[Federal Register Volume 63, Number 62 (Wednesday, April 1, 1998)]
[Proposed Rules]
[Pages 15800-15802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8472]
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UNITED STATES INFORMATION AGENCY
22 CFR Part 503
Electronic Freedom of Information Act; Implementation
AGENCY: United States Information Agency.
ACTION: Proposed rule.
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SUMMARY: This rule establishes requirements and conditions necessary
for the implementation of the new Electronic Freedom of Information Act
(FOIA) Amendments of 1996, 5 U.S.C. 552, as amended by Pub. L. 104-231.
This addition to the present regulation will establish criteria that
will enable FOIA requesters to better understand how documents of the
Agency are maintained and handled electronically.
DATES: Comments must be submitted on or before May 1, 1998.
ADDRESSES: Public comments should be mailed to the FOIA/PA Unit, Office
of the General Counsel, United States Information Agency (USIA), Room
M-20, 301 4th Street, SW, Washington, DC 20547.
FOR FURTHER INFORMATION CONTACT:
FOIA/PA Unit on (202) 619-5499, or write to the Unit, Office of the
General Counsel, United States Information Agency (USIA), Room M-29,
301 4th Street, SW, Washington, DC 20547.
SUPPLEMENTARY INFORMATION: This amendment to the Freedom of Information
Act, 5 U.S.C. 552, establishes criteria which the Agency will follow
for maintaining and handling electronic records. Regulatory provisions
include application of requirements to electronic format information
and to such information made available electronically honoring form or
format requested. Additionally, this amendment includes standards for
judicial review, timely responses, including Agency consideration of
priority requests, computer redactions, and new reporting information
to Congress. This amendment is required by the Electronic Records Act
of 1996. It has been determined that this addition is not a significant
regulatory action and it will not:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof;
(4) Have a significant economic impact on a substantial number of
small entities; or
(5) Impose any reporting or record keeping requirements under the
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
Comments are encouraged and will be taken under advisement.
List of Subjects in 22 CFR Part 503
Freedom on Information.
Accordingly, 22 CFR Part 503 is amended as set forth below.
PART 503--FREEDOM OF INFORMATION ACT REGULATION
1. The authority citation for part 503 is revised to read as
follows:
Authority: 5 U.S.C. 552 Reform Act of 1986 as amended by Pub. L.
99-570; sec. 1801-1804; 13 U.S.C. 8; E.O. 10477, as amended; 47 FR
9320, Apr. 2, 1982, E.O. 12356, 5 U.S.C. 552 (1988 & Supp. III 1991)
as amended by Freedom of Information Reform Act of 1986, Pub. L. No.
99-570, title I, Sec. 1801-1804, 100 Stat. 3207, 3207-48-50 (1986)
(codified at 5 U.S.C. 552 (1988)); 22 U.S.C. 2658 (1988); 5 U.S.C.
301 (1988); 13 U.S.C. 8 (1988); Executive Order No. 10477, 3 CFR 958
(1949-1953) as amended by Executive Order No. 10822, 3 CFR 355
(1959-1963), Executive Order No. 12292, 3
[[Page 15801]]
CFR 134 (1982); reprinted in 22 U.S.C. 1472 (1988); Executive Order
No. 12356, 3 CFR 166 (1983), reprinted in 50 U.S.C. 401 (1988);
Executive Order No. 12598; Electronic Records Act of 1996, Pub. L.
104-231, 110 Stat. 3048.
2. By adding Sec. 503.9 to read as follows:
Sec. 503.9 Electronic Records Act of 1996.
(a) Introduction. This part applies to all records of the United
States Information Agency, including all of its foreign posts. Congress
enacted the FOIA to require Federal agencies to make records available
to the public through public inspection and at the request of any
person for any public or private use. The increase in the Government's
use of computers enhances the public's access to Government
information. This new section addresses and explains how records will
be reviewed and released when the records are maintained in electronic
format. Documentation not previously subject to the FOIA when
maintained in a non-electronic format is not made subject to FOIA by
this law.
(b) Definitions.
Compelling need. Obtaining records on an expedited basis because of
an imminent threat to the life or physical safety of an individual, or
urgently needed by an individual primarily engaged in disseminating
information to the public concerning actual or alleged Federal
Government activities.
Discretionary disclosure. Records or information normally exempt
from disclosure will be released whenever it is possible to do so
without reasonably foreseeable harm to any interest protected by an
FOIA exemption.
Electronic reading room. The room provided which makes electronic
information available for review by the public.
