[Federal Register Volume 75, Number 226 (Wednesday, November 24, 2010)]
[Proposed Rules]
[Pages 71567-71568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29353]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 75, No. 226 / Wednesday, November 24, 2010 / 
Proposed Rules  

[[Page 71567]]



GOVERNMENT ACCOUNTABILITY OFFICE

4 CFR Part 81


Public Availability of Government Accountability Office Records

AGENCY: Government Accountability Office.

ACTION: Proposed rule.

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SUMMARY: These proposed revisions would clarify procedures to obtain 
Government Accountability Office (GAO) documents. Published GAO 
documents such as testimonies, reports, and decisions are available to 
the public on GAO's Web site and also may be requested over the 
telephone. Their wide availability eliminates the need for regulations 
governing their request, and accordingly published GAO documents would 
no longer be subject to the procedures of this part under the proposed 
rule. The revisions would also clarify that records compiled for law 
enforcement purposes by another agency and records provided by GAO to 
another agency for law enforcement purposes are not subject to 
disclosure. The existing regulatory language on this point is 
imprecise. The proposed changes would add steps to the procedures for 
using GAO's public reading facility, to facilitate the efficient use of 
the facility. Finally, the proposed revisions would make various 
housekeeping changes reflecting shifts in GAO's operating procedures.
    These proposed changes will clarify for the public which GAO 
documents are subject to this part and how to obtain such documents.

DATES: Comments must be received on or before January 10, 2011.

ADDRESSES: Address all comments concerning this proposed rule to 
Government Accountability Office, Office of the General Counsel, Attn: 
Legal Services, Room 7838, 441 G Street, NW., Washington, DC 20548; or 
e-mail, [email protected].

FOR FURTHER INFORMATION CONTACT: John A. Bielec, Assistant General 
Counsel, 202-512-2846.

SUPPLEMENTARY INFORMATION: GAO is not subject to the Administrative 
Procedure Act and accordingly is not required by law to seek comments 
before issuing a final rule. However, GAO has decided to invite 
interested persons to participate in this rulemaking by submitting 
written comments regarding the proposed revisions. Application of the 
Administrative Procedure Act to GAO is not to be inferred from this 
invitation for comments.
    GAO will consider all comments received on or before the closing 
date for comments. GAO may change the proposed revisions based on the 
comments received.
    GAO proposes to amend paragraph (b) of section 81.1 to remove all 
published GAO documents, such as reports and decisions, from this 
part's purview. All such documents are publicly available on GAO's Web 
site, http://www.gao.gov, and may also be ordered over the telephone. 
Accordingly, regulations governing requests for public disclosure of 
such documents are unnecessary. It is also well-established that when 
an agency makes its documents widely available to the public, the 
agency need not reproduce those documents again in response to a 
Freedom of Information Act (FOIA) request. Department of Justice v. Tax 
Analysts, 492 U.S. 136, 152 (1989). While GAO is not subject to FOIA, 
the principle applies equally in this context.
    Published GAO documents may be downloaded free of charge from GAO's 
Web site. Print copies may be ordered by telephone, but GAO charges a 
fee to print and ship documents requested this way. Under the proposed 
rule, GAO would no longer accept requests via fax or mail for published 
documents. Requests for GAO documents not available on GAO's Web site 
would remain subject to this part and would have to be submitted in 
writing to GAO, via either mail or e-mail, in accordance with section 
81.4. Technical amendments to paragraphs (a) and (c) of section 81.1 
are proposed as needed to conform with these changes.
    Paragraph 81.6(g) would be amended to clarify the types of 
documents GAO considers to be compiled for law enforcement purposes. 
Such documents are not subject to disclosure under this part.
    Although GAO is not a law enforcement agency, it occasionally 
collects, during the course of its audits and investigations, records 
from law enforcement agencies that those agencies compiled for their 
own law enforcement purposes. While GAO did not compile the records, 
they are nonetheless exempt from disclosure because they were 
originally compiled for law enforcement purposes and may still be used 
for such purposes by the originating agency. Disclosure of such records 
would undermine the originating agency's law enforcement mission.
    During the course of its work, GAO also occasionally receives 
information from non-law enforcement sources that indicates possible 
civil or criminal wrongdoing by another party. GAO forwards such 
information to other Federal, State or local agencies with enforcement 
jurisdiction over the matter. The receiving agencies may use the 
information for their own investigations, prosecutions, or other law 
enforcement matters. GAO considers such information to be compiled for 
law enforcement purposes if, at the time GAO receives a request under 
this part for the information, the receiving agency advises GAO that 
the information is being, or will be, used by that agency for a law 
enforcement purpose. In these circumstances, GAO's disclosure of the 
information could undermine law enforcement operations. ``Law 
enforcement'' in this context includes civil and administrative as well 
as criminal matters.
    This policy is consistent with the United States Supreme Court's 
ruling that information not originally compiled for law enforcement 
purposes is nevertheless exempt from public disclosure if, at the time 
of a request, it is being used for law enforcement purposes. John Doe 
Agency v. John Doe Corp., 493 U.S. 146, 153-55 (1989).
    Section 81.8 would be amended to advise individuals who wish to use 
GAO's public reading facility to schedule an appointment and to have 
GAO's staff determine whether the records sought are included in the 
public reading facility collection.
    Section 81.2 would be amended to clarify and identify the entity 
within GAO that administers this part. Section

