Implementation of the Electronic Freedom of Information Act Amendments of 1996

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 0

[GC Docket No. 97-143; FCC 97-198]

Implementation of the Electronic Freedom of Information Act

Amendments of 1996

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This order proposes to amend the Commission's rules regarding

implementation of the Electronic Freedom of Information Act Amendments

of 1996 to comply with the changes mandated by the Electronic Freedom

of Information Act Amendments of 1996. This proceeding will make it

easier for the public to request access under the FOIA to the

Commission's records.

DATES: Comments are due on or before July 25, 1997 and Reply comments

are due on or before August 8, 1997.

ADDRESSES: Federal Communications Commission, 1919 M Street, N.W.,

Washington, D.C. 20554.

FOR FURTHER INFORMATION CONTACT: Laurence H. Schecker, Office of

General Counsel, (202) 418-1720.

SUPPLEMENTARY INFORMATION:

Adopted: June 5, 1997.

Released: June 19, 1997.

I. Introduction

1. In this NPRM, we propose to amend Part 0 of the Commission's

Rules to implement the amendments to the Freedom of Information Act

(``FOIA'') that were enacted in the Electronic Freedom of Information

Act Amendments of 1996 (``EFOIA'').1

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\1\ Public Law 104-231, 110 Stat. 3048 (1996), codified at

scattered subsections of 5 U.S.C. 552.

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ents to the Freedom of Information Act

(``FOIA'') that were enacted in the Electronic Freedom of Information

Act Amendments of 1996 (``EFOIA'').1

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\1\ Public Law 104-231, 110 Stat. 3048 (1996), codified at

scattered subsections of 5 U.S.C. 552.

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2. The FOIA, which establishes a right of access to Federal agency

records, was enacted 30 years ago, before the extensive use of

computers to create and retain records in electronic formats. With the

advent and widespread acceptance of new information technologies,

questions increasingly arose about how electronic records should be

handled under the FOIA. The EFOIA, signed into law on October 2, 1996,

``bring[s] FOIA into the information and electronic age'' 2

through amendments that directly address electronic records. The EFOIA

also addresses procedural aspects of the FOIA, including the time

limits for processing FOIA requests.

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\2\ President Clinton's Statement on Signing H.R. 3802, The

Electronic Freedom of Information Act Amendments (October 2, 1996).

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3. Several of the Commission's FOIA rules must be revised to

conform to the provisions of the EFOIA. We therefore initiate this

proceeding to implement the EFOIA amendments.

II. Discussion

\2\ President Clinton's Statement on Signing H.R. 3802, The

Electronic Freedom of Information Act Amendments (October 2, 1996).

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3. Several of the Commission's FOIA rules must be revised to

conform to the provisions of the EFOIA. We therefore initiate this

proceeding to implement the EFOIA amendments.

II. Discussion

4. To implement the EFOIA amendments, we seek comment on the

proposed revisions to our FOIA rules set forth below. The proposals are

intended to conform our rules to express requirements of the EFOIA. In

addition, as directed by the EFOIA, we propose new rules to provide for

the expedited processing of FOIA requests.

5. Form or Format Requests. A significant change enacted in the

EFOIA is the requirement that agencies honor requests that records be

provided in specific formats, including electronic formats, so long as

the records are ``readily reproducible by the agency in that form or

format.'' 3 Prior to this amendment, agencies were under no

obligation to accommodate a FOIA requester's preferences as to

format.4 We propose to amend Sec. 0.461(a) of our rules to

reflect this new requirement.

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\3\ EFOIA 5, codified at 5 U.S.C. 552(a)(3)(B).

\4\ See H.R. Rep. No. 795, 104th Cong., 2d Sess. 21 (1996)

(House Report), citing Dismukes v. Department of the Interior, 603

F. Supp. 760, 763 (D.D.C. 1984).

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6. Time for Processing Initial FOIA Requests. The EFOIA provides

that, effective October 2, 1997, agencies will have 20 working days

(rather than the current 10 working days) to respond to initial FOIA

requests.5 To implement the statutory amendment, we propose

to amend Sec. 0.461(g) of our FOIA rules.6

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6. Time for Processing Initial FOIA Requests. The EFOIA provides

that, effective October 2, 1997, agencies will have 20 working days

(rather than the current 10 working days) to respond to initial FOIA

requests.5 To implement the statutory amendment, we propose

to amend Sec. 0.461(g) of our FOIA rules.6

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\5\ EFOIA Sec. 8(b), codified at 5 U.S.C. 552(a)(6)(A)(i). See

House Report at 26-27.

