Procedures for Disclosure of Information Under the Freedom of Information Act, 91037-91045 [2016-30144]

Agencies

• LEGAL SERVICES CORPORATION

[Federal Register Volume 81, Number 242 (Friday, December 16, 2016)]
[Rules and Regulations]
[Pages 91037-91045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30144]


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LEGAL SERVICES CORPORATION

45 CFR Part 1602


Procedures for Disclosure of Information Under the Freedom of 
Information Act

AGENCY: Legal Services Corporation.

ACTION: Final rule.

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SUMMARY: The Legal Services Corporation (LSC) is revising its 
regulation on procedures for disclosure of information under the 
Freedom of Information Act to implement the statutorily required 
amendments in the FOIA Improvement Act of 2016. LSC is also making 
technical changes to improve the structure and clarity of its Freedom 
of Information Act (FOIA) regulations.

DATES: The final rule is effective as of December 16, 2016.

FOR FURTHER INFORMATION CONTACT: Helen Gerostathos Guyton, Assistant 
General Counsel, Legal Services Corporation, 3333 K Street NW., 
Washington, DC 20007, (202) 295-1632 (phone), (202) 337-6519 (fax), 
guytonh@lsc.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    LSC is subject to the FOIA by the terms of the Legal Services 
Corporation Act. 42 U.S.C. 2996d(g). LSC has implemented FOIA by 
adopting regulations that contain the rules and procedures LSC will 
follow in making its records available to the public. LSC last amended 
its FOIA regulations in 2008. 73 FR 67791, Dec. 31, 2008.
    On June 30, 2016, President Obama signed into law the FOIA 
Improvement Act of 2016 (``2016 Amendments'' or the ``Act''). The Act 
codifies a number of transparency and openness principles and enacts 
housekeeping measures designed to facilitate FOIA requests and 
production. The revised regulations described in this final rule 
reflect the required changes prescribed by the Act. LSC also clarified 
the language and updated the structure of its FOIA regulations.
    In light of the deadline established by Congress, LSC management 
requested that the Operations and Regulations Committee (Committee) 
recommend that the Board authorize expedited rulemaking and publication 
of this final rule. On October 16, 2016, the Committee considered the 
request and voted to make the recommendation to the Board. On October 
18, 2016, the Board voted to authorize expedited rulemaking and the 
publication of the final rule and request for comments. LSC published 
the final rule and request for comments on October 31, 2016, 81 FR 
75330, and the comment period closed on November 30, 2016. LSC received 
no substantive adverse comments. LSC received comments from two parties 
recommending technical changes, which LSC has incorporated into this 
final rule where noted.

II. Section-by-Section Analysis

Section 1602.1 Purpose

    There are no proposed changes to this section.

Section 1602.2 Definitions

    LSC modified several existing definitions, deleted one definition, 
and added five new definitions to make its regulations clearer. LSC 
amended the Definitions section as follows:
    Duplication. LSC modified this definition to require the release of 
records ``in a form appropriate for release.'' This change complies 
with

[[Page 91038]]

FOIA guidance that records be released in the format requested, where 
possible.
    LSC. LSC replaced all references to ``the Corporation'' with 
``LSC'' for simplicity. LSC introduced this definition to make clear 
that, unless otherwise specified, references to LSC in this rule 
include both the Corporation and LSC's Office of Inspector General.
    Office. LSC added this definition in order to simplify references 
to the Office of Inspector General and/or the Office of Legal Affairs, 
where appropriate.
    Office of Inspector General records. LSC deleted this definition 
because the general definition of records includes the Office of 
Inspector General records, making this definition redundant.
    Person. LSC's prior regulations did not define person. To address 
this gap, LSC added a definition modeled after the definition of person 
contained in the FOIA, 5 U.S.C. 551(2). In response to the rule 
published in the Federal Register on October 31, 2016, 81 FR 75330, LSC 
received a comment recommending that it add ``or a Federal agency'' to 
the definition of person to clarify that a Federal agency is not a 
person. LSC is adopting that recommendation.
    Records. LSC modified the definition of this term to comport with 
the definition of records in LSC's Records Management Policy, which was 
updated in September 2015. It also incorporates Office of Inspector 
General records, which were previously defined separately.
    Rule. LSC's FOIA regulations cite to personnel rules, rules of 
procedure, and substantive rules, but do not define the term rule. To 
address this gap, LSC added a definition of rule modeled on the 
definition contained in the FOIA, 5 U.S.C. 551(4).
    Submitter. On February 14, 2003, LSC published in the Federal 
Register a final rule adding provisions for a submitter's rights 
process to its FOIA regulations. 68 FR 7433, Feb. 14, 2003. These 
provisions were modeled after the process outlined in Executive Order 
No. 12,600 (June 23, 1987). The 2003 final rule limited submitter 
solely to any person or entity from whom LSC receives grant application 
records. LSC is expanding the definition of submitter to include ``any 
person or applicant for funds who provides confidential commercial 
information to LSC.'' This definition more closely conforms with the 
spirit of E.O. 12,600 and ensures that submitters who may have an 
interest in the protection of their confidential commercial information 
are properly notified.
    Confidential Commercial Information. LSC added a definition of 
confidential commercial information modeled on the definition in E.O. 
12,600 to comport with the new definition of submitter described above. 
LSC received a comment recommending that the phrase ``because 
disclosure could reasonably be expected to cause substantial 
competitive harm'' be deleted from the definition of confidential 
commercial information because substantial competitive harm is not the 
only reason that information could be withheld under Exemption 4. LSC 
is adopting that recommendation.

