[Federal Register Volume 62, Number 122 (Wednesday, June 25, 1997)]
[Proposed Rules]
[Pages 34188-34189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16691]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 0

[GC Docket No. 97-143; FCC 97-198]


Implementation of the Electronic Freedom of Information Act 
Amendments of 1996

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This order proposes to amend the Commission's rules regarding 
implementation of the Electronic Freedom of Information Act Amendments 
of 1996 to comply with the changes mandated by the Electronic Freedom 
of Information Act Amendments of 1996. This proceeding will make it 
easier for the public to request access under the FOIA to the 
Commission's records.

DATES: Comments are due on or before July 25, 1997 and Reply comments 
are due on or before August 8, 1997.

ADDRESSES: Federal Communications Commission, 1919 M Street, N.W., 
Washington, D.C. 20554.

FOR FURTHER INFORMATION CONTACT: Laurence H. Schecker, Office of 
General Counsel, (202) 418-1720.

SUPPLEMENTARY INFORMATION:

    Adopted: June 5, 1997.
    Released: June 19, 1997.

I. Introduction

    1. In this NPRM, we propose to amend Part 0 of the Commission's 
Rules to implement the amendments to the Freedom of Information Act 
(``FOIA'') that were enacted in the Electronic Freedom of Information 
Act Amendments of 1996 (``EFOIA'').1
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    \1\ Public Law 104-231, 110 Stat. 3048 (1996), codified at 
scattered subsections of 5 U.S.C. 552.
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    2. The FOIA, which establishes a right of access to Federal agency 
records, was enacted 30 years ago, before the extensive use of 
computers to create and retain records in electronic formats. With the 
advent and widespread acceptance of new information technologies, 
questions increasingly arose about how electronic records should be 
handled under the FOIA. The EFOIA, signed into law on October 2, 1996, 
``bring[s] FOIA into the information and electronic age'' 2 
through amendments that directly address electronic records. The EFOIA 
also addresses procedural aspects of the FOIA, including the time 
limits for processing FOIA requests.
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    \2\ President Clinton's Statement on Signing H.R. 3802, The 
Electronic Freedom of Information Act Amendments (October 2, 1996).
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    3. Several of the Commission's FOIA rules must be revised to 
conform to the provisions of the EFOIA. We therefore initiate this 
proceeding to implement the EFOIA amendments.

II. Discussion

    4. To implement the EFOIA amendments, we seek comment on the 
proposed revisions to our FOIA rules set forth below. The proposals are 
intended to conform our rules to express requirements of the EFOIA. In 
addition, as directed by the EFOIA, we propose new rules to provide for 
the expedited processing of FOIA requests.
    5. Form or Format Requests. A significant change enacted in the 
EFOIA is the requirement that agencies honor requests that records be 
provided in specific formats, including electronic formats, so long as 
the records are ``readily reproducible by the agency in that form or 
format.'' 3 Prior to this amendment, agencies were under no 
obligation to accommodate a FOIA requester's preferences as to 
format.4 We propose to amend Sec. 0.461(a) of our rules to 
reflect this new requirement.
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    \3\ EFOIA 5, codified at 5 U.S.C. 552(a)(3)(B).
    \4\ See H.R. Rep. No. 795, 104th Cong., 2d Sess. 21 (1996) 
(House Report), citing Dismukes v. Department of the Interior, 603 
F. Supp. 760, 763 (D.D.C. 1984).
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    6. Time for Processing Initial FOIA Requests. The EFOIA provides 
that, effective October 2, 1997, agencies will have 20 working days 
(rather than the current 10 working days) to respond to initial FOIA 
requests.5 To implement the statutory amendment, we propose 
to amend Sec. 0.461(g) of our FOIA rules.6
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    \5\ EFOIA Sec. 8(b), codified at 5 U.S.C. 552(a)(6)(A)(i). See 
House Report at 26-27.
    \6\ 47 CFR 0.461(g).
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    7. The EFOIA further recognizes that in some circumstances, 
agencies may need more than 20 working days to process FOIA requests. 
Prior to the EFOIA's enactment, agencies were permitted to extend the 
time for responding to initial FOIA requests an additional 10 working 
days,7 and these provisions remain in effect. However, if an 
extension of more than 10 working days is sought, the EFOIA amendments 
require that an agency provide requesters with the opportunity both to 
limit the scope of their requests to enable processing within the 10 
day statutory time limit for extensions, or to negotiate an alternate 
time frame for processing requests.8 We propose to

