[Federal Register Volume 73, Number 222 (Monday, November 17, 2008)]
[Rules and Regulations]
[Pages 67791-67794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26961]


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LEGAL SERVICES CORPORATION

45 CFR Part 1602


Procedures for Disclosure of Information Under the Freedom of 
Information Act

AGENCY: Legal Services Corporation.

ACTION: Final rule.

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SUMMARY: LSC is revising its regulation on procedures for disclosure of 
information under the Freedom of Information Act to implement changes 
in that law made by the OPEN Government Act of 2007. LSC is also 
designating the Office of Inspector General as a separate component for 
receiving requests for its records and making two technical amendments.

DATES: This Final Rule is effective as of December 31, 2008.

FOR FURTHER INFORMATION CONTACT: Mattie Cohan, Senior Assistant General 
Counsel, Office of Legal Affairs, Legal Services Corporation, 3333 K 
St., NW., Washington, DC 20007; 202-295-1624 (phone); 202-337-6519 
(fax); [email protected] (e-mail).

SUPPLEMENTARY INFORMATION: LSC is subject to the Freedom of Information 
Act (FOIA) by the terms of the Legal Services Corporation Act. 42 
U.S.C. 2996d(g).\1\ LSC has implemented FOIA procedures through the 
adoption of regulations found at 45 CFR Part 1602.
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    \1\ Absent this authority, LSC would not otherwise be subject to 
FOIA since LSC is not an agency, department or instrumentality of 
the Federal government. 42 U.S.C. 2996d(e)(1).
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    On December 31, 2007, President Bush signed the Openness Promotes 
Effectiveness in our National Government Act of 2007 (``OPEN Government 
Act'' or ``Act'') into law. The OPEN Government Act amends FOIA in an 
effort to improve media and public access to government records. In 
order to bring LSC's FOIA regulations into conformance with the changes 
to FOIA made by the OPEN Government Act provisions, the LSC Board of 
Directors initiated a rulemaking on August 2, 2008 and LSC issued a 
Notice of Proposed Rulemaking (NPRM) on August 14, 2008 (73 Fed. Reg. 
45764) proposing revisions to the regulation and seeking public 
comment. LSC received no comments on the NPRM and LSC adopts the 
revisions to the regulation as proposed. The changes to Part 1602 are 
discussed in greater detail below.

Section-by-Section Analysis

Definitions--45 CFR 1602.2

Section 1602.2(g)--Records
    Under LSC's regulations, ``records'' are various materials ``made 
or received by the Corporation in connection with the transaction of 
the Corporation's business and preserved by the Corporation.'' 45 CFR 
1602.2(g). Section 9 of the OPEN Government Act expands the statutory 
definition of ``record'' to include any information that is maintained 
for an agency by an entity under Government contract, for the purposes 
of records management. LSC proposed to amend Sec.  1602.2(g) to conform 
the regulation with the expanded statutory definition by specifically 
referencing information maintained by LSC under contract for the 
purposes of records management. LSC adopts the revisions as 
proposed.\2\
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    \2\ In accordance with Federal Register requirements, LSC is not 
including any specific regulatory text language in this preamble. 
Readers are referred to the regulatory text section supra.
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Section 1602.2(h)--Representatives of News Media
    FOIA provides that ``representatives of the news media'' may not be 
charged fees for search and review time associated with responding to 
their FOIA requests. 5 U.S.C. 552(a)(4)(A)(ii)(II). The term 
``representative of the news media'' is not defined in FOIA, but LSC's 
FOIA regulation at Part 1602 currently contains a definition based on a 
definition of that term appearing in guidance published by the Office 
of Management and Budget. See 53 FR 6151 (March 1, 1988); 52 FR 10012 
(March 27, 1987).
    The OPEN Government Act of 2007 clarifies that ``freelance'' 
journalists and ``alternative media'' news sources (such as online news 
sources) are ``representatives of the news media'' for the purposes of 
the fee structure. Specifically, Sec.  3 of the OPEN Government Act 
defines ``representative of the news media'' as ``any person or entity 
that gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience.'' That section 
goes on to provide:

    In this clause, the term `news' means information that is about 
current events or that would be of current interest to the public. 
Examples of news-media entities are television or radio stations 
broadcasting to the public at large and publishers of periodicals 
(but only if such entities qualify as disseminators of `news') who 
make their products available for purchase by or subscription by or 
free distribution to the general public. These examples are not all-
inclusive. Moreover, as methods of news delivery evolve (for 
example, the adoption of the electronic dissemination of newspapers 
through telecommunications services), such alternative media shall 
be considered to be news-media entities. A freelance journalist 
shall be regarded as working for a news-media entity if the 
journalist can demonstrate a solid basis for expecting publication 
through that entity, whether or not the journalist is actually 
employed by the entity. A publication contract would present a solid 
basis for such an expectation; the Government may also consider the 
past publication record of the requester in making such a 
determination.

