Freedom of Information, Privacy Act, and Government in the Sunshine Act Procedures, 66995-67004 [2013-26373]
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66995
Rules and Regulations
Federal Register
Vol. 78, No. 217
Friday, November 8, 2013
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. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
PRIVACY AND CIVIL LIBERTIES
OVERSIGHT BOARD
6 CFR Parts 1001, 1002, and 1003
[PCLOB; Docket No. 2013–0003; Sequence
1]
RIN 0311–AA01
Freedom of Information, Privacy Act,
and Government in the Sunshine Act
Procedures
Privacy and Civil Liberties
Oversight Board.
ACTION: Final rule.
AGENCY:
The Privacy and Civil
Liberties Oversight Board is finalizing
regulations to implement the Freedom
of Information Act, the Privacy Act of
1974, and the Government in the
Sunshine Act. This rule describes the
procedures for members of the public to
request access to records. In addition,
this rule also includes procedures for
the Board’s responses to these requests,
including the timeframe for response
and applicable fees.
DATES: Effective Date: January 7, 2014.
FOR FURTHER INFORMATION CONTACT:
Diane Janosek, Chief Legal Officer,
Privacy and Civil Liberties Oversight
Board, at 202–331–4084 or
diane.janosek@pclob.gov.
SUPPLEMENTARY INFORMATION: These
regulations were published for public
comment in the Federal Register on
May 15, 2013 (78 FR 28532), the
comment period ended on July 15, 2013,
and four commenters provided input.
Two commenters were private citizens,
one commenter was a federal agency
and the other commenter was a public
interest research center. Both the federal
agency and the public interest research
center posted their comments on
www.regulations.gov and those
comments are available for public
review.
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SUMMARY:
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I. Background
The first commenter expressed
support of privacy rights in general,
although it did not comment
specifically on this rulemaking. We
appreciate the commenter’s remark.
The second commenter provided
various comments on the proposed
Freedom of Information Act procedures
at part 1001. First, the commenter
recommended that section 1001.5
include a facsimile number or electronic
mail address for the submission of FOIA
requests. We agree and have provided a
variety of means for requesters to submit
FOIA requests, including electronically.
The commenter objected to language in
the proposed section 1001.5(b) that
stated that FOIA requesters shall
reasonably describe the requested
records ‘‘with sufficient specificity
regarding names, dates, and subject
matter to permit the FOIA Officer to
locate the records.’’ The commenter
noted that the FOIA statute requires
only that records be ‘‘reasonably
described,’’ not that requesters provide
detail about the names, dates, and
subject matter. The commenter also
expressed concern that a requester’s
failure to provide this additional
information might be used as a basis for
denying a request. As the Board did not
intend to create additional procedural
requirements for FOIA requesters, we
have stricken the objected-to language
from the rule. Nonetheless, we
encourage requesters to provide as
much information about the records
they are seeking as possible, including
names, dates, and subject matter, to
facilitate cost-effective identification of
responsive records and prompt
responses.
In addition, the commenter had
several comments about the proposed
section 1001.10 concerning fees. First,
the commenter asserted that section
1001.10 was defective because it did not
include the FOIA’s statutory prohibition
on the imposition of search or
duplication fees when agencies fail to
respond to FOIA requests and the
submitter appeals within the required
timelines. The Board will adhere to the
statute. The commenter also expressed
that section 1001.10(d), concerning how
we will assess review charges, was
ambiguous. We have revised this
language to comply with the Office of
Management and Budget’s (OMB) Fee
Guidelines.
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In addition, the commenter noted that
our proposed rule did not identify a
threshold below which we would not
charge fees. We agree and have set a
threshold at $25. Lastly, with respect to
fees, the commenter asserted that the
section of the proposed regulations that
permitted aggregation of certain requests
(at section 1001.10(j) in the Notice of
Proposed Rulemaking) altered and
exceeded the scope and intention of the
law. Although the proposed section
mirrored the statutory language, the
commenter noted that OMB’s Fee
Guidelines state that agencies may only
aggregate requests when an agency
reasonable believes that requests were
separated for the ‘‘purpose of avoiding
the assessment of fees.’’ The FOIA
permits agencies to aggregate requests
for fee purposes, or to determine the
presence of unusual circumstances
affecting the timeframe for response. 5
U.S.C. 552(a)(6)(B)(iv). We have revised
the rule to include a new section
1001.8(g) that clarifies, consistent with
5 U.S.C. 552(a)(6)(B)(iv), that we may
aggregate requests for either fee or
tolling purposes. We will comply with
OMB’s Fee Guidelines when
determining whether aggregation is
appropriate for fee purposes.
The third commenter was a federal
agency and offered suggestions to clarify
the rule. The commenter provided
multiple comments and in some cases
suggested language to model agencies’
best practices. The commenter had
suggestions to add clarity to definitions;
specificity was offered on the
definitions of ‘‘person,’’ ‘‘FOIA’’ and its
inclusion of third-party-requests, ‘‘FOIA
Public Liaison,’’ ‘‘Requestor category,’’
and ‘‘fee waiver.’’ We agree with the
suggestions and the definitions were
modified.
The commenter suggested informing
requestors that although requests are
considered either FOIA or Privacy Act
requests, agencies process requests in
accordance with both laws. We agree
and have accepted the change.
The commenter suggested better
contact information for the Board. We
agree and it has been added. The
commenter suggested editing section
1001.6 to align it to changes in 5 U.S.C.
552(b) with regard to agencies
indicating, where technically feasible,
the amount of information deleted and
the exemption. We agree and section
1001.6 has been modified in part.
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The commenter suggested the rule
provide a point of contact at the
receiving agency for a referral. We agree
and it has been added.
The commenter asserted that the
language in proposed rule at section
1001.7 administrative appeals was
counter to the spirit of FOIA. We agree
and it has been changed. The
commenter further asserted that the
proposed rule at section 1001.7
administrative appeals language was too
stringent in stating that requesters cite
legal authorities in their appeals. We
agree and it has been changed. Lastly,
the commenter suggested that the
proposed rule at section 1001.7 include
a reference to the National Archives and
Records Administration Office of
Government Information Services and
the services they provide to both the
agency and the requester. We agree and
it has been added.
The commenter suggested that a
breakdown of fees be provided in
section 1001.10. We agree and it has
been added.
The commenter suggested that the
rule include language on preservation of
records and records management. While
the Board did not find it necessary to
include additional language on records
management, the Board will adhere to
applicable statutes and is committed to
proper records preservation and records
management. The Board appreciates the
commenter’s suggestions.
The fourth commenter was a public
interest research center. The comments
offered improvements to the rule. Some
of the commenter’s suggestions mirrored
the other comments, and the majority
have been accepted.
The commenter proposed that the
Chief FOIA Officer be a person other
than the Chairman. We agree and have
provided for this delegation. Currently,
the Board has delegated this function to
the Chief Administrative Officer. As the
Board is still in the process of hiring
staff and flexibility is needed, a
provision for delegation is the optimal
course at this time. The Board will
identify its FOIA point of contact on the
Board’s Web site.
The commenter suggested a change to
the definition of ‘‘confidential business
information.’’ Although we appreciate
the commenter’s perspective, the Board
has decided to retain the language
which mirrors the FOIA statute.
The commenter asserted the section
on ‘‘unusual circumstances’’ was
inconsistent with the FOIA in that the
proposed rule deleted the words ‘‘field
facilities.’’ The deletion of the reference
to ‘‘field facilities’’ is based on the fact
that the Board does not have any field
facilities. The Board has used the words
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‘‘physically separate facilities’’ in the
event that in the future the Board
maintains records in more than one
location, although at this time it does
not.
The commenter asserted that in
section 1001.2 the words ‘‘all
practicable speed’’ were omitted. We
agree and accept the comment.
The commenter asserted that the
proposed rule for exemption (b)(5) did
not follow the language in the statute.
We agree and accept the comment.
The commenter asserted that the
proposed rule on the process for
consultations and referrals did not
follow the language in the statute that
permits this practice only with agencies
having a ‘‘substantial interest’’ in the
record. We agree and accept the
comment. The commenter also asserted
that the proposed rule on the process for
consultations and referrals did not
follow the statutory language for
classification matters. We agree and
accept the change.
The commenter suggested that the
language on administrative appeals was
too ambiguous. We agree. We accepted
the suggestion offered by the federal
agency to clarify the language.
The commenter asserted that the
provision on multi-track processing was
too vague. Although we appreciate the
comment, the language follows best
practices language used by other
agencies.
The commenter asserted that the
proposed provision on expedited
processing contains confusing and
inappropriate language. The commenter
suggested the deletion of the words
‘‘beyond the public’s right to know
about government activity generally.’’
We agree and accept the comment. The
commenter asserted the proposed rule
on the Sunshine Act at section 1003.3(b)
did not advance the purpose of the
statute in its proposed language
addressing the process required to
terminate an open meeting. We agree
and have changed this section to reflect
the more balanced approach advocated
by the commenter, which is now
consistent with the statute.
The commenter disagreed with
proposed procedures at sections
1003.7(a) and 1003.7(c) addressing
changes prior to a publicly announced
meeting, such as its location or agenda,
suggesting that the proposed language
provided a ‘‘potential loophole’’ to the
statutory requirement. We appreciate
the commenter’s perspective. The Board
has modified these sections to adhere
more closely to the statutory language.
If an item is deleted from an open
meeting agenda, and if after the open
meeting the Board desires to address the
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item, the item will be included in the
agenda for the next open meeting.
The commenter offered that the words
‘‘in a place easily accessible’’ be added
to section 1003.9. We agree and accept
the change. The Board now has an
operational Web site at www.pclob.gov.
The commenter offered that the
presumption of openness be added to
the proposed rule. We agree and accept
the change.
The Board will comply with all
applicable laws in its FOIA, Privacy
Act, and Sunshine Act administration,
including Presidential memoranda and
Attorney General guidance. We thank
all commenters for their thoughtful
input.
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
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1001.8 Time frame for Board response.
1001.9 Business information.
1001.10 Fees.
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
6 CFR Part 1001
Administrative practice and
procedure, Confidential business
information, Freedom of information,
Privacy.
6 CFR Part 1002
Administrative practice and
procedure, Privacy.
6 CFR Part 1003
Administrative practice and
procedure, Public availability of
information, Meetings.
Dated: October 30, 2013.
Diane Janosek,
Chief Legal Officer.
In consideration of the foregoing, the
Board amends 6 CFR chapter X, by
adding parts 1001–1003, to read as
follows:
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PART 1001—PROCEDURES FOR
DISCLOSURE OF RECORDS UNDER
THE FREEDOM OF INFORMATION ACT
Sec.
1001.1 Purpose and scope.
1001.2 Definitions.
1001.3 Availability of records.
1001.4 Categories of exemptions.
1001.5 Requests for records.
1001.6 Responsibility for responding to
requests.
1001.7 Administrative appeals.
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Authority: 5 U.S.C. 552, as amended;
Executive Order 12600.
§ 1001.1
Purpose and scope.
The regulations in this part
implement the provisions of the FOIA.
§ 1001.2
Definitions.
The following definitions apply to
this part:
Board means the Privacy and Civil
Liberties Oversight Board, established
by the Implementing Recommendations
of the 9/11 Commission Act of 2007,
Public Law 110–53.
Chairman means the Chairman of the
Board, as appointed by the President
and confirmed by the Senate under
section 801(a) of the Implementing
Recommendations of the 9/11
Commission Act of 2007, Public Law
110–53, or any person to whom the
Board has delegated authority for the
matter concerned.
