[Federal Register Volume 63, Number 117 (Thursday, June 18, 1998)]
[Rules and Regulations]
[Pages 33251-33254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16243]
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LEGAL SERVICES CORPORATION
45 CFR Part 1644
Disclosure of Case Information
AGENCY: Legal Services Corporation.
ACTION: Final rule.
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SUMMARY: This final rule implements a provision in the Legal Services
Corporation's (LSC or Corporation) FY 1998 appropriations act which
requires basic field recipients to disclose certain information to the
public and to the Corporation regarding cases their attorneys file in
court. The case information that is provided to the Corporation will be
subject to disclosure under the Freedom of Information Act.
DATES: This rule is effective July 20, 1998.
FOR FURTHER INFORMATION CONTACT: Suzanne Glasow, Office of the General
Counsel, 202-336-8817.
SUPPLEMENTARY INFORMATION: This final rule is intended to implement
Section 505 of the Corporation's FY 1998 appropriations act, which
requires basic field recipients to disclose certain information to the
public and to the Corporation regarding cases filed in court by
attorneys employed by recipients. See Public Law 105-119, 111 Stat.
2440. The Corporation issued a program letter on December 9, 1997,
providing recipients with guidance on compliance with Section 505 until
such time as a rule could be promulgated by the Corporation. On
February 6, 1998, the Corporation's Operations and Regulations
Committee (Committee) of the Corporation's Board of Directors (Board)
met to consider a draft proposed rule to implement the case disclosure
requirement. After deliberation, the Committee adopted a proposed rule
that was published in the Federal Register for public comment. See 63
FR 8387 (Feb. 19, 1998).
The Corporation received 4 comments on the proposed rule. The
comments agreed that, for the most part, the proposed rule accurately
reflected legislative intent. For those provisions of the rule that the
commenters believed went beyond the intent of Section 505, suggestions
were made for changes. Several comments also asked for clarification on
certain issues either in the commentary or the text of the final rule.
The Committee met on April 5, 1998, to consider public comment. After
making revisions to the proposed rule, the Committee recommended the
rule as revised to the Board as a final rule. The Board adopted the
rule as recommended by the Committee on April 6, 1998, for publication
as a final rule in the Federal Register.
A section-by-section analysis and discussion of changes made from
the proposed rule is provided below.
Section-by-Section Analysis
Section 1644.1 Purpose
The purpose section states that the rule is intended to ensure that
recipients disclose certain required information to the public and to
the Corporation on cases filed in court by their attorneys.
Section 1644.2 Definitions
The case disclosure provision requires that recipients disclose
certain information, among which is the cause of action, for each case
filed in court by their attorneys. To clarify this requirement, this
final rule includes three definitions. Paragraph (a) of Sec. 1644.2
defines to disclose the cause of action. The term means to provide a
sufficient description of a particular case to indicate the principal
nature of the case. Examples would include: breach of warranty,
bankruptcy, divorce, domestic violence, petition to quiet title, action
to recover property, and employment discrimination action.
Paragraph (b) clarifies the type of recipient subject to the case
disclosure requirement. Recipient is defined as an entity that receives
funds under Sec. 1006(a)(1)(A) of the LSC Act, 42 U.S.C.
2996e(a)(1)(A), that is, a basic field recipient which provides direct
legal assistance to the poor. Although Section 505 does not
specifically apply to subrecipients, as a matter of policy, the
proposed rule extended the case disclosure requirement to subrecipients
which provide direct legal representation to eligible clients.
The comments generally disagreed with this policy and urged the
Corporation to exclude subrecipients from the reach of the requirement
or, at least, limit the application of the requirement to activities
under an LSC subgrant. In addition, comments pointed out that the
interplay of the discussion of this issue in the preamble and the
language in the rule itself created confusion as to whether the rule
was intended to apply to all cases filed by subrecipients or only to
cases filed by subrecipients that are funded under a subgrant.
The Board revised the definition of recipient and the applicability
provisions in Sec. 1644.3 \1\ in order to clarify the intended
application of the case disclosure requirement to subrecipients. It was
the intent of the
[[Page 33252]]
proposed rule to apply the requirement to cases funded under subgrants
provided for the direct legal assistance to the poor, except for PAI
subgrants. The language in the text and preamble, however, did not make
this clear. The revised language better states the intent and also
clarifies that the disclosure requirement does not apply to a
subrecipient's non-LSC funded activities. This means that subrecipients
are required to disclose information only for cases funded by their LSC
subgrants. The final rule thus ensures that information will be
available to the public regarding all cases filed by recipients and any
cases filed by subrecipients that are funded under an LSC subgrant for
the direct representation of eligible clients, except for PAI
subgrants.
