82 FR 725 - Revision of Department of Justice Freedom of Information Act Regulations

DEPARTMENT OF JUSTICE

Federal Register Volume 82, Issue 2 (January 4, 2017)

This rule amends the Department of Justice's regulations under the Freedom of Information Act (FOIA) to incorporate certain changes made to the FOIA by the FOIA Improvement Act of 2016. In addition, this rule amends certain provisions in the fee section to reflect developments in the case law and to streamline the description of the factors to be considered when making fee waiver determinations.

[Federal Register Volume 82, Number 2 (Wednesday, January 4, 2017)]
[Rules and Regulations]
[Pages 725-729]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-31508]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

28 CFR Part 16

[Docket No. OAG 155]
RIN 1105-AB51; A.G. Order No. 3803-2016


Revision of Department of Justice Freedom of Information Act 
Regulations

AGENCY: Department of Justice.

ACTION: Interim final rule with request for comments.

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

SUMMARY: This rule amends the Department of Justice's regulations under 
the Freedom of Information Act (FOIA) to incorporate certain changes 
made to the FOIA by the FOIA Improvement Act of 2016. In addition, this 
rule amends certain provisions in the fee section to reflect 
developments in the case law and to streamline the description of the 
factors to be considered when making fee waiver determinations.

DATES: Effective Date: This rule is effective February 3, 2017.
    Comment Date: Public comments must be submitted by March 6, 2017. 
Comments submitted by mail will be accepted as timely if they are 
postmarked on or before that date. Electronic comments may be submitted 
via www.regulations.gov prior to midnight Eastern Time at the end of 
that day.

ADDRESSES: You may submit written comments, identified by RIN 1105-AB51 
or Docket No. OAG 155, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Lindsay Roberts, Attorney-Advisor, Office of 
Information Policy, 1425 New York Avenue NW., Room 11050, Washington, 
DC 20530.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For additional details on 
submitting comments, see the ``Public Participation'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Lindsay Roberts, Attorney-Advisor, 
Office of Information Policy, (202) 514-3642.

SUPPLEMENTARY INFORMATION: 
    This rule amends the Department's regulations under the Freedom of 
Information Act to incorporate certain changes made to the FOIA, 5 
U.S.C. 552, by the FOIA Improvement Act of 2016, Public Law 114-185, 
130 Stat. 538 (June 30, 2016). The FOIA Improvement Act of 2016 
provides that agencies must allow a minimum of 90 days for requesters 
to file an administrative appeal. The Act also requires that agencies 
notify requesters of the availability of dispute resolution services at 
various times throughout the FOIA process. Finally, the Act codifies 
the Department of Justice's ``foreseeable harm'' standard. This rule 
updates the Department's regulations in 28 CFR part 16, subpart A, to 
reflect those statutory changes.
    In addition, as explained below, this rule amends provisions in 
Sec.  16.10 (Fees) to incorporate the new statutory restrictions on 
charging fees in certain circumstances, to reflect developments in the 
case law, and to streamline the description of the factors to be

[[Page 726]]

