[Federal Register Volume 63, Number 249 (Tuesday, December 29, 1998)]
[Rules and Regulations]
[Pages 71587-71589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34443]


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UNITED STATES INFORMATION AGENCY

22 CFR Part 503


Freedom of Information Act Regulations; Electronic Records

AGENCY: United States Information Agency.

ACTION: Final rule; amendment.

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SUMMARY: This document amends the Agency's current regulations 
implementing the Freedom of Information Act (FOIA) in order to conform 
with the amendments required by the Electronic Records Act of 1996.

EFFECTIVE DATE: January 28, 1999.

ADDRESSES: Freedom of Information Office, United States Information 
Agency, Room M-29, 301 4th Street, SW, Washington, DC 20547.

FOR FURTHER INFORMATION CONTACT:
Lola L. Secora, Chief, FOIA/PA Unit, (202) 619-5499.

SUPPLEMENTARY INFORMATION: The United States Information Agency 
published a Notice of Proposed Rulemaking to amend its FOIA regulations 
on April 1, 1998 (63 FR 15800-15802). Pursuant to that notice, USIA 
received only one comment from the public. While USIA noted that 
electronic information was available via ``computer,'' and meant that 
it was available electronically through the Internet (as this law 
requires), the public comment sought clarification and so the wording 
has been changed to denote that Agency information is available 
electronically through the ``Internet,'' and not just through a 
computer located at USIA. The final rule is based on the proposed rule. 
This addition Sec. 503.9 is required by the Electronics Records Act of 
1996, as amended by Public Law 104-231, October 2, 1996, 110 Stat. 
3049-3054 (5 U.S.C. 552). It has been determined that this addition is 
not a significant regulatory action and it will not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof;
    (4) Have a significant economic impact on a substantial number of 
small entities; or
    (5) Impose any reporting or record keeping requirements under the 
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

List of Subjects in 22 CFR Part 503

    Freedom of information.

    Accordingly, 22 CFR part 503 is amended as set forth below.

PART 503--FREEDOM OF INFORMATION ACT REGULATION

    1. The authority citation for Part 503 continues to read as 
follows:

    Authority: 5 U.S.C. 301, 552; 13 U.S.C. 8; 22 U.S.C. 503, 2658; 
E.O. 10477, 18 FR 4540, 3 CFR, 1949-1953 Comp., p. 958; E.O. 10822, 
24 FR 4159, 3 CFR, 1959-5963 Comp., p. 355; E.O. 12292, 46 FR 13967, 
3 CFR, 1981 Comp., p. 134; E.O. 12356, 47 FR 14874 and 15557, 3 CFR, 
1982 Comp., p. 166; E.O. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p. 
333.

    2. Section 503.9 is added to read as follows:


Sec. 503.9  Electronic Records Act of 1996.

    (a) Introduction. This section applies to all records of the United 
States Information Agency, including all of its foreign posts. Congress 
enacted the FOIA to require Federal agencies to make records available 
to the public through public inspections and at the request of any 
person for any public or private use. The increase in the Government's 
use of computers enhances the public's access to Government 
information. This section addresses and explains how records will be 
reviewed and released when the records are maintained in electronic 
format. Documentation not previously subject to the FOIA when 
maintained in a non-electronic format is not made subject to FOIA by 
this law.
    (b) Definitions--(1) Compelling need. Obtaining records on an 
expedited basis because of an imminent threat to the life of physical 
safety of an individual, or urgently needed by an individual primarily 
engaged in disseminating information to the public concerning actual or 
alleged Federal Government activities.
    (2) Discretionary disclosure. Records or information normally 
exempt from disclosure will be released whenever it is possible to do 
so without reasonably foreseeable harm to any interest protected by an 
FOIA exemption.
    (3) Electronic reading room. The room provided which makes 
electronic records available.
    (c) Electronic format of records. (1) Materials such as Agency 
opinions and policy statements (available for public inspection and 
copying) will be available electronically by accessing USIA's Home Page 
via the Internet at http://www.usia.gov. To set up an appointment to 
view such records in hard copy or to access the Internet via USIA 
computer, please contact the FOIA/PA Unit on (202) 619-5499.
    (2) The Agency will make available for public inspection and 
copying, both electronically via the Internet and in hard copy, those 
records that have been previously released in response to FOIA 
requests, when the Agency determines the records have been or are 
likely to be the subject of future requests.
    (3) The Agency will provide both electronically through its 
Internet address and in hard copy a ``Guide'' on how to make an FOIA 
request, and an Index of all Agency information systems and records 
that may be requested under the FOIA.
    (4) The Agency may delete identifying details when it publishes or 
makes