Chief FOIA Officer means the senior
official to whom the Board delegated
responsibility for efficient and
appropriate compliance with the FOIA,
currently delegated to the Chief
Administrative Officer.
Commercial use request means a
FOIA request from or on behalf of a
person who seeks information for a use
or purpose that furthers his or her
commercial, trade, or profit interests,
including pursuit of those interests
through litigation.
Confidential business information
means trade secrets and confidential,
privileged, or proprietary business or
financial information submitted to the
Board by a person.
Direct costs mean in the case of
commercial use requesters those
expenses the Board has actually
incurred to search for, duplicate, and
review documents in response to a
FOIA request. Direct costs include, but
are not limited to, the salary of the
employee performing the work and
costs associated with duplication.
Educational institution means a
preschool, a public or private
elementary or secondary school, an
institution of undergraduate or graduate
higher education, an institution of
professional education, or an institution
of vocational education, which operates
a program or programs of scholarly
research.
Fee waiver means the waiver or
reduction of processing fees if a
requester can demonstrate that OMB’s
Fee Guidelines’ standards are satisfied,
including that the information is in the
public interest and is not a commercial
interest.
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FOIA means the Freedom of
Information Act, 5 U.S.C. 552, as
amended. The FOIA applies to thirdparty requests for documents
concerning the general activities of the
government and the Board in particular.
A request by a U.S. citizen or an
individual lawfully admitted for
permanent residence for access to his or
her own records is considered a Privacy
Act request, under the Privacy Act of
1974, 5 U.S.C. 552a, as amended. See 6
CFR 1002.3.
FOIA Officer means the individual to
whom the Board has delegated authority
to carry out the Board’s day-to-day FOIA
administration.
FOIA Public Liaison means the
individual designated by the Chairman
to assist FOIA requesters with concerns
about the Board’s processing of their
FOIA request, including assistance in
resolving disputes.
Non-commercial scientific institution
means an organization operated solely
for the purpose of conducting scientific
research, the results of which are not
intended to promote any product or
research, and not operated on a
commercial basis.
Person includes an individual,
partnership, corporation, association, or
public or private organization other than
an agency.
Record means any writing, drawing,
map, recording, diskette, DVD, CD–
ROM, tape, film, photograph, or other
documentary material, regardless of
medium, by which information is
preserved, including documentary
material stored electronically.
Redact means delete or mark over.
Representative of the news media
means any person or entity that gathers
information of potential public 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.
Requester category means one of the
three categories in which requesters will
be placed for the purpose of
determining whether a requester will be
charged fees for search, review, or
duplication. They are:
(1) Commercial requestors,
(2) Non-commercial scientific or
educational institutions or news media
requestors, and
(3) All other requestors.
Submitter means any person or entity
from whom the Board obtains
confidential business information,
directly or indirectly.
Unusual circumstances means, to the
extent reasonably necessary for the
proper processing of a FOIA request:
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(1) The need to search for and collect
the requested records from physically
separate facilities;
(2) The need to search for, collect and
appropriately examine a voluminous
amount of separate and distinct records
which are demanded in a single request;
or
(3) The need for consultation, which
shall be conducted with all practicable
speed, with another agency having a
substantial interest in the determination
of the request.
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§ 1001.3
Availability of records.
(a) In accordance with 5 U.S.C.
552(a)(1), the Board publishes the
following records in the Federal
Register and makes an index of the
records publicly available:
(1) Descriptions of the Board’s
organization and the established places
at which, the employees from whom,
and the methods by which, the public
may obtain information, submit
documents, or obtain decisions;
(2) Statements of the general course
and method by which the Board’s
functions are channeled and
determined, including the nature and
requirements of all formal and informal
procedures available;
(3) Rules of procedure, descriptions of
forms available or the places at which
forms may be obtained, and instructions
as to the scope and contents of all
papers, reports, or examinations;
(4) Substantive rules of general
applicability adopted as authorized by
law and statements of general policy or
interpretations of general applicability
formulated and adopted by the Board;
and
(5) Each amendment, revision, or
repeal of any material listed in
paragraphs (a)(1) through (4) of this
section.
(b) In accordance with 5 U.S.C.
552(a)(2), the Board shall make the
following materials available for public
inspection and copying:
(1) Statements of policy and
interpretation that have been adopted by
the Board and not published in the
Federal Register;
(2) Administrative staff manuals and
instructions to staff that affect a member
of the public;
(3) Copies of all records, regardless of
the form or format, which have been
released to any person under paragraph
(c) of this section and that, because of
their nature or subject matter, the Board
determines have become or are likely to
become the subject of subsequent
requests for substantially the same
records; and
(4) A general index of the records
referred to in paragraph (b)(3) of this
section.
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(c) In accordance with 5 U.S.C.
552(a)(3), the Board shall make
available, upon proper request, as
described in section 5 of this part, all
non-exempt Board records, or portions
of records, not previously made public
under paragraphs (a) and (b) of this
section.
(d) The FOIA applies only to Board
records in existence at the time of the
request; the FOIA does not require that
the Board create new records in order to
respond to FOIA requests. When
responsive records are located, the
Board adopts a presumption of
disclosure and openness.
§ 1001.4
Categories of exemptions.
(a) The FOIA does not require
disclosure of matters that are:
(1) Specifically authorized under
criteria established by an executive
order to be kept secret in the interest of
national defense or foreign policy and
are, in fact, properly classified under
executive order;
(2) Related solely to the internal
personnel rules and practices of the
Board;
(3) Specifically exempted from
disclosure by statute (other than the
Government in the Sunshine Act, 5
U.S.C. 552b, as amended), provided that
such statute:
(i) Requires that the matters be
withheld from the public in such a
manner as to leave no discretion on the
issue, establishes particular criteria for
withholding, or refers to particular types
of matters to be withheld; and
(ii) If enacted after October 28, 2009,
specifically cites to Exemption 3 of the
FOIA, 5 U.S.C. 552(b)(3);
(4) Trade secrets and commercial or
financial information obtained from a
person and privileged or confidential;
(5) Inter-agency or intra-agency
memoranda or letters, which would not
be available at law to a party other than
an agency in litigation with the Board;
(6) Personnel and medical files and
similar files the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy;
(7) Records or information compiled
for law enforcement purposes, but only
to the extent that the production of such
law enforcement records or information:
(i) Could reasonably be expected to
interfere with enforcement proceedings;
(ii) Would deprive a person of a right
to a fair trial or impartial adjudication;
(iii) Could reasonably be expected to
constitute an unwarranted invasion of
personal privacy;
(iv) Could reasonably be expected to
disclose the identity of a confidential
source, including a state, local, or
foreign agency or authority or any
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private institution that furnished
information on a confidential basis, and,
in the case of a record or information
compiled by a criminal investigation, or
by an agency conducting a lawful
national security intelligence
investigation, information furnished by
a confidential source;
(v) Would disclose techniques and
procedures for law enforcement
investigations or prosecutions or would
disclose guidelines for law enforcement
investigations or prosecutions if such
disclosure could reasonably be expected
to risk circumvention of the law; or
(vi) Could reasonably be expected to
endanger the life or physical safety of
any individual.
(8) Contained in or related to
examination, operating, or condition
reports prepared by, on behalf of, or for
the use of an agency responsible for the
regulation or supervision of financial
institutions; or
(9) Geological and geophysical
information and data, including maps,
concerning wells.
(b) [Reserved]
§ 1001.5
Request for records.
(a) You may request copies of records
under this part by email to FOIA@
pclob.gov or in writing addressed to
FOIA Officer, Privacy and Civil
Liberties Oversight Board, 2100 K Street
NW., Suite 500, Washington, DC 20427.
(b) Your request shall reasonably
describe the records sought with
sufficient specificity, and when
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. 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.
(c) 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.
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§ 1001.6 Responsibility for responding to
requests.
(a) In general. The Board delegates
authority to grant or deny FOIA requests
in whole or in part to the FOIA Officer.
When conducting a search for
responsive records, the FOIA Officer
generally will search for records in
existence on the date of the search. If
another date is used, the FOIA Officer
shall inform the requester of the date
used.
(b) Responses. The FOIA Officer will
notify you of his or her determination to
grant or deny your FOIA request in the
time frame stated in § 1001.8. The Board
will release reasonably segregable nonexempt information. For any adverse
determination, including those
regarding any disputed fee matter; a
denial of a request for a fee waiver; or
a determination to withhold a record, in
whole or in part, that a record does not
exist or cannot be located; or to deny a
request for expedited processing; the
notice shall include the following
information:
(1) The name(s) of any person
responsible for the determination to
deny the request in whole or in part;
(2) A brief statement of the reason(s)
for the denial, including any FOIA
exemption applied in denying the
request. The FOIA Officer will indicate,
if technically feasible, the amount of
information deleted and the exemption
under which a deletion is made on the
released portion of the record, unless
including that indication would harm
an interest protected by the exemption;
(3) An estimate of the volume of
information withheld, if applicable.
This estimate does not need to be
provided if it is ascertainable based on
redactions in partially disclosed records
or if the disclosure of the estimate
would harm an interest protected by an
applicable FOIA exemption; and
(4) A statement that the adverse
determination may be appealed and a
description of the requirements for an
appeal under § 1001.7.
(c) Consultations and referrals.
(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. If the FOIA
Officer determines that another agency
is better able to evaluate the releasibility
of the record, the FOIA Officer shall:
(i) Respond to the FOIA requester
after consulting with any other federal
agency that has a substantial interest in
the record; or
(ii) Refer the responsibility for
responding to the request to the
department or agency best able to
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determine whether to disclose it (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.
(2) Whenever a request is made for
information that is classified, the FOIA
Officer shall refer the responsibility for
responding to that portion of the request
to the agency that originated the
information, or has the primary interest
in it, as appropriate. Whenever a record
contains information that the Board has
derivatively classified because it
contains information classified by
another agency, the FOIA Officer shall
refer the responsibility for responding to
the request regarding that information to
the agency that classified the underlying
information or originated the record.
(3) If responsibility for responding to
a request is referred to another
department or agency, the FOIA Officer
shall notify you of the referral. This
notice shall identify the part of the
request that has been referred and the
name of each department or agency to
which the request, or part of the request,
has been referred, when appropriate and
available, the notice will include a point
of contact for the referral agency or
department.
§ 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, 2100 K Street
NW., Suite 500, Washington, DC 20427.
(b) Your appeal must be in writing
and received by the Chief FOIA Officer
within 60 days of the date of the letter
denying your request, in whole or in
part. 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 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) The Chief FOIA Officer shall
respond to all administrative appeals in
writing and within the time frame stated
in § 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
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66999
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 ogis@
nara.gov, or via the telephone at 202–
741–5770 or 877–684–6448. Facsimile is
also available at 202–741–5769.
§ 1001.8
Time frame for Board response.
(a) In general. The Board ordinarily
shall respond to requests according to
their order of receipt.
(b) Multi-track processing. The Board
may use two or more processing tracks
by distinguishing between simple and
more complex requests based on the
amount of work or time needed to
process the request.
(c) Initial decisions. The Board shall
determine whether to comply with a
FOIA request within 20 working days
after our receipt of the request, unless
the time frame for response is extended
due to unusual circumstances as further
described in paragraph (f) of this
section. A request is received by the
Board, for purposes of commencing the
20-day timeframe for its response, on
the day it is received by the FOIA
Officer or, in any event, not later than
ten days after the request is first
received by any Board office.
