[Federal Register Volume 60, Number 91 (Thursday, May 11, 1995)]
[Proposed Rules]
[Pages 25162-25174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11546]
=======================================================================
-----------------------------------------------------------------------
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: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Federal Housing Enterprise Oversight (OFHEO) is
issuing a proposed rule to set forth the basic policies of OFHEO
regarding information it maintains and the procedures for obtaining
access to such information. The rule contains regulations of OFHEO
implementing the Freedom of Information Act (FOIA) and establishes a
schedule of fees which will be charged for the processing of document
requests under the FOIA. In addition, the proposed rule sets forth
procedures to be followed with respect to testimony and the production
of documents in legal proceedings in which OFHEO is not a named party
as well as procedures for service of process upon OFHEO in any legal
proceeding.
DATES: Written comments on the proposed rule must be received by July
10, 1995.
ADDRESSES: All comments concerning the proposed rule should be
addressed to Anne E. Dewey, General Counsel, Office of Federal Housing
Enterprise Oversight, 1700 G Street NW., Fourth Floor, Washington, DC
20552. Copies of all communications received will be available for
public inspection and copying at the same location.
FOR FURTHER INFORMATION CONTACT: Christine C. Dion, Associate General
Counsel, 1700 G Street NW., Fourth Floor, Washington, DC 20552 (202/
414-3800) (not a toll-free number).
SUPPLEMENTARY INFORMATION: 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, 12
U.S.C. 4501 et seq., established OFHEO as an independent office within
the Department of Housing and Urban Development. The primary function
of OFHEO is to ensure the financial safety and soundness and the
capital adequacy of the nation's two largest housing finance
institutions--the Federal National Mortgage Association (Fannie Mae)
and the Federal Home Loan Mortgage Corporation (Freddie Mac)
(collectively, the Enterprises). OFHEO proposes to adopt this rule to
explain matters relating to the availability of information generated
and maintained by OFHEO and to set forth procedures for accessing such
information. The proposed rule, among other things, implements the
Freedom of Information Act. The rule establishes procedures by which
the public may inspect OFHEO records, request and obtain copies of
materials, and appeal denials of such requests. This rule includes a
schedule of fees and procedures for determining when fees should be
waived or reduced. The fee schedule conforms to guidelines published in
the Federal Register by the Office of Management and Budget on March
27, 1987 (52 FR 10012). The proposed rule also implements Executive
Order 12600 by providing predisclosure notification procedures for
confidential commercial or financial information.
In addition, the proposed rule 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. The proposed rule establishes the
procedures for effecting service upon OFHEO in any legal process,
including service of process by litigants seeking access to OFHEO
records.
SECTION-BY-SECTION ANALYSIS
I. Information and Records Generally
Subpart A of the proposed rule contains general provisions relating
to disclosure of information and records in the possession of OFHEO.
Section 1710.1 sets forth procedures for disclosure of such materials
by OFHEO employees. Section 1710.2 provides that the disclosure
requirements of the FOIA and the proposed rule apply to all OFHEO
records. It also provides that if another statute sets forth procedures
for the disclosure of specific types of records, OFHEO will process a
request for those records in accordance with the procedures that apply
to those specific records. However, in cases where the record is not
required to be released under the specific procedures set forth in
another statute, OFHEO will consider the request under the FOIA. In
addition, section 1710.2 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 1710.3 of subpart A 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 this section or with
the prior written consent of the Director of OFHEO. The section further
provides that any unauthorized use or disclosure of such reports may be
subject to penalties under federal law. Section 1710.3 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
governmental [[Page 25163]] agencies responsible for investigating and
enforcing applicable laws.
II. Availability of OFHEO Records
Subpart B implements the FOIA, 5 U.S.C. 552, and describes (1) The
types of OFHEO records available to the public upon request, (2) the
kinds of information exempt from disclosure, (3) the indexing
procedures for OFHEO records that are available to the public, (4) the
format for requesting records under the FOIA, (5) the procedures for
responding to FOIA requests, (6) the format of the responses, (7) the
procedures for appealing denials of requests, and (8) the time limits
to which OFHEO will adhere in processing FOIA requests and appeals.
