[Federal Register Volume 65, Number 37 (Thursday, February 24, 2000)]
[Rules and Regulations]
[Pages 9201-9207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4318]


=======================================================================
-----------------------------------------------------------------------

FEDERAL ELECTION COMMISSION

11 CFR Parts 2, 4 and 5

[Notice 2000-3]


Electronic Freedom of Information Act Amendments

AGENCY: Federal Election Commission.

ACTION: Final rules and statement of basis and purpose.

-----------------------------------------------------------------------

SUMMARY: The Electronic Freedom of Information Act Amendments of 1996, 
which amended the Freedom of Information Act, were designed to make 
government documents more accessible to the public in electronic form. 
The amendments also expedite and streamline the process by which 
agencies disclose information generally. The Commission is revising its 
Freedom of Information Act regulations both to comply with these new 
requirements and to address issues that have arisen since the rules 
were originally adopted.

DATES: These rules will become effective on March 27, 2000

FOR FURTHER INFORMATION CONTACT: Ms. Rosemary C. Smith, Assistant 
General Counsel, or Ms. Rita A. Reimer, Attorney, 999 E Street, NW, 
Washington, DC 20463, (202) 694-1650 or (800) 424-9530 (toll-free).

SUPPLEMENTARY INFORMATION: The Freedom of Information Act (``FOIA'') 
provides for public access to all federal agency records except those 
that are protected from release by specified exemptions. 5 U.S.C. 552. 
In 1996, Congress enacted the ``Electronic Freedom of Information Act 
Amendments of 1996'' (``EFOIA''), Public Law 101-231, 110 Stat. 2422. 
EFOIA extended coverage of the FOIA to electronic records and made 
other changes in FOIA procedures that expedite and streamline the 
process by which agencies disclose information. The revisions to the 
Commission's FOIA rules published today in part conform these rules to 
the new EFOIA requirements and in part reflect issues that have arisen 
since the rules were originally adopted.
    The Commission's FOIA rules are found at 11 CFR Part 4, while 
access to documents made public by the Commission's Public Disclosure 
Division is governed by 11 CFR Part 5. The revisions published today 
affect 11 CFR 4.1, 4.4, 4.5, 4.7, 5.1 and 5.4. In addition, the 
Commission is making technical amendments to 11 CFR 2.2 and 2.5, 
sections of its Government in Sunshine regulations.
    The Notice of Proposed Rulemaking (``NPRM'') on these rules was 
published in the Federal Register on March 4, 1999. 64 FR 10405. The 
Commission received one joint comment in response to the NPRM, from 
Public Citizen and the Freedom of Information Clearinghouse. This 
comment is discussed in more detail below.

Statement of Basis and Purpose

    EFOIA requires agencies to make covered records available by 
electronic means. The Commission fully supports this goal and fulfills 
the bulk of its FOIA requests electronically. For example, during 
calendar year 1998, of the 462 FOIA requests that the Commission 
granted in their entirety, 424 were for on-line computer access.\1\
---------------------------------------------------------------------------

    \1\ Of the 486 FOIA requests received in 1998, only 24 were 
denied. Ten of these were denied because the Commission did not have 
records responsive to the requests; thirteen requests were denied 
because the Commission had already placed the requested records on 
the public record prior to the filing of the requests, pursuant to 
11 CFR 4.4; and one request was denied due to exempt documents, as 
stipulated under 11 CFR 4.5.
---------------------------------------------------------------------------

    The Commission's home page on the World Wide Web, www.fec.gov, 
contains a wide range of information on Commission policies and 
procedures, as well as campaign finance data. The material available 
includes summaries and searchable databases of campaign contributions; 
the FEC newsletter, the Record; candidate and committee Campaign 
Guides, reporting forms, and other FEC publications; news releases and 
media advisories; statistics and data on voting and elections; the text 
of the Commission's regulations; FEC Advisory Opinions extending back 
to 1977; summaries of court cases to which the Commission was a party; 
and images of campaign finance reports filed by

[[Page 9202]]