(d) Administrative appeals. The Chief
FOIA Officer shall determine whether to
affirm or overturn a decision subject to
administrative appeal within 20
working days after receipt of the appeal,
unless the time frame for response is
extended in accordance with subsection
(e) of this section.
(e) Tolling timelines. We may toll the
20-day timeframe set forth in paragraphs
(c) or (d) of this section:
(1) One time to await information that
we reasonably requested from you, as
permitted by 5 U.S.C. 552(a)(6)(A)(iii)(I);
(2) As necessary to clarify with you
issues regarding the fee assessment.
(3) If we toll the time frame for
response under paragraphs (e)(1) or (2)
of this section, the tolling period ends
upon our receipt of your response.
(f) Unusual circumstances. In the
event of unusual circumstances, we may
extend the time frame for response
provided in paragraphs (c) or (d) of this
section by providing you with written
notice of the unusual circumstances and
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the date on which a determination is
expected to be made. Where the
extension is for more than ten working
days, we will provide you with an
opportunity either to modify your
request so that it may be processed
within the statutorily-prescribed time
limits or to arrange an alternative time
period for processing your request or
modified request.
(g) Aggregating requests. When we
reasonably believe that multiple
requests submitted by a requester, or by
a group of requesters acting in concert,
involving clearly related matters, can be
viewed as a single request that involves
unusual circumstances, we may
aggregate the requests for the purposes
of fees and processing activities, which
may result in an extension of the
processing time.
(h) Expedited processing. You may
request that the Board expedite
processing of your FOIA request. To
receive expedited processing, you must
demonstrate a compelling need for such
processing.
(1) For requests for expedited
processing, a ‘‘compelling need’’
involves:
(i) Circumstances in which the lack of
expedited treatment could reasonably be
expected to pose an imminent threat to
the life or physical safety of an
individual; or
(ii) A request made by a person
primarily engaged in disseminating
information, with a time urgency to
inform the public of actual or alleged
federal government activity.
(2) Your request for expedited
processing must be in writing and may
be made at the time of the initial FOIA
request or at any later time.
(3) Your request for expedited
processing must include a statement,
certified to be true and correct to the
best of your knowledge and belief,
explaining in detail the basis for
requesting expedited processing. If you
are a person primarily engaged in
disseminating information, you must
establish a particular urgency to inform
the public about the federal government
activity involved in the request.
(4) The FOIA Officer will decide
whether to grant or deny your request
for expedited processing within ten
calendar days of receipt. You will be
notified in writing of the determination.
Appeals of adverse decisions regarding
expedited processing shall be processed
expeditiously.
§ 1001.9
Business information.
(a) Designation of confidential
business information. In the event a
FOIA request is made for confidential
business information previously
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submitted to the Government by a
commercial entity or on behalf of it
(hereinafter ‘submitter’), the regulations
in this section apply. When submitting
confidential business information, you
must use a good-faith effort to designate,
by use of appropriate markings, at the
time of submission or at a reasonable
time thereafter, any portions of your
submission that you consider to be
exempt from disclosure under FOIA
Exemption 4, 5 U.S.C. 552(b)(4). Your
designation will expire ten years after
the date of submission unless you
request, and provide justification for, a
longer designation period.
(b) Notice to submitters. Whenever
you designate confidential business
information as provided in paragraph (a)
of this section, or the Board has reason
to believe that your submission may
contain confidential business
information, we will provide you with
prompt written notice of a FOIA request
that seeks your business information.
The notice shall:
(1) Give you an opportunity to object
to disclosure of your information, in
whole or in part;
(2) Describe the business information
requested or include copies of the
requested records or record portions
containing the information; and
(3) Inform you of the time frame in
which you must respond to the notice.
(c) Opportunity to object to disclosure.
The Board shall allow you a reasonable
time to respond to the notice described
in paragraph (b) of this section. If you
object to the disclosure of your
information, in whole or in part, you
must provide us with a detailed written
statement of your objection. The
statement must specify all grounds for
withholding any portion of the
information under any FOIA exemption
and, when relying on FOIA Exemption
4, it must explain why the information
is a trade secret or commercial or
financial information that is privileged
and confidential. If you fail to respond
within the time frame specified in the
notice, the Board will conclude that you
have no objection to disclosure of your
information. The Board will only
consider information that we receive
within the time frame specified in the
notice.
(d) Notice of intent to disclose. The
Board will consider your objection and
specific grounds for non-disclosure in
deciding whether to disclose business
information. Whenever the Board
decides to disclose business information
over your objection, we will provide
you with written notice that includes:
(1) A statement of the reasons why
each of your bases for withholding were
not sustained;
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(2) A description of the business
information to be disclosed; and
(3) A specified disclosure date, which
shall be a reasonable time after the
notice.
(e) Exceptions to the notice
requirement. The notice requirements of
paragraphs (c) and (d) of this section
shall not apply if:
(1) The Board determines that the
information shall not be disclosed;
(2) The information lawfully has been
published or has been officially made
available to the public;
(3) Disclosure of the information is
required by statute (other than the
FOIA) or by a regulation issued in
accordance with the requirements of
Executive Order 12600;
(4) The designation made by the
submitter under paragraph (a) of this
section appears obviously frivolous,
except that, in such a case, the Board
shall, within a reasonable time prior to
the date the disclosure will be made,
give the submitter written notice of the
final decision to disclose the
information.
(f) Notice to requesters. Whenever we
provide a submitter with the notice
described in paragraph (b) of this
section, we also will provide notice to
the requester that notice and
opportunity to object to the disclosure
are being provided to the submitter.
§ 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.
(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
the central processing unit 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
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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.
(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.
(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.
(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 requests.
(i) 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.
(j) 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
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aggregate those requests and charge
accordingly.
(k) 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 days of the date
of billing.
(l) 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 be
equal to or exceed $25, for the Board to
require payment of fees.
PART 1002—IMPLEMENTATION OF
THE PRIVACY ACT OF 1974
Sec.
1002.1
1002.2
1002.3
1002.4
1002.5
1002.6
1002.7
Purpose and scope.
Definitions.
Privacy Act requests.
Responses to Privacy Act requests.
Administrative appeals.
Fees.
Penalties.
Authority: 5 U.S.C. 552a.
§ 1002.1
Purpose and scope.
The regulations in this part
implement the provisions of the Privacy
Act.
§ 1002.2
Definitions.
The following terms used in this part
are defined in the Privacy Act:
Individual, maintain, record, system of
records, statistical record, and routine
use. The following definitions also
apply in this part:
Board means the Privacy and Civil
Liberties Oversight Board, established
by the Implementing Recommendations
of the 9/11 Commission Act of 2007,
Pub. L. 110–53.
Chairman means the Chairman of the
Board, as appointed by the President
and confirmed by the Senate under
section 801(a) of the Implementing
Recommendations of the 9/11
Commission Act of 2007, Pub. L. 110–
53, or any person to whom the Board
has delegated authority in the matter
concerned.
General Counsel means the Board’s
principal legal advisor, or his or her
designee.
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Privacy Act means the Privacy Act of
1974, 5 U.S.C. 552a, as amended.
Privacy Act Officer means the person
designated by the Board to be
responsible for the day-to-day
administration of the Privacy Act.
§ 1002.3
Privacy Act requests.
(a) Requests to determine if you are
the subject of a record. You may request
that the Board inform you if we
maintain a system of records that
contains records about you. Your
request must follow the procedures
described in paragraph (b) of this
section.
(b) Requests for access. You may
request access to a Board record about
you in writing or by appearing in
person. You should direct your request
to the Privacy Act Officer. Written
requests may be sent to: Privacy Act
Officer, Privacy and Civil Liberties
Oversight Board, 2100 K Street NW.,
Suite 500, Washington, DC 20427. Your
request should include the following
information:
(1) Your name, address, and
telephone number;
(2) The system(s) of records in which
the requested information is contained;
and
(3) At your option, authorization for
copying expenses.
(4) Written requests. In addition to the
information described in paragraphs
(b)(1) through (3) of this section, written
requests must include a statement
affirming your identity, signed by you
and witnessed by two persons
(including witnesses’ addresses) or
notarized.
(i) Witnessed. If your statement is
witnessed, it must include a sentence
above the witnesses’ signatures attesting
that they personally know you or that
you have provided satisfactory proof of
your identity.
(ii) Notarized. If your statement is
notarized, you must provide the notary
with adequate proof of your identity in
the form of a drivers’ license, passport,
or other identification acceptable to the
notary.
(iii) The Board, in its discretion, may
require additional proof of identification
depending on the nature and sensitivity
of the records in the system of records.
(iv) For the quickest possible
handling, your letter and envelope
should be marked ‘‘Privacy Act
Request’’.
(5) In person requests. In addition to
the information described in paragraphs
(b)(1) through (3) of this section, if you
make your request in person, you must
provide adequate proof of identification
at the time of your request. Adequate
proof of identification includes a valid
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drivers’ license, valid passport, or other
current identification that includes your
address and photograph.
(c) Requests for amendment or
correction of records. You may request
an amendment to or correction of a
record about you in person or by writing
to the Privacy Act Officer following the
procedures described in paragraph (b) of
this section. Your request for
amendment or correction should
identify each particular record at issue,
state the amendment or correction
sought, and describe why the record is
not accurate, relevant, timely, or
complete.
(d) Requests for an accounting of
disclosures. Except for those disclosures
for which the Privacy Act does not
require an accounting, you may request
an accounting of any disclosure by the
Board of a record about you. Your
request for an accounting of disclosures
must be made in writing following the
procedures described in subsection (b)
of this section.
(e) Requests for access on behalf of
someone else.
(1) If you are making a request on
behalf of someone else, your request
must include a statement from that
individual verifying his or her identity,
as provided in paragraph (b)(4) of this
section. Your request also must include
a statement certifying that individual’s
agreement that records about him or her
may be released to you.
(2) If you are the parent or guardian
of the individual to whom the requested
record pertains, or the individual to
whom the record pertains has been
deemed incompetent by a court, your
request for access to records about that
individual must include:
(i) The identity of the individual who
is the subject of the record, including
his or her name, current address, and
date and place of birth;
(ii) Verification of your identity in
accordance with paragraph (b)(4) of this
section;
(iii) Verification that you are the
subject’s parent or guardian, which may
be established by a copy of the subject’s
birth certificate identifying you as his or
her parent, or a court order establishing
you as guardian; and
(iv) A statement certifying that you
are making the request on the subject’s
behalf.
§ 1002.4 Responses to Privacy Act
requests.
(a) Acknowledgement. The Privacy
Act Officer shall provide you with a
written acknowledgment of your written
request under section 3 within ten
business days of our receipt of your
request.
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(b) Grants of requests. If you make
your request in person, the Privacy Act
Officer shall respond to your request
directly, either by granting you access to
the requested records, upon payment of
any applicable fee and with a written
record of the grant of your request and
receipt of the records, or by informing
you when a response may be expected.
If you are accompanied by another
person, you must authorize in writing
any discussion of the records in the
presence of the third person. If your
request is in writing, the Privacy Act
Officer shall provide you with written
notice of the Board’s decision to grant
your request and the amount of any
applicable fee. The Privacy Act Officer
shall disclose the records to you
promptly, upon payment of any
applicable fee.
