[Federal Register Volume 82, Number 8 (Thursday, January 12, 2017)]
[Rules and Regulations]
[Pages 3619-3623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00178]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 15
[Docket No. FR-5986-F-01]
RIN 2501-AD81
Revision of Freedom of Information Act Regulation
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This final rule amends HUD's Freedom of Information Act (FOIA)
regulation to implement the FOIA Improvement Act of 2016. The FOIA
Improvement Act enacted a range of procedural issues, including
requirements that agencies establish a minimum of 90 days for
requesters to file an administrative appeal, and codifies the
foreseeable harm standard.
[[Page 3620]]
In addition, this final rule revises a section of HUD's FOIA
regulations to more accurately reflect statutory language.
DATES: Effective Date: February 13, 2017.
FOR FURTHER INFORMATION CONTACT: Helen Foster, Deputy Chief
Administrative Officer, Office of Administration, Department of Housing
and Urban Development, 451 7th Street SW., Room 10139, Washington, DC
20410-0500, telephone number 202-402-2671 (this is not a toll-free
number). Hearing- or speech-impaired individuals may access this number
via TTY by calling the toll-free Federal Relay Service at telephone
number 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
On June 30, 2016, the President signed into law the FOIA
Improvement Act of 2016 (2016 Act) (Pub. L. 114-185, 130 Stat. 538),
which contains several substantive and procedural amendments to the
Freedom of Information Act (FOIA). The 2016 Act addresses a range of
procedural issues, including requirements that agencies establish a
minimum of 90 days for requesters to file an administrative appeal, and
that agencies provide dispute resolution services at various times
throughout the FOIA process. The 2016 Act also codifies a ``foreseeable
harm'' standard, amends Exemption 5 to the FOIA, creates a new Chief
FOIA Officer Council within the Executive Branch, and adds two new
elements to agency Annual FOIA Reports. The amendments apply to any
request made after the date of enactment, which was June 30, 2016.
Section 3 of the 2016 Act requires agencies to review and issue
updated regulations on procedures for the disclosure of records under
the FOIA, in accordance with the amendments made by the 2016 Act,
within 180 days of enactment. Accordingly, HUD revises its FOIA
regulation to incorporate changes enacted by the 2016 Act.
II. Changes Made in This Final Rule
The following is an overview of the changes made in this final
rule.
Section 15.101 Proactive Disclosures of Department Records
The 2016 Act requires agencies to ``make available for public
inspection in an electronic format'' records that, because of their
subject matter, the agency determines ``have become or are likely to
become the subject of subsequent requests for substantially the same
records,'' or that have been requested 3 or more times. In response,
HUD is amending Sec. Sec. 15.101(a) and 15.101(b)(7) to comply with
this requirement. The revisions mirror the language from the 2016 Act.
The 2016 Act also adds agency reporting requirements for agencies'
annual FOIA reports. The 2016 Act requires that a report covering the
preceding fiscal year is to be submitted to the Attorney General of the
United States and to the Director of the Office of Government
Information Services (OGIS). The raw statistical data used in each
report must be made available without charge, license, or registration
requirement; in an aggregated, searchable format, and in a format that
may be downloaded in bulk. Both the report and the raw statistical data
used in the report must be made available for public inspection in an
electronic format. In response to this requirement, HUD is adding Sec.
15.101(b)(8) in conformance with these new reporting requirements.
Section 15.103 Timing of Responses to Requests
When a FOIA request involves ``unusual circumstances,'' agencies
have long been required to provide written notice to the requester, and
in those instances where an extension of time of more than ten working
days is specified, agencies have been required to provide the requester
with an opportunity to limit the scope of the request so that it can be
processed more quickly or to arrange an alternative time to respond.
The 2016 Act adds an additional requirement when unusual circumstances
exist. Specifically, whenever agencies extend the time limits by more
than ten additional working days, in the written notice to the
requester they must notify the requester of their right to seek dispute
resolution services from the OGIS. To address this requirement, HUD is
revising Sec. 15.103(c) to incorporate the change enacted by the 2016
Act.
