[Federal Register Volume 82, Number 187 (Thursday, September 28, 2017)]
[Rules and Regulations]
[Pages 45180-45182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19897]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1610

RIN 3046-AA90


Availability of Records

AGENCY: Equal Employment Opportunity Commission.

ACTION: Final rule.

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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or 
``Commission'') is issuing a final rule revising its Freedom of 
Information Act (FOIA) regulations in order to implement the 
substantive and procedural changes to the FOIA identified in the FOIA 
Improvement Act of 2016 and update two district office addresses and 
the Office of Legal Counsel's fax number.

DATES: Effective September 28, 2017.

FOR FURTHER INFORMATION CONTACT: Stephanie D. Garner, Assistant Legal 
Counsel, FOIA Programs, or Draga G. Anthony, Senior Attorney Advisor, 
Office of Legal Counsel, U.S. Equal Employment Opportunity Commission, 
at (202) 663-4640 (voice) or (202) 663-7026 (TTY). These are not toll-
free telephone numbers. This final rule also is available in the 
following formats: Large print, Braille, audiotape, and electronic file 
on computer disk. Requests for this final rule in an alternative format 
should be made to EEOC's Publications Center at 1-800-669-3362 (voice) 
or 1-800-800-3302 (TTY).

SUPPLEMENTARY INFORMATION:

Introduction

    On December 29, 2016, EEOC published in the Federal Register an 
interim final rule setting forth revisions to EEOC's FOIA regulations 
at 29 CFR part 1610. 81 FR 95869 (2016). The purpose of the revisions 
is to update the Commission's FOIA regulations so that they are 
consistent with current Commission practice in responding to FOIA 
requests as reflected in the FOIA Improvement Act of 2016. The 
revisions also are intended to update two district office addresses and 
the Office of Legal Counsel's fax number. The interim final rule sought 
public comments which were due on or before January 30, 2017.
    EEOC received four comments in response to the interim final rule. 
Two comments were submitted by an individual, and the remaining two 
comments were submitted by the National Archives and Records 
Administration's Office of Government Information Services (hereinafter 
``OGIS'').
    The individual commenter suggested that EEOC reconsider the fifteen 
cent per page duplication fee charged for copies. This comment is 
outside the scope of the interim final rule, which did not propose 
changes to the duplication fees associated with processing FOIA 
requests. Therefore, the EEOC declines to change the duplication fees. 
The second comment asked the EEOC to remove the word ``professional'' 
in 1610.9(f)(3), which identifies the requirements of a requester 
seeking expedited processing. Congress strongly favors uniform FOIA 
regulations. The Office of Information Policy, to assist agencies in 
issuing uniform regulations, provided a template for agencies to 
utilize when revising FOIA regulations. In order to conform with the 
Office of Information Policy template language, the EEOC declines to 
remove the word ``professional.''
    The Commission has considered carefully the comments from OGIS and 
has made some changes to the final rule in response to them. The OGIS 
comments concerning Sections 1610.11 and 1610.13 and EEOC's changes to 
the final rule are discussed in more detail below.

Section 1610.2--Statutory Requirements

    The EEOC determined that the final two sentences of Section 
1610.2(a) of the Draft Final Rule should be deleted. Those sentences 
read as follows: ``As a matter of policy, the Commission may make 
discretionary disclosures of records or information exempt from 
disclosure under the FOIA whenever disclosure would not foreseeably 
harm an interest protected by the FOIA exemption. This policy does not 
create any right enforceable in Court.'' The final rule now more 
closely aligns with the statutory language at 5 U.S.C. 552(a)(8). The 
FOIA Improvement Act of 2016 codified the foreseeable harm standard; 
therefore, release of the records is no longer a matter of agency 
policy. Records must be released unless there is a risk of foreseeable 
harm.

Section 1610.5--Request for Records

    Section 1610.5(a)(2), of the interim final rule said that ``(2)A 
requester who is making a request for records about himself or herself 
must comply with the

[[Page 45181]]

verification of identity requirements as determined by the Commission. 
Requesters may not be required to verify their identity without 
guidance; therefore, the section will be deleted. Section 1610.5(b)(5) 
of the Interim Final Rule has also been deleted. That section said: 
``Where a request is not considered reasonably descriptive or requires 
the production of voluminous records, or necessitates the utilization 
of a considerable number of work hours to the detriment of the business 
of the Commission, the Commission may require the person making the 
request or such person's agent to confer with a Commission 
representative in order to attempt to verify the scope of the request 
and, if possible, narrow such request.'' The FOIA Improvement Act of 
2016 does not require a requester to speak with the EEOC about 
narrowing a voluminous request. If the request is voluminous or time-
intensive but the requested records are reasonably described, the EEOC 
must process the request.

