Rulemaking Notice
LEGAL SERVICES CORPORATION
45 CFR Part 1602
Procedures for Disclosure of Information under the Freedom of Information Act
AGENCY: Legal Services Corporation
ACTION: Notice of Proposed Rulemaking
SUMMARY: This NPRM proposes several revisions to the LSC
regulations implementing the Freedom of Information Act. The proposed
revisions would add provisions detailing the submitter's rights process,
provide LSC with express authority to defer action on pending and additional
requests and appeals when a requester has an outstanding fee balance, and
clarify the applicable fee waiver standards. LSC also proposes to revise
the applicable fee structure to better reflect LSC's costs in complying with
FOIA. Finally, the NPRM contains proposed technical changes to reflect
current LSC nomenclature.
DATES: Comments on this NPRM are due on January 2, 2003
ADDRESSES: Written comments may be submitted by mail, fax or email to
Mattie C. Condray at the addresses listed below.
FOR FURTHER INFORMATION CONTACT: Mattie C. Condray, Senior Assistant
General Counsel, Office of Legal Affairs, Legal Services Corporation, 750 First
Street, N.E., Washington, DC 20002‑4250; (202) 336‑8817 (phone);
(202) 336-8952 (fax); mcondray@lsc.gov.
SUPPLEMENTARY INFORMATION: LSC is subject to the Freedom of
Information Act (FOIA) by the terms of the Legal Services Corporation Act.
42 U.S.C. 2996d(g).
LSC has implemented FOIA by adopting regulations which contain the rules and
procedures the Corporation follows in making agency records available to the
public under FOIA. As part of an overall review of LSC's regulations,
LSC determined that a variety of amendments to LSC's FOIA regulation are in
order and Part 1602 was assigned a high priority for rulemaking. In
light of the above, at the August 24, 2002, meeting of the Board of Directors,
the Board identified Part 1602 as an appropriate subject for rulemaking and LSC
subsequently announced that it was initiating a Notice and Comment rulemaking to
consider revisions to its FOIA regulations.
Submitter's Rights Process
Pursuant
to current LSC practice, if a request is received for the grant application
records of a current or prospective recipient, LSC provides that applicant with
an opportunity to request that some or all of the records requested be withheld
from disclosure prior to LSC sending its response to the requester. This
practice, which is consistent with current FOIA law, is not described or
discussed in the regulations. The submitter's rights process affords
important rights to grant applicants and also impacts requesters who have to
wait until the submitter's rights process has been completed to obtain
releasable records subject to this process. LSC believes that it is
important, therefore, for this process to be explicitly set forth in Part 1602.
Accordingly, LSC proposes to add a new section 1602.14, Submitter's rights
process, which would formally incorporate the Corporation's current practice
into the regulations.
At the
outset, LSC notes that its submitter's rights process is based on the
submitter's rights process outlined in Federal Executive Order No. 12,600
(June 23, 1987). E.O. 12,600 required Federal agencies to "establish
procedures to notify submitters of records containing confidential
information [information arguably subject to FOIA Exemption 4] . . . when
those records are requested under the Freedom of Information Act . . . ."
(Emphasis added) Although LSC is not a Federal agency, and, therefore, not
subject to E.O. 12,600, LSC chose to develop a policy consistent with the Order.
LSC believes that grant application records are the only records likely to
contain "confidential information," the release of which could cause
competitive harm. Thus, the current submitter's rights process is only
invoked in relation to requests for grant application information, but not other
records submitted by recipients. LSC is, at this time, proposing to keep
the process limited to requests for grant application materials, but
specifically invites comment on whether there are other records submitted by
recipients which would likely be subject to withholding under Exemption 4.
Under
the proposed new section, when the Corporation receives a FOIA request seeking
the release of a submitter's grant application(s), or portions thereof, the
Corporation would provide prompt written notice of the request to the submitter
in order to afford the submitter with an opportunity to object to the disclosure
of the requested records (or any portion thereof). If a submitter who has
received notice of a request for the submitter's records objects to the
disclosure of the records (or any portion thereof), the submitter would have to
submit a written detailed statement identifying the information for which
disclosure is objected to and specifying the grounds for withholding the
information under the confidential information exemption of FOIA or this Part.
The submitter's statement would have to be provided to LSC within seven
business days of the date of the notice from the Corporation and if the
submitter failed to respond to the notice from LSC within that time, LSC would
deem the submitter to have no objection to the disclosure of the information.
