[Federal Register Volume 73, Number 191 (Wednesday, October 1, 2008)]
[Rules and Regulations]
[Pages 56936-56940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23076]


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

NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Part 792

RIN 3133-AD44


Revisions for the Freedom of Information Act and Privacy Act 
Regulations

AGENCY: National Credit Union Administration.

ACTION: Final rule.

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

SUMMARY: The NCUA Board is amending its Freedom of Information Act 
(FOIA) and Privacy Act regulations. The final rule reflects recent 
amendments to the FOIA addressing fee practices, time limits for 
complying with requests, and new reporting requirements. The changes to 
the Privacy Act provisions reflect the agency's efforts to clarify the 
procedures whereby individuals may obtain notification of whether an 
NCUA system of records contains information about the individual and 
how to access or amend a record.

DATES: This rule is effective October 31, 2008.

FOR FURTHER INFORMATION CONTACT: Linda K. Dent, Staff Attorney, Office 
of General Counsel, at (703) 518-6540.

SUPPLEMENTARY INFORMATION:

Background

    On April 17, 2008, the NCUA Board requested comment on a proposed 
rule to update and clarify the procedures for requesting access to 
agency records and other rights and requirements under the FOIA and 
Privacy Act provisions of part 792. 73 FR 22,289 (April 25, 2008). In 
addition to incorporating the 2007 FOIA amendments into the rule, the 
proposed rule added definitions, revised terminology and otherwise 
clarified provisions implementing the Privacy Act. Technical 
corrections also were made to both sections.

Discussion

    NCUA's policy is to review a third of its regulations periodically 
to ``update, clarify and simplify existing regulations and eliminate 
redundant and unnecessary provisions.'' Interpretive Ruling and Policy 
Statement (IRPS) 87-2, Developing and Reviewing Government Regulations. 
The proposed changes were the result of such a review. The changes also 
coincided with recent statutory amendments to FOIA and NCUA's updating 
of its Systems of Records Notice under the Privacy Act, periodically 
published in the Federal Register.

Summary of Comments

    The NCUA Board received two comments in general support of the 
proposed rule. In response to proposed language clarifying when a FOIA 
request is considered received, one commenter urged the agency to make 
reasonable efforts to promptly notify a requester when a request is 
incorrectly addressed or otherwise deficient; forward incorrectly 
addressed requests to the proper Information Center; or if possible, 
disregard deficiencies having no impact on the ability to process the 
response. The amended language simply explains what conditions must be 
met to start the clock for the statutory processing period. As a 
general practice, Information Center staff communicates with requesters 
to obtain missing information and to clarify requests to enable their 
timely processing. Similarly, FOIA requests sent to the wrong 
Information Center are forwarded to the correct Information Center.
    The commenter also suggested a deceased individual's records should 
receive protection consistent with that of a living individual and 
suggested the agency require a requester to obtain approval from the 
decedent's estate before releasing any records. As explained in the 
Department of Justice's 2007 FOIA Guide, there is a ``longstanding FOIA 
rule that death extinguishes one's privacy rights.'' USDOJ: OIP: 
Freedom of Information Act Guide, March 2007, page 566. Whether records 
pertaining to a deceased individual are actually released requires an 
evaluation of the privacy interests at issue in such a release, which 
may include surviving family members' right to personal privacy.

[[Page 56937]]

    The other commenter questioned eliminating the ability to submit 
Privacy Act requests for records via telephone, believing the agency 
should facilitate all forms of electronic requests irrespective of how 
made. The proposed change does not eliminate a requester's ability to 
submit requests by facsimile or e-mail. The Board has added clarifying 
language to the procedures and requirements provisions to reflect this 
fact.

Regulatory Procedures

Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
(PRA) of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board 
has determined the final rule does not contain a collection of 
information subject to the PRA.

Regulatory Flexibility Act

    The Regulatory Flexibility Act requires NCUA to prepare an analysis 
to describe any significant economic impact a proposed rule may have on 
a substantial number of small credit unions (those under $10 million in 
assets). This final rule does not impose any requirements on federally-
insured credit unions. Therefore, it will not have a significant 
economic impact on a substantial number of small credit unions and a 
regulatory flexibility analysis is not required.