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\1\ The section numbers for Secs. 1644.3 and 1644.4 have been
reversed from the proposed rule.
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Paragraph (c) defines the term attorney, for the purposes of this
part, to mean any attorney who is employed by a recipient. This would
include attorneys employed as regular or contract employees, regardless
of whether such attorneys are employed full-time or part-time. One
comment asked for additional language in the definition that would
clarify that attorney does not include any private attorney who, under
the recipient's PAI program, receives compensation from a recipient
under the terms of a contract or judicare arrangement, or who
undertakes representation of eligible clients on a pro bono basis.
Although the Board agreed with the substance of the comment, it did not
revise the definition of attorney. Instead, it added Sec. 1644.3(b) to
the rule, which provides that the case disclosure requirement does not
apply to private attorneys who provide legal assistance as part of a
recipient's PAI activities.
Section 1644.3 Applicability
This section, which has been renumbered, clarifies the scope of the
case disclosure requirement. Technical and clarifying revisions were
made to this section by the Board, and language was added to clarify
the applicability of this rule to subrecipients, as discussed under
Sec. 1644.2 above. Subparagraph (a)(1) clarifies that the disclosure
requirement is limited to cases filed on behalf of plaintiffs and
petitioners. This is consistent with the language of Section 505, which
requires case information about ``each case filed by its [a
recipient's] attorneys.'' This language clearly applies to ``each
case'' filed, not to individual filings in a particular case. Thus, the
case disclosure requirement does not require updates on the status of
cases for which information has already been filed. In addition, the
language of Section 505 refers to cases filed by a recipient attorney.
The general understanding of the meaning of filing a case is that it
refers to the initiation of a case, such as the filing of a complaint
by a plaintiff. Accordingly, disclosure is not required for submissions
of pleadings such as an answer or a cross claim on behalf of a
defendant in a case that was not initiated by a recipient.
Although the case disclosure requirement normally applies only to
the original filing of a case, subparagraph (a)(2) applies the
requirement when there is an appeal filed in court by a recipient, the
recipient's client is the appellant, and the recipient was not the
attorney of record in the case below. The Board revised this provision
from the proposed rule to add the requirement that the case be one
where the recipient's client is the appellant. This is consistent with
Sec. 1644.3(a)(1), which limits the case disclosure requirement to
cases filed on behalf of plaintiffs or petitioners.
Subparagraph (a)(3) applies the requirement to a request for
judicial review of an administrative action filed in a court of
competent jurisdiction. The language of this provision was revised to
state more accurately the situation covered by the provision.
Finally, paragraph (b) provides that this rule does not apply to
cases filed by private attorneys as part of a recipient's private
attorney involvement activities pursuant to part 1614. PAI attorneys
are not attorneys employed by recipients; rather, they are generally
private attorneys with their own private practices who have been
recruited by recipients to provide some legal assistance to eligible
clients, either pro bono or on a compensated basis.
Section 1644.4 Case Disclosure Requirement
This section sets out the basic requirements of the case disclosure
provision. Paragraph (a) provides that the disclosure requirement
applies to each case filed in court by a recipient's attorneys. The
preamble to the proposed rule explained that the disclosure requirement
does not apply to cases filed by part-time attorneys outside of their
employment with the recipient. One comment asked that this
clarification be made explicit in the rule. The Board agreed and added
language to Sec. 1644.4(a) of the final rule that provides that the
rule applies only to cases filed by recipient attorneys ``on behalf of
a client of the recipient.'' A similar revision was also made for
Sec. 1644.3(a)(1).
Name and address of parties: Subparagraphs 1644.4(a)(1) through
(a)(4) list the information a recipient must disclose about applicable
cases. First, the name and full address of each party to a case must be
disclosed unless one of the two statutory protections discussed below
applies. The term ``full address'' means an address sufficient to
contact a party to the case by mail, such as a street address or post
office box number with the city, State and zip code. This provision is
not intended to require recipients to provide a name and address of a
party when they have no knowledge of and cannot reasonably obtain such
information. This could occur, for example, when the information is not
a matter of public record, the party is not a client of the recipient,
and the private attorney for that party refuses to provide the
information. However, the recipient must make a reasonable effort to
obtain the information.
Pursuant to Section 505, a name or address need not be disclosed if
(1) the name or address is protected by an order or rule of court or by
State or Federal law, or (2) the recipient's attorney reasonably
believes that revealing the information would put the client of the
recipient at risk of physical harm. These protections are consistent
with the express legislative intent of the purpose and scope of the
requirement. The legislative history indicates that Congress intends
that the disclosure requirement apply to ``the most basic information''
about a case which is already public and on file in court records, but
does not apply to information, for example, that would risk harm to a
person or that is protected by the attorney-client privilege. See 143
Cong. Rec. H 8004-8008 (Sept. 26, 1997).
