[Federal Register Volume 77, Number 171 (Tuesday, September 4, 2012)]
[Proposed Rules]
[Pages 53814-53819]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21495]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1610
RIN 3046-AA90
Availability of Records
AGENCY: Equal Employment Opportunity Commission
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or
``Commission'') proposes to revise its Freedom of Information Act
(FOIA) regulations in order to implement the Openness Promotes
Effectiveness in our National Government Act of 2007 (OPEN Government
Act) and the Electronic FOIA Act of 1996 (E-FOIA Act); to reflect the
reassignment of FOIA responsibilities in the Commission's field offices
from the Regional Attorneys
[[Page 53815]]
to the District Directors; and to consolidate Commission public reading
areas in offices where there are adequate FOIA personnel to provide
satisfactory service.
DATES: Written comments must be received on or before November 5, 2012.
ADDRESSES: Written comments should be submitted to Executive
Secretariat, Equal Employment Opportunity Commission, 131 M Street NE.,
Suite 6NE03F, Washington, DC 20507. As a convenience to commenters, the
Executive Secretariat will accept comments by facsimile (``FAX'')
machine. The telephone number of the FAX receiver is (202) 663-4114.
(This is not a toll-free FAX number). Only comments of six or fewer
pages will be accepted via FAX transmittal to ensure access to the
equipment. Receipt of FAX transmittals will not be acknowledged, except
that the sender may request confirmation of receipt by calling the
Executive Secretariat staff at (202) 663-4070 (voice) or (202) 663-4074
(TTY). (These are not toll-free telephone numbers.) You may also submit
comments and attachments electronically at http://www.regulations.gov,
which is the Federal eRulemaking Portal. Follow the instructions online
for submitting comments. Copies of comments submitted by the public
will be available for review at the Commission's library, 131 M Street
NE., Suite 4NW08R, Washington, DC 20507, between the hours of 9:30 a.m.
and 5:00 p.m. or can be reviewed at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Stephanie D. Garner, Assistant Legal
Counsel, Gary J. Hozempa, Senior Attorney, or Draga G. Anthony,
Attorney Advisor, Office of Legal Counsel, U.S. Equal Employment
Opportunity Commission at (202) 663-4640 (voice) or (202) 663-7026
(TTY). These are not toll-free telephone numbers. This notice is also
available in the following formats: large print, Braille, audiotape,
and electronic file on computer disk. Requests for this document in an
alternative format should be made to the Office of Communications and
Legislative Affairs at (202) 663-4191 (voice) or (202) 663-4494 (TTY),
or to the Publications Information Center at 1-800-669-3362.
SUPPLEMENTARY INFORMATION: The proposed rule updates the Commission's
FOIA regulations to reflect current Commission practice in responding
to FOIA requests as reflected in the OPEN Government Act and the E-FOIA
Act, and the Commission's transfer of FOIA responsibilities from its
Regional Attorneys to its District Directors. The proposed rule also
consolidates Commission public reading rooms in offices where there are
adequate FOIA personnel and streamlines the Commission's FOIA
regulations by removing excess verbiage.
The OPEN Government Act
The OPEN Government Act, Public Law 110-175, 121 Stat. 2524, was
enacted into law on December 31, 2007 to make it easier for a requester
to access agency records, and to require agencies to be more
responsive, transparent, and accountable to the public in responding to
FOIA requests. The Act addresses many aspects of agency FOIA
administration, including:
Time limits for agencies to act on FOIA requests;
Recovery of attorney's fees and litigation costs in FOIA-
related lawsuits;
Disciplinary actions for arbitrary and capricious
rejection of FOIA requests;
Use of individualized identification numbers to track FOIA
requests;
Proper fee charges for FOIA requests from news media;
Enhanced requirements for agencies' annual FOIA reports to
Congress;
Appointment of a Chief FOIA Officer in an agency;
Appointment of a FOIA Public Liaison in an agency;
Disclosure of records maintained for an agency by a
private entity pursuant to a records management contract; and
A new requirement that the amount of material deleted from
a document produced pursuant to FOIA must be specifically identified at
the site of the deletion, together with the exemption authorizing that
deletion.