Executive Order 13132

    Executive Order 13132 encourages independent regulatory agencies to 
consider the impact of their actions on state and local interests. In 
adherence to fundamental federalism principles, NCUA, an independent 
regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies 
with the executive order. The final rule would not have substantial 
direct effects on the states, on the connection between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government. NCUA has 
determined that this final rule does not constitute a policy that has 
federalism implications for purposes of the executive order.

The Treasury and General Government Appropriations Act, 1999--
Assessment of Federal Regulations and Policies on Families

    NCUA has determined that this final rule would not affect family 
well-being within the meaning of section 654 of the Treasury and 
General Government Appropriations Act, 1999, Public Law 105-277, 112 
Stat. 2681 (1998).

List of Subjects in 12 CFR Part 792

    Administrative practice and procedure, Credit unions, Freedom of 
Information, Information, Privacy, Records, System of records.

    By the National Credit Union Administration Board on September 
25, 2008.
Mary Rupp,
Secretary of the Board.

0
For the reasons stated in the preamble, the National Credit Union 
Administration amends 12 CFR part 792 as set forth below:

PART 792--REQUESTS FOR INFORMATION UNDER THE FREEDOM OF INFORMATION 
ACT AND PRIVACY ACT, AND BY SUBPOENA; SECURITY PROCEDURES FOR 
CLASSIFIED INFORMATION

0
1. The authority citation for part 792 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 552b; 12 U.S.C. 1752a(d), 
1766, 1789, 1795f; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 
235; E.O. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p. 333.

0
2. In Sec.  792.03, revise the fourth sentence of the introductory text 
and the last sentence of paragraph (c) to read as follows:


Sec.  792.03  How will I know which records to request?

    * * * You may obtain copies of indices by making a request to the 
NCUA, Office of General Counsel, 1775 Duke Street, Alexandria, VA 
22314-2387, Attn: FOIA Officer or as indicated on the NCUA Web site at 
www.ncua.gov. * * *
* * * * *
    (c) * * * The Popular FOIA Index is available on the NCUA web site.


0
3. In Sec.  792.04, revise paragraph (a) to read as follows:


Sec.  792.04  How can I obtain these records?

* * * * *
    (a) You may obtain copies of the records referenced in Sec.  792.02 
by obtaining the index referred to in Sec.  792.03 and following the 
ordering instructions it contains, or by making a written request to 
NCUA, Office of General Counsel, 1775 Duke Street, Alexandria, Virginia 
22314-3428, Attn: FOIA Officer or as indicated on the NCUA Web site.
* * * * *

0
4. In Sec.  792.07, revise the first sentence of paragraph (a) and 
paragraph (b) to read as follows:


Sec.  792.07  Where do I send my request?

    (a) You must send your written request to one of NCUA's Information 
Centers. * * *
    (b) If you are seeking any NCUA record, other than those maintained 
by the Office of Inspector General, you should send your request to 
NCUA, Office of the General Counsel, 1775 Duke Street, Alexandria, 
Virginia 22314-3428, Attn: FOIA Officer or as indicated on the NCUA Web 
site at http://www.ncua.gov.
* * * * *

0
5. In Sec.  792.08, revise the introductory text and paragraph (a) to 
read as follows:


Sec.  792.08  What must I include in my request?

    Until an Information Center receives your FOIA request, it is not 
obligated to search for responsive records, meet time deadlines, or 
release any records. A request will not be considered received if it 
does not include all of the items in paragraphs (a) through (c) of this 
section.
    (a) Your request must be in writing and include the words ``FOIA 
REQUEST'' on both the envelope and request letter. The request letter 
must also include your name, address and a telephone number where you 
can be reached during normal business hours. If you would like us to 
respond to your FOIA request by electronic mail (e-mail), you should 
include your e-mail address.
* * * * *

0
6. In Sec.  792.10, revise the second sentence of paragraph (a), the 
last sentence of paragraph (b) and the second sentence of paragraph (e) 
to read as follows:


Sec.  792.10  What will NCUA do with my request?