One comment from an LSC recipient stated that the program receives
a grant through the Victims of Crime Act (VOCA), which only funds legal
assistance to protect victims of violence. In the view of the
recipient, virtually all cases handled under the VOCA grant are likely
to come within the physical harm exemption. Accordingly, the recipient
asked that the rule include a blanket exemption for cases filed under
grants specifically targeted for domestic violence victims.
The Board did not adopt the recommendation. The remedy provided by
statute allows individual attorneys to decide for particular cases
whether the physical harm exemption applies. Although many of the
clients served under the VOCA grant may indeed fall within the physical
harm exemption, the Board was not convinced that
[[Page 33253]]
virtually all such clients do. Nor was the Board convinced that the
burden of making individual judgments for each case is a substantial
burden on recipients.
During public consideration of the rule, a question was raised
about the rule's policy for protecting relatives of the client, whose
physical safety would be put at risk by disclosure of the client's name
and address. For example, if the children of the client rather than the
client had been threatened with physical harm, could the rule's
exemption from disclosing the name and address be applied to protect
the children? The Board noted that the statute does not expressly
provide protections for any person other than the client of the
recipient, but also noted that it is clear from the legislative history
of the requirement that Congress did not intend for the requirement to
put anyone in harm's way. The Board did not revise the rule, but
directed staff to provide guidance for situations where a family member
of a client would be put at risk of physical harm. Accordingly, when a
recipient's attorney determines that a relative of the client would be
put at risk of physical harm by disclosure of the client's name and
address, the recipient may withhold the information, but the attorney
should keep a record of that determination. This policy is based on the
reasonable presumption that if one family member is put at risk by
revealing the client's name and address, then it is likely that the
client and any other family member who could be found by revealing the
information are also at risk. This is especially true in cases where
the relative at risk is a child of the client. For other situations
where it may not be clear whether the risk-of-harm exception applies, a
recipient should consult the Corporation for guidance.
Cause of action: The case disclosure requirement also requires
disclosure of the cause of action for any applicable case. This
requirement is intended to provide the public and the Corporation with
information regarding the nature or types of cases filed in court by
legal services attorneys, so that there is a public awareness of how
legal services funds are being expended.
Name and address of court/case number: Finally, the case disclosure
provision requires disclosure of the name and full address of the court
where a case is filed and the case number assigned to the case. Full
address means an address sufficient to contact the court by U.S. mail.
Paragraph (b) of this section requires recipients to provide their
case information to the Corporation in semiannual reports as specified
by the Corporation. The Corporation will provide guidance to recipients
on how and when to provide the information. This paragraph also
clarifies that reports submitted to the Corporation are subject to
public disclosure by the Corporation under the Freedom of Information
Act (FOIA).
The disclosure requirement in this rule is separate from the FOIA
and nothing in this rule is intended to suggest that LSC recipients are
subject to the FOIA. They are not. (However, they are subject to other
disclosure requirements applicable to recipients in 45 CFR part 1619.)
The Corporation, on the other hand, is subject to the FOIA, and this
rule requires the Corporation to treat the case information submitted
to it by recipients as subject to disclosure under the FOIA.
Paragraph (c) provides that a recipient must make the case
information described in paragraph (a) available in written form to any
person who requests such information. This rule does not mandate how
recipients must maintain the case information for disclosure to the
public, except that it must be provided in written form. However
maintained, the case information must be made available within a
reasonable time after a request is made by any member of the public.
Paragraph (c) also permits recipients to charge reasonable mailing and
document copying fees.
Comments expressed confusion regarding exactly what information
recipients are required to disclose and inquired whether requests would
be limited to certain time frames or whether recipients must respond to
requests for information in a form different from that maintained by a
recipient. For example, a recipient may choose to maintain a list of
every case filed after January 1, 1998, in the order in which the cases
were filed. If a request asks only for cases dealing with domestic
violence, the recipient is not required to prepare another list
separating out domestic violence cases. The recipient is only required
to provide the list it has compiled, and the requester would have to
search the list to find the domestic violence cases. This does not mean
that a recipient may not choose to provide the information in different
formats; it is just not required to do so by this rule.
In regard to time frames, recipients must disclose the required
case information when requested by a member of the public for all cases
filed by their attorneys after January 1, 1998, whenever the request is
made. This rule does not include any cut-off dates or other specifics
on the manner of reporting or disclosing information in the rule. If
the Corporation determines that information loses its value after a
period of time, so that it does not need to be maintained by
recipients, it will provide clear written guidance on the matter.
Another comment asked that disclosure be required only for cases
filed after the effective date of this rule if the client refuses to
permit disclosure, since the client may have had no prior information
about the rule and could not have consented to disclosure as a
condition of representation.