    Although LSC's existing definition of ``representative of the news 
media'' is not substantively inconsistent with or contrary to the newly 
clarified definition in the OPEN Government Act, LSC believes that it 
is prudent to amend its regulatory definition to reflect the revised 
statutory language. LSC believes that substituting the clarified 
definition for the existing one will ensure that LSC's regulation 
reflects the full intent of Congress. Accordingly, LSC proposed to 
amend Sec.  1602.2(h) to reflect the statutory language. LSC adopts the 
definition as proposed.

Requests for Records--45 CFR 1602.8

    Agencies are required to make determinations on whether to comply 
with FOIA requests within twenty (20) business days of receipt of a 
request.

[[Page 67792]]

5 U.S.C. 552(a)(6)(A)(i). LSC has incorporated this requirement into 
its regulations at 45 CFR 1602.8(i). The OPEN Government Act provides 
additional instruction to clarify when the time limit begins to run. 
Specifically, section 6 of the OPEN Government Act provides that:

    The 20-day period under clause [5 U.S.C 552(a)(6)(A)(i)] shall 
commence on the date on which the request is first received by the 
appropriate component of the agency, but in any event not later than 
ten days after the request is received by any component of the 
agency that is designated in the agency's regulations under this 
section to receive requests under this section. [sic] The 20-day 
period shall not be tolled by the agency except:
    (I) That the agency may make one request to the requester for 
information and toll the 20-day period while it is awaiting such 
information that it has reasonably requested from the requester 
under this section; or
    (II) If necessary to clarify with the requester issues regarding 
fee assessment. In either case, the agency's receipt of the 
requester's response to the agency's request for information or 
clarification ends the tolling period.

    Unlike some agencies subject to FOIA, LSC has had only one 
component designated to receive requests, the Office of Legal Affairs. 
The Office of Inspector General (OIG) is not a separate component 
designated to receive FOIA requests under LSC's regulations, although 
the General Counsel or designee forwards requests for records 
maintained by the OIG for processing and response. Under the current 
regulation, when FOIA requests are for OIG records and they are 
referred over to the OIG, the 20-day time limit for response only 
starts for the OIG when the OIG receives the request upon referral from 
the Office of Legal Affairs. However, under the new statutory 
requirements, the OIG's 20-day time limit will commence when the OIG 
receives the request from the Office of Legal Affairs, but in no event 
later than 10 working days from when the Office of Legal Affairs 
receives the request. Thus, if for some reason the referral is not made 
on a timely basis, the OIG could lose some or all of its response time 
before its response would be deemed late through no action on inaction 
on the part of the OIG.
    Designating the OIG as a separate component authorized to receive 
requests directly would ameliorate, although not entirely eliminate, 
this potential problem. In addition, LSC notes that it is typical 
practice in other agencies with Inspectors General for those Offices of 
Inspector General to be separately designated components authorized to 
receive and process FOIA request directly. Accordingly, LSC proposed to 
revise 45 CFR 1602.8(i) to incorporate the provisions of the OPEN 
Government Act discussed above and to designate the Office of Inspector 
General as a component authorized to receive FOIA requests for its 
records. LSC adopts the revisions as proposed.
    In addition, LSC proposed to redesignate paragraph (i)(2) as 
(i)(2)(i), and amend that paragraph to provide for the mutual referral 
by the respective Offices of FOIA requests received for the others' 
documents. LSC also proposed add a new paragraph (i)(2)(ii) to clarify 
when the 20-day period under paragraph (i)(1) begins to run for each 
respective Office. LSC adopts the revisions as proposed.

