Rule2024-12667
Privacy Act and Freedom of Information Act Regulations
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
June 10, 2024
Effective
July 10, 2024
Issuing agencies
Management and Budget Office
Abstract
The Office of Management and Budget ("OMB") is issuing a final rule revising its regulations implementing the Privacy Act and the Freedom of Information Act ("FOIA"). These revisions update OMB's regulations to reflect changes in OMB's current organizational structure and best practices. The revisions also ensure consistency between the access to records procedures in OMB's Privacy Act regulations and OMB's FOIA regulations, and with applicable law and policies that were enacted after OMB originally issued its Privacy Act regulations in 1976. Finally, the revisions align OMB's regulations with those of other agencies.
Full Text
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<title>Federal Register, Volume 89 Issue 112 (Monday, June 10, 2024)</title>
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[Federal Register Volume 89, Number 112 (Monday, June 10, 2024)]
[Rules and Regulations]
[Pages 48821-48827]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-12667]
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OFFICE OF MANAGEMENT AND BUDGET
5 CFR Parts 1302 and 1303
RIN 0348-AB87
Privacy Act and Freedom of Information Act Regulations
AGENCY: Office of Management and Budget.
ACTION: Final rule.
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SUMMARY: The Office of Management and Budget (``OMB'') is issuing a
final rule revising its regulations implementing the Privacy Act and
the Freedom of Information Act (``FOIA''). These revisions update OMB's
regulations to reflect changes in OMB's current organizational
structure and best practices. The revisions also ensure consistency
between the access to records procedures in OMB's Privacy Act
regulations and OMB's FOIA regulations, and with applicable law and
policies that were enacted after OMB originally issued its Privacy Act
regulations in 1976. Finally, the revisions align OMB's regulations
with those of other agencies.
DATES: This rule is effective July 10, 2024.
FOR FURTHER INFORMATION CONTACT: Timothy Ziese, 202-395-8693,
<a href="/cdn-cgi/l/email-protection#83cccec1d3c2c3eceee1ade6ecf3ade4ecf5"><span class="__cf_email__" data-cfemail="410e0c031100012e2c236f242e316f262e37">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
On December 20, 2023, the Office of Management and Budget (``OMB'')
published a proposed rule in the Federal Register to revise its
regulations at 5 CFR part 1302 governing requests and responses under
the Privacy Act of 1974, as amended, 5 U.S.C. 552a (``Privacy Act''),
and corresponding changes at 5 CFR part 1303 governing requests and
responses under the Freedom of Information Act, as amended, 5 U.S.C.
552 (``FOIA''). 88 FR 87960 (Dec. 20, 2023). OMB received one comment
in response to its proposed rule, specifically regarding the proposed
revisions to OMB's FOIA regulations at 5 CFR part 1303. As described
below, in this final rule OMB has made certain revisions, including in
light of the helpful comment.
II. Response to Comment
The commenter addressed three topics: (1) fees charged to ``all
other requesters'' under proposed Sec. 1303.92(d); (2) FOIA's
presumption of openness; and (3) FOIA's foreseeable harm standard.
First, OMB proposed revisions to 5 CFR 1303.92 to track the FOIA
statute with respect to the fees OMB charges requesters. See 5 U.S.C.
552(a)(4)(A)(ii); see also id. 552(a)(4)(iv). The statute specifies
different categories of fees for different categories of requesters:
commercial use requesters are to be
[[Page 48822]]
charged ``for document search, duplication, and review,'' id.
552(a)(4)(A)(ii)(I); certain educational or noncommercial scientific
institutions and representatives of the news media are to be charged
``for document duplication,'' id. 552(a)(4)(A)(ii)(II); and all other
requesters are to be charged ``for document search and duplication,''
id. 552(a)(4)(A)(ii)(III). Consistent with the statutory standard, and
as relevant here, OMB proposed that commercial use requesters be
charged fees ``that recover the full direct costs of searching for,
reviewing for release, and duplicating the record sought'' (proposed
Sec. 1303.92(a)); that certain educational and noncommercial
scientific institution requesters and representatives of the media be
charged ``the cost of duplication alone'' (proposed Sec. 1303.92(b),
(c)); and that all other requesters be charged ``the full reasonable
direct cost of searching for and producing records'' (proposed Sec.
