Office of Government Information Services, 95547-95550 [2016-31010]

Agencies

• National Archives and Records Administration
• Office of Government Information Services

[Federal Register Volume 81, Number 249 (Wednesday, December 28, 2016)]
[Proposed Rules]
[Pages 95547-95550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31010]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

Office of Government Information Services

36 CFR Chapter XII

[FDMS No. NARA-16-0004; NARA-2017-001]
RIN 3095-AB88


Office of Government Information Services

AGENCY: Office of Government Information Services, NARA.

ACTION: Proposed rule.

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SUMMARY: The Open Government Act of 2007 created the Office of 
Government Information Services (OGIS) within the National Archives and 
Records Administration (NARA). OGIS has three statutorily defined 
functions: OGIS offers mediation services to help resolve FOIA 
disputes; reviews agency FOIA policies, procedures and compliance; and 
identifies procedures and methods for improving compliance under the 
FOIA. This proposed rule sets out the implementing guidance and 
procedures by which OGIS carries out its statutory mission, and 
explains OGIS's role in the FOIA process.

DATES: Submit comments on or before February 27, 2017.

ADDRESSES: You may submit comments on this rule, identified by RIN 
3095-AB88, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: Regulation_comments@nara.gov. Include RIN 3095-AB88 
in the subject line of the message.
     Mail (for paper, disk, or CD-ROM submissions): Send 
comments to: Regulations Comments Desk (External Policy Program, 
Strategy & Performance Division (SP)); Suite 4100; National Archives 
and Records Administration; 8601 Adelphi Road; College Park, MD 20740-
6001.
     Hand delivery or courier: Deliver comments to front desk 
at 8601 Adelphi Road, College Park, MD, addressed to: Regulations 
Comments Desk, External Policy Program; Suite 4100.

FOR FURTHER INFORMATION CONTACT: For information or questions about the 
regulation and the comments process, contact Kimberly Keravuori, 
External Policy Program Manager, by email at 
regulation_comments@nara.gov, or by telephone at 301.837.3151. For 
information or questions on the OGIS program, contact Nikki Gramian, 
Deputy Director, OGIS, by telephone at 1-877-684-6448.

SUPPLEMENTARY INFORMATION:

Background

    The OPEN Government Act of 2007 (Pub. L. 110-175, 121 Stat. 2524) 
amended the Freedom of Information Act, or FOIA (5 U.S.C. 552, as 
amended), and created the Office of Government Information Services 
(OGIS) within the National Archives and Records Administration. OGIS 
began receiving FOIA cases in September 2009.
    This proposed regulation explains OGIS's statutory role in the FOIA 
process and sets out procedures for one of OGIS's primary functions: 
Assisting agencies and FOIA requesters with efforts to resolve FOIA 
disputes. In the future, this regulation will also include provisions 
on OGIS's other functional areas, which are currently under 
development.

OGIS's Mediation Function

    Title 5, United State Code Sec.  552(h)(3), states that ``The 
Office of Government Information Services shall offer mediation 
services to resolve disputes between persons making requests under this 
section and administrative agencies as a non-exclusive alternative to 
litigation. . .'' As a result, we offer dispute resolution services, 
which is an umbrella term encompassing formal mediation (where a 
mediator conducts formal sessions to assist in resolving a dispute), 
facilitation (an informal process in which a mediator aids 
communication among and between the parties to resolve a dispute), and 
other commonly recognized resolution methods. OGIS's dispute resolution 
services may also include OGIS's ombuds services (which include 
providing information) when those services aid in resolving disputes. 
Our goal is to be an alternative to litigation by facilitating 
communication between a requester and the agency and by attempting to 
resolve disputes arising out of requests for information. We provide 
all our dispute resolution services in accordance with the 
Administrative Dispute Resolution Act (ADRA), 5 U.S.C. 571, et seq.
    Both FOIA requesters and agencies may contact us to help resolve a 
dispute at any point in the FOIA process. We do not advocate on behalf 
of a requester or agency; the office promotes a fair FOIA process and 
works with parties to reach a mutually agreeable resolution. If the 
parties agree that the dispute has been resolved, we will close the 
case and may follow-up with the agency to confirm that any agreed-upon 
action was taken. However, if the parties cannot agree on a resolution, 
OGIS will issue a final response letter to the parties indicating that 
we are concluding the dispute resolution efforts.

Regulatory Analysis

Review Under Executive Orders 12866 and 13563

    Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 
(September 30, 1993), and Executive Order 13563, Improving Regulation 
and Regulation Review, 76 FR 23821 (January 18, 2011), 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). 
This proposed rule is ``significant'' under section 3(f) of Executive 
Order 12866 because it establishes OGIS implementing regulatory 
provisions for the first time. The Office of Management and Budget 
(OMB) has reviewed this proposed regulation.