Exemptions for Withholding Records--45 CFR 1602.9

    Under FOIA, entire documents or portions thereof may be withheld 
from disclosure if one or more specified exemptions apply. 5 U.S.C. 
552(b). If a particular document contains information that can be 
withheld from disclosure which may reasonably be segregated from the 
material which must be released, the agency must (with limited 
exception) release the segregable portion of the record and indicate 
the amount of information which has been deleted. Id. Section 12 of the 
OPEN Government Act imposes a further requirement that the agency 
inform requesters of the exemption under which redacted information is 
being withheld. LSC proposes incorporating this new requirement into 
its regulations by amending Sec.  1602.9(b) to insert the words ``and 
the exemption under which the deletion is made'' after the words 
``amount of information deleted'' where they appear in the second and 
third sentences of that paragraph. LSC adopts the revision as proposed.

Officials Authorized to Grant or Deny Requests for Records--45 CFR 
1602.10

    Under the current regulation, because the OIG is not separately 
designated to receive its own FOIA requests, the Counsel to the 
Inspector General or designee is required to consult with the Office of 
the General Counsel prior to granting or denying requests for records 
which have been referred to the OIG. 45 CFR 1602.10(b). With the 
change, discussed elsewhere herein, to designate the OIG as a unit 
authorized to receive FOIA requests directly, this requirement is 
obsolete. Accordingly, LSC is deleting this requirement from the 
regulation by deleting the last sentence of Sec.  1602.10(b).
    In addition, under the current regulation, the Office of the 
General Counsel is required to consult with the OIG when a requested 
record originated with the OIG but is now maintained elsewhere within 
the Corporation. 45 CFR 1602.10(b). This ensures that the OIG has 
notice of the request and an opportunity to participate in the 
potential release of OIG records by the Office of General Counsel. With 
the change, discussed elsewhere herein, to designate the OIG as a 
component authorized to receive FOIA requests directly, it is 
appropriate to adopt a parallel provision requiring the OIG to consult 
with the Office of the General Counsel prior to granting or denying a 
request for a record which originated in a component of the Corporation 
other than the OIG but which is being maintained by the OIG. 
Accordingly, LSC proposed to add a new last sentence of Sec.  
1602.10(b) requiring such consultation. LSC adopts the revision as 
proposed.

Fees--45 CFR 1602.13

    FOIA provides for the assessment of fees on requesters associated 
with the processing of their FOIA requests. 5 U.S.C. 552(a)(4). Prior 
to the adoption of the OPEN Government Act, applicable fees could be 
assessed when authorized under FOIA, regardless of the timeliness of 
the response to the requester. Section 6 of the OPEN Government Act has 
changed that, providing now that, for FOIA requests received on or 
after December 31, 2008, an agency which fails to provide a timely 
response may not assess search fees, except in cases involving unusual 
or exceptional circumstances. In the case of requesters who are 
representatives of the news media, since they are already not subject 
to search charges, the OPEN Government Act provides that, for FOIA 
requests received on or after December 31, 2008, applicable duplication 
fees will not be charged when the agency provides an untimely response. 
LSC proposed to implement this statutory change by amending Sec.  
1602.13, Fees, by redesignating paragraph (b) as a paragraph (b)(1) and 
adding a new paragraph (b)(2) to incorporate the statutory requirement. 
LSC adopts the revision with minor modifications to the text for 
clarity and to explicitly reference that the limitation on the charging 
of fees applies only the requests received on or after the effective 
date of the revision.

Technical Changes--References to LSC's Address

    Although not required by the OPEN Government Act, LSC is taking 
this

[[Page 67793]]

opportunity to make two technical changes to the regulation, both 
referencing addresses for the submission of FOIA requests.
Section 1602.5--Public Reading Room
    When the Corporation last amended Part 1602 in 2003, it was in the 
process of moving its offices from 750 First St. NE., Washington, DC to 
its current location at 3333 K St., NW., Washington, DC. Section 
1602.5, which sets forth the address of LSC's public reading room and 
is also the address referenced in the instructions for the submission 
of FOIA requests in Sec.  1602.8(b), was amended at that time to 
include both addresses. The reference to the First St. NE. address is 
now obsolete. Accordingly, LSC proposed to delete the reference to that 
obsolete address and amend the first sentence of Sec.  1602.5(a) to 
reference LSC's current address. LSC adopts the revision as proposed.
Section 1602.8--Requests for Records
    LSC proposed a technical change to Sec.  1602.8(b) to update the 
email address requesters are required to use to submit FOIA requests. 
The current regulation lists an email address of [email protected], 
which is a general information email address. In order to improve 
handling and processing of FOIA requests, LSC has since established a 
dedicated FOIA email address to ensure that FOIA requests are 
identified and processed separately from other general information 
requests submitted to the Corporation. Accordingly, LSC proposed to 
amend paragraph (b) to delete the old email address, and substitute the 
correct dedicated FOIA e-mail address: [email protected] in the third 
sentence of paragraph (b). LSC adopts the revision as proposed.