\6\ 47 CFR 0.461(g).

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7. The EFOIA further recognizes that in some circumstances,

agencies may need more than 20 working days to process FOIA requests.

Prior to the EFOIA's enactment, agencies were permitted to extend the

time for responding to initial FOIA requests an additional 10 working

days,7 and these provisions remain in effect. However, if an

extension of more than 10 working days is sought, the EFOIA amendments

require that an agency provide requesters with the opportunity both to

limit the scope of their requests to enable processing within the 10

day statutory time limit for extensions, or to negotiate an alternate

time frame for processing requests.8 We propose to

amend Sec. 0.461(g) of our FOIA rules to reflect these

changes.9

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\7\ Former 5 U.S.C. 552(a)(3)(B); 47 CFR 0.461(g).

\8\ EFOIA Sec. 7(b), codified at 5 U.S.C. 552(a)(6)(B). If the

requester refuses either option, or no agreement can be reached with

the agency, a court must take this into account in considering

whether to afford an agency additional time to process the request.

EFOIA 7, codified at 5 U.S.C. 552(a)(6)(B)(ii) and 552(a)(6)(C).

\9\ 47 CFR 0.461(g).

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must notify the requester of

its decision whether or not to grant the request for expedition within

10 calendar days.14 If expedited processing is granted, an

agency must process the request as soon as practicable.15 If

the request is denied, an agency must grant expedited consideration of

appeals of such a denial.16

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\10\ EFOIA 8(a), codified at 5 U.S.C. 552(a)(6)(E).

\11\ EFOIA 8(a), codified at 5 U.S.C. 552(a)(2)(E)(i).

\12\ 5 U.S.C. 552(a)(6)(E)(v)(I). The House Report at 26

explains that ``A threat to an individual's life or physical safety

qualifying for expedited access should be imminent. A reasonable

person should be able to appreciate that a delay in obtaining the

requested information poses such a threat.''

\13\ 5 U.S.C. 552(a)(6)(E)(v)(II). According to the House Report

at 26, to qualify for expedited processing, the dissemination of

information must be the ``main activity'' of the requester. The

``urgency to inform'' standard requires that the information

requested pertain to ``a matter of current exigency to the American

public'' and that delay would compromise a significant recognized

interest, but, by itself, the public's right to know is not enough.

\14\ 5 U.S.C. 552(a)(2)(E)(ii)(I).

\15\ 5 U.S.C. 552(a)(6)(E)(iii).

\16\ 5 U.S.C. 552(a)(6)(E)(ii)(II).

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information

requested pertain to ``a matter of current exigency to the American

public'' and that delay would compromise a significant recognized

interest, but, by itself, the public's right to know is not enough.

\14\ 5 U.S.C. 552(a)(2)(E)(ii)(I).

\15\ 5 U.S.C. 552(a)(6)(E)(iii).

\16\ 5 U.S.C. 552(a)(6)(E)(ii)(II).

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9. To implement the expedited processing requirements of the EFOIA

amendments, we propose to amend section 0.461 of our FOIA rules by

adding a new paragraph (h). Our proposal for the most part tracks the

language of the statute. The proposed rules place on the requester the

burden of demonstrating a compelling need.17 As required by

5 U.S.C. 552(a)(6)(E)(ii)(II), the rules also must provide for

administrative appeals of a denial of a request for expedited

processing. We propose to allow for the filing of an application for

review within five working days of the denial of a request for

expedited processing. The Commission will act expeditiously on such

applications.

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\17\ See House Report at 25 (requester bears the burden of

showing expedition is appropriate).

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10. Miscellaneous Revisions. The EFOIA requires that the Commission

make available a guide for requesting records or information from the

Commission.18 The Commission's Public Service Division of

the Office of Public Affairs has long published annually a guide to

finding information at the FCC.19 We propose to amend

Sec. 0.443 of our rules to reflect the availability of this important

resource tool for the public. We also propose to amend our rules to

reflect the availability of Commission records and information on the

Internet.