Section 1602.3 Policy

    LSC made minor technical edits to clarify this section, including 
clarifying the foreseeability definition as recommended by one 
commenter.

Section 1602.4 Records Published in the Federal Register

    LSC made minor technical edits to clarify this section.

Section 1602.5 Public Reading Room

    This section sets out the process by which LSC makes available for 
public inspection the records described in the FOIA, 5 U.S.C. 
552(a)(2). In the prior version of its FOIA regulations, LSC set out 
the specific categories of records that must be publicly disclosed. LSC 
deleted those specific provisions and replaced them with a broader 
reference to 552(a)(2) generally in anticipation of implementing the 
``Release to One, Release to All'' policy. One commenter recommended 
that LSC implement ``Release to One, Release to All'' as a policy and 
delete the reference to the policy from its regulations. LSC also 
received a comment recommending that it delete reference to Sec.  
1602.10 as authority for LSC to withhold records from the public 
reading room because the FOIA itself provides sufficient authority. LSC 
is adopting these recommendations.
    LSC also made minor technical revisions to clarify this section.

Section 1602.6 Procedures for Using the Public Reading Room

    LSC added a provision to this section that will provide requesters 
with onsite computer and printer access to electronic reading room 
records. This provision is consistent with Federal agency practice and 
provides greater access to LSC's records to the public at large.

Section 1602.7 Index of Records

    LSC updated this section to reflect its current practice of 
maintaining its index of records electronically.

Section 1602.8 Requests for Records

    The prior version of Sec.  1602.8 included provisions relating to 
the format of requests for records, the timing of responses, and the 
format of responses to requests. There were no subheadings to 
distinguish these provisions within the section, making it difficult to 
follow. To improve readability, LSC restructured Sec.  1602.8 by 
limiting the section solely to provisions related to the format of FOIA 
requests. LSC also added a provision that informs requesters of their 
right to specify the preferred form or format for the records sought 
and that requires requesters to provide their contact information to 
assist LSC in communicating with them about their request. One 
commenter recommended that LSC delete the phrase ``LSC shall respond to 
such a request as promptly as possible'', referring to requests for fee 
waivers or reductions, because LSC would not adjudicate a fee waiver 
until fees are at issue. The proposed language suggested that all fee 
waivers would be adjudicated promptly, when this may not always occur. 
LSC is adopting this recommendation.

Section 1602.9 Timing and Responses to Requests for Records

    This is a new section. As described in the discussion of Sec.  
1602.8, LSC determined that it would be clearer if the provisions for 
timing and responses to requests were contained in a separate section. 
LSC also made technical changes to the language and structure to 
improve clarity. In addition, LSC added provisions describing the 
dispute resolution processes available to the public as required by the 
2016 Amendments. These provisions describe when a requester may seek 
assistance, including dispute resolution services, from an LSC FOIA 
Public Liaison or the U.S. National Archives and Record 
Administration's Office of Government Information Services. In response 
to the final rule published on October 31, 2016, 81 FR 75330, LSC 
received a comment recommending that it articulate the procedures for 
consultations and referrals when it processes a request that contains 
within the records information of interest to another Office or Federal 
agency. LSC also received a comment recommending that it remove Sec.  
1602.9(b)(3)'s reference to ``two or more components of LSC'' because 
LSC has only two components, LSC and the Office of Inspector General. 
LSC is adopting both recommendations.

[[Page 91039]]

Section 1602.10 Exemptions for Withholding Records

    LSC amended this section to incorporate the 2016 Amendments' 
codification of the Department of Justice's foreseeable harm standard, 
which requires LSC to withhold information only if disclosure would 
harm an interest protected by an exemption or prohibited by law. It 
further obligates LSC to consider whether partial disclosure of 
information is possible when full disclosure is not and to take 
reasonable steps to segregate and release nonexempt information. One 
commenter recommended that LSC clarify the foreseeable harm standard. 
LSC is adopting this recommendation.
    In addition, LSC modified its rule regarding the applicability of 
the deliberative process privilege, as required by the 2016 Amendments. 
The privilege now applies only to records created within 25 years of 
the date on which the records were requested.
    Finally, LSC added exemptions 1, 8, and 9 from 5 U.S.C. 
552(8)(B)(b) to its regulations. While these exemptions, which deal 
with national security, financial institutions, and geological 
information, generally do not apply to the work of LSC, their absence 
caused confusion because LSC's exemption numbers did not track the 
commonly used exemption numbers found in both the FOIA and case law. 
This change will eliminate any confusion.

