Freedom of Information Act

OFFICE OF MANAGEMENT AND BUDGET

5 CFR Part 1303

RIN 0348-AB42

Freedom of Information Act

AGENCY: Office of Management and Budget, Executive Office of the

President.

ACTION: Proposed rule.

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SUMMARY: The Office of Management and Budget (OMB) seeks public comment

on a proposed rule that would revise OMB's regulations implementing 5

U.S.C. 552, the Freedom of Information Act (FOIA). These revisions are

being proposed to simplify and streamline OMB's FOIA regulations, as

well as to implement the Electronic Freedom of Information Act

Amendments of 1996 (Pub. L. 104-231).

DATES: Comments must be received no later than December 8, 1997.

ADDRESSES: Comments on the proposed rule should be addressed to:

Darrell A. Johnson, Deputy Assistant Director for Administration,

Office of Management and Budget, Room 9026, New Executive Office

Building, Washington, D.C. 20503. Comments up to three pages in length

may be submitted via facsimile to (202) 395-3504. Electronic mail

comments may be submitted via Internet to [email protected] Please

include the full body of electronic mail comments in the text and not

as an attachment. Please include the name, title, organization, postal

address, and E-mail address in the text of the message.

FOR FURTHER INFORMATION CONTACT: Darrell A. Johnson, Deputy Assistant

Director for Administration, Office of Management and Budget, at (202)

395-5715.

SUPPLEMENTARY INFORMATION: OMB is seeking public comment on proposed

revisions to OMB's regulations at Part 1303 implementing the Freedom of

Information Act (FOIA). Currently, OMB's FOIA regulations consist of

the regulations as issued in 1982 (47 FR 33483; August 3, 1982), and as

amended in 1987 (52 FR 4512; December 30, 1987). The proposed revisions

are intended to: implement the Electronic Freedom of Information Act

Amendments of 1996, P.L. 104-231 (E-FOIA); update OMB's regulations to

reflect current practice; and streamline OMB's regulations to eliminate

redundant or otherwise unnecessary materials. The following is a

summary of the proposed changes.

Section 1303.2 (``Authority and functions''), which summarizes

OMB's authority and functions, has been streamlined.

Section 1303.3 (``Organization'') has been revised to reflect

changes over time in OMB's organizational structure.

Section 1303.10 (``Methods of operation'') has been revised to

update information and to reflect the provisions of E-FOIA. Among the

revisions to Section 1303.10 are provisions revising the initial

response period from 10 days to 20 days (see Section 8(b) of E-FOIA,

amending 5 U.S.C. 552(a)(6)(A)(i)); establishing an expedited-response

process (see Section 8(a) of E-FOIA, adding 5 U.S.C. 552(a)(6)(E));

establishing a requirement that administrative appeals of OMB denials

be made within 30 days of receipt of the denial (the current

regulations do not set a deadline); and providing for OMB consultations

with a requester to determine if a FOIA request may be modified in

order to allow for a timely response, or to arrange an alternative time

frame for a response (see Section 7(b) of E-FOIA, amending 5 U.S.C.

552(a)(6)(B)). Finally, Section 1303.10 explains that OMB materials may

be obtained electronically from OMB's home page; these materials

include documents described in 5 U.S.C. 552(a)(2).

Section 1303.20 (``Inspection, copying, and exceptions'') has been

streamlined by deleting subsections (b) and (c). The deletion of

subsection (b) is consistent with the courts' decisions in Ryan v.

Department of Justice, 617 F.2d 781, 786-89 (D.C. Cir. 1980), and Meyer

v. Bush, 981 F.2d 1288, 1292 n.2, 1294 (D.C. Cir. 1993), and it also

reflects OMB's practice (in response to FOIA requests, the files of the

OMB units described in subsection (b) are searched for responsive

documents, and such documents are reviewed for applicable exemptions,

in the same manner as the files of other OMB units). Subsection (c) has

been deleted because its recitation of the exemptions in 5 U.S.C.

552(b) is unnecessary (i.e., OMB may directly rely upon the statutory

exemptions).

Section 1303.30 (``Definitions'') has been revised to reflect E-

FOIA by more clearly defining the terms ``search'' and ``duplication.''

See Section 5 of E-FOIA, amending 5 U.S.C. 552(a)(3).