(c) Denials of requests in whole or in
part. The Privacy Act Officer shall
notify you in writing of his or her
determination to deny, in whole or in
part, your request. This writing shall
include the following information:
(1) The name and title or position of
the person responsible for the denial;
(2) A brief statement of the reason for
the denial(s), including any applicable
Privacy Act exemption;
(3) A statement that you may appeal
the denial and a brief description of the
requirements for appeal under § 1002.5.
(d) Request for records not covered by
the Privacy Act or subject to Privacy Act
exemption. If the Privacy Act Officer
determines that a requested record is
not subject to the Privacy Act or the
records are subject to Privacy Act
exemption, your request will be
processed in accordance with the
Board’s Freedom of Information Act
procedures at 6 CFR part 1001.
§ 1002.5
Administrative appeals.
Appeal procedures.
(1) You may appeal any decision by
the Board to deny, in whole or in part,
your request under § 1002.3 no later
than 60 days after the decision is
rendered.
(2) Your appeal must be in writing,
sent to the General Counsel at the
address specified in § 1002.3(b) and
contain the following information:
(i) Your name;
(ii) Description of the record(s) at
issue;
(iii) The system of records in which
the record(s) is contained;
(iv) A statement of why your request
should be granted.
(3) The General Counsel shall
determine whether to uphold or reverse
the initial determination within 30
working days of our receipt of your
appeal. The General Counsel shall
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notify you of his or her decision,
including a brief statement of the
reasons for the decision, in writing. The
General Counsel’s decision will be the
final action of the Board.
(b) Statement of disagreement. If your
appeal of our determination related to
your request for amendment or
correction is denied in whole or in part,
you may file a Statement of
Disagreement that states the basis for
your disagreement with the denial.
Statements of Disagreement must be
concise and must clearly identify each
part of any record that is disputed. The
Privacy Act Officer will place your
Statement of Disagreement in the system
of records in which the disputed record
is maintained and shall mark the
disputed record to indicate that a
Statement of Disagreement has been
filed and where it may be found.
(c) Notification of amendment,
correction, or disagreement. Within 30
working days of the amendment or
correction of a record, the Privacy Act
Officer shall notify all persons,
organizations, or agencies to which the
Board previously disclosed the record, if
an accounting of that disclosure was
made, that the record has been corrected
or amended. If you filed a Statement of
Disagreement, the Privacy Act Officer
shall append a copy of it to the disputed
record whenever it is disclosed and also
may append a concise statement of its
reason(s) for denying the request to
amend or correct the record.
§ 1002.6
Fees.
We will not charge a fee for search or
review of records requested under this
part, or for the correction of records. If
you request copies of records, we may
charge a fee of $.10 per page.
§ 1002.7
Penalties.
Any person who makes a false
statement in connection with any
request for a record or an amendment or
correction thereto under this part is
subject to the penalties prescribed in 18
U.S.C. 494 and 495 and 5 U.S.C.
552a(i)(3).
PART 1003—IMPLEMENTATION OF
THE GOVERNMENT IN THE SUNSHINE
ACT
Sec.
1003.1 Purpose and scope.
1003.2 Definitions.
1003.3 Open meetings.
1003.4 Procedures for public
announcement of meetings.
1003.5 Grounds on which meetings may be
closed or information withheld.
1003.6 Procedures for closing meetings or
withholding information, and requests
by affected persons to close a meeting.
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1003.7 Changes following public
announcement.
1003.8 Transcripts, recordings, or minutes
of closed meetings.
1003.9 Public availability and retention of
transcripts, recordings, and minutes, and
applicable fees.
Authority: 5 U.S.C. 552b.
§ 1003.1
Purpose and scope.
(a) The regulations in this part
implement the provisions of the
Sunshine Act.
(b) Requests for all records other than
those described in § 1003.9, shall be
governed by the Board’s Freedom of
Information Act procedures at 6 CFR
part 1001.
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§ 1003.2
Definitions.
The following definitions apply in
this part:
Board means the Privacy and Civil
Liberties Oversight Board, established
by the Implementing Recommendations
of the 9/11 Commission Act of 2007,
Public Law 110–53.
Chairman means the Chairman of the
Board, as appointed by the President
and confirmed by the Senate under
section 801(a) of the Implementing
Recommendations of the 9/11
Commission Act of 2007, Public Law
110–53, or any person to whom the
Board delegated authority in the matter
concerned.
General Counsel means the Board’s
principal legal advisor, or his or her
designee.
Meeting means the deliberations of
three or more Board members that
determine or result in the joint conduct
or disposition of official Board business.
A meeting does not include:
(1) Notational voting or similar
consideration of business for the
purpose of recording votes, whether by
circulation of material to members’
individually in writing or by a polling
of the members individually by phone.
(2) Action by three or more members
to:
(i) Open or close a meeting or to
release or withhold information
pursuant to section 1003.6 of this part;
(ii) Set an agenda for a proposed
meeting;
(iii) Call a meeting on less than seven
days’ notice, as permitted by § 1003.4;
or
(iv) Change the subject matter or the
determination to open or to close a
publicly announced meeting under
§ 1003.7.
(3) A session attended by three or
more members for the purpose of having
the Board’s staff or expert consultants,
another federal agency, or other persons
or organizations brief or otherwise
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15:17 Nov 07, 2013
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provide information to the Board
concerning any matters within the
purview of the Board, provided that the
members do not engage in deliberations
that determine or result in the joint
conduct or disposition of official
business on such matters.
(4) A gathering of members for the
purpose of holding informal,
preliminary discussions or exchanges of
views which do not effectively
predetermine official action.
Member means an individual duly
appointed and confirmed to the Board.
Public observation means attendance
by the public at a meeting of the Board,
but does not include public
participation.
Public participation means the
presentation or discussion of
information, raising of questions, or
other manner of involvement in a
meeting of the Board by the public in a
manner that contributes to the
disposition of official Board business.
Sunshine Act means the Government
in the Sunshine Act, 5 U.S.C. 552b.
§ 1003.3
Open meetings.
(a) Except as otherwise provided in
this part, every portion of a Board
meeting shall be open to public
observation.
(b) Board meetings, or portions
thereof, shall be open to public
participation when an announcement to
that effect is published under § 1003.4.
Public participation shall be conducted
in an orderly, non-disruptive manner
and in accordance with any procedures
the Chairman may establish. Public
participation may be terminated for
good cause as determined by the Board
upon the advice of the General Counsel
based on unanticipated developments.
§ 1003.4 Procedures for public
announcement of meetings.
(a) Except as otherwise provided in
this section, the Board shall make a
public announcement at least seven
days prior to a meeting. The public
announcement shall include:
(1) The time and place of the meeting;
(2) The subject matter of the meeting;
(3) Whether the meeting is to be open,
closed, or portions of a meeting will be
closed;
(4) Whether public participation will
be allowed;
(5) The name and telephone number
of the person who will respond to
requests for information about the
meeting;
(b) The seven day prior notice
required by paragraph (a) of this section
may be reduced only if:
(1) A majority of all members
determine by recorded vote that Board
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67003
business requires that such meeting be
scheduled in less than seven days; and
(2) The public announcement
required by this section is made at the
earliest practicable time.
(c) 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.
§ 1003.5 Grounds on which meetings may
be closed or information withheld.
A meeting, or portion thereof, may be
closed and information pertinent to
such meeting withheld if the Board
determines that the meeting or release of
information is likely to disclose matters
that are:
(a) Specifically authorized under
criteria established by an executive
order to be kept secret in the interests
of national defense or foreign policy;
and, in fact, are properly classified
pursuant to such executive order. In
making the determination that this
exemption applies, the Board shall rely
on the classification assigned to the
document or assigned to the information
from the federal agency from which the
document was received.
(b) Related solely to the internal
personnel rules and practices of the
Board;
(c) Specifically exempt from
disclosure by statute (other than 5
U.S.C. 552), provided that such statute:
(1) Requires that the matters be
withheld from the public in such a
manner as to leave no discretion on the
issue; or
(2) Establishes particular criteria for
withholding or refers to particular types
of matters to be withheld;
(d) Trade secrets and commercial or
financial information obtained from a
person and privileged or confidential;
(e) Involved with accusing any person
of a crime or formally censuring any
person;
(f) Of a personal nature, if disclosure
would constitute a clearly unwarranted
invasion of personal privacy;
(g) Either investigatory records
compiled for law enforcement purposes
or information which, if written, would
be contained in such records, but only
to the extent that the production of
records or information would:
(1) Interfere with enforcement
proceedings;
(2) Deprive a person of a right to
either a fair trial or an impartial
adjudication;
(3) Constitute an unwarranted
invasion of personal privacy;
(4) Disclose the identity of a
confidential source or sources and, in
the case of a record compiled either by
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Federal Register / Vol. 78, No. 217 / Friday, November 8, 2013 / Rules and Regulations
a criminal law enforcement authority or
by an agency conducting a lawful
national security intelligence
investigation, confidential information
furnished only by the confidential
source(s);
(5) Disclose investigative techniques
and procedures; or
(6) Endanger the life or physical safety
of law enforcement personnel;
(h) Contained in or relating to
examination, operating, or condition
reports prepared by, on behalf of, or for
the use of an agency responsible for the
regulation or supervision of financial
institutions;
(i) If prematurely disclosed, likely to
significantly frustrate implementation of
a proposed action of the Board, except
that this subsection shall not apply in
any instance where the Board has
already disclosed to the public the
content or nature of its proposed action
or is required by law to make such
disclosure on its own initiative prior to
taking final action on such proposal;
and
(j) Specifically concerned with the
Board’s issuance of a subpoena, or its
participation in a civil action or
proceeding, an action in a foreign court
or international tribunal, or an
arbitration, or the initiation, conduct, or
disposition by the Board of a particular
case or formal agency adjudication
pursuant to the procedures in 5 U.S.C.
554 or otherwise involving a
determination on the record after
opportunity for a hearing.
wreier-aviles on DSK5TPTVN1PROD with RULES
§ 1003.6 Procedures for closing meetings
or withholding information, and requests by
affected persons to close a meeting.
(a) A meeting or portion of a meeting
may be closed and information
pertaining to a meeting withheld under
§ 1003.5 only by vote of a majority of
members.
(b) A separate vote of the members
shall be taken with respect to each
meeting or portion of a meeting
proposed to be closed and with respect
to information which is proposed to be
withheld. A single vote may be taken
with respect to a series of meetings or
portions of a meeting that are proposed
to be closed, so long as each meeting or
portion thereof in the series involves the
same particular matter and is scheduled
to be held no more than 30 days after
the initial meeting in the series. The
vote of each member shall be recorded
and no proxies shall be allowed.
(c) A person whose interests may be
directly affected by a portion of a
meeting may request in writing that the
Board close that portion for any of the
reasons referred to in § 1003.5(e), (f) and
(g). Upon the request of a member, a
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15:17 Nov 07, 2013
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recorded vote shall be taken whether to
close such meeting or portion thereof.
(d) For every meeting closed, the
General Counsel shall publicly certify
that, in his or her opinion, the meeting
may be closed to the public and shall
state each relevant basis for closing the
meeting. If the General Counsel invokes
the bases set forth in § 1003.5(a) or (c),
he/she shall rely upon the classification
or designation assigned to the
information by the originating agency. A
copy of such certification, together with
a statement by the presiding officer
setting forth the time and place of the
meeting and the persons present, shall
be retained by the Board as part of the
transcript, recording, or minutes
required by § 1003.8.
§ 1003.7 Changes following public
announcement.
(a) The time or place of a meeting may
be changed following the public
announcement described in § 1003.4.
The Board must publicly announce such
change at the earliest practicable time.