1303.92(d)).
The commenter pointed out that fees for document review are not to
be charged under the statute's third category--all other requesters--
and suggested that OMB make that explicit, asserting that some other
agencies improperly charge review fees to such requesters.
OMB agrees that the category of all other requesters, see 5 U.S.C.
552(a)(4)(A)(ii)(III), should not be charged fees for document review,
and as proposed and finalized Sec. 1303.92(d) of OMB's regulations
reflects that approach, intentionally omitting reference to review
fees. The commenter's observation and suggestion have prompted OMB to
clarify the language in Sec. 1303.92 in certain respects. Proposed
paragraphs (a) through (c) used the term ``duplicating'' or
``duplication,'' whereas proposed paragraph (d) used the term
``producing,'' to refer to the same process. Additionally, proposed
paragraphs (b) and (c) stated that OMB would provide records ``for the
cost of duplication alone,'' and the term ``alone'' or a similar term
did not appear in proposed paragraph (d) in a parallel way. OMB has
therefore revised Sec. 1303.92 to eliminate any ambiguities and ensure
consistency, including with the statutory language in 5 U.S.C.
552(a)(4)(A). OMB has also made a few other clarifying revisions to
Sec. 1303.92.
Second, the commenter observed that a ``presumption of openness is
a principle that guides the administration of FOIA'' and ``an integral
part of the statute,'' and suggested that OMB include a statement about
the presumption in its rules. Third, and relatedly, the commenter
observed that the FOIA authorizes certain withholdings only when ``the
agency reasonably foresees that disclosure would harm an interest
protected by'' a FOIA exemption, 5 U.S.C. 552(a)(8)(A)(i), and
suggested that OMB include a statement about this foreseeable harm
standard in its rules. OMB acknowledges the importance of the
presumption of openness, see, e.g., Department of Justice, Freedom of
Information Act Guidelines at 1-2 (Mar. 15, 2022), <a href="https://www.justice.gov/ag/file/1208711-0/dl?inline">https://www.justice.gov/ag/file/1208711-0/dl?inline</a>, and the foreseeable harm
standard, see 5 U.S.C. 552(a)(8)(A)(i), and will continue to apply both
as OMB implements the FOIA. Because OMB's FOIA ``rules'' prescribe
``the time, place, fees (if any), and procedures to be followed'' with
respect to FOIA requests, consistent with the statute, 5 U.S.C.
552(a)(3)(A), and are not intended to address other topics, OMB
declines the commenter's suggestion to further revise its rules.
III. Additional Revisions
OMB's proposed rule specifically requested comments regarding OMB's
proposal, with respect to its Privacy Act regulations, to require
verification of identity through approved OMB processes that will be
described on OMB's privacy program web page. 88 FR 87962. While OMB
received no comments on this issue, OMB has given further consideration
to it generally and, in order to better protect personal identifiable
information, has modified Sec. Sec. 1302.2 and 1302.5 to specify that
Privacy Act requests should be submitted consistent with instructions
on OMB's now operational web page for the agency's privacy program,
<a href="http://www.whitehouse.gov/omb/privacy">www.whitehouse.gov/omb/privacy</a>.
IV. Regulatory Certifications
This rule is not a significant rule for purposes of Executive Order
12866, as amended by Executive Order 14094. The Director of OMB, in
accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has
reviewed this rule and certifies that it will not have a significant
economic impact on a substantial number of small entities. This rule
will not result in the expenditure by state, local, and tribal
governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no written statement is
necessary under the provisions of the Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1501 et seq.
List of Subjects in 5 CFR Parts 1302 and 1303
Administrative practices and procedures, Archives and records,
Freedom of information, Privacy.
For the reasons set forth in the preamble, the Office of Management
and Budget amends parts 1302 and 1303 of title 5 of the Code of Federal
Regulations as follows:
0
1. Revise part 1302 to read as follows:
PART 1302--PRIVACY ACT PROCEDURES
Sec.
1302.1 General provisions.
1302.2 Requirements for making requests for access.
1302.3 Responsibility for responding to requests.
1302.4 Requests for an accounting.
1302.5 Requests for an amendment or correction.
1302.6 Appeals.
1302.7 Fees.
Authority: 5 U.S.C. 552a.