To conform the Commission's FOIA regulations to the requirements of
the Act, the proposed rule revises the following sections of 29 CFR
part 1610:
--Section 1610.1 (adds definitions for ``agency record,'' ``news,'' and
``representative of the news media'' based on the Act);
--Section 1610.5 (identifies the acceptable methods of submitting a
FOIA request to the Commission [in person or via mail, email, Internet,
or facsimile machine] including the required identification of the
submission as a FOIA request and other content required for efficient
processing);
--Section 1610.6 (provides that FOIA requests which seek documents in
the Commission's custody, but that originated in another agency, will
be referred to the originating agency for its decision, and that the
requester will be informed of the referral);
--Section 1610.7 (lists the proper Commission offices to receive FOIA
requests);
--Section 1610.9 (explains the prospective processing time for FOIA
requests and the period for which the time schedule for responding to a
FOIA request is delayed when the Commission requires clarification by
the requester, and provides that requests misdirected to the wrong
EEOC-FOIA office shall be forwarded to the correct EEOC-FOIA office
within 10 business days);
--Section 1610.10 (clarifies that the Commission will provide a written
response to a FOIA request regardless of whether the request is granted
or denied and regardless of whether there are documents responsive to
the request);
--Section 1610.11 (provides that FOIA appeals misdirected to Commission
District Offices shall be forwarded from those offices to the Legal
Counsel within 10 business days);
--Section 1610.15 (states that the Commission will not charge search
fees if the Commission's response to the FOIA is untimely, absent
unusual or exceptional circumstances);
--Section 1610.18 (states that data underlying annual FOIA reports
shall be available to the public);
--Section 1610.21 (specifies the content of the Commission's annual
FOIA report to Congress).
The E-FOIA ACT
The Electronic FOIA Act of 1996 (E-FOIA) specifies that, after
November 1996, information made available to the public for inspection
and copying pursuant to FOIA must also be made available in electronic
format. To coordinate the Commission's FOIA regulations with the E-
FOIA, the proposed rule revises Sec. Sec. 1610.18 and 1610.21 to state
that the information identified therein shall be available in
electronic as well as paper form. The E-FOIA Act also allows an agency
to adopt a multi-track system for processing FOIA requests. EEOC
therefore proposes to revise Sec. 1610.9(a) in order to implement a
multi-track system.
EEOC FOIA Transfer of Responsibility
The Commission transferred FOIA responsibility from EEOC Regional
Attorneys to EEOC District Directors in 2007. To coordinate the
Commission's FOIA regulations with the EEOC's current delegation of
responsibility for FOIA processing as reflected in EEOC Order 150.001,
the proposed rule revises
[[Page 53816]]
the following sections of 29 CFR part 1610:
--Sections 1610.7, 1610.8, 1610.9, 1610.10, 1610.11, 1610.13 and
1610.14 (revise all prior references to EEOC Regional Attorneys so that
those references now are to EEOC District Directors).
In order to consolidate the Commission's public reading area
functions in offices with adequate personnel to service the public, the
proposed rule revises Sec. 1610.04 by requiring the Commission's
Headquarters library and District Offices to maintain public reading
areas.
Editorial Revisions
The Commission also wishes to update and clarify its FOIA
regulations. To accomplish these goals, the proposed rule removes or
revises the following sections of 29 CFR part 1610:
--Section 1610.4 (updates the addresses of Commission offices, deletes
references to materials no longer published, and deletes unnecessary
verbiage);
--Sections 1610.6, 1610.7, 1610.10, 1610.13 and 1610.19 (delete
unnecessary verbiage);
--Section 1610.20 (removed because its language was duplicative of
other Commission FOIA regulations).
Regulatory Procedures
Executive Order 12866
The proposed rule has been drafted and reviewed in accordance with
Executive Order 12866, 58 FR 51735 (Sept. 30, 2003), section 1(b),
Principles of Regulation, and Executive Order 13563, 76 FR 3821
(January 1, 2011), Improving Regulation and Regulatory Review. The rule
is not a ``significant regulatory action'' under section 3(f) of
Executive Order 12866.
