[Federal Register Volume 68, Number 109 (Friday, June 6, 2003)]
[Rules and Regulations]
[Pages 33831-33834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14304]

Rules and Regulations
                                                Federal Register

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Federal Register / Vol. 68, No. 109 / Friday, June 6, 2003 / Rules 
and Regulations

[[Page 33831]]


4 CFR Part 81

Public Availability of General Accounting Office Records

AGENCY: General Accounting Office.

ACTION: Final rule.


SUMMARY: This rule amends General Accounting Office (GAO) regulations 
regarding the pubic availability and disclosure of GAO records. The 
amendments are necessary in order for the GAO to voluntarily adopt 
certain procedural principles of the Electronic Freedom of Information 
Act Amendments of 1996. Specifically, the amendments make it clear that 
the public may request and obtain electronic records under the 
regulations. Further, they inform the public that GAO published 
documents may easily be obtained from GAO's Internet Web site. Other 
minor changes and ``housekeeping'' amendments are made to clarify 
current policy and to correct titles, addresses, telephone numbers, and 
the hours of operation of the GAO public reading facility, which is 
located in the Law Library at the GAO Building. The overall effect of 
the amendments is for GAO to generally take less time in processing 
information requests.

DATES: Effective on June 6, 2003.

FOR FURTHER INFORMATION CONTACT: Jeffrey Forman (Assistant General 
Counsel), 202-512-9763 or 617-788-0546; e-mail: formanj@gao.gov.

SUPPLEMENTARY INFORMATION: Over thirty years ago, Congress established 
a policy of openness toward public disclosure of government information 
by enacting the Freedom of Information Act (FOIA) (5 U.S.C. 522). Under 
FOIA, any member of the public may request access to information within 
control of a federal executive branch agency. GAO is a legislative 
agency and is, therefore, not subject to the FOIA. Nevertheless, GAO 
has voluntarily adopted an information disclosure policy that includes 
many of the procedural principles contained in FOIA. GAO also is not 
subject to the Electronic Freedom of Information Act Amendments of 1996 
(E-FOIA), Public Law 104-231, which amended FOIA to provide greater 
public access to information maintained in an electronic format. This 
final rule amends GAO regulations addressing the public availability of 
GAO records by adopting practices similar to E-FOIA procedures.
    GAO adopts only certain procedural features of the FOIA and E-FOIA, 
as opposed to adopting substantive law. Application of the FOIA and the 
E-FOIA to the GAO is not to be inferred (4 CFR 81.1). This rule is 
published as a final rule without notice or an opportunity for comment. 
The Administrative Procedures Act (APA), 5 U.S.C. 551 et seq., does not 
apply to GAO. GAO voluntarily follows key principles set forth in the 
APA, like it voluntarily follows many of the procedural principles set 
forth in FOIA. Since this rule is procedural in nature, rather than 
substantive, it is consistent with the principles of the APA for GAO to 
issue it as a final rule without providing notice and an opportunity 
for public comment. This has been GAO's past practice as GAO has 
amended part 81 on previous occasions without soliciting public 
comment. (See for example 53 FR 50913 (Dec. 19, 1988), 49 FR 38527 
(Oct. 1, 1984), and 46 FR 47053 (Sept. 24, 1981).)
    Other changes to GAO's records disclosure regulations are made to 
reflect current GAO policy, practices, and procedures, including but 
not limited to organizational changes, which resulted in new titles, 
addresses, telephone numbers, and hours of operation that relate to GAO 
processing requests for GAO records and documents.
    In accordance with the spirit of E-FOIA, a new provision is added 
to section 81.1 informing the public that GAO publications 
(testimonies, reports, decisions, and listings of publications) are now 
expressly included within the scope of the regulations to the extent 
that the public may readily obtain copies of them from the GAO Web 
site, http://www.gao.gov or from the U.S. General Accounting Office, 
441 G Street NW., Room LM, Washington, DC 20548. The address for 
writing and the telephone numbers for calling GAO to obtain copies of 
GAO published documents are moved from section 81.2 to section 81.1 for 
consistency to have all pertinent information for obtaining published 
documents provided in the same section.
    Section 81.2 is updated by correcting the title of the GAO official 
who has the authority and responsibility for administering the GAO 
records disclosure program, including issuing necessary supplemental 
rules and regulations. Paragraph (b) of section 81.3 revises the 
definition of the term ``records'' to expressly include electronically 
created or maintained materials. The language is amended to state in 
plain language that only existing records and records under GAO control 
are covered.
    Recognizing that some requests may have more urgency than others, 
paragraph (f) is added to Sec.  81.3 to provide a definition of 
``compelling need'' for purposes of determining whether to honor 
requests for expedited processing. Section 81.4 revisions provide 
requesters with the correct name and address for sending to GAO 
requests for documents that have not been published. The GAO Internet 
home page address is also provided so requesters may submit their 
requests electronically.
    Under Sec.  81.4 as it is amended, GAO will respond to a requester 
by acknowledging or honoring the request within 20 days of receipt. In 
light of this procedure, the requirement that GAO promptly honor 
requests when no valid objection exists for withholding the records is 
no longer necessary and is therefore eliminated. Expedited requests 
where a requester provides GAO with a certified statement demonstrating 
a compelling need will be processed before other requests. A 60-day 
time limit for requesting an administrative appeal of a denial of a 
request is established. Section 81.5, concerning records originating 
outside GAO and records involving work in progress, is not changed.
    Revisions to section 81.6 clarify and set out in greater detail 
current GAO policy and practice regarding records exempt from 
disclosure. In this regard, paragraph (l) is divided into two 
paragraphs, (l) and (m). Other revisions to section 81.6 reflect 
changes to