Subpart B also contains OFHEO's procedures for disclosure of 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 1710.41 of the
proposed rule. Section 1710.11 also describes the classes of OFHEO
records that are exempt from disclosure. These exemptions follow the
exemptions provided in the FOIA. These exemptions permit OFHEO's
Freedom of Information Officer to withhold a requested record in
certain circumstances. In deciding whether to withhold material,
consideration will be given as to whether another statute, Executive
order, or regulation prohibits release or, if not, whether it would be
in the public interest to withhold it.
Section 1710.12 sets forth the indexing requirements as to any
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 OFHEO's Freedom of Information Officer. Each request
should contain sufficient detail to allow the Freedom of Information
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. OFHEO's Freedom of Information Officer
has been designated responsibility in proposed section 1710.14 to grant
or deny such requests and to determine fees. Paragraph (b) of the
section also provides that OFHEO will ordinarily refer FOIA 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. As specified in paragraph (c) of section 1710.14, in cases
where a requester asks for a record in a format that does not currently
exist, OFHEO will provide whatever records reasonably respond to the
request, but will not create a new record in order to respond.
Moreover, under paragraph (d) of section 1710.14, if a record cannot be
located from the information supplied, the Freedom of Information
Officer will so inform the requester.
Proposed section 1710.15 requires the Freedom of Information
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 Freedom of Information Officer's
determination to deny a request in whole or in part must be made in
writing and signed by OFHEO's Freedom of Information Officer.
Consistent with section 1710.15(b) as proposed, 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
proposed rule. Denials may be appealed to OFHEO's Freedom of
Information 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 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 proposed rule describes the time limits to
which OFHEO will adhere in responding to initial requests and appeals
of denials of requests. The time limits applicable to either may be
extended up to a total of ten 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.
Proposed section 1710.18 contains OFHEO's procedures for disclosure
of business information provided to OFHEO. Generally, the section would
require 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 provided by a submitter
for the purpose of objecting to disclosure may itself be subject to
disclosure under the FOIA.
III. Fees for Provision of Information
Subpart C of the proposed 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 two 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 proposal, 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 [[Page 25164]] 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
the Department of Justice 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 proposed
section 1710.24.
Section 1710.25 as proposed 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.
IV. Testimony and Production of Documents in Legal Proceedings in Which
OFHEO Is Not a Named Party
Subpart D 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 D 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 OFHEO 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.
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., OFHEO employees, including former
OFHEO 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, 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 OFHEO employee is limited to that set forth in the
written authorization granted that employee by the Director. The
section also prohibits OFHEO employees from giving opinion testimony in
any legal proceeding to which OFHEO is not a party. OFHEO believes that
the use of OFHEO employees to give opinion testimony would hamper
OFHEO's ability to carry out its statutory responsibilities and would
impose an administrative burden on OFHEO's staff.
Section 1710.36 describes the manner in which authorized testimony
of OFHEO employees will be made available. The section provides that
the testimony will be available only through depositions or written
interrogatories. A party requesting authorized testimony must serve a
subpoena on the OFHEO employee in accordance with applicable federal or
state rules of procedure, with a copy of the subpoena sent by
registered mail to OFHEO's 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
OFHEO's 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 D will be provided upon request.
Section 1710.38 describes the fees charged for documents produced
by OFHEO in connection with requests under subpart D. 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 OFHEO employee served with a
demand in a legal proceeding, which requires his or her attendance as a
witness concerning OFHEO or the production of official documents or
information, must notify OFHEO's General Counsel of such service. The
notification would assist the General Counsel in determining 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, OFHEO's General
Counsel shall provide the party issuing the demand or the court with a
copy of the regulations contained in subpart D and also shall advise
the party or the court that the OFHEO employee upon whom the demand has
been made is prohibited from testifying or producing the documents
without the Director's prior approval.
Proposed section 1710.39 also provides that any OFHEO 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 D of the proposed rule. If a court orders
disclosure contrary to the Director's instructions, the OFHEO employee
shall continue to decline to disclose the information and shall advise
OFHEO of the order for such action as OFHEO may deem appropriate.
