[Federal Register Volume 67, Number 65 (Thursday, April 4, 2002)]
[Rules and Regulations]
[Pages 16018-16022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7865]


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LIBRARY OF CONGRESS

36 CFR Part 703

[Docket No. LOC 02-1]


Disclosure or Production of Records or Information

AGENCY: Library of Congress.

ACTION: Final regulation.

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SUMMARY: The Library of Congress issues this final regulation to 
include, in addition to information about public availability of 
Library of Congress records, the information contained in new Library 
of Congress Regulation 1917-4, Testimony by Employees and Production of 
Documents in Certain Legal Proceedings Where the Library is Not a Party 
(see 36 CFR 703.10 et seq.). This new regulation centralizes the 
Library's determinations, to the greatest extent possible, concerning 
responses to subpoenas in matters where the Library

[[Page 16019]]

is not a party. Further it sets forth the standards by which the 
Library will comply or not with such subpoenas and specifies the means 
of serving those subpoenas. The regulation also gives due consideration 
to the particular needs of the Congressional Research Service, the 
Copyright Office, and the Law Library.

EFFECTIVE DATE: April 4, 2002.

FOR FURTHER INFORMATION CONTACT: Elizabeth A. Pugh, General Counsel, 
Office of the General Counsel, Library of Congress, Washington, DC 
20540-1050. Telephone No. (202) 707-6316.

SUPPLEMENTARY INFORMATION: This Regulation sets forth the policy and 
procedures of the Library of Congress regarding the testimony of 
employees and former employees concerning information acquired in the 
course of performing official duties or because of the employee's 
official relationship with the Library of Congress, as witnesses in 
legal proceedings and the production or disclosure of information 
contained in Library of Congress documents for use in legal proceedings 
where the Library is not a party, pursuant to a request, order, or 
subpoena (collectively referred to in this Regulation as a ``demand'').
    A. This Regulation applies to:
    (1) State court proceedings (including grand jury proceedings);
    (2) Federal court proceedings; and
    (3) State and local legislative and administrative proceedings.
    B. This Regulation does not apply to:
    (1) Matters that are not related to the Library of Congress but 
relate solely to an employee's personal dealings;
    (2) Congressional demands for testimony or documents;
    (3) Any demand relating to activity within the scope of Title 17 of 
the United States Code (the Copyright Act and related laws). These are 
governed by Copyright Office regulations, which provide for different 
procedures and for service on the General Counsel of the Copyright 
Office. See 37 CFR 201.1, sec. 203, sec. 204, and sec. 205.
    C. The purpose of this Regulation is to ensure that employees' 
official time is used only for official purposes, to maintain the 
impartiality of the Library of Congress among private litigants, to 
ensure that public funds are not used for private purposes, to ensure 
the protection of Congress' interests, and to establish centralized 
procedures for deciding whether or not to approve testimony or the 
production of documents.

List of Subjects in 36 CFR part 703

    Archives and records, Libraries.

Final Regulation

    In consideration of the foregoing the Library of Congress revises 
36 CFR part 703 as follows:

PART 703--DISCLOSURE OR PRODUCTION OF RECORDS OR INFORMATION

Subpart A--Availability of Library of Congress Records
Sec.
703.1  Purpose and scope of this subpart.
703.2  Policy.
703.3  Administration responsibilities.
703.4  Definitions.
703.5  Records exempt from disclosure.
703.6  Procedures for access to and copying of records.
703.7  Public reading facility.
703.8  Fees and charges.

Appendix A to Subpart A--Fees and Charges for Services Provided to 
Requestors of Record
Subpart B--testimony by Employees and Production of Documents in 
Certain Legal Proceedings Where the Library Is Not a Party
703.15   Purpose and scope of this subpart.
703.16   Policy on presentation of testimony and production of 
documents.
703.17   Procedures when testimony and/or documents are demanded.
703.18   Procedures when an employee's appearance is demanded or 
documents are demanded.
703.19   Requests for authenticated copies of Library documents.
703.20   File copies.
703.21   Effect of this part.
703.22   Where to serve demands.