candidates for the House, presidential campaigns, and other political 
committees, as well as reports filed by the Democratic Senatorial 
Campaign Committee and the National Republican Senatorial Committee.
    The revised site includes a Site Index (alphabetical listing of 
information on the site), a ``What's New'' scrolling menu, daily 
highlights, and publications written in Spanish. The site also includes 
the Commission's annual FOIA Report, submitted to Congress pursuant to 
5 U.S.C. 552(e), detailed information on how to submit a FOIA request, 
and a publication, Availability of FEC Information, which fulfills the 
agency's responsibilities under 5 U.S.C. 552(g) to ``prepare and make 
publicly available upon request, reference material or a guide for 
requesting records or information from the agency.''
    The Commission is continuing to add information to this site. For 
example, campaign finance reports filed by Senate candidates and 
committees that support them will be added as soon as copies of those 
reports, which are filed with the Secretary of the Senate pursuant to 2 
U.S.C. 432(g)(1), are made available to the Commission in a form that 
can be imaged onto the site.
    The Commission recently redesigned its web site by reorganizing the 
available information in a more efficient presentation. It has also 
implemented Media-Independent Presentation Language, technology 
designed to allow persons with special needs to access many types of 
information using a wide variety of hardware and software solutions.
    The Commission's 1999 publication, Availability of FEC Information, 
supra, provides a detailed listing of the types of documents available 
from the FEC, including those available under FOIA, as well as 
directions on how to locate and obtain them. This publication is 
available from the Public Records Office and also appears on the FEC 
web site.
    The Commission also makes numerous documents available through its 
electronic FAXLINE, 202-501-3413. Information on documents available 
through the FAXLINE can be found in a FAXLINE menu (document #411), on 
the Commission's web site, in the above publication, or by calling the 
Commission's Public Records Office at 1-800-424-9530, extension #3 
(toll free) or 202-694-1120. That Office also responds to E-mail 
requests at [email protected]. The Commission's Information Division can 
be reached at 1-800-424-9530, ext. #1 (toll free), or 202-694-1100.

Section 2.2 Definitions

    The Commission is revising paragraph 2.2(b), a part of its 
Government in the Sunshine regulations, to delete an obsolete reference 
to the Secretary of the Senate, the Clerk of the House, or their 
designees ex officio from the definition of ``Commissioner.'' These 
offices were declared unconstitutional in FEC v. NRA Political Victory 
Fund, 6 F.3d 821 (D.C. Cir. 1993), cert. dismissed for want of 
jurisdiction, 513 U.S. 88 (1994).

Section 2.5. Procedures for Closing Meetings

    The Commission is also deleting a phrase referring to these ex 
officio members from paragraph (a) of this section.

Section 4.1 Definitions

    The Commission is revising paragraph 4.1(b) to delete an obsolete 
reference to congressional officials who no longer serve on the 
Commission. See discussion of 11 CFR 2.2, supra.
    Consistent with EFOIA, the Commission is revising the definition of 
search found at paragraph 4.1(h) to clarify that this encompasses all 
time spent reviewing Commission records, whether manually or by 
automated means. 5 U.S.C. 552(a)(3)(D). The Commission is also adding 
new paragraph 4.1(o), which states that the term record and any other 
term used in 11 CFR part 4 in reference to information maintained by 
the Commission includes any pertinent information that is maintained in 
an electronic format.

Section 4.4 Availability of Records

    The Commission is a full disclosure agency that routinely places 
numerous categories of records on the public record, consistent with 
the rights of individuals to privacy; the rights of persons contracting 
with the Commission with respect to trade secret and commercial or 
financial information; and the need for the Commission to promote free 
internal policy deliberations and to pursue its official activities 
without undue disruption. Examples of categories of records made 
publicly available by the Commission that do not require a FOIA request 
include campaign finance reports, which are placed on the public record 
within 48 hours of receipt at the Commission, as required by 2 U.S.C. 
438(a)(4); investigative files in closed enforcement matters, which are 
placed on the public record within 30 days of the date of the close-out 
letter, as required under 2 U.S.C. 437g(a)(4)(B)(ii) and 11 CFR 
111.20(a); and requests for advisory opinions pursuant to 2 U.S.C. 
437f(d) and 11 CFR 112.2. Because these records are made publicly 
available pursuant to the Federal Election Campaign Act (``FECA''), 
requests for them generally are not processed under FOIA--requesting 
them under FOIA may even cause the requester to lose time in gaining 
the needed information. Consequently, the Commission has restructured 
and revised parts of paragraph 4.4(a), which deals with the 
availability of records under FOIA, to reflect this situation.
    Section 4.4(a) as formerly written covered both FOIA sections 5 
U.S.C. 552(a)(2) and 552(a)(3). Section 552(a)(2) encompasses final 
opinions, including concurring and dissenting opinions, as well as 
orders, made in the adjudication of cases; statements of policy and 
interpretations which have been adopted by the Commission but are not 
published in the Federal Register; and administrative staff manuals and 
instructions to staff that affect a member of the public. Section 
552(a)(3) includes all other documents covered by the FOIA, that is, 
all documents that are not subject to one or more of the exceptions set 
forth at 5 U.S.C. 552(b).
    Paragraphs 11 CFR 4.4(a)(1)-(3), which are largely unchanged, refer 
to material covered by 5 U.S.C. 552(a)(2), while former paragraphs 
4.4(a)(4)-(15) listed other agency documents. The NPRM noted that this 
latter listing might not have included all covered documents. It was 
also overinclusive, since it covered materials that are also available 
from the Commission's Public Disclosure Division. See former 11 CFR 
4.4(b). The Commission has therefore replaced the listing of covered 
documents in former paragraphs 4.4(a)(4)-(15) with a general statement 
in new paragraph 4.4(b) that, in accordance with 5 U.S.C. 552(a)(3), 
the Commission will make available, upon proper request, all non-exempt 
Agency records, or portions of records, that have not previously been 
made public pursuant to 5 U.S.C. 552(a)(1) and (a)(2). Former paragraph 
4.4(b), which noted that public access to the materials listed in 
former paragraphs 4.4(a)(3) and (a)(10)-(15) are also available under 
the FECA from the Public Disclosure Division, has been repealed, 
because some of these provisions are being replaced by language in 11 
CFR 5.4, while other provisions duplicate language found elsewhere in 
the regulations.\2\
---------------------------------------------------------------------------