[[Page 71588]]

available the index and copies of previously-released records to 
prevent a clearly unwarranted invasion of personal privacy.
    (i) The Agency will indicate the extent of any deletions made from 
where the deletion was made, if feasible.
    (ii) The Agency will not reveal information about deletions if such 
disclosure would harm an interest protected by an exemption.
    (d) Honoring form or format requests. The Agency will aid 
requesters by providing records and information in the form requested, 
including electronic format, if we can readily reproduce them in that 
form or format. However, if we cannot accommodate the requester, we 
will provide responsive, nonexempt information in a reasonably 
accessible form.
    (1) The Agency will make a reasonable effort to search for records 
kept in an electronic format. However, if the effort would 
significantly interfere with the operations of the Agency or the 
Agency's use of its computers, we will consider the effort to be 
unreasonable.
    (2) The Agency need not create documents that do not exist, but 
computer records found in a database rather than in a file cabinet may 
require the application of codes of some form of programming to 
retrieve the information. This application of codes of programming of 
records will not amount to the creation of records.
    (3) Except in unusual cases, the cost of computer time will not be 
a factor in calculating the two free hours of search time available 
under $503.7 In those unusual cases, where the cost of conducting a 
computerized search significantly detracts from the Agency's ordinary 
operations, no more than the dollar equivalent of two hours of manual 
search time shall be allowed. For searches conducted beyond the first 
two hours, the Agency shall only charge the direct costs of conducting 
such searches.
    (e) Technical feasibility of redacting non-releasable material. The 
Agency will make every effort to indicate the place on the record where 
a redaction of non-releasable material is made, and an FOIA citation 
noting the applicable exemption for the deletion will also be placed at 
the site. If unable to do so, we will notify you of that fact.
    (f) Ensuring timely response to request. The Agency will make every 
attempt to respond to FOIA requests within the prescribed 20 working-
day time limit. However, processing some requests may require 
additional time in order to properly screen material against the 
inadvertent disclosure of material covered by the exemptions.
    (1) Multitrack first-in first-out processing. (i) Because the 
Agency has been able to process its requests without a backlog of 
cases, USIA will not institute a multitract system. Those cases that 
may be handled easily, because they require only a few documents or a 
simple answer, will be handled immediately by each specialist.
    (ii) If you wish to qualify for processing under a faster track, 
you may limit the scope of your request so that we may respond more 
quickly.
    (2) Unusual circumstances. (i) The Agency may extend for a maximum 
of ten working days the statutory time limit for responding to an FOIA 
request by giving notice in writing as to the reason for such an 
extension. The reasons for such an extension may include: the need to 
search for and collect requested records from multiple offices; the 
volume of records requested; and, the need for consultation with other 
components within the Agency.
    (ii) If an extra ten days still does not provide sufficient time 
for the Agency to deal with your request, we will inform you that the 
request cannot be processed within the statutory time limit and provide 
you with the opportunity to limit the scope of your request and/or 
arrange with us a negotiated deadline for processing your request.
    (iii) If you refuse to reasonable limit the scope of your request 
or refuse to agree upon a time frame, the Agency will process your case 
as it would have, had no modification been sought. We will make a 
diligent, good-faith effort to complete our review within the statutory 
time frame.
    (3) Aggregation of requests. The Agency will aggregate requests 
that clearly involve related material that should be considered as a 
single request.
    (i) If you make multiple or related requests for similar material 
for the purpose of avoiding costs, the Agency will notify you that we 
are aggregating your requests, and the reasons why.
    (ii) Multiple or related requests may also be aggregated, such as 
those involving requests and schedule, but you will be notified in 
advance if we intend to do so.
    (g) Time periods for Agency consideration of requests--(1) 
Expedited access. The Agency will authorized expedited access to 
requesters who show a compelling need for access, but the burden is on 
the requester to prove that expedition is appropriate. The Agency will 
determine within ten days whether or not to grant a request for 
expedited access and will notify the requester of its decision.
    (2) Compelling need for expedited access. Failure to obtain the 
records within an expedited deadline must pose an imminent threat to an 
individual's life or physical safety; or the request must be made by 
someone primarily engaged in disseminating information, and who has an 
urgency to inform the public about actual or alleged Federal Government 
activity.
    (3) How to request expedited access. We will be required to make 
factual and subjective judgments about the circumstances cited by 
requesters to qualify them for expedited processing. To request 
expedited access, your request must be in writing and it must explain 
in detail your basis for seeking expedited access. The categories for 
compelling need are intended to be narrowly applied:
    (i) A threat to an individual's life or physical safety. A threat 
to an individual's life or physical safety should be imminent to 
qualify for expedited access to the records. You must include the 
reason why a delay in obtaining the information could reasonably be 
foreseen to cause significant adverse consequences to a recognized 
interest.
    (ii) Urgency to inform. The information requested should pertain to 
a matter of a current exigency to the American public, where delay in 
response would compromise a significant recognized interest. The person 
requesting expedited access under an ``urgency to inform,'' must be 
primarily engaged in the dissemination of information. This does not 
include individuals who are engaged only incidentally in the 
dissemination of information. ``Primarily engaged'' requires that 
information dissemination be the main activity of the requester. A 
requester only incidentally engaged in information dissemination, 
besides other activities, would not satisfy this requirement. The 
public's right to know, although a significant and important value, 
would not by itself be sufficient to satisfy this standard.
    (4) Expansion of Agency response time. The new law provides that 
agencies now have 20 working-days to respond to all FOIA requests. 
However, when possible, we will continue to respond to requests within 
the former 10 working-day time frame.
    (5) Estimation of matter denied. The Agency will try to estimate 
the volume of any denied material and provide the estimate to the 
requester, unless doing so would harm an interest protected by an 
exemption,

