Revision of Regulations Governing Freedom of Information Act Requests and Appeals, and Revision of Touhy Regulations Governing Release of Information in Response to Legal Proceedings, 73015-73020 [2016-23215]
Download as PDF
73015
Rules and Regulations
Federal Register
Vol. 81, No. 205
Monday, October 24, 2016
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.
OFFICE OF SPECIAL COUNSEL
5 CFR Part 1820
Revision of Regulations Governing
Freedom of Information Act Requests
and Appeals, and Revision of Touhy
Regulations Governing Release of
Information in Response to Legal
Proceedings
AGENCY:
ACTION:
U.S. Office of Special Counsel.
Final rule.
Final rule.
This final rule updates and clarifies
the procedures for submitting Freedom
of Information Act (FOIA) requests and
appeals to the U.S. Office of Special
Counsel (OSC). The rule describes
additional methods for submitting FOIA
requests and appeals. It also promotes
efficiency in FOIA administration by
enhancing OSC’s ability to respond to
certain requests on an expedited basis.
The final rule makes minor technical
revisions to the name of an OSC unit
and to OSC’s Internet, fax, and physical
address information. The rule also
establishes procedures that requesters
must follow when making demands on
or requests to an OSC employee to
produce official records or provide
testimony relating to official
information in connection with a legal
proceeding in which the OSC is not a
party.
SUMMARY:
This final rule is effective
October 24, 2016.
DATES:
jstallworth on DSK7TPTVN1PROD with RULES
FOR FURTHER INFORMATION CONTACT:
Amy Beckett, Senior Litigation Counsel,
U.S. Office of Special Counsel, 202–
254–3657
OSC
published a proposed rule on May 5,
2015, FR Doc No: 2016–09799 and
solicited public comment on that rule.
OSC has considered the comments and
is issuing this final rule in due course.
SUPPLEMENTARY INFORMATION:
VerDate Sep<11>2014
14:53 Oct 21, 2016
Jkt 241001
I. Background
FOIA Regulations. The U.S. Office of
Special Counsel (OSC) revises its FOIA
regulations to account for the additional
electronic methods by which requesters
may submit FOIA requests and appeals,
and modifies the manner by which
requests qualify for expedited
processing. OSC also makes minor
technical revisions to the name of an
OSC unit and to OSC’s Internet, fax, and
physical address information.
The existing language of 5 CFR 1820.2
and 1820.6 describes regular mail and
fax as the methods by which to submit
FOIA requests and appeals. The final
rule adds email or other electronic
submission methods.
The existing language of 5 CFR 1820.1
refers to the main OSC Internet and
FOIA page addresses. The final rule
describes Internet access to OSC FOIA
resources through the main OSC
Internet address. The first commenter
suggested that subsection (a)(1) identify
OSC’s fax number and email address. At
the risk of the contact information later
being changed, OSC considered and
adopted the suggested change to
subsection (a)(1). The commenter also
suggested a minor grammatical change
to subsection (c), which OSC also
considered and adopted. The first
commenter also proposed changes to
Section 1820.3 regarding whether OSC
may consult with entities the
commenter argues are not ‘‘agencies’’ for
FOIA purposes. OSC is postponing
consideration of this suggested change
pending its mandated update to the
regulation required by the recently
enacted FOIA Improvement Act of 2016,
Public Law 114–185.
The existing language of 5 CFR 1820.2
and 1820.6 regarding OSC’s physical
address would be modified in a minor,
technical manner. The first commenter
also suggested that subsection (a)(3)
allow requesters to submit appeals by
email in addition to ‘‘other electronic
means.’’ OSC has accepted email
requests and appeals for several years,
so OSC adopts the suggested change
both to conform the rule to OSC’s
current practice and to specify that OSC
accepts email submissions. The
commenter also urged OSC to notify
requesters of the mediation services
offered by the Office of Government
Information Services and to add that
OSC will respond to administrative
appeals within the statutory deadline.
PO 00000
Frm 00001
Fmt 4700
Sfmt 4700
OSC has already adopted this practice
pursuant to the recently enacted FOIA
Improvement Act of 2016, Public Law
114–185. OSC has also begun to notify
new requesters as of June 30, 2016 that
they have 90 days to appeal an adverse
determination and will revise the
regulation to reflect this, and other
updated practices, when it issues its
mandated update to the regulation
required by the recently enacted FOIA
Improvement Act of 2016, Public Law
114–185. The existing language of 5 CFR
1820.6 refers to an OSC unit as the
‘‘Legal Counsel and Policy Division.’’
The name of that unit is updated in the
final rule to the ‘‘Office of General
Counsel.’’
The existing language of 5 CFR
1820.4(c)(1)(iii) discusses one of the
three criteria under which a FOIA
request can be processed out of order of
receipt and addressed on an expedited
basis. That language provides, in part,
expedited treatment of a FOIA request
when the requested records relate to ‘‘an
appeal that is pending before, or that the
requester faces an imminent deadline
for filing with’’ another administrative
or judicial tribunal, ‘‘seeking personal
relief pursuant to a complaint filed by
the requester with OSC, or referred to
OSC pursuant to title 38 of the U.S.
Code.’’
The final rule clarifies that the criteria
discussed at 5 CFR 1820.4(c)(1)(iii)
applies only when the requested records
relate to an appeal for which the
requester faces an imminent deadline
for filing with another administrative or
judicial tribunal. In addition, the final
rule specifies that a grant of expedited
treatment applies only to the following
requested records: Letters sent to a
complainant by OSC, and the official
complaint form submitted to OSC by the
complainant or the original referred
complaint if referred to OSC pursuant to
title 38 of the U.S. Code. All other
requested records would be processed
according to the order in which OSC
received the request.
By narrowing the focus of expedited
status to certain records that are of
interest to complainant-requesters, and
are typically readily available for
disclosure to the complainantrequesters, OSC is able to process and
respond to expedited requests more
efficiently. Any other requested records
will generally be processed in the order
OSC received the request.
E:\FR\FM\24OCR1.SGM
24OCR1
73016
Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations
jstallworth on DSK7TPTVN1PROD with RULES
Touhy Regulations. OSC also revises
its regulations relating to the release of
information in response to requests
made in connection with legal
proceedings, such as summonses,
complaints, subpoenas, and other
litigation-related requests or demands
for OSC’s records or official
information. These regulations are often
referred to as Touhy regulations.
Federal agencies often receive
demands consisting of informal requests
for production of records, information,
or testimony in judicial, legislative, or
administrative proceedings in which the
agency is not a named party. OSC
revises its regulation to improve its
evaluation and processing of such
requests.
The United States Supreme Court
upheld this type of regulation in United
States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951), holding that provisions in
the federal ‘‘housekeeping’’ statute
authorize agencies to promulgate rules
governing record production and
employee testimony. See 5 U.S.C. 301.
The prior language of 5 CFR1820.10
referred to the ‘‘[p]roduction of official
records or testimony in legal
proceedings.’’ This revision provides
the agency with more clearly delineated
standards for releasing information or
witness testimony. Generally, this
revision re-establishes that no OSC
employee or former employee shall
release official information or records
without the prior approval of the
Special Counsel or the Special
Counsel’s duly authorized designee.
Under this final rule, OSC establishes
procedural requirements for the form
and content of requests for official OSC
information made through a litigation
request or demand, as well as
establishing procedures for responding
to the requests. This final rule also
states the factors that OSC will consider
in determining whether to authorize a
release of official information in
response to a request.
II. Overview of Comments Received
In response to the proposed rule, OSC
received two comment letters regarding
the proposed changes to the FOIA
regulation, including suggestions for
changing additional sections of the
regulation. The first commenter
suggested that OSC include additional
contact details within the text of the
FOIA regulation, that OSC amend the
section governing consultations and
referrals, and that OSC make additional
changes as to the appeals process. The
second commenter suggested changes
regarding the definition of
‘‘representative of the news media,’’
fees, records preservation, and records
VerDate Sep<11>2014
14:53 Oct 21, 2016
Jkt 241001
management. OSC will postpone
consideration of several of the proposed
changes pending its mandated update to
the regulation required by the recently
enacted FOIA Improvement Act of
2016l, Public Law 114–185.
OSC did not receive any comments
concerning its Touhy regulation.
Accordingly, OSC will issue the final
rule without modification to the Touhy
provisions.
In section IV below, OSC set forth its
final rule, a section by section summary
of the two comments it received to the
proposed final rule, and OSC’s
responses to these comments.
