[Federal Register Volume 83, Number 35 (Wednesday, February 21, 2018)]
[Rules and Regulations]
[Pages 7388-7394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03400]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 2002
[Docket No. FR-6048-F-01]
Streamlining the Office of Inspector General's Freedom of
Information Act Regulations and Implementing the FOIA Improvement Act
of 2016
AGENCY: Office of Inspector General, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the Freedom of Information Act (FOIA)
regulations for the U.S. Department of Housing and Urban Development
(HUD) Office of Inspector General (OIG) to align with HUD's FOIA
regulations, to implement the FOIA Improvement Act of 2016, and to
explain current OIG policies and practices with respect to FOIA.
DATES: Effective: March 23, 2018.
FOR FURTHER INFORMATION CONTACT: Maura Malone; Deputy Counsel to the
Inspector General; Department of Housing and Urban Development; 451
Seventh Street SW, Room 8260, Washington, DC 20410; 202-708-1613 (this
is not a toll-free number). Persons with hearing or speech impairments
may access this number through TTY by calling the Federal Relay Service
at 800-877-8339 (this is a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Background
In July 1967, HUD issued regulations at 24 CFR part 15 containing
the policies and procedures governing public access to HUD records
under the Freedom of Information Act (FOIA) (5 U.S.C. 552) (Pub. L. 89-
487, approved July 4, 1966). The Inspector General Act of 1978 (5
U.S.C. App. 3) was enacted to ``create independent and objective
units'' to perform investigative and monitoring functions within
Executive agencies of the Federal Government, including HUD. HUD's
regulations regarding public access to HUD records under the FOIA are
at 24 CFR part 15. To further its independence, OIG officials, as
opposed to HUD officials, make determinations concerning the release of
OIG records. In 1984, the HUD OIG published 24 CFR part 2002, which
explains the procedures for requesting information from the OIG under
the FOIA. Part 2002 cross referenced several of HUD's regulations at 24
CFR part 15. The OIG last amended its FOIA regulations in July 2002 (67
FR 47216). Subsequently, HUD made several changes to its FOIA
regulation, which has affected some of the regulations referenced in
part 2002 (80 FR 49140).
On June 30, 2016, the President signed into law the FOIA
Improvement Act of 2016 (2016 Act) (Pub. L. 114-185). 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 a FOIA disclosure
exemption, 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. The 2016 Act also requires agencies to review and issue
updated regulations on procedures for the disclosure of records under
FOIA, in accordance with the amendments made by the 2016 Act. On
January 12, 2017, HUD issued a direct final rule amending its FOIA
regulation to reflect the 2016 Act amendments (82 FR 3619).
II. Changes Made in This Final Rule
In this final rule, the HUD OIG seeks to amend its FOIA regulations
to address the 2016 Act changes, conform its regulations with HUD's,
and simplify its regulations to make the process clearer to the
requesting public. The following is an overview of nontechnical changes
made in this final rule:
Section 2002.3 OIG's Overall Policy Concerning Disclosable Records
The OIG adds the title and contact information for the FOIA Public
Liaison that is available to answer questions for FOIA requesters, as
required by the 2016 Act.
Section 2002.5 How To Make a Request for OIG Records; Records Produced
This section is updated to provide for requests to be made in
writing, which aligns with HUD's FOIA regulations, and provides that
such requests may be made using the OIG public website. The regulations
also reflect the requirement that the requestor, when requesting
records on themselves, may be required to identify themselves when
making a request or such a request may be found insufficient and
closed. Lastly, the OIG also clarifies that for purposes of reasonably
describing a record, a more specific FOIA request will likely result in
the OIG locating the records requested. The OIG notes that a request
for ``any and all'' records over an
[[Page 7389]]
extended period of time may be rejected for not reasonably describing
the record.
Section 2002.7 OIG Processing of Requests, Multi-Tracking, and
Expedited Processing
This rule provides the tracking process for requests that qualify
as unusual circumstance under the definition at 5 U.S.C.