Sec. 1302.1 General provisions.
(a) Purpose and scope. This part implements the rules that the
Office of Management and Budget (OMB) follows under the Privacy Act of
1974, codified as amended at 5 U.S.C. 552a (Privacy Act). This part
applies to all records in systems of records maintained by OMB that are
retrieved by an individual's name or personal identifier. This part
describes the procedures by which individuals may request access to
records about themselves, request amendment or correction of those
records, and request an accounting of disclosures of those records by
OMB.
(b) Definitions. As used in this part:
Request for access to a record means a request made under 5 U.S.C.
552a(d)(1).
Request for amendment or correction of a record means a request
made under 5 U.S.C. 552a(d)(2).
Request for an accounting means a request made under 5 U.S.C.
552a(c)(3).
Requester means an individual who makes a request for access, a
request for amendment or correction, or a request for an accounting
under the Privacy Act. An individual is a citizen of the United States
or an alien lawfully admitted for permanent residence.
System manager means the OMB official identified in a system of
records notice as the manager of a system of records; and for
Government-wide systems of records, the individual designated by the
agency to act on behalf of the system manager.
(c) Providing written consent to disclose records protected under
the
[[Page 48823]]
Privacy Act. OMB may disclose any record contained in a system of
records by any means of communication to any person, or to another
agency, pursuant to a written request by, or with the prior written
consent of, the individual about whom the record pertains. An
individual must verify the individual's identity in the same manner as
required by Sec. 1302.2(d) when providing written consent to disclose
a record protected under the Privacy Act and pertaining to the
individual.
Sec. 1302.2 Requirements for making requests for access.
(a) How made and addressed. You may make a Privacy Act request for
access to an OMB record by mail or delivery service, to Privacy
Officer, Office of Management and Budget, 725 17th Street NW, Room
9204, Washington, DC 20503 or by electronic means as described on OMB's
privacy program web page: <a href="http://www.whitehouse.gov/omb/privacy">www.whitehouse.gov/omb/privacy</a>.
(b) Description of the records sought. In making a request for
access, you must describe the records that you want in enough detail to
enable OMB to locate the system of records containing them with a
reasonable amount of effort. Your access request should name the system
of records or contain a concise description of such system of records.
OMB publishes notices of OMB systems of records subject to the Privacy
Act in the Federal Register.
(c) Information about yourself. Your access request should also
contain sufficient information to identify yourself in order to allow
OMB to determine if there is a record pertaining to you in a particular
system of records.
(d) Verification of identity. To ensure that information about you
is disclosed only to you or your authorized representative, you are
required to verify your identity when making a Privacy Act request for
access, as detailed in paragraphs (d)(1) through (3) of this section.
If OMB cannot verify your identity, disclosure will be limited to
information that would be required to be made available if requested
under 5 U.S.C. 552 by any person.
(1) You must state your name, current address, and date and place
of birth and provide either a notarized statement of identity or a
signed submission under 28 U.S.C. 1746; or
(2) When available, verify your identity through remote identity-
proofing and authentication using digital processes.
(3) OMB may require you to supply additional information as
necessary in order to verify your identity.
(e) Verification of guardianship. When making a request for access
as the parent or guardian of a minor or as the guardian of someone
determined by a court of competent jurisdiction to be incompetent, for
access to records about that individual, you must establish the
criteria listed in paragraphs (e)(1) through (4) of this section. If
OMB cannot verify your identity, disclosure will be limited to
information that would be required to be made available if requested
under 5 U.S.C. 552 by any person.
(1) The identity of the individual who is the subject of the
record, by stating the name, current address, and date and place of
birth;
(2) Your own identity, as required in this paragraph (e);
(3) That you are the parent or guardian of that individual, which
you may prove by providing a copy of the individual's birth certificate
showing your parentage or by providing a court order establishing your
guardianship; and
(4) That you are acting on behalf of that individual in making the
request.
(f) Submit identifying information only using approved OMB
processes. In order to safeguard information you submit in making a
request for access for purposes of verifying your identity or verifying
guardianship, or any information about yourself that may assist in the
rapid identification of the record to which you are requesting access
(e.g., prior names, dates of employment, etc.) as well as any other
identifying information contained in an OMB system of records, you must
use one of OMB's approved processes as described on OMB's privacy
program web page. Failure to submit identifying information through an
OMB approved process may result in the failure to expunge your
information in accordance with approved OMB records schedules after
your access request has been processed.