    Authority: 2 U.S.C. 136.

Subpart A--Availability of Library of Congress Records


Sec. 703.1  Purpose and scope of this subpart.

    (a) This subpart implements the policy of the Library with respect 
to the public availability of Library of Congress records. Although the 
Library is not subject to the Freedom of Information Act, as amended (5 
U.S.C. 552), this subpart follows the spirit of that Act consistent 
with the Library's duties, functions, and responsibilities to the 
Congress. The application of that Act to the Library is not to be 
inferred, nor should this subpart be considered as conferring on any 
member of the public a right under that Act of access to or information 
from the records of the Library. Nothing in this subpart modifies 
current instructions and practices in the Library with respect to 
handling Congressional correspondence.
    (b) The Copyright Office, although a service unit of the Library, 
is by law (17 U.S.C. 701) subject to the provisions of the Freedom of 
Information Act, as amended, only for purposes of actions taken under 
the copyright law. The Copyright Office has published its own 
regulation with respect to the general availability of information (see 
37 CFR 201.2) and requests for copyright records made pursuant to the 
Freedom of Information Act (see 37 CFR 203.1 et seq.) and the Privacy 
Act (see 37 CFR 204.1 et seq.).


Sec. 703.2  Policy.

    (a) Subject to limitations set out in this part, Library of 
Congress records shall be available as hereinafter provided and shall 
be furnished as promptly as possible within the Library to any member 
of the public at appropriate places and times and for an appropriate 
fee, if any.
    (b) The Library shall not provide records from its files that 
originate in another federal agency or non-federal organization to 
persons who may not be entitled to obtain the records from the 
originator. In such instances, the Library shall refer requesters to 
the agency or organization that originated the records.
    (c) In order to avoid disruption of work in progress, and in the 
interests of fairness to those who might be adversely affected by the 
release of information which has not been fully reviewed to assure its 
accuracy and completeness, it is the policy of the Library not to 
provide records which are part of on-going reviews or other current 
projects. In response to such requests, the Library will inform the 
requester of the estimated completion date of the review or project so 
that the requester may then ask for the records. At that time, the 
Library may release the records unless the same are exempt from 
disclosure as identified in Sec. 703.5.


Sec. 703.3  Administration responsibilities.

    The administration of this part shall be the responsibility of the 
Chief, Office Systems Services (OSS), Library of Congress, 101 
Independence Avenue, SE., Washington, DC 20540-9440, and to that end, 
the Chief may promulgate such supplemental rules or guidelines as may 
be necessary.


Sec. 703.4  Definitions.

    (a) Records includes all books, papers, maps, photographs, reports, 
and other documentary materials, exclusive of materials in the 
Library's collections, regardless of physical form or characteristics, 
made or received and under the control of the Library in pursuance of 
law or in connection with the transaction of public business, and 
retained, or appropriate for retention, by the Library as evidence of 
the organization, functions, policies, decisions, procedures, 
operations, or

[[Page 16020]]

other activities of the government or because of the informational 
value of data contained therein. The term refers only to such items in 
being and under the control of the Library. It does not include the 
compiling or procuring of a record, nor does the term include objects 
or articles, such as furniture, paintings, sculpture, three-dimensional 
models, structures, vehicles, and equipment.
    (b) Identifiable means a reasonably specific description of a 
particular record sought, such as the date of the record, subject 
matter, agency or person involved, etc. which will permit location or 
retrieval of the record.
    (c) Records available to the public means records which may be 
examined or copied or of which copies may be obtained, in accordance 
with this part, by the public or representatives of the press 
regardless of interest and without specific justification.
    (d) Disclose or disclosure means making available for examination 
or copying, or furnishing a copy.
    (e) Person includes an individual, partnership, corporation, 
association, or public or private organization other than a federal 
agency.


Sec. 703.5  Records exempt from disclosure.

