[Federal Register Volume 64, Number 100 (Tuesday, May 25, 1999)]
[Rules and Regulations]
[Pages 28089-28091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13145]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 64, No. 100 / Tuesday, May 25, 1999 / Rules
and Regulations
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OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2604
RIN 3209-AA22
Amendments to the Office of Government Ethics Freedom of
Information Act Regulation
AGENCY: Office of Government Ethics (OGE).
ACTION: Final rule amendments.
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SUMMARY: The Office of Government Ethics is amending its rules under
the Freedom of Information Act (FOIA) primarily to effectuate various
provisions under the 1996 Electronic FOIA Amendments. The revisions
include the new response time for FOIA requests, procedures for
requesting expedited processing, additional categories of documents
available in OGE's FOIA reading room facility, the availability of
certain public information on OGE's Web site, and express inclusion of
electronic records and automated searches along with paper records and
manual searches. In addition, OGE's amendments increase the general
FOIA search fees somewhat. Finally, OGE is making some other changes,
including updating revisions and corrections. This rulemaking only
deals with such matters at OGE; it is not an executive branchwide
regulation.
EFFECTIVE DATE: June 24, 1999.
FOR FURTHER INFORMATION CONTACT: William E. Gressman, Associate General
Counsel, Office of Government Ethics, Suite 500, 1201 New York Avenue,
NW., Washington, DC 20005-3917; telephone: 202-208-8000, ext. 1110;
TDD: 202-208-8025; FAX: 202-208-8037.
SUPPLEMENTARY INFORMATION: In this rulemaking, the Office of Government
Ethics is amending its regulation at 5 CFR part 2604 under the Freedom
of Information Act (FOIA), 5 U.S.C. 552. On December 3, 1998, OGE
published proposed rule amendments to its FOIA regulation at 63 FR
66769-66772. Comments from the public and the agencies were requested,
to be submitted by February 1, 1999. No comments were received on the
proposed amendments, and OGE is therefore adopting them as final with
just a few clarifying changes noted below. A summary highlighting the
most significant amendments follows. The amendments were explained in
somewhat greater detail in the preamble to the proposed rule.
The primary focus of these amendments is to codify in OGE's FOIA
regulation various requirements under the 1996 Electronic FOIA
Amendments, Public Law No. 104-231. Thus, in a newly redesignated
paragraph (a)(1) of Sec. 2604.305, OGE would codify in its FOIA
regulation the new statutorily prescribed general 20 working day
response time for responding to FOIA requests. In addition, OGE is
adding a new paragraph (a)(2) to Sec. 2604.305 on response to requests
for expedited processing within 10 calendar days where the requester
shows and certifies ``compelling need'' as defined in the amended law
and new paragraph (e) of Sec. 2604.301 of OGE's FOIA regulation.
The Electronic FOIA Amendments require that deleted portions of
copies of documents released in part be identified and that a volume
estimation of materials withheld in whole be given, unless exempt
information would thereby be revealed. The Office of Government Ethics
is codifying this requirement in new paragraph (b)(3) of Sec. 2604.303
of its FOIA regulation. In a separate revision to Sec. 2604.303,
paragraph (a) is being revised to provide expressly that OGE can, in
addition to referral of a request (or portion thereof), alternatively
consult with another Government agency in cases where responsive
records originated at the other agency and then respond to a requester
with respect thereto.
The general requirement to honor a form or format request, unless
the record requested is not readily reproducible in the requested form
or format, is set forth in revised paragraph (c) of Sec. 2604.302. The
definitions of the terms ``records'' and ``search'' in Sec. 2604.103
now more explicitly include electronic records and automated searches
(along with paper records and manual searches).
