Electronic Freedom of Information Act of 1996; Miscellaneous Rules

SUMMARY: The Federal Trade Commission is implementing the requirements

of the Electronic Freedom of Information Act Amendments of 1996 by

revising its Rules of Practice governing access to agency records. The

Commission is also making other ``housekeeping'' amendments to its

Rules, including changes to reflect the Commission's establishment of a

Consumer Response Center, which replaces the former Public Reference

Branch, and the transfer of responsibility for initial Freedom of

Information Act and Privacy Act requests to the Office of the General

Counsel.

DATES: These amendments are effective August 26, 1998.

FOR FURTHER INFORMATION CONTACT: Alex Tang, Attorney, (202) 326-2447,

Office of the General Counsel, FTC.

SUPPLEMENTARY INFORMATION: On October 2, 1996, the President signed the

Electronic Freedom of Information Act Amendments of 1996 (E-FOIA), Pub.

L. 104-231, 110 Stat. 3048, amending the Freedom of Information Act

(FOIA), 5 U.S.C. 552. In a separate document published elsewhere in

today's Federal Register, the Commission is seeking public comment on

its proposal to amend its Rules of Practice to incorporate, among other

things, procedures for expedited processing and aggregation of

requests. This document contains implementing Rule amendments that do

not require public comment. This document also includes Rule amendments

reflecting recent organizational changes that affected the agency units

responsible, respectively, for providing routine access to public

records and for processing initial requests for non-public records

under the FOIA and Privacy Act.

Making Certain Documents Previously Released Under the FOIA

Available For Routine Public Inspection And Copying

Section (a)(2) of the FOIA, 5 U.S.C. 552(a)(2), which lists the

agency records that must be made available for routine public

inspection and copying, was amended by adding two new subsections, 5

U.S.C. 552(a)(2) (D) and (E). Previously, section (a)(2) applied only

to final opinions and orders in the adjudication of cases, agency

policy statements and interpretations not published in the Federal

Register, and administrative staff manuals and instructions affecting

the public. See 5 U.S.C. 552(a)(2)(A), (B), (C). In practice, the

Commission makes these and numerous other materials available for

routine inspection and copying on its public record. See Commission

Rule 4.9(b), 16 CFR 4.9(b).

The FOIA, as amended by the E-FOIA, now requires that the

Commission also make routinely available ``copies of all records,

regardless of form or format, which have been released to any person

under [the FOIA] and which, because of the nature of their subject

matter, the agency determines have become or are likely to become the

subject of subsequent requests for substantially the same records.'' 5

U.S.C. 552(a)(2)(D). An index of those records must also be made

routinely available. 5 U.S.C. 552(a)(2)(E). Accordingly, the Commission

is revising its list of public records in Rule 4.9(b) to include these

items. The new provisions are being designated as Rules 4.9(b)(10) (ix)

and (x), respectively, and certain existing paragraphs are being

revised and redesignated.

These changes will likely reduce the number of requests made under

the FOIA, although the Commission expects a corresponding increase in

the number of requests received for public record materials. Because

placing previously released documents on the public record and

providing access through that process is generally less costly than

providing access through the Commission's FOIA process, this proposed

change to the Rules will probably decrease the overall costs to the

Commission and should eliminate search and review fees that might

otherwise be incurred by requesters with respect to such records.

The General Counsel (or designee) will determine, on a case-by-case

basis, which documents may be appropriate to make routinely available

on the public record under Rule 4.9(b)(10)(ix). The Commission,

however, does not intend that documents placed on the public record

under that Rule will include information that is legally exempt from

public disclosure. One example is information about an individual that,

even where it is not exempt from mandatory disclosure to that

individual as a first-party requester, would still be withheld in

response to subsequent requests from others if the materials are

otherwise exempt under the FOIA. See, e.g., 5 U.S.C. 552(b)(6), (7)(C).

Other examples include information that is submitted to the Commission

(either under compulsory process, or voluntarily in lieu thereof) in a

Commission law enforcement investigation, or confidential business

information. Again, that information may be released back to a first-

party requester, but would be withheld from others under FOIA Exemption

3, by virtue of sections 6(f) and 21 (b) and (f) of the FTC Act, 15

U.S.C. 46(f) and 57b-2 (b) and (f), and FOIA Exemption 4.