[[Page 34189]]

amend Sec. 0.461(g) of our FOIA rules to reflect these 
changes.9
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    \7\ Former 5 U.S.C. 552(a)(3)(B); 47 CFR 0.461(g).
    \8\ EFOIA Sec. 7(b), codified at 5 U.S.C. 552(a)(6)(B). If the 
requester refuses either option, or no agreement can be reached with 
the agency, a court must take this into account in considering 
whether to afford an agency additional time to process the request. 
EFOIA 7, codified at 5 U.S.C. 552(a)(6)(B)(ii) and 552(a)(6)(C).
    \9\ 47 CFR 0.461(g).
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    8. Expedited Processing. The EFOIA requires agencies to promulgate 
through a notice and comment rulemaking regulations to consider 
requests for ``expedited processing'' of initial FOIA 
requests.10 Such requests must be granted whenever a 
``compelling need'' is shown and may be granted in other cases as 
determined by the agency.11 ``Compelling need'' is defined 
in the EFOIA as (1) involving ``an imminent threat to the life or 
physical safety of an individual''; 12 or (2) in the case of 
a request made by ``a person primarily engaged in disseminating 
information, urgency to inform the public concerning actual or alleged 
Federal Government activity.'' 13 When a request for 
expedited processing is made, an agency must notify the requester of 
its decision whether or not to grant the request for expedition within 
10 calendar days.14 If expedited processing is granted, an 
agency must process the request as soon as practicable.15 If 
the request is denied, an agency must grant expedited consideration of 
appeals of such a denial.16
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    \10\ EFOIA 8(a), codified at 5 U.S.C. 552(a)(6)(E).
    \11\ EFOIA 8(a), codified at 5 U.S.C. 552(a)(2)(E)(i).
    \12\ 5 U.S.C. 552(a)(6)(E)(v)(I). The House Report at 26 
explains that ``A threat to an individual's life or physical safety 
qualifying for expedited access should be imminent. A reasonable 
person should be able to appreciate that a delay in obtaining the 
requested information poses such a threat.''
    \13\ 5 U.S.C. 552(a)(6)(E)(v)(II). According to the House Report 
at 26, to qualify for expedited processing, the dissemination of 
information must be the ``main activity'' of the requester. The 
``urgency to inform'' standard requires that the information 
requested pertain to ``a matter of current exigency to the American 
public'' and that delay would compromise a significant recognized 
interest, but, by itself, the public's right to know is not enough.
    \14\ 5 U.S.C. 552(a)(2)(E)(ii)(I).
    \15\  5 U.S.C. 552(a)(6)(E)(iii).
    \16\  5 U.S.C. 552(a)(6)(E)(ii)(II).
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    9. To implement the expedited processing requirements of the EFOIA 
amendments, we propose to amend section 0.461 of our FOIA rules by 
adding a new paragraph (h). Our proposal for the most part tracks the 
language of the statute. The proposed rules place on the requester the 
burden of demonstrating a compelling need.17 As required by 
5 U.S.C. 552(a)(6)(E)(ii)(II), the rules also must provide for 
administrative appeals of a denial of a request for expedited 
processing. We propose to allow for the filing of an application for 
review within five working days of the denial of a request for 
expedited processing. The Commission will act expeditiously on such 
applications.
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    \17\ See House Report at 25 (requester bears the burden of 
showing expedition is appropriate).
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    10. Miscellaneous Revisions. The EFOIA requires that the Commission 
make available a guide for requesting records or information from the 
Commission.18 The Commission's Public Service Division of 
the Office of Public Affairs has long published annually a guide to 
finding information at the FCC.19 We propose to amend 
Sec. 0.443 of our rules to reflect the availability of this important 
resource tool for the public. We also propose to amend our rules to 
reflect the availability of Commission records and information on the 
Internet.
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    \18\ EFOIA Sec. 11, codified at 5 U.S.C. 552(g). See House 
Report at 29-30.
    \19\ Information Seekers Guide: How to Find Information at the 
FCC, Public Service Division, Office of Public Affairs, FCC (January 
1997).
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III. Procedural Matters