HUD is also using this final rule to update several specific
provisions of Sec. 15.103 to more accurately reflect the statutory
language in 5 U.S.C. 552(a)(6)(A)(i). First, HUD is revising Sec.
15.103(a) to state that HUD will generally ``make a determination
whether to comply with a FOIA request within 20 working days.'' Second,
HUD is revising Sec. 15.103(c), which addresses when HUD may extend
the time periods for processing a FOIA request, to remove the sentence
that limited extensions to 10 working days. HUD is removing this
language as inconsistent with the plain reading of the statute, the
logic of the rest of the language in Sec. 15.103(c), and Department of
Justice guidance. Finally, in accordance with 5 U.S.C.
552(a)(6)(B)(ii), HUD has updated Sec. 15.103(c) to include the
provision that HUD shall make available its FOIA Public Liaison, who
shall assist in the resolution of any disputes between the requester
and HUD.
Section 15.105 Responses to Requests
When an agency makes a determination regarding whether to comply
with a FOIA request, the 2016 Act provides that the agency is required
to immediately notify the requester of such determination and the
reasons therefore, and also notify the requester that they have a right
to seek assistance from the agency's FOIA Public Liaison. For adverse
determinations, the 2016 Act requires that agencies afford the
requester no less than 90 days from the date of the adverse
determination on the request to file an appeal. In addition, the 2016
Act requires that agencies notify the requester that they may seek
dispute resolution services from the FOIA Public Liaison or from OGIS.
Consistent with this requirement, HUD has revised Sec. 15.105(d)
to provide that, once HUD makes a determination regarding compliance
within the time line provided in Sec. 15.103(a), HUD will immediately
notify the requester of such determination, the reasons therefore, and
their right to seek assistance from the FOIA Public Liaison.
For adverse determinations, HUD has added Sec. 15.105(d)(2)(iv) to
provide that HUD will notify the requester of their right to file an
appeal no less than 90 days after the date of receiving the adverse
determination. Finally, Sec. 15.105(d)(2)(v) has been added to provide
that HUD will notify the requester of their right to seek dispute
resolution services from the FOIA Public Liaison or from OGIS.
Section 15.106 Fees
The 2016 Act contains several new provisions regarding agencies'
ability to assess search and duplication fees. First, the 2016 Act
provides that an agency shall not assess any search fees, or in some
cases, duplication fees, if the agency has failed to comply with any
time limit described in Sec. 15.103, with limited exceptions. Second,
if an agency determines that unusual circumstances apply to the
processing of a FOIA request, and the agency has provided timely
written notice to the requester, then a delayed response time is
excused for an additional ten days; if the agency fails to comply with
the extended time limit, it may not charge search fees, or, in some
cases, duplication fees, with limited exceptions. Third, the 2016 Act
[[Page 3621]]
provides an exception allowing agencies to charge search fees, or in
some cases, duplication fees, if unusual circumstances apply, more than
5,000 pages are necessary to respond to the request, timely written
notice has been made to the requester, and the agency has discussed
with the requester via written mail, electronic mail, or telephone (or
made not less than 3 good-faith attempts to do so) how the requester
could effectively limit the scope of the request. Fourth, the 2016 Act
maintains that if a court determines that ``exceptional circumstances''
exist, as defined in 5 U.S.C. 552(a)(6)(C), the agency's failure to
comply with a time limit ``shall be excused for the length of time
provided by the court order.''
In accordance with the first change, HUD is updating Sec.
15.106(d) to provide that HUD will not assess search fees or, for
requesters that are educational or noncommercial scientific
institutions or representatives of the news media requesting records
not sought for commercial use, duplication fees, if it fails to comply
with the extended time limits as described in Sec. 15.103. To comply
with the second change, HUD is adding Sec. 15.106(d)(5) to grant HUD
an additional ten days when unusual circumstances apply and timely
written notice has been provided to the requester and to terminate
HUD's ability to assess search fees or duplication fees, as applicable,
if HUD does not comply with the additional ten days. Regarding the
third change, HUD is adding Sec. 15.106(d)(6) to allow HUD to charge
search fees when unusual circumstances apply and more than 5,000 pages
are necessary to respond to the FOIA request. Regarding the fourth
amendment, HUD is adding Sec. 15.106(d)(7)(i) to excuse a failure to
comply with any time limit if a court determines that exceptional
circumstances exist; and Sec. 15.106(d)(7)(ii), which provides the
definition of ``exceptional circumstances'' as defined in 5 U.S.C.