    \2\ Records that an agency has previously made available to the 
public under section 552(a)(2) need not be released again in 
response to a FOIA request made pursuant to section 552(a)(3). 
Department of Justice v. Tax Analysts, 492 U.S. 136, 152 (1989).

---------------------------------------------------------------------------

[[Page 9203]]

    The Commission is not revising paragraphs (a)(1) or (a)(2) of 
section 4.4. The Commission is revising paragraph (a)(3), however, to 
delete language referring to Commission votes to take no further action 
in an enforcement action, which sometimes but not always occurs in 
connection with a decision to close a file. For example, if the 
Commission votes to accept a conciliation agreement, this serves to end 
the matter--there is no vote as such to take no further action in the 
case. A further revision clarifies that all respondents must be 
notified of the Commission's action before this 30-day period for the 
Commission to make these records public begins to run.
    In addition, the material in former paragraphs 4.4(a)(4), dealing 
with letter requests for guidance \3\ and the Commission's responses 
thereto; 4.4(a)(5), minutes of Commission meetings; 4.4(a)(6), material 
routinely prepared for public distribution; and 4.4 (a)(14), audit 
reports discussed in public session, has been moved to revised 11 CFR 
5.4(a), the appropriate location for information available from the 
Commission's Public Disclosure Division. Former paragraphs 4.4(a)(7), 
proposals submitted in response to a request for proposals under 
Federal Procurement Regulations; 4.4(a)(8), contracts for goods and 
services entered into by the Commission; and 4.4(a)(13), studies 
published by the Commission's Office of Election Administration, have 
been deleted, since this material is covered by the new general 
language in paragraph 4.4(b). Finally, paragraph 4.4(a)(9), statements 
and certifications required by the Government in the Sunshine Act, 5 
U.S.C. 552b, has been repealed, as these documents are covered by the 
Commission's Sunshine regulations, 11 CFR part 2.
---------------------------------------------------------------------------

    \3\ Letter requests for guidance are letters that appear to be 
advisory opinion requests but do not meet the requirements of 2 
U.S.C. 437f and 11 CFR Part 112. In appropriate cases Commission 
staff respond to these requests with information and guidance.
---------------------------------------------------------------------------

    Consistent with new 5 U.S.C. 552(1)(2)(D) and (E), the Commission 
is revising paragraphs (a)(4) and (5) of section 4.4 to include new 
material that will be made available under EFOIA. The new categories 
include copies of all records that have been released to any person in 
response to a previous FOIA request and that the Commission determines 
have become, or are likely to become, the subject of subsequent 
requests for substantially the same records; and a general index of 
these records. The Commission is also revising the first sentence of 
paragraph 4.4(c), to include within the listing of indexes and 
supplements it makes available to the general public the additional 
documents referenced in EFOIA at 5 U.S.C. 552(a)(2)(E). In particular, 
the Commission's publication, Availability of FEC Information, 
discussed supra, which is available on the Commission's web site, was 
prepared in response to this new EFOIA requirement.
    In addition to the above activity, the comment urged the Commission 
to put in place the Government Information Locator System required by 
the Paperwork Reduction Act of 1995 at 44 U.S.C. 3511. The Commission 
declines to do this, because it is statutorily exempt from coverage 
under that Act. See 44 U.S.C. 3502(1).
    As requested by the comment, the Commission is adding new paragraph 
4.4(g) to alert the public to the Commission's web site and the wealth 
of information it contains. However, the Commission is not providing in 
its regulations a detailed listing of available material, as suggested 
by the commenters, since new information is added to the web site on an 
ongoing basis, and because the Commission's 1999 brochure, Availability 
of FEC Information, provides a detailed list of available material--
precisely the sort suggested by the commenters.