(b) The subject matter of a meeting 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.
§ 1003.8 Transcripts, recordings, or
minutes of closed meetings.
Along with the General Counsel’s
certification and presiding officer’s
statement referred to in § 1003.6(d), the
Board shall maintain a complete
transcript or electronic recording
adequate to record fully the proceedings
of each meeting, or a portion thereof,
closed to the public. Alternatively, for
any meeting closed pursuant to
§ 1003.5(h) or (j), the Board may
maintain a set of minutes adequate to
record fully the proceedings, including
a description of each of the views
expressed on any item and the record of
any roll call vote.
§ 1003.9 Public availability and retention of
transcripts, recordings, and minutes, and
applicable fees.
(a) The Board shall make available, in
a place easily accessible, such as
www.pclob.gov, to the public the
transcript, electronic recording, or
minutes of a meeting, except for items
of discussion or testimony related to
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Frm 00010
Fmt 4700
Sfmt 4700
matters the Board determines may be
withheld under § 1003.6.
(b) Copies of the nonexempt portions
of the transcripts or minutes shall be
provided upon receipt of the actual
costs of the transcription or duplication.
(c) The Board shall maintain meeting
transcripts, recordings, or minutes of
each meeting closed to the public for a
period ending at the later of two years
following the date of the meeting, or one
year after the conclusion of any Board
proceeding with respect to the closed
meeting.
[FR Doc. 2013–26373 Filed 11–7–13; 8:45 am]
BILLING CODE 6820–B3–P
FEDERAL HOUSING FINANCE
AGENCY
12 CFR Parts 1267, 1269, and 1270
RIN 2590–AA40
Removal of References to Credit
Ratings in Certain Regulations
Governing the Federal Home Loan
Banks
Federal Housing Finance
Agency.
ACTION: Final rule.
AGENCIES:
Section 939A of the DoddFrank Wall Street Reform and Consumer
Protection Act (Dodd-Frank Act)
requires Federal agencies to review
regulations that require the use of an
assessment of the credit-worthiness of a
security or money market instrument
and any references to, or requirements
in, such regulations regarding credit
ratings issued by credit rating
organizations registered with the
Securities and Exchange Commission
(SEC) as nationally recognized statistical
rating organizations (NRSROs), and to
remove such references or requirements.
To implement this provision, the
Federal Housing Finance Agency
(FHFA) proposed on May 23, 2013, to
amend certain of its rules and remove a
number of references and requirements
in certain safety and soundness
regulations affecting the Federal Home
Loan Banks (Banks). To replace the
provisions that referenced NRSRO
ratings, FHFA proposed to add
requirements that the Banks apply
internal analytic standards and criteria
to determine the credit quality of a
security or obligation, subject to FHFA
oversight and review through the
examination and supervisory process.
FHFA also proposed to delete certain
provisions from its regulations that
contained references to NRSRO credit
ratings because they appeared
SUMMARY:
E:\FR\FM\08NOR1.SGM
08NOR1
Agencies
[Federal Register Volume 78, Number 217 (Friday, November 8, 2013)]
[Rules and Regulations]
[Pages 66995-67004]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-26373]
========================================================================
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.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 78, No. 217 / Friday, November 8, 2013 /
Rules and Regulations
[[Page 66995]]
PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD
6 CFR Parts 1001, 1002, and 1003
[PCLOB; Docket No. 2013-0003; Sequence 1]
RIN 0311-AA01
Freedom of Information, Privacy 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 finalizing
regulations to implement the Freedom of Information Act, the Privacy
Act of 1974, and the Government in the Sunshine Act. This rule
describes the procedures for members of the public to request access to
records. In addition, this rule also includes procedures for the
Board's responses to these requests, including the timeframe for
response and applicable fees.
DATES: Effective Date: January 7, 2014.
FOR FURTHER INFORMATION CONTACT: Diane Janosek, Chief Legal Officer,
Privacy and Civil Liberties Oversight Board, at 202-331-4084 or
diane.janosek@pclob.gov.
SUPPLEMENTARY INFORMATION: These regulations were published for public
comment in the Federal Register on May 15, 2013 (78 FR 28532), the
comment period ended on July 15, 2013, and four commenters provided
input. Two commenters were private citizens, one commenter was a
federal agency and the other commenter was a public interest research
center. Both the federal agency and the public interest research center
posted their comments on www.regulations.gov and those comments are
available for public review.
I. Background
The first commenter expressed support of privacy rights in general,
although it did not comment specifically on this rulemaking. We
appreciate the commenter's remark.
The second commenter provided various comments on the proposed
Freedom of Information Act procedures at part 1001. First, the
commenter recommended that section 1001.5 include a facsimile number or
electronic mail address for the submission of FOIA requests. We agree
and have provided a variety of means for requesters to submit FOIA
requests, including electronically. The commenter objected to language
in the proposed section 1001.5(b) that stated that FOIA requesters
shall reasonably describe the requested records ``with sufficient
specificity regarding names, dates, and subject matter to permit the
FOIA Officer to locate the records.'' The commenter noted that the FOIA
statute requires only that records be ``reasonably described,'' not
that requesters provide detail about the names, dates, and subject
matter. The commenter also expressed concern that a requester's failure
to provide this additional information might be used as a basis for
denying a request. As the Board did not intend to create additional
procedural requirements for FOIA requesters, we have stricken the
objected-to language from the rule. Nonetheless, we encourage
requesters to provide as much information about the records they are
seeking as possible, including names, dates, and subject matter, to
facilitate cost-effective identification of responsive records and
prompt responses.
In addition, the commenter had several comments about the proposed
section 1001.10 concerning fees. First, the commenter asserted that
section 1001.10 was defective because it did not include the FOIA's
statutory prohibition on the imposition of search or duplication fees
when agencies fail to respond to FOIA requests and the submitter
appeals within the required timelines. The Board will adhere to the
statute. The commenter also expressed that section 1001.10(d),
concerning how we will assess review charges, was ambiguous. We have
revised this language to comply with the Office of Management and
Budget's (OMB) Fee Guidelines.
In addition, the commenter noted that our proposed rule did not
identify a threshold below which we would not charge fees. We agree and
have set a threshold at $25. Lastly, with respect to fees, the
commenter asserted that the section of the proposed regulations that
permitted aggregation of certain requests (at section 1001.10(j) in the
Notice of Proposed Rulemaking) altered and exceeded the scope and
intention of the law. Although the proposed section mirrored the
statutory language, the commenter noted that OMB's Fee Guidelines state
that agencies may only aggregate requests when an agency reasonable
believes that requests were separated for the ``purpose of avoiding the
assessment of fees.'' The FOIA permits agencies to aggregate requests
for fee purposes, or to determine the presence of unusual circumstances
affecting the timeframe for response. 5 U.S.C. 552(a)(6)(B)(iv). We
have revised the rule to include a new section 1001.8(g) that
clarifies, consistent with 5 U.S.C. 552(a)(6)(B)(iv), that we may
aggregate requests for either fee or tolling purposes. We will comply
with OMB's Fee Guidelines when determining whether aggregation is
appropriate for fee purposes.
The third commenter was a federal agency and offered suggestions to
clarify the rule. The commenter provided multiple comments and in some
cases suggested language to model agencies' best practices. The
commenter had suggestions to add clarity to definitions; specificity
was offered on the definitions of ``person,'' ``FOIA'' and its
inclusion of third-party-requests, ``FOIA Public Liaison,'' ``Requestor
category,'' and ``fee waiver.'' We agree with the suggestions and the
definitions were modified.
The commenter suggested informing requestors that although requests
are considered either FOIA or Privacy Act requests, agencies process
requests in accordance with both laws. We agree and have accepted the
change.
The commenter suggested better contact information for the Board.
We agree and it has been added. The commenter suggested editing section
1001.6 to align it to changes in 5 U.S.C. 552(b) with regard to
agencies indicating, where technically feasible, the amount of
information deleted and the exemption. We agree and section 1001.6 has
been modified in part.
[[Page 66996]]
The commenter suggested the rule provide a point of contact at the
receiving agency for a referral. We agree and it has been added.
The commenter asserted that the language in proposed rule at
section 1001.7 administrative appeals was counter to the spirit of
FOIA. We agree and it has been changed. The commenter further asserted
that the proposed rule at section 1001.7 administrative appeals
language was too stringent in stating that requesters cite legal
authorities in their appeals. We agree and it has been changed. Lastly,
the commenter suggested that the proposed rule at section 1001.7
include a reference to the National Archives and Records Administration
Office of Government Information Services and the services they provide
to both the agency and the requester. We agree and it has been added.
The commenter suggested that a breakdown of fees be provided in
section 1001.10. We agree and it has been added.
The commenter suggested that the rule include language on
preservation of records and records management. While the Board did not
find it necessary to include additional language on records management,
the Board will adhere to applicable statutes and is committed to proper
records preservation and records management. The Board appreciates the
commenter's suggestions.
The fourth commenter was a public interest research center. The
comments offered improvements to the rule. Some of the commenter's
suggestions mirrored the other comments, and the majority have been
accepted.
The commenter proposed that the Chief FOIA Officer be a person
other than the Chairman. We agree and have provided for this
delegation. Currently, the Board has delegated this function to the
Chief Administrative Officer. As the Board is still in the process of
hiring staff and flexibility is needed, a provision for delegation is
the optimal course at this time. The Board will identify its FOIA point
of contact on the Board's Web site.
The commenter suggested a change to the definition of
``confidential business information.'' Although we appreciate the
commenter's perspective, the Board has decided to retain the language
which mirrors the FOIA statute.
The commenter asserted the section on ``unusual circumstances'' was
inconsistent with the FOIA in that the proposed rule deleted the words
``field facilities.'' The deletion of the reference to ``field
facilities'' is based on the fact that the Board does not have any
field facilities. The Board has used the words ``physically separate
facilities'' in the event that in the future the Board maintains
records in more than one location, although at this time it does not.
The commenter asserted that in section 1001.2 the words ``all
practicable speed'' were omitted. We agree and accept the comment.
The commenter asserted that the proposed rule for exemption (b)(5)
did not follow the language in the statute. We agree and accept the
comment.
The commenter asserted that the proposed rule on the process for
consultations and referrals did not follow the language in the statute
that permits this practice only with agencies having a ``substantial
interest'' in the record. We agree and accept the comment. The
commenter also asserted that the proposed rule on the process for
consultations and referrals did not follow the statutory language for
classification matters. We agree and accept the change.
The commenter suggested that the language on administrative appeals
was too ambiguous. We agree. We accepted the suggestion offered by the
federal agency to clarify the language.
The commenter asserted that the provision on multi-track processing
was too vague. Although we appreciate the comment, the language follows
best practices language used by other agencies.
The commenter asserted that the proposed provision on expedited
processing contains confusing and inappropriate language. The commenter
suggested the deletion of the words ``beyond the public's right to know
about government activity generally.'' We agree and accept the comment.
The commenter asserted the proposed rule on the Sunshine Act at section
1003.3(b) did not advance the purpose of the statute in its proposed
language addressing the process required to terminate an open meeting.
We agree and have changed this section to reflect the more balanced
approach advocated by the commenter, which is now consistent with the
statute.
The commenter disagreed with proposed procedures at sections
1003.7(a) and 1003.7(c) addressing changes prior to a publicly
announced meeting, such as its location or agenda, suggesting that the
proposed language provided a ``potential loophole'' to the statutory
requirement. We appreciate the commenter's perspective. The Board has
modified these sections to adhere more closely to the statutory
language. If an item is deleted from an open meeting agenda, and if
after the open meeting the Board desires to address the item, the item
will be included in the agenda for the next open meeting.