    (a)* * * The date of receipt for any request, including one that is 
addressed incorrectly or is forwarded to NCUA by another agency, is the 
earlier of the date the appropriate Information Center actually 
receives the request or 10 working days after either of NCUA's 
Information Centers receives the request.
    (b) * * * All other requests will be handled under normal 
processing procedures in the order they were received.
* * * * *
    (e) * * * If we notify you of a denial of your request, we will 
include the reason for the denial.
* * * * *

0
7. In Sec.  792.11, revise paragraph (a)(6) introductory text by 
removing the first

[[Page 56938]]

sentence and adding three sentences in its place to read as follows:


Sec.  792.11  What kind of records are exempt from public disclosure?

    (a) * * *
    (6) Personnel, medical, and similar files (including financial 
files) pertaining to another person, the disclosure of which would 
constitute a clearly unwarranted invasion of personal privacy without 
the subject person's written consent or proof of death. Written consent 
consists of a written statement by the subject person, authorizing the 
release of the information to you, and including either the subject 
person's notarized signature or a declaration made under penalty of 
perjury that the statement is true and correct. Proof of death consists 
of evidence that the subject of your request is deceased--such as a 
death certificate, a newspaper obituary, or some comparable proof of 
death. * * *
* * * * *

0
8. In Sec.  792.15, revise paragraph (a) to read as follows:


Sec.  792.15  How long will it take to process my request?

* * * * *
    (a)(1) Where the running of such time is suspended while:
    (i) The Information Center awaits additional information from the 
requester. A suspension of time for this purpose may occur only once 
during the processing period; and
    (ii) The Information Center clarifies with the requester issues 
regarding the payment of fees pursuant to Sec.  792.26.
    (2) The Information Center's receipt of the requester's response to 
the request for additional information or clarification ends the 
tolling period;
* * * * *

0
9. Revise Sec.  792.17 to read as follows:


Sec.  792.17  What can I do if the time limit passes and I still have 
not received a response?

    If NCUA does not comply with the time limits under Sec.  792.15, or 
as extended under Sec.  792.16, you do not have to pay search fees; 
requesters qualifying for free search fees will not have to pay 
duplication fees. You also can file suit against NCUA because you will 
be deemed to have exhausted your administrative remedies if NCUA fails 
to comply with the time limit provisions of this subpart. If NCUA can 
show that exceptional circumstances exist and that it is exercising due 
diligence in responding to your request, the court may retain 
jurisdiction and allow NCUA to complete its review of the records. In 
determining whether exceptional circumstances exist, the court may 
consider your refusal to modify the scope of your request or arrange an 
alternative time frame for processing after being given the opportunity 
to do so by NCUA, when it notifies you of the existence of unusual 
circumstances as set forth in Sec.  792.16.

0
10. In Sec.  792.18, revise the first sentence of paragraph (b) to read 
as follows:


Sec.  792.18  What if my request is urgent and I cannot wait for the 
records?

* * * * *
    (b) In response to a request for expedited processing, the 
Information Center will notify you of the determination within ten 
working days of receipt of the request. * * *
* * * * *

0
11. In Sec.  792.19, revise paragraph (c)(1) to read as follows:


Sec.  792.19  How does NCUA calculate the fees for processing my 
request?

* * * * *
    (c) * * *
    (1) The per-page fee for paper copy reproduction of a document is 
$.10;
* * * * *

0
12. In Sec.  792.27, revise paragraphs (a)(1) through (a)(4) to read as 
follows:


Sec.  792.27  Can fees be reduced or waived?

* * * * *
    (a) * * *
    (1) Whether the subject of the requested records concerns 
identifiable operations or activities of the government, with a 
connection that is direct and clear;
    (2) Whether the disclosable portions of the requested records are 
meaningfully informative about government operations and activities in 
order to be likely to contribute to an understanding of government 
operations or activities. Information already in the public domain, 
either in a duplicate or substantially identical form where nothing new 
would be added to the public's understanding, would not be meaningfully 
informative;
    (3) Whether disclosure of the requested information will contribute 
to public understanding, meaning a reasonably broad audience of persons 
interested in the subject, as opposed to the individual understanding 
of the requester. A requester's expertise in the subject area and 
ability and intention to effectively convey information to the public 
will be considered. Representatives of the news media are presumed to 
satisfy this consideration; and
    (4) Whether the disclosure is likely to contribute significantly to 
public understanding of government operations or activities. The level 
of public understanding before disclosure must be enhanced by the 
disclosure to a significant extent.
* * * * *

0
13. In Sec.  792.28, revise the first and third sentences of paragraph 
(a), and paragraph (c), to read as follows:


Sec.  792.28  What if I am not satisfied with the response I receive?