Section 4.5 Categories of Exemptions

Estimates of the Volume of Materials Denied
    EFOIA at 5 U.S.C. 552(a)(6)(F) requires that agency responses 
denying exempt information include an estimate of the volume of any 
responsive documents the agency is withholding. It also requires that 
when an agency withholds only a portion of a record, the response 
indicate the amount of information deleted from the released record; 
and that, where possible, this be noted at the place of the deletion. 5 
U.S.C. 552(b)(9). Paragraph 4.5(c) of the Commission's regulations has 
been revised to implement this new requirement.
    The NPRM proposed no changes to the Commission's rules at 11 CFR 
4.5(d), which address other agencies' records or subject matter to 
which a government agency other than the Commission has exclusive or 
primary jurisdiction. This regulation states that, when a FOIA request 
seeking such records is received, the request ``shall be promptly 
referred by the Commission to that agency for disposition or guidance 
as to disposition.''
    The joint comment cites McGehee v. CIA, 697 F.2d 1095, 1119 (D.C. 
Cir. 1983), vacated in part, mot. to intervene granted, reh'g granted, 
724 F.2d 201 (D.C. Cir. l984), and Paisley v. CIA, 712 F.2d 686, 691 
(D.C. Cir. 1983), in urging the Commission to end its practice of 
routinely referring such requests to the issuing agency. However, these 
cases reflect the minority view. The Department of Justice's Freedom of 
Information Act Guide & Privacy Act Overview, Sept. 1998 Edition, at 
25-26 and accompanying notes, directs agencies to consult with other 
agencies whenever a FOIA request implicates those agencies' documents. 
However, ``[w]hen entire records originating with another agency or 
component are located, those records ordinarily should be referred to 
their originating agency for its direct response to the requester.'' 
See also Crooker v. United States Parole Commission, 730 F.2d 1, 4-5 
and n. 3 (1st Cir. 1984). Consequently, the Commission concludes that 
its current practice and regulatory language comply with the pertinent 
law.

Section 4.7 Requests for Records

    EFOIA requires covered agencies to provide requested records in any 
form or format requested, if the record is readily reproducible by the 
agency in that form or format. Each agency must make reasonable efforts 
to maintain its records in forms or formats that are reproducible 
electronically, and to search for requested records in electronic form 
or format, except when such efforts would significantly interfere with 
the operation of the agency's automated information system. 5 U.S.C. 
552(a)(3)(B), (C).
    The Commission is removing and reserving former paragraph 4.7(a), 
which advises interested parties on how to obtain records from the 
Commission's Public Records Office, since those records are no longer 
covered by 11 CFR part 4. Identical information is contained in 11 CFR 
5.5, which concerns access to records that may be obtained from the 
Commission's Public Disclosure Division. That language has not been 
revised.
    The Commission is redesignating former paragraph 4.7(b), addressing 
what must be contained in a FOIA request, as paragraph 4.7(b)(1) and 
adding new paragraph 4.7(b)(2) to comply with this new requirement. The 
new language requires requests for Commission records to specify the 
preferred form or format, including electronic formats, for the 
agency's response. The Commission will accommodate requesters as to 
form or format if the record is readily available in that form. If a 
requester does not specify the form or format of the response, the 
Commission will respond in the form or format in which the

[[Page 9204]]