Subpart A, Sections 1820.10, 11, and 12
III. Procedural Determinations
Administrative Procedure Act (APA):
This action is taken under the Special
Counsel’s authority at 5 U.S.C. 1212(e)
to publish regulations in the Federal
Register.
Executive Order 12866 (Regulatory
Planning and Review): OSC does not
anticipate that this final rule will have
significant economic impact, raise novel
issues, and/or have any other significant
impacts. Thus this final rule is not a
significant regulatory action under 3(f)
of Executive Order 12866 and does not
require an assessment of potential costs
and benefits under 6(a)(3) of the Order.
Congressional Review Act (CRA): OSC
has determined that this final rule is not
a major rule under the Congressional
Review Act, as it is unlikely to result in
an annual effect on the economy of $100
million or more; is unlikely to result in
a major increase in costs or prices for
consumers, individual industries,
federal, state, or local government
agencies or geographic regions; and is
unlikely to have a significant adverse
effect on competition, employment,
investment, productivity, or innovation,
or on the ability of U.S.-based
enterprises to compete in domestic and
export markets.
Regulatory Flexibility Act (RFA): The
Regulatory Flexibility Act does not
apply, even though this final rule was
offered for notice and comment
procedures under the APA. This final
rule will not directly regulate small
entities. OSC therefore need not perform
a regulatory flexibility analysis of small
entity impacts.
Unfunded Mandates Reform Act
(UMRA): This revision does not impose
any federal mandates on state, local, or
tribal governments, or on the private
sector within the meaning of the UMRA.
National Environmental Policy Act
(NEPA): This final rule will have no
physical impact upon the environment
and therefore will not require any
further review under NEPA.
PO 00000
Frm 00002
Fmt 4700
Sfmt 4700
Paperwork Reduction Act (PRA): This
final rule does not impose any new
recordkeeping, reporting, or other
information collection requirements on
the public. The final rule sets forth
procedures by which litigants may serve
summonses, complaints, subpoenas,
and other legal process, demands, and
requests upon the OSC. The final rule
imposes special procedural
requirements for those who seek to
serve third-party subpoenas upon the
OSC in accordance with United States
ex rel. Touhy v. Ragen, 340 U.S. 462
(1951). These requirements may
increase the time and burden associated
with obtaining records of the OSC in
response to such third-party subpoenas.
Executive Order 13132 (Federalism):
This final revision does not have new
federalism implications under Executive
Order 13132.
Executive Order 12988 (Civil Justice
Reform): This final rule meets
applicable standards of 3(a) and 3(b)(2)
of Executive Order 12988.
List of Subjects in 5 CFR Part 1820
Administrative practice and
procedure, Freedom of Information,
Government employees, Touhy
regulations.
IV. Authority and Issuance
For the reasons stated in the
preamble, OSC revises 5 CFR part 1820
as follows:
PART 1820—FREEDOM OF
INFORMATION ACT REQUESTS;
PRODUCTION OF RECORDS OR
TESTIMONY
1. The authority citation for 5 CFR
part 1820 continues to read as follows:
■
Authority: 5 U.S.C. 552 and 1212(e);
Executive Order No. 12600, 52 FR 23781.
■
2. Revise § 1820.1 to read as follows:
§ 1820.1
General provisions.
This part contains rules and
procedures followed by the U.S. Office
of Special Counsel (OSC) in processing
requests for records under the Freedom
of Information Act (FOIA), as amended,
at 5 U.S.C. 552. These rules and
procedures should be read together with
the FOIA, which provides additional
information about access to agency
records. Further information about the
FOIA and access to OSC records is
available on the FOIA page of OSC’s
Web site (https://www.osc.gov).
Information routinely provided to the
public as part of a regular OSC
activity—for example, forms, press
releases issued by the public affairs
officer, records published on the
agency’s Web site, or public lists
E:\FR\FM\24OCR1.SGM
24OCR1
Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations
maintained at OSC headquarter offices
pursuant to 5 U.S.C. 1219—may be
requested and provided to the public
without following this part. This part
also addresses responses to demands by
a court or other authority to an
employee for production of official
records or testimony in legal
proceedings.
■
3. Revise § 1820.2 to read as follows:
jstallworth on DSK7TPTVN1PROD with RULES
§ 1820.2 Requirements for making FOIA
requests.
(a) Submission of requests. (1) A
request for OSC records under the FOIA
must be made in writing. The request
must be sent by:
(i) Regular mail addressed to: FOIA
Officer, U.S. Office of Special Counsel,
1730 M Street NW., Suite 218,
Washington, DC 20036–4505; or
(ii) By fax sent to the FOIA Officer at
202–254–3711, the number provided on
the FOIA page of OSC’s Web site
(https://osc.gov/Pages/FOIAResources.aspx) (https://www.osc.gov);
or
(iii) By email to foiarequest@osc.gov
or other electronic means as described
on the FOIA page of OSC’s Web site,
https://osc.gov/Pages/FOIAResources.aspx.
(2) For the quickest handling, both the
request letter and envelope or any fax
cover sheet or email subject line should
be clearly marked ‘‘FOIA Request.’’
Whether sent by mail, fax, email, or
other prescribed electronic method, a
FOIA request will not be considered to
have been received by OSC until it
reaches the FOIA office.
(b) Description of records sought.
Requesters must describe the records
sought in enough detail for them to be
located with a reasonable amount of
effort. When requesting records about an
OSC case file, the case file number,
name, and type (for example, prohibited
personnel practice, Hatch Act, USERRA
or other complaint; Hatch Act advisory
opinion; or whistleblower disclosure)
should be provided, if known.
Whenever possible, requests should
describe any particular record sought,
such as the date, title or name, author,
recipient, and subject matter.
(c) Agreement to pay fees. Making a
FOIA request shall be considered an
agreement by the requester to pay all
applicable fees chargeable under
§ 1820.7, up to and including the
amount of $25.00, unless the requester
asks for a waiver of fees or specifies a
willingness to pay a greater or lesser
amount.
■
4. Revise § 1820.4 to read as follows:
VerDate Sep<11>2014
14:53 Oct 21, 2016
Jkt 241001
§ 1820.4
Timing of responses to requests.
(a) In general. OSC ordinarily will
respond to FOIA requests according to
their order of receipt. In determining
which records are responsive to a
request, OSC ordinarily will include
only records in its possession as of the
date on which it begins its search for
them. If any other date is used, OSC will
inform the requester of that date.
(b) Multitrack processing. (1) OSC
may use two or more processing tracks
by distinguishing between simple and
more complex requests based on the
amount of work and/or time needed to
process the request.
(2) When using multitrack processing,
OSC may provide requesters in its
slower track(s) with an opportunity to
limit the scope of their requests in order
to qualify for faster processing within
the specified limits of the faster track(s).
(c) Expedited processing. (1) Requests
and appeals will be taken out of order
and given expedited treatment
whenever OSC has established to its
satisfaction that:
(i) Failure to obtain requested records
on an expedited basis could reasonably
be expected to pose an imminent threat
to the life or physical safety of an
individual;
(ii) With respect to a request made by
a person primarily engaged in
disseminating information, an urgency
exists to inform the public about an
actual or alleged federal government
activity; or
(iii) The requested records relate to an
appeal for which the requester faces an
imminent deadline for filing with the
Merit Systems Protection Board or other
administrative tribunal or a court of law,
seeking personal relief pursuant to a
complaint filed by the requester with
OSC, or referred to OSC pursuant to title
38 of the U.S. Code. Expedited status
granted under this provision will apply
only to the following requested records:
Letters sent to the complainant by OSC;
and the official complaint form
submitted to OSC by the complainant or
the original referred complaint if
referred to OSC pursuant to title 38 of
the U.S. Code. All other requested
records will be processed according to
the order in which OSC received the
request.
(2) A request for expedited processing
must be made in writing and sent to
OSC’s FOIA Officer. Such a request will
not be considered to have been received
until it reaches the FOIA Officer.
(3) A requester who seeks expedited
processing must submit a statement,
certified to be true and correct to the
best of that person’s knowledge and
belief, explaining in detail the basis for
requesting expedited processing. For
PO 00000
Frm 00003
Fmt 4700
Sfmt 4700
73017
example, a requester within the category
described in paragraph (c)(1)(ii) of this
section, if not a full-time member of the
news media, must establish that he or
she is a person whose main professional
activity or occupation is information
dissemination, though it need not be his
or her sole occupation. The formality of
certification may be waived as a matter
of OSC’s administrative discretion.
