Rule2024-08700
FOIA Improvement Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 2, 2024
Effective
July 1, 2024
Issuing agencies
Federal Election Commission
Abstract
Congress enacted the FOIA Improvement Act of 2016, which amends the Freedom of Information Act, as relevant here, to require Federal agencies to change how certain records and documents are made available for public inspection. The Commission is amending its regulations to implement this statutory mandate. The Commission is accepting comments on these revisions to its regulations, and any comments received may be addressed in a subsequent rulemaking document.
Full Text
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<title>Federal Register, Volume 89 Issue 86 (Thursday, May 2, 2024)</title>
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[Federal Register Volume 89, Number 86 (Thursday, May 2, 2024)]
[Rules and Regulations]
[Pages 35685-35688]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08700]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 89, No. 86 / Thursday, May 2, 2024 / Rules
and Regulations
[[Page 35685]]
FEDERAL ELECTION COMMISSION
11 CFR Part 4
[Notice 2024-13]
FOIA Improvement Act
AGENCY: Federal Election Commission.
ACTION: Interim final rule; request for comments.
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SUMMARY: Congress enacted the FOIA Improvement Act of 2016, which
amends the Freedom of Information Act, as relevant here, to require
Federal agencies to change how certain records and documents are made
available for public inspection. The Commission is amending its
regulations to implement this statutory mandate. The Commission is
accepting comments on these revisions to its regulations, and any
comments received may be addressed in a subsequent rulemaking document.
DATES: Effective July 1, 2024. Comments must be received on or before
June 3, 2024.
ADDRESSES: All comments should be addressed to Ms. Amy L. Rothstein,
Assistant General Counsel, and must be submitted in either written or
electronic form. Commenters are encouraged to submit comments
electronically via the Commission's website at <a href="https://sers.fec.gov/fosers">https://sers.fec.gov/fosers</a>, reference REG 2024-02. Alternatively, comments may be submitted
in paper form addressed to the Federal Election Commission, Attn.: Ms.
Amy L. Rothstein, Assistant General Counsel, 1050 First Street NE,
Washington, DC.
Each commenter must provide, at a minimum, the commenter's first
name, last name, city, and state. All properly submitted comments,
including attachments, will become part of the public record, and the
Commission will make comments available for public viewing on the
Commission's website and in the Commission's Public Records Office.
Accordingly, commenters should not provide in their comments any
information that they do not wish to make public, such as a home street
address, personal email address, date of birth, phone number, social
security number, or driver's license number, or any information that is
restricted from disclosure, such as trade secrets or commercial or
financial information that is privileged or confidential.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Rothstein, Assistant General
Counsel, Ms. Joanna Waldstreicher or Ms. Sarah Herman Peck, Attorneys,
(202) 694-1650 or (800) 424-9530.
SUPPLEMENTARY INFORMATION:
A. Background
The FOIA Improvement Act of 2016 (the ``FOIA Improvement Act'')
amends the Freedom of Information Act (``FOIA''), as relevant here, to
require Federal agencies to change how certain records and documents
are made available for public inspection.\1\ In particular, the FOIA
Improvement Act directs Federal agencies to make certain records
available in electronic format for public inspection; prohibits,
subject to exception, an agency from charging fees to a FOIA requester
if the agency misses a deadline after receiving a FOIA request;
requires agencies to notify FOIA requesters who have received adverse
determinations about their right to seek dispute resolution services;
prohibits agencies from withholding information requested under FOIA
unless the agencies reasonably foresee that disclosure would harm an
interest protected by a FOIA exemption or the disclosure is prohibited
by law; requires agencies withholding information requested under FOIA
to consider whether partial disclosure is possible; and eliminates an
exemption from disclosure under FOIA of certain agency records created
at least 25 years before the date of the FOIA request.\2\ The FOIA
Improvement Act also explicitly directs the head of each Federal agency
to promulgate regulations to implement these changes to its FOIA
practices.\3\
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\1\ Public Law 114-185, 130 Stat. 538 (2016).
\2\ Id. sec. 2.
\3\ Id. sec. 3.
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To implement the FOIA Improvement Act's mandates, the Commission is
now amending 11 CFR 4.4 through 4.5 and 4.7 through 4.9, setting forth
the Commission's obligations and procedures for disclosing documents
under FOIA. Before final promulgation of any rules or regulations to
carry out the provisions of the Federal Election Campaign Act, the
Commission transmits the rules or regulations to the Speaker of the
House of Representatives and the President of the Senate for a thirty-
legislative-day review period.\4\ The effective date of this final rule
is July 1, 2024. The Commission welcomes public comment on this interim
final rule and may address any comments received in a later rulemaking
document.