552(a)(6)(B)(iii). In adding the definition, the OIG adds an example of
audit work papers under the definition of ``unusual circumstances'' to
clarify that requests for audit work papers usually qualify as unusual
circumstances and take longer than 20 working days to process because
work papers related to an audit, if it is accepted for processing as a
proper request, generally take weeks or months to process.
Section 2002.9 Proactive Disclosures of 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. The 2016 Act
also adds new reporting requirements for agencies by requiring that
agencies submit an Annual FOIA Report, which covers the preceding
fiscal year, to be submitted to the Director of the Office of
Government Information Services.\1\ 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, the OIG is amending
Sec. 2002.9 to comply with these requirements.
---------------------------------------------------------------------------
\1\ Under FOIA, agencies are also required to submit an Annual
FOIA Report to the Attorney General of the United States (5 U.S.C.
552(e)(1)).
---------------------------------------------------------------------------
Section 2002.13 Fee Schedule, Advance Payment, Interest Charges, and
Waiving or Reducing Fees
This rule amends Sec. 2002.13 to adopt HUD's fee schedule and
policies in their entirety through cross-reference to HUD's FOIA
regulation at Sec. 15.106. Incorporated in HUD's regulations are the
2016 Act 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 at 5 U.S.C.
552(a)(6), which are set out in OIG's FOIA regulations at Sec.
2002.15, 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 10 days; however, 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 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 three 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.''
As for the definition of ``commercial requesters'' adopted from
HUD's regulation, the OIG clarifies that as a policy, it will treat
owners of websites that contain advertisements, or that charge fees in
any way, to be ``commercial requesters,'' if they do not use editorial
skills to turn the posted materials into a distinct work, or provide
significant editorial comments. Owners of websites that do not contain
advertisements, but that post requested documents without altering such
documents or providing editorial comments, will be considered ``other
requesters,'' unless the websites are used to advertise or publicize
the skills or expertise of the owners.
This rule also removes OIG's existing FOIA regulations at Sec.
2002.13 because the collecting of interest charges on any unpaid bills
is consistent with HUD's FOIA regulations at Sec. 15.106(g).
Section 2002.15 Time Limitations
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 10 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 that when unusual
circumstances exist and an agency extends the time limits by more than
10 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 FOIA Public Liaison of the agency or the Office of
Government Information Services. To address this requirement, the OIG
is revising Sec. 2002.15 to incorporate the change enacted by the 2016
Act.
The OIG is also using this final rule to update several specific
provisions of Sec. 2002.15 to more accurately reflect the statutory
language in 5 U.S.C. 552(a)(6)(A)(i). First, the OIG is amending Sec.
2002.15(a) to state that OIG will generally ``make a determination
whether to comply with a FOIA request within 20 working days.'' Second,
the OIG is amending the provision that addresses when OIG may extend
the time periods for processing a FOIA request, to remove the sentence
that limits extensions to 10 working days. The OIG is removing this
language as inconsistent with the plain reading of the statute, the
logic of the rest of the language in Sec. 2002.15, and Department of
Justice guidance.\2\ Finally, in accordance with 5 U.S.C.
552(a)(6)(B)(ii), the OIG is updating Sec. 2002.15 to include the
provision that the OIG shall make available its FOIA Public Liaison,
who shall assist in the resolution of any disputes between the
requester and the OIG.
---------------------------------------------------------------------------
\2\ See Department of Justice Guide to the Freedom of
Information Act, https://www.justice.gov/oip/doj-guide-freedom-information-act-0.
---------------------------------------------------------------------------
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 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 the
Office of Government Information Services. Consistent with this
requirement, the OIG has revised Sec. 2002.15 to provide that, once
OIG makes a determination regarding compliance, the OIG will
[[Page 7390]]
immediately notify the requester of such determination, the reasons
therefore, and their right to seek assistance from the FOIA Public
Liaison.
Section 2002.19 Authority To Deny Requests for Records and Form of
Denial, Exemptions, and Exclusions
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, the OIG is amending Sec. 2002.19 to
provide that the OIG 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. The OIG will
also consider whether partial disclosure of information is possible if
it determines that a full disclosure of a requested record is not
possible and will take reasonable steps necessary to segregate and
release nonexempt information.