Electronic records. Records and information (including e-mail)
which are created, stored, and retrievable by electronic means.
Expedited processing. FOIA requesters can seek faster processing of
their requests under specific criteria.
Form or format requests. Providing the record in any form or format
asked for by the requester if the record is readily reproducible in
that form or format.
Multitrack processing. Processing requests along different tracks
depending upon the date of receipt, amount of work and time involved in
processing the requests, and whether the request qualifies for
expedited processing.
Reading room. A place to review records previously released that
the Agency considers likely to be the subject of subsequent FOIA
requests.
Reasonable efforts. Standard governing the search for and
production of information in electronic form.
Record. A ``record'' under the FOIA includes electronically stored
information. All Government records are subject to the Act, regardless
of the form in which they are stored.
Redaction. Deleting part of a record to prevent disclosure of
material covered by an exemption.
Storage media. A record in electronic format can be requested just
like a record on paper, or in any other format, within enumerated
exceptions, and can potentially be fully disclosed under the law. The
format in which data is maintained is not relevant under the FOIA.
(c) Electronic format of records.
(1) Materials such as agency opinions and policy statements
(available for public inspection and copying) are also available by
computer. To set up an appointment to view such records in hard copy or
via computer, please contact the FOIA/PA Unit on (202) 619-5499.
(2) The Agency will make available for public inspection and
copying, both by computer and in hard copy, those records that have
been previously released in response to FOIA requests, when the agency
determines the records have been or are likely to be the subject of
future requests.
(3) The Agency provides both electronically and in hard copy a
``Guide'' on how to make an FOIA request, and an Index of all Agency
records that may be requested under the FOIA.
(4) The Agency may delete identifying details when it publishes or
makes available the index and copies of previously-released records to
prevent a clearly unwarranted invasion of personal privacy.
(i) The Agency will indicate the extent of any deletions made from
the previously-released records by marking the place on the record
where the deletion was made, if feasible.
(ii) The Agency will not reveal information about deletions if such
disclosure would harm an interest protected by an exemption.
(d) Honoring form or format requests. The Agency will aid
requesters by providing records and information in the form requested,
including electronic format, if we can readily reproduce them in that
form or format. However, if we cannot accommodate the requester, we
will provide responsive, nonexempt information in a reasonably
accessible form.
(1) The Agency will make a reasonable effort to search for records
kept in an electronic format. However, if the effort would
significantly interfere with the operations of the Agency or the
Agency's use of its computers, we will consider the effort to be
unreasonable.
(2) The Agency need not create documents that do not exist, but
computer records found in a database rather than in a file cabinet may
require the application of codes or some form of programming to
retrieve the information. This application of codes or programming of
records will not amount to the creation of records.
(3) Except in unusual cases, the cost of computer time will not be
a factor in calculating the two free hours of search time. In those
unusual cases, where the cost of conducting a computerized search
significantly detracts from the Agency's ordinary operations, no more
than the dollar equivalent of two hours of manual search time shall be
allowed. For searches conducted beyond the first two hours, the Agency
shall only charge the direct costs of conducting such searches.
(e) Technical feasibility of redacting non-releasable material. The
Agency will make every effort to indicate the place on the record where
a redaction of non-releasable material is made, and an FOIA citation
noting the applicable exemption for the deletion will also be placed at
the site. If unable to do so, we will notify you of that fact.
(f) Ensuring timely response to requests. The Agency will make
every attempt to respond to FOIA requests within the prescribed 20
working-day time limit. However, processing some requests may require
additional time in order to properly screen material against the
inadvertent disclosure of material covered by the exemptions.
(1) Multitrack first-in first-out processing. (i) Because the
Agency has been able to process its requests without a backlog of
cases, USIA will not institute a multitrack system. Those cases that
may be handled easily, because they require only a few documents or a
simple answer, will be handled immediately by each specialist.
(ii) If you wish to qualify for processing under a faster track,
you may limit the scope of your request so that we may respond more
quickly.
(2) Unusual Circumstances. (i) The Agency may extend for a maximum
of ten working days the statutory time limit for responding to an FOIA
request by giving notice in writing as to the reason for such an
extension. The reasons for such an extension may include: the need to
search for and collect requested records from multiple
[[Page 15802]]
offices; the volume of records requested; and, the need for
consultation with other components within the Agency.
(ii) If an extra ten days still does not provide sufficient time
for the Agency to deal with your request, we will inform you that the
request cannot be processed within the statutory time limit and provide
you with the opportunity to limit the scope of your request and/or
arrange with us a negotiated deadline for processing your request.