Paperwork Reduction Act
The proposed rule contains no new information collection
requirements subject to review by the Office of Management and Budget
under the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Regulatory Flexibility Act
The Commission certifies under 5 U.S.C. 605(b) that the proposed
rule will not have a significant economic impact on a substantial
number of small entities because the proposed revisions do not impose
any burdens upon FOIA requestors, including those that might be small
entities. Therefore, a regulatory flexibility analysis is not required
by the Regulatory Flexibility Act.
Unfunded Mandates Reform Act of 1995
The proposed rule will not result in the expenditure by State,
local, or tribal governments in the aggregate, or by the private
sector, of $100 million or more in any one year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions are deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
List of Subjects in 29 CFR Part 1610
Freedom of information.
Dated: August 23, 2012.
For the Commission.
Jacqueline A. Berrien,
Chair.
Accordingly, part 1610 is proposed to be amended as follows:
PART 1610--AVAILABILITY OF RECORDS
1. The authority citation for 29 CFR part 1610 continues to read as
follows:
Authority: 42 U.S.C. 2000e-12(a), 5 U.S.C. 552 as amended by
Pub. L. 93-502, Pub. L. 99-570, and Pub. L. 105-231; for Sec.
1610.15, non-search or copy portions are issued under 31 U.S.C.
9701.
2. Amend Sec. 1610.1 by adding new paragraphs (j), (k), and (l) to
read as follows:
Sec. 1610.1 Definitions.
* * * * *
(j) Agency record includes any information maintained for an agency
by an entity under Government contract, for the purposes of records
management.
(k) News refers to information about current events that would be
of current interest to the public.
(l) Representative of the news media refers to any person or entity
that gathers information of potential interest to a segment of the
public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience. Examples of
news media entities are television or radio stations broadcasting to
the public at large and publishers of periodicals (but only if such
entities qualify as disseminators of ``news'') who make their products
available for purchase by, subscription by, or free distribution to,
the general public. As methods of news delivery evolve (for example,
the implementation of electronic dissemination of newspapers through
telecommunication services), such alternative media shall be considered
to be news-media services. A freelance journalist shall be regarded as
working for a news-media entity if the journalist can demonstrate a
solid basis for expecting publication through that entity, whether or
not the journalist is actually employed by the entity. A publication
contract would present a solid basis for such an expectation; the
Commission may also consider the past publication record of the
requester in making such a determination.
3. Revise Sec. 1610.4 to read as follows:
Sec. 1610.4 Public reference facilities and current index.
(a) The Commission will maintain in a public reading area located
in the Commission's library at 131 M Street NE., Washington, DC 20507,
the materials which are required by 5 U.S.C. 552(a)(2) and 552(a)(5) to
be made available for public inspection and copying. Any such materials
created on or after November 1, 1996 may also be accessed through the
Internet at http://www.eeoc.gov. The Commission will maintain and make
available for public inspection and copying in this public reading area
a current index providing identifying information for the public as to
any matter which is issued, adopted, or promulgated after July 4, 1967,
and which is required to be indexed by 5 U.S.C. 552(a)(2). The
Commission in its discretion may, however, include precedential
materials issued, adopted, or promulgated prior to July 4, 1967. The
Commission will also maintain on file in this public reading area all
material published by the Commission in the Federal Register and
currently in effect.
(b) The Commission offices designated in Sec. 1610.4(c) shall
maintain and make available for public inspection and copying a copy
of:
(1) The Commission's notices and regulatory amendments which are
not yet published in the Code of Federal Regulations;
(2) The Commission's annual reports;
(3) The Commission's Compliance Manual;
(4) Blank forms relating to the Commission's procedures as they
affect the public;
(5) The Commission's Orders (agency directives);
(6) ``CCH Equal Employment Opportunity Commission Decisions'' (1973
and 1983); and
(7) Commission awarded contracts.
(c) The Commission's District Offices with public reading areas
are:
Atlanta District Office, 100 Alabama Street SW., Suite 4R30, Atlanta,
GA 30303 (includes the Savannah Local Office).