Section 1602.11 Officials Authorized To Grant or Deny Requests for 
Records

    LSC deleted paragraph (a) of this section, which describes the role 
of the General Counsel in adequately and consistently applying the 
provisions of this part within LSC. The 2016 Amendments establish the 
role of the Chief FOIA Officer in ensuring compliance with FOIA, 
thereby superseding LSC's prior regulations.

Section 1602.12 Denials

    LSC added a provision to this section requiring it to include a 
provision in its denial decisions notifying the requester of his or her 
right to seek dispute resolution services from LSC's FOIA Public 
Liaison or the Office of Government Information Services.

Section 1602.13 Appeals of Denials

    LSC made minor technical edits to clarify this section. LSC also 
added a provision that requires LSC to notify a requester of the 
dispute resolution services offered by the Office of Government 
Information Services as a non-exclusive alternative to litigation. LSC 
received a comment recommending that it include contact information for 
the Office of Government Information Services' voluntary dispute 
resolution services. LSC is adopting this recommendation.

Section 1602.14 Fees

    LSC added a provision to this section that prohibits LSC from 
assessing fees if its response time is delayed, subject to limited 
exceptions described in the 2016 Amendments. One commenter recommended 
that LSC add a provision excusing a failure to comply with the time 
limits set forth in the regulation when a court determines that 
exceptional circumstances exist. The commenter also recommended that 
LSC detail its fee structure and provide requesters an opportunity to 
reformulate their request at a lower cost. LSC is adopting both 
recommendations.

Section 1602.15 Submitter's Rights Process

    As previously described in the discussion of Sec.  1602.2's 
definition of the term submitter, LSC expanded the submitter's rights 
process to include ``any person or applicant for funds who provides 
confidential commercial information to LSC.'' This definition more 
closely conforms with the spirit of E.O. 12600 and ensures that 
submitters who may have an interest in the protection of their 
confidential information are properly notified.
    Finally, LSC clarified an ambiguous provision that requires a 
submitter to provide to LSC within seven days his or her statement 
objecting to disclosure of his information. One commenter recommended 
that LSC delete the seven-day response period and instead specify in 
its notice to the requester a reasonable time period within which the 
submitter must respond. LSC also received a comment recommending that 
LSC's regulations comport with agency practice that makes the notice of 
proposed release the final administrative action by LSC. LSC is 
adopting these recommendations.

List of Subjects in 45 CFR Part 1602

    Freedom of information.

0
For the reasons stated in the preamble, the Legal Services Corporation 
revises 45 CFR part 1602 to read as follows:

PART 1602--PROCEDURES FOR DISCLOSURE OF INFORMATION UNDER THE 
FREEDOM OF INFORMATION ACT

Sec.
1602.1 Purpose.
1602.2 Definitions.
1602.3 Policy.
1602.4 Records published in the Federal Register.
1602.5 Public reading room.
1602.6 Procedures for use of public reading room.
1602.7 Index of records.
1602.8 Requests for records.
1602.9 Timing and responses to requests for records.
1602.10 Exemptions for withholding records.
1602.11 Officials authorized to grant or deny requests for records.
1602.12 Denials.
1602.13 Appeals of denials.
1602.14 Fees.
1602.15 Submitter's rights process.

    Authority: 42 U.S.C. 2996g(e).


Sec.  1602.1  Purpose.

    This part contains the rules and procedures the Legal Services 
Corporation (LSC) follows in making records available to the public 
under the Freedom of Information Act.


Sec.  1602.2  Definitions.

    (a) Commercial use request means a request from or on behalf of one 
who seeks information for a use or purpose that furthers the 
commercial, trade, or profit interests of the requester or the person 
on whose behalf the request is made. In determining whether a requester 
properly belongs in this category, LSC will look to the use to which a 
requester will put the documents requested. When LSC has reasonable 
cause to doubt the requester's stated use of the records sought, or 
where the use is not clear from the request itself, it will seek 
additional clarification before assigning the request to a category.
    (b) Confidential commercial information means records provided to 
LSC by a submitter that arguably contain material exempt from release 
under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
    (c) Duplication means the process of making a copy of a requested 
record pursuant to this part in a form appropriate for release in 
response to a FOIA request.
    (d) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate or 
graduate higher education, or an institution of professional or 
vocational education which operates a program or programs of scholarly 
research.
    (e) FOIA means the Freedom of Information Act, 5 U.S.C. 552.
    (f) LSC means the Legal Services Corporation. Unless explicitly 
stated otherwise, LSC includes the Office of Inspector General.
    (g) Non-commercial scientific institution means an institution that 
is

