82 FR 12506 - Revising Procedures for the Freedom of Information Act

POSTAL REGULATORY COMMISSION

Federal Register Volume 82, Issue 42 (March 6, 2017)

The Commission issuing a set of rules amending existing regulations governing requests for agency records made under the Freedom of Information Act (FOIA), in accordance in with the FOIA Improvement Act of 2016.

[Federal Register Volume 82, Number 42 (Monday, March 6, 2017)]
[Rules and Regulations]
[Pages 12506-12508]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-04308]


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POSTAL REGULATORY COMMISSION

39 CFR Part 3004

[Docket No. RM2017-2; Order No. 3812]


Revising Procedures for the Freedom of Information Act

AGENCY: Postal Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Commission issuing a set of rules amending existing 
regulations governing requests for agency records made under the 
Freedom of Information Act (FOIA), in accordance in with the FOIA 
Improvement Act of 2016.

DATES: Effective April 5, 2017.

FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at 
202-789-6820.

SUPPLEMENTARY INFORMATION:

Regulatory History

81 FR 95069 (Dec. 27, 2016)

Table of Contents

I. Introduction
II. Background
III. Review of Comments
IV. Changes to Proposed Rules
V. Ordering Paragraphs

I. Introduction

    On December 19, 2016, the Commission issued a notice of proposed 
rulemaking to revise its regulations governing requests for agency 
records made under the Freedom of Information Act (FOIA), 5 U.S.C. 552, 
to comply with the FOIA Improvement Act of 2016 (the Act), Public Law 
114-185, 130 Stat. 538 (2016).\1\ For the reasons discussed below, the 
Commission adopts the following final rules, which include minor 
revisions to the proposed rules.
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    \1\ Notice of Proposed Rulemaking to Revise Procedures for the 
Freedom of Information Act, December 19, 2016 (Order No. 3671).
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II. Background

    The FOIA Improvement Act of 2016 was signed into law on June 30, 
2016. Among other things, the Act expands the dispute resolution 
process available to requesters, limits the use of FOIA exemptions, and 
codifies the so-called ``Rule of 3'' for frequently requested records.
    On December 19, 2016, the Commission issued Order No. 3671, 
introducing proposed revisions to its rules. As Order No. 3671 
indicates, revisions to the affected sections of 39 CFR part 3004 are 
necessary to implement the Act.

III. Review of Comments

    The Commission received two sets of comments on the proposed rules. 
The National Archives and Records Administration's Office of Government 
Information Services (OGIS) and the Public Representative submitted 
comments.\2\
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    \2\ Comments of National Archives and Records Administration on 
Proposed Rulemaking to Change its Freedom of Information Act 
Regulation, 39 CFR part 3004, Docket No. 2016-30905, January 26, 
2017 (OGIS Comments); Public Representative Comments on Notice of 
Proposed Rulemaking to Revise Procedures for the Freedom of 
Information Act, January 26, 2017 (PR Comments).
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A. OGIS Comments

    Comments. OGIS notes that it has a statutory mandate under FOIA to 
offer

[[Page 12507]]

mediation services to resolve disputes between requesters and federal 
agencies. OGIS Comments at 1. As part of this mission, OGIS states that 
it regularly monitors and comments on FOIA-related proposed rules. Id.
    OGIS has reviewed the Commission's proposed rules and commends the 
Commission for its efforts in reviewing its disclosure policies and 
revising its regulations to comply with the Act. Id. OGIS also suggests 
two modifications to the Commission's rules related to OGIS' mediation 
services. Id. at 1-3.
    First, OGIS suggests that the Commission clarify proposed Sec.  
3004.43, governing request responses. Id. at 2. OGIS notes that FOIA 
requires the Commission to notify requesters of their ability to seek 
dispute resolution services from the Commission's FOIA Public Liaison 
or OGIS when the Commission makes an adverse determination on a given 
request. Id. OGIS recommends that the Commission restructure proposed 
Sec.  3004.43 to more clearly state that these dispute resolution 
services are available even when the adverse determination is not a 
denial. Id.
    Second, OGIS recommends that the Commission supplement its rule on 
final denials of appeals, set out in Sec.  3004.44(c)(1). Id. at 2-3. 
OGIS proposes additional language to ensure requesters are made aware 
that dispute resolution with OGIS is available as a non-exclusive 
alternative to litigation. Id.