document is most accessible to the Commission.
1. Time Limit for Responding to Requests
    EFOIA lengthened the time within which agencies must determine 
whether to comply with a FOIA request from ten to twenty working days. 
5 U.S.C. 552(a)(6)(A)(i). Paragraph 4.7(c) has been revised to conform 
the Commission's regulations to this new time limit.
    In addition, the Commission is revising the first sentence of 
paragraph 4.7(c) to conform with 5 U.S.C. 552(a)(6)(A). The statutory 
language provides that each agency shall determine within twenty days 
after the receipt of a FOIA request whether to comply with the request. 
However, the former regulation stated that the Commission would provide 
the requested records within ten days. Given the Commission's workload 
and the volume of FOIA requests, the Commission believes the statutory 
timeframe is more realistic than that included in the former rule. 
Accordingly, the revised regulation states that the Commission will 
determine within 20 days after receiving a FOIA request whether to 
comply with that request.
    The FOIA at 5 U.S.C. 552(a)(6)(B) permits agencies, upon written 
notice to the requester, to extend the time limit for responding to a 
request or deciding an appeal of a denial of a request for not more 
than ten working days, if ``unusual circumstances'' exist for the 
extension. EFOIA did not revise the definition of ``unusual 
circumstances,'' but it did revise that section to permit agencies to 
further extend the response time by notifying the requesters and 
providing them with an opportunity to either limit the scope of the 
request so that no extension is needed, or to arrange with the agency 
an alternative time frame for processing the request. 5 U.S.C. 
552(a)(6)(B)(ii). New paragraph 4.7(d) implements this statutory 
procedure.
2. Aggregation of Requests
    EFOIA authorizes agencies to promulgate regulations providing for 
the aggregation of related requests by the same requester or a group of 
requesters acting in concert when the requests would, if treated as a 
single request, present ``unusual circumstances.'' 5 U.S.C. 
552(a)(6)(B)(iv). Such circumstances include the need to search for and 
collect the requested records from diverse locations; the need to 
search for, collect, and examine voluminous separate and distinct 
records which are demanded in a single request; and the need to consult 
with another agency or among two or more Commission offices that each 
have a substantial subject matter interest in the records. 5 U.S.C. 
552(a)(6)(B)(iii) [former section 552(a)(6)(B)].
    New paragraph 4.7(e) implements this statutory provision. As EFOIA 
requires, the regulation provides that requests will be aggregated only 
when the Commission ``reasonably believes that such requests actually 
constitute a single request'' and the requests ``involve clearly 
related matters.'' 5 U.S.C. 552(a)(6)(B)(iv).
3. Multitrack Processing
    EFOIA authorizes agencies to promulgate regulations providing for 
multitrack processing of requests for records based on the amount of 
work and/or time involved in processing requests. 5 U.S.C. 
552(a)(6)(D)(i). Under this approach, requests for records where little 
work or time is required will be placed on a faster track, and 
therefore handled more quickly, than those which entail more work. The 
statute further permits agencies to include in their regulations a 
provision granting a FOIA requester whose request does not qualify for 
the fastest multitrack processing an opportunity to limit the scope of 
the request in order to qualify for faster processing. 5 U.S.C. 
552(a)(6)(D)(ii).
    The Commission believes that multitrack processing is the most 
efficient and fair way to process FOIA requests. If requests are 
processed on a strict first in, first out basis, easily filled requests 
will be processed only after earlier received, complex requests for 
dozens of documents located in offices throughout the Commission. 
Accordingly, the Commission is adopting new paragraph 4.7(f) to provide 
for multitracking and to establish a mechanism whereby requesters may 
seek to have their requests processed more rapidly.
    The commenters urged the Commission to not only adopt a multitrack 
processing system, but also to specify the guidelines it will follow in 
placing requests on the various tracks. Contrary to the commenters' 
assertion, the adoption of a multitrack system itself is discretionary, 
as is the inclusion of specific standards in the regulatory text. The 
Commission rarely encounters difficulties in meeting FOIA deadlines and 
believes a flexible approach is the best way to address this situation.
4. Expedited Processing
    EFOIA requires each agency to promulgate regulations providing for 
the expedited processing of FOIA requests in cases of ``compelling 
need'' and in other cases, if any, determined by the agency. 5 U.S.C. 
552(a)(6)(E)(i). The statute specifies two categories of ``compelling 
need.'' The first is where 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. The second involves a 
request made by a person primarily engaged in disseminating information 
who shows there is an urgent need to inform the public concerning 
actual or alleged federal government activity. 5 U.S.C. 
552(a)(6)(E)(v). The statute also sets out procedures for handling 
requests for expedited processing and for the judicial review of agency 
denials of such requests. 5 U.S.C. 552(a)(6)(E)(ii)-(iv).
    New paragraph 4.7(g) implements EFOIA's expedited processing 
requirements. The Commission emphasizes that, in keeping with Congress' 
express intent that the specified criteria for compelling need ``be 
narrowly applied,'' expedited processing will be granted only in those 
truly extraordinary cases that meet the specific statutory 
requirements. H.R. Rep. No. 795, 104th Cong., 2d Sess. 26 (1996) 
(``House Report''). The legislative history makes it clear that ``the 
expedited process procedure is intended to be limited to circumstances 
in which a delay in obtaining information can reasonably be foreseen to 
cause a significant adverse consequence to a recognized interest.'' Id.
    A requester seeking expedited processing under the ``imminent 
threat'' category of the ``compelling need'' definition will have to 
show that the failure to obtain expeditiously the requested information 
threatens the life or safety of an individual, and that the threat is 
``imminent.'' The fact that an individual or his or her attorney needs 
information for an approaching litigation deadline is not a 
``compelling need'' under this provision.
    A requester seeking expedited processing under the second, 
``urgency to inform,'' category will have to show that he or she is 
``primarily engaged in disseminating information;'' there is an 
``urgency to inform the public'' about the information requested; and 
the information relates to an ``actual or alleged federal government 
activity.''
    To meet the first ``urgency to inform'' criterion, the requester 
must show that his or her principal occupation is disseminating 
information to the public. As the legislative history makes clear, 
``[a] requester who only incidentally engages in information 
dissemination,

[[Page 9205]]