Upon
receipt of written objection to disclosure by a submitter, LSC would be required
to consider the submitter's objections and specific grounds for withholding in
deciding whether to release the disputed information. Whenever LSC decided
to disclose information over the objection of the submitter, LSC would be
required to give the submitter written notice that the Corporation was rejecting
the submitter's withholding request (including an explanation of why the
request was being rejected) and informing the submitter that the submitter shall
have 5 business days from the date of the notice of proposed release to appeal
that decision to the LSC President, whose decision would be final.
Under
proposed paragraph (d), the submitter's rights process would not apply if (1)
LSC determines, upon initial review, that the information requested is exempt
from disclosure; (2) the information has been previously published or officially
made available to the public; or (3) disclosure of the information is required
by statute (other than FOIA) or LSC regulations.
In
addition, LSC proposes to include provisions requiring that: (1) whenever
a requester files a lawsuit seeking to compel disclosure of a submitter's
information, LSC would have to promptly notify the submitter; (2) whenever LSC
provides a submitter with notice and opportunity to object to disclosure under
this section, LSC would also notify the requester; and (3) whenever a
submitter files a lawsuit seeking to prevent the disclosure of the submitter's
information, LSC would notify the requester.
LSC
also proposes to add a definition of the term "submitter" as that term would
be used in this section. The definition proposed to be added at section
1602.2(k) would define "submitter" as any person or entity from whom the
Corporation receives a grant application.
Authority to Defer Action Pending Receipt of Payment of Fees
Many,
if not most, agency FOIA regulations contain a provision permitting the agency
to suspend continuing work on any pending requests and appeals from requesters
who are 30 or more days in arrears on FOIA fees which they have been charged.
Our regulations provide LSC with the authority to require anticipated fees for
new requests be paid in advance for requesters with outstanding overdue bills,
but do not expressly contain the authority to cease processing other existing
requests, including appeals. Having this express authority would be helpful to
the Corporation to avoid wasting resources on "nuisance" requesters who
chronically have several requests and/or appeals pending before the Corporation
at the same time, while being in arrears on properly assessed fees from prior
requests to the Corporation. Accordingly, LSC proposes to add a new
paragraph to section 1602.13, Fees, to provide for this authority.
Specifically, the proposed new language would provide express authority to the
Corporation to cease processing existing requests, including action on appeals,
from a requester who is more than 30 days late in paying a properly assessed
FOIA fee. This new language would appear as a new paragraph (j) and the
current paragraphs (j), (k) and (l) would be redesignated as paragraphs (k),
(l), and (m), respectively.
Fee Waiver Criteria
Requesters
of records under FOIA are generally expected to pay reasonable fees related to
the processing of FOIA requests. However, the statute also provides for
waivers or reductions of fees when certain enumerated criteria are met.
Section 1602.13(f) of the current regulation restates the basic fee waiver
criteria as set forth in the statute. By way of contrast, the Department
of Justice (DOJ) FOIA regulations on fee waiver criteria are more detailed,
providing more guidance, based on long standing case law in this area, on the
meaning of each of the factors to be considered in assessing fee waiver
requests. LSC believes it would be helpful to both LSC and requesters for
the LSC FOIA regulations to provide additional guidance in this area. By
having a better understanding of the criteria, requesters can better prepare fee
waiver requests and there will be less opportunity for disagreements and
confusion as to when a fee waiver or reduction is appropriate. LSC is,
accordingly, proposing to add language to each of the subparagraphs setting
forth the factors upon which fee waiver determinations are made that provides a
greater explanation of that factor.
Specifically,
1602.13(f)(1) of the current regulation lists the factors that the Corporation
assesses in order to determine whether disclosure of information is in the
public interest because it is likely to contribute significantly to public
understanding of the operations or activities of the Corporation or Federal
government. The first factor currently reads:
(i) The subject of the request: Whether
the subject of the requested records concerns "the operations or activities of
the Corporation or Federal government."
LSC proposes to add a sentence to this subparagraph explaining that the
subject of the requested records must concern identifiable operations or
activities of the Corporation or the Federal government, with a connection that
is direct and clear, not remote or attenuated.
The second factor currently reads:
(ii) The informative value of the
information to be disclosed: Whether the disclosure is "likely to
contribute" to an understanding of Corporation or Federal government
operations or activities.
LSC proposes to add language noting that the requested records must be
meaningfully informative about government operations or activities in order to
be likely to contribute to an increased public understanding of those operations
or activities and that the disclosure of information that is already in the
public domain, in either a duplicative or a substantially identical form, would
not be likely to contribute to such understanding where nothing new would be
added to the public's understanding.