552(a)(6)(C), has also been added for clarifying purposes.
Section 15.107 Documents Generally Protected From Disclosure
The 2016 Act requires that agencies withhold information under FOIA
``only if the agency reasonably foresees that disclosure would harm an
interest protected by an exemption'' or if disclosure is prohibited by
law. The 2016 Act further directs agencies to consider whether partial
disclosure of information is possible whenever the agency determines
that a full disclosure of a requested record is not possible, and to
take reasonable steps necessary to segregate and release nonexempt
information. The 2016 Act does not require disclosure of information
that is otherwise prohibited from disclosure by law, or otherwise
exempted from disclosure under Exemption 3.
Consistent with these changes, HUD is restructuring Sec. 15.107
and adding paragraph (a) to provide that HUD shall withhold information
only if it is reasonably foreseeable that disclosure would harm an
interest protected by an exemption, or if disclosure is prohibited by
law. Paragraph (a) also emphasizes that HUD will consider whether
partial disclosure of information is possible if it determines that a
full disclosure of a requested record is not possible, and that HUD
will take reasonable steps necessary to segregate and release nonexempt
information.
In addition, the 2016 Act sunsets the deliberative process
privilege, as protected from disclosure under Exemption 5 of the FOIA.
Specifically, the 2016 Act amends Exemption 5 to provide that the
deliberative process privilege does not apply to records created 25
years or more before the date on which the records were requested. In
accordance with the 2016 Act, HUD is revising Sec. 15.107(b)(5) to
state that the deliberative process privilege ``shall not apply to
records created 25 years or more before the date on which the records
were requested.''
III. Justification for Final Rulemaking
In general, HUD publishes a rule for public comment before issuing
a rule for effect, in accordance with HUD's regulations on rulemaking
at 24 CFR part 10. Part 10, however, provides in Sec. 10.1 for
exceptions from that general rule where HUD finds good cause to omit
advance notice and public participation. The good cause requirement is
satisfied when the prior public procedure is ``impracticable,
unnecessary or contrary to the public interest.''
HUD finds that good cause exists to publish this rule for effect
without first soliciting public comment because prior public comment is
unnecessary. This final rule follows the statutory directive in Section
3 of the 2016 Act, which requires agencies to review and issue updated
regulations on procedures for the disclosure of records under the FOIA,
in accordance with the amendments made by the 2016 Act, within 180 days
of enactment. The 2016 Act codifies a number of transparency and
openness principles and enacts a number of procedural requirements,
including requiring that agencies establish a minimum of 90 days for
requesters to file an administrative appeal and that they provide
dispute resolution services at various times throughout the FOIA
process. This final rule reflects the changes required by the 2016 Act.
Finally, the rule revises provisions Sec. 15.103 to more accurately
reflect the statutory language in 5 U.S.C. 552(a)(6)(A)(i).
IV. Findings and Certifications
Executive Order 12866 and Executive Order 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if the
regulation is necessary, to select the regulatory approach that
maximizes net benefits. Because this final rule incorporates changes
enacted by the 2016 Act, this rule was determined to not be a
significant regulatory action under section 3(f) of Executive Order
12866, Regulatory Planning and Review, and therefore was not reviewed
by OMB.
Environmental Impact
This rule is categorically excluded from environmental review under
the National Environmental Policy Act (42 U.S.C. 4321). The revision of
the FOIA-related provisions of 24 CFR part 15 falls within the
exclusion provided by 24 CFR 50.19(c)(1), in that it does not direct,
provide for assistance or loan and mortgage insurance for, or otherwise
govern or regulate, real property acquisition, disposition, leasing,
rehabilitation, alteration, demolition, or new construction, or
establish, revise, or provide for standards for construction or
construction materials, manufactured housing, or occupancy.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements, unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
This final rule establishes procedures by which HUD will respond to
requests for information under FOIA. Costs assessed by HUD for search,
review, and duplication required to process the information requested
by a requester are limited by FOIA to direct costs and are not
significant. Accordingly, the undersigned certifies that this rule will
not have a significant economic impact on a substantial number of small
entities.