Finally, Section 1303.60 (``Miscellaneous fee provisions'') has

been revised to conform to the aggregation provision in Section

1303.10(g), and to the new time limit under the FOIA for initial

responses.

In implementing E-FOIA, OMB considered adopting a multi-track

processing system that would distinguish simple and complex FOIA

requests and place them on separate processing tracks. See Section 7(a)

of E-FOIA, adding 5 U.S.C. 552(a)(6)(D). However, after considering

this option, OMB decided to retain its current system. Unlike other

agencies, OMB does not have a central office dedicated to searching for

documents in response to FOIA requests; instead, OMB has a

decentralized system, with the primary responsibility for responding to

individual FOIA requests generally assigned to the program office with

responsibility for the subject matter of the particular request.

Accordingly, pending FOIA requests are generally processed

concurrently, rather than on a consecutive, request-by-request basis.

For this reason, the time needed to respond to complex requests

generally does not delay OMB's ability to respond to simple requests.

Thus, the adoption of multitrack processing would not be likely to

accelerate OMB's ability to respond to requests.

OMB requests comments on the proposed revisions to OMB's FOIA

regulations.

Regulatory Flexibility Act, Unfunded Mandates Reform Act, and

Executive Orders 12866 and 12875

For purposes of the Regulatory Flexibility Act (5 U.S.C. 601 et

seq.), the proposed rule will not, if promulgated, have a significant

economic effect on a substantial number of small entities; the proposed

rule addresses the procedures to be followed when responding to

requests for information under the Freedom of Information Act. For

purposes of the Unfunded Mandates

[[Page 52669]]

Reform Act of 1995 (Pub. L. 104-4), as well as Executive Orders No.

12866 and 12875, the proposed rule would not significantly or uniquely

affect small governments, and would not result in increased

expenditures by State, local, and tribal governments, or by the private

sector, of $100 million or more.

Franklin D. Raines,

Director.

For the reasons set forth in the preamble, OMB proposes to amend 5

CFR Part 1303 as follows:

PART 1303--[AMENDED]

1. The authority citation for part 1303 is revised to read as

follows:

Authority: 5 U.S.C. 552.

2. Section 1303.2 is revised to read as follows:

Sec. 1303.2 Authority and functions.

The general functions of the Office of Management and Budget, as

provided by statute and executive order, are to develop and execute the

budget, oversee implementation of Administration policies and programs,

advise and assist the President, and develop and implement management

policies for the government.

3. Section 1303.3 is revised to read as follows:

Sec. 1303.3 Organization.

(a) The brief description of the central organization of the Office

of Management and Budget follows:

(1) The Director's Office includes the Director, the Deputy

Director, the Deputy Director for Management, and the Executive

Associate Director.

(2) Staff Offices include General Counsel, Legislative Affairs,

Communications, Administration, and Economic Policy.

(3) Offices that provide OMB-wide support include the Legislative

Reference and Budget Review Divisions.

(4) Resource Management Offices. These offices develop and support

the President's management and budget agenda in the areas of Natural

Resources, Energy and Science, National Security and International

Affairs, Health and Personnel, Human Resources, and General Government

and Finance.

(5) Statutory offices include the Office of Federal Financial

Management, Office of Federal Procurement Policy, and the Office of

Information and Regulatory Affairs.

(b) The Office of Management and Budget is located in Washington,

DC, and has no field offices. Staff are housed in either the Old

Executive Office Building, 17th Street and Pennsylvania Ave, NW, or the

New Executive Office Building, 725 17th Street NW, Washington, D.C.

20503. Persons desiring to visit offices or employees of the Office of

Management and Budget, in either building, must write or telephone

ahead to make an appointment. Security in both buildings prevents

visitors from entering the building without an appointment.

5. Section 1303.10 is revised to read as follows:

Sec. 1303.10 Access to information.

(a) The Office of Management and Budget makes available information

pertaining to matters issued, adopted, or promulgated by OMB, that are

within the scope of 5 U.S.C. 552(a)(2). A public reading area is

located in the Executive Office of the President Library, Room G-102,

New Executive Office Building, 725 17th Street NW, Washington, D.C.