In addition, the 2016 Act amends Exemption 5 of FOIA 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, the OIG is revising Sec.
2002.19 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.''
For adverse determinations, the OIG is amending Sec. 2002.19 to
provide that the OIG 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, the OIG is amending Sec. 2002.19 to provide
that the OIG will notify the requester of their right to seek dispute
resolution services from the FOIA Public Liaison or from the Office of
Government Information Services.
Section 2002.23 Administrative Review
The OIG amends Sec. 2002.23, consistent with the 2016 Act to
provide that the OIG will notify requesters of dispute resolution
services in its FOIA appeal determination response letter and that they
have 90 days to seek an appeal. The OIG is also amending Sec. 2002.23
to clarify that appeals may be submitted electronically and lists the
items that a requestor should include in an appeal, such as a copy of
the original request and the written denial.
III. Justification for Final Rulemaking
In general, OIG publishes a rule for public comment before issuing
a rule for effect, in accordance with OIG's regulations on rulemaking
at 24 CFR part 10. Section 10.1, however, provides an exception from
that general rule where OIG 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.''
The OIG 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 FOIA, in accordance with the amendments made by the 2016 Act. 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 FOIA process. This final rule reflects the
changes required by the 2016 Act. Additionally, this final rule makes
technical amendments to align the OIG's FOIA regulation with HUD's FOIA
regulation at 24 CFR part 15 and clarifies current OIG FOIA procedures
to streamline and simplify the process of filing FOIA requests.
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. This final rule incorporates changes enacted by
the 2016 Act and makes other minor procedural changes that align this
OIG regulation to HUD's FOIA regulation at 24 CFR part 15. As a result,
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 Review
This final rule is categorically excluded from environmental review
under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
The revision of the FOIA-related provisions of 24 CFR part 2002 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 Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this final rule before publication and by
approving it certifies that this rule does not have a significant
economic impact on a substantial number of small entities. This final
rule contains no anti-competitive discriminatory aspects with regard to
small entities nor are there any unusual procedures that would need to
be complied with by small entities.
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an
agency, to the extent practicable and permitted by law, from
promulgating a regulation that has federalism implications and either
imposes substantial direct compliance costs on State and local
governments and is not required by statute, or preempts State law,
unless the agency meets the relevant 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 Reform Act
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 the private sector. This final rule does not impose any
Federal mandates on any State, local, or tribal governments or the
private sector within the meaning of the
[[Page 7391]]
Unfunded Mandates Reform Act of 1995.
List of Subjects in 24 CFR Part 2002
Release of information under the Freedom of Information Act.
0
Accordingly, for the reasons stated above, OIG revises 24 CFR part 2002
to read as follows:
PART 2002--AVAILABILITY OF INFORMATION TO THE PUBLIC
Sec.
2002.1 Scope of this part and applicability of other HUD
regulations.
2002.3 OIG's overall policy concerning disclosable records and
requests for OIG records.
2002.5 How to make a request for OIG records; records produced.
2002.7 OIG processing of requests, multi-tracking, and expedited
processing.
2002.9 Proactive disclosures of records.
2002.11 Agency review of records and aggregating requests.
2002.13 Fee schedule, advance payment, and waiving or reducing fees.
2002.15 Time limitations.
2002.17 Authority to release records or duplications.
2002.19 Authority to deny requests for records and form of denial,
exemptions, and exclusions.
2002.21 Effect of denial of request.
2002.23 Administrative review.
Authority: 5 U.S.C. 552; 5 U.S.C. App. 3; 42 U.S.C. 3535(d);
Delegation of Authority, 46 FR 2389.
Sec. 2002.1 Scope of this part and applicability of other HUD
regulations.
(a) General. This part contains the regulations of the Office of
Inspector General (OIG) that implement the Freedom of Information Act
(FOIA) (5 U.S.C. 552). It informs the public how to request records and
information from the OIG and explains the procedure to use if a request
is denied. Requests made by individuals for records about themselves
under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in
accordance with 24 CFR part 2003 as well as this part. Requests for
documents made by subpoena or other demands of courts or other
authorities are governed by procedures contained in part 2004 of this
chapter. These rules should be read in conjunction with the text of the
FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines
published by the Office of Management and Budget. This policy does not
create any right enforceable in court.