[[Page 91040]]

not operated on a commercial basis and which is operated solely for the 
purpose of conducting scientific research, the results of which are not 
intended to promote any particular product or industry.
    (h) Office refers to the Office of Legal Affairs and/or the Office 
of Inspector General (OIG).
    (i) Person includes an individual, partnership, corporation, 
association, or public or private organization other than LSC or a 
Federal agency.
    (j) Records are any type of information made or received by LSC or 
the OIG for purposes of transacting LSC or OIG business and preserved 
by LSC or the OIG (either directly or maintained by a third party under 
contract to LSC or the OIG for records management purposes) regardless 
of form (e.g., paper or electronic, formal or informal, copies or 
original) as evidence of LSC's or OIG's organization, functions, 
policies, decisions, procedures, operations, or other activities of LSC 
or the OIG or because the record has informational value.
    (k) Representative of the news media means any person or entity 
that gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience. In this 
clause, the term ``news'' means information that is about current 
events or that would be of current interest to the public. Examples of 
news media entities are television or radio stations broadcasting to 
the public at large and publishers of periodicals (but only if such 
entities qualify as disseminators of ``news'') who make their products 
available for purchase or subscription or by free distribution to the 
general public. These examples are not all-inclusive. Moreover, as 
methods of news delivery evolve (for example, the adoption of the 
electronic dissemination of newspapers through telecommunications 
services), such alternative media shall be considered to be news media 
entities. A freelance journalist shall be regarded as working for a 
news media entity if the journalist can demonstrate a solid basis for 
expecting publication through that entity, whether or not the 
journalist is actually employed by the entity. A publication contract 
would present a solid basis for such an expectation. LSC may also 
consider the past publication record of the requester in making such a 
determination.
    (l) Review means the process of examining documents located in 
response to a request to determine whether any portion of any such 
document is exempt from disclosure. It also includes processing any 
such documents for disclosure. Review does not include time spent 
resolving general legal or policy issues regarding the application of 
exemptions.
    (m) Rule means the whole or a part of an LSC statement of general 
or particular applicability and future effect designed to implement, 
interpret, or prescribe law or policy or describing the organization, 
procedure, or practice requirements of LSC.
    (n) Search means the process of looking for and retrieving records 
that are responsive to a request for records. It includes page-by-page 
or line-by-line identification of material within documents and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format. Searches may be 
conducted manually or by automated means and will be conducted in the 
most efficient and least expensive manner.
    (o) Submitter means any person or applicant for funds who provides 
confidential commercial information to LSC.


Sec.  1602.3  Policy.

    LSC will make records concerning its operations, activities, and 
business available to the public to the maximum extent reasonably 
possible. LSC will withhold records from the public only in accordance 
with the FOIA and this part. LSC will disclose records otherwise exempt 
from disclosure under the FOIA when LSC does not reasonably foresee 
that disclosure would harm an interest protected by an exemption and 
disclosure is not prohibited by law or protected under Exemption 3.


Sec.  1602.4   Records published in the Federal Register.

    LSC routinely publishes in the Federal Register information on its 
basic structure and operations necessary to inform the public how to 
deal effectively with LSC. LSC will make reasonable efforts to 
currently update such information, which will include basic information 
on LSC's location, functions, rules of procedure, substantive rules, 
statements of general policy, and information regarding how the public 
may obtain information, make submittals or requests, or obtain 
decisions.


Sec.  1602.5  Public reading room.

    (a) LSC will maintain a public reading room at its offices at 3333 
K St. NW., Washington, DC 20007. This room will be supervised and will 
be open to the public during LSC's regular business hours. Procedures 
for use of the public reading room are described in Sec.  1602.6. LSC 
also maintains an electronic public reading room that may be accessed 
at https://www.lsc.gov/about-lsc/foia/foia-electronic-public-reading-room.
    (b) Subject to the limitation stated in paragraph (c) of this 
section, LSC will make available for public inspection in its 
electronic public reading room the records described in 5 U.S.C. 
552(a)(2).
    (c) Records required by FOIA to be available in the public reading 
room may be exempt from mandatory disclosure pursuant to 5 U.S.C. 
552(b). LSC will not make such records available in the public reading 
room. LSC may edit other records maintained in the reading room by 
redacting details about individuals to prevent clearly unwarranted 
invasions of personal privacy. In such cases, LSC will attach a full 
explanation of the redactions to the record. LSC will indicate the 
extent of the redactions unless doing so would harm an interest 
protected by the exemption under which the redactions are made. If 
technically feasible, LSC will indicate the extent of the redactions at 
the place in the record where the redactions were made.


Sec.  1602.6  Procedures for use of public reading room.

    (a) A person who wishes to inspect or copy records in the public 
reading room should arrange a time in advance, by telephone or letter 
request made to the Office of Legal Affairs, Legal Services 
Corporation, 3333 K Street NW., Washington, DC 20007 or by email to 
FOIA@lsc.gov.
    (1) In appropriate circumstances, LSC will advise persons making 
telephonic requests to use the public reading room that a written 
request would aid in the identification and expeditious processing of 
the records sought.
    (2) Written requests should identify the records sought in the 
manner provided in Sec.  1602.8(b) and should request a specific date 
for inspecting the records.
    (b) LSC will advise the requester as promptly as possible if, for 
any reason, it is not feasible to make the records sought available on 
the date requested.
    (c) A computer terminal and printer are available upon request in 
the public reading room for accessing Electronic Reading Room records.


Sec.  1602.7  Index of records.

    LSC will maintain and make available for public inspection in an 
electronic format a current index identifying any matter within the 
scope of Sec.  1602.4 and Sec.  1602.5(b).

[[Page 91041]]

Sec.  1602.8  Requests for records.