[[Page 33832]]

organizational structure by correcting the title of the GAO official 
with discretion to release exempt records from the Director of Policy 
to the Chief Quality Officer. The GAO fee schedule set out in section 
81.7 is updated to reflect current costs associated with processing 
requests. Other revisions inform requesters of the recent change in the 
title of the official responsible for deciding whether a fee should be 
waived or reduced. Changes to section 81.8 delineate that the GAO's 
public reading facility is maintained in the GAO Law Library, and its 
location and hours of operation. The hours of operation for public use 
of the Law Library are changed to 8:30 a.m. to 4 p.m. GAO's public 
reading facility was previously open to the public from 8:30 a.m. to 5 
p.m. It continues to be closed on Saturdays, Sundays, and holidays.

List of Subjects in 4 CFR Part 81

    Administrative practice and procedure, Archives and records, 
Computer technology, Electronic products, Freedom of information.

For the reasons set forth in the preamble, GAO amends Title 4, Chapter 
I, Subchapter F of the Code of Federal Regulations by revising part 81 
to read as follows:


81.1 Purpose and scope of part.
81.2 Administration.
81.3 Definitions.
81.4 Requests for identifiable records.
81.5 Records originating outside GAO, or records involving work in 
81.6 Records which may be exempt from disclosure.
81.7 Fees and charges.
81.8 Public reading facility.

    Authority: 31 U.S.C. 711.

Sec.  81.1  Purpose and scope of part.

    (a) This part implements the policy of the U.S. General Accounting 
Office (GAO) with respect to the public availability of GAO records. 
While GAO is not subject to the Freedom of Information Act (5 U.S.C. 
552), GAO's disclosure policy follows the spirit of the act consistent 
with its duties and functions and responsibility to the Congress. 
Application of this act to GAO is not to be inferred from the 
provisions of these regulations.
    (b) GAO published testimonies, reports, and decisions or listings 
of publications are included within the scope of this part to the 
extent that they may be obtained from the GAO Web site, http://www.gao.gov, or from the U.S. General Accounting Office, 441 G Street 
NW., Room LM, Washington, DC 20548, or phone 202-512-6000, FAX 202-512-
6061, TDD 202-512-2537. [Please note that this address is for published 
GAO documents only, other records requests should be sent to the 
address provided in section 81.4(a).]

Sec.  81.2  Administration.

    The Chief Quality Officer administers this part and may promulgate 
such supplemental rules or regulations as may be necessary.

Sec.  81.3  Definitions.