besides other activities, would not satisfy this requirement.'' Id.
    To meet the second ``urgency to inform'' criterion, the requester 
must show more than a general interest in the ``public's right to 
know.'' See id. As explained in the legislative history, a requester 
must show that a delay in the release of the requested information will 
``compromise a significant recognized interest,'' and that the 
requested information ``pertain(s) to a matter of current exigency to 
the American public.'' Id. (emphasis added). It will, therefore, be 
insufficient to base a showing of ``compelling need'' on a reporter's 
desire to inform the public of something he or she believes might be of 
public concern if it were publicized. Rather, a reporter must show that 
the information pertains to a subject currently of significant interest 
to the public and that delaying the release of the information would 
harm the public's ability to assess the subject governmental activity.
    The final ``urgency to inform'' criterion makes it clear that the 
information must relate to the activities of the Commission and 
Commission staff. A request for expedited processing can thus be 
considered for information relating, for example, to a Commission 
decision. The Commission generally will not, however, grant a request 
for expedited processing of information that the Commission has 
collected regarding specific candidates, campaigns or political 
committees.
    EFOIA also authorizes agencies to expand the categories of requests 
qualifying for expedited processing beyond the two specified in the 
statute. 5 U.S.C. 552(a)(6)(E)(i)(II). The joint comment urged the 
Commission to provide expedited service whenever it receives five or 
more requests for substantially the same records, and gave the 
hypothetical of fifty or more requesters waiting their turn to receive 
identical or nearly-identical information.
    It is clear from the legislative history that Congress intended to 
narrowly limit the ``compelling need'' standard. The House Report gives 
as an example of such need Department of Justice procedures that permit 
expedited access ``if a delay would result in the loss of substantial 
due process rights and the information sought is not otherwise 
available in a timely manner.'' House Report at 26, n. 39. As that 
Report further explains, ``Given the finite resources generally 
available for fulfilling FOIA requests, unduly generous use of the 
expedited processing procedure would unfairly disadvantage other 
requesters who do not qualify for its treatment.'' House Report at 26. 
Consequently, the Commission does not believe the receipt of five 
similar requests is sufficient to trigger this process.
    The Commission notes that it rarely receives more than a single 
request for the same records. It has never received five, much less 50, 
requests for the same material. Should that occur in the future, this 
may be a factor used to advance processing of such requests under the 
multitrack system.
    As required by EFOIA at 5 U.S.C. 552(a)(6)(E)(iii), the 
Commission's rules at 11 CFR 4.7(g)(5) state that the Commission will 
process requests to grant expedited processing ``as soon as 
practicable.'' The Commission will also give priority to these 
requests.
5. Redesignations
    The Commission is redesignating former section 4.7(d) as new 
section 4.7(h) and former section 4.7(e) as new section 4.7(i). The 
paragraphs set forth appeal rights of persons denied access to records, 
and the date of receipt of a request, which is the date on which the 
Commission's FOIA officer actually receives the request, respectively. 
The text of these paragraphs has not been changed.

Section 5.1 Definitions

    The Commission is revising paragraph (b) of section 5.1 to delete 
an obsolete reference to congressional officials who no longer serve as 
ex officio members of the Commission. See discussion of 11 CFR 2.2, 
supra.

Section 5.4 Availability of Records

    This section lists the types of records that are available from the 
Commission's Public Records Office. Paragraph (a)(4) has been revised 
to clarify that Opinions of Commissioners rendered in enforcement 
cases, as well as non-exempt General Counsel's Reports, and 
investigatory materials will be placed on the public record no later 
than 30 days from the date on which all respondents are notified that 
the Commission has voted to close the file. The term ``Opinions of 
Commissioners rendered in enforcement cases'' includes not only 
Statements of Reasons but any other document a Commissioner might 
author in this regard. The revision deletes language referring to 
Commission votes to take no further action, which, as explained above, 
does not always occur in connection with a decision to close a file. It 
also clarifies that all respondents must be notified of the 
Commission's action before this 30-day period begins to run.
    The remainder of the section has been revised to mirror the changes 
made to 11 CFR 4.4, supra, addressing records that are available from 
the Public Disclosure Division and thus are not made available in 
response to a FOIA request. Former 11 CFR 4.4(a)(4), which pertains to 
letter requests for guidance and responses thereto, has been moved to 
new paragraph 5.4(a)(5); former 11 CFR 4.4(a)(5), minutes of Commission 
meetings, has been moved to new paragraph 5.4(a)(6); former 11 CFR 
4.4(a)(6), material routinely prepared for public distribution, e.g., 
campaign guidelines, the FEC Record, press releases, speeches, [and] 
notices to candidates and committees, has been moved to new paragraph 
5.4(a)(7); former 11 CFR 4.4(a)(14), audit reports, if discussed in 
open session, has been moved to new paragraph 5.4(a)(8); and former 11 
CFR 4.4(a)(15), agendas for Commission meetings, has been moved to new 
paragraph 5.4(a)(9).
    Please note that, in keeping with its status as a full disclosure 
agency, the Commission defines these terms broadly, to grant the widest 
possible access to Commission materials. For example, the term 
``campaign guidelines'' includes not only those publications called 
``Campaign Guides,'' but also other publications that contain useful 
information to those involved or interested in federal campaigns. These 
include such publications as the Commission's Guideline for 
Presentation in Good Order, which explains how campaigns seeking 
matching funds under the Presidential Primary Matching Payment Account 
Act, 26 U.S.C. 9035 et seq., and other publications to assist publicly-
financed campaigns. The term also includes brochures addressing a wide 
range of campaign-related topics, including, for example, which 
communications require a disclaimer, and how partnerships are treated 
under the FECA.

Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory 
Flexibility Act)

    The attached final rules will not have a significant economic 
impact on a substantial number of small entities. Most of the changes 
conform to statutory amendments that expand the options available to 
covered entities seeking to obtain records from the Commission under 
the Freedom of Information Act, while others clarify the Commission's 
current rules in this area. Therefore the rules will not have a 
significant economic effect on a substantial number of small entities.