    (a) LSC will make its records promptly available, upon request, to 
any person in accordance with this section, unless:
    (1) the FOIA requires the records to be published in the Federal 
Register (Sec.  1602.4) or to be made available in the public reading 
room (Sec.  1602.5); or
    (2) LSC determines that such records should be withheld and are 
exempt from mandatory disclosure under the FOIA and Sec.  1602.10.
    (b)(1) Requests for LSC records. All requests for LSC records must 
be clearly marked Freedom of Information Act Request and shall be 
addressed to the FOIA Analyst, Office of Legal Affairs, Legal Services 
Corporation, 3333 K Street NW., Washington, DC 20007. Email requests 
shall be sent to FOIA@lsc.gov. Requests for LSC Records may also be 
made online using the FOIA Request Electronic Submission Form located 
at https://www.lsc.gov/about-lsc/foia.
    (2) Requests for Office of Inspector General records. All requests 
for records maintained by the OIG must be clearly marked Freedom of 
Information Act Request and shall be addressed to the FOIA Officer, 
Office of Inspector General, Legal Services Corporation, 3333 K Street 
NW., Washington, DC 20007. Email requests shall be sent to 
FOIA@oig.lsc.gov.
    (3) Any request not marked and addressed as specified in this 
section will be so marked by LSC personnel as soon as it is properly 
identified, and will be forwarded immediately to the appropriate 
Office. A request improperly addressed will be deemed to have been 
received as in accordance with Sec.  1602.9 only when it has been 
received by the appropriate Office. Upon receipt of an improperly 
addressed request, the Chief FOIA Officer, Office of Inspector General 
Legal Counsel or their designees shall notify the requester of the date 
on which the time period began.
    (c) A request must reasonably describe the records requested so 
that employees of LSC who are familiar with the subject area of the 
request are able, with a reasonable amount of effort, to determine 
which particular records are within the scope of the request. Before 
submitting their requests, requesters may contact LSC's or OIG's FOIA 
Analyst or FOIA Public Liaison to discuss the records they seek and to 
receive assistance in describing the records. If LSC determines that a 
request does not reasonably describe the records sought, LSC will 
inform the requester what additional information is needed or why the 
request is otherwise insufficient. Requesters who are attempting to 
reformulate or modify their request may discuss their request with 
LSC's or OIG's FOIA Analyst or FOIA Public Liaison. If a request does 
not reasonably describe the records sought, LSC's response to the 
request may be delayed.
    (d) To facilitate the location of records by LSC, a requester 
should try to provide the following kinds of information, if known:
    (1) The specific event or action to which the record refers;
    (2) The unit or program of LSC that may be responsible for or may 
have produced the record;
    (3) The date of the record or the date or period to which it refers 
or relates;
    (4) The type of record, such as an application, a grant, a 
contract, or a report;
    (5) Personnel of LSC who may have prepared or have knowledge of the 
record;
    (6) Citations to newspapers or publications which have referred to 
the record.
    (e) Requests may specify the preferred form or format (including 
electronic formats) for the records sought. LSC will provide records in 
the form or format indicated by the requester to the extent such 
records are readily reproducible in the requested form or format. LSC 
reserves the right to limit the number of copies of any document that 
will be provided to any one requester or to require that special 
arrangements for duplication be made in the case of bound volumes or 
other records representing unusual problems of handling or 
reproduction.
    (f) Requesters must provide contact information, such as their 
phone number, email address, and/or mailing address, to assist LSC in 
communicating with them and providing released records.
    (g) LSC is not required to create a record or to perform research 
to satisfy a request.
    (h) Any request for a waiver or reduction of fees should be 
included in the FOIA request, and any such request should indicate the 
grounds for a waiver or reduction of fees, as set out in Sec.  
1602.14(g).


Sec.  1602.9  Timing and responses to requests for records.

    (a)(1) Upon receiving a request for LSC or Inspector General 
records under Sec.  1602.8, the Chief FOIA Officer, Office of Inspector 
General Legal Counsel or their designees shall make an initial 
determination of whether to comply with or deny such request. The Chief 
FOIA Officer, Office of Inspector General Legal Counsel or their 
designees will send the determination to the requester within 20 
business days after receipt of the request and will notify the 
requester of their right to seek assistance from an LSC FOIA Public 
Liaison.
    (2) The 20-day period under paragraph (a)(1) of this section shall 
commence on the date on which the request is first received by the 
appropriate Office, but in no event later than 10 working days after 
the request has been received by either the Office of Legal Affairs or 
the Office of Inspector General. The 20-day period shall not be tolled 
by the Office processing the request except that the processing Office 
may make one request to the requester for information pursuant to 
paragraph (b) of this section and toll the 20-day period while
    (i) It is awaiting such information that it has reasonably 
requested from the requester under this section; or
    (ii) It communicates with the requester to clarify issues regarding 
fee assessment.
    In either case, the processing Office's receipt of the requester's 
response to such a request for information or clarification ends the 
tolling period.
    (b) Consultation. When records originated with the Office 
processing the request, but contain within them information of interest 
to another Office or Federal agency, the Office processing the request 
should typically consult with that other entity prior to making a 
release determination.
    (c) Referral. (1) If the processing Office determines that the 
other Office or Federal agency is best able to determine whether to 
disclose the record, the processing Office will typically refer the 
responsibility for responding to the request for that record to the 
other Office or Federal agency. Ordinarily, the Office that originated 
the record is presumed to be the best Office to make the disclosure 
determination. However, if the Offices or Federal agency jointly agree 
that the processing Office is in the best position to respond regarding 
the record, then the record may be released by the processing Office 
after consultation with the other Office or Federal agency.
    (2) Whenever a referral occurs, the processing Office must document 
the referral, maintain a copy of the record that it refers, and notify 
the requester of the referral, informing the requester of the name(s) 
of the Office or Federal agency to which the record was referred, 
including that Office's or Federal agency's FOIA contact information.
    (d)(1) In unusual circumstances, as specified in paragraph (d)(3) 
of this section, LSC may extend the time limit

