82 FR 34835 - Freedom of Information Act and Government in the Sunshine Act Procedures

PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

Federal Register Volume 82, Issue 143 (July 27, 2017)

The Privacy and Civil Liberties Oversight Board is updating its Freedom of Information Act regulation to conform to the FOIA Amendments Act of 2016 and updating its Sunshine Act regulation to clarify how public meetings will be announced and how changes to the meeting may occur after public announcement.

[Federal Register Volume 82, Number 143 (Thursday, July 27, 2017)]
[Rules and Regulations]
[Pages 34835-34838]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-15660]



========================================================================
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. 

========================================================================


Federal Register / Vol. 82, No. 143 / Thursday, July 27, 2017 / Rules 
and Regulations

[[Page 34835]]



PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

6 CFR Parts 1001 and 1003

[PCLOB Case 2017-001; Docket No. 2017-0001; Sequence No. 1]
RIN 0311-AA03


Freedom of Information Act and Government in the Sunshine Act 
Procedures

AGENCY: Privacy and Civil Liberties Oversight Board.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Privacy and Civil Liberties Oversight Board is updating 
its Freedom of Information Act regulation to conform to the FOIA 
Amendments Act of 2016 and updating its Sunshine Act regulation to 
clarify how public meetings will be announced and how changes to the 
meeting may occur after public announcement.

DATES: Effective: August 28, 2017.

FOR FURTHER INFORMATION CONTACT: Ms. Lynn Parker Dupree, Deputy General 
Counsel, Privacy and Civil Liberties Oversight Board, at 202-296-4682 
or [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The changes to the Freedom of Information Act are conforming 
amendments to reflect the requirements of the FOIA Improvement Act of 
2016. The changes to the Sunshine Act regulation are conforming 
amendments that reflect changes to the agency's Sunshine Act 
procedures.

II. Regulatory Analysis and Notices

Executive Order 12866

    This final rule is not a ``significant regulatory action'' within 
the meaning of Executive Order 12866. The economic impact of these 
regulations should be minimal, therefore, further economic evaluation 
is not necessary.

Regulatory Flexibility Act, as Amended

    The Regulatory Flexibility Act, as amended by the Small Business 
Regulatory Enforcement Act of 1996 (5 U.S.C. 601 et seq.), generally 
requires an agency to prepare a regulatory flexibility analysis for any 
rule subject to notice and comment rulemaking under the Administrative 
Procedure Act or any other statute, unless the agency certifies that 
the rule will not have a significant economic impact on a number of 
small entities. Small entities include small businesses, small 
organizations, and small government jurisdictions. The Board considered 
the effects on this rulemaking on small entities and certifies that 
this final rule will not have a significant impact on a substantial 
number of small entities.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, 
requires each agency to assess the effects of its regulatory actions on 
state, local, and tribal governments, and the private sector. Agencies 
must prepare a written statement of economic and regulatory 
alternatives anytime a proposed or final rule imposes a new or 
additional enforceable duty on any state, local, or tribal government 
or the private sector that causes those entities to spend, in 
aggregate, $100 million or more (adjusted for inflation) in any one 
year (defined in UMRA as a ``federal mandate''). The Board determined 
that such a written statement is not required in connection with this 
final rule because it will not impose a federal mandate, as defined in 
UMRA.

National Environmental Policy Act

    The Board analyzed this final rule for purposes of the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and 
determined that it would not significantly affect the environment; 
therefore, an environmental impact statement is not required.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et 
seq., federal agencies must obtain approval from the Office of 
Management and Budget for each collection of information they conduct, 
sponsor, or require through regulations. This final rule does not 
include an information collection for purposes of the PRA.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, dated August 4, 1999, and 
the Board determined that it does not have sufficient implications for 
federalism to warrant the preparation of a Federalism Assessment.

List of Subjects in 6 CFR Parts 1001 and 1003

    Administrative practice and procedure, Public availability of 
information, Meetings.

    Dated: July 19, 2017.
Lynn Parker Dupree,
Deputy General Counsel, Alternate Designated Agency Ethics Official, 
Privacy and Civil Liberties Oversight Board.

    For the reasons set forth in the preamble, the Board amends 6 CFR 
parts 1001 and 1003 as set forth below:

PART 1001--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM 
OF INFORMATION ACT

0
1. The authority citation for part 1001 continues to read as follows:

    Authority: 5 U.S.C. 552, as amended; Executive Order 12600.

0
2. Amend Sec.  1001.2 by revising the definition ``Chief FOIA Officer'' 
to read as follows:


Sec.  1001.2  Definitions.

* * * * *
    Chief FOIA Officer means the senior official to whom the Board 
delegated responsibility for efficient and appropriate compliance with 
the FOIA.
* * * * *

0
 3. Revise Sec.  1001.5 to read as follows:


Sec.  1001.5  Requests for records.

