[Federal Register Volume 82, Number 60 (Thursday, March 30, 2017)]
[Rules and Regulations]
[Pages 15609-15610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06047]



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 Rules and Regulations
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  Federal Register / Vol. 82, No. 60 / Thursday, March 30, 2017 / Rules 
and Regulations  

[[Page 15609]]



 OFFICE OF SPECIAL COUNSEL

5 CFR Part 1820


Revision of Regulations Governing Freedom of Information Act 
Requests and Appeals

AGENCY: U.S. Office of Special Counsel.

ACTION: Final rule.

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

SUMMARY: The rule updates the U.S. Office of Special Counsel's (OSC's) 
FOIA regulations to reflect substantive and procedural changes to the 
FOIA. In addition, in response to comments received on a different 
rulemaking, this final rule clarifies that our consultation procedures 
may include consultation with other offices prior to OSC responding to 
a FOIA request, incorporates existing records retention obligations, 
and updates the definition of representatives of the news media.

DATES: This final rule is effective on March 30, 2017.

FOR FURTHER INFORMATION CONTACT: Amy Beckett, Senior Litigation 
Counsel, U.S. Office of Special Counsel, by telephone at (202) 254-
3600, by facsimile at (202) 254-3711, or by email at [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538 
(the Act) mandated several changes to agency FOIA programs, and it 
required agencies to review and update relevant FOIA regulations. In 
addition, OSC is updating its regulations in response to comments 
received during a recent rulemaking. At that time, OSC made a few 
additional mechanical changes responsive to the comments, but stated it 
would consider the comments proposing broader changes pending OSC's 
regulatory review required by the Act.
    OSC has now considered the remaining comments, and has adopted some 
of them including a suggestion that Sec.  1820.6 refer to the statutory 
20-day appeal response window. In response to a comment that OSC 
include language regarding existing records retention obligations, OSC 
added provisions at Sec. Sec.  1820.5(d) and 1820.6(d) that address the 
requirement to retain FOIA-related federal records. In addition, OSC 
updated the definition of ``news media'' in Sec.  1820.7. In response 
to a comment regarding the consultation provision at Sec.  1820.3, OSC 
clarified the circumstances under which it would consult with non-OSC 
offices prior to OSC issuing a FOIA response. When consulting on 
records responsive to an OSC-received FOIA request, OSC retains the 
responsibility for responding to the request.
    Accordingly, OSC updates its FOIA regulations as follows:
    FOIA Regulations. In accordance with the Act, OSC extends the time 
period for submitting appeals from 45 to 90 days; codifies OSC's 
existing practice of informing requesters of the availability of the 
Agency's Public Liaison and the dispute resolution services of the 
National Archives and Records Administration's (NARA) Office of 
Government Information Services (OGIS); and notifies requesters of 
FOIA's intent to offer dispute resolution services at every stage of 
the FOIA process. OSC clarifies its FOIA consultation provisions 
relating to the need to sometimes consult with other offices when 
preparing its response to a FOIA request. OSC also updates its 
definition of ``representative of the news media'' to conform to 
current statutory language. This updated definition also responds to 
ongoing changes in the gathering and delivery of news.
    OSC adds language to 5 CFR 1820.5 to establish OSC's FOIA dispute 
resolution program, including requiring OSC to notify requesters of the 
availability of dispute resolution services and language emphasizing 
that dispute resolution is available to requesters at every phase of 
the FOIA request and appeals process. OSC also adds language regarding 
records retention for FOIA-related federal records.
    The existing language of 5 CFR 1820.6 is changed to notify 
requesters of their new statutory 90-day time limit to appeal. OSC also 
adds language regarding records retention for FOIA-related federal 
records.
    The revisions to 5 CFR 1820.7 update language requiring that a 
member of the news media be a ``person actively gathering news for an 
entity that is organized and operated to publish or broadcast news to 
the public,'' removing the ``organized and operated'' standard 
previously included. The change also includes a non-exhaustive list of 
entities that meet the updated definition of ``member of the news 
media.''

Procedural Determinations

    Administrative Procedure Act (APA): OSC finds that good cause 
exists, pursuant to 5 U.S.C. 553(b), that notice and public comment on 
this rule-making would be unnecessary and contrary to the public 
interest because most of these revisions to OSC's FOIA regulations are 
mandated by the FOIA Improvement Act of 2016 and OSC is not exercising 
any discretion in issuing these revisions; and also because the 
additional changes respond to previously considered comments on a 
recent rulemaking. This action is taken under the Special Counsel's 
authority at 5 U.S.C. 1212(e) to publish regulations in the Federal 
Register.
    Executive Order 12866 (Regulatory Planning and Review): This rule 
is not a significant regulatory action as defined in section 3.f of 
Executive Order 12866.
    Congressional Review Act (CRA): The rule is not subject to the 
reporting requirement of 5 U.S.C. 801 because it does not substantially 
affect the rights or obligations of non-agency parties and therefore is 
not a ``rule'' as that term is used by the Congressional Review Act 
(Subtitle E of the Small Business Regulatory Enforcement Fairness Act 
of 1998).
    Regulatory Flexibility Act (RFA): Because no notice of proposed 
rulemaking is required, the provisions of the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.) do not apply.
    Unfunded Mandates Reform Act (UMRA): This revision does not impose 
any federal mandates on state, local, or tribal governments, or on the 
private sector within the meaning of the UMRA.
    National Environmental Policy Act (NEPA): This rule will have no 
physical impact upon the environment and therefore will not require any 
further review under NEPA.
    Paperwork Reduction Act (PRA): This rule does not impose any new 
recordkeeping, reporting, or other

[[Page 15610]]

information collection requirements on the public.
    Executive Order 13132 (Federalism): This revision does not have new 
federalism implications under Executive Order 13132.
    Executive Order 12988 (Civil Justice Reform): This rule meets 
applicable standards of 3(a) and 3(b)(2) of Executive Order 12988.