20503, phone (202) 395-5715. Some of these materials are also available

from the Executive Office of the President's Publications Office, Room

2200 New Executive Office Building, 725 17th Street NW, Washington,

D.C. 20503, phone (202) 395-7332. OMB issuances are also available via

fax-on-demand at (202) 395-9068, and are available electronically from

the OMB homepage at http:/www.whitehouse.gov/WH/EOP/omb. In addition,

OMB maintains the Office of Information and Regulatory Affairs (OIRA)

Docket Library, Room 10102, New Executive Office Building, 725 17th

Street NW, Washington, D.C. 20503, phone (202) 395-6880. The Docket

Library contains records related to information collections sponsored

by the Federal government and reviewed by OIRA under the Paperwork

Reduction Act of 1995. The Docket Library also maintains records

related to proposed Federal agency regulatory actions reviewed by OIRA

under Executive Order 12866 ``Regulatory Planning and Review''.

Telephone logs and materials from meetings with the public attended by

the OIRA Administrator are also available in the Docket Library.

(b) The Deputy Assistant Director for Administration is responsible

for acting on all initial requests. Individuals wishing to file a

request under the Freedom of Information Act (FOIA) should address

their request in writing to the Deputy Assistant Director for

Administration, Office of Management and Budget, 725 17th Street NW,

Washington, DC 20503, Phone 395-5715. Requests for information shall be

as specific as possible.

(c) Upon receipt of any request for information or records, the

Deputy Assistant Director for Administration will determine within 20

days (excepting Saturdays, Sundays and legal public holidays) after the

receipt of such request whether it is appropriate to grant the request

and will immediately provide written notification to the person making

the request. If the request is denied, the written notification to the

person making the request shall include the names of the individuals

who participated in the determination, the reasons for the denial, and

a notice that an appeal may be lodged within the Office of Management

and Budget. (Receipt of a request as used herein means the date the

request is received in the office of the Deputy Assistant Director for

Administration.)

(d) Expedited processing. (1) Requests and appeals will be taken

out of order and given expedited treatment whenever it is determined

that they involve:

(i) Circumstances in which the lack of expedited treatment could

reasonably be expected to pose an imminent threat to the life or

physical safety of an individual;

(ii) An urgency to inform the public about an actual or alleged

federal government activity, if made by a person primarily engaged in

disseminating information;

(iii) The loss of substantial due process rights; or

(iv) A matter of widespread and exceptional media interest in which

there exist possible questions about the government's integrity which

effect public confidence.

(2) A request for expedited processing may be made at the time of

the initial request for records or at any later time.

(3) A requester who seeks expedited processing must submit a

statement, certified to be true and correct to the best of that

person's knowledge and belief, explaining in detail the basis for

requesting expedited processing. For example, a requester within the

category described in paragraph (d)(1)(ii) of this section, if not a

full-time member of the news media, must establish that he or she is a

person whose main professional activity or occupation is information

dissemination, though it need not be his or her sole occupation. A

requester within the category (d)(1)(ii) of this section also must

establish a particular urgency to inform the public about the

government activity involved in the request, beyond the public's right

to know about government activity generally. The formality of

certification may be waived as a matter of administrative discretion.

(4) Within ten days of its receipt of a request for expedited

processing, OMB

[[Page 52670]]

will decide whether to grant it and will notify the requester of the

decision. If a request for expedited treatment is granted, the request

will be given priority and will be processed as soon as practicable. If

a request for expedited processing is denied, any appeal of that

decision will be acted on expeditiously.

(e) Appeals shall be set forth in writing within 30 days of receipt

of a denial and addressed to the Deputy Assistant Director for

Administration at the address specified in paragraph (b) of this

section. The appeal shall include a statement explaining the basis for

the appeal. Determinations of appeals will be set forth in writing and

signed by the Deputy Director, or his designee, within 20 days

(excepting Saturdays, Sundays, and legal public holidays). If, on

appeal, the denial is in whole or in part upheld, the written

determination will also contain a notification of the provisions for

judicial review and the names of the persons who participated in the

determination.

(f) In unusual circumstances, the time limits prescribed in

paragraphs (c) and (e) of this section may be extended for not more

than 10 days (excepting Saturdays, Sundays, or legal public holidays).

Extensions may be granted by the Deputy Assistant Director for

Administration. The extension period may be split between the initial

request and the appeal but in no instance may the total period exceed

10 working days. Extensions will be by written notice to the persons

making the request and will set forth the reasons for the extension and

the date the determination is expected.