(4) OSC shall decide whether to grant
a request for expedited processing and
notify the requester of its decision
within 10 calendar days of the FOIA
Officer’s receipt of the request. If the
request for expedited processing is
granted, the request for records shall be
processed as soon as practicable. If a
request for expedited processing is
denied, any administrative appeal of
that decision shall be acted on
expeditiously.
(d) Aggregated requests. OSC may
aggregate multiple requests by the same
requester, or by a group of requesters
acting in concert, if it reasonably
believes that such requests constitute a
single request involving unusual
circumstances, as defined by the FOIA,
supporting an extension of time to
respond, and the requests involve
clearly related matters.
■ 5. Revise § 1820.6 to read as follows:
§ 1820.6
Appeals.
(a) Appeals of adverse
determinations. A requester may appeal
an adverse determination denying a
FOIA request in any respect to the
Office of General Counsel, U.S. Office of
Special Counsel, 1730 M Street NW.,
Suite 218, Washington, DC 20036–4505.
The appeal must be in writing, and must
be submitted either by:
(1) Regular mail sent to the address
listed in this subsection, above; or
(2) By fax sent to the FOIA Officer at,
(202) 254–3711, the number provided
on the FOIA page of OSC’s Web site
https://osc.gov/Pages/FOIAResources.aspx; or
(3) By email to foiaappeal@osc.gov, or
other electronic means as described on
the FOIA page of OSC’s Web site,
https://osc.gov/Pages/FOIAResources.aspx.
(b) Submission and content. The
appeal must be received by the Office of
General Counsel within 45 days of the
date of the letter denying the request.
For the quickest possible handling, the
appeal letter and envelope or any fax
cover sheet should be clearly marked
‘‘FOIA Appeal.’’ The appeal letter must
clearly identify the OSC determination
(including the assigned FOIA request
number, if known) being appealed. An
appeal ordinarily will not be acted on if
E:\FR\FM\24OCR1.SGM
24OCR1
73018
Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations
the request becomes a matter of FOIA
litigation.
(c) Responses to appeals. The agency
decision on an appeal will be made in
writing. A decision affirming an adverse
determination in whole or in part shall
inform the requester of the provisions
for judicial review of that decision. If
the adverse determination is reversed or
modified on appeal, in whole or in part,
the requester will be notified in a
written decision and the request will be
reprocessed in accordance with that
appeal decision.
6. Add a new heading for subpart A
before § 1820.10 as set forth below.
■
7. Revise § 1820.10 and add
§§ 1820.11 and 1820.12 to subpart A to
read as follows:
■
Subpart A—Touhy Regulations
General Provisions
Sec.
1820.10
1820.11
1820.12
jstallworth on DSK7TPTVN1PROD with RULES
§ 1820.10
Scope and purpose.
(a) This part establishes policy,
assigns responsibilities and prescribes
procedures with respect to:
(1) The production or disclosure of
official information or records by
current and former OSC employees, and
contractors; and
(2) The testimony of current and
former OSC employees, advisors, and
consultants relating to official
information, official duties, or the OSC’s
records, in connection with federal or
state litigation or administrative
proceedings in which the OSC is not a
party.
(b) The OSC intends this part to:
(1) Conserve the time of OSC
employees for conducting official
business;
(2) Minimize the involvement of OSC
employees in issues unrelated to OSC’s
mission;
(3) Maintain the impartiality of OSC
employees in disputes between private
litigants; and
(4) Protect sensitive, confidential
information and the deliberative
processes of the OSC.
(c) In providing for these
requirements, the OSC does not waive
the sovereign immunity of the United
States.
(d) This part provides guidance for
the internal operations of OSC. It does
not create any right or benefit,
substantive or procedural, that a party
may rely upon in any legal proceeding
against the United States.
14:53 Oct 21, 2016
Jkt 241001
Applicability.
This part applies to demands and
requests to current and former
employees, and contractors, for factual
or expert testimony relating to official
information or official duties or for
production of official records or
information, in legal proceedings in
which the OSC is not a named party.
This part does not apply to:
(a) Demands upon or requests for
current or former OSC employees or
contractors to testify as to facts or events
that are unrelated to his or her official
duties or that are unrelated to the
functions of the OSC;
(b) Requests for the release of records
under the Freedom of Information Act,
5 U.S.C. 552, or the Privacy Act, 5
U.S.C. 552a; or
(c) Congressional demands and
requests for testimony, records or
information.
§ 1820.12
Scope and purpose.
Applicability.
Definitions.
VerDate Sep<11>2014
§ 1820.11
Definitions.
The following definitions apply to
this part.
Demand means an order, subpoena, or
other command of a court or other
competent authority for the production,
disclosure, or release of records or for
the appearance and testimony of an OSC
employee in a legal proceeding.
General Counsel means the General
Counsel of the OSC or a person to whom
the General Counsel has delegated
authority under this part.
Legal proceeding means any matter
before a court of law, administrative
board or tribunal, commission,
administrative law judge, hearing officer
or other body that conducts a legal or
administrative proceeding. Legal
proceeding includes all phases of
litigation.
OSC means the U.S. Office of Special
Counsel.
OSC employee or employee means:
(1)(i) Any current or former employee
of the OSC; and
(ii) Any other individual hired
through contractual agreement by or on
behalf of the OSC or who has performed
or is performing services under such an
agreement for the OSC.
(2) This definition does not include
persons who are no longer employed by
the OSC and who agree to testify about
matters available to the public.
Records or official records and
information means all information in
the custody and control of the OSC,
relating to information in the custody
and control of the OSC, or acquired by
an OSC employee in the performance of
his or her official duties or because of
his or her official status, while the
individual was employee by or on
behalf of the OSC.
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
Request means any informal request,
by whatever method, for the production
of records and information or for
testimony which has not been ordered
by a court of other competent authority.
Testimony means any written or oral
statements, including depositions,
answers to interrogatories, affidavits,
declarations, interviews, and statements
made by an individual in connection
with a legal proceeding.
■ 8. Add subpart B to read as follows:
Subpart B—Demands or Requests for
Testimony and Production of
Documents
Sec.
1820.13 General prohibition.
1820.14 Factors the OSC will consider.
1820.15 Filing requirements for litigants.
1820.16 Service of requests or demands.
1820.17 Processing requests or demands.
1820.18 Final determinations.
1820.19 Restrictions that apply to
testimony.
1820.20 Restrictions that apply to released
records.
1820.21 Procedure when a decision is not
made prior to the time a response is
required.
1820.22 Procedure in the event of an
adverse ruling.
§ 1820.13
General prohibition.
No employee of OSC may produce
official records and information or
provide any testimony relating to
official information in response to a
demand or request without the prior
written approval of the General Counsel.
§ 1820.14
Factors the OSC will consider.
The General Counsel, in his or her
sole discretion, may grant an employee
permission to testify on matters relating
to official information, or produce
official records and information, in
response to a demand or request.
Among the relevant factors that the
General Counsel may consider in
making this decision are whether:
(a) The purposes of this part are met;
(b) Allowing such testimony or
production of records would be
necessary to prevent a miscarriage of
justice;
(c) Allowing such testimony or
production of records would assist or
hinder the OSC in performing its
statutory duties;
(d) Allowing such testimony or
production of records would be in the
best interest of the OSC or the United
States;
(e) The records or testimony can be
obtained from other sources;
(f) The demand or request is unduly
burdensome or otherwise inappropriate
under the applicable rules of discovery
or the rule of procedure governing the
E:\FR\FM\24OCR1.SGM
24OCR1
Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations
case or matter in which the demand or
request arose;
(g) Disclosure would violate a statute,
Executive Order or regulation;
(h) Disclosure would reveal
confidential, sensitive, or privileged
information, trade secrets or similar,
confidential or financial information,
otherwise protected information, or
information which would otherwise be
inappropriate for release;
(i) Disclosure would impede or
interfere with an ongoing law
enforcement investigation or
proceeding, or compromise
constitutional rights or national security
interests;
(j) Disclosure would result in the OSC
appearing to favor one litigant over
another;
(k) A substantial government interest
is implicated;
(l) The demand or request is within
the authority of the party making it; and
(m) The demand or request is
sufficiently specific to be answered.
jstallworth on DSK7TPTVN1PROD with RULES
§ 1820.15 Filing requirements for litigants
seeking documents or testimony.
A litigant must comply with the
following requirements when filing a
request for official records and
information or testimony under this
part. A request should be filed before a
demand is issued.
(a) The request must be in writing and
must be submitted to the General
Counsel.