considered when making fee waiver determinations.
    Section 16.1 (General provisions) is revised to delete the 
reference to the Department's policy regarding discretionary release of 
information whenever disclosure would not foreseeably harm an interest 
protected by a FOIA exemption, because that foreseeable harm standard 
is now part of the FOIA statute itself as a result of the FOIA 
Improvement Act of 2016.
    Section 16.2 (Proactive disclosure of Department records) is 
revised to more clearly reflect the FOIA Improvement Act of 2016's 
requirement that records the FOIA requires agencies to make available 
for public inspection must be in an electronic format, rather than 
simply made available for public inspection and copying.
    Section 16.4 (Responsibility for responding to requests) is revised 
to remove the reference to discretionary release of information when 
another component or agency is better able to make the determination 
because the foreseeable harm standard is now part of the FOIA statute 
itself as a result of the FOIA Improvement Act of 2016.
    Section 16.5 (Timing of responses to requests) is revised to 
include a requirement that components notify requesters of the 
availability of assistance from the Office of Government Information 
Services (OGIS) at the National Archives and Records Administration 
when the component gives notice to requesters that the request involves 
unusual circumstances. This notification is required by the FOIA 
Improvement Act of 2016.
    Section 16.6 (Responses to requests) is revised to include 
requirements that components notify requesters of the availability of 
assistance from a FOIA Public Liaison and OGIS when providing 
requesters with responses to their requests. These notifications are 
required by the FOIA Improvement Act of 2016.
    Section 16.8 (Administrative appeals) is revised to extend the time 
to file an administrative appeal to 90 days, in conformity with the 90-
day minimum time period established by the FOIA Improvement Act of 
2016. This section is also revised to include a new paragraph regarding 
engaging in dispute resolution services provided by OGIS.
    Paragraph (b) of Sec.  16.10 (Fees) is revised to conform to recent 
decisions of the D.C. Circuit Court of Appeals addressing two FOIA fee 
categories: ``representative of the news media'' and ``educational 
institution.'' See Cause of Action v. FTC, 799 F.3d 1108 (D.C. Cir. 
2015); Sack v. DOD, 823 F.3d 687 (D.C. Cir. 2016). The Department's 
existing FOIA regulations state that a representative of the news media 
is ``any person or entity that is organized and operated to publish or 
broadcast news to the public that actively gathers information of 
potential interest to a segment of the public, uses its editorial 
skills to turn the raw materials into a distinct work, and distributes 
that work to an audience.'' In Cause of Action, 799 F.3d at 1125, the 
court held that a representative of the news media need not work for an 
entity that is ``organized and operated'' to publish or broadcast news. 
Therefore, the definition of ``representative of the news media'' is 
revised to remove the ``organized and operated'' requirement. The 
definition of ``educational institution'' is revised to reflect the 
holding in Sack, 823 F.3d at 688, that students who make FOIA requests 
in furtherance of their coursework or other school-sponsored activities 
may qualify under this requester category.
    Paragraph (d)(2) of Sec.  16.10, which addresses restrictions on 
charging fees when the FOIA's time limits are not met, is revised to 
reflect changes made to those restrictions by the FOIA Improvement Act 
of 2016. Specifically, these changes reflect that agencies may not 
charge search fees (or duplication fees for representatives of the news 
media and educational/non-commercial scientific institution requesters) 
when the agency fails to comply with the FOIA's time limits. The 
restriction on charging fees is excused and the agency may charge fees 
as usual when it satisfies one of three exceptions detailed at 5 U.S.C. 
552(a)(4)(A)(viii)(II).
    Lastly, this rule revises paragraph (k) of Sec.  16.10, which 
addresses the requirements for a waiver or reduction of fees, to 
specify that requesters may seek a waiver of fees and to streamline and 
simplify the description of the factors to be considered by components 
when making fee waiver determinations. These updates do not 
substantively change the analysis, but instead present the factors in a 
way that is clearer to both components and requesters. Rather than six 
factors, the amended section provides for three overall factors. 
Specifically, a requester should be granted a fee waiver if the 
requested information (1) sheds light on the activities and operations 
of the government; (2) is likely to contribute significantly to public 
understanding of those operations and activities; and (3) is not 
primarily in the commercial interest of the requester. This streamlined 
description facilitates easier understanding and application of the 
statutory standard.

Public Participation

    The Department is issuing an interim rule to make these revisions 
in the Department's FOIA regulations, because these changes merely 
bring the regulations into alignment with the provisions contained in 
the FOIA Improvement Act of 2016 and with current case law and clarify 
the procedure the Department uses for making fee waiver determinations. 
This approach allows these regulatory changes to take effect sooner 
than would otherwise be possible with the publication of a Notice of 
Proposed Rulemaking in advance. Nevertheless, the Department welcomes 
public comments from any interested person on any aspect of the changes 
made by this interim final rule. Please refer to the ADDRESSES section 
above. The Department will carefully consider all public comments in 
the drafting of the final rule.
    Please note that all comments received are considered part of the 
public record and are made available for public inspection online at 
http://www.regulations.gov. The information made available includes 
personal identifying information (such as name and address) voluntarily 
submitted by the commenter.
    If you want to submit personal identifying information (such as 
your name and address) as part of your comment, but do not want it to 
be posted online, you must include the phrase ``PERSONAL IDENTIFYING 
INFORMATION'' in the first paragraph of your comment. You also must 
locate all the personal identifying information you do not want posted 
online in the first paragraph of your comment and identify what 
information you want redacted. If you want to submit confidential 
business information as part of your comment, but do not want it to be 
posted online, you must include the phrase ``CONFIDENTIAL BUSINESS 
INFORMATION'' in the first paragraph of your comment. You also must 
prominently identify any confidential business information to be 
redacted within the comment. If a comment has so much confidential 
business information that it cannot be effectively redacted, all or 
part of that comment may not be posted on http://www.regulations.gov.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online. If you wish to 
inspect the agency's public docket file in person, please see the FOR 
FURTHER INFORMATION CONTACT

[[Page 727]]

paragraph above to schedule an appointment.