    As used in this part:
    (a) Identifiable means a reasonably specific description of a 
particular record sought, such as the date of the record, subject 
matter, agency or person involved, etc., which will permit location or 
retrieval of the record.
    (b) Records includes all books, papers, manuals, maps, photographs, 
reports, and other documentary materials, regardless of physical form 
or characteristics, including electronically created or maintained 
materials, under the control of GAO in pursuance of law or in 
connection with the transaction of public business. As used in this 
part, the term ``records'' is limited to an existing record under GAO's 
control and does not include compiling or procuring records, library or 
museum material made, acquired, or preserved solely for reference or 
exhibition purposes, or extra copies of documents preserved only for 
convenience of reference.
    (c) Records available to the public means records which may be 
examined or copied or of which copies may be obtained, in accordance 
with this part, by the public or representatives of the press 
regardless of interest and without specific justification.
    (d) Disclose or disclosure means making available for examination 
or copying, or furnishing a copy.
    (e) Person includes an individual, partnership, corporation, 
association, or public or private organization other than a Federal 
    (f) Compelling need means that a failure to obtain requested 
records on an expedited basis could reasonably be expected to pose an 
imminent threat to the life or physical safety of an individual, or the 
records are needed urgently, with respect to a request made by a person 
primarily engaged in disseminating information, for the requester to 
inform the public concerning actual or alleged Federal Government 

Sec.  81.4  Requests for identifiable records.

    (a) A request to inspect or obtain a copy of an identifiable record 
of GAO must be submitted in writing to the Chief Quality Officer, U.S. 
General Accounting Office, 441 G Street, NW., Washington, DC 20548. 
Requests may also be made via a link from GAO's Internet Home page at 
http://www.gao.gov. Requests also may be emailed to 
recordsrequest@gao.gov. The Chief Quality Officer will either 
acknowledge or honor the request within 20 days of receipt.
    (b) The Chief Quality Officer will honor requests for expedited 
processing before all other requests in cases in which the person 
requesting the records demonstrates a compelling need. A demonstration 
of compelling need shall be made by a statement certified by the 
requester to be true and correct to the best of the requester's 
knowledge and belief.
    (c) In the event of an objection or doubt as to the propriety of 
providing the requester with a copy of the record sought, every effort 
will be made to resolve such problems as quickly as possible, including 
consultation with appropriate GAO elements. If it is determined that 
the record should be withheld, the Chief Quality Officer shall inform 
the requester in writing that the request has been denied, shall 
identify the material withheld, and shall explain the basis for the 
    (d) A person whose request is denied in whole or part may 
administratively appeal the denial within 60 days after the date of the 
denial by submitting a letter to the Comptroller General of the United 
States at the address listed in paragraph (a) of this section, 
explaining why the denial of the request was unwarranted.

Sec.  81.5  Records originating outside GAO, or records involving work 
in progress.

    (a) It is the policy of GAO not to provide records from its files 
that originate in another agency or nonfederal organization to persons 
who may not be entitled to obtain the records from the originator. In 
such instances, requesters will be referred to the person or 
organization that originated the records.
    (b) In order to avoid disruption of work in progress, and in the 
interests of fairness to those who might be adversely affected by the 
release of information which has not been fully reviewed to assure its 
accuracy and completeness, it is the policy of GAO not to provide 
records which are part of ongoing reviews or other current projects. In 
response to such requests, GAO will inform the requester of the 
estimated completion date of the review or project so that the 
requester may then ask for the records. At that time, the records

[[Page 33833]]

may be released unless exempt from disclosure under Sec.  81.6.

Sec.  81.6  Records which may be exempt from disclosure.