    (a) The public disclosure of Library records provided for by this 
part does not apply to records, or any parts thereof, within any of the 
categories set out below. Unless precluded by law, the Chief, OSS, 
nevertheless may release records within these categories, except for 
Congressional correspondence and other materials identified in 
Sec. 703.5(b)(1), after first consulting with the General Counsel.
    (b) Records exempt from disclosure under this part are the 
following:
    (1) Congressional correspondence and other materials relating to 
work performed in response to or in anticipation of Congressional 
requests, unless authorized for release by officials of the Congress.
    (2) Materials specifically authorized under criteria established by 
Executive Order to be withheld from public disclosure in the interest 
of national defense or foreign policy and that are properly classified 
pursuant to Executive Orders.
    (3) Records related solely to the internal personnel rules and 
practices of the Library. This category includes, in addition to 
internal matters of personnel administration, internal rules and 
practices which cannot be disclosed without prejudice to the effective 
performance of a Library function, such as guidelines and procedures 
used by auditors, investigators, or examiners in the Office of the 
Inspector General.
    (4) Records specifically exempted from disclosure by statute, 
provided that such statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld.
    (5) Records containing trade secrets and commercial or financial 
information obtained from a person as privileged or confidential. This 
exemption may include, but is not limited to, business sales 
statistics, inventories, customer lists, scientific or manufacturing 
processes or development information.
    (6) Personnel and medical files and similar files the disclosure of 
which could constitute a clearly unwarranted invasion of personal 
privacy. This exemption includes all private or personal information 
contained in files compiled to evaluate candidates for security 
clearances.
    (7) Materials and information contained in investigative or other 
records compiled for law enforcement purposes.
    (8) Materials and information contained in files prepared in 
connection with government litigation and adjudicative proceedings, 
except for those portions of such files which are available by law to 
persons in litigation with the Library.
    (9) Records having information contained in or related to 
examination, operation, or condition reports prepared by, on behalf of, 
or for the use of an agency responsible for the regulation or 
supervision of financial institutions.
    (10) Inter-agency or intra-agency memoranda, letters or other 
materials that are part of the deliberative process, the premature 
disclosure of which would inhibit internal communications or be 
detrimental to a Library function (e.g., case files in the Manuscript 
Division).
    (11) Records containing information customarily subject to 
protection as privileged in a court or other proceedings such as 
information protected by the doctor-patient, attorney work product, or 
attorney-client privilege.
    (12) Information submitted by a person to the Library in confidence 
or which the Library has obligated itself not to disclose such as 
information received by the Office of the Inspector General through its 
hotline.
    (13) Materials related to specific patron use of the Library's 
collections, resources, or facilities either on site or off site. This 
exemption includes:
    (i) Reader Records. Library records which identify readers by name, 
such as registration records, reading room logs or registers, telephone 
inquiry logs, and charge slips, if retained for administrative 
purposes.
    (ii) Use Records. Users of the Library are entitled to privacy with 
respect to their presence and use of the Library's facilities and 
resources. Records pertaining to the use of the Library and of Library 
collections and subjects of inquiry are confidential and are not to be 
disclosed either to other readers, to members of the staff who are not 
authorized, or to other inquirers including officials of law 
enforcement, intelligence, or investigative agencies, except pursuant 
to court order or administratively by order of the Librarian of 
Congress.
    (c) Any reasonably segregable portion of a record shall be provided 
to anyone requesting such records after deletion of the portions which 
are exempt under this section. A portion of a record shall be 
considered reasonably segregable when segregation can produce an 
intelligible record which is not distorted out of context, does not 
contradict the record being withheld, and can reasonably provide all 
relevant information.


Sec. 703.6  Procedure for access to and copying of records.

    (a) A request to inspect or obtain a copy of an identifiable record 
of the Library of Congress shall be submitted in writing to the Chief, 
OSS, Library of Congress, 101 Independence Avenue, SE., Washington, DC 
20540-9440, who shall promptly record and process the request.
    (b) Requests for records shall be specific and shall identify the 
precise records or materials that are desired by name, date, number, or 
other identifying data sufficient to allow the OSS staff to locate, 
retrieve, and prepare the record for inspection or copying and to 
delete exempted matter where appropriate to do so. Blanket or 
generalized requests (such as ``all matters relating to'' a general 
subject) shall not be honored and shall be returned to the requester.
    (c) Records shall be available for inspection and copying in person 
during business hours.
    (d) Records in media other than print (e.g., microforms and 
machine-readable media) shall be available for inspection in the medium 
in which they exist. Copies of records in machine-readable media shall 
be made in media determined by the Chief, OSS.