(b) Applicability of HUD's FOIA regulations. In addition to the
regulations in this part, Sec. Sec. 15.2 and 15.106 of this title
apply to the production or disclosure of information in the possession
of the OIG, except as limited in paragraph (c) of this section or
otherwise expressly stated in this part.
(c) Limited applicability of Sec. Sec. 15.2 and 15.106 of this
title. The OIG has different people and entities involved in the FOIA
process than those defined in Sec. 15.2 and these people and entities
are specifically identified in this part. For purposes of this part,
when the words ``HUD'' or ``Department'' are used in Sec. 15.2 or
Sec. 15.106, the term means the OIG. The OIG will follow the fee
schedule at Sec. 15.106 except as otherwise provided in this part.
Where Sec. 15.106 references Sec. 15.103, the OIG reference in this
part is Sec. 2002.15.
Sec. 2002.3 OIG's overall policy concerning disclosable records.
(a) The OIG will administer its FOIA program with a presumption of
openness. This policy does not create any right enforceable in court.
The OIG will fully and responsibly disclose its identifiable records
and information consistent with competing public interests, such as
national security, personal privacy, grand jury and investigative
secrecy, complainant confidentiality, and agency deliberative process,
as are recognized by FOIA and other Federal statutes. The OIG will
apply the FOIA exemptions if release could foreseeably harm an interest
protected by a FOIA exemption. Release of records will be made as
promptly as possible.
(b) The OIG FOIA Public Liaison is the Deputy Counsel to the
Inspector General. Requesters who have questions or comments concerning
their FOIA request may contact the FOIA Public Liaison at 202-708-1613,
or through the FOIA email at [email protected].
Sec. 2002.5 How to make a request for OIG records; records produced.
(a) Any request for OIG records must be made in writing. The
easiest way to make a FOIA request is electronically through our public
website at www.hudoig.gov. A request may also be made by submitting the
written request to The Office of Inspector General; Department of
Housing and Urban Development; 451 Seventh Street SW, Suite 8260,
Washington, DC 20410. The envelope should indicate it is a FOIA
request. A request for OIG records may also be made in person during
normal business hours at any office where OIG employees are permanently
stationed.
(b) Each request must reasonably describe the desired record,
including the title or name, author, subject matter, and number or
date, where possible, so that the record may be identified and located.
The more specific the FOIA request for records, the more likely OIG
officials will be able to locate the records requested. The request
should also include the name, address and telephone number of the
requester, the fee category that the requester believes applies to the
request, and the form or format in which the requester would like the
desired record to be reproduced, if the requester has a preference. In
order to enable the OIG to comply with the time limitations set forth
in Sec. 2002.15, both the envelope containing a written request and
the letter itself should clearly indicate that the subject is a Freedom
of Information Act request.
(c) The request must be accompanied by the fee or an offer to pay
the fee as determined in Sec. 15.106 of this title and Sec. 2002.13.
(d) The OIG may require information verifying the requester's
identity, if the requester requests agency records pertaining to the
requester, a minor, or an individual who is legally incompetent.
Failure to provide the information when requested will result in the
request being found insufficient and closed. It will not prevent the
future refiling of the request.
(e) Duplication of available records will be made as promptly as
possible. Such duplication can take the form of paper copy, audiovisual
materials, or machine-readable documentation (e.g., electronic
documents on CD, DVD, flash drive, etc.). Records that are published or
available for sale will not be reproduced.
(f) The OIG shall honor a requester's specified preference of form
or format of disclosure if the record is readily reproducible with
reasonable efforts in the requested form or format by the office
responding to the request.
(g) If the requester makes a request for expedited processing, the
request must provide a detailed explanation of the basis for the
request. The requester should also include a statement certifying the
truth of the circumstances supporting the requester's compelling need.
Requests for expedited processing that simply recite the statutory
language are generally not granted.
Sec. 2002.7 OIG processing of requests, multi-tracking, and expedited
processing.