Regulatory Certifications

Administrative Procedure Act

    The Department's implementation of this rule as an interim final 
rule, with provision for post-promulgation public comment, is based on 
section 553(b) of the Administrative Procedure Act. 5 U.S.C. 553(b). 
Under section 553(b), an agency may issue a rule without notice of 
proposed rulemaking and the pre-promulgation opportunity for public 
comment, with regard to ``interpretative rules, general statements of 
policy, or rules of agency organization, procedure, or practice.'' The 
Department has determined that many of the revisions being made are 
interpretive rules issued by the Department, as they merely advise the 
public of the Department's construction of the new statute and clarify 
the application of the substantive law. Moreover, the Department has 
determined that the remaining revisions are rules of agency procedure 
or practice, as they do not change the substantive standards the agency 
applies in implementing the FOIA. The Department has also concluded 
that there is good cause to find that a pre-publication public comment 
period is unnecessary. These revisions to the existing regulations in 
28 CFR part 16 merely implement the statutory changes, align the 
Department's regulations with controlling judicial decisions, and 
clarify agency procedures.

Regulatory Flexibility Act

    This rule amends the Department of Justice's regulations under the 
FOIA to incorporate certain changes made by the FOIA Improvement Act of 
2016, and to reflect developments in the case law and to streamline the 
description of the factors to be considered when making fee waiver 
determinations. Because the Department is not required to publish a 
notice of proposed rulemaking for this rule, a Regulatory Flexibility 
analysis is not required. 5 U.S.C. 603(a).

Executive Orders 12866 and 13563--Regulatory Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), Principles of Regulation, and in accordance with Executive Order 
13563 ``Improving Regulation and Regulatory Review,'' section 1(b), 
General Principles of Regulation. The Department of Justice has 
determined that this rule is not a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), Regulatory Planning and 
Review, and accordingly this rule has not been reviewed by the Office 
of Management and Budget. Further, both Executive Orders 12866 and 
13563 direct agencies to assess all costs and benefits of available 
regulatory alternatives and, if regulation is necessary, to select 
regulatory approaches that maximize net benefits (including potential 
economic, environmental, public health and safety effects, distributive 
impacts, and equity). Executive Order 13563 emphasizes the importance 
of quantifying both costs and benefits, of reducing costs, of 
harmonizing rules, and of promoting flexibility. The Department has 
assessed the costs and benefits of this regulation and believes that 
the regulatory approach selected maximizes net benefits.

Executive Order 13132--Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, the Attorney General has determined that this rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. See 5 
U.S.C. 804. This rule will not result in an annual effect on the 
economy of $100 million or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

List of Subjects in 28 CFR Part 16

    Administrative practice and procedure, Freedom of information, 
Privacy.

    Accordingly, for the reasons stated in the preamble, 28 CFR Chapter 
1, part 16 is amended as follows:

PART 16--DISCLOSURE OR PRODUCTION OF MATERIAL OR INFORMATION

0
1. Revise the authority citation for part 16 to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510, 
534; 31 U.S.C. 3717.


Sec.  16.1   [Amended]

0
2. In Sec.  16.1, remove the last sentence of paragraph (a).

0
3. In Sec.  16.2, revise the first sentence, to read as follows:


Sec.  16.2   Proactive disclosure of Department records.

    Records that are required by the FOIA to be made available for 
public inspection in an electronic format may be accessed through the 
Department's Web site at http://justice.gov/oip/04_2.html. * * *

0
4. In Sec.  16.4, revise the first sentence of paragraph (d) 
introductory text, to read as follows:


Sec.  16.4   Responsibility for responding to requests.

* * * * *
    (d) * * * When reviewing records located by a component in response 
to a request, the component shall determine whether another component 
or another agency of the Federal Government is better able to determine 
whether the record is exempt from disclosure under the FOIA. * * *
* * * * *

0
5. In Sec.  16.5, add a sentence at the end of paragraph (c), to read 
as follows:


Sec.  16.5   Timing of responses to requests.

* * * * *
    (c) * * * The component must also alert requesters to the 
availability of the Office of Government Information Services to 
provide dispute resolution services.
* * * * *

0
6. In Sec.  16.6, add a sentence at the end of paragraph (c), and add 
paragraph (e)(5), to read as follows:


Sec.  16.6   Responses to requests.

* * * * *
    (c) * * *. The component must inform the requester of the 
availability

[[Page 728]]

of the FOIA Public Liaison to offer assistance.
* * * * *
    (e) * * *
    (5) A statement notifying the requester of the assistance available 
from the component's FOIA Public Liaison and the dispute resolution 
services offered by the Office of Government Information Services.
* * * * *

0
7. In Sec.  16.8:
0
a. Remove the term ``60 calendar days'' in paragraph (a) and add in its 
place ``90 calendar days'';
0
b. Redesignate paragraph (d) as paragraph (e); and
0
c. Add a new paragraph (d), to read as follows:


Sec.  16.8   Administrative appeals.