The Office of Government Ethics is also clarifying in the revised
headings and text of subpart B, Sec. 2604.201 and now, in this final
rule, Sec. 2604.202 as well that, as a small agency with a limited FOIA
practice, it has a FOIA public reading room facility, rather that a
``room'' per se. Reading room facility materials created by OGE since
October 1, 1996 (and in certain cases before then, if feasible), are
also available via computer telecommunications on OGE's Internet World
Wide Web site at the following Uniform Resource Locator address: http:/
/www.usoge.gov. The Web site is referenced in new paragraph (a)(2) of
Sec. 2604.201 of the OGE FOIA regulation. The Electronic FOIA
Amendments also added a new category of such publicly available
materials, copies of records created by OGE which are requested and
released to individual FOIA requesters which OGE determines have become
or are likely to become the subject of multiple requests, together with
a general index thereof. The Office of Government Ethics is adding
reference to such documents at new paragraph (b)(4) of Sec. 2604.201 of
its FOIA regulation. Further, OGE is adding a new paragraph (d) to
Sec. 2604.201 regarding permissible deletions from records covered in
this section in order to prevent a clearly unwarranted invasion of
personal privacy.
In Sec. 2604.501(b)(1)(i), OGE is raising the hourly rate for
manual searches for responsive records by a homogeneous class of OGE
personnel by 10% to reflect increased salaries and overhead since the
OGE FOIA regulations were initially issued in February 1995.
In addition, OGE notes that in revised subpart F on annual FOIA
reports it is describing the items of information now required under
the Electronic FOIA Amendments and Department of Justice guidance in
the annual OGE reports, which are to be submitted to the Justice
Department and posted on OGE's Web site. This final rule incorporates a
couple of minor changes to Sec. 2604.602(b)(11), (b)(15) and (b)(16) as
previously proposed to clarify that administrative appeal information
is to be provided under 5 U.S.C. 552(a)(6) and to specify that the
staff time and costs of FOIA processing are estimates and include part-
time/occasional staff (in estimated work years).
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Finally, OGE is making various other minor changes, updates and
corrections to its FOIA regulation. Moreover, as noted in the proposed
rule, OGE is not adopting multitrack processing of its FOIA requests
due to the limited number of requests received each year and the lack
of any FOIA backlog.
Matters of Regulatory Procedure
Executive Order 12866
In issuing these amendments to its Freedom of Information Act
regulation, OGE has adhered to the regulatory philosophy and the
applicable principles of regulation set forth in section 1 of Executive
Order 12866, Regulatory Planning and Review. These amendments have also
been reviewed by the Office of Management and Budget under that
Executive order.
Regulatory Flexibility Act
As Office of Government Ethics Director, I certify under the
Regulatory Flexibility Act (5 U.S.C. chapter 6) that these amendments
will not have a significant economic impact on a substantial number of
small entities because they only affect Freedom of Information Act
matters at OGE.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply
because these amendments do not contain any information collection
requirements that require the approval of the Office of Management and
Budget.
List of Subjects in 5 CFR Part 2604
Confidential business information, Freedom of information.
Approved: February 16, 1999.
Stephen D. Potts,
Director, Office of Government Ethics.
For the reasons set forth in the preamble, the Office of Government
Ethics is amending 5 CFR part 2604 as follows:
PART 2604--[AMENDED]
1. The authority citation for part 2604 continues to read as
follows:
Authority: 5 U.S.C. 552; 5 U.S.C. App. (Ethics in Government Act
of 1978); E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.
Sec. 2604.103 [Amended]
2. In Sec. 2604.103, the text of the definition of the term
``Records'' is amended by adding, in the second parenthetical, between
the words ``as'' and ``punchcards'' the words ``electronic documents,
electronic mail,'', and the text of the definition of the term
``Search'' is amended by adding between the words ``material'' and
``that'' the words ``manually or by automated means''.