Section 1610.11--Appeals to the Legal Counsel From Initial Denials

    OGIS requested that the EEOC substitute the words ``dispute 
resolution'' for the word ``mediation'' in paragraph (c) Decision on 
appeals and paragraph (d) Engaging in dispute resolution services 
provided by OGIS. We have done so. This change conforms to OGIS's 
updated FOIA rules published on December 29, 2016.

Section 1610.13--Maintenance of Files

    OGIS advised the EEOC that General Records Schedule 4.2 replaced 
General Records Schedule 14. Therefore, the EEOC has changed the 
General Records Schedule reference to 4.2.

Regulatory Procedures

Executive Order 12866

    This final rule has been drafted and reviewed in accordance with 
Executive Order 12866, 58 FR 51735 (Sept. 30, 2003), section 1(b), 
Principles of Regulation, and Executive Order 13563, 76 FR 3821 
(January 1, 2011), Improving Regulation and Regulatory Review. The rule 
is not a ``significant regulatory action'' under section 3(f) of 
Executive Order 12866.

Paperwork Reduction Act

    This final rule contains no new information collection requirements 
subject to review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. Chapter 35).

Regulatory Flexibility Act

    The Commission certifies under 5 U.S.C. 605(b) that this final rule 
will not have a significant economic impact on a substantial number of 
small entities, because the changes to the rule do not impose any 
burdens upon FOIA requesters, including those that might be small 
entities. Therefore, a regulatory flexibility analysis is not required 
by the Regulatory Flexibility Act.

Unfunded Mandates Reform Act of 1995

    This final rule will not result in the expenditure by State, local, 
or tribal governments in the aggregate, or by the private sector, of 
$100 million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

List of Subjects in 29 CFR Part 1610

    Freedom of Information.

    For the Commission.

    Dated: August 20, 2017.
Victoria A. Lipnic,
Acting Chair.

    For the reasons set forth in the preamble, the interim rule 
amending 29 CFR part 1610 which was published at 81 FR 95869 on 
December 29, 2016, is adopted as final with the following changes:

PART 1610--AVAILABILITY OF RECORDS

0
1. The authority citation for part 1610 continues to read as follows:

    Authority: 42 U.S.C. 2000e-12(a), 5 U.S.C. 552 as amended by 
Pub. L. 93-502, Pub. L. 99-570 and Pub. L. 105-231; for Sec.  
1610.15, non-search or copy portions are issued under 31 U.S.C. 
9701.


0
2. Revise Sec.  1610.2 to read as follows:


Sec.  1610.2  Statutory requirements.

    (a) This subpart contains the rules that the Commission will follow 
in processing requests for records under the Freedom of Information Act 
(``FOIA''), 5 U.S.C. 552. These rules should be read in conjunction 
with the text of the FOIA and the Uniform Freedom of Information Fee 
Schedule and Guidelines published by the Office of Management and 
Budget (``OMB Guidelines''). Requests made by individuals for records 
about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are 
processed in accordance with the Commission's Privacy Act regulations 
as well as under this subpart. The Commission should administer the 
FOIA with a presumption of openness.
    (b) As referenced in this subpart, ``component'' means each 
separate office within the Commission that is responsible for 
processing FOIA requests. The rules described in this regulation that 
apply to the Commission also apply to its components.

0
3. Revise Sec.  1610.5 to read as follows:


Sec.  1610.5  Request for records.