List of Subjects in 45 CFR Part 1602

    Freedom of Information, Reporting and recordkeeping requirements.

0
For the reasons set forth above, LSC amends 45 CFR part 1602 as 
follows:

PART 1602--PROCEDURES FOR DISCLOSURE OF INFORMATION UNDER THE 
FREEDOM OF INFORMATION ACT

0
1. The authority citation for part 1602 continues to read as follows:

    Authority: 42 U.S.C. 2996d(g); 5 U.S.C. 552.


0
2. Paragraphs (g) and (h) of Sec.  1602.2 are revised to read as 
follows:


Sec.  1602.2  Definitions.

    (g) Records means books, papers, maps, photographs, or other 
documentary materials, regardless of whether the format is physical or 
electronic, made or received by the Corporation in connection with the 
transaction of the Corporation's business and preserved by the 
Corporation (either directly or maintained by a third party under 
contract to the Corporation for records management purposes), as 
evidence of the organization, functions, policies, decisions 
procedures, operations, or other activities of the Corporation, or 
because of the informational value of data in them. The term does not 
include, inter alia, books, magazines, or other materials acquired 
solely for library purposes.
    (h) Representative of the news media means any person or entity 
that gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience. In this 
clause, the term ``news'' means information that is about current 
events or that would be of current interest to the public. Examples of 
news media entities are television or radio stations broadcasting to 
the public at large and publishers of periodicals (but only if such 
entities qualify as disseminators of ``news'') who make their products 
available for purchase by or subscription by or free distribution to 
the general public. These examples are not all-inclusive. Moreover, as 
methods of news delivery evolve (for example, the adoption of the 
electronic dissemination of newspapers through telecommunications 
services), such alternative media shall be considered to be news media 
entities. A freelance journalist shall be regarded as working for a 
news media entity if the journalist can demonstrate a solid basis for 
expecting publication through that entity, whether or not the 
journalist is actually employed by the entity. A publication contract 
would present a solid basis for such an expectation; the Corporation 
may also consider the past publication record of the requester in 
making such a determination.
* * * * *

0
3. Paragraph (a) of Sec.  1602.5 is revised to read as follows:


Sec.  1602.5  Public reading room.

    (a) The Corporation will maintain a public reading room its office 
at 3333 K St. NW., Washington, DC, 20007. This room will be supervised 
and will be open to the public during the regular business hours of the 
Corporation for inspecting and copying records described in paragraph 
(b) of this section.
* * * * *

0
4. Paragraphs (b) and (i)(1)and (2) of Sec.  1602.8 are revised to read 
as follows:


Sec.  1602.8  Requests for records.

* * * * *
    (b) Requests. Requests for records under this section shall be made 
in writing, with the envelope and the letter or e-mail request clearly 
marked Freedom of Information Act Request. All such requests shall be 
addressed to the Corporation's Office of Legal Affairs or, in the case 
of requests for records maintained by the Office of Inspector General, 
to the Office of Inspector General. Requests by letter shall use the 
address given in Sec.  1602.5(a). E-mail requests shall be addressed to 
[email protected] or, in the case of requests for records maintained by the 
Office of Inspector General, [email protected]. Any request not marked 
and addressed as specified in this paragraph will be so marked by 
Corporation personnel as soon as it is properly identified, and will be 
forwarded immediately to the Office of Legal Affairs, or as 
appropriate, the Office of Inspector General. A request improperly 
addressed will only be deemed to have been received as in accordance 
with paragraph (i) of this section. Upon receipt of an improperly 
addressed request, the General Counsel or designee (or Counsel to the 
Inspector General or designee) shall notify the requester of the date 
on which the time period began.
* * * * *
    (i)(1)(i) The General Counsel or designee, upon request for any 
records made in accordance with this section, except in the case of a 
request for Office of Inspector General records, shall make an initial 
determination of whether to comply with or deny such request and 
dispatch such determination to the requester within 20 days (excepting 
Saturdays, Sundays and legal public holidays) after receipt of such 
request, except for unusual circumstances, in which case the time limit 
may be extended for up to 10 working days by written notice to the 
requester setting forth the reasons for such extension and the date on 
which a determination is expected to be dispatched.
    (ii) In the case of a request for any Office of Inspector General 
records made in accordance with this section, the Counsel to the 
Inspector General or designee shall make an initial determination of 
whether to comply with or deny such request and dispatch such 
determination to the requester