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\4\ 52 U.S.C. 30111(d)(2).
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The Commission is promulgating these amendments without advance
notice or an opportunity for comment because they fall under the ``good
cause'' exemption of the Administrative Procedure Act.\5\ The
Commission finds that notice and comment are unnecessary here because
the changes are technical amendments to conform with explicit statutory
requirements. Amending these regulatory provisions does not involve any
exercise of discretion by the Commission. Moreover, because Congress
has already enacted the changes to FOIA through the FOIA Improvement
Act, the new ``administrative rule is a routine determination,
insignificant in nature and impact, and inconsequential to the industry
and to the public.'' \6\ For these reasons, the Commission is not
required to publish a notice of proposed rulemaking to promulgate these
regulatory provisions.
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\5\ 5 U.S.C. 553(b)(B).
\6\ See Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94 (D.C. Cir.
2012) (internal citation omitted).
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For the same reasons, these amendments fall within the ``good
cause'' exception to the delayed effective date provisions of the
Administrative Procedure Act and the Congressional Review Act.\7\
Moreover, because this amendment is exempt from the notice and comment
procedure of the Administrative Procedure Act under 5 U.S.C. 553(b),
the Commission is not required to conduct a regulatory flexibility
analysis under 5 U.S.C. 603 or 604.\8\
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\7\ 5 U.S.C. 553(d)(3), 808(2).
\8\ See 5 U.S.C. 601(2), 604(a).
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[[Page 35686]]
B. Revisions to 11 CFR Part 4--Public Records and the Freedom of
Information Act
Part 4 of the Commission regulations sets forth the Commission's
public records obligations under FOIA. Section 4.4 requires the
Commission to make specific categories of materials available for
public inspection, subject to exceptions outlined in 11 CFR 4.5.\9\
Section 4.7 specifies the framework for requesting access to Commission
records, and the appeal process for denied requests is delineated in 11
CFR 4.8. Notice requirements for any associated fees is provided in 11
CFR 4.9. The Commission is amending each of these five sections within
11 CFR part 4 pursuant to the FOIA Improvement Act.
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\9\ Exempt documents include records that are classified,
records that relate to internal personnel rules, records that are
exempted by statute, records that contain trade secrets or
commercial or financial information that is privileged or
confidential, certain inter-agency or intra-agency documents,
personnel and medical files, and certain records compiled for law
enforcement purposes.
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(i). Revisions to 11 CFR 4.4--Availability of Records
The Commission is amending 11 CFR 4.4(a) and (c) and adding new
paragraph (h) to reflect new standards for the availability of certain
records.
First, current 11 CFR 4.4(a) requires the Commission to make
certain materials available for public inspection and copying. The
Commission is amending paragraph (a) to provide that the Commission
will make those materials available for public inspection in an
electronic format.
Second, current 11 CFR 4.4(a)(4) requires the Commission to make
available for public inspection copies of all records that have been
released to any person under paragraph (a) and which the agency has
determined have become or are likely to become the subject of
subsequent requests. The Commission is amending paragraph (a)(4) to
provide that the Commission will make available for public inspection
copies of all records that have been released to any person under
paragraph (a) three or more times or which the agency determines have
become or are likely to become subject to subsequent requests.
Third, current 11 CFR 4.4(c) provides, in part, that the Commission
must maintain and make available current indexes providing identifying
information regarding any matter issued, adopted, or promulgated after
April 15, 1975, as required by 5 U.S.C. 552(a)(2)(C) and (E). The
Commission is amending paragraph (c) to provide that these indexes will
be made available in an electronic format.
Lastly, the Commission is adding new 11 CFR 4.4(h) to provide that
the Commission will withhold releasing information under Sec. 4.4 only
if the Commission reasonably foresees that disclosure would harm an
interest protected by an exemption listed in 11 CFR 4.5(a) or
disclosure is prohibited by law. New paragraph (h) also provides that,
when the Commission determines full disclosure of a requested record is
not possible, the Commission will consider whether partial disclosure
is possible and will take reasonable steps necessary to segregate and
release nonexempt information.
(ii). Revisions to 11 CFR 4.5--Categories of Exemptions
Current 11 CFR 4.5(a)(5) provides that no FOIA request will be
denied release unless the record contains, or its disclosure would
reveal, inter-agency or intra-agency memoranda or letters that would
not be available by law to a party in litigation with the Commission.
The Commission is amending this provision to specify that the exemption
applies only to documents not available to a party other than an agency
in litigation with the Commission, and that the deliberative process
privilege will not apply to records created 25 years or more before the
request date, consistent with the FOIA Improvement Act.