    The public disclosure of GAO records contemplated by this part does 
not apply to records, or parts thereof, within any of the categories 
listed below. Unless precluded by law, the Chief Quality Officer may 
nevertheless release records within these categories.
    (a) Congressional correspondence and other records relating to work 
performed in response to a congressional request (unless authorized by 
the congressional requester), and congressional contact memoranda.
    (b) Records specifically required by an Executive Order to be kept 
secret in the interest of national defense or foreign policy. An 
example of this category is a record classified under Executive Order 
12958, Classified National Security Information.
    (c) Records related solely to the internal personnel rules and 
practices of an agency. This category includes, in addition to internal 
matters of personnel administration, internal rules and practices which 
cannot be disclosed without prejudice to the effective performance of 
an agency function. Examples within the purview of this exemption are 
guidelines and procedures for auditors, investigators, or examiners, 
and records concerning an agency's security practices or procedures.
    (d) Records specifically exempted from disclosure by statute 
provided that such statute:
    (1) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (2) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld.
    (e) Records containing trade secrets and commercial or financial 
information obtained from a person that are privileged or confidential. 
This exemption may include, but is not limited to, business sales 
statistics, inventories, customer lists, scientific or manufacturing 
processes or development information.
    (f) Personnel and medical files and similar files the disclosure of 
which could constitute a clearly unwarranted invasion of personal 
privacy. This exemption excludes from disclosure all personnel and 
medical files, and all private or personal information contained in 
other files, which, if disclosed to the public, would amount to a 
clearly unwarranted invasion of the privacy of any person. An example 
of such other files within the exemption would be files compiled to 
evaluate candidates for security clearance.
    (g) Records and information compiled for law enforcement purposes.
    (h) Records having information contained in or related to 
examination, operation, or condition reports prepared by, on behalf of, 
or for the use of an agency responsible for the regulation or 
supervision of financial institutions.
    (i) Records containing geological and geophysical information and 
data (including maps) concerning wells.
    (j) Inter-agency or intra-agency memoranda, letters, or other 
materials that are part of the deliberative process. For example, this 
exemption includes internal communications such as GAO or other agency 
draft reports, and those portions of internal drafts, memoranda and 
workpapers containing opinions, recommendations, advice, or evaluative 
remarks of GAO employees. This exemption seeks to avoid the inhibiting 
of internal communications, and the premature disclosure of documents 
which would be detrimental to an agency decision making.
    (k) Records in addition to those described in paragraph (j) of this 
section containing information customarily subject to protection as 
privileged in a court or other proceedings, such as information 
protected by the doctor-patient, attorney-work product, or lawyer-
client privilege.
    (l) Records GAO has obligated itself not to disclose, including but 
not limited to, records for which GAO officials have made a pledge of 
confidentiality, and records the release of which would adversely 
impact significant property interests or negatively affect public 
    (m) Unsolicited records containing information submitted by any 
person to GAO in confidence. An example of records covered by this 
exemption would be information obtained by the GAO Office of General 
Counsel (GAO FraudNET).

Sec.  81.7  Fees and charges.

    (a) No fee or charge will be made for:
    (1) Records provided under this part when the direct costs involve 
less than one hour of search time and 50 pages of photocopying.
    (2) Staff-hours spent in resolving any legal or policy questions 
pertaining to the request.
    (3) Copies of records, including those certified as true copies, 
furnished for official use to a federal government officer or employee.
    (4) Copies of pertinent records furnished to a party having a 
direct and immediate interest in a matter pending before GAO, when 
necessary or desirable to the performance of a GAO function.
    (b) The fees and charges described below will be assessed for the 
direct costs of search, review, and reproduction of records available 
to the public under this part.
    (1) The cost for reproduction per page shall be 20 cents.
    (2) The cost for a certification of authenticity shall be $10 for 
each certificate.
    (3) Manual search and review for records by office personnel will 
be assessed at $12, $25, or $45 per hour, depending on the rate of pay 
of the individual actually conducting the search or review, and the 
complexity of the search.
    (4) Other direct costs related to the request may be charged for 
such items as computer searches.
    (5) Except as noted immediately below, requesters generally will be 
charged only for document duplication. However, there may be times when 
a search charge will be added, for example, if records are not 
described with enough specificity to enable them to be located within 
one hour. Requesters seeking records for commercial use will be charged 
for document duplication, search, and review costs. Additionally, 
representatives of the news media, in support of a news gathering or 
dissemination function, and education or noncommercial scientific 
institutions not seeking records for commercial use will be charged 
only for document duplication, unless such request requires 
extraordinary search or review.
    (c) GAO shall notify the requester if an advance deposit is 
    (d) Fees and charges shall be paid by check or money order payable 
to the U.S. General Accounting Office.
    (e) The Chief Quality Officer may waive or reduce the fees under 
this section upon a determination that disclosure of the records 
requested is in the public interest, 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. Persons seeking a waiver or fee reduction may be 
required to submit a statement setting forth the intended purpose for 
which the records are requested, indicate how disclosure will primarily 
benefit the public and, in appropriate cases, explain why the volume of 
records requested is necessary. Determinations pursuant to this 
paragraph are solely within the discretion of GAO.

[[Page 33834]]

Sec.  81.8  Public reading facility.

    GAO maintains a public reading facility in the Law Library at the 
General Accounting Office Building, 441 G Street, NW., Washington, DC. 
The facility shall be open to the public from 8:30 a.m. to 4 p.m. 
except Saturday, Sundays, and holidays.

Anthony H. Gamboa,
General Counsel, General Accounting Office.
[FR Doc. 03-14304 Filed 6-5-03; 8:45 am]