Birmingham District Office, Ridge Park Place, 1130 22nd Street South,
Suite 2000, Birmingham, AL 35205-2397
[[Page 53817]]
(includes the Jackson Area Office and the Mobile Local Office).
Charlotte District Office, 129 West Trade Street, Suite 400, Charlotte,
NC 28202 (includes the Raleigh Area Office, the Greensboro Local
Office, the Greenville Local Office, the Norfolk Local Office, and the
Richmond Local Office).
Chicago District Office, 500 West Madison Street, Suite 2000, Chicago,
IL 60661 (includes the Milwaukee Area Office and the Minneapolis Area
Office).
Dallas District Office, 207 S. Houston Street, 3rd Floor, Dallas, TX
75202-4726 (includes the San Antonio Field Office and the El Paso Area
Office).
Houston District Office, 1201 Louisiana Street, 6th Floor, Houston, TX
77002 (includes the New Orleans Field Office).
Indianapolis District Office, 101 West Ohio Street, Suite 1900,
Indianapolis, IN 46204-4203 (includes the Detroit Field Office, the
Cincinnati Area Office, and the Louisville Area Office).
Los Angeles District Office, 255 E. Temple Street, 4th Floor, Los
Angeles, CA 90012 (includes the Fresno Local Office, the Honolulu Local
Office, the Las Vegas Local Office, and the San Diego Local Office).
Memphis District Office, 1407 Union Avenue, 9th Floor, Memphis, TN
38104 (includes the Little Rock Area Office, and the Nashville Area
Office).
Miami District Office, Miami Tower, 100 SE 2nd Street, Suite 1500,
Miami, FL 33131 (includes the Tampa Field Office and the San Juan Local
Office).
New York District Office, 33 Whitehall Street, 5th Floor, New York, NY
10004 (includes the Boston Area Office, the Newark Area Office, and the
Buffalo Local Office).
Philadelphia District Office, 801 Market Street, 13th Floor,
Philadelphia, PA 19107-3127 (includes the Baltimore Field Office, the
Cleveland Field Office, and the Pittsburgh Area Office).
Phoenix District Office, 3300 N. Central Avenue, Suite 690, Phoenix, AZ
85012-2504 (includes the Denver Field Office, and the Albuquerque Area
Office).
San Francisco District Office, 350 Embarcadero, Suite 500, San
Francisco, CA 94105-1687 (includes the Seattle Field Office, the
Oakland Local Office, and the San Jose Local Office).
St. Louis District Office, Robert A. Young Building, 1222 Spruce
Street, Room 8100, St. Louis, MO 63103 (includes the Kansas City Area
Office, and the Oklahoma City Area Office).
4. Amend Sec. 1610.5 by revising paragraph (a), redesignating
paragraphs (b) and (c) as (d) and (e), and adding new paragraphs (b)
and (c) to read as follows:
Sec. 1610.5 Request for records.
(a) A written request for inspection or copying of a record of the
Commission may be presented in person, or by mail, or by fax, or by
email, or through https://egov.eeoc.gov/foia/ to the Commission
employee designated in Sec. 1610.7. Every request, regardless of
format, must contain the requester's name and may identify a non-
electronic mailing address. In-person requests must be presented during
business hours on any business day.
(b) A request must be clearly and prominently identified as a
request for information under the ``Freedom of Information Act.'' If
submitted by mail, or otherwise submitted under any cover, the envelope
or other cover must be similarly identified.
(c) A respondent must always provide a copy of the ``Filed''
stamped court complaint when requesting a copy of a charge file. The
charging party must provide a copy of the ``Filed'' stamped court
complaint when requesting a copy of the charge file if the Notice of
Right to Sue has expired.
* * * * *
5. Revise Sec. 1610.6 to read as follows:
Sec. 1610.6 Records of other agencies.
Requests for records that originated in another Agency and are in
the custody of the Commission will be referred to that Agency and the
person submitting the request shall be so notified. The decision made
by that Agency with respect to such records will be honored by the
Commission.