    11. Ex Parte. This is a permit-but-disclose rulemaking proceeding. 
Ex parte presentations are permitted, except during the Sunshine Agenda 
period, provided they are disclosed as provided in Commission rules. 
See 47 CFR 1.1202, 1.1203, and 1.1206(a).
    12. Regulatory Flexibility Act Certification. Section 603 of the 
Regulatory Flexibility Act, as amended (``RFA''),20 requires 
an initial regulatory flexibility analysis in notice and comment 
rulemaking proceedings unless we certify that ``the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.'' 21 The purpose of this Notice is to 
implement the amendments to the FOIA enacted through the EFOIA. In 
particular, the proposed rules concern time limits for processing FOIA 
requests, requests for expedited processing, and requests that records 
be produced in specific formats. The proposed rules for the most part 
simply adopt the language of the EFOIA amendments. There is no reason 
to believe that the revised rules will impose any costs on FOIA 
requesters beyond those costs incurred under our former rules. 
Accordingly, we certify, pursuant to section 605(b) of the RFA, that 
the proposed rules will not have a significant economic impact on a 
substantial number of small entities. The Secretary shall send a copy 
of this certification to the Chief Counsel for Advocacy of the Small 
Business Administration. A copy of this certification will also be 
published in the Federal Register.
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    \20\ 5 U.S.C. 603.
    \21\ 5 U.S.C. 605(b).
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    13. Filing Comments. Pursuant to the procedures set forth in 47 CFR 
1.415 and 1.419, interested parties may file comments on or before July 
25, 1997, and reply comments on or before August 8, 1997 after 
publication of this proposed rule in the Federal Register. All relevant 
and timely comments will be considered by the Commission before final 
action is taken in this proceeding. To file formally in this 
proceeding, participants must file an original and four copies of all 
comments, reply comments, and supporting comments. If participants want 
each Commissioner to receive a personal copy of their comments, an 
original plus nine copies must be filed. Comments and reply comments 
should be sent to the Office of the Secretary, Federal Communications 
Commission, 1919 M Street, N.W., Room 222, Washington, DC 20554. 
Parties should also submit one copy of any documents filed in this 
docket with ITS, 2100 M Street, N.W., Suite 140, Washington, DC 20037. 
Comments and reply comments will be available for public inspection 
during regular business hours in the Dockets Reference Room (Room 239) 
of the Federal Communications Commission, 1919 M Street, N.W., 
Washington, DC 20554.
    14. Contact Persons. For further information concerning this 
proceeding contact Laurence H. Schecker or Linda P. Armstrong, Office 
of General Counsel, at (202) 418-1720.

IV. Ordering Clause

    15. Accordingly, it is ordered that pursuant to sections 4(i) and 
4(j) of the Communications Act of 1934, as amended, 47 U.S.C. 
Secs. 154(i) and 154(j), and the Electronic Freedom of Information Act 
Amendments of 1996, Public Law 104-231, 110 Stat. 3048 (1996), a Notice 
of Proposed Rulemaking is hereby adopted.

List of Subjects in 47 CFR Part 0

    Freedom of information.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-16691 Filed 6-24-97; 8:45 am]
BILLING CODE 6712-01-P