(iii). Revisions to 11 CFR 4.7--Requests for Records
The Commission is amending 11 CFR 4.7(c) and (h) and adding
paragraph (j) to include new requirements for notifying requesters
about the status of a request.
First, current 11 CFR 4.7(c) requires the Commission to determine,
within twenty working days after receiving a request or granting an
appeal, whether to comply with the request, unless in unusual
circumstances the time is extended or subject to Sec. 4.9(f)(3), which
governs advance payments. The Commission is amending 11 CFR 4.7(c) to
provide that the Commission will immediately notify the requester of
the determination, the reasons therefore, and the requester's right to
seek assistance from the Commission's FOIA Public Liaison and to seek
dispute resolution services from the National Archives and Records
Administration (``NARA''), Office of Government Information Services.
Second, current 11 CFR 4.7(h) provides that any person denied
access to records by the Commission must be notified immediately,
stating the reasons for the denial. The notice must also state that the
person denied access to records may appeal the adverse determination to
the Commission. The Commission is amending this paragraph to provide
that the person denied access will be notified of that person's right
to appeal within 90 days from the date of the adverse determination.
Such notice also must state that the person denied access to records
may seek dispute resolution services from the Commission's FOIA Public
Liaison or NARA's Office of Government Information Services.
Finally, the Commission is adding 11 CFR 4.7(j) to explain the role
of, and provide contact information for, the FOIA Public Liaison.
(iv). Revisions to 11 CFR 4.8--Mediation Services and Appeal of Denial
The Commission is amending 11 CFR 4.8 by adding paragraph (h),
which will notify requesters that they may seek non-compulsory, non-
binding mediation services to help resolve FOIA disputes. The
Commission is also amending the heading of 11 CFR 4.8 to reflect the
availability of such mediation services.
(v). Revisions to 11 CFR 4.9--Fees
Finally, the Commission is amending 11 CFR 4.9(a), which lists
exceptions to fee charges. The Commission is adding paragraph (a)(5) to
address time limits for compliance.
New 11 CFR 4.9(a)(5)(i) provides that the Commission will not
charge a fee to any requester if the Commission does not comply with
the time limits in 11 CFR 4.7(c) or 4.8(f).
New 11 CFR 4.9(a)(5)(ii) provides that a failure to comply with the
time limits is excused for another ten days if the Commission has
determined that unusual circumstances (as defined in 5 U.S.C.
552(a)(6)(B)(i) and 11 CFR 4.7(c)) apply and has provided timely
written notice to the requester under 11 CFR 4.7(c). New 11 CFR
4.9(a)(5)(ii) further provides that the Commission may not assess any
search or duplication fees if it fails to comply with the extended time
period.
New 11 CFR 4.9(a)(5)(iii) describes the circumstances under which
the Commission may charge search or duplication fees after determining
that unusual circumstances apply and more than 5,000 pages are
necessary to respond to the request.
Finally, new 11 CFR 4.9(a)(5)(iv) provides that when a court has
determined that exceptional circumstances exist, a failure to comply
with the time limit shall be excused for the length of time provided by
the court's order.
[[Page 35687]]
List of Subjects in 11 CFR Part 4
Freedom of information.
For the reasons set out in the preamble, the Federal Election
Commission amends 11 CFR chapter I, as follows:
PART 4--PUBLIC RECORDS AND THE FREEDOM OF INFORMATION ACT
0
1. The authority citation for part 4 continues to read as follows:
Authority: 5 U.S.C. 552, as amended.
0
2. Amend Sec. 4.4 by revising paragraphs (a) introductory text, (a)(4)
and (c), and adding paragraph (h) to read as follows:
Sec. 4.4 Availability of records.
(a) In accordance with 5 U.S.C. 552(a)(2), the Commission shall
make the following materials available for public inspection in an
electronic format:
* * * * *
(4) Copies of all records, regardless of form or format, which have
been released to any person under this paragraph (a) and;
(i) Which, because of the nature of their subject matter, the
agency determines have become or are likely to become the subject of
subsequent requests for substantially the same records, or
(ii) Which have been requested three or more times; and
* * * * *
(c) The Commission shall maintain and make available for public
inspection in an electronic format current indexes and supplements
providing identifying information regarding any matter issued, adopted,
or promulgated after April 15, 1975, as required by 5 U.S.C.
552(a)(2)(C) and (E). These indexes and supplements shall be published
and made available on at least a quarterly basis for public
distribution unless the Commission determines by Notice in the Federal
Register that publication would be unnecessary, impracticable, or not
feasible due to budgetary considerations. Nevertheless, copies of any
index or supplement shall be made available upon request at a cost not
to exceed the direct cost of duplication.