3. The heading of subpart B is revised to read as follows:
Subpart B--FOIA Public Reading Room Facility and Web Site; Index
Identifying Information for the Public
4. Section 2604.201 is amended by:
a. Revising the heading;
b. Redesignating paragraph (a) as paragraph (a)(1) and adding a new
paragraph (a)(2);
c. Adding the word ``facility'' after the word ``room'' at each
place it appears in newly redesignated paragraph (a)(1), including the
paragraph heading, and in paragraphs (b) and (c);
d. Removing the telephone number ``(202) 523-5757'' and the FAX
number ``(202) 523-6325'' in the last sentence of newly redesignated
paragraph (a)(1) and adding in their place the new telephone number
``202-208-8000'' and FAX number ``202-208-8037'', respectively;
e. Removing the word ``and'' at the end of paragraph (b)(3);
f. Redesignating paragraph (b)(4) as paragraph (b)(5); and
g. Adding new paragraphs (b)(4) and (d).
The revision and additions read as follows:
Sec. 2604.201 Public reading room facility and Web site.
(a)(1) * * *
(2) Web site. The records listed in paragraph (b) of this section,
which are created on or after November 1, 1996, or which OGE is
otherwise able to make electronically available (if feasible), along
with the OGE FOIA and Public Records Guide and OGE's annual FOIA
reports, are also available via OGE's Web site (Internet address:
http://www.usoge.gov).
(b) * * *
(4) Copies of records created by OGE that have been released to any
person under subpart C of this part which, because of the nature of
their subject matter, OGE determines have become or are likely to
become the subject of subsequent requests for substantially the same
records, together with a general index of such records; and
* * * * *
(d) OGE may delete from the copies of materials made available
under this section any identifying details necessary to prevent a
clearly unwarranted invasion of personal privacy. Any such deletions
will be explained in writing and the extent of such deletions will be
indicated on the portion of the records that are made available or
published, unless the indication would harm an interest protected by
the FOIA exemption pursuant to which the deletions are made. If
technically feasible, the extent of any such deletions will be
indicated at the place in the records where they are made.
Sec. 2604.202 [Amended]
5. Section 2604.202 is amended by adding between the words ``room''
and ``which'' in paragraph (a) the word ``facility''.
6. Section 2604.301 is amended by removing the telephone number
``(202) 523-5757'' in the first sentence of paragraph (a) and adding in
its place the following text (with the new telephone and FAX numbers)
`` 202-208-8000, or FAX, 202-208-8037'', and by adding a new paragraph
(e) to read as follows:
Sec. 2604.301 Requests for records.
* * * * *
(e) Seeking expedited processing. (1) A requester may seek
expedited processing of a FOIA request if a compelling need for the
requested records can be shown.
(2) ``Compelling need'' means:
(i) Circumstances in which failure to obtain copies of the
requested records on an expedited basis could reasonably be expected to
pose an imminent threat to the life or physical safety of an
individual; or
(ii) An urgency to inform the public about an actual or alleged
Federal Government activity, if the request is made by a person
primarily engaged in disseminating information.
(3) A requester seeking expedited processing should so indicate in
the initial request, and should state all the facts supporting the need
to obtain the requested records quickly. The requester must also
certify in writing that these facts are true and correct to the best of
the requester's knowledge and belief.
7. Section 2604.302 is amended by revising the heading and first
sentence of paragraph (b) and revising paragraph (c) to read as
follows:
Sec. 2604.302 Response to requests.
* * * * *
(b) Referral to, or consultation with, another agency. When a
requester seeks access to records that originated in another Government
agency, OGE will normally refer the request to the other agency for
response; alternatively, OGE may consult with the other agency in the
course of deciding itself whether to grant or deny a request for access
to such records. * * *
(c) Honoring form or format requests. In making any record
available to a
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requester, OGE will provide the record in the form or format requested,
if the record already exists or is readily reproducible by OGE in that
form or format. If a form or format request cannot be honored, OGE will
so inform the requester and provide a copy of a nonexempt record in its
existing form or format or another convenient form or format which is
readily reproducible. OGE will not, however, generally develop a
completely new record (as opposed to providing a copy of an existing
record in a readily reproducible new form or format, as requested) of
information in order to satisfy a request.
* * * * *
8. Section 2604.303 is amended by removing the word ``and''
following paragraph (b)(2), redesignating paragraph (b)(3) as paragraph
(b)(4), and adding a new paragraph (b)(3) to read as follows:
Sec. 2604.303 Form and content of responses.