    (a) You may request copies of records under this part by email to 
[email protected] or in writing addressed to FOIA Officer, Privacy and 
Civil Liberties Oversight Board. Requestors should check the Board's 
Web site at https://www.pclob.gov for the Board's current mailing 
address. Please provide contact information, such as your phone number, 
email address, and/or mailing address, to assist the Board in 
communicating with you and providing released records.
    (b) Your request shall reasonably describe the records sought with 
sufficient specificity, and when

[[Page 34836]]

possible, include names, dates, and subject matter, in order to permit 
the FOIA Officer to locate the records with a reasonable amount of 
effort. If the FOIA Officer cannot locate responsive records based on 
your written description, you will be notified and advised that further 
identifying information is necessary before the request can be 
fulfilled. Requesters who are attempting to reformulate or modify such 
a request may discuss their request with the Board's FOIA Officer or 
FOIA Public Liaison. If a request does not reasonably describe the 
records sought, the Board's response to the request is likely to be 
delayed.
    (c) Although requests are considered either FOIA or Privacy Act 
requests, the Board processes requests for records in accordance with 
both laws so as to provide the greatest degree of lawful access while 
safeguarding an individual's personal privacy.
    (d) Your request should specify your preferred form or format 
(including electronic formats) for the records you seek. We will 
accommodate your request if the record is readily available in that 
form or format. When you do not specify the form or format of the 
response, we will provide responsive records in the form or format most 
convenient to us.

0
4. Amend Sec.  1001.6 by--
0
a. Removing ``and'' from the end of paragraph (b)(3);
0
b. Removing the period from the end of paragraph (b)(4) and adding ``; 
and'' in its place;
0
c. Adding paragraph (b)(5);
0
d. Revising paragraph (c)(1); and
0
e. Adding paragraph (d).
    The additions and revision read as follows:


Sec.  1001.6   Responsibility for responding to requests.

* * * * *
    (b) * * *
    (5) A statement notifying you of the assistance available from the 
Board's FOIA Public Liaison and the dispute resolution services offered 
by OGIS.
    (c) * * *
    (1) Upon receipt of a FOIA request for a record within the Board's 
possession, the FOIA Officer should determine if the Board or another 
federal agency is best able to determine eligibility for disclosure 
under the FOIA. As to any such record, the FOIA Officer must proceed in 
one of the following ways:
    (i) Consultation. When records originated with the Board, but 
contain within them information of interest to or originated by another 
agency or Federal Government office, the FOIA Officer must consult with 
that other entity prior to making a release determination.
    (ii) Referral. When the FOIA Officer believes that a different 
agency is best able to determine whether to disclose the record the 
FOIA Officer will refer the responsibility for responding to the 
request regarding that record to that agency (but only if that other 
department or agency is subject to FOIA). Ordinarily, the department or 
agency that originated the record will be presumed best able to 
determine whether to disclose it. However, if the FOIA Officer and the 
originating agency jointly agree that the Board is in the best position 
to respond regarding the record, then the record may be handled as a 
consultation.
* * * * *
    (d) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the agency to which the 
referral would be made is classified for national security reasons or 
otherwise could harm an interest protected by an applicable exemption, 
such as the exemptions that protect personal privacy or national 
security interests. For instance, if the Board locates within its files 
materials 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. In such an instance, in order to avoid harm to an interest 
protected by an applicable exemption, the Board will coordinate with 
the originating agency to seek its views on the disclosability of the 
record. The release determination for the record that is the subject of 
the coordination will then be conveyed to the requester by the Board.

0
5. Revise Sec.  1001.7 to read as follows:


Sec.  1001.7  Administrative appeals.