(iii) If you refuse to reasonably limit the scope of your request
or refuse to agree upon a time frame, the Agency will process your case
as it would have, had no modification been sought. We will make a
diligent, good-faith effort to complete our review within the statutory
time frame.
(3) Aggregation of requests. The Agency will aggregate requests
that clearly involve related material that should be considered as a
single request.
(i) If you make multiple or related requests for similar material
for the purpose of avoiding costs, the Agency will notify you that we
are aggregating your requests, and the reasons why.
(ii) Multiple or related requests may also be aggregated, such as
those involving requesters seeking similar information, for the
purposes of negotiating the scope of the requests and schedule, but you
will be notified in advance if we intend to do so.
(g) Time periods for Agency consideration of requests.--(1)
Expedited processing. The Agency will authorize expedited access to
requesters who show a compelling need for a fast response, but the
burden is on the requester to prove that expedition is appropriate. The
Agency will determine within ten days whether or not to grant a request
for expedited access and will notify the requester of its decision.
(2) Compelling need for access. Failure to obtain the records
within an expedited deadline must pose an imminent threat to an
individual's life or physical safety; or the request must be made by
someone primarily engaged in disseminating information, and who has an
urgency to inform the public about actual or alleged Federal Government
activity.
(3) How to request expedited access. We will be required to make
factual and subjective judgments about the circumstances cited by
requesters to qualify them for expedited processing. To request
expedited access, your request must be in writing and it must explain
in detail your basis for seeking expedited access. The categories for
compelling need are intended to be narrowly applied:
(i) A threat to an individual's life or physical safety. A threat
to an individual's life or physical safety should be imminent to
qualify for expedited access to the records. You must include the
reason why a delay in obtaining the information could reasonably be
foreseen to cause significant adverse consequences to a recognized
interest.
(ii) Urgency to inform. The information requested should pertain to
a matter of a current exigency to the American public, where delay in
response would compromise a significant recognized interest. The person
requesting expedited access under an ``urgency to inform,'' must be
primarily engaged in the dissemination of information. This does not
include individuals who are engaged only incidentally in the
dissemination of information. ``Primarily engaged'' requires that
information dissemination be the main activity of the requester. A
requester only incidentally engaged in information dissemination,
besides other activities, would not satisfy this requirement. The
public's right to know, although a significant and important value,
would not by itself be sufficient to satisfy this standard.
(4) Expansion of Agency response time. The new law provides that
agencies now have 20 working-days to respond to all FOIA requests.
However, when possible, we will continue to respond to requests within
the former 10 working-day time frame.
(5) Estimation of matter denied. the Agency will try to estimate
the volume of any denied material and provide the estimate to the
requester, unless doing so would harm an interest protected by an
exemption.
(h) Computer redaction. The Agency will identify the location of
deletions in the released portion of the records, and where
technologically feasible, will show the deletion at the place on the
record where the deletion was made, unless including that indication
would harm an interest protected by an exemption.
(i) Report to Congress. In addition to the information already
provided to Congress in the Agency's Annual Report on FOIA Activities,
the Agency will include the following: the number of Privacy Act (PA)
requests handled; the number of backlogged requests; the number of days
taken to process requests; the number of staff devoted to processing
FOIA requests; whether a claimed (b)(3) statute has been upheld in
court; and the costs of litigation. The Agency's annual report is
available both in hard copy and by computer telecommunications. In the
past, annual reports were required based on a calendar year and were
provided to Congress on or before March 1 of the following year.
However, the new law has changed the annual reporting requirements now
to be related to the Agency's fiscal year. Thus, the Annual Report to
Congress on FOIA activities for 1997 only encompassed the first nine
months (January through September), and was reported by March 1, 1998.
The FY 98 report will begin in October 1997 and conclude at the end of
September 1998. This report will be presented to the Department of
Justice instead of Congress, by February 1, 1999, and Justice will
report all Federal agency FOIA activity through electronic means.
(j) Reference materials and guides. The Agency has available both
in hard copy and by computer a guide for requesting records under the
FOIA and an index and description of all major information systems of
the Agency. The guide is a simple explanation of what the FOIA is
intended to do, and how you can use it to access USIA records. The
Index explains the types of records that may be requested from the
Agency through FOIA requests and why some records cannot, by law, be
made available by USIA.
Dated: March 26, 1998.
Les Jin,
General Counsel.
[FR Doc. 98-8472 Filed 3-31-98; 8:45 am]
BILLING CODE 8230-01-M