(g) Subsequent requests for access. If your request for access
follows a prior request under this section, and you already provided
appropriate verifications with that prior request, you do not need to
include the same verification or identifying information in the
subsequent request for access if you reference that prior request or
attach a copy of the OMB response to that request.
Sec. 1302.3 Responsibility for responding to requests.
(a) Acknowledgment of requests. OMB will acknowledge your request
for access in writing and provide an individualized tracking number.
Upon request, OMB will make information available to you about the
status of your request using the assigned tracking number.
(b) Timing of responses to a Privacy Act request for access. OMB
will respond to Privacy Act requests for access to records according to
the order in which OMB receives the requests. Consistent with OMB's
FOIA procedures at 5 CFR 1303.40(b), OMB may designate multiple
processing tracks that distinguish between simple and more complex
Privacy Act requests for access, based on the estimated amount of work
or time needed to process the request.
(c) Additional information. If, after receiving a request, OMB
determines that your request does not reasonably describe the records
sought, OMB will inform you what additional information is needed and
why the request is otherwise insufficient. If a request does not
reasonably describe the records sought, OMB's response to the request
may be delayed.
(d) Grant of request for access. Once OMB makes a determination to
grant a request for access, OMB will provide you a written response,
which may include the following:
(1) A statement as to whether OMB will grant access by providing a
copy of the record through electronic means or the mail; and
(2) The amount of fees charged, if any (see Sec. 1302.7). (Fees
are applicable only to requests for duplicates.)
(e) Adverse determination of request for access. OMB will notify
you of an adverse determination denying a request for access in
writing. Adverse determinations, or denials of requests, consist of: A
determination to withhold any requested record in whole or in part; a
determination that a requested record does not exist or cannot be
located; a determination that what has been requested is not a record
subject to the Privacy Act; a determination on any disputed fee matter;
or a denial of a request for expedited treatment. OMB's notification
letter to you will include:
(1) The decision of OMB whether to grant in whole, or deny any part
of the request;
(2) The reasons for the determination for any portion of the
request that is denied; and
(3) A description of the procedure by which the OMB decision to
deny your request may be appealed, including the name and address of
the official with whom you may lodge such an appeal.
[[Page 48824]]
Sec. 1302.4 Requests for an accounting.
You may request an accounting of disclosures by the same rules
governing requests for access, outlined in Sec. 1302.2.
Sec. 1302.5 Requests for an amendment or correction.
(a) Requirement for written requests. If you want to amend a record
that pertains to you in a system of records maintained by OMB, you must
submit your request in writing following the procedures established in
this section unless the system manager waives the requirements in this
section. OMB is not required to amend records that are not subject to
the Privacy Act of 1974. However, individuals who believe that such
records are inaccurate may bring this to the attention of OMB.
(b) Procedures. (1) You should address your request to amend a
record in a system of records to the system manager. You should include
the name of the system and a brief description of the record proposed
for amendment. If the request to amend the record is the result of you
gaining access to the record in accordance with the provisions
concerning access to records as set forth in Sec. 1302.2, you may
attach a copy of previous correspondence between you and OMB instead of
providing a separate description of the record.
(2) If a requester cannot determine where within OMB to send the
Privacy Act request to amend a record, the requester may send by mail
or delivery to Privacy Officer, Office of Management and Budget, 725
17th Street NW, Room 9204, Washington, DC 20503 or by electronic means
as described on OMB's privacy program web page: <a href="http://www.whitehouse.gov/omb/privacy">www.whitehouse.gov/omb/privacy</a>. OMB will forward the request to the component(s) it believes
most likely to have the relevant records. For the quickest possible
handling, the requester should specify ``Privacy Act Record Amendment
Request'' on the letter.
(3) You must validate your identity as described in Sec.
1302.2(e). If OMB has previously verified your identity pursuant to
Sec. 1302.2(e), further verification of identity is not required as
long as the communication does not suggest that a need for verification
is present.
