[Federal Register Volume 84, Number 78 (Tuesday, April 23, 2019)]
[Rules and Regulations]
[Pages 16775-16777]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08122]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[Docket No. OAG 155; A.G. Order No. 4442-2019]
RIN 1105-AB51
Department of Justice Freedom of Information Act Regulations
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice, after consideration of the public
comments, adopts without change the interim final rule amending the
Department's regulations under the Freedom of Information Act (FOIA)
that was published on January 4, 2017.
DATES: This rule is effective April 23, 2019.
FOR FURTHER INFORMATION CONTACT: Lindsay Roberts, Attorney-Advisor,
Office of Information Policy, (202) 514-3642.
SUPPLEMENTARY INFORMATION: The Department issued an interim final rule
amending the Department's regulations under the Freedom of Information
Act (FOIA) to incorporate certain changes made to the FOIA, 5 U.S.C.
552, by the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat.
538 (June 30, 2016). 82 FR 725 (Jan. 4, 2017) Those changes included
providing requesters 90 days to submit an administrative appeal and
implementing certain notice requirements for FOIA response letters. The
rule also updated the requirements pertaining to two FOIA fee
categories, ``representative of the news media'' and ``educational
institution,'' to reflect recent decisions by the Court of Appeals for
the District of Columbia Circuit. The rule went into effect on February
3, 2017. The Department received three public comments about the
interim final rule. After carefully reviewing and considering all
comments, the Department has determined to adopt the provisions of the
interim rule in final form without change.
The first commenter did not suggest any changes to the rule, but
instead generally provided his opinion on the importance of the FOIA
and how it should operate.
The second comment pertained to duplication fees for student
requesters and the services provided by the Office of Government
Information Services (OGIS). The commenter noted that it is important
for students to be able to obtain documents in a reasonably cost-
effective manner, which is reflected in the decision rendered by the
Court of Appeals for the District of Columbia Circuit in Sack v. DOD,
823 F.3d 687 (D.C. Cir. 2016). The commenter indicated that, despite
qualifying for educational institution requester status, students will
still be required to pay duplication fees. The commenter stated that
duplication fees may become obsolete over time as records are
maintained electronically and responses are likewise provided
electronically. The commenter encouraged the Department to keep all
records electronically to reduce duplication fees. The commenter
suggested that the Department consider removing duplication fees,
unless the component certifies that the records being produced are in
paper format and the component does not possess an electronic copy.
The Department considered this comment and declines to remove the
provision for charging applicable duplication fees to educational
institutions. The FOIA provides that agencies shall promulgate
regulations providing for reasonable standard charges for duplication
fees, which are the only type of fees assessed to educational
institution requesters. See 5 U.S.C. 552(a)(4)(A)(ii)(II). The
Department's regulations contain the
[[Page 16776]]
directive that components ``ensure that searches, review, and
duplication are conducted in the most efficient and the least expensive
manner.'' 28 CFR 16.10(a). Further, requesters qualifying as
educational institutions are provided the first 100 pages of
duplication (or the cost equivalent) without charge. Sec.
16.10(d)(4)(i). Moreover, any requester may seek a fee waiver.
Components grant fee waivers if the requester has demonstrated that
disclosure of the information is in the public interest because it is
likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the
commercial interest of the requester. 5 U.S.C. 552(a)(4)(A)(iii); 28
CFR 16.10(k)(1). For all these reasons, the Department believes that no
changes are needed to the provisions concerning the assessment of
duplication fees for educational institutions.
The second commenter also provided his opinion about the
helpfulness of advising requesters about the services available from
the FOIA Public Liaison and OGIS. In response, the Department notes
that the interim rule already directs components to inform requesters
of the availability of the FOIA Public Liaison when providing notice of
unusual circumstances and in all final responses. The Department also
informs requesters of the services provided by OGIS when giving notice
of unusual circumstances and in all adverse determinations. See 28 CFR
16.5(c) and 16.6(e)(5).
This commenter also suggested that Sec. 16.8(d) be amended to
require components to provide an explanation to the requester if a
component chooses not to participate in mediation. The Department
declines to make this change. Mediation is a voluntary process and the
statute does not require agencies to provide an explanation if they
choose not to engage in this process. Consistent with the statute, the
Department provides multiple opportunities for the requester and agency
to communicate about a request. The Department also encourages
components to have open communication with requesters throughout the
request process and requesters can contact the component's FOIA
Requester Service Center and FOIA Public Liaison any time during the
processing of their request. As part of these communications,
components may choose to explain why they decided not to participate in
mediation in any given case.