(a) Tracking number. FOIA requests will be logged in the order that
they are received and be assigned a tracking number, except as provided
in paragraph (c) of this section. A requester should use the tracking
number to identify his or her request when contacting the FOIA office
for any reason. An acknowledgement of receipt of the request, with the
assigned
[[Page 7392]]
tracking number, will be sent to the requester by the FOIA office.
(b) Multi-track processing--(1) Types of tracks. For requests that
do not qualify for expedited processing, the OIG places each request in
one of two tracks, simple or complex, based on the amount of work and
time involved in processing the request. In doing so, the OIG will
consider whether the request involves the processing of voluminous
documents or responsive documents from more than one organizational
unit. Within each track, the OIG processes requests in the order in
which they are received.
(2) Unusual circumstances. Requests for audit work papers are
considered complex requests and generally qualify as an unusual
circumstance under 5 U.S.C. 552(a)(6)(B)(iii), taking longer than 20
working days to process. Requests for ``all'' specified records over a
span of time, if they are accepted as reasonably describing a specific
group of records, are considered complex requests and usually qualify
as an unusual circumstance under 5 U.S.C. 552(a)(6)(B)(iii), taking
longer than 20 working days to process. Requesters who make requests
qualifying as unusual circumstances will be offered an opportunity to
narrow the scope of their request or arrange for an alternative time
period.
(3) Misdirected requests. For requests that have been sent to the
wrong office, the OIG will assign the request within each track using
the earlier of either:
(i) The date on which the request was referred to the appropriate
office; or
(ii) The end of the 10 working-day period in which the request
should have been referred to the appropriate office.
(c) Expedited processing. (1) The OIG may take your request or
appeal out of normal order if the OIG determines that you have a
compelling need for the records or in other cases as determined by the
OIG. Any requester may ask for expedited processing at any time. If
expedited processing is requested, the OIG will notify the requester
within 10 working days whether it will grant expedited processing.
(2) The OIG will grant requests for expedited processing if it
finds a compelling need under 5 U.S.C. 552(a)(6)(E). Evidence of a
compelling need by a person making a request for expedited processing
must be made in a statement certified by such person to be true and
correct to the best of such person's knowledge and belief. A compelling
need exists if:
(i) Your failure to obtain the requested records on an expedited
basis could reasonably be expected to pose an imminent threat to the
life or physical safety of an individual;
(ii) You are primarily engaged in disseminating information and
there is an urgency to inform the public concerning actual or alleged
Federal Government activity; or
(iii) Your failure to obtain the requested records on an expedited
basis could result in the loss of substantial due process rights.
(3) If the OIG grants the request for expedited processing, the OIG
will give the request priority and will process it as soon as
practicable.
Sec. 2002.9 Proactive disclosures of records.
(a) You may review records that section 552(a)(2) of FOIA requires
the OIG to make available to the public in the electronic reading rooms
identified in paragraph (b) of this section. That is the preferable
method; however, you may also ask to review those documents that are in
hardcopy at the Headquarters offices at HUD's Library, 451 Seventh
Street SW, Suite 8141, Washington, DC 20410. This request should be
coordinated through Office of Legal Counsel, Office of Inspector
General, Suite 8254. Local offices may coordinate local requests for
hardcopy reviews.
(b) As required by 5 U.S.C. 552(a)(2), the OIG makes records
created on or after November 1, 1996, available through its Electronic
FOIA Reading Room, located at https://www.hudoig.gov/foia. These
records include:
(1) Copies of all records, regardless of form or format that have
been released to any person under this part: 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.
(2) Report for the preceding fiscal year submitted to the U.S.
Attorney General and the Director of the Office of Government
Information Services 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.
(c) The OIG also makes other documents, such as audits and
semiannual reports, available to the public at https://www.hudoig.gov/.
Sec. 2002.11 Agency review of records and aggregating requests.