[[Page 9206]]

List of Subjects

11 CFR Part 2

    Sunshine Act.

11 CFR Part 4

    Freedom of information.

11 CFR Part 5

    Archives and records.

    For the reasons set forth in the preamble, Chapter I of Title 11 of 
the Code of Federal Regulations is amended to read as follows:

PART 2--SUNSHINE REGULATIONS; MEETINGS

    1. The authority citation for part 2 continues to read as follows:

    Authority: Sec. 3(a), Pub. L. 94-409, 5 U.S.C. 552b.


    2. Section 2.2 is amended by revising paragraph (b) to read as 
follows:


Sec. 2.2  Definitions.

* * * * *
    (b) Commissioner or Member. Commissioner or Member means an 
individual appointed to the Federal Election Commission pursuant to 2 
U.S.C. 437c(a), but does not include a proxy or other designated 
representative of a Commissioner.
* * * * *

    3. Section 2.5 is amended by revising paragraph (a) to read as 
follows:


Sec. 2.5  Procedures for closing meetings.

    (a) General. No meeting or portion of a meeting may be closed to 
the public observation under this section unless a majority of the 
Commissioners votes to take such action. The closing of one portion of 
a meeting shall not justify closing any other portion of a meeting.
* * * * *

PART 4--PUBLIC RECORDS AND THE FREEDOM OF INFORMATION ACT

    4. The authority citation for part 4 continues to read as follows:

    Authority: 5 U.S.C. 552, as amended.


    5. Section 4.1 is amended by republishing the introductory text, 
revising paragraphs (b) and (h) and adding new paragraph (o) to read as 
follows:


Sec. 4.1  Definitions.

    As used in this part:
* * * * *
    (b) Commissioner means an individual appointed to the Federal 
Election Commission pursuant to 2 U.S.C. 437c(a).
* * * * *
    (h) Search means all time spent reviewing, manually or by automated 
means, Commission records for the purpose of locating those records 
that are responsive to a FOIA request, including page-by-page or line-
by-line identification of material within documents. Search time does 
not include review of material in order to determine whether the 
material is exempt from disclosure.
* * * * *
    (o) Record and any other term used in this part in reference to 
information includes any information that would be a Commission record 
subject to the requirements of this part when maintained by the 
Commission in any format, including an electronic format.

    6. Section 4.4 is amended by revising paragraphs (a) and (b) and 
the first sentence of paragraph (c), and adding new paragraph (g) to 
read as follows:


Sec. 4.4  Availability of records.

    (a) In accordance with 5 U.S.C. 552(a)(2), the Commission shall 
make the following materials available for public inspection and 
copying:
    (1) Statements of policy and interpretation which have been adopted 
by the Commission;
    (2) Administrative staff manuals and instructions to staff that 
affect a member of the public;
    (3) Opinions of Commissioners rendered in enforcement cases, 
General Counsel's Reports and non-exempt 2 U.S.C. 437g investigatory 
materials shall be placed on the public record of the Agency no later 
than 30 days from the date on which all respondents are notified that 
the Commission has voted to close such an enforcement file;
    (4) Copies of all records, regardless of form or format, which have 
been released to any person under this paragraph (a) and which, because 
of the nature of their subject matter, the agency determines have 
become or are likely to become the subject of subsequent requests for 
substantially the same records; and
    (5) A general index of the records referred to in paragraph (a)(4) 
of this section.
    (b) In accordance with 5 U.S.C. 552(a)(3), the Commission shall 
make available, upon proper request, all non-exempt Agency records, or 
portions of records, not previously made public pursuant to 5 U.S.C. 
552(a)(1) and (a)(2).
    (c) The Commission shall maintain and make available current 
indexes and supplements providing identifying information regarding any 
matter issued, adopted or promulgated after April 15, 1975 as required 
by 5 U.S.C. 552(a)(2)(C) and (E). * * *
* * * * *
    (g) The Commission encourages the public to explore the information 
available on the Commission's World Wide Web site, located at http://www.fec.gov. The site includes a Commission publication, Availability 
of FEC Information, which provides a detailed listing of the types of 
documents available from the FEC, including those available under FOIA, 
and directions on how to locate and obtain them.

    7. Section 4.5 is amended by revising paragraph (c) to read as 
follows:


Sec. 4.5  Categories of exemptions.

* * * * *
    (c) Any reasonably segregable portion of a record shall be provided 
to any person requesting such record after deletion of the portions 
which are exempt. The amount of information deleted shall be indicated 
on the released portion of the record, unless including that indication 
would harm an interest protected by an exemption in paragraph (a) of 
this section under which the deletion is made. If technically feasible, 
the amount of the information deleted shall be indicated at the place 
in the record where such deletion is made.
* * * * *

    8. Section 4.7 is amended by removing and reserving paragraph (a); 
redesignating paragraph (b) as paragraph (b)(1); adding new paragraph 
(b)(2); revising the first sentence of paragraph (c); redesignating 
paragraph (d) as paragraph (h); redesignating paragraph (e) as 
paragraph (i); and adding new paragraphs (d), (e), (f) and (g), to read 
as follows:


Sec. 4.7  Requests for records.

