check
or money order payable to the Office of Federal Housing Enterprise
Oversight.
Sec. 1710.39 Responses to demands served on employees.
(a) Advice by employee served. Any employee who is served with a
demand in a legal proceeding requiring his or her personal attendance
as a witness or requiring the production of documents or information in
any proceeding, shall immediately notify the General Counsel of such
service, of the testimony and documents described in the demand, and of
all relevant facts which may be of assistance to the General Counsel in
determining whether the individual in question should be authorized to
testify or the documents requested should be made available.
(b) When authorization to testify or to produce documents has not
been granted by the Director, OFHEO Counsel shall provide the party
issuing the demand or the court with a copy of the regulations
contained in this subpart and shall inform the party issuing the demand
or the court that the employee upon whom the demand has been made is
prohibited from testifying or producing documents without the prior
approval of the Director.
(c) Appearance by employee served. Unless OFHEO has authorized
disclosure of the information requested, any employee who has OFHEO
information that may not be disclosed and who is required to respond to
a subpoena or other legal process, shall attend at the time and place
required and respectfully decline to disclose or to give any testimony
with respect to the information, basing such refusal upon the
provisions of this subpart. If the court nevertheless orders the
disclosure of the information or the giving of testimony irrespective
of instructions from the Director not to produce the documents or
disclose the information sought, the employee upon whom the demand has
been made shall continue to decline respectfully to disclose the
information and shall report promptly the facts to OFHEO for such
action as OFHEO may deem appropriate.
(d) A determination under this subpart to comply or not to comply
with any demand shall not constitute an assertion or waiver of
privilege, lack of relevance, technical deficiencies, or any other
ground for noncompliance. OFHEO reserves the right to oppose any demand
on any legal ground independent of its determination under this
subpart.
Sec. 1710.40 Responses to demands served on nonemployees.
(a) OFHEO reports of examinations, or any documents related
thereto, are the property of OFHEO and are not to be disclosed to any
person without the Director's prior written consent.
(b) If any person who has possession of an OFHEO report of
examination, or any documents related thereto, is served with a demand
in a legal proceeding directing that person to produce such
[[Page 71014]]
OFHEO documents or to testify with respect thereto, such person shall
immediately notify the General Counsel of such service, of the
testimony and described documents in the demand, and of all relevant
facts. Such person shall also object to the production of such
documents or information contained therein on the basis that the
documents are the property of OFHEO and cannot be released without
OFHEO's consent and that their production must be sought from OFHEO
following the procedures set forth in Sec. 1710.33, paragraphs (b) and
(c) of Sec. 1710.34, and paragraph (b) of Sec. 1710.37 of this subpart.
Subpart F--Rules and Procedures for Service Upon OFHEO
Sec. 1710.51 Service of process.
(a) Except as otherwise provided by OFHEO regulations, the Federal
Rules of Civil Procedure, or order of a court with jurisdiction over
OFHEO, any legal process upon OFHEO, including a legal process served
on OFHEO demanding access to its records under the FOIA, shall be duly
issued and served upon the General Counsel and any OFHEO personnel
named in the caption of the documents.
(b) Service of process upon the General Counsel may be effected by
personally delivering a copy of the documents to the General Counsel or
by sending a copy of the documents to the General Counsel by registered
or certified mail, postage prepaid, to the Office of Federal Housing
Enterprise Oversight, 1700 G Street, NW., Fourth Floor, Washington, DC
20552.
Dated: December 17, 1998.
Mark Kinsey,
Acting Director, Office of Federal Housing Enterprise Oversight.
[FR Doc. 98-33943 Filed 12-22-98; 8:45 am]
BILLING CODE 4220-01-U