6. Amend Sec. 1610.7 by revising the introductory sentence of
paragraph (a), revising paragraphs (b) and (c), and removing paragraphs
(d) and (e) to read as follows:
Sec. 1610.7 Where to make request; form.
(a) Requests for the following types of records shall be submitted
to the District Director for the pertinent district, field, area, or
local office, at the district office address listed in Sec. 1610.4(c)
or, in the case of the Washington Field Office, shall be submitted to
the Field Office Director at 131 M Street NE., Fourth Floor,
Washington, DC 20507.
(1) * * *
(b) A request for any record which does not fall within the ambit
of subparagraph (a) of this section, or a request for any record the
location of which is unknown to the person making the request, shall be
submitted in writing to the Assistant Legal Counsel, FOIA Programs,
U.S. Equal Employment Opportunity Commission, by mail to 131 M Street
NE., Suite 5NW02E, Washington, DC 20507, or by fax to (202) 663-4679,
or by email to FOIA@eeoc.gov, or by Internet to https://egov.eeoc.gov/foia/.
(c) Any Commission officer or employee who receives a written
Freedom of Information Act request shall promptly forward it to the
appropriate official specified in paragraph (a) or (b) of this section.
Any Commission officer or employee who receives an oral request under
the Freedom of Information Act shall inform the person making the
request that it must be in writing and also inform such person of the
provisions of this subpart.
7. Revise Sec. 1610.8 to read as follows:
Sec. 1610.8 Authority to determine.
The Assistant Legal Counsel, FOIA Programs, the District Director,
or the District Director's designee, when receiving a request pursuant
to these regulations, shall grant or deny such request. That decision
shall be final, subject only to administrative review as provided in
Sec. 1610.11 of this subpart.
8. Amend Sec. 1610.9 by redesignating paragraphs (a) through (c)
as paragraphs (d) through (f), adding new paragraphs (a), (b), (c), and
(g), and revising newly redesignated paragraphs (d) through (f) to read
as follows:
Sec. 1610.9 Responses: timing.
(a) The EEOC utilizes a multi track system for responding to FOIA
requests. After review, a FOIA request is placed on one of three
tracks: the simple track, the complex track, or the expedited track. A
FOIA request is assigned to the simple track if it will be processed in
fewer than 10 business days. A FOIA request requiring more than 10
business days to process will be assigned to the complex track. A FOIA
request which has been granted expedited processing will be assigned to
the expedited track.
(b) The Assistant Legal Counsel, FOIA Programs, the District
Director, or the District Director's designee shall, within 10 days
from receipt of a request, notify the requester in writing of the date
EEOC received the request, the expected date of issuance of the
determination, the individualized FOIA tracking number assigned to the
request, and the telephone number or Internet site where requesters may
inquire about the status of their request.
(c) If a FOIA request is submitted to the incorrect EEOC-FOIA
office, that office shall forward the misdirected request to the
appropriate EEOC-FOIA
[[Page 53818]]
office within 10 business days. If a misdirected request is forwarded
to the correct EEOC-FOIA office more than 10 business days after its
receipt by the EEOC, then, pursuant to 5 U.S.C. Sec. 552(a)(6)(A), the
statutory 20 business days to respond to the request is reduced by the
number of days in excess of 10 that it took the EEOC to forward the
request to the correct EEOC-FOIA office.
(d) Within 20 business days after receipt of the request, the
Assistant Legal Counsel, FOIA Programs, the District Director, or the
District Director's designee shall either grant or deny the request for
agency records, unless additional time is required for one of the
following reasons:
(1) It is necessary to search for and collect the requested records
from field facilities or other establishments that are separate from
the office processing the request;
(2) It is necessary to search for, collect, and appropriately
examine a voluminous number of separate and distinct records which are
demanded in a single request; or
(3) It is necessary to consult with another agency having a
substantial interest in the determination of the request or among two
or more components of the agency having substantial interest therein.