The commenter offered that the words ``in a place easily
accessible'' be added to section 1003.9. We agree and accept the
change. The Board now has an operational Web site at www.pclob.gov.
The commenter offered that the presumption of openness be added to
the proposed rule. We agree and accept the change.
The Board will comply with all applicable laws in its FOIA, Privacy
Act, and Sunshine Act administration, including Presidential memoranda
and Attorney General guidance. We thank all commenters for their
thoughtful input.
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
[[Page 66997]]
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
6 CFR Part 1001
Administrative practice and procedure, Confidential business
information, Freedom of information, Privacy.
6 CFR Part 1002
Administrative practice and procedure, Privacy.
6 CFR Part 1003
Administrative practice and procedure, Public availability of
information, Meetings.
Dated: October 30, 2013.
Diane Janosek,
Chief Legal Officer.
In consideration of the foregoing, the Board amends 6 CFR chapter
X, by adding parts 1001-1003, to read as follows:
PART 1001--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM
OF INFORMATION ACT
Sec.
1001.1 Purpose and scope.
1001.2 Definitions.
1001.3 Availability of records.
1001.4 Categories of exemptions.
1001.5 Requests for records.
1001.6 Responsibility for responding to requests.
1001.7 Administrative appeals.
1001.8 Time frame for Board response.
1001.9 Business information.
1001.10 Fees.
Authority: 5 U.S.C. 552, as amended; Executive Order 12600.
Sec. 1001.1 Purpose and scope.
The regulations in this part implement the provisions of the FOIA.
Sec. 1001.2 Definitions.
The following definitions apply to this part:
Board means the Privacy and Civil Liberties Oversight Board,
established by the Implementing Recommendations of the 9/11 Commission
Act of 2007, Public Law 110-53.
Chairman means the Chairman of the Board, as appointed by the
President and confirmed by the Senate under section 801(a) of the
Implementing Recommendations of the 9/11 Commission Act of 2007, Public
Law 110-53, or any person to whom the Board has delegated authority for
the matter concerned.
Chief FOIA Officer means the senior official to whom the Board
delegated responsibility for efficient and appropriate compliance with
the FOIA, currently delegated to the Chief Administrative Officer.
Commercial use request means a FOIA request from or on behalf of a
person who seeks information for a use or purpose that furthers his or
her commercial, trade, or profit interests, including pursuit of those
interests through litigation.
Confidential business information means trade secrets and
confidential, privileged, or proprietary business or financial
information submitted to the Board by a person.
Direct costs mean in the case of commercial use requesters those
expenses the Board has actually incurred to search for, duplicate, and
review documents in response to a FOIA request. Direct costs include,
but are not limited to, the salary of the employee performing the work
and costs associated with duplication.
Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, an institution of professional education, or
an institution of vocational education, which operates a program or
programs of scholarly research.
Fee waiver means the waiver or reduction of processing fees if a
requester can demonstrate that OMB's Fee Guidelines' standards are
satisfied, including that the information is in the public interest and
is not a commercial interest.
FOIA means the Freedom of Information Act, 5 U.S.C. 552, as
amended. The FOIA applies to third-party requests for documents
concerning the general activities of the government and the Board in
particular. A request by a U.S. citizen or an individual lawfully
admitted for permanent residence for access to his or her own records
is considered a Privacy Act request, under the Privacy Act of 1974, 5
U.S.C. 552a, as amended. See 6 CFR 1002.3.
FOIA Officer means the individual to whom the Board has delegated
authority to carry out the Board's day-to-day FOIA administration.
FOIA Public Liaison means the individual designated by the Chairman
to assist FOIA requesters with concerns about the Board's processing of
their FOIA request, including assistance in resolving disputes.
Non-commercial scientific institution means an organization
operated solely for the purpose of conducting scientific research, the
results of which are not intended to promote any product or research,
and not operated on a commercial basis.
Person includes an individual, partnership, corporation,
association, or public or private organization other than an agency.
Record means any writing, drawing, map, recording, diskette, DVD,
CD-ROM, tape, film, photograph, or other documentary material,
regardless of medium, by which information is preserved, including
documentary material stored electronically.
Redact means delete or mark over.
Representative of the news media means any person or entity that
gathers information of potential public 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.
Requester category means one of the three categories in which
requesters will be placed for the purpose of determining whether a
requester will be charged fees for search, review, or duplication. They
are:
(1) Commercial requestors,
(2) Non-commercial scientific or educational institutions or news
media requestors, and
(3) All other requestors.
Submitter means any person or entity from whom the Board obtains
confidential business information, directly or indirectly.
Unusual circumstances means, to the extent reasonably necessary for
the proper processing of a FOIA request:
[[Page 66998]]
(1) The need to search for and collect the requested records from
physically separate facilities;
(2) The need to search for, collect and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request.
Sec. 1001.3 Availability of records.
(a) In accordance with 5 U.S.C. 552(a)(1), the Board publishes the
following records in the Federal Register and makes an index of the
records publicly available:
(1) Descriptions of the Board's organization and the established
places at which, the employees from whom, and the methods by which, the
public may obtain information, submit documents, or obtain decisions;
(2) Statements of the general course and method by which the
Board's functions are channeled and determined, including the nature
and requirements of all formal and informal procedures available;
(3) Rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports, or examinations;
(4) Substantive rules of general applicability adopted as
authorized by law and statements of general policy or interpretations
of general applicability formulated and adopted by the Board; and
(5) Each amendment, revision, or repeal of any material listed in
paragraphs (a)(1) through (4) of this section.
(b) In accordance with 5 U.S.C. 552(a)(2), the Board shall make the
following materials available for public inspection and copying:
(1) Statements of policy and interpretation that have been adopted
by the Board and not published in the Federal Register;
(2) Administrative staff manuals and instructions to staff that
affect a member of the public;
(3) Copies of all records, regardless of the form or format, which
have been released to any person under paragraph (c) of this section
and that, because of their nature or subject matter, the Board
determines have become or are likely to become the subject of
subsequent requests for substantially the same records; and
(4) A general index of the records referred to in paragraph (b)(3)
of this section.
(c) In accordance with 5 U.S.C. 552(a)(3), the Board shall make
available, upon proper request, as described in section 5 of this part,
all non-exempt Board records, or portions of records, not previously
made public under paragraphs (a) and (b) of this section.
(d) The FOIA applies only to Board records in existence at the time
of the request; the FOIA does not require that the Board create new
records in order to respond to FOIA requests. When responsive records
are located, the Board adopts a presumption of disclosure and openness.
Sec. 1001.4 Categories of exemptions.
(a) The FOIA does not require disclosure of matters that are:
(1) Specifically authorized under criteria established by an
executive order to be kept secret in the interest of national defense
or foreign policy and are, in fact, properly classified under executive
order;
(2) Related solely to the internal personnel rules and practices of
the Board;
(3) Specifically exempted from disclosure by statute (other than
the Government in the Sunshine Act, 5 U.S.C. 552b, as amended),
provided that such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, establishes particular
criteria for withholding, or refers to particular types of matters to
be withheld; and
(ii) If enacted after October 28, 2009, specifically cites to
Exemption 3 of the FOIA, 5 U.S.C. 552(b)(3);
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memoranda or letters, which would
not be available at law to a party other than an agency in litigation
with the Board;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or impartial
adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a state, local, or foreign agency or
authority or any private institution that furnished information on a
confidential basis, and, in the case of a record or information
compiled by a criminal investigation, or by an agency conducting a
lawful national security intelligence investigation, information
furnished by a confidential source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions; or
(9) Geological and geophysical information and data, including
maps, concerning wells.
(b) [Reserved]
Sec. 1001.5 Request for records.
(a) You may request copies of records under this part by email to
FOIA@pclob.gov or in writing addressed to FOIA Officer, Privacy and
Civil Liberties Oversight Board, 2100 K Street NW., Suite 500,
Washington, DC 20427.
(b) Your request shall reasonably describe the records sought with
sufficient specificity, and when 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. 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.
(c) 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.
[[Page 66999]]
Sec. 1001.6 Responsibility for responding to requests.
(a) In general. The Board delegates authority to grant or deny FOIA
requests in whole or in part to the FOIA Officer. When conducting a
search for responsive records, the FOIA Officer generally will search
for records in existence on the date of the search. If another date is
used, the FOIA Officer shall inform the requester of the date used.
(b) Responses. The FOIA Officer will notify you of his or her
determination to grant or deny your FOIA request in the time frame
stated in Sec. 1001.8. The Board will release reasonably segregable
non-exempt information. For any adverse determination, including those
regarding any disputed fee matter; a denial of a request for a fee
waiver; or a determination to withhold a record, in whole or in part,
that a record does not exist or cannot be located; or to deny a request
for expedited processing; the notice shall include the following
information:
(1) The name(s) of any person responsible for the determination to
deny the request in whole or in part;
(2) A brief statement of the reason(s) for the denial, including
any FOIA exemption applied in denying the request. The FOIA Officer
will indicate, if technically feasible, the amount of information
deleted and the exemption under which a deletion is made on the
released portion of the record, unless including that indication would
harm an interest protected by the exemption;
(3) An estimate of the volume of information withheld, if
applicable. This estimate does not need to be provided if it is
ascertainable based on redactions in partially disclosed records or if
the disclosure of the estimate would harm an interest protected by an
applicable FOIA exemption; and
(4) A statement that the adverse determination may be appealed and
a description of the requirements for an appeal under Sec. 1001.7.
(c) Consultations and referrals.
(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. If the FOIA Officer determines that another agency is
better able to evaluate the releasibility of the record, the FOIA
Officer shall:
(i) Respond to the FOIA requester after consulting with any other
federal agency that has a substantial interest in the record; or
(ii) Refer the responsibility for responding to the request to the
department or agency best able to determine whether to disclose it (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.
(2) Whenever a request is made for information that is classified,
the FOIA Officer shall refer the responsibility for responding to that
portion of the request to the agency that originated the information,
or has the primary interest in it, as appropriate. Whenever a record
contains information that the Board has derivatively classified because
it contains information classified by another agency, the FOIA Officer
shall refer the responsibility for responding to the request regarding
that information to the agency that classified the underlying
information or originated the record.
(3) If responsibility for responding to a request is referred to
another department or agency, the FOIA Officer shall notify you of the
referral. This notice shall identify the part of the request that has
been referred and the name of each department or agency to which the
request, or part of the request, has been referred, when appropriate
and available, the notice will include a point of contact for the
referral agency or department.
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, 2100 K Street NW., Suite 500,
Washington, DC 20427.
(b) Your appeal must be in writing and received by the Chief FOIA
Officer within 60 days of the date of the letter denying your request,
in whole or in part. 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 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) 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 ogis@nara.gov, or via the telephone
at 202-741-5770 or 877-684-6448. Facsimile is also available at 202-
741-5769.
Sec. 1001.8 Time frame for Board response.
(a) In general. The Board ordinarily shall respond to requests
according to their order of receipt.
(b) Multi-track processing. The Board may use two or more
processing tracks by distinguishing between simple and more complex
requests based on the amount of work or time needed to process the
request.
(c) Initial decisions. The Board shall determine whether to comply
with a FOIA request within 20 working days after our receipt of the
request, unless the time frame for response is extended due to unusual
circumstances as further described in paragraph (f) of this section. A
request is received by the Board, for purposes of commencing the 20-day
timeframe for its response, on the day it is received by the FOIA
Officer or, in any event, not later than ten days after the request is
first received by any Board office.