* * * * *
    (d) Engaging in dispute resolution services provided by OGIS. 
Mediation is a voluntary process. If a component agrees to participate 
in the mediation services provided by the Office of Government 
Information Services, it will actively engage as a partner to the 
process in an attempt to resolve the dispute.
* * * * *

0
6. In Sec.  16.10:
0
a. Revise paragraph (b)(4) and Example 3 to paragraph (b)(4);
0
b. Revise the first sentence of paragraph (b)(6); and
0
c. Revise paragraph (d)(2) and paragraph (k), to read as follows:


Sec.  16.10   Fees.

* * * * *
    (b) * * *
* * * * *
    (4) Educational institution is any school that operates a program 
of scholarly research. A requester in this fee category must show that 
the request is made in connection with the requester's role at the 
educational institution. Components may seek assurance from the 
requester that the request is in furtherance of scholarly research and 
will advise requesters of their placement in this category.
* * * * *
    Example 3. A student who makes a request in furtherance of the 
student's coursework or other school-sponsored activities and 
provides a copy of a course syllabus or other reasonable 
documentation to indicate the research purpose for the request, 
would qualify as part of this fee category.
* * * * *
    (6) Representative of the news media is any person or entity that 
actively gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience. * * *
* * * * *
    (d) * * *
    (2) If a component fails to comply with the FOIA's time limits in 
which to respond to a request, it may not charge search fees, or, in 
the instances of requests from requesters described in paragraph (d)(1) 
of this section, may not charge duplication fees, except as described 
in paragraphs (d)(2)(i) through (iii) of this section.
    (i) If a component has determined that unusual circumstances as 
defined by the FOIA apply and the agency provided timely written notice 
to the requester in accordance with the FOIA, a failure to comply with 
the time limit shall be excused for an additional 10 days.
    (ii) If a component 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 component may charge search fees, or, in 
the case of requesters described in paragraph (d)(1) of this section, 
may charge duplication fees if the following steps are taken. The 
component must have provided timely written notice of unusual 
circumstances to the requester in accordance with the FOIA and the 
component 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 component may charge all applicable fees incurred in 
the processing of the request.
    (iii) If a court has determined that exceptional circumstances 
exist as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
* * * * *
    (k) Requirements for waiver or reduction of fees. (1) Requesters 
may seek a waiver of fees by submitting a written application 
demonstrating how disclosure of the requested information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester.
    (2) A component must furnish records responsive to a request 
without charge or at a reduced rate when it determines, based on all 
available information, that disclosure of the requested information is 
in the public interest because it is likely to contribute significantly 
to public understanding of the operations or activities of the 
government and is not primarily in the commercial interest of the 
requester. In deciding whether this standard is satisfied the component 
must consider the factors described in paragraphs (k)(2)(i) through 
(iii) of this section:
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the government. The subject of the request 
must concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated.
    (ii) Disclosure of the requested information would be likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure 
of information that already is in the public domain, in either the same 
or a substantially identical form, would not be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (B) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public must be 
considered. Components will presume that a representative of the news 
media will satisfy this consideration.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. To determine whether disclosure of the 
requested information is primarily in the commercial interest of the 
requester, components will consider the following criteria:
    (A) Components must identify whether the requester has any 
commercial interest that would be furthered by the requested 
disclosure. A commercial interest includes any commercial, trade, or 
profit interest. Requesters must be given an opportunity to provide 
explanatory information regarding this consideration.
    (B) If there is an identified commercial interest, the component 
must determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of paragraphs (k)(2)(i) and (ii) of this

[[Page 729]]

section are satisfied and any commercial interest is not the primary 
interest furthered by the request. Components ordinarily will presume 
that when a news media requester has satisfied the requirements of 
paragraphs (k)(2)(i) and (ii) of this section, the request is not 
primarily in the commercial interest of the requester. Disclosure to 
data brokers or others who merely compile and market government 
information for direct economic return will not be presumed to 
primarily serve the public interest.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the component and should address the 
criteria referenced above. A requester may submit a fee waiver request 
at a later time so long as the underlying record request is pending or 
on administrative appeal. When a requester who has committed to pay 
fees subsequently asks for a waiver of those fees and that waiver is 
denied, the requester shall be required to pay any costs incurred up to 
the date the fee waiver request was received.

    Dated: December 21, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016-31508 Filed 1-3-17; 8:45 am]
 BILLING CODE 4410-BE-P