(e) When additional time is required for one of the reasons stated
in paragraph (d) of this Section, the Assistant Legal Counsel, FOIA
Programs, District Director, or the District Director's designee shall,
within the statutory 20 business day period, issue to the requester a
brief written statement of the reason for the delay and an indication
of the date on which it is expected that a determination as to
disclosure will be forthcoming. If more than 10 additional business
days are needed, the requester shall be notified and provided an
opportunity to limit the scope of the request or to arrange for an
alternate time frame for processing the request.
(f)(1) A request for records may be eligible for expedited
processing if the requester demonstrates a compelling need. For the
purposes of this section, compelling need means:
(i) That the failure to obtain the records on an expedited basis
could reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) That the requester is a representative of the news media as
described in Sec. 1610.1(l) and there is an urgency to inform the
public concerning actual or alleged Federal government activity.
(2) 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. A determination on the request for
expedited processing will be made and the requester notified within 10
calendar days. The Legal Counsel or designee, or the Assistant Legal
Counsel, FOIA Programs, as appropriate, shall promptly respond to any
appeal of the denial of a request for expedited processing.
(g) The Commission may toll the statutory time period to issue its
determination on a FOIA request one time during the processing of the
request to obtain clarification from the requester. The statutory time
period to issue the determination on disclosure is tolled until EEOC
receives the information reasonably requested from the requester. The
agency may also toll the statutory time period to issue the
determination to clarify with the requester issues regarding fees.
There is no limit on the number of times the agency may request
clarifying fee information from the requester.
9. Amend Sec. 1610.10 by revising paragraphs (b) and (c) to read
as follows:
Sec. 1610.10 Responses: form and content.
* * * * *
(b) A reply either granting or denying a written request for a
record shall be in writing, signed by the Assistant Legal Counsel, FOIA
Programs, the District Director, or the District Director's designee,
and shall include:
(1) His or her name and title;
(2) A reference to the specific exemption under the Freedom of
Information Act authorizing the withholding of the record and a brief
explanation of how the exemption applies to the record withheld, or a
statement that, after diligent effort, the requested records have not
been found or have not been adequately examined during the time allowed
under Sec. 1610.9 (d), and that the denial will be reconsidered as
soon as the search or examination is complete; and
(3) A written statement that the denial may be appealed to the
Legal Counsel, or Assistant Legal Counsel, FOIA Programs, as
appropriate, within 30 calendar days of receipt of the denial or
partial denial.
(c) When a request for records is denied, the Commission shall
provide to the requester a written statement identifying the estimated
volume of denied material unless providing such estimate would harm an
interest protected by the exemptions in 5 U.S.C. 522(b). When a
reasonably segregable portion of a record is provided, the amount of
information deleted from the released portion and, to the extent
technically feasible, the place in the record where such deletion was
made, and the exemption upon which the deletion was based, shall be
indicated on the record provided to the requester.
* * * * *
10. Revise Sec. 1610.11 to read as follows:
Sec. 1610.11 Appeals to the Legal Counsel from initial denials.
(a) When the Assistant Legal Counsel, FOIA Programs, the District
Director, or the District Director's designee has denied a request for
records in whole or in part, the requester may appeal within 30
calendar days of receipt of the determination letter. The appeal must
be in writing addressed to the Legal Counsel, or the Assistant Legal
Counsel, FOIA Programs, as appropriate, Equal Employment Opportunity
Commission, 131 M Street NE., Suite 5NW02E, Washington, DC 20507, and
clearly labeled as a ``Freedom of Information Act Appeal.'' Any appeal
of a determination issued by a District Director or the District
Director's designee must include a copy of the District Director's or
the District Director's designee's determination. If a FOIA appeal is
misdirected to a District Office, the District Office shall forward the
appeal to the Legal Counsel, or the Assistant Legal Counsel, FOIA
Programs, as appropriate, within 10 business days.
(b) The Legal Counsel or designee, or the Assistant Legal Counsel,
FOIA Programs, as appropriate, shall act upon the appeal within 20
business days of its receipt, and more rapidly if practicable. If the
decision is in favor of the person making the request, the decision
shall order that records be promptly made available to the person
making the request. The Legal Counsel or designee, or the Assistant
Legal Counsel, FOIA Programs, as appropriate, may extend the 20
business day period in which to render a decision on an appeal for that
period of time which could have been claimed and used by the Assistant
Legal Counsel, FOIA Programs, the District Director, or the District
Director's designee under Sec. 1610.9, but which was not in fact used
in making the original determination.