(d) Administrative appeals. The Chief FOIA Officer shall determine
whether to affirm or overturn a decision subject to administrative
appeal within 20 working days after receipt of the appeal, unless the
time frame for response is extended in accordance with subsection (e)
of this section.
(e) Tolling timelines. We may toll the 20-day timeframe set forth
in paragraphs (c) or (d) of this section:
(1) One time to await information that we reasonably requested from
you, as permitted by 5 U.S.C. 552(a)(6)(A)(iii)(I);
(2) As necessary to clarify with you issues regarding the fee
assessment.
(3) If we toll the time frame for response under paragraphs (e)(1)
or (2) of this section, the tolling period ends upon our receipt of
your response.
(f) Unusual circumstances. In the event of unusual circumstances,
we may extend the time frame for response provided in paragraphs (c) or
(d) of this section by providing you with written notice of the unusual
circumstances and
[[Page 67000]]
the date on which a determination is expected to be made. Where the
extension is for more than ten working days, we will provide you with
an opportunity either to modify your request so that it may be
processed within the statutorily-prescribed time limits or to arrange
an alternative time period for processing your request or modified
request.
(g) Aggregating requests. When we reasonably believe that multiple
requests submitted by a requester, or by a group of requesters acting
in concert, involving clearly related matters, can be viewed as a
single request that involves unusual circumstances, we may aggregate
the requests for the purposes of fees and processing activities, which
may result in an extension of the processing time.
(h) Expedited processing. You may request that the Board expedite
processing of your FOIA request. To receive expedited processing, you
must demonstrate a compelling need for such processing.
(1) For requests for expedited processing, a ``compelling need''
involves:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) A request made by a person primarily engaged in disseminating
information, with a time urgency to inform the public of actual or
alleged federal government activity.
(2) Your request for expedited processing must be in writing and
may be made at the time of the initial FOIA request or at any later
time.
(3) Your request for expedited processing must include a statement,
certified to be true and correct to the best of your knowledge and
belief, explaining in detail the basis for requesting expedited
processing. If you are a person primarily engaged in disseminating
information, you must establish a particular urgency to inform the
public about the federal government activity involved in the request.
(4) The FOIA Officer will decide whether to grant or deny your
request for expedited processing within ten calendar days of receipt.
You will be notified in writing of the determination. Appeals of
adverse decisions regarding expedited processing shall be processed
expeditiously.
Sec. 1001.9 Business information.
(a) Designation of confidential business information. In the event
a FOIA request is made for confidential business information previously
submitted to the Government by a commercial entity or on behalf of it
(hereinafter `submitter'), the regulations in this section apply. When
submitting confidential business information, you must use a good-faith
effort to designate, by use of appropriate markings, at the time of
submission or at a reasonable time thereafter, any portions of your
submission that you consider to be exempt from disclosure under FOIA
Exemption 4, 5 U.S.C. 552(b)(4). Your designation will expire ten years
after the date of submission unless you request, and provide
justification for, a longer designation period.
(b) Notice to submitters. Whenever you designate confidential
business information as provided in paragraph (a) of this section, or
the Board has reason to believe that your submission may contain
confidential business information, we will provide you with prompt
written notice of a FOIA request that seeks your business information.
The notice shall:
(1) Give you an opportunity to object to disclosure of your
information, in whole or in part;
(2) Describe the business information requested or include copies
of the requested records or record portions containing the information;
and
(3) Inform you of the time frame in which you must respond to the
notice.
(c) Opportunity to object to disclosure. The Board shall allow you
a reasonable time to respond to the notice described in paragraph (b)
of this section. If you object to the disclosure of your information,
in whole or in part, you must provide us with a detailed written
statement of your objection. The statement must specify all grounds for
withholding any portion of the information under any FOIA exemption
and, when relying on FOIA Exemption 4, it must explain why the
information is a trade secret or commercial or financial information
that is privileged and confidential. If you fail to respond within the
time frame specified in the notice, the Board will conclude that you
have no objection to disclosure of your information. The Board will
only consider information that we receive within the time frame
specified in the notice.
(d) Notice of intent to disclose. The Board will consider your
objection and specific grounds for non-disclosure in deciding whether
to disclose business information. Whenever the Board decides to
disclose business information over your objection, we will provide you
with written notice that includes:
(1) A statement of the reasons why each of your bases for
withholding were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time
after the notice.
(e) Exceptions to the notice requirement. The notice requirements
of paragraphs (c) and (d) of this section shall not apply if:
(1) The Board determines that the information shall not be
disclosed;
(2) The information lawfully has been published or has been
officially made available to the public;
(3) Disclosure of the information is required by statute (other
than the FOIA) or by a regulation issued in accordance with the
requirements of Executive Order 12600;
(4) The designation made by the submitter under paragraph (a) of
this section appears obviously frivolous, except that, in such a case,
the Board shall, within a reasonable time prior to the date the
disclosure will be made, give the submitter written notice of the final
decision to disclose the information.
(f) Notice to requesters. Whenever we provide a submitter with the
notice described in paragraph (b) of this section, we also will provide
notice to the requester that notice and opportunity to object to the
disclosure are being provided to the submitter.
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.
(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 the central processing unit 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
[[Page 67001]]
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.
(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.
(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.
(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 requests.
(i) 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.
(j) 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.
(k) 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 days
of the date of billing.
(l) 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 be equal to or exceed $25, for the Board to require payment
of fees.
PART 1002--IMPLEMENTATION OF THE PRIVACY ACT OF 1974
Sec.
1002.1 Purpose and scope.
1002.2 Definitions.
1002.3 Privacy Act requests.
1002.4 Responses to Privacy Act requests.
1002.5 Administrative appeals.
1002.6 Fees.
1002.7 Penalties.
Authority: 5 U.S.C. 552a.
Sec. 1002.1 Purpose and scope.
The regulations in this part implement the provisions of the
Privacy Act.
Sec. 1002.2 Definitions.
The following terms used in this part are defined in the Privacy
Act: Individual, maintain, record, system of records, statistical
record, and routine use. The following definitions also apply in this
part:
Board means the Privacy and Civil Liberties Oversight Board,
established by the Implementing Recommendations of the 9/11 Commission
Act of 2007, Pub. L. 110-53.
Chairman means the Chairman of the Board, as appointed by the
President and confirmed by the Senate under section 801(a) of the
Implementing Recommendations of the 9/11 Commission Act of 2007, Pub.
L. 110-53, or any person to whom the Board has delegated authority in
the matter concerned.
General Counsel means the Board's principal legal advisor, or his
or her designee.
Privacy Act means the Privacy Act of 1974, 5 U.S.C. 552a, as
amended.
Privacy Act Officer means the person designated by the Board to be
responsible for the day-to-day administration of the Privacy Act.
Sec. 1002.3 Privacy Act requests.
(a) Requests to determine if you are the subject of a record. You
may request that the Board inform you if we maintain a system of
records that contains records about you. Your request must follow the
procedures described in paragraph (b) of this section.
(b) Requests for access. You may request access to a Board record
about you in writing or by appearing in person. You should direct your
request to the Privacy Act Officer. Written requests may be sent to:
Privacy Act Officer, Privacy and Civil Liberties Oversight Board, 2100
K Street NW., Suite 500, Washington, DC 20427. Your request should
include the following information:
(1) Your name, address, and telephone number;
(2) The system(s) of records in which the requested information is
contained; and
(3) At your option, authorization for copying expenses.
(4) Written requests. In addition to the information described in
paragraphs (b)(1) through (3) of this section, written requests must
include a statement affirming your identity, signed by you and
witnessed by two persons (including witnesses' addresses) or notarized.
(i) Witnessed. If your statement is witnessed, it must include a
sentence above the witnesses' signatures attesting that they personally
know you or that you have provided satisfactory proof of your identity.
(ii) Notarized. If your statement is notarized, you must provide
the notary with adequate proof of your identity in the form of a
drivers' license, passport, or other identification acceptable to the
notary.
(iii) The Board, in its discretion, may require additional proof of
identification depending on the nature and sensitivity of the records
in the system of records.
(iv) For the quickest possible handling, your letter and envelope
should be marked ``Privacy Act Request''.
(5) In person requests. In addition to the information described in
paragraphs (b)(1) through (3) of this section, if you make your request
in person, you must provide adequate proof of identification at the
time of your request. Adequate proof of identification includes a valid
[[Page 67002]]
drivers' license, valid passport, or other current identification that
includes your address and photograph.
(c) Requests for amendment or correction of records. You may
request an amendment to or correction of a record about you in person
or by writing to the Privacy Act Officer following the procedures
described in paragraph (b) of this section. Your request for amendment
or correction should identify each particular record at issue, state
the amendment or correction sought, and describe why the record is not
accurate, relevant, timely, or complete.
(d) Requests for an accounting of disclosures. Except for those
disclosures for which the Privacy Act does not require an accounting,
you may request an accounting of any disclosure by the Board of a
record about you. Your request for an accounting of disclosures must be
made in writing following the procedures described in subsection (b) of
this section.
(e) Requests for access on behalf of someone else.
(1) If you are making a request on behalf of someone else, your
request must include a statement from that individual verifying his or
her identity, as provided in paragraph (b)(4) of this section. Your
request also must include a statement certifying that individual's
agreement that records about him or her may be released to you.
(2) If you are the parent or guardian of the individual to whom the
requested record pertains, or the individual to whom the record
pertains has been deemed incompetent by a court, your request for
access to records about that individual must include:
(i) The identity of the individual who is the subject of the
record, including his or her name, current address, and date and place
of birth;
(ii) Verification of your identity in accordance with paragraph
(b)(4) of this section;
(iii) Verification that you are the subject's parent or guardian,
which may be established by a copy of the subject's birth certificate
identifying you as his or her parent, or a court order establishing you
as guardian; and
(iv) A statement certifying that you are making the request on the
subject's behalf.
Sec. 1002.4 Responses to Privacy Act requests.
(a) Acknowledgement. The Privacy Act Officer shall provide you with
a written acknowledgment of your written request under section 3 within
ten business days of our receipt of your request.
(b) Grants of requests. If you make your request in person, the
Privacy Act Officer shall respond to your request directly, either by
granting you access to the requested records, upon payment of any
applicable fee and with a written record of the grant of your request
and receipt of the records, or by informing you when a response may be
expected. If you are accompanied by another person, you must authorize
in writing any discussion of the records in the presence of the third
person. If your request is in writing, the Privacy Act Officer shall
provide you with written notice of the Board's decision to grant your
request and the amount of any applicable fee. The Privacy Act Officer
shall disclose the records to you promptly, upon payment of any
applicable fee.
(c) Denials of requests in whole or in part. The Privacy Act
Officer shall notify you in writing of his or her determination to
deny, in whole or in part, your request. This writing shall include the
following information:
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reason for the denial(s), including
any applicable Privacy Act exemption;
(3) A statement that you may appeal the denial and a brief
description of the requirements for appeal under Sec. 1002.5.
(d) Request for records not covered by the Privacy Act or subject
to Privacy Act exemption. If the Privacy Act Officer determines that a
requested record is not subject to the Privacy Act or the records are
subject to Privacy Act exemption, your request will be processed in
accordance with the Board's Freedom of Information Act procedures at 6
CFR part 1001.
Sec. 1002.5 Administrative appeals.