    (a) You may appeal an adverse determination related to your FOIA 
request, or the Board's failure to respond to your FOIA request within 
the prescribed time limits, to the Chief FOIA Officer, Privacy and 
Civil Liberties Oversight Board. Requestors should check the Board's 
Web site at https://www.pclob.gov for the Board's current mailing 
address.
    (b) Your appeal must be in writing, sent to the address posted on 
the Board's Web site in accordance with paragraph (a) of this section, 
and it must be postmarked, or in the case of electronic submissions, 
transmitted, within 90 calendar days after the date of the letter 
denying your request, in whole or in part. The appeal should clearly 
identify the agency determination that is being appealed and the 
assigned case request number. In case of the Board's failure to respond 
within the statutory time frame, you may submit an administrative 
appeal at any time until an agency response has been provided. For the 
most expeditious handling, your appeal letter and envelope, or subject 
line of the electronic transmission, should be marked ``Freedom of 
Information Act appeal.''
    (c) Your appeal letter should state facts and may cite legal or 
other authorities in support of your request.
    (d) On receipt of any appeal involving classified information, the 
Chief FOIA Officer must take appropriate action to ensure compliance 
with applicable classification rules.
    (e) The Chief FOIA Officer shall respond to all administrative 
appeals in writing and within the time frame stated in Sec.  1001.8(d). 
If the decision affirms, in whole or in part, the FOIA Officer's 
determination, the letter shall contain a statement of the reasons for 
the affirmance, including any FOIA exemption(s) applied, and will 
inform you of the FOIA's provisions for court review. If the Chief FOIA 
Officer reverses or modifies the FOIA Officer's determination, in whole 
or in part, you will be notified in writing and your request will be 
reprocessed in accordance with that decision. The Board may work with 
Office of Government Information Services (OGIS) to resolve disputes 
between FOIA requestors and the Board. A requester may also contact 
OGIS in the following ways: Via mail to OGIS, National Archives and 
Records Administration, 8601 Adelphi Road--OGIS, College Park, MD 20740 
(ogis.archives.gov), via email at [email protected], or via the telephone 
at 202-741-5770 or 877-684-6448. Facsimile is also available at 202-
741-5769.

0
6. Amend Sec.  1001.9 by adding a sentence to the end of paragraphs (c) 
and (f) to read as follows:


Sec.  1001.9  Business information.

* * * * *
    (c) * * * Any information provided by a submitter under this 
subpart may itself be subject to disclosure under the FOIA.
* * * * *
    (f) * * * The Board also must notify the requester when it notifies 
the submitter of its intent to disclose the requested information, and 
whenever a submitter files a lawsuit to prevent the disclosure of the 
information.

[[Page 34837]]


0
7. Revise Sec.  1001.10 to read as follows:


Sec.  1001.10  Fees.

    (a) We will charge fees that recoup the full allowable direct costs 
we incur in processing your FOIA request. Fees may be charged for 
search, review or duplication. As a matter of administrative 
discretion, the Board may release records without charge or at a 
reduced rate whenever the Board determines that the interest of the 
United States government would be served. We will use the most 
efficient and least costly methods to comply with your request. The 
Board may charge for search time even if no records are located or the 
records located are exempt from disclosure. If the Board fails to 
comply with the FOIA's time limits in which to respond to a request, it 
may not charge search fees, unless the circumstances outlined in 
paragraph (o) of this section are met.
    (b) With regard to manual searches for records, we will charge the 
salary rate(s) (calculated as the basic rate of pay plus 16 percent of 
that basic rate to cover benefits) of the employee(s) performing the 
search.
    (c) In calculating charges for computer searches for records, we 
will charge at the actual direct cost of providing the service, 
including the cost of operating computers and other electronic 
equipment, such as photocopiers and scanners, directly attributable to 
searching for records potentially responsive to your FOIA request and 
the portion of the salary of the operators/programmers performing the 
search.
    (d) We may only charge requesters seeking documents for commercial 
use for time spent reviewing records to determine whether they are 
exempt from mandatory disclosure. Charges may be assessed only for the 
initial review--that is, the review undertaken the first time we 
analyze the applicability of a specific exemption to a particular 
record or portion of a record. Records or portions of records withheld 
in full under an exemption that is subsequently determined not to apply 
may be reviewed again to determine the applicability of other 
exemptions not previously considered. We may assess the costs for such 
subsequent review. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage.
    (e) Records will be duplicated at a rate of $.10 per page, except 
that the Board may adjust this rate from time to time by rule published 
in the Federal Register. For copies prepared by computer, such as 
tapes, CDs, DVDs, or printouts, we will charge the actual cost, 
including operator time, of production. For other methods of 
reproduction or duplication, we will charge the actual direct costs of 
producing the document(s). If we estimate that duplication charges are 
likely to exceed $25, we will notify you of the estimated amount of 
fees, unless you indicated in advance your willingness to pay fees as 
high as those anticipated. Our notice will offer you an opportunity to 
confer with Board personnel to reformulate the request to meet your 
needs at a lower cost. If the Board notifies you that the actual or 
estimated fees are in excess of $25.00, your request will not be 
considered received and further work will not be completed until you 
commit in writing to pay the actual or estimated total fee, or 
designate some amount of fees you are willing to pay, or in the case of 
a noncommercial use requester who has not yet been provided with your 
statutory entitlements, you designate that you seek only that which can 
be provided by the statutory entitlements. The Board's FOIA Officer or 
Public Liaison are available to assist you in reformulating your 
request to meet your needs at a lower cost.
    (f) We will charge you the full costs of providing you with the 
following services:
    (1) Certifying that records are true copies; or
    (2) Sending records by special methods such as express mail.
    (g) We may assess interest charges on an unpaid bill starting on 
the 31st calendar day following the day on which the billing was sent. 
Interest shall be at the rate prescribed in 31 U.S.C. 3717 and will 
accrue from the date of the billing until payment is received by the 
Board.
    (h) We will not charge a search fee for requests by educational 
institutions, non-commercial scientific institutions, or 
representatives of the news media. A search fee will be charged for a 
commercial use request.
    (i) The Board will not charge duplication fees for requests by 
educational institutions, non-commercial scientific institutions, or 
representatives of the news media for a non-commercial use request if 
the agency fails to comply with the FOIA's time limits in which to 
respond to a request.
    (j) Except for a commercial use request, we will not charge you for 
the first 100 pages of duplication and the first two hours of search.
    (k) You may not file multiple requests, each seeking portions of a 
document or documents, solely for the purpose of avoiding payment of 
fees. When the Board reasonably believes that a requester, or a group 
of requesters acting in concert, has submitted requests that constitute 
a single request involving clearly related matters, we may aggregate 
those requests and charge accordingly.
    (l) We may not require you to make payment before we begin work to 
satisfy the request or to continue work on a request, unless:
    (1) We estimate or determine that the allowable charges that you 
may be required to pay are likely to exceed $250; or
    (2) You have previously failed to pay a fee charged within 30 
calendar days of the date of billing.
    (m) In cases in which the Board requires advance payment, the 
request will not be considered received and further work will not be 
completed until the required payment is received. If you do not pay the 
advance payment within 30 calendar days after the date of the Board's 
fee determination, the request will be closed.
    (n) Upon written request, we may waive or reduce fees that are 
otherwise chargeable under this part. If you request a waiver or 
reduction in fees, you must demonstrate that a waiver or reduction in 
fees is in the public interest because disclosure of the requested 
records is likely to contribute significantly to the public 
understanding of the operations or activities of the government and is 
not primarily in your commercial interest. After processing, actual 
fees must exceed $25, for the Board to require payment of fees.
    (o) If the Board has determined that unusual circumstances, as 
defined by the FOIA, apply and more than 5,000 pages are necessary to 
respond to the request, the Board may charge search fees, or, in the 
case of requesters described in paragraph (h) of this section, may 
charge duplication fees, if the following steps are taken. The Board 
must have provided timely written notice of unusual circumstances to 
the requester in accordance with the FOIA and the agency must have 
discussed with the requester via written mail, email, 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 5 U.S.C. 552(a)(6)(B)(ii). If this exception is 
satisfied, the Board may charge all applicable fees incurred in the 
processing of the request.