* * * * *
    (a) Make a determination with respect to any appeal within 20 
working days after the receipt of such appeal. * * * Where you do not 
address your appeal to the General Counsel, the time limitations stated 
above will be computed from the date of receipt of the appeal by the 
General Counsel.
* * * * *
    (c) Address your appeal to NCUA, Office of General Counsel--FOIA 
APPEAL, 1775 Duke Street, Alexandria, VA 22314-3428. The words ``FOIA 
APPEAL'' should appear on the envelope and in the letter. Failure to 
address an appeal properly may delay commencement of the time 
limitation stated in paragraph (a) of this section, to take account of 
the time reasonably required to forward the appeal to the Office of 
General Counsel.

Subpart E--[Amended]

0
14. Amend subpart E by removing the term ``NCUA official'' wherever it 
appears and adding in its place the term ``system manager.''
0
15. In Sec.  792.53, add new paragraphs (g), (h) and (i) to read as 
follows:


Sec.  792.53  Definitions.

* * * * *
    (g) Notice of Systems of Records means the annual notice published 
by NCUA in the Federal Register informing the public of the existence 
and character of the systems of records it maintains. The Notice of 
Systems of Records also is available on NCUA's Web site at http://www.ncua.gov.
    (h) System manager means the NCUA official responsible for the 
maintenance, collection, use or distribution of information contained 
in a system of records. The system manager for each system of records 
is provided in the Federal Register publication of NCUA's annual 
systems of records notice.
    (i) Working day means Monday through Friday excluding legal public 
holidays.

0
16. Revise Sec.  792.54 to read as follows:

[[Page 56939]]

Sec.  792.54  Procedures for requests pertaining to individual records 
in a system of records.

    (a) Individuals desiring to know if a system of records contains 
records pertaining to them, and individuals requesting access to 
records in a system of records pertaining to them should submit a 
written request to the appropriate system manager as identified in the 
Notice of Systems of Records. An individual who does not have access to 
the Federal Register and who is unable to determine the appropriate 
system manager to whom to submit a request may submit a request to the 
Privacy Officer, Office of General Counsel, National Credit Union 
Administration, 1775 Duke Street, Alexandria, VA 22314-3428, in which 
case the request will be referred to the appropriate system manager.
    (b) Individuals requesting notification of, or access to, records 
should include the words ``PRIVACY ACT REQUEST'' on both the letter 
and, as appropriate, the envelope, cover document or subject line; 
describe the record sought; the approximate dates covered by the 
record; and, the systems of record in which records are thought to be 
included. Individuals must also meet the identification requirements in 
Sec.  792.55.

0
17. In Sec.  792.55, revise paragraphs (a)(1) through (a)(3) and (c) to 
read as follows:


Sec.  792.55  Times, places, and requirements for identification of 
individuals making requests and identification of records requested.

    (a) * * *
    (1) Individuals appearing in person, if not personally known to the 
system manager responding to the request, must present a single 
document bearing a photograph (such as a passport or identification 
badge) or two items of identification which do not bear a photograph 
but do bear both a name and address (such as a driver's license or 
voter registration card);
    (2) Individuals submitting requests by mail or written electronic 
form, such as facsimile or e-mail, may establish identity by a 
signature, address, date of birth, employee identification number if 
any, and one other identifier such as a photocopy of driver's license 
or other document. If inadequate identifying information is provided, 
the system manager responding to the request may require further 
identifying information before any notification or responsive 
disclosure.
    (3) Individuals appearing in person or submitting requests by mail 
or written electronic form, who cannot provide the required 
documentation or identification, may provide an unsworn declaration 
subscribed to as true under penalty of perjury.
* * * * *
    (c) A record may be disclosed to a representative of an individual 
to whom the record pertains provided the system manager receives 
written authorization from the individual who is the subject of the 
record.
* * * * *

0
18. In Sec.  792.57, revise paragraph (b) to read as follows:


Sec.  792.57  Special procedures: Information furnished by other 
agencies; medical records.