[[Page 3622]]
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either imposes substantial direct compliance costs on state and local
governments and is not required by statute, or the rule preempts state
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. This final rule does not have
federalism implications and does not impose substantial direct
compliance costs on state and local governments or preempt state law
within the meaning of the Executive Order.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments, and on the private sector. This final rule does not impose
any federal mandates on any state, local, or tribal governments, or on
the private sector, within the meaning of the Unfunded Mandates Reform
Act of 1995.
List of Subjects in 24 CFR Part 15
Classified information, Courts, Freedom of information, Government
employees, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, HUD amends 24 CFR part 15
as follows:
PART 15--PUBLIC ACCESS TO HUD RECORDS UNDER THE FREEDOM OF
INFORMATION ACT AND TESTIMONY AND PRODUCTION OF INFORMATION BY HUD
EMPLOYEES
0
1. The authority for 24 CFR part 15 is revised to read as follows:
Authority: 42 U.S.C. 3535(d), 5 U.S.C. 552.
0
2. Amend Sec. 15.101 by removing in paragraph (a) ``and copying'' and
adding in its place ``in an electronic format'', and by adding
paragraphs (b)(7) and (b)(8), to read as follows:
Sec. 15.101 Proactive disclosures of departmental records.
* * * * *
(b) * * *
(7) Copies of all records, regardless of form or format that have
been released to any person under Sec. 15.105; and
(i) Because of the nature of their subject matter, the agency
determines that the records have become or are likely to become the
subject of subsequent requests for substantially the same records; or
(ii) Have been requested three or more times.
(8) Report for the preceding fiscal year submitted to the U.S.
Attorney General and the Director of the Office of Government
Information Services (OGIS) as required by 5 U.S.C. 552(e) and the raw
statistical data used in each report. This report will be made
available:
(i) Without charge, license, or registration requirement;
(ii) In an aggregated, searchable format; and
(iii) In a format that may be downloaded in bulk.
* * * * *
0
3. In Sec. 15.103, amend paragraph (a) by removing ``respond to'' and
adding in its place ``make a determination whether to comply with'',
and revise paragraph (c) introductory text, to read as follows:
Sec. 15.103 Timing of responses to requests.
* * * * *
(c) Extension of time periods for processing a request. In unusual
circumstances, as defined in this paragraph, HUD may extend the time
period for processing a FOIA request. In such circumstances, HUD will
provide the requester with written notice setting forth the unusual
circumstances for the extension and the date on which a determination
is expected to be dispatched. If processing a request would require
more than 10 working days beyond the general time limit established in
paragraph (a) of this section, HUD will offer the requester an
opportunity to limit the scope of the request so that HUD may process
it within the extra 10-day working period or arrange an alternative
time period within which the FOIA request will be processed. To aid the
requester, HUD shall make available its FOIA Public Liaison, who shall
assist in the resolution of any disputes between the requester and HUD,
and notify the requester of the right of the requester to seek dispute
resolution services from the Office of Government Information Services.
For purposes of this section, unusual circumstances include:
* * * * *
Sec. 15.104 [Amended]
0
4. Amend paragraph (b) by adding ``the'' between ``contacting'' and
``FOIA''.
0
5. Amend Sec. 15.105 as follows:
0
a. Add paragraph (d) introductory text;
0
b. In paragraph (d)(1) remove ``Once'' and replace it with ``If ''.
0
c. Redesignate paragraph (d)(2)(iv) as (d)(2)(vi); and
0
d. Add paragraphs (d)(2)(iv) and (v).
Revisions and additions to read as follows:
Sec. 15.105 Responses to requests.
* * * * *
(d) Forms of response. Once HUD makes a determination regarding
whether to comply with a request pursuant to time limits established in
Sec. 15.103(a), HUD shall immediately notify the requester of such
determination and the reasons therefor, and the requester's right to
seek assistance from the FOIA Public Liaison.