Review Under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.)

    This review requires an agency to prepare an initial regulatory 
flexibility analysis and publish it when the agency publishes the 
proposed rule. This requirement does not apply if the agency certifies 
that the rule will not, if promulgated, have a significant economic 
impact on a substantial number of small entities (5 U.S.C. 603). NARA 
certifies, after review and analysis, that this proposed rule will not 
have a significant adverse economic

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impact on small entities. The proposed regulation interprets OGIS's 
mandate under its authorizing statute, and any requirements within the 
proposed regulation apply to Federal agencies subject to FOIA. The 
proposed rule also eases burdens on members of the public who encounter 
difficulty in accessing Federal information; and encourages the use of 
alternative dispute resolution methods as an additional means by which 
people or businesses may receive aid in resolving such difficulties.

Review Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et 
seq.)

    This proposed rule contains information collection activities that 
are subject to review and approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act. We refer to the 
following OMB-approved information collection in Sec.  1291.12 of this 
regulation: OMB control No. 3095-0068, Request for Assistance and 
Consent (NA Form 10003), approved through December 31, 2016. We 
published the information collection notice in the Federal Register in 
June 2010 (75 FR 36122, June 24, 2010) for public comment, and the 
notice of OMB review in the Federal Register in September 2010 (75 FR 
57819, September 22, 2010), providing a second opportunity for public 
comment.

Review Under Executive Order 13132, Federalism, 64 FR 43255 (August 4, 
1999)

    Review under Executive Order 13132 requires that agencies review 
regulations for Federalism effects on the institutional interest of 
states and local governments, and, if the effects are sufficiently 
substantial, prepare a Federal assessment to assist senior policy 
makers. This proposed rule will not have any direct effects on State 
and local governments within the meaning of the Executive Order. 
Therefore, this regulation does not require a Federalism assessment.

List of Subjects in 36 CFR Part 1291

    Alternative dispute resolution, Freedom of Information Act, 
Information, Mediation, Record-keeping requirements.
    For the reasons stated in the preamble, NARA proposes to amend by 
add Subchapter I of chapter XII, title 36 of the Code of Federal 
Regulations, to read as follows:

Chapter XII--National Archives and Records Administration

Subchapter I--Office of Government Information Services (OGIS)

PART 1291--OFFICE OF GOVERNMENT INFORMATION SERVICES (OGIS) 
PROGRAMS

Subpart A--General Information
Sec.
1291.1 Scope of this part.
1291.2 Definitions.
1291.4 OGIS functions and responsibilities.
1291.6 Contact information.
Subpart B--Dispute Resolution Services
1291.10 Dispute resolution services, policies, and responsibilities.
1291.12 Requesting dispute resolution services.
1291.14 Dispute resolution process.
Subpart C--Reviews of Agency FOIA Policies, Procedures, and Compliance 
[Reserved]
Subpart D--Advisory Opinions [Reserved]

    Authority: 5 U.S.C 552, as amended; Pub. L. 110-175, 121 Stat. 
2524; 44 U.S.C. 2104(a)

Subpart A--General Information


Sec.  1291.1  Scope of this part.

    This part establishes policies and procedures for Federal agencies 
and public requesters who wish to make use of OGIS's voluntary dispute 
resolution services.


Sec.  1291.2  Definitions.