[[Page 16021]]

    (e) Library staff shall respond to requests with reasonable 
dispatch. Use of a record by the Library or Library employees, however, 
shall take precedence over any request. Under no circumstances shall 
official records be removed from Library control without the written 
authorization of the Librarian.
    (f) The Chief, OSS, shall make the initial determination on 
whether:
    (1) The record described in a request can be identified and located 
pursuant to a reasonable search, and
    (2) The record (or portions thereof) may be made available or 
withheld from disclosure under the provisions of this part. In making 
the initial determinations, the Chief shall consult with any unit in 
the Library having a continuing substantial interest in the record 
requested. Where the Chief finds no valid objection or doubt as to the 
propriety of making the requested record available, the Chief shall 
honor the request upon payment of prescribed fees, if any are required 
by Sec. 703.8.
    (g) If the Chief, OSS, determines that a requested record should be 
withheld, the Chief shall inform the requester in writing that the 
request has been denied; shall identify the material withheld; and 
shall explain the basis for the denial. The Chief shall inform the 
requester that further consideration of the denied request may be 
obtained by a letter to the General Counsel setting out the basis for 
the belief that the denial of the request was unwarranted.
    (h) The General Counsel shall make the final determination on any 
request for reconsideration and shall notify the requester in writing 
of that determination. The decision of the General Counsel shall be the 
final administrative review within the Library.
    (1) If the General Counsel's decision reverses in whole or in part 
the initial determination by the Chief, OSS, the Chief shall make the 
requested record, or parts thereof, available to the requester, subject 
to the provisions of Sec. 703.8.
    (2) If the General Counsel's decision sustains in whole or in part 
the initial determination by the Chief, OSS, the General Counsel shall 
explain the basis on which the record, or portions thereof, will not be 
made available.


Sec. 703.7  Public Reading Facility.

    (a) The Chief, OSS, shall maintain a reading facility for the 
public inspection and copying of Library records. This facility shall 
be open to the public from 8:30 a.m. to 4:30 p.m., except Saturdays, 
Sundays, holidays, and such other times as the Library shall be closed 
to the public.
    (b) The General Counsel shall advise the Chief, OSS, of the records 
to be available in the public reading facility following consultation 
with the Library managers who may be concerned.


Sec. 703.8  Fees and charges.

    (a) The Library will charge no fees for:
    (1) Access to or copies of records under the provisions of this 
part when the direct search and reproduction costs are less than $10.
    (2) Records requested which are not found or which are determined 
to be exempt under the provisions of this part.
    (3) Staff time spent in resolving any legal or policy questions 
pertaining to a request.
    (4) Copies of records, including those certified as true copies, 
that are furnished for official use to any officer or employee of the 
federal government.
    (5) Copies of pertinent records furnished to a party having a 
direct and immediate interest in a matter pending before the Library, 
when furnishing such copies is necessary or desirable to the 
performance of a Library function.
    (b) When the costs for services are $10 or more, the Chief, OSS, 
shall assess and collect the fees and charges set out in appendix A to 
this part for the direct costs of search and reproduction of records 
available to the public.
    (c) The Chief, OSS, is authorized to waive fees and charges, in 
whole or in part, where it is determined that the public interest is 
best served to do so, because waiver is likely to contribute 
significantly to public understanding of the operations or activities 
of the government and is not primarily in the commercial interest of 
the requester. Persons seeking a waiver or reduction of fees may be 
required to submit a written statement setting forth the intended 
purpose for which the records are requested or otherwise indicate how 
disclosure will primarily benefit the public and, in appropriate cases, 
explain why the volume of records requested is necessary. 
Determinations made pursuant to the authority set out herein are solely 
within the discretion of the Chief, OSS.
    (d) Fees and charges for services identified in the appendix to 
this part shall be paid in full by the requester before the records are 
delivered. Payment shall be made in U.S. funds by personal check, money 
order, or bank draft made payable to the Library of Congress. The 
Chief, OSS, shall remit all fees collected to the Director, Financial 
Services, who shall cause the same to be credited to appropriate 
accounts or deposited with the U.S. Treasury as miscellaneous receipts.
    (e) The Chief, OSS, shall notify a requester and may require an 
advance deposit where the anticipated fees will exceed $50.