(b) The written request must contain
the following information:
(1) The caption of the legal or
administrative proceeding, docket
number, and name and address of the
court or other administrative or
regulatory authority involved;
(2) A copy of the complaint or
equivalent document setting forth the
assertions in the case and any other
pleading or document necessary to
show relevance;
(3) A list of categories of records
sought, a detailed description of how
the information sought is relevant to the
issues in the legal or administrative
proceeding, and a specific description of
the substance of the testimony or
records sought;
(4) A statement as to how the need for
the information outweighs any need to
maintain the confidentiality of the
information and outweighs the burden
on the OSC to produce the records or
provide testimony;
(5) A statement indicating that the
information sought is not available from
another source, from other persons or
entities, or from the testimony of
someone other than an OSC employee,
such as a retained expert;
VerDate Sep<11>2014
14:53 Oct 21, 2016
Jkt 241001
(6) If testimony is requested, the
intended use of the testimony, and a
showing that no document could be
provided and used in lieu of testimony;
(7) A description of all prior
decisions, orders, or pending motions in
the case that bear upon the relevance of
the requested records or testimony;
(8) The name, address, and telephone
number of counsel to each party in the
case; and
(9) An estimate of the amount of time
that the requester and other parties will
require of each OSC employee for time
spent by the employee to prepare for
testimony, in travel, and for attendance
in the legal proceeding.
(c) The OSC reserves the right to
require additional information to
complete the request where appropriate.
(d) The request should be submitted
at least 30 days before the date that
records or testimony is required.
Requests submitted in less than 30 days
before records or testimony is required
must be accompanied by a written
explanation stating the reasons for the
late request and the reasons for
expedited processing.
(e) Failure to cooperate in good faith
to enable the General Counsel to make
an informed decision may serve as the
basis for a determination not to comply
with the request.
(f) The request should state that the
requester will provide a copy of the OSC
employee’s statement free of charge and
that the requester will permit the OSC
to have a representative present during
the employee’s testimony.
§ 1820.16
Service of requests or demands.
Requests or demands for official
records or information or testimony
under this subpart must be served by
mail or hand delivery to the Office of
General Counsel, U.S. Office of Special
Counsel, 1730 M St. NW., Suite 213,
Washington, DC 20036; or sent by fax to
202–254–3711.
§ 1820.17 Processing requests or
demands.
(a) After receiving service of a request
or demand for testimony, the General
Counsel will review the request and, in
accordance with the provisions of this
subpart, determine whether, or under
what conditions, to authorize the
employee to testify on matters relating
to official information and/or produce
official records and information.
(b) Absent exigent circumstances, the
OSC will issue a determination within
30 days from the date the request is
received.
(c) The General Counsel may grant a
waiver of any procedure described by
this subpart where a waiver is
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
73019
considered necessary to promote a
significant interest of the OSC or the
United States, or for other good cause.
(d) Certification (authentication) of
copies of records. The OSC may certify
that records are true copies in order to
facilitate their use as evidence. If a
requester seeks certification, the
requester must request certified copies
from the OSC at least 30 days before the
date they will be needed.
§ 1820.18
Final determination.
The General Counsel makes the final
determination regarding requests to
employees for production of official
records and information or testimony in
litigation in which the OSC is not a
party. All final determinations are
within the sole discretion of the General
Counsel. The General Counsel will
notify the requester and, when
appropriate, the court or other
competent authority of the final
determination, the reasons for the grant
or denial of the request, and any
conditions that the General Counsel
may impose on the release of records or
information, or on the testimony of an
OSC employee. The General Counsel’s
decision exhausts administrative
remedies for purposes of disclosure of
the information.
§ 1820.19 Restrictions that apply to
testimony.
(a) The General Counsel may impose
conditions or restrictions on the
testimony of OSC employees including,
for example:
(1) Limiting the areas of testimony;
(2) Requiring the requester and other
parties to the legal proceeding to agree
that the transcript of the testimony will
be kept under seal;
(3) Requiring that the transcript will
be used or made available only in the
particular legal proceeding for which
testimony was requested. The General
Counsel may also require a copy of the
transcript of testimony at the requester’s
expense.
(b) The OSC may offer the employee’s
written declaration in lieu of testimony.
(c) If authorized to testify pursuant to
this part, an employee may testify as to
facts within his or her personal
knowledge, but, unless specifically
authorized to do so by the General
Counsel, the employee shall not;
(1) Disclose confidential or privileged
information; or
(2) For a current OSC employee,
testify as an expert or opinion witness
with regard to any matter arising out of
the employee’s official duties or the
functions of the OSC unless testimony
is being given on behalf of the United
States (see also 5 CFR 2635.805).
E:\FR\FM\24OCR1.SGM
24OCR1
73020
Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Rules and Regulations
(d) The scheduling of an employee’s
testimony, including the amount of time
that the employee will be made
available for testimony, will be subject
to the OSC’s approval.
■
§ 1820.20 Restrictions that apply to
released records.
(a) Generally. The General Counsel
may condition the production of records
or appearance for testimony upon
advance payment of a reasonable
estimate of the costs to the OSC.
(b) Fees for records. Fees for
producing records will include fees for
searching, reviewing, and duplicating
records, costs of attorney time spent in
reviewing the request, and expenses
generated by materials and equipment
used to search for, produce, and copy
the responsive information. Costs for
employee time will be calculated on the
basis of the hourly pay of the employee
(including all pay, allowances, and
benefits). Fees for duplication will be
the same as those charged by the OSC
in its Freedom of Information Act
regulations at § 1820.7.
(c) Witness fees. Fees for attendance
by a witness will include fees, expenses,
and allowances prescribed by the
court’s rules. If no such fees are
prescribed, witness fees will be
determined based upon the rule of the
federal district closest to the location
where the witness will appear and on 28
U.S.C. 1821, as applicable. Such fees
will include cost of time spent by the
witness to prepare for testimony, in
travel and for attendance in the legal
proceeding, plus travel costs.
(d) Payment of fees. A requester must
pay witness fees for current OSC
employees and any record certification
fees by submitting to the General
Counsel a check or money order for the
appropriate amount made payable to the
United States Department of Treasury.
In the case of testimony of former OSC
employees, the requester must pay
applicable fees directly to the former
OSC employee in accordance with 28
U.S.C. 1821 or other applicable statutes.
(e) Waiver or reduction of fees. The
General Counsel, in his or her sole
discretion, may, upon a showing of
reasonable cause, waive or reduce any
fees in connection with the testimony,
production, or certification of records.
(f) De minimis fees. Fees will not be
assessed if the total charge would be
$10.00 or less.
■ 10. Add subpart D, consisting of
§ 1820.24, to read as follows:
(a) The General Counsel may impose
conditions or restrictions on the release
of official records and information,
including the requirement that parties to
the proceeding obtain a protective order
or execute a confidentiality agreement
to limit access and any further
disclosure. The terms of the protective
order or of a confidentiality agreement
must be acceptable to the General
Counsel. In cases where protective
orders or confidentiality agreements
have already been executed, the OSC
may condition the release of official
records and information on an
amendment to the existing protective
order (subject to court approval) or
confidentiality agreement.
(b) If the General Counsel so
determines, original OSC records may
be presented for examination in
response to a request, but they may not
be presented as evidence or otherwise
used in a manner by which they could
lose their identity as official OSC
records, nor may they be marked or
altered. In lieu of the original records,
certified copies may be presented for
evidentiary purposes.
§ 1820.21 Procedure when a decision is
not made prior to the time a response is
required.
If a response to a demand or request
is required before the General Counsel
can make the determination referred to
in § 1820.28, the General Counsel, when
necessary, will provide the court or
other competent authority with a copy
of this part, inform the court or other
competent authority that the request is
being reviewed, provide an estimate as
to when a decision will be made, and
seek a stay of the demand or request
pending a final determination.
jstallworth on DSK7TPTVN1PROD with RULES
§ 1820.22 Procedure in the event of an
adverse ruling.
If the court or other competent
authority fails to stay a demand or
request, the employee upon whom the
demand or request is made, unless
otherwise advised by the General
Counsel, will appear, if necessary, at the
stated time and place, produce a copy
of this part, state that the employee has
been advised by counsel not to provide
the requested testimony or produce
documents, and respectfully decline to
comply with the demand or request,
citing United States ex rel. Touhy v.
Ragen, 340 U.S. 462 (1951).
VerDate Sep<11>2014
14:53 Oct 21, 2016
Jkt 241001
9. Add subpart C, consisting of
§ 1820.23, to read as follows:
Subpart C—Schedule of Fees
§ 1820.23
Fees.
Subpart D—Penalties
§ 1820.24
Penalties.