The
third factor currently reads:
(iii) The contribution to an
understanding of the subject by the public likely to result from disclosure:
Whether disclosure of the requested records will contribute to "public
understanding."
LSC proposes to provide additional guidance on the meaning of this factor by
adding language explaining that: the disclosure must contribute to a reasonably
broad audience of persons interested in the subject, as opposed to the personal
interest of the requester; a requester's expertise in the subject area and
ability and intention to effectively convey information to the public shall be
considered; and that it shall be presumed that a representative of the news
media will satisfy this consideration.
The
fourth factor currently reads:
(iv) The significance of the contribution
to public understanding: Whether the disclosure is likely to contribute
"significantly" to public understanding of Corporation or Federal government
operations or activities.
LSC proposes to include additional guidance in this factor that the
public's understanding of the subject in question, as compared to the level of
public understanding existing prior to the disclosure must be enhanced by the
disclosure to a significant extent.
Section
1602.13(f)(2) sets forth the factors used by LSC to determine whether disclosure
of the information is not primarily in the commercial interest of the requester.
The first factor currently reads:
(i) The existence and magnitude of a
commercial interest: Whether the requester has a commercial interest that
would be furthered by the requested disclosure.
LSC proposes to add a sentence to this subparagraph explaining that LSC shall
consider any commercial interest of the requester (with reference to the
definition of "commercial use" in this Part) or of any person on whose
behalf the requester may be acting, that would be furthered by the requested
disclosure.
The
second factor reads:
(ii) The primary interest in disclosure:
Whether the magnitude of the identified commercial interest is sufficiently
large, in comparison with the public interest in disclosure, that disclosure is
"primarily" in the commercial interest of the requester.
LSC proposes to add language specifying that a fee waiver or reduction is
justified where the public interest standard is greater in magnitude than that
of any identified commercial interest in disclosure and that LSC ordinarily
shall presume that where a news media requester has satisfied the public
interest standard, the public interest will be the interest primarily served by
disclosure to that requester. That is, if the public interest standard has been
satisfied, the fact that a news media requester has a commercial interest (i.e.,
in selling newspapers, etc.) will not ordinarily serve to prevent that requester
from getting a fee waiver or reduction. LSC further proposes to add
language providing that disclosure to data brokers or others who merely compile
and market government information for direct economic return shall not be
presumed primarily to serve a public interest.
In
each of these cases, the language proposed to be added is consistent with the
current regulations and LSC practice, FOIA case law and government-wide FOIA
practice. As noted above, LSC believes the additions will aid in public
understanding of the meaning and application of the fee waiver criteria.
Miscellaneous Amendments
There
are several instances throughout the regulation where the regulation makes
reference to the "Office of the General Counsel." The Office of the General
Counsel was renamed the Office of Legal Affairs in 1999. LSC, therefore,
proposes to substitute the name "Office of Legal Affairs" for "Office of
the General Counsel" each time it appears in sections 1602.6 and 1602.8 of the
regulations.
Section
1602.5, Public reading room, sets forth, among other things, the address of
LSC's public reading room. The address listed, 750 First Street, N.E.,
Washington, DC, 20002, is currently correct. However, LSC will be moving
in June 2003 to new permanent headquarters. LSC proposes to add language
to this section providing the address of the LSC public reading room in LSC's
new home: 3333 K St., N.W., Washington, DC 20007.
In
accordance with FOIA, LSC charges fees for processing FOIA requests and
providing copies of requested documents. LSC's schedule of applicable
fees is set forth in section 1602.13(e). The current schedule of fees was
adopted in 1998 and no longer accurately reflects LSC's costs in responding to
FOIA requests. LSC, therefore, proposes to increase fees for search and
review time and for copying.
LSC's
fees for search and review time are based on LSC's pay schedule, which is
divided into broad "pay bands." In the four years since the regulation
was last amended, LSC's pay bands have increased to keep up with inflation.
The current midpoint of each band is now:
Band
1: $16.15
Band
2: $26.66
Band
3: $39.15
Band
4: $51.41
Band
5: $54.99
LSC proposes to amend the search and review rates to reflect these current
2002 pay rates. LSC notes that the current regulation provides for
one blended rate for Bands 4 and 5. LSC is proposing to separate these
rates, providing separate search and review time rates for Bands 4 and 5.
These changes will permit LSC to recover fees that are more in line with its
actual costs relating to search and review activities.