    (a) General information. (1) To make a request for records, a 
requester should write directly to the Commission's FOIA office that 
maintains the records sought. A request will receive the quickest 
possible response if it is addressed to the Commission FOIA office that 
maintains the records sought. Information concerning the Commission's 
FOIA offices is listed at: https://www.eeoc.gov/eeoc/foia/index.cfm and 
any additional requirements for submitting a request to the agency are 
listed at paragraphs (b) and (d) of this section. The Commission's Web 
site contains instructions for submitting FOIA requests and other 
resources to assist requesters in determining where to send their 
requests.
    (2) Where a request for records pertains to another individual, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual or a declaration made in 
compliance with the requirements set forth in 28 U.S.C. 1746 by that 
individual authorizing disclosure of the records to the requester, or 
by submitting proof that the individual is deceased (for example, a 
copy of a death certificate or an obituary). As an exercise of 
administrative discretion, the Commission can require a requester to 
supply additional information if necessary in order to verify that a 
particular individual has consented to disclosure.
    (b) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable Commission personnel to 
locate them with a reasonable amount of effort. To the extent possible, 
requesters should include specific information that may help the 
Commission identify the requested records, such as the date, title or 
name, author, recipient, subject matter of the record, case number, 
file designation, or reference number. Before submitting their 
requests, requesters may contact the Commission's District Office FOIA 
contact or FOIA Public Liaison to discuss the records they seek and to 
receive assistance in describing the records. If after receiving a 
request

[[Page 45182]]

the Commission determines that it does not reasonably describe the 
records sought, the Commission must inform the requester what 
additional information is needed or why the request is otherwise 
insufficient. Requesters who are attempting to reformulate or modify 
such a request may discuss their request with the Commission's FOIA 
contact or FOIA Public Liaison. If a request does not reasonably 
describe the records sought, the agency's response to the request may 
be delayed.
    (1) A written request for inspection or copying of a record of the 
Commission may be presented in person, by mail, by fax, by email at 
[email protected], online at https://publicportalfoiapal.eeoc.gov/palMain.aspx, or through the Commission employee designated in Sec.  
1610.7.
    (2) A request must be clearly and prominently identified as a 
request for information under the ``Freedom of Information Act.'' If 
submitted by mail, or otherwise submitted under any cover, the envelope 
or other cover must be similarly identified.
    (3) A respondent must always provide a copy of the ``Filed'' 
stamped court complaint when requesting a copy of a charge file. The 
charging party must provide a copy of the ``Filed'' stamped court 
complaint when requesting a copy of the charge file if the Notice of 
Right to Sue has expired as of the date of the charging party's 
request.
    (4) Each request must contain information which reasonably 
describes the records sought and, when known, should contain date, 
title or name, author, recipient, subject matter of the record, case 
number, file designation, or reference number and location for the 
records requested in order to permit the records to be promptly 
located.
    (c) Format. Requests may specify the preferred form or format 
(including electronic formats) for the records the requester seeks. The 
Commission will accommodate the request if the records are readily 
reproducible in that form or format.
    (d) Requester information. Requesters must provide contact 
information, such as their phone number, email address, and/or mailing 
address, to assist the agency in communicating with them and providing 
released records.

0
4. Amend Sec.  1610.11 by revising paragraphs (c) and (d) to read as 
follows:


Sec.  1610.11  Appeals to the legal counsel from initial denials.

* * * * *
    (c) Decisions on appeals. The Commission must provide its decision 
on an appeal in writing. A decision that upholds the Commission's 
determination in whole or in part must contain a statement that 
identifies the reasons for the affirmance, including any FOIA 
exemptions applied. The decision must provide the requester with 
notification of the statutory right to file a lawsuit and will inform 
the requester of the dispute resolution services offered by the Office 
of Government Information Services of the National Archives and Records 
Administration as a non-exclusive alternative to litigation. If the 
Commission's decision is remanded or modified on appeal, the Commission 
will notify the requester of that determination in writing. The 
Commission will then further process the request in accordance with 
that appeal determination and will respond directly to the requester.
    (d) Engaging in dispute resolution services provided by OGIS. 
Dispute resolution is a voluntary process. If the Commission agrees to 
participate in the dispute resolution services provided by OGIS, it 
will actively engage as a partner to the process in an attempt to 
resolve the dispute.
* * * * *

0
5. Revise Sec.  1610.13 to read as follows:


Sec.  1610.13  Maintenance of files.

    The Commission must preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized 
pursuant to Title 44 of the United States Code or the General Records 
Schedule 4.2 of the National Archives and Records Administration. The 
Commission must not dispose of or destroy records while they are the 
subject of a pending request, appeal, or lawsuit under the FOIA.

[FR Doc. 2017-19897 Filed 9-27-17; 8:45 am]
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