The third commenter raised concerns about the exclusive use of web
portals to accept FOIA requests electronically at some components. The
commenter noted that different components have different portals, which
can be confusing for requesters, and that some components also accept
requests via email. The commenter suggested amending Sec. 16.3(a) to
require all components to accept requests via email, as well as through
a portal or other means, and amending Sec. 16.8(a) to require the
Office of Information Policy (OIP) to receive appeals via email, in
addition to using an online portal and other means. Currently,
components must have the capability to accept requests electronically
either through email or a web portal, but they are not required to
provide both capabilities.
The Department considered this comment but, due to the efficiencies
gained by using portals, declines to require components to receive
requests and appeals via email in addition to online portals, or other
methods. The Department recognizes that it may seem easier for
requesters to have the option to use email instead of a web portal.
Using web portals, though, actually provides significant efficiencies
for both requesters and components when compared to email. For example,
when a requester submits a request via a web portal the component can
start working on the request immediately upon receipt rather than
having to manually enter the information contained in the email into
the component's tracking system. Particularly for components that
receive thousands of requests each year, this time savings can be
significant and benefits requesters overall. Moreover, web portals also
help requesters ensure that they provide all required information when
submitting their request or appeal, a capability that is not available
when requesters submit via email. Without any built-in structure, an
email request might omit essential information and require the
component to engage in additional back and forth with the requester
before processing can begin. By contrast, a web portal form will guide
the requester through the process, helping to ensure that all necessary
information is provided from the start. This allows the component to
start processing the request more quickly than would occur if it needed
additional information from a requester who submitted an incomplete
request via email. Again, this benefits all requesters.
The Department is committed to making it easy for the public to
submit requests and appeals. The Department's FOIA Reference Guide,
available on OIP's website, provides detailed instructions for making
requests, and OIP maintains a single page on its website that lists
contact information for all components. Every component has a FOIA
Requester Service Center and FOIA Public Liaison who are available to
answer questions about submitting requests. OIP works with components
through the administrative appeal process and through its general
compliance functions to help ensure that components' procedures are
requester-friendly. Components are continually working to streamline
the request and appeal submission process to the extent feasible while
also striving to use available resources most efficiently to ensure
faster processing to benefit all requesters. Finally, the Department
has developed a National FOIA Portal that the public can use to make
requests that is designed to help standardize the request-making
process across the government. The National FOIA Portal also contains a
wealth of information to educate requesters on the FOIA and assist them
in making requests. The National FOIA Portal contains a customized form
for each agency and agency component that both follows a uniform format
and provides a link to the authority for any specialized requirements
that an agency or component might have for making requests. These
features are designed to simplify and standardize the request-making
process for the public. We expect to continually improve the
functionality of the National FOIA Portal over time.
Regulatory Certifications
Executive Orders 12866 and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation, and Executive Order 13563, ``Improving
Regulation and Regulatory Review,'' section 1(b), General Principles of
Regulation.
The Department of Justice has determined that this rule is not a
``significant regulatory action'' under Executive Order 12866, section
3(f), and accordingly this rule has not been reviewed by the Office of
Management and Budget.
Both Executive Orders 12866 and 13563 direct agencies to assess
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). The
Department conducted the required assessment for the interim final
[[Page 16777]]
rule and this rule finalizes those regulations without change.
Regulatory Flexibility Act
This rule finalizes the amendment of the Department of Justice's
regulations under the FOIA to incorporate certain changes made by the
FOIA Improvement Act of 2016, and to reflect developments in the case
law and to streamline the description of the factors to be considered
when making fee waiver determinations. Because the Department was not
required to publish a notice of proposed rulemaking for this rule, a
Regulatory Flexibility analysis is not required. 5 U.S.C. 603(b).
Executive Order 13132--Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, the Department has determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
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 were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Congressional Review Act
This rule is not a major rule as defined by the Congressional
Review Act. 5 U.S.C. 804.
Paperwork Reduction Act
This rule imposes no information collection or record keeping
requirements.
List of Subjects in 28 CFR Part 16
Administrative practice and procedure, Freedom of information,
Privacy.
PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION
Accordingly, the interim rule amending 28 CFR part 16, which was
published at 82 FR 725 on January 4, 2017, is adopted as a final rule
without change.
Dated: April 17, 2019.
William P. Barr,
Attorney General.
[FR Doc. 2019-08122 Filed 4-22-19; 8:45 am]
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