    (a) [Reserved]
    (b) (1) * * *
    (2) Requests for Commission records and copies thereof shall 
specify the preferred form or format (including electronic formats) of 
the response. The Commission shall accommodate requesters as to form or 
format if the record is readily available in that form or format. When 
requesters do not specify the form or format of the response, the 
Commission shall respond in the form or format in which the document is 
most accessible to the Commission.
    (c) The Commission shall determine within twenty working days after 
receipt of a request, or twenty working days after an appeal is 
granted, whether to comply with such request, unless in

[[Page 9207]]

unusual circumstances the time is extended or subject to 
Sec. 4.9(f)(3), which governs advance payments. * * *
    (d) If the Commission determines that an extension of time greater 
than ten working days is necessary to respond to a request satisfying 
the ``unusual circumstances'' specified in paragraph (c) of this 
section, the Commission shall so notify the requester and give the 
requester an opportunity to limit the scope of the request so that it 
may be processed within the time limit prescribed in paragraph (c) of 
this section, or arrange with the Commission an alternative time frame 
for processing the request or a modified request.
    (e) The Commission may aggregate and process as a single request 
requests by the same requester, or a group of requesters acting in 
concert, if the Commission reasonably believes that the requests 
actually constitute a single request that would otherwise satisfy the 
unusual circumstances specified in paragraph (c) of this section, and 
the requests involve clearly related matters.
    (f) The Commission uses a multitrack system to process requests 
under the Freedom of Information Act that is based on the amount of 
work and/or time involved in processing requests. Requests for records 
are processed in the order they are received within each track. Upon 
receipt of a request for records, the Commission shall determine which 
track is appropriate for the request. The Commission may contact 
requesters whose requests do not appear to qualify for the fastest 
tracks and provide such requesters the opportunity to limit their 
requests so as to qualify for a faster track. Requesters who believe 
that their requests qualify for the fastest tracks and who wish to be 
notified if the Commission disagrees may so indicate in the request 
and, where appropriate and feasible, shall also be given an opportunity 
to limit their requests.
    (g) The Commission shall consider requests for the expedited 
processing of requests in cases where the requester demonstrates a 
compelling need for such processing.
    (1) The term compelling need means:
    (i) 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
    (ii) With respect to a request made by a person primarily engaged 
in disseminating information, urgency to inform the public concerning 
actual or alleged Federal government activity.
    (2) Requesters for expedited processing must include in their 
requests a statement setting forth the basis for the claim that a 
``compelling need'' exists for the requested information, certified by 
the requester to be true and correct to the best of his or her 
knowledge and belief.
    (3) The Commission shall determine whether to grant a request for 
expedited processing and notify the requester of such determination 
within ten days of receipt of the request. Denials of requests for 
expedited processing may be appealed as set forth in Sec. 4.8. The 
Commission shall expeditiously determine any such appeal. As soon as 
practicable, the Commission shall process the documents responsive to a 
request for which expedited processing is granted.
* * * * *

PART 5--ACCESS TO PUBLIC DISCLOSURE DIVISION DOCUMENTS

    9. The authority citation for part 5 continues to read as follows:

    Authority: 2 U.S.C. 437f(d), 437g(a)(4)(B)(ii), 438(a), and 31 
U.S.C. 9701.


    10. Section 5.1 is amended by revising paragraph (b) to read as 
follows:


Sec. 5.1  Definitions.

* * * * *
    (b) Commissioner means an individual appointed to the Federal 
Election Commission pursuant to 2 U.S.C. 437c(a).
* * * * *

    11. Section 5.4 is amended by revising paragraph (a)(4) and adding 
new paragraphs (a)(5) through (a)(9) to read as follows:


Sec. 5.4  Availability of records.

    (a) * * *
    (4) Opinions of Commissioners rendered in enforcement cases and 
General Counsel's Reports and non-exempt 2 U.S.C. 437g investigatory 
materials shall be placed on the public record of the Agency no later 
than 30 days from the date on which all respondents are notified that 
the Commission has voted to close such an enforcement file.
    (5) Letter requests for guidance and responses thereto.
    (6) The minutes of Commission meetings.
    (7) Material routinely prepared for public distribution, e.g. 
campaign guidelines, FEC Record, press releases, speeches, notices to 
candidates and committees.
    (8) Audit reports (if discussed in open session).
    (9) Agendas for Commission meetings.
* * * * *

    Dated: February 17, 2000.
Darryl R. Wold,
Chairman, Federal Election Commission.
[FR Doc. 00-4318 Filed 2-23-00; 8:45 am]
BILLING CODE 6715-01-P