(4) You should clearly indicate the exact portion of the record you
seek to have amended. If possible, you should also propose alternative
language, or at a minimum, identify the facts that you believe are not
accurate, relevant, timely, or complete, with such particularity as to
permit OMB not only to understand the basis for your request, but also
to make an appropriate amendment to the record.
(5) Your request must also state why you believe your record is not
accurate, relevant, timely, or complete. The burden of persuading OMB
to amend a record will be upon you. You must furnish sufficient facts
to persuade the official in charge of the system of the inaccuracy,
irrelevancy, timeliness, or incompleteness of the record.
(6) OMB will not categorically reject incomplete or inaccurate
requests. OMB will ask you to clarify the request as needed.
(c) OMB action on the request. (1) OMB will acknowledge, in
writing, receipt of a request to amend a record within 10 business days
(i.e., excluding Saturdays, Sundays, and legal Federal holidays) of
OMB's receipt.
(2) OMB will promptly respond to a Privacy Act request for
amendment or correction. OMB ordinarily will respond to Privacy Act
requests for amendment or correction according to their order of
receipt. Consistent with OMB's FOIA procedures at 5 CFR 1303.40(b), OMB
may designate multiple processing tracks that distinguish between
simple and more complex Privacy Act requests for amendment or
correction, based on the estimated amount of work or time needed to
process the request. The response reflecting the decision upon a
request for amendment will include the following:
(i) The decision of OMB whether to grant in whole, or deny any part
of, the request to amend the record;
(ii) The reasons for the determination for any portion of the
request which is denied; and
(iii) A description of the procedure by which the OMB decision to
deny your request may be appealed, including the name and address of
the official with whom you may lodge such an appeal.
Sec. 1302.6 Appeals.
(a) If you wish to appeal a decision by OMB with regard to your
request to access or amend a record in accordance with the provisions
of Sec. Sec. 1302.2 and 1302.5, you should submit the appeal in
writing and, to the extent possible, include the information specified
in paragraph (b) of this section.
(b) Your appeal should contain a brief description of the record
involved or copies of the correspondence from OMB in which the request
to access or to amend was denied and also the reasons why you believe
that access should be granted or the information amended, as relevant.
Your appeal should refer to the information you furnished in support of
your claim and the reasons set forth by OMB in its decision denying
access or amendment, as required by Sec. Sec. 1302.2 and 1302.5. In
order to make the appeal process as meaningful as possible, you should
set forth your disagreement in an understandable manner. In order to
avoid the unnecessary retention of personal information, OMB reserves
the right to dispose of the material concerning the request to access
or amend a record if OMB receives no appeal in accordance with this
section within 180 days of the sending by OMB of its decision upon an
initial request. OMB may treat an appeal received after the 180-day
period as an initial request to access or amend a record.
(c) You may send your appeal by mail or delivery to the Senior
Agency Official for Privacy, Office of Management and Budget, 725 17th
Street NW, Room 9204, Washington, DC 20503 or by electronic means as
described on OMB's privacy program web page: <a href="http://www.whitehouse.gov/omb/privacy">www.whitehouse.gov/omb/privacy</a>. For the quickest possible handling, the requester should
specify ``Privacy Act Record Appeal'' on the letter.
(d) The Senior Agency Official for Privacy will review a refusal to
amend a record within 30 business days (excluding Saturdays, Sundays,
and legal Federal holidays) from the date on which the individual
requests such review, unless the OMB Director extends the 30-day period
for good cause. If the Senior Agency Official for Privacy's decision
does not grant in full the request, the notice of the decision will
describe the steps you may take to obtain judicial review of such a
decision.
Sec. 1302.7 Fees.
(a) Prohibitions against charging fees for Privacy Act requests.
OMB will not charge you for:
(1) The search and review of requests for records subject to this
part;
(2) Any copies of the record produced as a necessary part of the
process of making the record available for access; or
(3) Any copies of the requested record when OMB determines that the
only way you can access the record is by providing a copy to you
through the mail.
(b) Waiver. OMB may at no charge provide copies of a record if it
is determined the production of the copies is in the interest of the
Government.
(c) Fee schedule and method of payment. OMB will charge fees as
provided in paragraphs (c)(1) through (5) of this section except as
provided in paragraphs (a) and (b) of this section.
(1) OMB will duplicate records at a rate of $.10 per page for all
copying of
[[Page 48825]]
4 pages or more. There is no charge for duplication 3 or fewer pages.