(c) The decision on appeal shall be in writing and signed by the
Legal Counsel or designee, or the Assistant Legal Counsel, FOIA
Programs, as appropriate. A denial in whole or in part of a request on
appeal shall set forth the exemption relied on, a brief
[[Page 53819]]
explanation of how the exemption applies to the records withheld, and
the reasons for asserting it, if different from those described by the
Assistant Legal Counsel, FOIA Programs, the District Director, or the
District Director's designee under Sec. 1610.9. The decision on appeal
shall indicate that the person making the request may, if dissatisfied
with the decision, file a civil action in the United States District
Court for the district in which the person resides or has his principal
place of business, for the district where the records reside, or for
the District of Columbia.
(d) No personal appearance, oral argument or hearing will
ordinarily be permitted in connection with an appeal to the Legal
Counsel or the Assistant Legal Counsel, FOIA Programs.
(e) On appeal, the Legal Counsel or designee, or the Assistant
Legal Counsel, FOIA Programs, as appropriate, may reduce any fees
previously assessed.
(f) In the event that the Commission terminates its proceedings on
a charge after the District Director or the District Director's
designee denies a request, in whole or in part, for the charge file but
during consideration of the requester's appeal from that denial, the
request may be remanded for redetermination. The requester retains a
right to appeal to the Assistant Legal Counsel, FOIA Programs, from the
decision on remand.
11. Revise Sec. 1610.13 to read as follows:
Sec. 1610.13 Maintenance of files.
The Legal Counsel or designee, the Assistant Legal Counsel, FOIA
Programs, and the District Directors or designees shall maintain files
containing all material required to be retained by or furnished to them
under this subpart. The material shall be filed by individual request.
12. Amend Sec. 1610.14 by revising paragraph (a) to read as
follows:
Sec. 1610.14 Waiver of user charges.
(a) Except as provided in paragraph (b) of this section, the Legal
Counsel or designee, the Assistant Legal Counsel, FOIA Programs, and
the District Directors or designees shall assess fees where applicable
in accordance with Sec. 1610.15 for search, review, and duplication of
records requested. They shall also have authority to furnish documents
without any charge or at a reduced charge if disclosure of the
information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government and is not primarily in the commercial
interest of the requester.
* * * * *
13. Amend Sec. 1610.15 by adding paragraph (g) to read as follows:
Sec. 1610.15 Schedule of fees and method of payment for services
rendered.
* * * * *
(g) A search fee will not be charged to requesters specified in
paragraphs (a)(1) and (a)(3) of this section, and a duplication fee
will not be charged to requesters specified in paragraph (a)(2) of this
section, if the Commission issues an untimely determination and the
untimeliness is not due to unusual or exceptional circumstances.
14. Amend Sec. 1610.18 by revising the introductory text and
adding paragraph (h) to read as follows:
Sec. 1610.18 Information to be disclosed.
The Commission will provide the following information to the
public. This information will also be made available electronically:
* * * * *
(h) Underlying annual FOIA report data.
15. Amend Sec. 1610.19 by removing paragraph (b)(2), redesignating
paragraph (b)(3) as paragraph (b)(2), and removing the word ``working''
wherever it appears in paragraphs (d) and (e) and add in its place the
word ``business.''
16. Remove and reserve Sec. 1610.20.
Sec. 1610.20 [Removed and Reserved]
17. Revise Sec. 1610.21 to read as follows:
Sec. 1610.21 Annual report.
The Legal Counsel shall, on or before February 1, submit individual
Freedom of Information Act reports for each principal agency FOIA
component and one for the entire agency covering the preceding fiscal
year to the Attorney General of the United States. The reports shall
include those matters required by 5 U.S.C. 552(e), and shall be made
available electronically on the agency Web site.
[FR Doc. 2012-21495 Filed 8-31-12; 8:45 am]
BILLING CODE 6570-01-P