Under
the current regulation, LSC charges $0.10 per page for standard paper
photocopying. LSC's actual costs for photocopying are now closer to
$0.15 per page. LSC proposes to increase copying costs to $0.13 per page
so as to better reflect LSC's costs, while still providing a small discount to
requesters. In addition, LSC proposes to substitute the term "Express
mail" for "special delivery" where it appears in section 1602.13(e)(7) to
reflect current terminology.
For reasons set forth above, LSC proposes
to amend 45 CFR Part 1602 as follows:
PART 1602 - PROCEDURES FOR DISCLOSURE OF INFORMATION UNDER THE FREEDOM
OF INFORMATION ACT
1. The authority citation continues to read as follows:
42 U.S.C. 2996d(g); 5 U.S.C. 552
2. Section 1602.2, Definitions, would be amended by adding a new paragraph
(k) to read as follows:
* * * * *
(k) Submitter means any person or entity from whom the Corporation receives
grant application records.
3. Paragraph (a) of section 1602.5, Public reading room, would be
amended by adding a new second sentence, such that the paragraph would read:
(a) The Corporation will maintain a public reading room at its office at 750
First Street, N.E., Washington, D.C., 20002. After June 1, 2003, the
Corporation's public reading room will be located at its office at 3333 K
Street, N.W., Washington, DC, 20007. This room will be supervised and will
be open to the public during the regular business hours of the Corporation for
inspecting and copying records described in paragraph (b) of this section.
4. Section 1602.6, Procedures for use of public reading room, would be
amended by replacing the words "Office of the General Counsel" in the second
sentence with the words "Office of Legal Affairs."
5. Paragraph (b) of section 1602.8, Requests for records, would be
amended by replacing the words "Office of the General Counsel" each of the
three times that phrase appears in the paragraph with the words "Office of
Legal Affairs."
6. Paragraph (e) of section 1602.13, Fees, would be amended to read as
follows:
* * * * *
(e) The schedule for charges for services regarding the production or
disclosure of the Corporation's records is as follows:
(1)
Manual search for and review of records will be charged as follows:
(i)
Band 1: $16.15
(ii)
Band 2: $26.66
(iii)
Band 3: $39.15
(iv)
Band 4: $51.41
(v)
Band 5: $54.59
(vi) Charges for search and review time less
than a full hour will be billed by quarter-hour segments;
(2) Computer time: actual charges as incurred;
(3) Duplication by paper copy: 13 cents per page;
(4) Duplication by other methods: actual charges as
incurred;
(5) Certification of true copies: $1.00 each;
(6) Packing and mailing records: no charge for
regular mail;
(7) Express mail: actual charges as incurred.
7. Paragraph (f) of section 1602.13, Fees,
would be amended to read as follows:
* * * * *
(f) Fee waivers. A requester may seek a waiver or reduction of fees
below the fees established under paragraph (e) of this section. A fee
waiver or reduction request will be granted where LSC has determined that the
requester has demonstrated that disclosure of the information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations of the Corporation or Federal government and is
not primarily in the commercial interest of the requester.
(1) In order to determine whether disclosure of
the information is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of the
Corporation or Federal government, the Corporation shall consider the following
four factors:
(i) The subject of the request: Whether the
subject of the requested records concerns "the operations or activities of the
Corporation or Federal government." The subject of the requested records
must concern identifiable operations or activities of the Corporation or Federal
government, with a connection that is direct and clear, not remote or
attenuated.
(ii) The informative value of the information
to be disclosed: Whether the disclosure is "likely to contribute" to
an understanding of Corporation or Federal government operations or activities.
The requested records must be meaningfully informative about government
operations or activities in order to be likely to contribute to an increased
public understanding of those operations or activities. The disclosure of
information that is already in the public domain, in either a duplicative or a
substantially identical form, would not be likely to contribute to such
understanding where nothing new would be added to the public's understanding.
(iii) The contribution to an understanding of
the subject by the public likely to result from disclosure: Whether
disclosure of the requested records will contribute to "public
understanding." The disclosure must contribute to a reasonably broad
audience of persons interested in the subject, as opposed to the personal
interest of the requester. A requester's expertise in the subject area
and ability and intention to effectively convey information to the public shall
be considered. It shall be presumed that a representative of the news
media will satisfy this consideration.
(iv) The significance of the contribution to
public understanding: Whether the disclosure is likely to contribute
"significantly" to public understanding of Corporation or Federal government
operations or activities. The public's understanding of the subject in
question, as compared to the level of public understanding existing prior to the
disclosure, must be enhanced by the disclosure to a significant extent.