Notably, a determination by OFHEO to comply or not to comply with any
demand shall not constitute any ground for noncompliance and OFHEO may
oppose any demand on any legal basis independent of its determination
under subpart D of the proposed rule.
Section 1710.40 pertains to persons who are not employees or former
employees of OFHEO. Non-OFHEO persons may not disclose reports
generated by OFHEO, or any related documents, to any person without the
Director's prior written consent. Moreover, any non-OFHEO 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
OFHEO's 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 proposed sections
1710.34(b) and (c) [[Page 25165]] and 1710.37(b) of subpart D of the
proposed rule.
Section 1710.41 of the proposed rule enumerates documents that
OFHEO shall make available to the public. The records include any final
orders or agreements made in adjudication of cases and transcripts of
public hearings on the record with respect to any action of the
Director or notice of charges issued by the Director. The section does
not authorize the withholding of any information from, or prohibit the
disclosure of any information to, Congress.
V. Rules and Procedures for Service Upon OFHEO
Section 1710.51 provides that, with limited exceptions, any legal
process on OFHEO must be issued and served upon OFHEO's General Counsel
and 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 12606, The Family
The General Counsel, as the designated Official under Executive
Order 12606, The Family, has determined that this proposed rule does
not have potential for significant impact on family formation,
maintenance, and general well-being, and thus, is not subject to review
under Executive Order 12606.
Executive Order 12612, Federalism
The General Counsel, as Designated Official under section 6(a) of
Executive Order 12612, Federalism, has determined that the policies
contained in this proposed rule will not have substantial direct
effects on states or their political subdivisions, or the relationship
between the federal government and the states, or on the distribution
of power and responsibilities among the various levels of government.
As a result, the proposed rule does not warrant the preparation of a
Federalism Assessment in accordance with Executive Order 12612.
Executive Order 12866, Regulatory Planning and Review
In promulgating this proposed rule, the Office of Federal Housing
Enterprise Oversight has adhered to the regulatory philosophy and the
applicable principles of regulations set forth in section 1 of
Executive Order 12866, Regulatory Planning and Review. This proposed
rule has been reviewed by the Office of Management and Budget under
that Executive Order.
Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 601 et seq., the General Counsel has certified that this
proposed rule will not have significant economic impact on a
substantial number of small entities.
Paperwork Reduction Act
This proposed rule contains no information collection requirements
that require the approval of the Office of Management and Budget
pursuant to the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.
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, the Office of
Federal Housing Enterprise Oversight proposes to amend Chapter XVII of
Title 12 of the Code of Federal Regulations by adding Part 1710 to read
as follows:
PART 1710--RELEASING INFORMATION
Subpart A--Information and Records Generally
Sec.
1710.1 General rule.
1710.2 Applicability.
1710.3 Office of Federal Housing Enterprise Oversight examination
reports.
Subpart B--Availability of Records of the Office of Federal Housing
Enterprise Oversight
1710.11 Official records of the Office of Federal Housing
Enterprise Oversight.
1710.12 Index identifying information for the public.
1710.13 Request for records.
1710.14 Response to requests.
1710.15 Form and content of responses.
1710.16 Appeal of denials.
1710.17 Time limits.
1710.18 Business information.
Subpart C--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 D--Testimony and Production of Documents in Legal Proceedings
in Which the Office of Federal Housing Enterprise Oversight 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 OFHEO employees.
1710.40 Responses to demands served on non-OFHEO employees or
entities.
1710.41 Orders and agreements available to the public.
Subpart E--Rules and Procedures for Service Upon the Office of Federal
Housing Enterprise Oversight
1710.51 Service of Process.
Authority: 5 U.S.C. 552; 12 U.S.C. 4513, 4526, 4639; E.O. 12600,
3 CFR, 1987 Comp., p. 235.
Subpart A--Information and Records Generally
Sec. 1710.1 General rule.