Likewise, the Commission does not intend for Rule 4.9(b)(10)(ix) to

apply where the public interest in the documents is insufficient to

conclude that the documents are likely to be requested by others.

Further, documents placed on the public record under the Rule will be

removed, consistent with the statutory language and purpose of the

requirement, when it appears that they are no longer likely to be

routinely requested.

Making Certain Records Available Electronically

Section (a)(2) of the FOIA, as amended, further provides that

documents subject to routine public inspection and copying under that

provision must also be made accessible to the public electronically

(e.g., by ``computer telecommunications,'' such as a direct computer

dial-in system or through the Internet). This provision, which became

effective on November 1, 1997, applies to all covered records created

on or after November 1, 1996. Furthermore, beginning December 31, 1999,

the agency must make the document index required under section

(a)(2)(E) of the FOIA and new Rule 4.9(b)(10)(x), as discussed earlier,

publicly accessible by computer telecommunications, whether or not the

agency employs such a system for making other required documents

electronically available. The Commission is using its Internet Web site

(WWW.FTC.GOV) to meet the requirements of this provision. Accordingly,

the Commission is amending Rule 4.9(a)(3), which identifies the

locations from which public record materials may be obtained, to

include the Commission's Web site address. This change is intended to

promote electronic access to Commission information and documents.

Providing Records In the Format Requested

The FOIA, as amended, now requires that records released thereunder

be made available in the form or format requested if the material is

``readily

[[Page 45645]]

reproducible'' in that form or format. See 5 U.S.C. 552(a)(3)(B). The

Commission is amending Rule 4.11(a)(1)(iv)(C) to reflect this

requirement.

In most instances, records are reproduced in their existing format

(e.g., paper) because no particular format has been requested. In other

cases, no version of the requested records may exist in the particular

format specified by the requester (e.g., a request that paper-only

records be made available in electronic form, or that records

maintained in one electronic format be made available in a different

electronic format). The Commission has determined that, in those cases,

whether a record is ``readily reproducible'' in the requested format

will depend on whether the record can be converted to that format with

a reasonable amount of effort. The relevant time and cost to the

requester, if any, will be determined in accordance with Commission

Rule 4.8 before such records are converted and reproduced in the

requested format. (The companion rulemaking document being published by

the Commission in today's Federal Register proposes a new category of

fees to be charged for conversions of paper records to electronic

format.)

Searching For Electronic Records

New section (a)(3)(C) of the FOIA, 5 U.S.C. 552(a)(3)(C), requires

that the Commission, in processing a FOIA request, make reasonable

efforts to search for any responsive records that may exist in

electronic form or format, except when such efforts would significantly

interfere with the operation of the agency's automated information

systems. In practice, the Commission already follows this procedure.

Accordingly, the Commission is modifying Rules 4.8(a)(1) and

4.11(a)(1)(iv)(A) to conform its Rules with the statute and the

Commission's current practice.

Amended Time Limit For Responding To Initial Requests

Section (a)(6) of the FOIA provides that the agency must determine

whether requested records will be released or withheld, either in whole

or in part, and respond to the request within specified periods of

time. The E-FOIA increased the time available to the Commission to

respond to an initial request from 10 working days to 20 working days.

See 5 U.S.C. 552(a)(6)(A)(i), as amended. Rule 4.11(a)(1)(iii)(A) is

amended to incorporate that change into the agency's Rules of Practice.

(This particular amendment is also included in the Commission

rulemaking document being published elsewhere in today's Federal

Register, which proposes other changes to Rule 4.11(a)(1)(iii)(A)

requiring public comment.) The E-FOIA did not change the time available

to respond to an administrative appeal of an initial denial of records,

which remains 20 working days. Therefore, no change is being made to

the corresponding portions of the Rules related to appeals.