0
8. Add Sec.  1001.11 to read as follows:


Sec.  1001.11  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, 
as of right, to any service or to the disclosure

[[Page 34838]]

of any record to which such person is not entitled under the FOIA.

PART 1003--IMPLEMENTATION OF THE GOVERNMENT IN THE SUNSHINE ACT

0
9. The authority citation for part 1003 continues to read as follows:

    Authority: 5 U.S.C. 552b.

0
10. Amend Sec.  1003.4 by revising paragraph (c) and adding paragraphs 
(d) through (f) to read as follows:


Sec.  1003.4  Procedures for public announcement of meetings.

* * * * *
    (c) When a meeting has been called by the Chairman, the notice 
shall contain such agenda items as the Chairman designates. The notice 
shall be circulated to Members in advance of publication and Members, 
by majority vote, may add additional agenda items.
    (d) When a meeting is called by a majority of Members, the notice 
shall contain such agenda items as have been approved by a majority of 
the Board.
    (e) The Executive Director will ensure that the final agenda for 
the meeting conforms to the notice published in the Federal Register.
    (f) If public notice is provided by means other than publication in 
the Federal Register, notice will be promptly submitted to the Federal 
Register for publication.

0
11. Revise Sec.  1003.7 to read as follows:


Sec.  1003.7  Changes following public announcement.

    (a) The time, place, and agenda items of a meeting following the 
public announcement described in Sec.  1003.4, or the determination of 
the Board to open or close a meeting, or a portion thereof, to the 
public may be changed following public announcement only if:
    (1) A majority of all members determine by recorded vote that Board 
business so requires and that no earlier announcement of the change was 
possible; and
    (2) The Board publicly announces such change and the vote of each 
member thereon at the earliest practicable time.
    (b) Changes to the time, place and agenda items of a meeting called 
by the Chairman pursuant to Sec.  1003.4(c) must be made with the 
concurrence of the Chairman, except that when Members have, by majority 
vote, added additional agenda items, the addition of those agenda items 
does not require the Chairman's concurrence.

[FR Doc. 2017-15660 Filed 7-26-17; 8:45 am]
BILLING CODE 6820-B3-P