(2) In order to determine whether disclosure
of the information is not primarily in the commercial interest of the requester,
the Corporation will consider the following two factors:
(i) The existence and magnitude of a
commercial interest: Whether the requester has a commercial interest that
would be furthered by the requested disclosure. LSC shall consider any
commercial interest of the requester (with reference to the definition of
"commercial use" in this Part) or of any person on whose behalf the
requester may be acting, that would be furthered by the requested disclosure.
(ii) The primary interest in disclosure: Whether the
magnitude of the identified commercial interest is sufficiently large, in
comparison with the public interest in disclosure, that disclosure is
"primarily" in the commercial interest of the requester. A fee waiver
or reduction is justified where the public interest is greater in magnitude than
that of any identified commercial interest in disclosure. LSC ordinarily
shall presume that where a news media requester has satisfied the public
interest standard, the public interest will be the interest primarily served by
disclosure to that requester. Disclosure to data brokers or others who
merely compile and market government information for direct economic return
shall not be presumed primarily to serve a public interest.
(3) Where LSC has determined that a fee waiver or
reduction request is justified for only some of the records to be released, LSC
shall grant the fee waiver or reduction for those records.
(4) Requests for fee waivers and reductions shall
be made in writing and must address the factors listed in this paragraph as they
apply to the request.
8. Section 1602.13, Fees, would be further amended by redesignating
current paragraph (j) as paragraph (k); redesignating current paragraph (k) as
paragraph (l); redesignating current paragraph (l) as paragraph (m) and adding a
new paragraph (j) to read as follows:
* * * * *
(j) When a requester has previously failed to pay a properly charged FOIA fee
within 30 days of the date of billing, the Corporation may require the requester
to pay the full amount due, plus any applicable interest, and to make an advance
payment of the full amount of any anticipated fee before the Corporation begins
to process a new request or continues to process a pending request (including
appeals) from that requester.
9. A new section 1602.14, Submitter's rights process, would be added to
read as follows:
(a) When the Corporation receives a FOIA request seeking the release of a
submitter's grant application(s), or portions thereof, the Corporation shall
provide prompt written notice of the request to the submitter in order to afford
the submitter with an opportunity to object to the disclosure of the requested
records (or any portion thereof). The notice shall reasonably describe the
records requested and inform the submitter of the process required by paragraph
(b) of this section.
(b) If a submitter who has received notice of a request for the submitter's
records desires to object to the disclosure of the records (or any portion
thereof), the submitter must identify the information for which disclosure is
objected and provide LSC with a written detailed statement to that effect.
The statement must be submitted to the FOIA Officer in the Office of Legal
Affairs and must specify the grounds for withholding the information under FOIA
or this Part. In particular, the submitter must demonstrate why the
information is commercial or financial information that is privileged or
confidential. The submitter's statement must be provided to LSC within
seven business days of the date of the notice from the Corporation. If the
submitter fails to respond to the notice from LSC within that time, LSC will
deem the submitter to have no objection to the disclosure of the information.
(c) Upon receipt of written objection to disclosure by a submitter, LSC
shall consider the submitter's objections and specific grounds for withholding
in deciding whether to release the disputed information. Whenever LSC
decides to disclose information over the objection of the submitter, LSC shall
give the submitter written notice which shall include:
(1) A description of the information to be
released and a notice that LSC intends to release the information;
(2); A statement of the reason(s) why the
submitter's request for withholding is being rejected; and
(3) Notice that the submitter shall have 5
business days from the date of the notice of proposed release to appeal that
decision to the LSC President, whose decision shall be final.
(d) The requirements of this section shall not apply if:
(1) LSC determines upon initial review of the
requested records they should not be disclosed;
(2) The information has been previously published
or officially made available to the public; or
(3) Disclosure of the information is required by
statute (other than FOIA) or LSC regulations.
(e) Whenever a requester files a lawsuit seeking to compel disclosure
of a submitter's information, LSC shall promptly notify the submitter.
(f) Whenever LSC provides a submitter with notice and opportunity to
oppose disclosure under this section, LSC shall notify the requester that the
submitter's rights process under this section has been triggered.
Whenever a submitter files a lawsuit seeking to prevent the disclosure of the
submitter's information, LSC shall notify the requester.
Victor M. Fortuno
General Counsel and Vice President for Legal Affairs
November 18, 2002
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