(2) Where OMB anticipates that the fees chargeable under this
section will amount to more than $25.00, OMB shall promptly notify you
of the amount of the anticipated fee or such portion thereof as can
readily be estimated. If the estimated fees will greatly exceed $25.00,
OMB may require an advance deposit. OMB's request for an advance
deposit shall extend an offer to the requester to consult with OMB
personnel in order to reformulate the request in a manner which will
reduce the fees, yet still meet the needs of the requester.
(3) You should pay fees in full before the requested copies are
issued. If the requester is in arrears for previous requests, OMB will
not provide copies for any subsequent request until the arrears have
been paid in full.
(4) Remittances shall be in the form either of a personal check or
bank draft drawn on a bank in the United States, or a postal money
order. Remittances shall be made payable to the order of the Treasury
of the United States and mailed or delivered to the Assistant Director
for Management and Operations, Office of Management and Budget,
Washington, DC 20503.
(5) OMB will provide a receipt for fees paid upon request.
PART 1303--PUBLIC INFORMATION PROVISIONS OF THE ADMINISTRATIVE
PROCEDURES ACT
0
2. The authority citation for part 1303 continues to read as follows:
Authority: 5 U.S.C. 301 and 5 U.S.C. 552, unless otherwise
noted.
0
3. Amend Sec. 1303.3 by revising paragraph (a)(5) to read as follows:
Sec. 1303.3 Organization.
(a) * * *
(5) Statutory offices include the Office of Federal Financial
Management; Office of Federal Procurement Policy; Office of E-
government and Information Technology; Made in America Office; and
Office of Information and Regulatory Affairs.
* * * * *
0
4. Revise Sec. 1303.20 to read as follows:
Sec. 1303.20 Where to send requests.
The FOIA Officer is responsible for acting on all initial requests.
Individuals wishing to file a request under the FOIA should address
their request in writing to FOIA Officer, Office of Management and
Budget, 725 17th Street NW, Room 9272, Washington, DC 20503, via fax to
(202) 395-3504, by email at <a href="/cdn-cgi/l/email-protection#9fd0d2ddd9d0d6dedff0f2fdb1faf0efb1f8f0e9"><span class="__cf_email__" data-cfemail="96d9dbd4d0d9dfd7d6f9fbf4b8f3f9e6b8f1f9e0">[email protected]</span></a>, or the Government-wide
<a href="http://FOIA.gov">FOIA.gov</a> portal. Requesters must provide contact information sufficient
to enable OMB to communicate with the requester. Additionally, OMB's
FOIA Public Liaison is available to assist requesters who have
questions and can be reached at (202) 395-FOIA or in writing at the
address provided in this section.
0
5. Revise Sec. 1303.21 to read as follows:
Sec. 1303.21 Requesters making requests about themselves or on behalf
of others.
In order to obtain greater access to records, a requester who is
making a request for records about the requester or on behalf of
another individual must comply with the verification of identity
requirements as determined by OMB pursuant to OMB's requirements for
making requests for access in 5 CFR part 1302. OMB may require a
requester to supply additional information as necessary in order to
verify the identity of the requester or to verify that a particular
individual has consented to disclosure.
0
6. Amend Sec. 1303.30 by revising paragraphs (c)(2)(i) and (ii) to
read as follows:
Sec. 1303.30 Responsibility for responding to requests.
* * * * *
(c) * * *
(2) * * *
(i) When OMB believes that a different agency is best able to
determine whether to disclose the record, OMB will refer the
responsibility for responding to the request regarding that record to
that agency, will notify the requester, and will inform them of the
agency which will be processing the record, including that agency's
FOIA contact information. Ordinarily, the agency that originated the
record is best situated to make the disclosure determination. However,
if OMB and the originating agency jointly agree that OMB is in the best
position to respond regarding the record, then OMB may respond to the
requester.