Except as necessary in performing official duties or as authorized
by Secs. 1710.11 through 1710.39 of this part, no employee of the
Office of Federal Housing Enterprise Oversight (OFHEO) shall in any
manner disclose or permit disclosure of any information in the
possession of OFHEO that is confidential or otherwise of a non-public
nature, including information regarding OFHEO or the Federal National
Mortgage Association (Fannie Mae) or the Federal Home Loan Mortgage
Corporation (Freddie Mac) (collectively, the Enterprises).
Sec. 1710.2 Applicability.
(a) General. The Freedom of Information Act (FOIA) and the
regulations in this part apply to all OFHEO records. However, if
another law sets forth procedures for the disclosure of specific types
of records, OFHEO will process a request for those records in
accordance with the procedures that apply to those specific records. If
there is any record 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 [[Page 25166]] 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 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. 1710.3 Office of Federal Housing Enterprise Oversight 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 of OFHEO. 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 loaned 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 of OFHEO may make available
reports of examination for the confidential use of federal agencies
responsible for investigating or enforcing applicable federal laws.
Subpart B--Availability of Records of the Office of Federal Housing
Enterprise Oversight
Sec. 1710.11 Official records of the Office of Federal Housing
Enterprise Oversight.
(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. 1710.41 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, 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 C of this part.
(d) Records not available. Except as otherwise provided in this
part, or as may be specifically authorized by the Director of OFHEO,
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 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; or
(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 [[Page 25167]] 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 document
described in paragraph (b) of this section. In each case of such
deletion, the justification therefore 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 of OFHEO 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: Freedom of
Information 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 ten-day time period set forth in Sec. 1710.17(a) of
this subpart until it is received, or would have been received with the
exercise of due diligence by OFHEO personnel, by the Freedom of
Information Officer. Records requested in conformance with this subpart
and which are not exempt records may be received in person or by mail
as specified in the request. Records to be received 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 Freedom of Information 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
Freedom of Information 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 Freedom of Information 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 normally
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 not ordinarily
reformat the information for the purpose of responding to the request.
OFHEO's Freedom of Information Officer will advise the requester that
OFHEO does not have the record in the format sought, but will provide
records in existing formats that would reasonably respond to the
request. Additionally, OFHEO will not develop a new record of
information to satisfy a request.
(d) Record cannot be located. If a requested record cannot be
located from the information supplied, the Freedom of Information
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 Freedom of
Information Officer has made a determination to grant 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 C of this
part.
(b) Form of notice denying a request. When the Freedom of
Information 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 Freedom of Information Officer and will include:
(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 Freedom of
Information 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: Freedom of Information
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 [[Page 25168]] 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 OFHEO personnel, by the Freedom of Information 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 Freedom of Information Officer will determine whether to comply
with the request and will notify the requester in writing of his or her
determination within ten 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 ten 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 Business Information.
(a) In general. Business information provided to OFHEO by a
business submitter shall not be disclosed pursuant to a 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 Freedom of
Information Act, 5 U.S.C. 552(b)(4).
(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.
(3) Freedom of Information Officer means the Freedom of Information
Officer of OFHEO.
(4) Freedom of Information Appeals Officer means the Freedom of
Information Appeals Officer of OFHEO.
(5) Requester means the person or entity making the FOIA request.
(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 ten 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 Freedom of Information Officer
shall, to the extent permitted by law, provide a submitter with prompt
written notice of a 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. The requester
also shall be notified that notice and an opportunity to object are
being provided to the submitter.
(2) Whenever the Freedom of Information Officer provides a business
submitter with the notice set forth in paragraph (e)(1) of this
section, the Freedom of Information 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 commercially or financially sensitive information deemed
protected from disclosure under 5 U.S.C. 552(b)(4); or
(2) OFHEO has reason to believe that disclosure of the information
may result in 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 a reasonable period
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 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 Freedom of Information
Officer shall consider carefully a business submitter's objections and
specific grounds for nondisclosure prior to determining whether to
disclose business information. Whenever the Freedom of Information
Officer decides to disclose business information over the objection of
a business submitter, the Freedom of Information Officer shall forward
to the business submitter a written notice at least ten days (excluding
Saturdays, [[Page 25169]] 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 shall be forwarded to the
submitter a reasonable number of days prior to the specified disclosure
date and the requester shall be notified likewise.