Appeal procedures.
(1) You may appeal any decision by the Board to deny, in whole or
in part, your request under Sec. 1002.3 no later than 60 days after
the decision is rendered.
(2) Your appeal must be in writing, sent to the General Counsel at
the address specified in Sec. 1002.3(b) and contain the following
information:
(i) Your name;
(ii) Description of the record(s) at issue;
(iii) The system of records in which the record(s) is contained;
(iv) A statement of why your request should be granted.
(3) The General Counsel shall determine whether to uphold or
reverse the initial determination within 30 working days of our receipt
of your appeal. The General Counsel shall notify you of his or her
decision, including a brief statement of the reasons for the decision,
in writing. The General Counsel's decision will be the final action of
the Board.
(b) Statement of disagreement. If your appeal of our determination
related to your request for amendment or correction is denied in whole
or in part, you may file a Statement of Disagreement that states the
basis for your disagreement with the denial. Statements of Disagreement
must be concise and must clearly identify each part of any record that
is disputed. The Privacy Act Officer will place your Statement of
Disagreement in the system of records in which the disputed record is
maintained and shall mark the disputed record to indicate that a
Statement of Disagreement has been filed and where it may be found.
(c) Notification of amendment, correction, or disagreement. Within
30 working days of the amendment or correction of a record, the Privacy
Act Officer shall notify all persons, organizations, or agencies to
which the Board previously disclosed the record, if an accounting of
that disclosure was made, that the record has been corrected or
amended. If you filed a Statement of Disagreement, the Privacy Act
Officer shall append a copy of it to the disputed record whenever it is
disclosed and also may append a concise statement of its reason(s) for
denying the request to amend or correct the record.
Sec. 1002.6 Fees.
We will not charge a fee for search or review of records requested
under this part, or for the correction of records. If you request
copies of records, we may charge a fee of $.10 per page.
Sec. 1002.7 Penalties.
Any person who makes a false statement in connection with any
request for a record or an amendment or correction thereto under this
part is subject to the penalties prescribed in 18 U.S.C. 494 and 495
and 5 U.S.C. 552a(i)(3).
PART 1003--IMPLEMENTATION OF THE GOVERNMENT IN THE SUNSHINE ACT
Sec.
1003.1 Purpose and scope.
1003.2 Definitions.
1003.3 Open meetings.
1003.4 Procedures for public announcement of meetings.
1003.5 Grounds on which meetings may be closed or information
withheld.
1003.6 Procedures for closing meetings or withholding information,
and requests by affected persons to close a meeting.
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1003.7 Changes following public announcement.
1003.8 Transcripts, recordings, or minutes of closed meetings.
1003.9 Public availability and retention of transcripts, recordings,
and minutes, and applicable fees.
Authority: 5 U.S.C. 552b.
Sec. 1003.1 Purpose and scope.
(a) The regulations in this part implement the provisions of the
Sunshine Act.
(b) Requests for all records other than those described in Sec.
1003.9, shall be governed by the Board's Freedom of Information Act
procedures at 6 CFR part 1001.
Sec. 1003.2 Definitions.
The following definitions apply in this part:
Board means the Privacy and Civil Liberties Oversight Board,
established by the Implementing Recommendations of the 9/11 Commission
Act of 2007, Public Law 110-53.
Chairman means the Chairman of the Board, as appointed by the
President and confirmed by the Senate under section 801(a) of the
Implementing Recommendations of the 9/11 Commission Act of 2007, Public
Law 110-53, or any person to whom the Board delegated authority in the
matter concerned.
General Counsel means the Board's principal legal advisor, or his
or her designee.
Meeting means the deliberations of three or more Board members that
determine or result in the joint conduct or disposition of official
Board business. A meeting does not include:
(1) Notational voting or similar consideration of business for the
purpose of recording votes, whether by circulation of material to
members' individually in writing or by a polling of the members
individually by phone.
(2) Action by three or more members to:
(i) Open or close a meeting or to release or withhold information
pursuant to section 1003.6 of this part;
(ii) Set an agenda for a proposed meeting;
(iii) Call a meeting on less than seven days' notice, as permitted
by Sec. 1003.4; or
(iv) Change the subject matter or the determination to open or to
close a publicly announced meeting under Sec. 1003.7.
(3) A session attended by three or more members for the purpose of
having the Board's staff or expert consultants, another federal agency,
or other persons or organizations brief or otherwise provide
information to the Board concerning any matters within the purview of
the Board, provided that the members do not engage in deliberations
that determine or result in the joint conduct or disposition of
official business on such matters.
(4) A gathering of members for the purpose of holding informal,
preliminary discussions or exchanges of views which do not effectively
predetermine official action.
Member means an individual duly appointed and confirmed to the
Board.
Public observation means attendance by the public at a meeting of
the Board, but does not include public participation.
Public participation means the presentation or discussion of
information, raising of questions, or other manner of involvement in a
meeting of the Board by the public in a manner that contributes to the
disposition of official Board business.
Sunshine Act means the Government in the Sunshine Act, 5 U.S.C.
552b.
Sec. 1003.3 Open meetings.
(a) Except as otherwise provided in this part, every portion of a
Board meeting shall be open to public observation.
(b) Board meetings, or portions thereof, shall be open to public
participation when an announcement to that effect is published under
Sec. 1003.4. Public participation shall be conducted in an orderly,
non-disruptive manner and in accordance with any procedures the
Chairman may establish. Public participation may be terminated for good
cause as determined by the Board upon the advice of the General Counsel
based on unanticipated developments.
Sec. 1003.4 Procedures for public announcement of meetings.
(a) Except as otherwise provided in this section, the Board shall
make a public announcement at least seven days prior to a meeting. The
public announcement shall include:
(1) The time and place of the meeting;
(2) The subject matter of the meeting;
(3) Whether the meeting is to be open, closed, or portions of a
meeting will be closed;
(4) Whether public participation will be allowed;
(5) The name and telephone number of the person who will respond to
requests for information about the meeting;
(b) The seven day prior notice required by paragraph (a) of this
section may be reduced only if:
(1) A majority of all members determine by recorded vote that Board
business requires that such meeting be scheduled in less than seven
days; and
(2) The public announcement required by this section is made at the
earliest practicable time.
(c) 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.
Sec. 1003.5 Grounds on which meetings may be closed or information
withheld.
A meeting, or portion thereof, may be closed and information
pertinent to such meeting withheld if the Board determines that the
meeting or release of information is likely to disclose matters that
are:
(a) Specifically authorized under criteria established by an
executive order to be kept secret in the interests of national defense
or foreign policy; and, in fact, are properly classified pursuant to
such executive order. In making the determination that this exemption
applies, the Board shall rely on the classification assigned to the
document or assigned to the information from the federal agency from
which the document was received.
(b) Related solely to the internal personnel rules and practices of
the Board;
(c) Specifically exempt from disclosure by statute (other than 5
U.S.C. 552), provided that such statute:
(1) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(2) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(d) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(e) Involved with accusing any person of a crime or formally
censuring any person;
(f) Of a personal nature, if disclosure would constitute a clearly
unwarranted invasion of personal privacy;
(g) Either investigatory records compiled for law enforcement
purposes or information which, if written, would be contained in such
records, but only to the extent that the production of records or
information would:
(1) Interfere with enforcement proceedings;
(2) Deprive a person of a right to either a fair trial or an
impartial adjudication;
(3) Constitute an unwarranted invasion of personal privacy;
(4) Disclose the identity of a confidential source or sources and,
in the case of a record compiled either by
[[Page 67004]]
a criminal law enforcement authority or by an agency conducting a
lawful national security intelligence investigation, confidential
information furnished only by the confidential source(s);
(5) Disclose investigative techniques and procedures; or
(6) Endanger the life or physical safety of law enforcement
personnel;
(h) Contained in or relating to examination, operating, or
condition reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial
institutions;
(i) If prematurely disclosed, likely to significantly frustrate
implementation of a proposed action of the Board, except that this
subsection shall not apply in any instance where the Board has already
disclosed to the public the content or nature of its proposed action or
is required by law to make such disclosure on its own initiative prior
to taking final action on such proposal; and
(j) Specifically concerned with the Board's issuance of a subpoena,
or its participation in a civil action or proceeding, an action in a
foreign court or international tribunal, or an arbitration, or the
initiation, conduct, or disposition by the Board of a particular case
or formal agency adjudication pursuant to the procedures in 5 U.S.C.
554 or otherwise involving a determination on the record after
opportunity for a hearing.
Sec. 1003.6 Procedures for closing meetings or withholding
information, and requests by affected persons to close a meeting.
(a) A meeting or portion of a meeting may be closed and information
pertaining to a meeting withheld under Sec. 1003.5 only by vote of a
majority of members.
(b) A separate vote of the members shall be taken with respect to
each meeting or portion of a meeting proposed to be closed and with
respect to information which is proposed to be withheld. A single vote
may be taken with respect to a series of meetings or portions of a
meeting that are proposed to be closed, so long as each meeting or
portion thereof in the series involves the same particular matter and
is scheduled to be held no more than 30 days after the initial meeting
in the series. The vote of each member shall be recorded and no proxies
shall be allowed.
(c) A person whose interests may be directly affected by a portion
of a meeting may request in writing that the Board close that portion
for any of the reasons referred to in Sec. 1003.5(e), (f) and (g).
Upon the request of a member, a recorded vote shall be taken whether to
close such meeting or portion thereof.
(d) For every meeting closed, the General Counsel shall publicly
certify that, in his or her opinion, the meeting may be closed to the
public and shall state each relevant basis for closing the meeting. If
the General Counsel invokes the bases set forth in Sec. 1003.5(a) or
(c), he/she shall rely upon the classification or designation assigned
to the information by the originating agency. A copy of such
certification, together with a statement by the presiding officer
setting forth the time and place of the meeting and the persons
present, shall be retained by the Board as part of the transcript,
recording, or minutes required by Sec. 1003.8.
Sec. 1003.7 Changes following public announcement.
(a) The time or place of a meeting may be changed following the
public announcement described in Sec. 1003.4. The Board must publicly
announce such change at the earliest practicable time.
(b) The subject matter of a meeting 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.
Sec. 1003.8 Transcripts, recordings, or minutes of closed meetings.
Along with the General Counsel's certification and presiding
officer's statement referred to in Sec. 1003.6(d), the Board shall
maintain a complete transcript or electronic recording adequate to
record fully the proceedings of each meeting, or a portion thereof,
closed to the public. Alternatively, for any meeting closed pursuant to
Sec. 1003.5(h) or (j), the Board may maintain a set of minutes
adequate to record fully the proceedings, including a description of
each of the views expressed on any item and the record of any roll call
vote.
Sec. 1003.9 Public availability and retention of transcripts,
recordings, and minutes, and applicable fees.
(a) The Board shall make available, in a place easily accessible,
such as www.pclob.gov, to the public the transcript, electronic
recording, or minutes of a meeting, except for items of discussion or
testimony related to matters the Board determines may be withheld under
Sec. 1003.6.
(b) Copies of the nonexempt portions of the transcripts or minutes
shall be provided upon receipt of the actual costs of the transcription
or duplication.
(c) The Board shall maintain meeting transcripts, recordings, or
minutes of each meeting closed to the public for a period ending at the
later of two years following the date of the meeting, or one year after
the conclusion of any Board proceeding with respect to the closed
meeting.
[FR Doc. 2013-26373 Filed 11-7-13; 8:45 am]
BILLING CODE 6820-B3-P