Extensions Of Time For Responding To FOIA Requests

The FOIA permits agencies to extend the time limit for responding

to a FOIA request, including any appeal of a denied request, by up to

10 working days in ``unusual'' circumstances. 5 U.S.C. 552(a)(6)(B);

see Commission Rule 4.11(a)(1)(iii)(B). While the criteria for such

extensions were not amended, the FOIA now provides that when an agency

determines, in ``exceptional'' circumstances, that it cannot meet the

extended deadline, the requester will be so notified and given the

opportunity to modify the request or agree to an alternative time-

frame. 5 U.S.C. 552(a)(6)(B)(ii). The Commission's FOIA unit has

employed a similar procedure for many years to satisfy the needs of

requesters and to limit the Commission's costs in responding to

requests. Rules 4.11(a)(1)(iii)(B) and (C) and 4.11(a)(2)(ii)(B) have

been amended to incorporate this statutory change.

Estimating the Volume Of Withheld Materials

The amended statute now requires that, at both the initial and

administrative appeal levels, the agency must reasonably estimate the

volume of materials to which access is denied and to provide that

estimate to the requester, unless providing such an estimate would harm

an interest protected by an exemption in section (b) of the statute

that was cited as a basis for withholding materials. See 5 U.S.C.

552(a)(6)(F).

The statute does not state how specific the estimate must be. The

Commission has determined that a good-faith approximation of the number

of pages (or boxes of documents) being withheld should be sufficient to

comply with this provision, and has modified Rules 4.11(a)(1)(iv)(A)

(related to initial determinations) and 4.11(a)(2)(iii)(A) (related to

appeal determinations) to effect these statutory changes.

Guide To Requesting Information

The FOIA now requires that the agency prepare and make publicly

available reference material or a guide for requesting records or

information from the Commission, including an index of all major

information systems, a description of major information and record

locator systems maintained, and a handbook for obtaining various types

and categories of public information. See 5 U.S.C. 552(g). The

Commission has developed a handbook containing all of the required

guidance in one document, and is adding a new Rule 4.9(b)(8)(v) to

include that document in the list of agency records that are routinely

available to the public.

Organizational Changes

The Commission has established within its Bureau of Consumer

Protection a new Consumer Response Center, which is responsible for

providing access to public records previously provided by the

Commission's former Public Reference unit. The Commission has also

transferred agency staff responsible for processing initial requests

for non-public records under the FOIA and the Privacy Act, 5 U.S.C.

552a, from the Office of Information and Technology Management to the

Office of the General Counsel. Thus, the processing of initial requests

under the FOIA and Privacy Act, and initial determinations on all

requests for fee waivers, are now consolidated in the General Counsel's

office, which also retains its authority over the processing of appeals

in such matters. Initial request and appeal functions will remain

separate, however, and different staff and officials will process and

decide initial requests and appeals. Revisions are being made

throughout Rules 4.8, 4.11 and 4.13 to reflect these organizational

changes.

The Rules are also being amended to clarify the General Counsel's

responsibility for appeals of initial FOIA and Privacy Act requests and

related matters (e.g., initial denials of fee waivers, expedited

treatment, etc.), including the General Counsel's discretion to refer

unusual or difficult appeals of such matters to the Commission. See,

e.g., 16 CFR 4.11(a)(2)(iii)(A), 4.13(i)(1). In that regard, various

references to the ``Commission'' in Rules 4.8, 4.11 and 4.13 have been

deleted as unnecessary, as it is implicit that the Commission may

exercise any of the authority over appeals that it has otherwise

delegated to the General Counsel in cases where the General Counsel has

referred the appeal to the Commission.

Public Records Previously Omitted From Rule 4.9

In amending Rule 4.9 to include certain materials on the public

record, as required by the E-FOIA, the Commission is also taking the

[[Page 45646]]

opportunity to update that rule to include three additional categories

of records that the Commission is otherwise required by law, or has

determined as a matter of policy, to make routinely available on its

public record. These three categories are being added to Rule 4.9 as

paragraphs (b)(10) (xi), (xii), and (xiii), respectively.