(ii) When OMB believes that a different agency is best able to
determine whether to disclose the record, but also believes that
disclosure of the identity of the different agency could harm an
interest protected by an applicable FOIA exemption, such as the
exemptions that protect personal privacy or national security
interests, OMB will coordinate with the originating agency to seek its
views on the disclosability of the record and convey the release
determination for the record that is the subject of the coordination to
the requester. For example, if a non-law enforcement agency responding
to a request for records on a living third party locates within its
files records originating with a law enforcement agency, and if the
existence of that law enforcement interest in the third party was not
publicly known, then to disclose that law enforcement interest could
cause an unwarranted invasion of the personal privacy of the third
party. Similarly, if an agency locates within its files material
originating with an Intelligence Community agency, and the involvement
of that agency in the matter is classified and not publicly
acknowledged, then to disclose or give attribution to the involvement
of that Intelligence Community agency could cause national security
harms.
0
7. Amend Sec. 1303.40 by revising paragraphs (e)(1)(iv) and (e)(4) to
read as follows:
Sec. 1303.40 Timing of responses to requests.
* * * * *
(e) * * *
(1) * * *
(iv) There are possible questions, in a matter of widespread and
exceptional public interest, about the Government's integrity which
affect public confidence.
* * * * *
(4) OMB will decide whether to grant a request for expedited
processing and will notify the requester within 10 calendar days after
the date of the request. If a request for expedited treatment is
granted, OMB will prioritize the underlying FOIA request, place the
request in the processing track for expedited requests, and process the
request as soon as practicable. If a request for expedited processing
is denied, any appeal of that decision will be acted on expeditiously.
0
8. Amend Sec. 1303.50 by revising paragraphs (a), (c) introductory
text, and (c)(4) to read as follows:
Sec. 1303.50 Responses to requests.
(a) Acknowledgments of requests. OMB will assign an individualized
tracking number to each request received that will take longer than ten
days to process; and acknowledge each request, informing the requester
of their tracking number if applicable; and, upon request, make
available information about the status of a request to the requester
using the assigned tracking number, including--
(1) The date on which OMB originally received the request; and
(2) An estimated date on which OMB will complete action on the
request.
* * * * *
[[Page 48826]]
(c) Adverse determinations of requests. Adverse determinations, or
denials of requests, include decisions that the requested record is
exempt, in whole or in part; the request does not reasonably describe
the records sought; the information requested is not a record subject
to the FOIA; the requested record does not exist, cannot be located, or
has been destroyed; or the requested record is not readily reproducible
in the form or format sought by the requester. Adverse determinations
also include denials involving fees or fee waiver matters or denials of
requests for expedited processing. In the case of an adverse
determination, the FOIA Officer will immediately notify the requester
of--
* * * * *
(4) OMB's estimate of the volume of any requested records OMB is
withholding, unless providing such estimate would harm an interest
protected by the exemption in 5 U.S.C. 552(b) under which the
withholding is being made.
0
9. Amend Sec. 1303.60 by revising paragraphs (a)(2) and (e)(2) to read
as follows:
Sec. 1303.60 Notification procedures for confidential commercial
information.
(a) * * *
(2) Submitter means any person or entity, including a corporation,
State, or foreign government, but not including another Federal
Government entity, that provides confidential commercial information,
either directly or indirectly, to the Federal Government.
* * * * *
(e) * * *
(2) If a submitter has any objections to disclosure, it should
provide OMB a detailed written statement that specifies all grounds for
withholding the particular information under any exemption of the FOIA.
In order to rely on Exemption 4 as basis for nondisclosure, the
submitter must explain why the information constitutes a trade secret
or commercial or financial information that is privileged or
confidential. OMB is not required to consider any information received
after the date of any disclosure decision.
* * * * *
0
10. Amend Sec. 1303.70 by revising paragraph (a) to read as follows:
Sec. 1303.70 Appeals.
(a) A requester must appeal to the head of OMB in writing within 90
calendar days after the date of such adverse determination addressed to
the FOIA Officer at the address specified in Sec. 1303.20. The appeal
must include a statement explaining the basis for the appeal.
Determinations of appeals will be set forth in writing and signed by
the Deputy Director, or their designee, within 20 working days. If on
appeal the denial is upheld in whole or in part, the written
determination will also contain a notification of the provisions for
judicial review, the names of the persons who participated in the
determination, and notice of the services offered by OGIS as a non-
exclusive alternative to litigation.
* * * * *
0
11. Amend Sec. 1303.91 by revising the introductory text and paragraph
(i) to read as follows:
Sec. 1303.91 Fees to be charged--general.