B. Public Representative Comments

    Comments. The Public Representative comments that the proposed 
rules are ``effective in implementing the Act.'' PR Comments at 2. 
Furthermore, she commends the Commission for clarifying how requesters 
can file FOIA requests with the Commission and for making its records 
more accessible to the public. Id. She also offers several editorial 
suggestions designed to provide additional clarity.
    Specifically, the Public Representative recommends that proposed 
Sec.  3004.13 be revised to define how the Commission determines that a 
record is frequently requested. Id. The proposed language replaces the 
words ``frequently requested agency records'' with ``agency records 
that have been requested three or more times'' to explicitly state the 
standard. Id. Furthermore, the Public Representative suggests that the 
Commission add corresponding language to Sec.  3004.12(b) and (c) to 
make clear that the Commission will provide frequently requested 
records for review in its public reading room. Id.
    The Public Representative also recommends that the Commission 
include its deadline for requesters to appeal adverse determinations in 
Sec.  3004.44, the section addressing FOIA appeals. Id. at 3. The 
current Commission rules provide the deadline in Sec.  3004.43(d)(3), 
which covers responses to FOIA requests.

IV. Changes to Proposed Rules

    The Commission's final rules incorporate the commenters' suggested 
revisions, as well as several additional changes that the Commission 
determined would be prudent upon review of guidance published by the 
Department of Justice, Office of Information Policy (OIP).\3\ These 
changes provide greater clarity and improve the accessibility of the 
FOIA process. For this reason, the Commission adopts the changes in its 
final rules.
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    \3\ OIP issued suggested language, in template form, to assist 
agencies in revising their regulations on its Web site, https://www.justice.gov/oip/template-agency-foia-regulations (last updated 
on February 22, 2017).
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    The Commission accepts OGIS' proposed changes to help accommodate 
OGIS' statutory role as a mediator between agencies and FOIA 
requesters. The Commission finds that the proposed revisions will 
assist requesters by raising awareness that dispute resolution is 
available through OGIS. Furthermore, the Commission makes conforming 
changes to proposed Sec.  3004.44 to clarify that administrative appeal 
is available even when the adverse determination is not a denial.
    The Commission finds that the Public Representative's suggested 
changes supplement the proposed rules with additional explanation and 
improve their accessibility to the public. Accordingly, the Commission 
accepts the Public Representative's proposed changes.
    The final rules also incorporate OIP's guidance on two of the FOIA 
request fee rules. The revisions eliminate a cross reference in 
proposed Sec.  3004.52(e)(2) and revise proposed Sec.  3004.52(f) to 
clarify which fees the Commission can collect when it issues a timely 
partial response but an untimely complete response. These changes 
clarify the Act's modifications to the FOIA fee structure in accordance 
with OIP's template.

V. Ordering Paragraphs

    It is ordered:
    1. Part 3004 of title 39, Code of Federal Regulations, is amended 
as set forth below the signature of this Order, effective 30 days after 
publication in the Federal Register.
    2. The Secretary shall arrange for publication of this order in the 
Federal Register.

    By the Commission.
Stacy L. Ruble,
Secretary.

List of Subjects in 39 CFR Part 3004

    Administrative practice and procedure, Freedom of information, 
Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, the Commission amends 
chapter III of title 39 of the Code of Federal Regulations as follows:

PART 3004--PUBLIC RECORDS AND FREEDOM OF INFORMATION ACT

0
1. The authority citation for part 3004 continues to read as follows:

    Authority:  5 U.S.C. 552; 39 U.S.C. 503.


0
2. Revise Sec.  3004.2 to read as follows:


Sec.  3004.2  Presumption of openness.

    (a) The Commission shall be proactive and timely in identifying and 
posting public records and other frequently requested records to its 
Web site.
    (b) It is the stated policy of the Commission that FOIA requests 
shall be administered with a clear presumption of openness. The 
Commission will only withhold information if it reasonably foresees 
that disclosure would harm an interest protected by a FOIA exemption, 
as enumerated in Sec.  3004.11, or disclosure is otherwise prohibited 
by law.

0
3. Add Sec.  3004.3 to read as follows:


Sec.  3004.3  How to make a request.

    (a) To request Commission records, please contact the Secretary of 
the Commission via letter or use the online request form provided on 
the Commission's Web site at http://www.prc.gov/foia/onlinerequest.
    (b) Requests must describe the records sought in sufficient detail 
to enable the Commission to locate them with a reasonable amount of 
effort. To the extent possible, the requests should provide any 
specific information that might assist the Commission in responding to 
the request.
    (c) Requesters must provide contact information to assist the 
Commission in communicating with them concerning requests and 
responding to the request.