(a) An employee who discloses
official records or information or gives
testimony relating to official
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
information, except as expressly
authorized by the OSC, or as ordered by
a federal court after the OSC has had the
opportunity to be heard, may face the
penalties provided in 18 U.S.C. 641 and
other applicable laws. Additionally,
former OSC employees are subject to the
restrictions and penalties of 18 U.S.C.
207 and 216.
(b) A current OSC employee who
testifies or produces official records and
information in violation of this part
shall be subject to disciplinary action.
■ 11. Add subpart E, consisting of
§ 1820.25, to read as follows:
Subpart E—Conformity With Other
Laws
§ 1820.25
Conformity with other laws.
This regulation is not intended to
conflict with 5 U.S.C. 2302(b)(13).
Dated: September 21, 2016.
Lisa V. Terry,
General Counsel.
[FR Doc. 2016–23215 Filed 10–21–16; 8:45 am]
BILLING CODE 7405–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2006–23706; Directorate
Identifier 2006–NE–03–AD; Amendment 39–
18688; AD 2016–21–07]
RIN 2120–AA64
Airworthiness Directives; Honeywell
International Inc. Turboprop Engines
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
We are superseding
airworthiness directive (AD) 2015–12–
04 for all Honeywell International Inc.
(Honeywell) TPE331–1, –2, –2UA, –3U,
–3UW, –5, –5A, –5AB, –5B, –6, –6A,
–10, –10AV, –10GP, –10GT, –10P, –10R,
–10T, –10U, –10UA, –10UF, –10UG,
–10UGR, –10UR, –11U, –12JR, –12UA,
–12UAR, and –12UHR turboprop
engines with certain Woodward fuel
control unit (FCU) assemblies, installed.
AD 2015–12–04 required initial and
repetitive dimensional inspections of
the affected fuel control drives and
insertion of certain airplane operating
procedures into the applicable flight
manuals. This AD corrects the
compliance requirements and relaxes
the inspection interval. This AD was
prompted by a request to change
compliance time from 50 hours to 100
hours for affected fuel controls. We are
SUMMARY:
E:\FR\FM\24OCR1.SGM
24OCR1
Agencies
[Federal Register Volume 81, Number 205 (Monday, October 24, 2016)]
[Rules and Regulations]
[Pages 73015-73020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23215]
========================================================================
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. 81, No. 205 / Monday, October 24, 2016 /
Rules and Regulations
[[Page 73015]]
OFFICE OF SPECIAL COUNSEL
5 CFR Part 1820
Revision of Regulations Governing Freedom of Information Act
Requests and Appeals, and Revision of Touhy Regulations Governing
Release of Information in Response to Legal Proceedings
AGENCY: U.S. Office of Special Counsel.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Final rule.
This final rule updates and clarifies the procedures for submitting
Freedom of Information Act (FOIA) requests and appeals to the U.S.
Office of Special Counsel (OSC). The rule describes additional methods
for submitting FOIA requests and appeals. It also promotes efficiency
in FOIA administration by enhancing OSC's ability to respond to certain
requests on an expedited basis. The final rule makes minor technical
revisions to the name of an OSC unit and to OSC's Internet, fax, and
physical address information. The rule also establishes procedures that
requesters must follow when making demands on or requests to an OSC
employee to produce official records or provide testimony relating to
official information in connection with a legal proceeding in which the
OSC is not a party.
DATES: This final rule is effective October 24, 2016.
FOR FURTHER INFORMATION CONTACT: Amy Beckett, Senior Litigation
Counsel, U.S. Office of Special Counsel, 202-254-3657
SUPPLEMENTARY INFORMATION: OSC published a proposed rule on May 5,
2015, FR Doc No: 2016-09799 and solicited public comment on that rule.
OSC has considered the comments and is issuing this final rule in due
course.
I. Background
FOIA Regulations. The U.S. Office of Special Counsel (OSC) revises
its FOIA regulations to account for the additional electronic methods
by which requesters may submit FOIA requests and appeals, and modifies
the manner by which requests qualify for expedited processing. OSC also
makes minor technical revisions to the name of an OSC unit and to OSC's
Internet, fax, and physical address information.
The existing language of 5 CFR 1820.2 and 1820.6 describes regular
mail and fax as the methods by which to submit FOIA requests and
appeals. The final rule adds email or other electronic submission
methods.
The existing language of 5 CFR 1820.1 refers to the main OSC
Internet and FOIA page addresses. The final rule describes Internet
access to OSC FOIA resources through the main OSC Internet address. The
first commenter suggested that subsection (a)(1) identify OSC's fax
number and email address. At the risk of the contact information later
being changed, OSC considered and adopted the suggested change to
subsection (a)(1). The commenter also suggested a minor grammatical
change to subsection (c), which OSC also considered and adopted. The
first commenter also proposed changes to Section 1820.3 regarding
whether OSC may consult with entities the commenter argues are not
``agencies'' for FOIA purposes. OSC is postponing consideration of this
suggested change pending its mandated update to the regulation required
by the recently enacted FOIA Improvement Act of 2016, Public Law 114-
185.
The existing language of 5 CFR 1820.2 and 1820.6 regarding OSC's
physical address would be modified in a minor, technical manner. The
first commenter also suggested that subsection (a)(3) allow requesters
to submit appeals by email in addition to ``other electronic means.''
OSC has accepted email requests and appeals for several years, so OSC
adopts the suggested change both to conform the rule to OSC's current
practice and to specify that OSC accepts email submissions. The
commenter also urged OSC to notify requesters of the mediation services
offered by the Office of Government Information Services and to add
that OSC will respond to administrative appeals within the statutory
deadline. OSC has already adopted this practice pursuant to the
recently enacted FOIA Improvement Act of 2016, Public Law 114-185. OSC
has also begun to notify new requesters as of June 30, 2016 that they
have 90 days to appeal an adverse determination and will revise the
regulation to reflect this, and other updated practices, when it issues
its mandated update to the regulation required by the recently enacted
FOIA Improvement Act of 2016, Public Law 114-185. The existing language
of 5 CFR 1820.6 refers to an OSC unit as the ``Legal Counsel and Policy
Division.'' The name of that unit is updated in the final rule to the
``Office of General Counsel.''
The existing language of 5 CFR 1820.4(c)(1)(iii) discusses one of
the three criteria under which a FOIA request can be processed out of
order of receipt and addressed on an expedited basis. That language
provides, in part, expedited treatment of a FOIA request when the
requested records relate to ``an appeal that is pending before, or that
the requester faces an imminent deadline for filing with'' another
administrative or judicial tribunal, ``seeking personal relief pursuant
to a complaint filed by the requester with OSC, or referred to OSC
pursuant to title 38 of the U.S. Code.''
The final rule clarifies that the criteria discussed at 5 CFR
1820.4(c)(1)(iii) applies only when the requested records relate to an
appeal for which the requester faces an imminent deadline for filing
with another administrative or judicial tribunal. In addition, the
final rule specifies that a grant of expedited treatment applies only
to the following requested records: Letters sent to a complainant by
OSC, and the official complaint form submitted to OSC by the
complainant or the original referred complaint if referred to OSC
pursuant to title 38 of the U.S. Code. All other requested records
would be processed according to the order in which OSC received the
request.
By narrowing the focus of expedited status to certain records that
are of interest to complainant-requesters, and are typically readily
available for disclosure to the complainant-requesters, OSC is able to
process and respond to expedited requests more efficiently. Any other
requested records will generally be processed in the order OSC received
the request.
[[Page 73016]]
Touhy Regulations. OSC also revises its regulations relating to the
release of information in response to requests made in connection with
legal proceedings, such as summonses, complaints, subpoenas, and other
litigation-related requests or demands for OSC's records or official
information. These regulations are often referred to as Touhy
regulations.
Federal agencies often receive demands consisting of informal
requests for production of records, information, or testimony in
judicial, legislative, or administrative proceedings in which the
agency is not a named party. OSC revises its regulation to improve its
evaluation and processing of such requests.
The United States Supreme Court upheld this type of regulation in
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), holding that
provisions in the federal ``housekeeping'' statute authorize agencies
to promulgate rules governing record production and employee testimony.
See 5 U.S.C. 301.
The prior language of 5 CFR1820.10 referred to the ``[p]roduction
of official records or testimony in legal proceedings.'' This revision
provides the agency with more clearly delineated standards for
releasing information or witness testimony. Generally, this revision
re-establishes that no OSC employee or former employee shall release
official information or records without the prior approval of the
Special Counsel or the Special Counsel's duly authorized designee.