The first category comprises grants of early termination of waiting

periods by the Commission under the premerger review provisions of the

Hart-Scott-Rodino amendments to the Clayton Act. That Act requires that

such early terminations be published in the Federal Register. See 15

U.S.C. 18a(b)(2). Thus, the Commission recognizes that this information

should be treated as part of its public record. The second category is

reports on applicable energy consumption and efficiency submitted under

the Commission's Appliance Labeling Rule, 16 CFR 305.8. The Commission

has previously voted to make such reports routinely available to the

public without a FOIA request. The third category is a ``catch-all''

provision for any other documents that the Commission determines to

place on its public record as a matter of policy, where such records

would otherwise be considered non-public under the Commission's Rules

and, thus, subject to release only upon a written FOIA request. This

category includes, for example, particular responses to inquiries from

Congressional committees and subcommittees that the Commission

determines are of sufficient public interest or importance to make

available for routine public inspection and copying (after any portions

exempt from mandatory disclosure under the FOIA have been redacted).

Method of Payment

Rule 4.8 (i) is also being amended to delete the option for payment

of processing fees by credit card, which the Commission no longer

accepts. The Commission has found that the small volume of such

transactions did not justify their processing costs. Requesters

continue to have the option of paying fees by check or money order.

The Commission certifies that the Rule amendments set forth in this

notice do not require an initial or final regulatory analysis under the

Regulatory Flexibility Act because the amendments will not have a

significant economic impact on a substantial number of small entities.

See 5 U.S.C. 605(b). Most requests for access to FTC records are filed

by individuals, who are not ``small entities'' within the meaning of

that Act. 5 U.S.C. 601(6). In any event, the economic impact of the

rule changes on all requestors is expected to be minimal, if any. The

Rule amendments also do not contain information collection requirements

within the meaning of the Paperwork Reduction Act, 44 U.S.C. 3501-3520.

The Commission has also determined, in consultation with the Office of

Management and Budget, that none of the amendments constitutes a major

rule within the meaning of the Small Business Regulatory Enforcement

Fairness Act, 5 U.S.C. 801-808.

Furthermore, the notice-and-comment requirements of the

Administrative Procedure Act (APA), 5 U.S.C. 553, do not apply to these

Rule amendments. The Commission has determined that it is unnecessary

to obtain public comment on the amendments to implement the E-FOIA, to

the extent those amendments are required by statute and do not involve

an exercise of agency discretion. See 5 U.S.C. 553(B). The Rule

amendments that reflect organizational changes within the Commission

are matters relating to agency management or personnel that are

expressly exempt from the APA's requirements. See 5 U.S.C. 553(a)(2).

Finally, the addition of certain categories of public records to the

Commission's rules are merely technical amendments to rules of

procedure that do not require public comment. See 5 U.S.C. 553(A).

List of Subjects in 16 CFR Part 4

Administrative practice and procedure, Freedom of Information Act.

For the reasons set forth in the preamble, the Federal Trade

Commission amends Title 16, Chapter I, Subchapter A of the Code of

Federal Regulations as follows:

PART 4--MISCELLANEOUS RULES

1. The authority citation for part 4 continues to read as follows:

Authority: Sec. 6, 38 Stat. 721; 15 U.S.C. 46.

2. Section 4.8 is amended by revising paragraphs (a)(1), (c),

(e)(1), (g), (h) and (i) to read as follows:

Sec. 4.8 Costs for obtaining Commission records.

(a) * * *

(1) The term search includes all time spent looking, manually or by

automated means, for material that is responsive to a request,

including page-by-page or line-by-line identification of material

within documents.

* * * * *

(c) Information to determine fees. Each request for records shall

set forth whether the request is made for other than commercial

purposes and whether the requester is an educational institution, a

noncommercial scientific institution, or a representative of the news

media. The Assistant General Counsel for Legal Counsel (Management &

Access) or his or her designee initially, or the General Counsel on

appeal, will use this information, any additional information provided

by the requester, and any other relevant information to determine the

appropriate fee category in which to place the requester.

* * * * *

(e) Public interest fee waivers.--(1) Procedures. A requester may

apply for a waiver of fees. The requester shall explain why a waiver is

appropriate under the standards set forth in this paragraph. The

application shall also include a statement, as provided by paragraph

(d) of this section, of whether the requester agrees to pay costs if

the waiver is denied. The Assistant General Counsel for Legal Counsel

(Management & Access) or his or her designee initially, or the General

Counsel on appeal, will rule on applications for fee waivers.