Appendix A to Part 703--Fees and Charges for Services Provided to 
Requesters of Records

    (a) Searches.
    (1) There is no charge for searches of less than one hour.
    (2) Fees charged for searches of one hour or more are based on 
prevailing rates. Currently, those charges are:
    (i) Personnel searches (clerical): $15 per hour.
    (ii) Personnel searches (professional): $25 per hour.
    (iii) Reproduction costs: $.50 per page.
    (iv) Shipping and mailing fees: variable.
    (3) In situations involving the use of computers to locate and 
extract the requested information, charges will be based on the direct 
cost to the Library, including labor, material, and computer time.
    (b) Duplication of Records. Fees charged for the duplication of 
records shall be according to the prevailing rates established by the 
Library's Photoduplication Service, or in the case of machine media 
duplication, by the Resources Management Staff, Information Technology 
Services.
    (c) Certifications. The fee charges for certification of a record 
as authentic or a true copy shall be $10.00 for each certificate.
    (d) Other Charges. When no specific fee has been established for a 
service required to meet the request for records, the Chief, OSS, shall 
establish an appropriate fee based on direct costs in accordance with 
the Office of Management and Budget Circular No. A-25.

Subpart B--Testimony by Employees and Production of Documents in 
Certain Legal Proceedings Where the Library Is Not a Party


Sec. 703.15  Purpose and scope of this subpart.

    This subpart sets forth the policy and procedures of the Library of 
Congress regarding, first, the testimony, as witnesses in legal 
proceedings where the Library is not a party, of employees and former 
employees concerning information acquired in the course of performing 
official duties or because of the employee's official relationship with 
the Library of Congress, and second, the production or disclosure of 
information

[[Page 16022]]

contained in Library of Congress documents for use in legal proceedings 
where the Library is not a party, pursuant to a request, order, or 
subpoena (collectively referred to in this subpart as a ``demand'').
    (a) This subpart applies to:
    (1) State court proceedings (including grand jury proceedings);
    (2) Federal court proceedings; and
    (3) State and local legislative and administrative proceedings.
    (b) This subpart does not apply to:
    (1) Matters that are not related to the Library of Congress but 
relate solely to an employee's personal dealings;
    (2) Congressional demands for testimony or documents;
    (3) Any demand relating to activity within the scope of Title 17 of 
the United States Code (the Copyright Act and related laws). These are 
governed by Copyright Office regulations, which provide for different 
procedures and for service on the General Counsel of the Copyright 
Office. See 37 CFR 201.1, sec. 203, sec. 204, and sec. 205.
    (c) The purpose of this subpart is to ensure that employees' 
official time is used only for official purposes, to maintain the 
impartiality of the Library of Congress among private litigants, to 
ensure that public funds are not used for private purposes, to ensure 
the protection of Congress' interests, and to establish centralized 
procedures for deciding whether or not to approve testimony or the 
production of documents.


Sec. 703.16  Policy on presentation of testimony and production of 
documents.