Under this final rule, OSC establishes procedural requirements for
the form and content of requests for official OSC information made
through a litigation request or demand, as well as establishing
procedures for responding to the requests. This final rule also states
the factors that OSC will consider in determining whether to authorize
a release of official information in response to a request.
II. Overview of Comments Received
In response to the proposed rule, OSC received two comment letters
regarding the proposed changes to the FOIA regulation, including
suggestions for changing additional sections of the regulation. The
first commenter suggested that OSC include additional contact details
within the text of the FOIA regulation, that OSC amend the section
governing consultations and referrals, and that OSC make additional
changes as to the appeals process. The second commenter suggested
changes regarding the definition of ``representative of the news
media,'' fees, records preservation, and records management. OSC will
postpone consideration of several of the proposed changes pending its
mandated update to the regulation required by the recently enacted FOIA
Improvement Act of 2016l, Public Law 114-185.
OSC did not receive any comments concerning its Touhy regulation.
Accordingly, OSC will issue the final rule without modification to the
Touhy provisions.
In section IV below, OSC set forth its final rule, a section by
section summary of the two comments it received to the proposed final
rule, and OSC's responses to these comments.
Subpart A, Sections 1820.10, 11, and 12
III. Procedural Determinations
Administrative Procedure Act (APA): This action is taken under the
Special Counsel's authority at 5 U.S.C. 1212(e) to publish regulations
in the Federal Register.
Executive Order 12866 (Regulatory Planning and Review): OSC does
not anticipate that this final rule will have significant economic
impact, raise novel issues, and/or have any other significant impacts.
Thus this final rule is not a significant regulatory action under 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under 6(a)(3) of the Order.
Congressional Review Act (CRA): OSC has determined that this final
rule is not a major rule under the Congressional Review Act, as it is
unlikely to result in an annual effect on the economy of $100 million
or more; is unlikely to result in a major increase in costs or prices
for consumers, individual industries, federal, state, or local
government agencies or geographic regions; and is unlikely to have a
significant adverse effect on competition, employment, investment,
productivity, or innovation, or on the ability of U.S.-based
enterprises to compete in domestic and export markets.
Regulatory Flexibility Act (RFA): The Regulatory Flexibility Act
does not apply, even though this final rule was offered for notice and
comment procedures under the APA. This final rule will not directly
regulate small entities. OSC therefore need not perform a regulatory
flexibility analysis of small entity impacts.
Unfunded Mandates Reform Act (UMRA): This revision does not impose
any federal mandates on state, local, or tribal governments, or on the
private sector within the meaning of the UMRA.
National Environmental Policy Act (NEPA): This final rule will have
no physical impact upon the environment and therefore will not require
any further review under NEPA.
Paperwork Reduction Act (PRA): This final rule does not impose any
new recordkeeping, reporting, or other information collection
requirements on the public. The final rule sets forth procedures by
which litigants may serve summonses, complaints, subpoenas, and other
legal process, demands, and requests upon the OSC. The final rule
imposes special procedural requirements for those who seek to serve
third-party subpoenas upon the OSC in accordance with United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951). These requirements may
increase the time and burden associated with obtaining records of the
OSC in response to such third-party subpoenas.
Executive Order 13132 (Federalism): This final revision does not
have new federalism implications under Executive Order 13132.
Executive Order 12988 (Civil Justice Reform): This final rule meets
applicable standards of 3(a) and 3(b)(2) of Executive Order 12988.
List of Subjects in 5 CFR Part 1820
Administrative practice and procedure, Freedom of Information,
Government employees, Touhy regulations.
IV. Authority and Issuance
For the reasons stated in the preamble, OSC revises 5 CFR part 1820
as follows:
PART 1820--FREEDOM OF INFORMATION ACT REQUESTS; PRODUCTION OF
RECORDS OR TESTIMONY
0
1. The authority citation for 5 CFR part 1820 continues to read as
follows:
Authority: 5 U.S.C. 552 and 1212(e); Executive Order No. 12600,
52 FR 23781.
0
2. Revise Sec. 1820.1 to read as follows:
Sec. 1820.1 General provisions.
This part contains rules and procedures followed by the U.S. Office
of Special Counsel (OSC) in processing requests for records under the
Freedom of Information Act (FOIA), as amended, at 5 U.S.C. 552. These
rules and procedures should be read together with the FOIA, which
provides additional information about access to agency records. Further
information about the FOIA and access to OSC records is available on
the FOIA page of OSC's Web site (https://www.osc.gov). Information
routinely provided to the public as part of a regular OSC activity--for
example, forms, press releases issued by the public affairs officer,
records published on the agency's Web site, or public lists
[[Page 73017]]
maintained at OSC headquarter offices pursuant to 5 U.S.C. 1219--may be
requested and provided to the public without following this part. This
part also addresses responses to demands by a court or other authority
to an employee for production of official records or testimony in legal
proceedings.
0
3. Revise Sec. 1820.2 to read as follows:
Sec. 1820.2 Requirements for making FOIA requests.
(a) Submission of requests. (1) A request for OSC records under the
FOIA must be made in writing. The request must be sent by:
(i) Regular mail addressed to: FOIA Officer, U.S. Office of Special
Counsel, 1730 M Street NW., Suite 218, Washington, DC 20036-4505; or
(ii) By fax sent to the FOIA Officer at 202-254-3711, the number
provided on the FOIA page of OSC's Web site (https://osc.gov/Pages/FOIA-Resources.aspx) (https://www.osc.gov); or
(iii) By email to foiarequest@osc.gov or other electronic means as
described on the FOIA page of OSC's Web site, https://osc.gov/Pages/FOIA-Resources.aspx.
(2) For the quickest handling, both the request letter and envelope
or any fax cover sheet or email subject line should be clearly marked
``FOIA Request.'' Whether sent by mail, fax, email, or other prescribed
electronic method, a FOIA request will not be considered to have been
received by OSC until it reaches the FOIA office.
(b) Description of records sought. Requesters must describe the
records sought in enough detail for them to be located with a
reasonable amount of effort. When requesting records about an OSC case
file, the case file number, name, and type (for example, prohibited
personnel practice, Hatch Act, USERRA or other complaint; Hatch Act
advisory opinion; or whistleblower disclosure) should be provided, if
known. Whenever possible, requests should describe any particular
record sought, such as the date, title or name, author, recipient, and
subject matter.
(c) Agreement to pay fees. Making a FOIA request shall be
considered an agreement by the requester to pay all applicable fees
chargeable under Sec. 1820.7, up to and including the amount of
$25.00, unless the requester asks for a waiver of fees or specifies a
willingness to pay a greater or lesser amount.
0
4. Revise Sec. 1820.4 to read as follows:
Sec. 1820.4 Timing of responses to requests.
(a) In general. OSC ordinarily will respond to FOIA requests
according to their order of receipt. In determining which records are
responsive to a request, OSC ordinarily will include only records in
its possession as of the date on which it begins its search for them.
If any other date is used, OSC will inform the requester of that date.
(b) Multitrack processing. (1) OSC may use two or more processing
tracks by distinguishing between simple and more complex requests based
on the amount of work and/or time needed to process the request.
(2) When using multitrack processing, OSC may provide requesters in
its slower track(s) with an opportunity to limit the scope of their
requests in order to qualify for faster processing within the specified
limits of the faster track(s).
(c) Expedited processing. (1) Requests and appeals will be taken
out of order and given expedited treatment whenever OSC has established
to its satisfaction that:
(i) Failure to obtain requested records on an expedited basis could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) With respect to a request made by a person primarily engaged
in disseminating information, an urgency exists to inform the public
about an actual or alleged federal government activity; or
(iii) The requested records relate to an appeal for which the
requester faces an imminent deadline for filing with the Merit Systems
Protection Board or other administrative tribunal or a court of law,
seeking personal relief pursuant to a complaint filed by the requester
with OSC, or referred to OSC pursuant to title 38 of the U.S. Code.
Expedited status granted under this provision will apply only to the
following requested records: Letters sent to the complainant by OSC;
and the official complaint form submitted to OSC by the complainant or
the original referred complaint if referred to OSC pursuant to title 38
of the U.S. Code. All other requested records will be processed
according to the order in which OSC received the request.
(2) A request for expedited processing must be made in writing and
sent to OSC's FOIA Officer. Such a request will not be considered to
have been received until it reaches the FOIA Officer.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that
person's knowledge and belief, explaining in detail the basis for
requesting expedited processing. For example, a requester within the
category described in paragraph (c)(1)(ii) of this section, if not a
full-time member of the news media, must establish that he or she is a
person whose main professional activity or occupation is information
dissemination, though it need not be his or her sole occupation. The
formality of certification may be waived as a matter of OSC's
administrative discretion.