    The following definitions apply to this part:
    Agency is any organization within the executive branch of the 
Federal Government that is subject to the FOIA. This includes any 
executive department, military department, independent regulatory 
agency, Government corporation, and other establishment within the 
executive branch (including the Executive Office of the President).
    Agency records are records the agency (1) either creates or 
obtains, and (2) maintains under its control at the time of the FOIA 
request in any format, including electronic.
    Administrative appeal is a request asking an agency to 
independently review determination(s) it made in response to an initial 
FOIA request. The FOIA grants requesters the right to appeal.
    Chief FOIA officer is a designated high-level official within each 
agency who has overall responsibility for the agency's compliance with 
the FOIA.
    Confidentiality means that OGIS and the parties participating in 
dispute resolution efforts will not disclose information you provide in 
the course of dispute resolution discussions and sessions, unless an 
exception applies under the Administrative Dispute Resolution Act 
(ADRA), 5 U.S.C. 571-584.
    Dispute resolution services are the formal and informal processes 
through which a neutral third party--a mediator--assists parties to 
reach a mutually agreeable resolution to FOIA disputes. Our dispute 
resolution services include formal mediation (where a mediator conducts 
formal sessions to assist in resolving a dispute), facilitation (an 
informal process in which a mediator aids communication among and 
between the parties to resolve a dispute), and other commonly 
recognized resolution methods. They may also include our ombuds 
services (which include providing information) when the ombuds services 
aid in resolving disputes.
    Exhaustion of administrative remedies means that a requester sent 
an initial FOIA request to an agency, received a substantive response 
from the agency, filed a timely administrative appeal about the 
response, and received a final determination on that appeal. 
Constructive exhaustion of administrative remedies may also occur when 
the agency fails to meet applicable deadlines set out in 5 U.S.C. 
552(a)(6)(C)(i).
    FOIA is the Freedom of Information Act, 5 U.S.C. 552, as amended.
    FOIA request is a request submitted to a Federal agency asking for 
agency records on any topic. A FOIA request can generally be made by 
any person and to any Federal agency. A request can be a first-party 
request (requester seeking documents on themselves) or a third-party 
request (requester seeking documents on other individuals, companies, 
or topics of interest.)
    In confidence means a party provides information to the mediator 
and expressly requests that the mediator not disclose that information 
to the other party(ies) or others, except to the extent the information 
is publicly available.
    Initial FOIA request is the FOIA request a person or organization 
first submitted to the agency, prior to any appeal.
    Mediator is an OGIS staff member or an outside mediator who 
provides dispute resolution services through OGIS's program. See 
definition of dispute resolution services for more detail.
    Requester or FOIA requester means any person or organization 
requesting records from a Federal agency under the FOIA.

[[Page 95549]]

Sec.  1291.4  OGIS functions and responsibilities.

    Pursuant to 5 U.S.C. 552(h), OGIS:
    (1) Reviews agency FOIA policies and procedures;
    (2) Reviews agency compliance with the FOIA;
    (3) Identifies procedures and methods for improving compliance 
under the FOIA; and
    (4) Offers mediation services to help FOIA requesters and agencies 
resolve disputes, as a non-exclusive alternative to litigation.


Sec.  1291.6   Contact information.

    You may contact OGIS by mail at Office of Government Information 
Services (OGIS); National Archives and Records Administration (NARA); 
8601 Adelphi Road; College Park, MD 20740, by telephone at 202.741.5770 
or toll-free at 1.877.684.6448, by fax at 202.741.5769, or by email at 
ogis@nara.gov. You may also find additional information about OGIS at 
www.archives.gov/ogis.

Subpart B--Dispute Resolution Services


Sec.  1291.10  Dispute resolution services, policies, and 
responsibilities.

    (a) OGIS dispute resolution services facilitate and promote dispute 
resolution through non-binding, voluntary actions aided by an unbiased 
third party, as a non-exclusive alternative to litigation.
    (b) We perform all our dispute resolution services and 
responsibilities in accordance with the ADRA, 5 U.S.C. 571-584.
    (c) We follow the ADRA's principles for confidentiality strictly 
and do not disclose any information parties share as part of OGIS's 
dispute resolution efforts, unless an exception applies under ADRA, 5 
U.S.C. 574. Therefore, we will not disclose OGIS's dispute resolution 
discussions, materials, correspondence, notes, any draft resolutions, 
and any other material related to the dispute. This allows all parties 
in dispute resolution discussions to be forthcoming, candid, and 
without concern that either OGIS or the other party may later use any 
statements against them.
    (d) We offer dispute resolution services only at the request of one 
or more of the parties to the dispute, but we may decline to offer 
dispute resolution services when:
    (1) The requester seeks OGIS assistance concerning matters other 
than access to records under the FOIA;
    (2) The requester fails to provide the necessary information under 
Sec.  1291.12(a) of this part; or
    (3) The requester files a request for assistance with OGIS six or 
more years after the agency's decision on their FOIA request (the 
statute of limitations period for filing a lawsuit challenging an 
adverse decision under FOIA is six years (see 28 U.S.C. 2401(a) and 
Spannaus v. U.S. Dep't of Justice, 824 F.2d 52 (D.C. Cir. 1987)).
    (e) Dispute resolution services may occur only when all parties 
agree to participate.
    (1) The parties must agree to OGIS's assistance, agree that dispute 
resolution services are a supplement to, not a substitute for, the 
agency's administrative FOIA process, agree to keep the content of 
dispute resolution discussions confidential, and agree that OGIS's 
services are a non-exclusive alternative to Federal court litigation.
    (2) Agreeing to participate in dispute resolution services and to 
discuss a dispute and possible resolutions does not mean that an agency 
is admitting to noncompliance, and resolving a dispute does not 
constitute a finding that the agency did not comply with FOIA.
    (f) Once the parties agree to engage in dispute resolution 
services, they should participate fully and promptly in any meetings or 
telephone discussions arranged by OGIS as part of the dispute 
resolution process. Either party can share information with OGIS in 
confidence to enable OGIS's dispute resolution process to work as 
intended.


