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: Final rule.

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SUMMARY: The Office of Management and Budget (OMB) is issuing a final

rule revising its regulations implementing 5 U.S.C. 552, the Freedom of

Information Act (FOIA). This final rule simplifies and streamlines

OMB's FOIA regulations, and also implements the Electronic Freedom of

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

DATES: The final rule will be effective May 27, 1998.

FOR FURTHER INFORMATION CONTACT: Darrell A. Johnson, FOIA Officer,

Office of Management and Budget, at (202) 395-5715.

SUPPLEMENTARY INFORMATION: On October 9, 1997, (62 FR 52668), OMB

requested public comment on proposed revisions to its regulations at 5

CFR 1303 implementing the Freedom of Information Act. This revision is

necessary to: implement the Electronic Freedom of Information Act

Amendments of 1996, Public Law 104-231 (E-FOIA); update OMB's

regulations to reflect current practice; and streamline OMB's

regulations to eliminate redundant or otherwise unnecessary materials.

OMB received one set of comments regarding the proposed revisions

to OMB's FOIA regulations. The commenter raised several issues

regarding the proposal, generally seeking clarification of provisions

implementing E-FOIA. We will address each of these issues.

The commenter raised three issues regarding Sec. 1303.10(d), which

provides for expedited processing of FOIA requests. The commenter

requested additional clarification (such as through examples) in

Sec. 1303.10(d)(1) for how OMB interprets the second, third, and fourth

criteria for responding to a FOIA request on an expedited basis. OMB

believes that, while further clarification on these criteria may be

appropriate in the future, it is preferable at this point to review

requests for expedited treatment under the proposed regulatory

criteria; experience in reviewing such requests should indicate what

type of clarification is needed. The commenter also asked whether OMB

intends to provide expedited treatment only in response to an

expedition request by the FOIA requester, or whether OMB would expedite

a request on its own initiative or in response to an expedition request

by a third party. While OMB expects that it would typically expedite

its response to a FOIA request in response to an expedition request by

the FOIA requester, there may be cases in which OMB would decide to

expedite its response even if the FOIA requester has not asked for

expedited treatment. In this regard, we should note that, as explained

in the proposed rule (62 FR 52668), OMB does not have a centralized

FOIA process in which requests are handled on a consecutive basis;

thus, the processing of one request generally does not delay OMB's

ability to respond to other requests. Finally, the commenter asked what

constitutes ``certification'' under Sec. 1303.10(d), which implements 5

U.S.C. 552(a)(6)(E)(vi). Under the provision, a requester may self-

certify that the information provided, to demonstrate a compelling need

for an expedited response, is--in the words of the E-FOIA requirement--

``true and correct to the best of [the requester's] knowledge and

belief.''

The commenter asked OMB to reconsider the 30-day limit in

Sec. 1303.10(e) for a FOIA requester to file an administrative appeal,

and instead suggested a six-month time limit. Having considered the

matter again, OMB continues to believe that 30 days is a reasonable

period in which a requester can decide whether to file an

administrative appeal of OMB's response to a FOIA request. It has been

our experience that the vast majority of appeals are filed within a few

weeks of OMB's response. In addition to providing the requester with

sufficient time, a 30-day limit will also discourage the filing of

``stale'' appeals that could require OMB to duplicate much of the work

done in response to the original request.

Regarding Sec. 1303.10(g), the commenter suggested that OMB delete

(or provide additional explanation regarding) the second sentence,

which concerns the statutory consequences of a requester refusing to

reasonably modify a request or arrange an alternative time frame for an

agency response. OMB has retained the sentence, which is intended

simply to alert requesters to the statutory consequences of refusing to

reasonably modify a request or arrange an alternative response period

(which is the subject of the first sentence in that paragraph).

Regarding Sec. 1303.20, the commenter suggested that the

regulations elaborate further on the procedures for gaining access to

OMB's offices, in order to inspect or copy records. We believe that

additional detail is not needed regarding the access procedures. As

explained in the proposed rule (62 FR 52668), one of OMB's aims in

revising its FOIA regulations has been to streamline them. Persons

seeking to inspect or copy requested materials may write or phone the

FOIA Officer, at the listed address and phone number.

Finally, the commenter asked for clarification regarding the

statement in Sec. 1303.60(c) that OMB would consider ``the time period

over which the requests have occurred'' in determining whether it is

reasonable to believe that multiple requests in fact constitute a

single request. While further clarification might be appropriate in the

future, we believe it is preferable at this point to review FOIA

requests under the general standard and to see whether any specific

clarification would be necessary or desirable.

One additional change has been made in the final rule. References

to the ``Deputy Assistant Director for Administration'' have been

changed to the ``FOIA Officer.''

Accordingly, OMB is revising its FOIA regulations by adopting the

revisions as proposed.

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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 final rule will not have a significant economic effect on a

substantial number of small entities; the 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

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

12866 and 12875, the 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. Finally, the final rule is not a ``major rule'' under

5 U.S.C. chapter 8; the rule will not have any of the effects set forth

in 5 U.S.C. 804(2).

List of Subjects in 5 CFR Part 1303

Freedom of Information Act.

Franklin D. Raines,

Director.

For the reasons set forth in the preamble, OMB amends 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, DC

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, DC

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, DC

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, DC 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 FOIA Officer 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

FOIA Officer, Office of Management and Budget, 725 17th Street NW.,

Washington, DC 20503, Phone (202) 395-5715. Requests for information

shall be as specific as possible.

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

FOIA Officer 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 FOIA Officer.)

(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

[[Page 20515]]

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 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 FOIA Officer 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 FOIA Officer. 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 FOIA Officer 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 requester's specified preference of form or format of

disclosure will be honored if the record is readily reproducible in

that format.

* * * * *

8. In Sec. 1303.40, paragraph (f) is revised to read as follows:

Sec. 1303.40 Fees to be charged--general.

* * * * *

(f) Remittances shall be in the form either of a personal check or

bank draft drawn on a bank in the United States, or a postal money

order. Remittances shall be made payable to the order of the Treasury

of the United States and mailed to the FOIA Officer, Office of

Management and Budget, Washington, DC 20503.

* * * * *

9. In Sec. 1303.60, paragraph (c) is revised and the concluding

text of paragraph (d) is designated as paragraph (d)(3) and 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

[[Page 20516]]

the time period over which the requests have occurred.

(d) Advance payments. * * *

(1) * * *

(2) * * *

(3) 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 in paragraphs (d)(1) and (2) of

this section.

* * * * *

[FR Doc. 98-10967 Filed 4-24-98; 8:45 am]

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