* * * * *
    (b) Medical records may be disclosed on request to the individuals 
to whom they pertain unless disclosing the medical information directly 
to the requesting individual could have an adverse effect on the 
individual. Where medical information is potentially adverse to the 
requesting individual, the system manager responsible may advise the 
requesting individual that the medical records will be transmitted only 
to a physician designated in writing by the individual.

0
19. In Sec.  792.58, revise paragraph (a) and the second sentence of 
paragraph (b) to read as follows:


Sec.  792.58  Requests for correction or amendment to a record; 
administrative review of requests.

    (a) An individual may request amendment of a record concerning that 
individual by submitting a written request, either in person or by 
mail, to the system manager identified in the Notice of Systems of 
Records. The words ``PRIVACY ACT--REQUEST TO AMEND RECORD'' should be 
written on the letter and the envelope. The request must describe the 
system of records containing the record sought to be amended, indicate 
the particular record involved, the nature of the correction sought, 
and the justification for the correction or amendment. An individual 
who does not have access to NCUA's Notice of Systems of Records, and to 
whom the appropriate address is otherwise unavailable, may submit a 
request to the Privacy Act Officer, Office of General Counsel, National 
Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 
22314-3428, in which case the request will then be referred to the 
appropriate system manager. The date of receipt of the request will be 
determined as of the date of receipt by the system manager.
    (b) * * * The appropriate system manager will promptly (under 
normal circumstances, not later than 30 working days after receipt of 
the request) advise the individual that the record will be amended or 
corrected, or inform the individual of rejection of the request to 
amend the record, the reason for the rejection, and the procedures 
established by Sec.  792.59 for the individual to request a review of 
that rejection.

0
20. In Sec.  792.59, revise the third sentence of paragraph (a) and the 
first two sentences of paragraph (c) to read as follows:


Sec.  792.59  Appeal of initial determination.

    (a) * * * Appeals must be addressed to the Office of General 
Counsel, National Credit Union Administration, 1775 Duke Street, 
Alexandria, VA 22314-3428 with the words ``PRIVACY ACT--APPEAL'' 
written on the letter and the envelope.* * *
* * * * *
    (c) If an appeal under this section is denied in whole or in part, 
an individual may file a statement of disagreement concisely stating 
the reason(s) for disagreeing with the denial for amendment or 
correction, and clearly identifying each part of any record that is 
disputed. The statement must be sent within 30 working days of the date 
of receipt of the notice of General Counsel's refusal to authorize 
amendment or correction, to the General Counsel, National Credit Union 
Administration, 1775 Duke Street, Alexandria, VA 22314-3428.* * *
* * * * *

0
21. In Sec.  792.60, revise paragraph (j) to read as follows:


Sec.  792.60  Disclosure of record to person other than the individual 
to whom it pertains.

* * * * *
    (j) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
Government Accountability Office;
* * * * *

0
22. In Sec.  792.61, revise the first sentence of paragraph (a) to read 
as follows:


Sec.  792.61  Accounting for disclosures.

    (a) Each system manager identified in the ``Notice of Systems of 
Records'' must establish a system of accounting for all disclosures of 
information or records under the Privacy Act made outside NCUA.* * *
* * * * *

0
23. In Sec.  792.63, revise paragraphs (a), (b)(1), and (b)(4), to read 
as follows:

[[Page 56940]]

Sec.  792.63  Collection of information from individuals: information 
forms.

