[Federal Register: September 4, 2007 (Volume 72, Number 170)]
[Rules and Regulations]
[Page 50643-50644]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04se07-1]
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Rules and Regulations
Federal Register
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[[Page 50643]]
GOVERNMENT ACCOUNTABILITY OFFICE
4 CFR Part 81
Public Availability of Government Accountability Office Records
AGENCY: Government Accountability Office.
ACTION: Final rule.
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SUMMARY: GAO amends its records rule to clarify and broaden the
existing exemption regarding the disclosure of congressional
correspondence and to add a new provision regarding the handling of
requests for records of interviews created by GAO in connection with
its work. Specifically, the revision to the congressional
correspondence exemption enables GAO to release or withhold
congressional correspondence without prior congressional authorization.
The new provision ensures that an agency from which an interview was
obtained is notified of a request for the record of interview and
receives an opportunity to advise GAO whether the record of interview
or portions thereof should be exempt from disclosure. The new provision
will enhance the open, frank, and honest exchange of information from
other agencies, nonfederal organizations, and individuals to GAO during
the course of a GAO audit, evaluation, or investigation.
EFFECTIVE DATE: October 4, 2007.
FOR FURTHER INFORMATION CONTACT: John A. Bielec, Deputy Assistant
General Counsel; telephone 202-512-2846; e-mail bielecj@gao.gov.
SUPPLEMENTARY INFORMATION: On September 18, 2006, GAO published a
proposed rule in the Federal Register proposing two revisions to 4 CFR
Part 81.6 and requesting comments (71 FR 54597). Even though, as a
legislative branch agency, GAO is not subject to the Administrative
Procedures Act and was not required by law to seek comments before
issuing a final rule, GAO requested comments concerning its proposed
revisions for a 45-day comment period ending November 2, 2006.
Two comments were received during the comment period. The first
commenter objected to any change that would lessen the transparency of
governmental actions. The second commenter opposed the creation of the
additional exemption regarding records of interviews on the grounds
that the new exemption is overly broad and could appear arbitrary and
capricious. After careful review and consideration of the comments, GAO
decided that no changes were needed to the proposed revision regarding
congressional correspondence. With respect to the new provision in
Sec. 81.6 concerning records of interviews, GAO took into account the
comment regarding the regulation appearing overly broad and added
language to clarify the procedures to be followed when a request for
records of interviews is made. Moreover, for the sake of clarity and
transparency, GAO determined that this new provision should be placed
in 4 CFR 81.5 rather than in Sec. 81.6 since Sec. 81.5 specifically
relates to records obtained or created in the course of GAO's audit,
evaluation, or investigative work.
As previously stated in the proposed rule, the revision to Sec.
81.6(a) simply clarifies that GAO is not required to obtain
congressional authorization prior to the release or withholding of
congressional correspondence from its records. This revision ensures
consistency in the handling of records that contain information
regarding the communications between GAO and congressional members. It
will not result in additional restrictions on the availability of such
records.
The amendment to Sec. 81.5 ensures that an agency from which an
interview was obtained is given notice of the request for the record of
interview and given an opportunity to advise GAO whether the record of
interview or portions thereof should be exempt from disclosure. While a
record of interview is a GAO-created record, the information contained
therein comes directly from another agency. The agency from which an
interview was obtained is in the best position to know whether
particular information contained in a record of interview may be
sensitive or privileged, and therefore, whether it should be protected
from public disclosure.
Although the amendment to Sec. 81.5 provides an opportunity for
input from another agency, the sole discretion regarding the release of
records of interviews or portions thereof remains with GAO's Chief
Quality Officer. In deciding whether to release a record of interview,
the new provision makes clear that the Chief Quality Officer will
consider the views of the agency from which the interview was obtained
and the exemptions contained in Sec. 81.6 or any other law or
regulation.
While the amendment may restrict the availability of certain
records of interviews, as discussed in the proposed rule, the success
of GAO's work requires that employees of other agencies and
organizations participate in interviews and provide open, frank, and
honest opinions during these interviews. Without the amendment to Sec.
81.5, GAO's ability to conduct necessary interviews could be
diminished, which could negatively influence the quality of work GAO
performs for Congress on behalf of the American people.
List of Subjects in 4 CFR Part 81
Administrative practice and procedure, Archives and records,
Freedom of information.
0
For the reasons stated in the preamble, amend part 81 of title 4 of the
Code of Federal Regulations as follows:
PART 81--PUBLIC AVAILABILITY OF GOVERNMENT ACCOUNTABILITY OFFICE
RECORDS
0
1. The authority citation for part 81 continues to read:
Authority: 31 U.S.C. 711.
0
2. In Sec. 81.5, revise the section heading, redesignate paragraph (b)
as paragraph (c), and add new paragraph (b) to read as follows:
Sec. 81.5 Records originating outside GAO, records of interviews, or
records involving work in progress.
* * * * *
(b) It is the policy of GAO that prior to the release of a record
of interview created by GAO in connection with an audit, evaluation, or
investigation of a program, activity, or funding of a
[[Page 50644]]
government entity, GAO will notify the agency from which an interview
was obtained of the request. GAO will provide that agency with a
reasonable opportunity to indicate whether the record of interview or
portions thereof should be exempt from disclosure and the reason(s) for
the exemption. The public disclosure of a record of interview remains
within the discretion of GAO's Chief Quality Officer, but GAO will
consider the views of the agency and the exemptions provided for under
Sec. 81.6 or any other law or regulation in deciding whether to
release all or portions of a record of interview.
* * * * *
0
3. In Sec. 81.6, revise paragraph (a) to read as follows:
Sec. 81.6 Records which may be exempt from disclosure.
* * * * *
(a) Records relating to work performed in response to a
congressional request (unless authorized by the congressional
requester), congressional correspondence, and congressional contact
memoranda.
* * * * *
Dated: August 27, 2007.
Gary L. Kepplinger,
General Counsel, Government Accountability Office.
[FR Doc. E7-17457 Filed 8-31-07; 8:45 am]
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