(a) Review of records. Only requesters who are seeking documents
for commercial use may be charged for the time the OIG spends reviewing
records to determine whether the records are exempt from mandatory
disclosure. Charges will be assessed only for the initial review; i.e.,
the review undertaken the first time the OIG reviews a particular
record or portion of a record to apply an exemption. The OIG will not
charge for review at the administrative appeal level of an exemption
already applied. However, records or portions of records withheld under
an exemption that is subsequently determined not to apply may be
reviewed again to determine the applicability of other exemptions not
previously considered. The costs for such a subsequent review would be
properly assessable. Review time will be assessed at the same rates
established for search time in Sec. Sec. 2002.13 and 15.106 of this
title.
(b) Aggregating requests. (1) The OIG may aggregate multiple
requests in cases where unusual circumstances exist and the OIG
determines that:
(i) Certain requests from the same requester or from a group of
requesters acting in concert actually constitute a single request; and
(ii) The requests involve clearly related matters.
(2) Aggregation of requests for this purpose will be conducted
independent of aggregation of requests for fee purposes under Sec.
15.106(h) of this title.
Sec. 2002.13 Fee schedule, advance payment, interest charges, and
waiving or reducing fees.
The OIG will charge for processing requests under the FOIA in
accordance with Sec. 15.106 of this title, except where those
provisions conflict with provisions of this part; more specifically,
where Sec. 15.106 references Sec. 15.103 of this title replace such
reference with Sec. 2002.15.
Sec. 2002.15 Time limitations.
(a) General. Upon receipt of a request for records, the appropriate
Assistant Inspector General or an appointed designee will generally
make a determination whether to comply with a FOIA request within 20
working days. The Assistant Inspector General or designee will
immediately notify the requestor in writing of the determination and
the reason(s) for such determination and the right of the person to
request assistance from the FOIA Public Liaison. The 20-day period will
begin on the day the request is
[[Page 7393]]
received by the OIG, but in any event not later than 10 working days
after the request is received by any component designated to receive
FOIA requests, and after any fees or advance payment of fees under
Sec. 2002.13 has been made.
(b) Scope of responsive records. In determining which records are
responsive to a request, an agency ordinarily will include only records
in its possession as of the date that it begins its search. If any
other date is used, the agency must inform the requester of that date.
A record that is excluded from the requirements of the FOIA pursuant to
5 U.S.C. 552(c) is not considered responsive to a request.
(c) Unusual circumstances. Under unusual circumstances, as
specified in this paragraph (c), the OIG may extend the time period for
processing a FOIA request. In such circumstances, the OIG 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 made. This date will not exceed 10 working days
beyond the general time established in paragraph (a) of this section.
If processing a request would require more than 10 working days beyond
the general time limit established in paragraph (a) of this section,
the OIG will offer the requester an opportunity to reduce or limit the
scope of the request in order to allow the OIG to 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,
the OIG shall make available its FOIA Public Liaison, who shall assist
in the resolution of any disputes between the requester and the OIG,
and notify the requester of the right of the requester to seek dispute
resolution services from the Office of Government Information Services.
Unusual circumstances mean that there is a need:
(1) To search for and collect the requested records from field
facilities or other establishments that are separate from the office
processing the request;
(2) To search for, collect, and appropriately examine a voluminous
amount of separate and distinct records that are demanded in a single
request (e.g. audit work papers); or
(3) For consultation, which shall be conducted with all practicable
speed, with another agency having a substantial interest in the
determination of the request or among two or more offices of the Office
of Inspector General having a substantial interest in the subject
matter of the request.
Sec. 2002.17 Authority to release records or duplications.
Any Assistant Inspector General or an appointed designee is
authorized to release any record (or duplication) pertaining to
activities for which he or she has primary responsibility, unless
disclosure is clearly inappropriate under this part. No authorized
person may release records for which another officer has primary
responsibility without the consent of the officer or his or her
designee.
Sec. 2002.19 Authority to deny requests for records and form of
denial, exemptions, and exclusions.