* * * * *
(h) The Commission will withhold information under this section
only if the Commission reasonably foresees that disclosure would harm
an interest protected by an exemption described in Sec. 4.5(a); or
disclosure is prohibited by law. The Commission will consider whether
partial disclosure of information is possible whenever it determines
that full disclosure of a requested record is not possible, and the
Commission will take reasonable steps necessary to segregate and
release nonexempt information.
0
3. Amend Sec. 4.5 by revising paragraph (a)(5) to read as follows:
Sec. 4.5 Categories of exemptions.
(a) * * *
(5) Inter-agency or intra-agency memoranda or letters which would
not be available by law to a party other than an agency in litigation
with the Commission, provided that the deliberative process privilege
shall not apply to records created 25 years or more before the date on
which the records were requested.
* * * * *
0
4. Amend Sec. 4.7 by revising paragraphs (c) introductory text and (h)
and adding paragraph (j) to read as follows:
Sec. 4.7 Requests for records.
* * * * *
(c) The Commission shall determine within twenty working days after
receipt of a request, or twenty working days after an appeal is
granted, whether to comply with such request, unless in unusual
circumstances the time is extended or subject to Sec. 4.9(f)(3), which
governs advance payments. The Commission shall immediately notify the
requester of such determination, the reasons therefor, and the right of
the requester to seek assistance from the FOIA Public Liaison for the
Commission and to seek dispute resolution services from the Office of
Government Information Services. In the event the time is extended, the
requester shall be notified of the reasons for the extension and the
date on which a determination is expected to be made, but in no case
shall the extended time exceed ten working days. An extension may be
made if it is--
* * * * *
(h) Any person denied access to records by the Commission shall be
notified immediately giving reasons therefor, and notified of the right
of such person to appeal such adverse determination to the Commission
within 90 days from the date of the adverse determination and the right
of such person to seek dispute resolution services from the FOIA Public
Liaison for the Commission or the Office of Government Information
Services.
* * * * *
(j) The FOIA Public Liaison is responsible for reducing delays,
increasing transparency and understanding of the status of requests,
and assisting in the resolution of disputes. The FOIA Public Liaison
may be contacted at the address identified in the definition of
``Commission'' in Sec. 1.2 of this chapter.
0
5. Amend Sec. 4.8 by revising the section heading and adding paragraph
(h) to read as follows:
Sec. 4.8 Mediation services and appeal of denial.
* * * * *
(h) The National Archives and Records Administration (NARA), Office
of Government Information Services (OGIS) offers non-compulsory, non-
binding mediation services to help resolve FOIA disputes as a non-
exclusive alternative to litigation. A requester may contact OGIS at:
Office of Government Information Services, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001;
email: <a href="/cdn-cgi/l/email-protection#3659515f45765857445718515940"><span class="__cf_email__" data-cfemail="204f474953604e4152410e474f56">[email protected]</span></a>; telephone 202-741-5770; fax: 202-741-5769;
online: <a href="https://www.archives.gov/ogis">https://www.archives.gov/ogis</a>.
0
6. Amend Sec. 4.9 by adding paragraph (a)(5) to read as follows:
Sec. 4.9 Fees.
(a) * * *
(5) Time limit for compliance. (i) The Commission will not charge a
fee under this section to any requester if the Commission does not
comply with the time limits in Sec. 4.7(c) or Sec. 4.8(f).
(ii) If the Commission has determined that unusual circumstances
(as defined in 5 U.S.C. 552(a)(6)(B)(iii) and Sec. 4.7(c)(1) through
(3)) apply and the Commission provided timely written notification to
the requester in accordance with Sec. 4.7(c), a failure to comply with
the time limit is excused for an additional 10 days. If the Commission
fails to comply with the extended time limit, the Commission may not
assess any search fees or, where applicable, duplication fees.
(iii) If the Commission has determined that unusual circumstances
apply and more than 5,000 pages are necessary to respond to the
request, the Commission may charge search fees or, where applicable,
duplication fees, if the Commission has provided timely written
notification to the requester in accordance with Sec. 4.7(c) and the
Commission has discussed with the requester via written mail,
electronic mail, or telephone (or made not less than three good-faith
attempts to do so) how the requester could effectively limit the scope
of the request in accordance with Sec. 4.7(d).
(iv) If a court has determined that exceptional circumstances
exist, a failure to comply with the time limit
[[Page 35688]]
shall be excused for the length of time provided by the court order.
* * * * *
Dated: April 18, 2024.
On behalf of the Commission.
Sean J. Cooksey,
Chairman, Federal Election Commission.
[FR Doc. 2024-08700 Filed 5-1-24; 8:45 am]
BILLING CODE 6715-01-P
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