[[Page 91042]]

for up to 10 working days by written notice to the requester setting 
forth the reasons for such extension and the date on which LSC expects 
to send its determination.
    (2) LSC may also provide an opportunity to the requester to narrow 
the request. In addition, to aid the requester, LSC shall make 
available a FOIA Public Liaison, who shall assist in the resolution of 
any disputes between the requester and LSC, and shall notify the 
requester of his right to seek dispute resolution services from the 
U.S. National Archives and Records Administration's Office of 
Government Information Services.
    (3) Unusual circumstances. As used in this part, unusual 
circumstances are limited to the following, but only to the extent 
reasonably necessary for the proper processing of the particular 
request:
    (i) The need to search for and collect the requested records from 
establishments that are separate from the office processing the 
request;
    (ii) 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
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with another Office, Federal agency, or organization 
having a substantial interest in the determination of the request.
    (c)(1) When the processing Office cannot send a determination to 
the requester within the applicable time limit, the Chief FOIA Officer, 
Office of the Inspector General Legal Counsel, or their designees shall 
inform the requester of the reason for the delay, the date on which the 
processing Office expects to send its determination, and the 
requester's right to treat the delay as a denial and to appeal to LSC's 
President or Inspector General, in accordance with Sec.  1602.13, or to 
seek dispute resolution services from a FOIA Public Liaison or the 
Office of Government Information Services.
    (2) If the processing Office has not sent its determination by the 
end of the 20-day period or the last extension thereof, the requester 
may deem the request denied, and exercise a right of appeal in 
accordance with Sec.  1602.13, or seek dispute resolution services from 
LSC's or OIG's FOIA Public Liaison or the National Archives and Records 
Administration's Office of Government Information Services. The Chief 
FOIA Officer, Office of Inspector General Legal Counsel, or their 
designees may ask the requester to forego appeal until a determination 
is made.
    (d) After the processing Office determines that a request will be 
granted, LSC or the OIG will act with due diligence in providing a 
substantive response.
    (e)(1) Expedited treatment. Requests and appeals will be taken out 
of order and given expedited treatment whenever the requester 
demonstrates a compelling need. A compelling need means:
    (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;
    (ii) An urgency to inform the public about an actual or alleged LSC 
activity and the request is made by a person primarily engaged in 
disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest raising 
questions about LSC's integrity which may affect public confidence in 
LSC.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. For a prompt 
determination, a request for expedited processing must be properly 
addressed and marked and received by LSC pursuant to Sec.  1602.8.
    (3) A requester who seeks expedited processing must submit a 
statement demonstrating a compelling need and explaining in detail the 
basis for requesting expedited processing. The requester must certify 
that the statement is true and correct to the best of the requester's 
knowledge and belief.
    (4) Within 10 calendar days of receiving a request for expedited 
processing, the Chief FOIA Officer, Office of Inspector General Legal 
Counsel or their designees shall decide whether to grant the request 
and shall notify the requester of the decision. If a request for 
expedited treatment is granted, the request shall be given priority and 
shall be processed as soon as practicable. If a request for expedited 
processing is denied, the requester may appeal in writing to LSC's 
President or Inspector General in the format described in Sec.  
1602.13(a). Any appeal of a denial for expedited treatment shall be 
acted on expeditiously by LSC.


Sec.  1602.10  Exemptions for withholding records.

    (a) LSC shall--
    (1) Withhold information under this section only if--
    (i) LSC reasonably foresees that disclosure would harm an interest 
protected by an exemption described in paragraph (b); or
    (ii) Disclosure is prohibited by law; and
    (2)(i) Consider whether partial disclosure of information is 
possible whenever LSC determines that a full disclosure of a requested 
record is not possible; and
    (ii) Take reasonable steps necessary to segregate and release 
nonexempt information;
    (b) LSC may withhold a requested record from public disclosure only 
if one or more of the following exemptions authorized by the FOIA 
apply:
    (1)(i) Matter that is specifically authorized under criteria 
established by an Executive order to be kept secret in the interest of 
national defense or foreign policy; and
    (ii) Is in fact properly classified pursuant to such Executive 
Order;
    (2) Matter that is related solely to the internal personnel rules 
and practices of LSC;
    (3) Matter that is specifically exempted from disclosure by statute 
(other than the exemptions under FOIA at 5 U.S.C. 552(b)), provided 
that such statute requires that the matters be withheld from the public 
in such a manner as to leave no discretion on the issue, or establishes 
particular criteria for withholding, or refers to particular types of 
matters to be withheld;
    (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 that would 
not be available by law to a party other than an agency in litigation 
with LSC, provided that the deliberative process privilege shall not 
apply to records created 25 years or more before the date on which the 
records were requested;
    (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, 
including enforcing the Legal Services Corporation Act or any other 
law, 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 or a recipient of a right to a fair 
trial or an 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