(4) OSC shall decide whether to grant a request for expedited
processing and notify the requester of its decision within 10 calendar
days of the FOIA Officer's receipt of the request. If the request for
expedited processing is granted, the request for records shall be
processed as soon as practicable. If a request for expedited processing
is denied, any administrative appeal of that decision shall be acted on
expeditiously.
(d) Aggregated requests. OSC may aggregate multiple requests by the
same requester, or by a group of requesters acting in concert, if it
reasonably believes that such requests constitute a single request
involving unusual circumstances, as defined by the FOIA, supporting an
extension of time to respond, and the requests involve clearly related
matters.
0
5. Revise Sec. 1820.6 to read as follows:
Sec. 1820.6 Appeals.
(a) Appeals of adverse determinations. A requester may appeal an
adverse determination denying a FOIA request in any respect to the
Office of General Counsel, U.S. Office of Special Counsel, 1730 M
Street NW., Suite 218, Washington, DC 20036-4505. The appeal must be in
writing, and must be submitted either by:
(1) Regular mail sent to the address listed in this subsection,
above; or
(2) By fax sent to the FOIA Officer at, (202) 254-3711, the number
provided on the FOIA page of OSC's Web site https://osc.gov/Pages/FOIA-Resources.aspx; or
(3) By email to foiaappeal@osc.gov, or other electronic means as
described on the FOIA page of OSC's Web site, https://osc.gov/Pages/FOIA-Resources.aspx.
(b) Submission and content. The appeal must be received by the
Office of General Counsel within 45 days of the date of the letter
denying the request. For the quickest possible handling, the appeal
letter and envelope or any fax cover sheet should be clearly marked
``FOIA Appeal.'' The appeal letter must clearly identify the OSC
determination (including the assigned FOIA request number, if known)
being appealed. An appeal ordinarily will not be acted on if
[[Page 73018]]
the request becomes a matter of FOIA litigation.
(c) Responses to appeals. The agency decision on an appeal will be
made in writing. A decision affirming an adverse determination in whole
or in part shall inform the requester of the provisions for judicial
review of that decision. If the adverse determination is reversed or
modified on appeal, in whole or in part, the requester will be notified
in a written decision and the request will be reprocessed in accordance
with that appeal decision.
0
6. Add a new heading for subpart A before Sec. 1820.10 as set forth
below.
0
7. Revise Sec. 1820.10 and add Sec. Sec. 1820.11 and 1820.12 to
subpart A to read as follows:
Subpart A--Touhy Regulations General Provisions
Sec.
1820.10 Scope and purpose.
1820.11 Applicability.
1820.12 Definitions.
Sec. 1820.10 Scope and purpose.
(a) This part establishes policy, assigns responsibilities and
prescribes procedures with respect to:
(1) The production or disclosure of official information or records
by current and former OSC employees, and contractors; and
(2) The testimony of current and former OSC employees, advisors,
and consultants relating to official information, official duties, or
the OSC's records, in connection with federal or state litigation or
administrative proceedings in which the OSC is not a party.
(b) The OSC intends this part to:
(1) Conserve the time of OSC employees for conducting official
business;
(2) Minimize the involvement of OSC employees in issues unrelated
to OSC's mission;
(3) Maintain the impartiality of OSC employees in disputes between
private litigants; and
(4) Protect sensitive, confidential information and the
deliberative processes of the OSC.
(c) In providing for these requirements, the OSC does not waive the
sovereign immunity of the United States.
(d) This part provides guidance for the internal operations of OSC.
It does not create any right or benefit, substantive or procedural,
that a party may rely upon in any legal proceeding against the United
States.
Sec. 1820.11 Applicability.
This part applies to demands and requests to current and former
employees, and contractors, for factual or expert testimony relating to
official information or official duties or for production of official
records or information, in legal proceedings in which the OSC is not a
named party. This part does not apply to:
(a) Demands upon or requests for current or former OSC employees or
contractors to testify as to facts or events that are unrelated to his
or her official duties or that are unrelated to the functions of the
OSC;
(b) Requests for the release of records under the Freedom of
Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; or
(c) Congressional demands and requests for testimony, records or
information.
Sec. 1820.12 Definitions.
The following definitions apply to this part.
Demand means an order, subpoena, or other command of a court or
other competent authority for the production, disclosure, or release of
records or for the appearance and testimony of an OSC employee in a
legal proceeding.
General Counsel means the General Counsel of the OSC or a person to
whom the General Counsel has delegated authority under this part.
Legal proceeding means any matter before a court of law,
administrative board or tribunal, commission, administrative law judge,
hearing officer or other body that conducts a legal or administrative
proceeding. Legal proceeding includes all phases of litigation.
OSC means the U.S. Office of Special Counsel.
OSC employee or employee means:
(1)(i) Any current or former employee of the OSC; and
(ii) Any other individual hired through contractual agreement by or
on behalf of the OSC or who has performed or is performing services
under such an agreement for the OSC.
(2) This definition does not include persons who are no longer
employed by the OSC and who agree to testify about matters available to
the public.
Records or official records and information means all information
in the custody and control of the OSC, relating to information in the
custody and control of the OSC, or acquired by an OSC employee in the
performance of his or her official duties or because of his or her
official status, while the individual was employee by or on behalf of
the OSC.
Request means any informal request, by whatever method, for the
production of records and information or for testimony which has not
been ordered by a court of other competent authority.
Testimony means any written or oral statements, including
depositions, answers to interrogatories, affidavits, declarations,
interviews, and statements made by an individual in connection with a
legal proceeding.
0
8. Add subpart B to read as follows:
Subpart B--Demands or Requests for Testimony and Production of
Documents
Sec.
1820.13 General prohibition.
1820.14 Factors the OSC will consider.
1820.15 Filing requirements for litigants.
1820.16 Service of requests or demands.
1820.17 Processing requests or demands.
1820.18 Final determinations.
1820.19 Restrictions that apply to testimony.
1820.20 Restrictions that apply to released records.
1820.21 Procedure when a decision is not made prior to the time a
response is required.
1820.22 Procedure in the event of an adverse ruling.
Sec. 1820.13 General prohibition.
No employee of OSC may produce official records and information or
provide any testimony relating to official information in response to a
demand or request without the prior written approval of the General
Counsel.
Sec. 1820.14 Factors the OSC will consider.
The General Counsel, in his or her sole discretion, may grant an
employee permission to testify on matters relating to official
information, or produce official records and information, in response
to a demand or request. Among the relevant factors that the General
Counsel may consider in making this decision are whether:
(a) The purposes of this part are met;
(b) Allowing such testimony or production of records would be
necessary to prevent a miscarriage of justice;
(c) Allowing such testimony or production of records would assist
or hinder the OSC in performing its statutory duties;
(d) Allowing such testimony or production of records would be in
the best interest of the OSC or the United States;
(e) The records or testimony can be obtained from other sources;
(f) The demand or request is unduly burdensome or otherwise
inappropriate under the applicable rules of discovery or the rule of
procedure governing the
[[Page 73019]]
case or matter in which the demand or request arose;
(g) Disclosure would violate a statute, Executive Order or
regulation;
(h) Disclosure would reveal confidential, sensitive, or privileged
information, trade secrets or similar, confidential or financial
information, otherwise protected information, or information which
would otherwise be inappropriate for release;
(i) Disclosure would impede or interfere with an ongoing law
enforcement investigation or proceeding, or compromise constitutional
rights or national security interests;
(j) Disclosure would result in the OSC appearing to favor one
litigant over another;
(k) A substantial government interest is implicated;
(l) The demand or request is within the authority of the party
making it; and
(m) The demand or request is sufficiently specific to be answered.
Sec. 1820.15 Filing requirements for litigants seeking documents or
testimony.
A litigant must comply with the following requirements when filing
a request for official records and information or testimony under this
part. A request should be filed before a demand is issued.
(a) The request must be in writing and must be submitted to the
General Counsel.