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Affairs has long published annually a guide to

finding information at the FCC.19 We propose to amend

Sec. 0.443 of our rules to reflect the availability of this important

resource tool for the public. We also propose to amend our rules to

reflect the availability of Commission records and information on the

Internet.

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\18\ EFOIA Sec. 11, codified at 5 U.S.C. 552(g). See House

Report at 29-30.

\19\ Information Seekers Guide: How to Find Information at the

FCC, Public Service Division, Office of Public Affairs, FCC (January

1997).

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III. Procedural Matters

11. Ex Parte. This is a permit-but-disclose rulemaking proceeding.

Ex parte presentations are permitted, except during the Sunshine Agenda

period, provided they are disclosed as provided in Commission rules.

See 47 CFR 1.1202, 1.1203, and 1.1206(a).

12. Regulatory Flexibility Act Certification. Section 603 of the

Regulatory Flexibility Act, as amended (``RFA''),20 requires

an initial regulatory flexibility analysis in notice and comment

rulemaking proceedings unless we certify that ``the rule will not, if

promulgated, have a significant economic impact on a substantial number

of small entities.'' 21 The purpose of this Notice is to

implement the amendments to the FOIA enacted through the EFOIA. In

particular, the proposed rules concern time limits for processing FOIA

requests, requests for expedited processing, and requests that records

be produced in specific formats. The proposed rules for the most part

simply adopt the language of the EFOIA amendments. There is no reason

to believe that the revised rules will impose any costs on FOIA

requesters beyond those costs incurred under our former rules.

Accordingly, we certify, pursuant to section 605(b) of the RFA, that

the proposed rules will not have a significant economic impact on a

substantial number of small entities

rules for the most part

simply adopt the language of the EFOIA amendments. There is no reason

to believe that the revised rules will impose any costs on FOIA

requesters beyond those costs incurred under our former rules.

Accordingly, we certify, pursuant to section 605(b) of the RFA, that

the proposed rules will not have a significant economic impact on a

substantial number of small entities. The Secretary shall send a copy

of this certification to the Chief Counsel for Advocacy of the Small

Business Administration. A copy of this certification will also be

published in the Federal Register.

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\20\ 5 U.S.C. 603.

\21\ 5 U.S.C. 605(b).

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13. Filing Comments. Pursuant to the procedures set forth in 47 CFR

1.415 and 1.419, interested parties may file comments on or before July

25, 1997, and reply comments on or before August 8, 1997 after

publication of this proposed rule in the Federal Register. All relevant

and timely comments will be considered by the Commission before final

action is taken in this proceeding. To file formally in this

proceeding, participants must file an original and four copies of all

comments, reply comments, and supporting comments. If participants want

each Commissioner to receive a personal copy of their comments, an

original plus nine copies must be filed. Comments and reply comments

should be sent to the Office of the Secretary, Federal Communications

Commission, 1919 M Street, N.W., Room 222, Washington, DC 20554.

Parties should also submit one copy of any documents filed in this

docket with ITS, 2100 M Street, N.W., Suite 140, Washington, DC 20037.

Comments and reply comments will be available for public inspection

during regular business hours in the Dockets Reference Room (Room 239)

of the Federal Communications Commission, 1919 M Street, N.W.,

Washington, DC 20554.

14. Contact Persons

, DC 20554.

Parties should also submit one copy of any documents filed in this

docket with ITS, 2100 M Street, N.W., Suite 140, Washington, DC 20037.

Comments and reply comments will be available for public inspection

during regular business hours in the Dockets Reference Room (Room 239)

of the Federal Communications Commission, 1919 M Street, N.W.,

Washington, DC 20554.

14. Contact Persons. For further information concerning this

proceeding contact Laurence H. Schecker or Linda P. Armstrong, Office

of General Counsel, at (202) 418-1720.

IV. Ordering Clause

15. Accordingly, it is ordered that pursuant to sections 4(i) and

4(j) of the Communications Act of 1934, as amended, 47 U.S.C.

Secs. 154(i) and 154(j), and the Electronic Freedom of Information Act

Amendments of 1996, Public Law 104-231, 110 Stat. 3048 (1996), a Notice

of Proposed Rulemaking is hereby adopted.

List of Subjects in 47 CFR Part 0

Freedom of information.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97-16691 Filed 6-24-97; 8:45 am]

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