    (a) The system manager for each system of records is responsible 
for reviewing all forms developed and used to collect information from 
or about individuals for incorporation into the system of records.
    (b) * * *
    (1) To ensure that no information concerning religion, political 
beliefs or activities, association memberships (other than those 
required for a professional license), or the exercise of other First 
Amendment rights is required to be disclosed unless such requirement of 
disclosure is expressly authorized by statute or by the individual 
about whom the record is maintained, or unless pertinent to and within 
the scope of any authorized law enforcement activity;
* * * * *
    (4) To ensure that the form or accompanying statement clearly 
indicates to the individual the effects on him or her, if any, of 
refusing to provide some or all of the requested information; and
* * * * *

0
24. In Sec.  792.66, revise paragraphs (a) and (b)(2), add four new 
sentences to the end of paragraph (b)(3), and add four new sentences to 
the end of paragraph (b)(4) to read as follows:


Sec.  792.66  Exemptions.

    (a) NCUA maintains several systems of records that are exempted 
from some provisions of the Privacy Act. The system number and name, 
description of records contained in the system, exempted provisions and 
reasons for exemption are as follows:
    (b) * * *
    (2) System NCUA-8, entitled, ``Investigative Reports Involving Any 
Crime or Suspicious Activity Against a Credit Union, NCUA,'' consists 
of investigatory or enforcement records about individuals suspected of 
involvement in violations of laws or regulations, whether criminal or 
administrative. These records are maintained in an overall context of 
general investigative information concerning crimes against credit 
unions. To the extent that individually identifiable information is 
maintained for purposes of protecting the security of any 
investigations by appropriate law enforcement authorities and promoting 
the successful prosecution of all actual criminal activity, the records 
in this system are exempted, pursuant to section k(2) of the Privacy 
Act (5 U.S.C. 552a (k)(2)), from sections (c)(3), (d), (e)(1), (e)(2), 
(e)(4)(G), (e)(4)(H), (f), and (g). The records in this system are also 
exempted pursuant to section (j)(2) of the Privacy Act, 5 U.S.C. 
552a(j)(2), from sections (c)(3), (d), (e)(1), (e)(2), (e)(4)(G), 
(e)(4)(H), (f), and (g). Where possible, information that would 
identify a confidential source will be extracted or summarized in a 
manner that protects the source and the summary or extract will be 
provided to the requesting individual.
    (3) * * * NCUA need not make an accounting of previous disclosures 
of a record in this system of records available to its subject, and 
NCUA need not grant access to any records in this system of records by 
their subject. Further, whenever individuals request records about 
themselves and maintained in this system of records, the NCUA will 
advise the individuals only that no records available to them pursuant 
to the Privacy Act of 1974 have been identified. However, if review of 
the record reveals that the information contained therein has been used 
or is being used to deny the individuals any right, privilege or 
benefit for which they are eligible or to which they would otherwise be 
entitled under federal law, the individuals will be advised of the 
existence of the information and will be provided the information, 
except to the extent disclosure would identify a confidential source. 
Where possible, information which would identify a confidential source 
will be extracted or summarized in a manner which protects the source 
and the summary or extract will be provided to the requesting 
individual.
    (4) * * * NCUA need not make an accounting of previous disclosures 
of a record in this system of records available to its subject, and 
NCUA need not grant access to any records in this system of records by 
their subject. Further, whenever individuals request records about 
themselves and maintained in this system of records, the NCUA will 
advise the individuals only that no records available to them pursuant 
to the Privacy Act of 1974 have been identified. However, if review of 
the record reveals that the information contained therein has been used 
or is being used to deny the individuals any right, privilege or 
benefit for which they are eligible or to which they would otherwise be 
entitled under federal law, the individuals will be advised of the 
existence of the information and will be provided the information, 
except to the extent disclosure would identify a confidential source. 
Where possible, information that would identify a confidential source 
will be extracted or summarized in a manner which protects the source 
and the summary or extract will be provided to the requesting 
individual.
* * * * *

0
25. In Sec.  792.69, revise paragraph (a) to read as follows:


Sec.  792.69  Training and employee standards of conduct with regard to 
privacy.

    (a) The Director of the Office of Human Resources, with advice from 
the Senior Privacy Act Officer, is responsible for training NCUA 
employees in the obligations imposed by the Privacy Act and this 
subpart.
* * * * *
[FR Doc. E8-23076 Filed 9-30-08; 8:45 am]
BILLING CODE 7535-01-P