    No Library of Congress employee may provide testimony or produce 
documents in any proceeding to which this part applies concerning 
information acquired in the course of performing official duties or 
because of the employee's official relationship with the Library of 
Congress, unless authorized by the General Counsel or his/her designee, 
or the Director of the Congressional Research Service (CRS) with 
respect to records and testimony relating to CRS's work for Congress, 
or the Law Librarian for records and testimony relating to the Law 
Library's work for Congress or materials prepared for other federal 
agencies covered by evidentiary privileges. The aforementioned 
officials (hereinafter ``deciding officials'') will consider and act 
upon demands under this part with due regard for the interests of 
Congress, where appropriate, statutory requirements, the Library's 
interests, and the public interest, taking into account factors such as 
applicable privileges and immunities, including the deliberative 
process privilege and the speech or debate clause, the need to conserve 
the time of employees for conducting official business, the need to 
avoid spending the time and money of the United States for private 
purposes, the need to maintain impartiality among private litigants in 
cases where a substantial government interest is not involved, the 
established legal standards for determining whether or not 
justification exists for the disclosure of confidential information and 
records, and any other purpose that the deciding official deems to be 
in the interest of Congress or the Library of Congress.


Sec. 703.17  Procedures when testimony and/or documents are demanded.

    A demand for testimony and/or documents by a Library employee must 
be in writing, must state the nature of the requested testimony and/or 
specify documents, and must meet the requirements of Sec. 703.15. A 
demand must also show that the desired testimony or document is not 
reasonably available from any other source and must show that no 
document could be provided and used in lieu of testimony. When an 
employee of the Library receives such a request the employee will 
immediately forward it, with the recommendation of the employee's 
supervisors, to the appropriate deciding official under Sec. 703.22 of 
this part. The deciding official, in consultation with the appropriate 
offices of the Library or congressional offices, will determine whether 
or not compliance with the request would be appropriate and will 
respond as soon as practicable.


Sec. 703.18  Procedures when an employee's appearance is demanded or 
documents are demanded.

    (a) If the deciding official has not acted by the return date on a 
subpoena, the employee must appear at the stated time and place (unless 
advised by the deciding official that the subpoena was not validly 
issued or served or that the subpoena has been withdrawn) and inform 
the court (or other interested parties) that the demand has been or is 
being, as the case may be, referred for the prompt consideration of the 
appropriate Library or congressional officials and shall respectfully 
request the court (or other authority) to stay the demand pending 
receipt of the requested instructions.
    (b) If the deciding official has denied approval to comply with the 
subpoena, and the court or authority rules that the demand must be 
complied with irrespective of such a denial, the employee upon whom 
such a demand has been made shall produce a copy of this Part and shall 
respectfully refuse to provide any testimony or produce any documents. 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (c) The deciding official, as appropriate, will request the 
assistance of the Department of Justice or the U.S. Attorney's Office 
or congressional officials where necessary to represent the interests 
of the Library, the Congress, and the employee in any of the foregoing 
proceedings.


Sec. 703.19  Requests for authenticated copies of library documents.

    Requests for authenticated copies of Library documents for purposes 
of admissibility under 28 U.S.C. 1733 and Rule 44 of the Federal Rules 
of Civil Procedure will be granted for documents that would otherwise 
be released pursuant to the Library's Regulations governing the release 
of information. The advice of the appropriate deciding official should 
be obtained concerning the proper form of authentication and 
information as to the proper person having custody of the record.


Sec. 703.20  File copies.

    The Office of the General Counsel will maintain the official file 
of copies of all demands served on the Library and deciding officials' 
responses.


Sec. 703.21  Effect of this part.

    This part is intended only to provide guidance for the internal 
operations of the Library of Congress and is not intended to, and does 
not, and may not, be relied upon to create any right or benefit, 
substantive or procedural, enforceable at law by a party against the 
Library of Congress or the United States.


Sec. 703.22  Where to serve demands.

    Requesting parties must serve subpoenas:
    (a) For Congressional Research Service matters: Director, 
Congressional Research Service, LM 203, Library of Congress, 
Washington, DC 20540.
    (b) For Law Library matters: Law Librarian, LM 240, Library of 
Congress, Washington, DC 20540.
    (c) For all other matters: General Counsel, LM 601, Library of 
Congress, Washington, DC 20540.

    Dated: March 11, 2002.
James H. Billington,
The Librarian of Congress.
[FR Doc. 02-7865 Filed 4-3-02; 8:45 am]
BILLING CODE 1410-04-P