Sec.  1291.12   Requesting dispute resolution services.

    (a) To request OGIS dispute resolution services, either the agency 
or the FOIA requester must file a written request that includes:
    (1) Your name (individual, or representative of an agency or other 
group);
    (2) Contact information (mailing address, phone number, email 
address);
    (3) Brief description of the nature of the dispute;
    (4) Name of the agency; and
    (5) Copies of the following documents: (i) The initial FOIA 
request; (ii) any agency responses to the initial request; (iii) the 
appeal, if any; (iv) any agency responses to the appeal; and (v) any 
other relevant correspondence between the FOIA requester and the agency 
about processing the initial FOIA request or appeal.
    (b) In addition, if you are a FOIA requester, you may also need to 
submit a signed NA Form 10003, Consent to Make Inquiries and Release of 
Information and Records (available at https://ogis.archives.gov/mediation-program/request-assistance/privacy-consent-statement.htm), 
OMB control No. 3095-0068. OMB Control No. 3095-0068 governs collection 
of the information in this section and the NA Form 10003. You need to 
submit this form to OGIS only if the agency you submitted your FOIA 
request to does not already have a FOIA routine use in place allowing 
them to release information about your FOIA request to us. You may find 
out if an agency has this kind of routine use in place on our Web site 
at https://ogis.archives.gov/mediation-program/request-assistance/routine-uses.htm.
    (c) After we receive the request for dispute resolution services, 
we review the request and any enclosures, enter the request into our 
case tracking system, and assign a case number to the request.
    (d)(1) We send you an acknowledgement letter in writing within ten 
business days after we receive your request for dispute resolution 
services. The acknowledgment letter does not mean that we have 
committed to offering dispute resolution services in your case.
    (2) If your dispute resolution services request did not include 
sufficient information, the acknowledgment letter may request 
additional information or clarification. In such cases, you have 20 
business days from the date on the acknowledgment letter in which to 
send us the additional information, initiate contact to discuss the 
request, or request additional time.
    (e) If you don't provide the additional information or contact OGIS 
within 20 business days from the date on the acknowledgment letter 
requesting additional information, we may close the case. If you 
contact OGIS with additional information after the 20 business days 
expire, we will open a new case.


Sec.  1291.14  Dispute resolution process.

    (a) When we receive a request for dispute resolution services from 
one or more parties to a dispute, we review the information to 
determine if we may appropriately offer such services. To make this 
determination, we review the dispute resolution request and make sure 
it meets the requirements for dispute resolution services contained in 
36 CFR 1291.10 and 1291.12 of this part.
    (b) Once we determine that we may appropriately offer dispute 
resolution services, the other party or parties must also agree to 
engage in the process before resolution efforts can occur. If they 
agree, we assign one or more mediators to the dispute. If we determine 
that we are unable to offer dispute resolution services, we notify the 
party who requested the services,

[[Page 95550]]

explain why we are unable to provide dispute resolution services, and 
advise them of other options.
    (c) Mediators facilitate communication between the parties, 
including joint or separate discussions, to help them come to a 
mutually agreeable solution. The mediators may use all appropriate 
customary techniques associated with dispute resolution.
    (d) We do not permit the parties to make any audio or video 
recordings of dispute resolution meetings. The mediator's notes are 
confidential and we do not disclose them. The parties also agree to 
keep the content of the dispute resolution discussions confidential.
    (e) Proceedings with the mediator are informal, and the mediator 
has no authority to compel the parties to resolve the dispute. Either 
party may withdraw from the dispute resolution process at any point. If 
one of the parties initiates litigation during the course of the 
dispute resolution process, they must notify us.
    (f) If the parties reach an impasse, the mediator may raise the 
dispute to the Deputy Director of OGIS. The Deputy Director may provide 
the parties with an assessment of the situation as an additional level 
of dispute resolution efforts to assist the parties with breaking the 
impasse. Any assessment the Deputy Director provides is confidential 
and the parties may not rely upon it in any subsequent proceedings.
    (g) OGIS issues a final response letter to the parties when the 
dispute resolution process concludes. This letter documents the outcome 
of the process and any resolution the parties reach. No party may rely 
on the letter in subsequent proceedings and its contents are 
confidential unless both parties agree in writing to allow OGIS to 
disclose it publicly.

Subpart C--Reviews of Agency FOIA Policies, Procedures, and 
Compliance [Reserved]

Subpart D--Advisory Opinions [Reserved]

    Dated: December 14, 2016.
David S. Ferriero,
Archivist of the United States.
[FR Doc. 2016-31010 Filed 12-27-16; 8:45 am]
BILLING CODE 7515-01-P