* * * * *

(g) Aggregating requests. If the Assistant General Counsel for

Legal Counsel (Management & Access) or his or her designee initially,

or the General Counsel on appeal, reasonably believes that a requester,

or a group of requesters acting in concert, is attempting to evade an

assessment of fees by dividing a single request into a series of

smaller requests, the requests may be aggregated and fees charged

accordingly.

(h) Advance payment. If the Assistant General Counsel for Legal

Counsel (Management & Access) or his or her designee initially, or the

General Counsel on appeal, estimates or determines that allowable

charges that a requester may be required to pay are likely to exceed

$250.00, or if the requester has previously failed to pay a fee within

30 days of the date of billing, the requester may be required to pay

some or all of the total estimated charge in advance. Further, the

requester may be required to pay all unpaid bills, including accrued

interest, prior to processing the request.

(i) Means of payment. Payment shall be made by check or money order

payable to the Treasury of the United States.

* * * * *

3. Section 4.9 is amended by: redesignating paragraph (b)(10)(ix)

as (b)(10)(xiv); adding new paragraphs (b)(8)(v) and (b)(10)(ix), (x),

(xi), (xii) and (xiii); and revising paragraphs

[[Page 45647]]

(a)(3), (a)(4)(i), (b)(8)(iii) and (iv), and (b)(10)(viii) to read as

follows:

Sec. 4.9 The public record.

(a) * * *

(3) Location. All of the public records of the Commission are

available for inspection at the principal office of the Commission on

each business day from 9 a.m. to 5 p.m., and copies of some of those

records are available at the regional offices on each business day from

8:30 a.m. to 5 p.m. Copies of records that the Commission is required

to make available to the public electronically, pursuant to 5 U.S.C.

552(a)(2), may be obtained in that format from the Commission's Web

site on the Internet, WWW.FTC.GOV.

(4) Copying of public records--(i) Procedures. Reasonable

facilities for copying public records are provided at each office of

the Commission. Subject to appropriate limitations and the availability

of facilities, any person may copy public records available for

inspection at each of those offices. Further, the agency will provide

copies to any person upon request. Written requests for copies of

public records shall be addressed to the Supervisor, Consumer Response

Center, and shall specify as clearly and accurately as reasonably

possible the records desired. For records that cannot be specified with

complete clarity and particularity, requesters shall provide

descriptions sufficient to enable qualified Commission personnel to

locate the records sought. In any instance, the Commission, the

Supervisor of the Consumer Response Center, the General Counsel, the

Assistant General Counsel for Legal Counsel (Management & Access), or

the official in charge of each office may prohibit the use of

Commission facilities to produce more than one copy of any public

record, and may refuse to permit the use of such facilities for copying

records that have been published or are publicly available at places

other than the offices of the Commission.

* * * * *

(b) * * *

(8) * * *

(iii) Summaries or other explanatory materials relating to matters

to be considered at open meetings made available pursuant to

Sec. 4.15(b)(3)

(iv) Commission minutes of open meetings, and, to the extent they

are not exempt from mandatory public disclosure under the Sunshine Act

or the Freedom of Information Act, portions of minutes or transcripts

of closed meetings; and

(v) A guide for requesting records or information from the

Commission, including an index of all major information systems, a

description of major information and record locator systems maintained

by the Commission, and a handbook for obtaining various types and

categories of public information.

* * * * *

(10) * * *

(viii) The Commission's annual report submitted after the end of

each fiscal year, summarizing its work during the year (available for

inspection at each of the offices of the Commission with copies

obtainable from the Superintendent of Documents, U.S. Government

Printing Office, Washington, DC 20402) and any other annual reports

made to Congress on activities of the Commission as required by law;

(ix) Records, as determined by the General Counsel or his or her

designee, that have been released in response to a request made under

the Freedom of Information Act, 5 U.S.C. 552, and which, because of the

nature of the subject matter, have become or are likely to become the

subject of subsequent requests for substantially the same records,

except where some or all of those records would be exempt from

disclosure under 5 U.S.C. 552 if requested by another party;

(x) A general index of the records referred to under paragraph

(b)(10)(ix) of this section;