[[Page 71568]]

81.4 would be amended to delete language that GAO records may be 
requested via a link on GAO's Web site. GAO will continue to accept 
requests for GAO records by e-mail. Paragraph (m) of section 81.6 would 
be amended to correctly identify the entity within GAO that operates 
GAO FraudNet.

List of Subjects in 4 CFR Part 81

    Administrative practice and procedure, Archives and records, 
Computer technology, Electronic products, Freedom of information, 
Public reading room, Requests for records.
    For the reasons stated in the preamble, the Government 
Accountability Office proposes to amend 4 CFR part 81 as follows:

PART 81--PUBLIC AVAILABILITY OF GOVERNMENT ACCOUNTABILITY OFFICE 
RECORDS

    1. The authority citation for part 81 continues to read:

    Authority: 31 U.S.C. 711.

    2. Amend Sec.  81.1 by revising the first sentence of paragraph 
(a), revising paragraph (b), and adding paragraph (c) to read as 
follows:


Sec.  81.1  Purpose and scope of part.

    (a) This part implements the policy of the U.S. Government 
Accountability Office (GAO) with respect to the public availability of 
GAO records, except as set forth in paragraph (b) of this section. * * 
*
    (b) GAO published testimonies, reports, decisions, special 
publications, or listings of publications are not included within the 
scope of this part. These documents may be obtained from the GAO Web 
site, http://www.gao.gov, or by telephone at 202-512-6000, TDD 202-512-
2537, or 1-866-801-7077 (toll free). These publications may be 
downloaded free of charge from the GAO Web site. Paper copies requested 
from GAO are subject to a printing, shipping, and handling fee.
    (c) Requests for all other GAO records are within the scope of this 
part and should be submitted to GAO as directed in Sec.  81.4(a).
    3. Revise Sec.  81.2 to read as follows:


Sec.  81.2  Administration.

    GAO's Chief Quality Officer administers this part and may 
promulgate such supplemental rules or regulations as may be necessary.


Sec.  81.4  [Amended]

    4. In Sec.  81.4, remove the second sentence of paragraph (a).
    5. Amend Sec.  81.6 by revising paragraphs (g) and (m) to read as 
follows:


Sec.  81.6  Records which may be exempt from disclosure.

* * * * *
    (g) Records compiled for law enforcement purposes that originate in 
another agency, or records provided by GAO to another agency for law 
enforcement purposes.
* * * * *
    (m) Unsolicited records containing information submitted by any 
person to GAO in confidence. Records obtained by the GAO Forensic 
Audits and Special Investigations (GAO FraudNet) are an example of 
records that could contain information covered by this exemption.
    6. Amend Sec.  81.8 by adding a new second sentence, and revising 
the last sentence as follows:


Sec.  81.8  Public reading facility.

    * * * To determine if a record is part of the public reading 
facility collection and to schedule an appointment to visit the 
facility, contact the Library reference desk at 202-512-2585. The 
facility is open to the public from 8:30 a.m. to 4 p.m. except 
Saturdays, Sundays, and Federal holidays.

Lynn H. Gibson,
Acting General Counsel, U.S. Government Accountability Office.
[FR Doc. 2010-29353 Filed 11-23-10; 8:45 am]
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