[[Page 67794]]

within 20 days (excepting Saturdays, Sundays and legal public holidays) 
after receipt of such request, except for unusual circumstances, in 
which case the time limit may be extended for up to 10 working days by 
written notice to the requester setting forth the reasons for such 
extension and the date on which a determination is expected to be 
dispatched.
    (i)(2)(i) If the General Counsel or designee determines that a 
request or portion thereof is for the Office of Inspector General 
records, the General Counsel or designee shall promptly refer the 
request or portion thereof to the Office of Inspector General and send 
notice of such referral to the requester. If the Counsel to the 
Inspector General or designee determines that a request or portion 
thereof is for Corporation records not maintained by the Office of 
Inspector General, the Counsel to the Inspector General or designee 
shall promptly refer the request or portion thereof to the Office of 
Legal Affairs and send notice of such referral to the requester.
    (ii) The 20-day period under paragraph (i)(1) of this section shall 
commence on the date on which the request is first received by the 
appropriate Office (the Office of Legal Affairs or the Office of 
Inspector General), but in no event later than 10 working days after 
the request has been received by either the Office of Legal Affairs or 
the Office of Inspector General. The 20-day period shall not be tolled 
by the Office processing the request except that the processing Office 
may make one request to the requester for information pursuant to 
paragraph (c) of this section and toll the 20-day period while it is 
awaiting such information that it has reasonably requested from the 
requester under this section; or, if necessary to clarify with the 
requester issues regarding fee assessment. In either case, the 
processing Office's receipt of the requester's response to such a 
request for information or clarification ends the tolling period.
* * * * *

0
5. Paragraph (b) introductory text of Sec.  1602.9 is revised to read 
as follows:


Sec.  1602.9  Exemptions for withholding records.

* * * * *
    (b) In the event that one or more of the exemptions in paragraph 
(a) of this section apply, any reasonably segregable portion of a 
record shall be provided to the requester after deletion of the 
portions that are exempt. The amount of information deleted and the 
exemption under which the deletion is being made shall be indicated on 
the released portion of the record, unless doing so would harm the 
interest protected by the exemption under which the deletion is made. 
If technically feasible, the amount of information deleted and the 
exemption under which the deletion is being made shall be indicated at 
the place in the record where the deletion occurs.
* * * * *

0
6. Paragraph (b) of Sec.  1602.10 is revised to read as follows:


Sec.  1602.10  Officials authorized to grant or deny requests for 
records.

* * * * *
    (b) The General Counsel or designee and the Counsel to the 
Inspector General or designee are authorized to grant or deny requests 
under this part. In the absence of a Counsel to the Inspector General, 
the Inspector General shall name a designee who will be authorized to 
grant or deny requests under this part and who will perform all other 
functions of the Counsel to the Inspector General under this part. The 
General Counsel or designee shall consult with the Office of the 
Counsel to the Inspector General or designee prior to granting or 
denying any request for records or portions of records which originated 
with the Office of Inspector General, or which contain information 
which originated with the Office of Inspector General, but which are 
maintained by other components of the Corporation. The Counsel to the 
Inspector General or designee shall consult with the Office of the 
General Counsel prior to granting or denying any request for records or 
portions of records which originated with any component of the 
Corporation other than the Office of Inspector General, or which 
contain information which originated with a component of the 
Corporation other than the Office of Inspector General, but which are 
maintained by the Office of Inspector General.

0
7. Paragraph (b) of Sec.  1602.13 is amended by redesignating paragraph 
(b) as (b)(1) and adding paragraph (b)(2) to read as follows:


Sec.  1602.13  Fees.

* * * * *
    (b) * * *
    (2) If no unusual circumstances, as set forth in Sec.  1602.8 
apply, for requests received on or after December 31, 2008, if LSC has 
failed to comply with the time limits set forth in that section, 
otherwise applicable search fees will not be charged to a requester. In 
such cases, if the requester is a representative of the news media, 
otherwise applicable duplication fees will not be charged.

Victor M. Fortuno,
Vice President and General Counsel.
[FR Doc. E8-26961 Filed 11-14-08; 8:45 am]
BILLING CODE 7050-01-P