(xi) Grants of early termination of waiting periods published in

accordance with the Hart-Scott-Rodino premerger notification provisions

of the Clayton Act, 15 U.S.C. 18a(b)(2);

(xii) Reports on appliance energy consumption or efficiency filed

with the Commission pursuant to Sec. 305.8 of this chapter;

(xiii) Other documents that the Commission has determined to place

on the public record; and

* * * * *

4. Section 4.11 is amended by revising paragraphs (a)(1)(i)(A);

(a)(1)(iii)(A), (B), introductory text, and (C); (a)(1)(iv)(A), (B),

and (C); (a)(2)(ii)(B); and (a)(2)(iii)(A) to read as follows:

Sec. 4.11 Disclosure requests.

(a) * * *

(1) * * *

(i) * * *

(A) A request under the provisions of the Freedom of Information

Act, 5 U.S.C. 552, as amended, for access to Commission records shall

be in writing and addressed as follows:

Freedom of Information Act Request, Assistant General Counsel for

Legal Counsel, (Management & Access), Office of the General Counsel,

Federal Trade Commission, 6th Street and Pennsylvania Avenue, NW.,

Washington, DC 20580.

* * * * *

(iii) Time limit for initial determination. (A) The Assistant

General Counsel for Legal Counsel (Management & Access) or his or her

designee will, within 20 working days of the receipt of a request,

either grant or deny, in whole or in part, such request.

(B) Except in exceptional circumstances as provided in paragraph

(a)(1)(iii)(C) of this section, the Assistant General Counsel for Legal

Counsel (Management & Access) or his or her designee may extend the

time limit by not more than 10 working days if such extension is: * * *

(C) If the Assistant General Counsel for Legal Counsel (Management

& Access) or his or her designee extends the time limit for initial

determination pursuant to paragraph (a)(1)(iii)(B) of this section, the

requester will be notified in accordance with 5 U.S.C. 552(a)(6)(B). In

exceptional circumstances, when the request cannot be processed within

the extended time limit, the requester will be so notified and provided

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

processed within such time limit, or to arrange an alternative time

frame for processing the request or a modified request. ``Exceptional''

circumstances will not include delays resulting from a predictable

workload of requests under this section. Unwillingness to make

reasonable modifications in the scope of the request or to agree to an

alternative time frame may be considered as factors in determining

whether exceptional circumstances exist and whether the agency has

exercised due diligence in responding to the request.

* * * * *

(iv) Initial determination. (A) The Assistant General Counsel for

Legal Counsel (Management & Access) or his or her designee will make

reasonable efforts to search, using either manual or electronic means,

for the requested records in electronic form or format, except when

such efforts would significantly interfere with the operation of the

Commission's automated information systems. Access will be granted to

requested records, or any portions thereof, that must be made available

under the Freedom of Information Act. Access will be denied to records

that are exempt under the Freedom of Information Act, 5 U.S.C. 552(b),

unless the Assistant General Counsel for Legal Counsel (Management &

Access) or his or her designee determines that such records fall within

[[Page 45648]]

a category the Commission or the General Counsel has previously

authorized to be made available to the public as a matter of policy.

Denials will set forth the reasons therefor and advise the requester

that this determination may be appealed to the General Counsel if the

requester believes either that the records are not exempt, or that the

General Counsel should exercise discretion to release such records

notwithstanding their exempt status. The Assistant General Counsel for

Legal Counsel (Management & Access) or his or her designee will also

provide a reasonable, good-faith estimate of the volume of any

materials to which access is denied, unless providing such an estimate

would harm an interest protected by an exemption in 5 U.S.C. 552(b)

that was cited as a basis for withholding materials.

(B) The Assistant General Counsel for Legal Counsel (Management &

Access) or his or her designee is deemed to be the sole official

responsible for all denials of initial requests, except denials of

access to materials contained in active investigatory files, in which

case the Director or Deputy Director of the Bureau or the Director of

the Regional Office responsible for the investigation will be the

responsible official.