* * * * *
(2) * * *
(iv) Notice of the right of the requester to appeal to the head of
the agency, within a period determined by the head of the agency that
is not less than 90 days after the date of such adverse determination;
and
(v) Notice of the right of the requester to seek dispute resolution
services from the FOIA Public Liaison of the agency or the Office of
Government Information Services; and
* * * * *
0
6. In Sec. 15.106 revise paragraph (d)(1) and add paragraphs (d)(5),
(6) and (7) to read as follows:
Sec. 15.106 Fees.
* * * * *
(d) Restrictions on charging fees. (1) No search fee will be
charged for requests by educational institutions, noncommercial
scientific institutions, or representatives of the news media. In
addition, except as provided in paragraphs (d)(5), (d)(6), and (d)(7)
of this section, HUD shall not assess any search fees (or, for
requesters that are educational institutions, noncommercial scientific
institutions or representatives of the news media requesting records
not sought for commercial use, duplication fees) if HUD has failed to
comply with any time limit described in Sec. 15.103.
* * * * *
(5) If HUD determines that unusual circumstances apply and HUD
provides timely written notice to the requester pursuant to
requirements provided in Sec. 15.103(c), a failure to comply with any
time limit as described in Sec. 15.103 is excused for an additional 10
days. If HUD fails to comply with the extended time limit, HUD may not
assess any search fees (or for requesters that are educational or
noncommercial scientific institutions or representatives of the news
media requesting records not sought for commercial use, duplication
fees).
[[Page 3623]]
(6) If unusual circumstances apply and more than 5000 pages are
necessary to respond to the request, HUD may charge search fees or, for
requesters that are educational or noncommercial scientific
institutions or representatives of the news media requesting records
not sought for commercial use, duplication fees, if timely written
notice has been made to the requester pursuant to requirements provided
in Sec. 15.103(c) and HUD has discussed with the requester through
written mail, electronic mail, or telephone (or made not less than 3
good-faith attempts to do so) how the requester could effectively limit
the scope of the request as stipulated in Sec. 15.103(c).
(7)(i) If a court has determined that exceptional circumstances
exist, a failure to comply with any time limit as described in Sec.
15.103 shall be excused for the length of time provided by the court
order.
(ii) For purposes of this section, the term ``exceptional
circumstances'' does not include a delay that results from a
predictable workload of requests, unless HUD demonstrates reasonable
progress in reducing its backlog of pending requests. However, refusal
by the requester to reasonably modify the scope of a request or arrange
an alternative time frame for processing a request (or a modified
request) after HUD gives them an opportunity to do so shall be
considered a factor in determining whether exceptional circumstances
exist.
* * * * *
0
7. Amend Sec. 15.107 as follows:
0
a. Remove paragraph (b);
0
b. Redesignate the introductory text as new paragraph (b);
0
c. Revise paragraph (a);
0
d. Redesignate paragraphs (c) through (i) as (b)(1) through (b)(9),
respectively, and
0
e. Revise redesignated paragraph (b)(5);
Revisions and addition to read as follows:
Sec. 15.107 Documents generally protected from disclosure.
(a) HUD shall withhold information only if HUD reasonably foresees
that disclosure would harm an interest protected by an exemption as
provided in paragraph (b) of this section, or disclosure is prohibited
by law. HUD will consider whether partial disclosure of information is
possible whenever HUD determines that a full disclosure of a requested
record is not possible, and will take reasonable steps necessary to
segregate and release nonexempt information. Nothing in this section
requires disclosure of information that is otherwise prohibited from
disclosure by law, or otherwise exempted from disclosure as provided in
paragraph (b)(3) of this section.
* * * * *
(b) * * *
(5) Certain interagency or intra-agency communications. Exemption 5
(5 U.S.C. 552(b)(5)) protects interagency or intra-agency
communications that are protected by legal privileges, such as the
attorney-client privilege, attorney work-product privilege, or
communications reflecting the agency's deliberative process. The
deliberative process privilege shall not apply to records created 25
years or more before the date on which the records were requested.
* * * * *
Dated: December 27, 2016.
Nani A. Coloretti,
Deputy Secretary.
[FR Doc. 2017-00178 Filed 1-11-17; 8:45 am]
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