[[Page 71589]]

    (h) Computer redaction. The Agency will identify the location of 
deletions in the released portion of the records, and where 
technologically feasible, will show the deletion at the place on the 
record where the deletion was made, unless including that indication 
would harm an interest protected by an exemption.
    (i) Report to Congress. In addition to the information already 
provided to Congress in the Agency's Annual Report on FOIA Activities, 
the Agency will include the following: the number of Privacy Act (PA) 
requests handled; the number of backlogged requests; the number of days 
taken to process requests; the number of staff devoted to processing 
FOIA requests; whether a claimed (b)(3) statute has been upheld in 
court; and the costs of litigation. The Agency's annual report will be 
available both in hard copy and through the Internet. In the past, 
annual reports were required based on a calendar year and were provided 
to Congress on or before March 1 of the following year. However, the 
new law has changed the annual reporting requirements now to be related 
to the Agency's fiscal year. Thus, the Annual Report to Congress on 
FOIA Activities for 1997 only encompassed the first nine months 
(January through September), and was reported by March 1, 1998. The FY 
98 report will begin in October 1997 and conclude at the end of 
September 1998. This report will be presented to the Department of 
Justice instead of Congress, by February 1, 1999, and Justice will 
report all Federal agency FOIA activity through electronic means.
    (j) Reference materials and guides. The Agency has available in 
hard copy, and will have electronically via the Internet, a guide for 
requesting records under the FOIA and an index and description of all 
major information systems of the Agency. The guide is a simple 
explanation of what the FOIA is intended to do, and how you can use it 
to access USIA records. The Index explains the types of records that 
may be requested from the Agency through FOIA requests and why some 
records cannot, by law, be made available by USIA.
Les Jin,
General Counsel.
[FR Doc. 98-34443 Filed 12-28-98; 8:45 am]
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