(h) Notice of FOIA lawsuit. Whenever a requester brings suit
seeking to compel disclosure of business information, the Freedom of
Information 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 Freedom of Information 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 Freedom of Information Officer will provide the
submitter with written notice of any final administrative decision to
disclose business information within a reasonable number of days prior
to a specified disclosure date.
Subpart C--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
documents 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 documents 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 documents
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) Non-commercial 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 mean the process of making a copy of
a document 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 documents located in
response to a request for information to determine whether any portion
of any document located is permitted to be withheld. It also includes
processing any documents for disclosure, e.g., doing all that is
necessary to prepare the documents 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 documents 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 documents. 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.
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 documents 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.
[[Page 25170]]
(b) Types of charges. The types of charges that may be assessed in
connection with the production of records in response to a 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 document(s) shall be
charged.
(3) Review. Only requesters who are seeking documents 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 two hours of free search time nor 100
free pages of reproduction of documents. 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 non-commercial scientific institutions in
an amount which equals the cost of reproducing the documents 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 non-commercial 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 documents 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 two 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 two
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 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 two 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 Sec. 1710.23(b), OFHEO will provide,
without charge, the first 100 pages of duplication and the first two
[[Page 25171]] 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 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 Freedom of Information 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 documents;
(ii) The proposed use of the documents 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 documents; 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 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 document or
documents, 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 [[Page 25172]] 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. OFHEO does not require an advance
payment before work is commenced or continued, unless:
(1) 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
(2) 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.
(3) 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.
(4) 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 D--Testimony and Production of Documents in Legal
Proceedings in Which the Office of Federal Housing Enterprise
Oversight 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 OFHEO
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 Freedom
of Information Act 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) Director means the Director of OFHEO or his or her designee.
(d) 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 kind of 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.
(e) 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.
(f) General Counsel means the General Counsel of OFHEO or his or
her designee.
(g) 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.
(h) Official means concerning the authorized business of OFHEO.
(i) 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.
(j) OFHEO means the Office of Federal Housing Enterprise Oversight.
(k) 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
OFHEO 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 of OFHEO shall, in response to
a demand, produce any material contained in the files of OFHEO, or
disclose any information relating to, or based upon, material contained
in the files of OFHEO, or disclose or produce any material 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 OFHEO 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 OFHEO 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 OFHEO 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 [[Page 25173]] 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 part.
Failure of the requesting party, or his or her attorney, to cooperate
in good faith with the General Counsel to enable the 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 OFHEO employee is
limited to that set forth in the written authorization granted that
employee by the Director.
(b) OFHEO employees are not authorized to give opinion testimony.
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 OFHEO 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 OFHEO employees 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 OFHEO 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, and 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 OFHEO 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 OFHEO 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
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.
(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 materials 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 materials that are used.
(e) Other costs. When other services and materials 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 Response to demands served on OFHEO employees.
(a) Advice by person served. Any OFHEO 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 OFHEO's 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 material 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 person served. Unless OFHEO has authorized
disclosure of the information requested, any OFHEO 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 OFHEO 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
[[Page 25174]] 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 non-OFHEO employees or
entities for OFHEO documents.
(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 OFHEO
documents or to testify with respect thereto, such person shall
immediately notify OFHEO's 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, Sec. 1710.34 (b)
and (c), and Sec. 1710.37(b) of this part.
Sec. 1710.41 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 that has become final
in accordance with 12 U.S.C. 4633 and 4634; and
(3) Any modification to or termination of any final order made
public pursuant to this section.
(4) Transcripts of any public enforcement hearing on the record
with respect to any action of the Director or notice of charges issued
by the Director shall be available to the public.
(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 six 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. 4631-4641.
(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 E--Rules and Procedures for Service Upon the Office of
Federal Housing Enterprise Oversight
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 to OFHEO 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: May 5, 1995.
Aida Alvarez,
Director, Office of Federal Housing Enterprise Oversight.
[FR Doc. 95-11546 Filed 5-10-95; 8:45 am]
BILLING CODE 4220-01-P