(a) Process for denying requests. An Assistant Inspector General or
the Counsel to the Inspector General, or their designees, may deny a
request for a record. Any denial will:
(1) Be in writing;
(2) State simply the reasons for the denial;
(3) Provide an estimate of the volume of records or information
withheld, when appropriate, in number of pages or in some other
reasonable form of estimation. This estimate does not need to be
provided if the volume is otherwise indicated through deletions on
records disclosed in part, or if providing an estimate would harm an
interest protected by an applicable exemption;
(4) Identify the person(s) responsible for the denial by name and
title;
(5) Provide notice of the right of the requester to appeal to the
Deputy Inspector General, within a period determined by the head of the
agency that is not less than 90 days after the date of such adverse
determination, consistent with Sec. 2002.23; and
(6) Provide 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.
(b) Denying requests generally. The OIG shall withhold information
only if the OIG reasonably foresees that disclosure would harm an
interest protected by an exemption as provided in this section, or
disclosure is prohibited by law. The OIG will consider whether partial
disclosure of information is possible whenever the OIG 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 this section.
(c) FOIA exemptions. The FOIA contains nine exemptions (5 U.S.C.
552(b)) that authorize agencies to withhold various records from
disclosure, and two exclusions to the statute that may be used by the
OIG. With regard to the records normally requested, the OIG generally
applies the exemptions and exclusions as follows:
(1) Classified documents. Exemption 1 (5 U.S.C. 552(b)(1)) protects
classified national defense and foreign relations information. The OIG
seldom relies on this exception to withhold documents. However, where
applicable, the OIG will refer a request for records classified under
Executive Order 13526 and the pertinent records to the originating
agency for processing. The OIG may refuse to confirm or deny the
existence of the requested information if the originating agency
determines that the fact of the existence of the information itself is
classified.
(2) Internal agency rules and practices. Exemption 2 (5 U.S.C.
552(b)(2)) protects records relating to internal personnel rules and
practices.
(3) Information prohibited from disclosure by another statute.
Exemption 3 (5 U.S.C. 552(b)(3)) protects information that is
prohibited from disclosure by another Federal law. Some investigative
records contain information that could reveal grand jury proceedings,
which are protected from disclosure by Federal Rule of Criminal
Procedure 6(e). Section 7 of the Inspector General Act of 1978
prohibits the OIG from disclosing the identity of employees who make
protected disclosures. The OIG generally will not disclose competitive
proposals prior to contract award, competitive proposals that are not
set forth or incorporated by reference into the awarded contract, (see
41 U.S.C. 4702), or, during the selection process, any covered
selection information regarding such selection, either directly or
indirectly (see 42 U.S.C. 3537a).
(4) Commercial or financial information. Exemption 4 (5 U.S.C.
552(b)(4)) protects trade secrets and commercial or financial
information obtained from a person that is privileged and confidential.
The OIG frequently obtains this information through its audits. The OIG
will process the release of this category of information pursuant to
Executive Order 12600 and give notice to the affected business and an
opportunity for the business to present evidence of its confidentiality
claim. If the OIG is sued by a requester under the FOIA for
nondisclosure of confidential business information, the OIG expects the
affected business to cooperate to the
[[Page 7394]]
fullest extent possible in defending such a decision.
(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. These
communications may include communications with the Department of
Justice and with HUD. The deliberative process privilege shall not
apply to records created 25 years or more before the date on which the
records were requested.
(6) Personal privacy. Exemption 6 (5 U.S.C. 552(b)(6)) protects
information involving matters of personal privacy. This information may
be found in personnel, medical, and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy. Names, addresses, telephone numbers, and email addresses of
persons identified in audits or complaints generally will not be
disclosed. The OIG has learned through experience that some of its
employees (i.e. Hotline employees) will be harassed if their identities
are known, and the OIG will protect the identities of these employees.
As a law enforcement agency, the OIG finds individuals generally have a
heightened privacy interest for not having their identities associated
with the OIG.
(7) Law enforcement records. Exemption 7 (5 U.S.C. 552(b)(7))
protects certain records or information compiled for law enforcement
purposes. This exemption protects records where the production could
reasonably be expected to interfere with enforcement proceedings. The
protection of this exemption also encompasses, but is not limited to,
information in law enforcement files that could reasonably be expected
to constitute an unwarranted invasion of personal privacy; the names of
confidential informants; and techniques and procedures for law
enforcement investigations, or guidelines for law enforcement
investigations if such disclosure could reasonably be expected to risk
circumvention of the law. It is the policy of the OIG in responding to
all FOIA requests for investigative records pertaining to specifically
named individuals to refuse to confirm or deny the existence of such
records. Lacking the subject individuals consent, proof of death, an
official acknowledgement of an investigation, or an overriding public
interest, even to acknowledge the existence of such records could
reasonably be expected to constitute an unwarranted invasion of
personal privacy.