0
4. Amend Sec.  3004.11 by revising paragraph (f) to read as follows:


Sec.  3004.11  Use of exemptions.

* * * * *

[[Page 12508]]

    (f) Inter-agency or intra-agency memoranda or letters that would 
not be available by law to a party other than an agency in litigation 
with the agency. This exemption shall not apply to records created 25 
years or more before the date on which the records were requested.
* * * * *

0
5. Amend Sec.  3004.12 by revising paragraph (c) to read as follows:


Sec.  3004.12  Reading room.

* * * * *
    (c) The Commission shall make available, in an electronic and 
physical reading room, records previously released under FOIA and which 
the Commission determines are or are likely to become of significant 
public interest, including agency records that have been requested 
three or more times.

0
6. Amend Sec.  3004.13 by revising paragraph (a) to read as follows:


Sec.  3004.13  Notice and publication of public information.

    (a) Decisions, advisory opinions, orders, public reports, and 
agency records that have been requested three or more times will be 
made available to the public by posting on the Commission's Web site at 
http://www.prc.gov.
* * * * *

0
7. Amend Sec.  3004.43 by revising paragraph (a) to read as follows:


Sec.  3004.43  Response to requests.

    (a) Within 20 days (excluding Saturdays, Sundays, and legal 
holidays) after receipt of a request for a Commission record, the 
Secretary or Assistant Secretary will notify the requester of its 
determination to grant or deny the request and the right to seek 
assistance from the Commission's FOIA Public Liaison. In the case of an 
adverse determination, the Commission will notify the requester of 
their right to appeal and right to seek dispute resolution services 
from the Commission's FOIA Public Liaison or the Office of Government 
Information Services.
* * * * *

0
8. Amend Sec.  3004.44 by revising paragraphs (b) and (c)(1) to read as 
follows:


Sec.  3004.44  Appeals.

* * * * *
    (b) A requester who seeks to appeal any adverse determination must 
file an appeal with the Commission within 1 year of the date of the 
Commission's response.
    (c)(1) The Commission will grant or deny the appeal in writing 
within 20 days (excluding Saturdays, Sundays, and legal holidays) of 
the date the appeal is received. If on appeal the adverse determination 
is upheld, the Commission will notify the requester of the availability 
of dispute resolution services from the Office of Government 
Information Services as a voluntary, non-exclusive alternative to 
litigation and the provisions for judicial review of that determination 
pursuant to 5 U.S.C. 552(c).
* * * * *

0
9. Revise Sec.  3004.45 to read as follows:


Sec.  3004.45  Extension of response time limit.

    (a) The Commission may extend the time limit for a response to a 
request or appeal for up to 10 business days due to unusual 
circumstances, as specified in 5 U.S.C. 552(a)(6)(B)(iii). In such a 
case, the Commission will notify the requester in writing of the 
unusual circumstance causing the extension and the date by which the 
Commission estimates that the request can be processed.
    (b) If an extension will exceed 10 business days, the Commission 
will:
    (1) Provide the requester with an opportunity to limit the scope of 
the request or to arrange an alternative timeframe for processing the 
request or a modified request. The applicable time limits are not 
tolled while the Commission waits for a response from the requester 
under this subsection; and
    (2) Make its FOIA Public Liaison available to the requester and 
apprise the requester of their right to seek dispute resolution 
services from the Office of Government Information Services.

0
10. Amend Sec.  3004.52 by revising paragraph (e) and adding paragraph 
(f) to read as follows:


Sec.  3004.52  Fees--general provisions.

* * * * *
    (e) No requester will be charged a fee after any search or response 
which occurs after the applicable time limits as described in 
Sec. Sec.  3004.43 and 3004.44, unless:
    (1) The Commission extends the time limit for its response due to 
unusual circumstances, pursuant to Sec.  3004.45(a), and the Commission 
completes its response within the extension of time provided under that 
section; or
    (2) The Commission extends the time limit for its response due to 
unusual circumstances and more than 5,000 pages are necessary to 
respond to the request and the Commission has discussed with the 
requester how they could effectively limit the scope of the request or 
made at least three good faith attempts to do so; or
    (3) A court has determined that exceptional circumstances exist and 
excused the Commission from responding by court order.
    (f) The Commission may, however, charge fees for review, and in 
some cases duplication, for a partial grant of a request while it 
reviews records that may be exempt and may be responsive to the 
request, so long as the partial grant is made within the applicable 
time limits.

[FR Doc. 2017-04308 Filed 3-3-17; 8:45 am]
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