(g) With respect to a request for which a written notice under

paragraph (f) of this section extends the time limits prescribed under

paragraph (c) of this section, the agency shall notify the person

making the request if the request cannot be processed within the time

limit specified in paragraph (f) of this section and shall provide the

person an opportunity to limit the scope of the request so that it may

be processed within that time limit or an opportunity to arrange with

the agency an alternative time frame for processing the request or a

modified request. Refusal by the person to reasonably modify the

request or arrange such an alternative time frame shall be considered

as a factor in determining whether exceptional circumstances exist for

purposes of 5 U.S.C. 552 (a)(6)(C). When OMB reasonably believes that a

requester, or a group of requestors acting in concert, has submitted

requests that constitute a single request, involving clearly related

matters, OMB may aggregate those requests for purposes of this

paragraph. One element to be considered in determining whether a belief

would be reasonable is the time period over which the requests have

occurred.

(h) As used herein, but only to the extent reasonably necessary to

the proper processing of the particular request, the term unusual

circumstances means:

(1) The need to search for and collect the requested records from

establishments that are separated from the office processing the

request;

(2) The need to search for, collect, and appropriately examine a

voluminous amount of separate and distinct records which are demanded

in a single request; or

(3) The need for consultation, which shall be conducted with all

practicable speed, with another agency having a substantial interest in

the determination of the request or among two or more components of the

agency which have a substantial subject matter interest therein.

6. Section 1303.20 is revised to read as follows:

Sec. 1303.20 Inspection and copying.

When a request for information has been approved pursuant to

Sec. 1303.10, the person making the request may make an appointment to

inspect or copy the materials requested during regular business hours

by writing or telephoning the Deputy Assistant Director for

Administration at the address or telephone number listed in

Sec. 1303.10(b). Such materials may be copied and reasonable facilities

will be made available for that purpose. Copies of individual pages of

such materials will be made available at the price per page specified

in Sec. 1303.40(d); however, the right is reserved to limit to a

reasonable quantity the copies of such materials which may be made

available in this manner when copies also are offered for sale by the

Superintendent of Documents.

7. Section 1303.30 (d) and (e) are revised to read as follows:

Sec. 1303.30 Definitions.

* * * * *

(d) The term search means the process of looking for and retrieving

records or information responsive to a request. It includes page-by-

page or line-by-line identification of information within records and

also includes reasonable efforts to locate and retrieve information

from records maintained in electronic form or format. OMB employees

should ensure that searching for material is done in the most efficient

and least expensive manner so as to minimize costs for both the agency

and the requester. For example, employees should not engage in line-by-

line search when merely duplicating an entire document would prove the

less expensive and quicker method of complying with a request. Search

should be distinguished, moreover, from review of material in order to

determine whether the material is exempt from disclosure (see paragraph

(f) of this section).

(e) The term duplication means the making of a copy of a document,

or of the information contained in it, necessary to respond to a FOIA

request. Such copies can take the form of paper, microform, audio-

visual materials, or electronic records (e.g., magnetic tape or disk),

among others. The requesters specified preference of form or format of

disclosure will be honored if the record is readily reproducible in

that format.

* * * * *

8. In Sec. 1303.60, paragraph (c) and the concluding text of

paragraph (d) are revised to read as follows:

Sec. 1303.60 Miscellaneous fee provisions.

* * * * *

(c) 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 payment of fees. When OMB

reasonably believes that a requester, or a group of requestors acting

in concert, has submitted requests that constitute a single request,

involving clearly related matters, OMB may aggregate those requests and

charge accordingly. One element to be considered in determining whether

a belief would be reasonable is the time period over which the requests

have occurred.

(d) Advance payments. * * *

(1) * * *

(2) * * *

When OMB acts under paragraph (d)(1) or (2) of this section, the

administrative time limits prescribed in the FOIA, 5 U.S.C. 552(a)(6)

(i.e., 20 working days from receipt of initial requests and 20 working

days from receipt of appeals from initial denial, plus permissible

extensions of these time limits) will begin only after OMB has received

fee payments described above.

* * * * *

[FR Doc. 97-26553 Filed 10-8-97; 8:45 am]

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