[[Page 91043]]

in the case of a record or information compiled by a criminal law 
enforcement authority in the course of a criminal 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) Matter that is 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.
    (c) In the event that one or more of the exemptions in paragraph 
(b) of this section applies, any reasonably segregable portion of a 
record shall be provided to the requester after redaction of the exempt 
portions. The amount of information redacted and the exemption under 
which the redaction is being made shall be indicated on the released 
portion of the record, unless doing so would harm the interest 
protected by the exemption under which the redaction is made. If 
technically feasible, the amount of information redacted and the 
exemption under which the redaction is being made shall be indicated at 
the place in the record where the redaction occurs.
    (d) No requester shall have a right to insist that any or all of 
the techniques in paragraph (c) of this section should be employed in 
order to satisfy a request.
    (e) Records that may be exempt from disclosure pursuant to 
paragraph (b) of this section may be made available at the discretion 
of the LSC official authorized to grant or deny the request for 
records, after appropriate consultation as provided in Sec.  1602.11. 
LSC will disclose records otherwise exempt from disclosure under the 
FOIA when LSC does not reasonably foresee that disclosure would harm an 
interest protected by an exemption and disclosure is not prohibited by 
law or protected under Exemption 3.


Sec.  1602.11  Officials authorized to grant or deny requests for 
records.

    (a) The Chief FOIA Officer, Office of Inspector General Legal 
Counsel or their designees are authorized to grant or deny requests 
under this part. In the absence of an Office of Inspector General Legal 
Counsel, the Inspector General shall name a designee who will be 
authorized to grant or deny requests under this part and who will 
perform all other functions of the Office of Inspector General Legal 
Counsel under this part.
    (b)(1) The Chief FOIA Officer or designee shall consult with the 
Office of Inspector General Legal Counsel or designee prior to granting 
or denying any request for records or portions of records which 
originated with the OIG, or which contain information which originated 
with the OIG, but which are maintained by other components of LSC.
    (2) The Office of Inspector General Legal Counsel or designee shall 
consult with the Chief FOIA Officer or designee prior to granting or 
denying any request for records or portions of records which originated 
with any component of LSC other than the OIG, or which contain 
information which originated with a component of LSC other than the 
OIG, but which are maintained by the OIG.


Sec.  1602.12  Denials.

    (a) A denial of a written request for a record that complies with 
the requirements of Sec.  1602.8 shall be in writing and shall include 
the following:
    (1) A reference to the applicable exemption or exemptions in Sec.  
1602.10(b) upon which the denial is based;
    (2) An explanation of how the exemption applies to the requested 
records;
    (3) A statement explaining why it is deemed unreasonable to provide 
segregable portions of the record after deleting the exempt portions;
    (4) An estimate of the volume of requested matter denied unless 
providing such estimate would harm the interest protected by the 
exemption under which the denial is made;
    (5) The name and title of the person or persons responsible for 
denying the request;
    (6) An explanation of the right to appeal the denial and of the 
procedures for submitting an appeal, as described in Sec.  1602.13, 
including the address of the official to whom appeals should be 
submitted; and
    (7) An explanation of the right of the requester to seek dispute 
resolution services from a FOIA Public Liaison or the Office of 
Government Information Services.
    (b) Whenever LSC makes a record available subject to the deletion 
of a portion of the record, such action shall be deemed a denial of a 
record for purposes of paragraph (a) of this section.
    (c) All denials shall be treated as final opinions under Sec.  
1602.5(b).


Sec.  1602.13  Appeals of denials.

