E7-17457. Public Availability of Government Accountability Office Records

AGENCY:

Government Accountability Office.

ACTION:

Final rule.

SUMMARY:

GAO amends its records rule to clarify and broaden the existing exemption regarding the disclosure of congressional correspondence and to add a new provision regarding the handling of requests for records of interviews created by GAO in connection with its work. Specifically, the revision to the congressional correspondence exemption enables GAO to release or withhold congressional correspondence without prior congressional authorization. The new provision ensures that an agency from which an interview was obtained is notified of a request for the record of interview and receives an opportunity to advise GAO whether the record of interview or portions thereof should be exempt from disclosure. The new provision will enhance the open, frank, and honest exchange of information from other agencies, nonfederal organizations, and individuals to GAO during the course of a GAO audit, evaluation, or investigation.

EFFECTIVE DATE:

October 4, 2007.

FOR FURTHER INFORMATION CONTACT:

John A. Bielec, Deputy Assistant General Counsel; telephone [phone]; e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

On September 18, 2006, GAO published a proposed rule in the Federal Register proposing two revisions to 4 CFR Part 81.6 and requesting comments (71 FR 54597). Even though, as a legislative branch agency, GAO is not subject to the Administrative Procedures Act and was not required by law to seek comments before issuing a final rule, GAO requested comments concerning its proposed revisions for a 45-day comment period ending November 2, 2006.

Two comments were received during the comment period. The first commenter objected to any change that would lessen the transparency of governmental actions. The second commenter opposed the creation of the additional exemption regarding records of interviews on the grounds that the new exemption is overly broad and could appear arbitrary and capricious. After careful review and consideration of the comments, GAO decided that no changes were needed to the proposed revision regarding congressional correspondence. With respect to the new provision in § 81.6 concerning records of interviews, GAO took into account the comment regarding the regulation appearing overly broad and added language to clarify the procedures to be followed when a request for records of interviews is made. Moreover, for the sake of clarity and transparency, GAO determined that this new provision should be placed in 4 CFR 81.5 rather than in § 81.6 since § 81.5 specifically relates to records obtained or created in the course of GAO's audit, evaluation, or investigative work.

As previously stated in the proposed rule, the revision to § 81.6(a) simply clarifies that GAO is not required to obtain congressional authorization prior to the release or withholding of congressional correspondence from its records. This revision ensures consistency in the handling of records that contain information regarding the communications between GAO and congressional members. It will not result in additional restrictions on the availability of such records.

The amendment to § 81.5 ensures that an agency from which an interview was obtained is given notice of the request for the record of interview and given an opportunity to advise GAO whether the record of interview or portions thereof should be exempt from disclosure. While a record of interview is a GAO-created record, the information contained therein comes directly from another agency. The agency from which an interview was obtained is in the best position to know whether particular information contained in a record of interview may be sensitive or privileged, and therefore, whether it should be protected from public disclosure.

Although the amendment to § 81.5 provides an opportunity for input from another agency, the sole discretion regarding the release of records of interviews or portions thereof remains with GAO's Chief Quality Officer. In deciding whether to release a record of interview, the new provision makes clear that the Chief Quality Officer will consider the views of the agency from which the interview was obtained and the exemptions contained in § 81.6 or any other law or regulation.

While the amendment may restrict the availability of certain records of interviews, as discussed in the proposed rule, the success of GAO's work requires that employees of other agencies and organizations participate in interviews and provide open, frank, and honest opinions during these interviews. Without the amendment to § 81.5, GAO's ability to conduct necessary interviews could be diminished, which could negatively influence the quality of work GAO performs for Congress on behalf of the American people.

List of Subjects in 4 CFR Part 81

• Administrative practice and procedure
• Archives and records
• Freedom of information

For the reasons stated in the preamble, amend part 81 of title 4 of the Code of Federal Regulations as follows:

PART 81—PUBLIC AVAILABILITY OF GOVERNMENT ACCOUNTABILITY OFFICE RECORDS

1. The authority citation for part 81 continues to read:

Authority: 31 U.S.C. 711.

2. In § 81.5, revise the section heading, redesignate paragraph (b) as paragraph (c), and add new paragraph (b) to read as follows:

§ 81.5

Records originating outside GAO, records of interviews, or records involving work in progress.

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(b) It is the policy of GAO that prior to the release of a record of interview created by GAO in connection with an audit, evaluation, or investigation of a program, activity, or funding of a government entity, GAO will notify the agency from which an interview was obtained of the request. GAO will provide that agency with a reasonable opportunity to indicate whether the record of interview or portions thereof should be exempt from disclosure and the reason(s) for the exemption. The public disclosure of a record of interview remains within the discretion of GAO's Chief Quality Officer, but GAO will consider the views of the agency and the exemptions provided for under § 81.6 or any other law or regulation in deciding whether to release all or portions of a record of interview.

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3. In § 81.6, revise paragraph (a) to read as follows:

§ 81.6

Records which may be exempt from disclosure.

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(a) Records relating to work performed in response to a congressional request (unless authorized by the congressional requester), congressional correspondence, and congressional contact memoranda.

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Dated: August 27, 2007.

Gary L. Kepplinger,

General Counsel, Government Accountability Office.