(C) Records to which access has been granted will be made available

to the requester in any form or format specified by the requester, if

the records are readily reproducible in that form or format, or can be

converted to that form or format with a reasonable amount of effort,

and they will remain available for inspection and copying for a period

not to exceed 30 days from date of notification to the requester unless

the requester asks for and receives the consent of the Assistant

General Counsel for Legal Counsel (Management & Access) or his or her

designee to a longer period. Records assembled pursuant to a request

will remain available only during this period and thereafter will be

refiled. Appropriate fees may be imposed for any new or renewed request

for the same records.

* * * * *

(2) * * *

(ii) * * *

(B) The General Counsel may, by written notice to the requester in

accordance with 5 U.S.C. 552(a)(6)(B), extend the time limit for

deciding an appeal by not more than 10 working days pursuant to

paragraph (a)(1)(iii)(B) of this section, provided that the amount of

any extension utilized during the initial consideration of the request

under that paragraph will be subtracted from the amount of additional

time otherwise available. Where exceptional circumstances do not permit

the processing of the appeal within the extended time limit, the notice

and procedures set forth in paragraph (a)(1)(iii)(C) of this section

shall apply.

(iii) * * *

(A) The General Counsel has the authority to grant or deny all

appeals and to release as an exercise of discretion records exempt from

mandatory disclosure under 5 U.S.C. 552(b). In unusual or difficult

cases, the General Counsel may, in his or her sole discretion, refer an

appeal to the Commission for determination. A denial of an appeal in

whole or in part will set forth the basis for the denial; will include

a reasonable, good-faith estimate of the volume of any materials to

which access is denied, unless providing such an estimate would harm an

interest protected by an exemption in 5 U.S.C. 552(b) that was cited as

a basis for withholding materials; and will advise the requester that

judicial review of the decision is available by civil suit in the

district in which the requester resides, or has his principal place of

business, or in which the agency records are situated, or in the

District of Columbia.

* * * * *

5. Section 4.13 is amended by revising paragraphs (c), (d), (e),

(f), (h), (i), (j), and (k) to read as follows:

Sec. 4.13 Privacy Act rules.

* * * * *

(c) Procedures for requests pertaining to individual records in a

record system. An individual may request access to his or her records

or any information pertaining to that individual in a system of

records, and notification of whether and to whom the Commission has

disclosed a record for which an accounting of disclosures is required

to be kept and made available to the individual, using the procedures

of this section. Requests for the disclosure of records under this

section or to determine whether a system of records contains records

pertaining to an individual or to obtain an accounting of disclosures,

shall be in writing and if mailed, addressed as follows:

Privacy Act Request, Assistant General Counsel for Legal Counsel

(Management & Access), Office of the General Counsel, Federal Trade

Commission, 6th Street and Pennsylvania Avenue N.W., Washington, DC

20580.

If requests are presented in person at the Office of the General

Counsel, the individual shall be required to execute a written request.

All requests shall name the system of records that is the subject of

the request, and shall include any additional information specified in

the pertinent system notice as necessary to locate the records

requested. If the requester wants another person to accompany him or

her to review the records, the request shall so state. Nothing in this

section will allow an individual access to any information compiled in

reasonable anticipation of a civil action or proceeding.

(d) Times, places, and requirements for identification of

individuals making requests. Verification of identity of persons making

written requests to the Assistant General Counsel for Legal Counsel

(Management & Access) ordinarily will not be required. The signature on

such requests will be deemed a certification by the signatory that he

or she is the individual to whom the record pertains or is the parent

or guardian of a minor or the legal guardian of the individual to whom

the record pertains. The Assistant General Counsel for Legal Counsel

(Management & Access) or his or her designee may require additional

verification of a requester's identity when such information is

reasonably necessary to assure that records are not improperly

disclosed; provided, however, that no verification of identity will be

required if the records sought are publicly available under the Freedom

of Information Act.

(e) Disclosure of requested information to individuals. Within 10

working days of receipt of a request under Sec. 4.13(c), the Assistant

General Counsel for Legal Counsel (Management & Access) or his or her

designee will acknowledge receipt of the request. Within 30 working

days of the receipt of a request under Sec. 4.13(c), the Assistant

General Counsel for Legal Counsel (Management & Access) or his or her

designee will inform the requester whether a system of records

containing retrievable information pertaining to the requester exists,

and if so, either that the request has been granted or that the

requested records or information is exempt from disclosure pursuant to

Sec. 4.13(m). When, for good cause shown, the Assistant General Counsel

for Legal Counsel (Management & Access) or his or her designee is

unable to respond within 30 working days of the receipt of the request,

that official will notify the requester and inform him or her

approximately when a response will be made.