* * * * *
(b) * * *
(3) When only a portion of a document is being withheld, the amount
of information deleted and the FOIA exemption(s) justifying the
deletion will generally be indicated on the copy of the released
portion of the document. If technically feasible, such indications will
appear at the place in the copy of the document where any deletion is
made. If a document is withheld in its entirety, an estimate of the
volume of the withheld material will generally be given. However,
neither an indication of the amount of information deleted nor an
estimation of the volume of material withheld will be included in a
response if doing so would harm an interest protected by any of the
FOIA exemptions pursuant to which the deletion or withholding is made;
and
* * * * *
9. Section 2604.305 is amended by redesignating paragraph (a) as
paragraph (a)(1), by removing the number ``10'' in newly redesignated
paragraph (a)(1) and adding in its place the number ``20'', and by
adding a new paragraph (a)(2) to read as follows:
Sec. 2604.305 Time limits.
(a)(1) * * *
(2) Request for expedited processing. When a request for expedited
processing under Sec. 2604.301(e) is received, the General Counsel will
respond within ten calendar days from the date of receipt of the
request, stating whether or not the request for expedited processing
has been granted. If the request for expedited processing is denied,
any appeal of that decision will be acted upon expeditiously.
* * * * *
Sec. 2604.402 [Amended]
10. Section 2604.402 is amended by removing the word ``exemption''
in the first sentence of paragraph (b) and adding in its place the word
``Exemption''.
Sec. 2604.501 [Amended]
11. Section 2604.501 is amended by removing the dollar amounts
``$10.00'' and ``$20.00'' from the second sentence of paragraph
(b)(1)(i) and adding in their place the dollar amounts ``$11.00'' and
``$22.00'', respectively, and by removing the citation to
``Sec. 2604.104(q)'' in the first sentence of paragraph (b)(3) and
adding in its place the citation ``Sec. 2604.103''.
12. Subpart F is revised to read as follows:
Subpart F--Annual OGE FOIA Report
Sec. 2604.601 Electronic posting and submission of annual OGE FOIA
report.
On or before February 1 of each year, OGE shall electronically post
on its Web site and submit to the Office of Information and Privacy at
the United States Department of Justice a report of its activities
relating to the Freedom of Information Act (FOIA) during the preceding
fiscal year.
Sec. 2604.602 Contents of annual OGE FOIA report.
(a) The Office of Government Ethics will include in its annual FOIA
report the following information for the preceding fiscal year:
(1) The number of FOIA requests for records pending before OGE as
of the end of the fiscal year;
(2) The median number of calendar days that such requests had been
pending before OGE as of that date;
(3) The number of FOIA requests for records received by OGE;
(4) The number of FOIA requests that OGE processed;
(5) The median number of calendar days taken by OGE to process
different types of requests;
(6) The number of determinations made by OGE not to comply with
FOIA requests in full or in part;
(7) The reasons for each such determination;
(8) A complete list of all statutes upon which OGE relies to
authorize withholding of information under FOIA Exemption 3, 5 U.S.C.
552(b)(3);
(9) A description of whether a court has upheld the decision of the
agency to withhold information under each such statute;
(10) A concise description of the scope of any information withheld
under each such statute;
(11) The number of administrative appeals made by persons under 5
U.S.C. 552(a)(6);
(12) The result of such appeals;
(13) The reason for the action upon each appeal that results in a
denial of information;
(14) The total amount of fees collected by OGE for processing
requests;
(15) The number of full-time staff and part-time/occasional staff
(in estimated work years) of OGE devoted to processing requests for
records under the FOIA; and
(16) The estimated total amount expended by OGE for processing such
requests.
(b) In addition, OGE will include in the report such additional
information about its FOIA activities as is appropriate and useful in
accordance with Justice Department guidance and as otherwise determined
by OGE.
[FR Doc. 99-13145 Filed 5-24-99; 8:45 am]
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