List of Subjects in 5 CFR Part 1820

    Administrative practice and procedure, Dispute resolution, Freedom 
of information, Government employees, Touhy regulations.

    For the reasons stated in the preamble, OSC amends 5 CFR part 1820 
as follows:

PART 1820--FREEDOM OF INFORMATION ACT REQUESTS; PRODUCTION OF 
RECORDS OR TESTIMONY

0
1. The authority citation for 5 CFR part 1820 is revised to read as 
follows:

    Authority: 5 U.S.C. 552 and 1212(e).


0
2. Section 1820.3 is revised to read as follows:


Sec.  1820.3  Consultations and referrals.

    When OSC receives a FOIA request for a record in the agency's 
possession, it may determine that another office is better able to 
decide whether or not the record is exempt from disclosure under the 
FOIA. If so, OSC will either:
    (a) Respond to the request for the record after consulting with the 
other office that has a substantial interest in the record; or
    (b) Refer the responsibility for responding to the request to 
another Federal agency deemed better able to determine whether to 
disclose it. Consultations and referrals will be handled according to 
the date that the FOIA request was initially received by the first 
agency or Federal government office.

0
3. Section 1820.5 is amended by adding paragraphs (c) and (d) to read 
as follows:


Sec.  1820.5  Responses to requests.

* * * * *
    (c) Dispute resolution program. OSC shall inform FOIA requesters at 
all stages of the FOIA process of the availability of dispute 
resolution services. In particular, OSC's FOIA acknowledgement letters 
shall notify requesters that the FOIA Liaison is available to assist 
them with requests. The acknowledgment letter and any agency response 
will include a notice that the FOIA Public Liaison may provide dispute 
resolution services, and will also notify the requester of the dispute 
resolution services provided by the National Archives and Records 
Administration's (NARA) Office of Government Information Services 
(OGIS).
    (d) Maintenance of files. OSC must preserve federal record 
correspondence and copies of requested records until disposition is 
authorized pursuant to Title 44 of the United States Code and the 
relevant approved records retention schedule.

0
4. Section 1820.6 is revised to read as follows:


Sec.  1820.6   Appeals.

    (a) Appeals of adverse determinations. A requester may appeal a 
determination denying a FOIA request in any respect to the Office of 
General Counsel, U.S. Office of Special Counsel, 1730 M Street NW., 
Suite 218, Washington, DC 20036-4505. The appeal must be in writing, 
and must be submitted either by:
    (1) Regular mail sent to the address listed in this subsection, 
above; or
    (2) By fax sent to the FOIA Officer at, (202) 254-3711, or the 
number provided on the FOIA page of OSC's Web site https://osc.gov/Pages/FOIAResources.aspx; or
    (3) By email to [email protected], or other electronic means as 
described on the FOIA page of OSC's Web site, https://osc.gov/Pages/FOIAResources.aspx.
    (b) Submission and content. The Office of General Counsel must 
receive the appeal within 90 days of the date of the letter denying the 
request. For the quickest possible handling, the appeal letter and 
envelope or any fax cover sheet or email subject line should be clearly 
marked ``FOIA Appeal.'' The appeal letter must clearly identify the OSC 
determination (including the assigned FOIA request number, if known) 
being appealed. OSC will not ordinarily act on a FOIA appeal if the 
request becomes a matter of FOIA litigation.
    (c) Responses to appeals. Ordinarily, OSC shall have 20 business 
days from receipt of the appeal to issue an appeal decision. 5 U.S.C. 
552(a)(6)(A)(ii). OSC's decision on an appeal will be in writing. A 
decision affirming a denial in whole or in part shall inform the 
requester of the provisions for judicial review of that decision. If 
the denial is reversed or modified on appeal, in whole or in part, OSC 
will notify the requester in a written decision and OSC will reprocess 
the request in accordance with that appeal decision. OSC will notify 
the requester of the availability of dispute resolution services 
provided by the FOIA Public Liaison and the dispute resolution services 
provided by the National Archives and Records Administration's (NARA) 
Office of Government Information Services (OGIS).
    (d) Maintenance of files. OSC must preserve federal record 
correspondence and copies of requested records until disposition is 
authorized pursuant to Title 44 of the United States Code and the 
relevant approved records retention schedule.

0
5. Section 1820.7(b)(6) is revised to read as follows:


Sec.  1820.7   Fees.

* * * * *
    (b) * * *
    (6) ``Representative of the news media'' or ``news media 
requester'' 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. A non-exhaustive list of news media entities 
could include, in addition to television or radio stations broadcasting 
to the public at large and publishers of periodicals (but only in those 
instances where they can qualify as disseminators of ``news''), 
electronic outlets for print newspapers, magazines, and television and 
radio stations, and web-only outlets or other alternative media as 
methods of news delivery evolve. For ``freelance'' journalists to be 
regarded as working for a news organization, they must demonstrate a 
solid basis for expecting publication through that organization, 
whether print or electronic. A publication contract would be the 
clearest proof, but OSC may also look to the past publication record of 
a requester in making this determination. To be in this category, a 
requester must not be seeking the requested records for a commercial 
use. A request for records supporting the news-dissemination function 
of the requester shall not be considered to be for a commercial use.
* * * * *

    Dated: March 21, 2017.
Bruce Gipe,
Chief Operating Officer.
[FR Doc. 2017-06047 Filed 3-29-17; 8:45 am]
 BILLING CODE 7405-01-P