(b) The written request must contain the following information:
(1) The caption of the legal or administrative proceeding, docket
number, and name and address of the court or other administrative or
regulatory authority involved;
(2) A copy of the complaint or equivalent document setting forth
the assertions in the case and any other pleading or document necessary
to show relevance;
(3) A list of categories of records sought, a detailed description
of how the information sought is relevant to the issues in the legal or
administrative proceeding, and a specific description of the substance
of the testimony or records sought;
(4) A statement as to how the need for the information outweighs
any need to maintain the confidentiality of the information and
outweighs the burden on the OSC to produce the records or provide
testimony;
(5) A statement indicating that the information sought is not
available from another source, from other persons or entities, or from
the testimony of someone other than an OSC employee, such as a retained
expert;
(6) If testimony is requested, the intended use of the testimony,
and a showing that no document could be provided and used in lieu of
testimony;
(7) A description of all prior decisions, orders, or pending
motions in the case that bear upon the relevance of the requested
records or testimony;
(8) The name, address, and telephone number of counsel to each
party in the case; and
(9) An estimate of the amount of time that the requester and other
parties will require of each OSC employee for time spent by the
employee to prepare for testimony, in travel, and for attendance in the
legal proceeding.
(c) The OSC reserves the right to require additional information to
complete the request where appropriate.
(d) The request should be submitted at least 30 days before the
date that records or testimony is required. Requests submitted in less
than 30 days before records or testimony is required must be
accompanied by a written explanation stating the reasons for the late
request and the reasons for expedited processing.
(e) Failure to cooperate in good faith to enable the General
Counsel to make an informed decision may serve as the basis for a
determination not to comply with the request.
(f) The request should state that the requester will provide a copy
of the OSC employee's statement free of charge and that the requester
will permit the OSC to have a representative present during the
employee's testimony.
Sec. 1820.16 Service of requests or demands.
Requests or demands for official records or information or
testimony under this subpart must be served by mail or hand delivery to
the Office of General Counsel, U.S. Office of Special Counsel, 1730 M
St. NW., Suite 213, Washington, DC 20036; or sent by fax to 202-254-
3711.
Sec. 1820.17 Processing requests or demands.
(a) After receiving service of a request or demand for testimony,
the General Counsel will review the request and, in accordance with the
provisions of this subpart, determine whether, or under what
conditions, to authorize the employee to testify on matters relating to
official information and/or produce official records and information.
(b) Absent exigent circumstances, the OSC will issue a
determination within 30 days from the date the request is received.
(c) The General Counsel may grant a waiver of any procedure
described by this subpart where a waiver is considered necessary to
promote a significant interest of the OSC or the United States, or for
other good cause.
(d) Certification (authentication) of copies of records. The OSC
may certify that records are true copies in order to facilitate their
use as evidence. If a requester seeks certification, the requester must
request certified copies from the OSC at least 30 days before the date
they will be needed.
Sec. 1820.18 Final determination.
The General Counsel makes the final determination regarding
requests to employees for production of official records and
information or testimony in litigation in which the OSC is not a party.
All final determinations are within the sole discretion of the General
Counsel. The General Counsel will notify the requester and, when
appropriate, the court or other competent authority of the final
determination, the reasons for the grant or denial of the request, and
any conditions that the General Counsel may impose on the release of
records or information, or on the testimony of an OSC employee. The
General Counsel's decision exhausts administrative remedies for
purposes of disclosure of the information.
Sec. 1820.19 Restrictions that apply to testimony.
(a) The General Counsel may impose conditions or restrictions on
the testimony of OSC employees including, for example:
(1) Limiting the areas of testimony;
(2) Requiring the requester and other parties to the legal
proceeding to agree that the transcript of the testimony will be kept
under seal;
(3) Requiring that the transcript will be used or made available
only in the particular legal proceeding for which testimony was
requested. The General Counsel may also require a copy of the
transcript of testimony at the requester's expense.
(b) The OSC may offer the employee's written declaration in lieu of
testimony.
(c) If authorized to testify pursuant to this part, an employee may
testify as to facts within his or her personal knowledge, but, unless
specifically authorized to do so by the General Counsel, the employee
shall not;
(1) Disclose confidential or privileged information; or
(2) For a current OSC employee, testify as an expert or opinion
witness with regard to any matter arising out of the employee's
official duties or the functions of the OSC unless testimony is being
given on behalf of the United States (see also 5 CFR 2635.805).
[[Page 73020]]
(d) The scheduling of an employee's testimony, including the amount
of time that the employee will be made available for testimony, will be
subject to the OSC's approval.
Sec. 1820.20 Restrictions that apply to released records.
(a) The General Counsel may impose conditions or restrictions on
the release of official records and information, including the
requirement that parties to the proceeding obtain a protective order or
execute a confidentiality agreement to limit access and any further
disclosure. The terms of the protective order or of a confidentiality
agreement must be acceptable to the General Counsel. In cases where
protective orders or confidentiality agreements have already been
executed, the OSC may condition the release of official records and
information on an amendment to the existing protective order (subject
to court approval) or confidentiality agreement.
(b) If the General Counsel so determines, original OSC records may
be presented for examination in response to a request, but they may not
be presented as evidence or otherwise used in a manner by which they
could lose their identity as official OSC records, nor may they be
marked or altered. In lieu of the original records, certified copies
may be presented for evidentiary purposes.
Sec. 1820.21 Procedure when a decision is not made prior to the time
a response is required.
If a response to a demand or request is required before the General
Counsel can make the determination referred to in Sec. 1820.28, the
General Counsel, when necessary, will provide the court or other
competent authority with a copy of this part, inform the court or other
competent authority that the request is being reviewed, provide an
estimate as to when a decision will be made, and seek a stay of the
demand or request pending a final determination.
Sec. 1820.22 Procedure in the event of an adverse ruling.
If the court or other competent authority fails to stay a demand or
request, the employee upon whom the demand or request is made, unless
otherwise advised by the General Counsel, will appear, if necessary, at
the stated time and place, produce a copy of this part, state that the
employee has been advised by counsel not to provide the requested
testimony or produce documents, and respectfully decline to comply with
the demand or request, citing United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951).
0
9. Add subpart C, consisting of Sec. 1820.23, to read as follows:
Subpart C--Schedule of Fees
Sec. 1820.23 Fees.
(a) Generally. The General Counsel may condition the production of
records or appearance for testimony upon advance payment of a
reasonable estimate of the costs to the OSC.
(b) Fees for records. Fees for producing records will include fees
for searching, reviewing, and duplicating records, costs of attorney
time spent in reviewing the request, and expenses generated by
materials and equipment used to search for, produce, and copy the
responsive information. Costs for employee time will be calculated on
the basis of the hourly pay of the employee (including all pay,
allowances, and benefits). Fees for duplication will be the same as
those charged by the OSC in its Freedom of Information Act regulations
at Sec. 1820.7.
(c) Witness fees. Fees for attendance by a witness will include
fees, expenses, and allowances prescribed by the court's rules. If no
such fees are prescribed, witness fees will be determined based upon
the rule of the federal district closest to the location where the
witness will appear and on 28 U.S.C. 1821, as applicable. Such fees
will include cost of time spent by the witness to prepare for
testimony, in travel and for attendance in the legal proceeding, plus
travel costs.
(d) Payment of fees. A requester must pay witness fees for current
OSC employees and any record certification fees by submitting to the
General Counsel a check or money order for the appropriate amount made
payable to the United States Department of Treasury. In the case of
testimony of former OSC employees, the requester must pay applicable
fees directly to the former OSC employee in accordance with 28 U.S.C.
1821 or other applicable statutes.
(e) Waiver or reduction of fees. The General Counsel, in his or her
sole discretion, may, upon a showing of reasonable cause, waive or
reduce any fees in connection with the testimony, production, or
certification of records.
(f) De minimis fees. Fees will not be assessed if the total charge
would be $10.00 or less.
0
10. Add subpart D, consisting of Sec. 1820.24, to read as follows:
Subpart D--Penalties
Sec. 1820.24 Penalties.
(a) An employee who discloses official records or information or
gives testimony relating to official information, except as expressly
authorized by the OSC, or as ordered by a federal court after the OSC
has had the opportunity to be heard, may face the penalties provided in
18 U.S.C. 641 and other applicable laws. Additionally, former OSC
employees are subject to the restrictions and penalties of 18 U.S.C.
207 and 216.
(b) A current OSC employee who testifies or produces official
records and information in violation of this part shall be subject to
disciplinary action.
0
11. Add subpart E, consisting of Sec. 1820.25, to read as follows:
Subpart E--Conformity With Other Laws
Sec. 1820.25 Conformity with other laws.
This regulation is not intended to conflict with 5 U.S.C.
2302(b)(13).
Dated: September 21, 2016.
Lisa V. Terry,
General Counsel.
[FR Doc. 2016-23215 Filed 10-21-16; 8:45 am]
BILLING CODE 7405-01-P