OMB will charge fees that recoup the full allowable direct costs it
incurs. Moreover, it will use the most efficient and least costly
methods to comply with requests for documents made under the FOIA. For
example, employees should not engage in line-by-line search when merely
duplicating an entire document would prove the less expensive and
quicker method of complying with a request. Search should be
distinguished, moreover, from review of material in order to determine
whether the material is exempt from disclosure. When documents that
would be responsive to a request are maintained for distribution by
agencies operating statutory-based fee schedule programs (see 5 U.S.C.
552(a)(4)(A)(vi)), such as the National Technical Information Service,
OMB will inform requesters of the steps necessary to obtain records
from those sources.
* * * * *
(i) No Fees under $25. No fee will be charged when the total fee,
after deducting the first 100 free pages (or its cost equivalent) and
the first two hours of search, is equal to or less than $25. If OMB
estimates that the charges are likely to exceed $25, it will notify the
requester of the estimated amount of fees, unless the requester has
indicated in advance their willingness to pay fees as high as those
anticipated. Such a notice shall offer a requester the opportunity to
confer with agency personnel to meet the requester's needs at a lower
cost.
0
12. Amend Sec. 1303.92 by revising paragraphs (a) through (d) to read
as follows:
Sec. 1303.92 Fees to be charged--categories of requesters.
* * * * *
(a) Commercial use requesters. When OMB receives a request for
documents for commercial use, it will assess charges that recover the
full direct costs of searching for, reviewing for release, and
duplicating the record sought. Commercial use requesters are entitled
to neither two hours of free search time nor 100 free pages of
duplication of documents. OMB may recover the cost of searching for and
reviewing records even if there is ultimately no disclosure of records
(see Sec. 1303.93(b)).
(b) Educational and noncommercial scientific institution
requesters. OMB will provide documents to educational and noncommercial
scientific institution requesters that meet the criteria in Sec.
1303.90(f) or (g) for the cost of duplication alone, excluding charges
for the first 100 pages. OMB may seek evidence from the requester that
the request is in furtherance of scholarly research and will advise
requesters of their determination whether the requester has met the
criteria in Sec. 1303.90(f) or (g).
(c) Requesters who are representatives of the news media. OMB will
provide documents to requesters who are representatives of the news
media that meet the criteria in Sec. 1303.90(h) and (i), and that do
not make the request for commercial use, for the cost of duplication
alone, excluding charges for the first 100 pages.
(d) All other requesters. OMB will charge requesters who do not fit
into any of the categories described in paragraphs (a) through (c) of
this section fees that recover only the full reasonable direct cost of
searching for and duplicating records that are responsive to the
request, except that the first 100 pages of duplication and the first
two hours of search time will be furnished without charge. Moreover,
requests for records about the requesters filed in OMB's systems of
records will continue to be treated under the fee provisions of the
Privacy Act of 1974, which permit fees only for producing copies of
records
0
13. Amend Sec. 1303.93 by revising paragraph (a), the first sentence
of paragraph (c), and paragraph (d)(1) to read as follows:
Sec. 1303.93 Miscellaneous fee provisions.
(a) Charging interest--notice and rate. OMB may begin assessing
interest charges on an unpaid bill starting on the 31st day after OMB
sends the bill. If OMB receives the fee within the thirty-day grace
period, interest will not accrue on the paid portion of the bill, even
if the payment is unprocessed. Interest will be at the rate prescribed
in 31 U.S.C. 3717 and will accrue from the date of the billing.
* * * * *
[[Page 48827]]
(c) * * * When OMB reasonably believes that a requester, or a group
of requesters acting in concert, is attempting to divide a single
request into a series of requests for the purpose of avoiding fees, OMB
may aggregate those requests and charge fees accordingly. * * *
(d) * * *
(1) OMB will not require a requester to make an advance payment,
i.e., payment before work is commenced or continued on a request,
unless OMB estimates or determines that allowable charges that a
requester may be required to pay will exceed $250 or the requester has
previously failed to make a payment due within 30 days of billing.
* * * * *
Shraddha A. Upadhyaya,
Associate General Counsel, Office of Management and Budget.
[FR Doc. 2024-12667 Filed 6-7-24; 8:45 am]
BILLING CODE 3110-01-P
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