The Board did not agree. The Corporation issued a program letter to
all recipients on December 9, 1997, clearly stating that the law would
be in effect as of January 1, 1998, and that recipients must start
implementation of the case disclosure requirements set out in the
letter. The letter advised recipients to inform affected clients, prior
to filing a lawsuit, of the possible disclosure of the information
required by this law.
Section 1644.4(c) provides that a recipient must make its case
information available in written form, upon request from any person.
One comment asked for clarification as to whether the word person
includes government agencies, departments or subdivisions, non-profit
corporations, public corporations, foreign corporations, or a person
outside a program's service area. The term is intended to be all
inclusive and is not limited by geography, or by the fact that the
requesting person is asking on behalf of an organization or government
entity. The legislative history clearly indicates an intent to make the
information public to any requester. This is consistent with the
interpretation of the terms person and public in the FOIA. The Board
requested that this interpretation be included in this preamble.
Section 1644.5 Recipient Policies and Procedures
This section requires the recipient to establish written policies
and procedures to guide the recipient's staff to ensure compliance with
this rule. Such procedures could include information regarding how any
person may be given access to or be provided with copies of a
recipient's case disclosure information. The procedures could also set
out the costs for copying or mailing such information.
List of Subjects in 45 CFR part 1644
Grant programs, Legal services, Reporting and recordkeeping.
[[Page 33254]]
For reasons set forth in the preamble, LSC amends Chapter XVI of
Title 45 by adding part 1644 as follows:
PART 1644--DISCLOSURE OF CASE INFORMATION
Sec.
1644.1 Purpose.
1644.2 Definitions.
1644.3 Applicability.
1644.4 Case disclosure requirement.
1644.5 Recipient policies and procedures.
Authority: Pub. L. 105-119, 111 Stat. 2440, Sec. 505; Pub. L.
104-134, 110 Stat. 1321; 42 U.S.C. 2996g(a).
Sec. 1644.1 Purpose.
The purpose of this rule is to ensure that recipients disclose to
the public and to the Corporation certain information on cases filed in
court by their attorneys.
Sec. 1644.2 Definitions.
For the purposes of this part:
(a) To disclose the cause of action means to provide a sufficient
description of the case to indicate the type or principal nature of the
case.
(b) Recipient means any entity receiving funds from the Corporation
pursuant to a grant or contract under section 1006(a)(1)(A) of the Act.
(c) Attorney means any full-time or part-time attorney employed by
the recipient as a regular or contract employee.
Sec. 1644.3 Applicability.
(a) The case disclosure requirements of this part apply:
(1) To actions filed on behalf of plaintiffs or petitioners who are
clients of a recipient;
(2) Only to the original filing of a case, except for appeals filed
in appellate courts by a recipient if the recipient was not the
attorney of record in the case below and the recipient's client is the
appellant;
(3) To a request filed on behalf of a client of the recipient in a
court of competent jurisdiction for judicial review of an
administrative action; and
(4) To cases filed pursuant to subgrants under 45 CFR part 1627 for
the direct representation of eligible clients, except for subgrants for
private attorney involvement activities under part 1614 of this
chapter.
(b) This part does not apply to any cases filed by private
attorneys as part of a recipient's private attorney involvement
activities pursuant to part 1614 of this chapter.
Sec. 1644.4 Case disclosure requirement.
(a) For each case filed in court by its attorneys on behalf of a
client of the recipient after January 1, 1998, a recipient shall
disclose, in accordance with the requirements of this part, the
following information:
(1) The name and full address of each party to a case, unless:
(i) the information is protected by an order or rule of court or by
State or Federal law; or
(ii) the recipient's attorney reasonably believes that revealing
such information would put the client of the recipient at risk of
physical harm;
(2) The cause of action;
(3) The name and full address of the court where the case is filed;
and
(4) The case number assigned to the case by the court.
(b) Recipients shall provide the information required in paragraph
(a) of this section to the Corporation in semiannual reports in the
manner specified by the Corporation. Recipients may file such reports
on behalf of their subrecipients for cases that are filed under
subgrants. Reports filed with the Corporation will be made available by
the Corporation to the public upon request pursuant to the Freedom of
Information Act, 5 U.S.C. 552.
(c) Upon request, a recipient shall make the information required
in paragraph (a) of this section available in written form to any
person. Recipients may charge a reasonable fee for mailing and copying
documents.
Sec. 1644.5 Recipient policies and procedures.
Each recipient shall adopt written policies and procedures to
implement the requirements of this part.
June 15, 1998.
Victor M. Fortuno,
General Counsel.
[FR Doc. 98-16243 Filed 6-17-98; 8:45 am]
BILLING CODE 7050-01-P