(f) Special procedures: Medical records. When the Assistant General

Counsel for Legal Counsel (Management & Access) or his or her designee

determines that disclosure of a medical

[[Page 45649]]

or psychological record directly to a requesting individual could have

an adverse effect on the individual, he or she will require the

individual to designate a medical doctor to whom the record will be

transmitted.

* * * * *

(h) Agency review of request for correction or amendment of record.

Whether presented in person or by mail, requests under Sec. 4.13(g)

will be acknowledged by the Assistant General Counsel for Legal Counsel

(Management & Access) or his or her designee within 10 working days of

the receipt of the request if action on the request cannot be completed

and the individual notified of the results within that time.

Thereafter, the Assistant General Counsel for Legal Counsel (Management

& Access) or his or her designee will promptly either make the

requested amendment or correction or inform the requester of his

refusal to make the amendment or correction, the reasons for the

refusal, and the requester's right to appeal that refusal in accordance

with Sec. 4.13(i).

(i) Appeal of initial adverse agency determination. (1) If an

initial request filed under Sec. 4.13(c) or Sec. 4.13(g) is denied, the

requester may appeal that denial to the General Counsel. The appeal

shall be in writing and addressed as follows:

Privacy Act Appeal, Office of the General Counsel, Federal Trade

Commission, 6th Street & Pennsylvania Avenue, NW., Washington, DC

20580.

Within 30 working days of the receipt of the appeal, the General

Counsel will notify the requester of the disposition of that appeal,

except that the General Counsel may extend the 30-day period for good

cause, in which case, the General Counsel will advise the requester of

the approximate date on which review will be completed. In unusual or

difficult cases, the General Counsel may, in his or her sole

discretion, refer an appeal to the Commission for determination.

(2)(i) If the General Counsel refuses to amend or correct the

record in accordance with a request under Sec. 4.13(g), the General

Counsel will notify the requester of that decision and inform the

requester of the right to file with the Assistant General Counsel for

Legal Counsel (Management & Access) a concise statement setting forth

the reasons for the requester's disagreement with the General Counsel's

determination and the fact that the requester's statement will be

treated as set forth in paragraph (i)(2)(ii) of this section. The

General Counsel will also inform the requester that judicial review of

the decision is available by a civil suit in the district in which the

requester resides, or has his principal place of business, or in which

the agency records are situated, or in the District of Columbia.

(ii) If the individual files a statement disagreeing with the

General Counsel's determination not to amend or correct a record, such

disagreement will be clearly noted in the record involved and the

individual's statement will be made available to anyone to whom the

record has been disclosed after September 27, 1975, or is subsequently

disclosed together with, if the General Counsel deems it appropriate, a

brief statement of his or her reasons for declining to amend the

record.

(j) Disclosure of record to person other than the individual to

whom it pertains. Except as provided by 5 U.S.C. 552a(b), the written

request or prior written consent of the individual to whom a record

pertains, or of his parent if a minor, or legal guardian if

incompetent, shall be required before such record is disclosed. If the

individual elects to inspect a record in person and desires to be

accompanied by another person, the Assistant General Counsel for Legal

Counsel (Management & Access) or his or her designee may require the

individual to furnish a signed statement authorizing disclosure of his

or her record in the presence of the accompanying named person.

(k) Fees. No fees will be charged for searching for a record,

reviewing it, or for copies of records made by the Commission for its

own purposes incident to granting access to a requester. Copies of

records to which access has been granted under this section may be

obtained by the requester from the Assistant General Counsel for Legal

Counsel (Management & Access) or his or her designee on payment of the

reproduction fees provided in Sec. 4.8(b)(6).

* * * * *

By direction of the Commission.

Donald S. Clark,

Secretary.

[FR Doc. 98-22631 Filed 8-25-98; 8:45 am]

BILLING CODE 6750-01-P