(8) Supervision of financial institutions. Exemption 8 (5 U.S.C.
552(b)(8)) protects information relating to the supervision of
financial institutions. It is unlikely that the OIG will have these
documents.
(9) Wells. Exemption 9 (5 U.S.C. 552(b)(9)) protects geological
information on wells. It is unlikely that the OIG will have these
documents.
(d) FOIA exclusion. Some law enforcement records are excluded from
the FOIA. 5 U.S.C. 552(c)(1) permits a law enforcement agency to
exclude a document from the FOIA if there is reason to believe that:
(1) The subject of the investigation or proceeding is not aware of
its pendency; and
(2) Disclosure of the existence of the records could reasonably be
expected to interfere with enforcement proceedings, in which case the
agency may, during only such time as that circumstance continues, treat
the records as not subject to the requirements of the FOIA. Section
552(c)(2) of FOIA allows the exclusion of informant records, unless the
existence of the informant has been officially confirmed.
Sec. 2002.21 Effect of denial of request.
Denial of a request shall terminate the authority of the Assistant
Inspector General or his or her designee to release or disclose the
requested record, which thereafter may not be made publicly available
except with express authorization of the Inspector General, Deputy
Inspector General, or Counsel to the Inspector General.
Sec. 2002.23 Administrative review.
(a) Review is available only from a written determination denying a
request for a record and only if a written request for review is filed
within 90 days after issuance of the written determination. If mailed,
the requester's letter of appeal must be postmarked within 90 calendar
days of the date of the letter of determination. If the letter of
appeal is transmitted electronically or by a means other than the
United States Postal Service, it must be received in the appropriate
office by the close of business on the 90th calendar day after the date
of the letter of determination. Before seeking court review of an
adverse determination, a requester must exhaust their administrative
remedies under this section.
(b) A review may be initiated by sending a request for review to
the Office of Inspector General; Department of Housing and Urban
Development; 451 Seventh Street SW, Room 8256, Washington, DC 20410 or
to [email protected]. In order to enable the OIG to comply with
the time limitations set forth in Sec. 2002.17, both the envelope
containing the request for review and the letter itself should clearly
indicate that the subject is a Freedom of Information Act request for
review. Each request for review must contain the following:
(1) A copy of the original request;
(2) A copy of the written denial; and
(3) A statement of the circumstances, reasons, or arguments
advanced in support of disclosure of the original records requested.
(c) Review will be made promptly by the Deputy Inspector General,
or designee, on the basis of the written record. The OIG will decide an
appeal of a denial of a request to expedite processing of a FOIA
request within 10 working days of receipt of the appeal. The OIG will
make a determination on all other appeals within 20 working days of
receipt, unless unusual circumstances require the OIG to extend the
time for an additional 10 working days.
(d) The time of receipt for processing of a request is the time it
is received by the Inspector General. If a request is misdirected by
the requester and is received by one other than the Inspector General,
the OIG official who receives the request will forward it promptly to
the Inspector General and will advise the requester about the delayed
time of receipt.
(e) The decision after review will be in writing, will constitute
final agency action on the request, and, if the denial of the request
for records is in full or in part upheld, the Inspector General will
notify the person making the request of his or her right to seek
judicial review under 5 U.S.C. 552(a)(4).
(f) Adverse decisions will include the name and contact information
of dispute resolution services that offer mediation services to resolve
disputes between FOIA requesters and Federal agencies as a nonexclusive
alternative to litigation.
Dated: January 18, 2018.
Helen M. Albert,
Acting Inspector General.
[FR Doc. 2018-03400 Filed 2-20-18; 8:45 am]
BILLING CODE 4210-67-P