    (a) Any person whose written request has been denied is entitled to 
appeal the denial within 90 days of the date of the response by writing 
to the President of LSC or, in the case of a denial of a request for 
OIG records, the Inspector General, at the mailing or email addresses 
given in Sec.  1602.8(b)(1) and (2). The envelope and letter or email 
appeal should be clearly marked: ``Freedom of Information Appeal.'' An 
appeal need not be in any particular form, but should adequately 
identify the denial, if possible, by describing the requested record, 
identifying the official who issued the denial, and providing the date 
on which the denial was issued.
    (b) No personal appearance, oral argument, or hearing will 
ordinarily be permitted on appeal of a denial. Upon request and a 
showing of special circumstances, however, this limitation may be 
waived and an informal conference may be arranged with the President, 
Inspector General or their designees for this purpose.
    (c)(1) The decision of the President or the Inspector General on an 
appeal shall be in writing and, in the event the denial is in whole or 
in part upheld, shall contain an explanation responsive to the 
arguments advanced by the requester, the matters described in Sec.  
1602.12(a)(1) through (4), and the provisions for judicial review of 
such decision under 5 U.S.C. 552(a)(4). The decision must also notify 
the requester of the dispute resolution services offered by the 
National Archives and Records Administration's Office of Government 
Information Systems as a non-exclusive alternative to litigation. A 
requester may contact the Office of Government Information Services in 
any of the following ways:
    (i) Office of Government Information Services, National Archives 
and Records Administration, 8601 Adelphi Road--OGIS, College Park, MD 
20740.
    (ii) ogis.archives.gov.
    (iii) Email: ogis@nara.gov.
    (iv) Telephone: 202-741-5770.
    (v) Facsimile: 202-741-5769.
    (vi) Toll-free: 1-877-684-6448.
    (2) Dispute resolution through the Office of Government Information 
Services is a voluntary process. If LSC agrees to participate in the 
dispute resolution services provided by the Office of Government 
Information Services, it will actively engage in the process in an 
attempt to resolve the dispute.
    (d) LSC will send its decision to the requester within 20 business 
days after receipt of the appeal, unless an additional period is 
justified due to

[[Page 91044]]

unusual circumstances, as described in Sec.  1602.9, in which case LSC 
may extend the time limit for up to 10 working days by written notice 
to the requester setting forth the reasons for such extension and the 
date on which LSC expects to send its determination. The decision of 
the President or the Inspector General shall constitute the final 
action of LSC. All such decisions shall be treated as final opinions 
under Sec.  1602.5(b)(1).
    (e) On an appeal, the President or designee shall consult with the 
OIG prior to reversing in whole or in part the denial of any request 
for records or portions of records which originated with the OIG, or 
which contain information which originated with the OIG, but which are 
maintained by LSC. The Inspector General or designee shall consult with 
the President prior to reversing in whole or in part the denial of any 
request for records or portions of records which originated with LSC, 
or which contain information which originated with LSC, but which are 
maintained by the OIG.


Sec.  1602.14  Fees.

    (a) LSC will not charge fees for information routinely provided in 
the normal course of doing business.
    (b)(1) When records are requested for commercial use, LSC shall 
limit fees to reasonable standard charges for document search, review, 
and duplication.
    (2) LSC shall not assess any search fees (or if the requester is a 
representative of the news media, duplication fees) if LSC has failed 
to comply with the time limits set forth in Sec.  1602.9 and no unusual 
circumstances, as defined in that section apply.
    (3)(i) If LSC has determined that unusual circumstances as defined 
in Sec.  1602.9 apply and LSC has provided timely written notice to the 
requester in accordance with Sec.  1602.9, a failure described in 
paragraph (2) is excused for an additional 10 days. If LSC fails to 
comply with the extended time limit, LSC may not assess any search fees 
(or, if the requester is a representative of the news media, 
duplication fees) except as provided in paragraphs (a)(3)(ii)-(iii) of 
this section.
    (ii) If LSC has determined that unusual circumstances as defined in 
Sec.  1602.9 apply and more than 5,000 pages are necessary to respond 
to the request, LSC may charge search fees or duplication fees if LSC 
has provided a timely written notice to the requester in accordance 
with Sec.  1602.9 and LSC has discussed with the requester via written 
mail, electronic mail, or telephone (or made not less than three good 
faith attempts to do so) how the requester could effectively limit the 
scope of the request in accordance with Sec.  1602.9.
    (iii) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (c) When records are sought by a representative of the news media 
or by an educational or non-commercial scientific institution, LSC 
shall limit fees to reasonable standard charges for document 
duplication after the first 100 pages; and
    (d) For all other requests, LSC shall limit fees to reasonable 
standard charges for search time after the first 2 hours and 
duplication after the first 100 pages.
    (e) The schedule of charges and fees for services regarding the 
production or disclosure of the Corporation's records is as follows:
    (1) Manual search for and review of records will be charged as 
follows:
    (i) Administrative fee: $22.35/hour;
    (ii) Professional fee: $66.26/hour;
    (iii) Charges for search and review time less than a full hour will 
be billed by quarter-hour segments;
    (2) Duplication by paper copy: 35 cents per page;
    (3) Duplication by other methods: actual charges as incurred;
    (4) Packing and mailing records: no charge for regular mail;
    (5) Express mail: actual charges as incurred.
    (f) LSC may charge for time spent searching even if it does not 
locate any responsive records or it withholds the records located as 
exempt from disclosure.
    (g) Fee waivers. A requester may seek a waiver or reduction of the 
fees established under paragraph (e) of this section. A fee waiver or 
reduction request will be granted where LSC has determined that the 
requester has demonstrated that disclosure of the information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations of LSC and is not primarily in 
the commercial interest of the requester.
    (1) In order to determine whether disclosure of the information is 
in the public interest because it is likely to contribute significantly 
to public understanding of the operations or activities of LSC, LSC 
shall consider the following four factors:
    (i) The subject of the request: Whether the subject of the 
requested records concerns ``the operations or activities of LSC.'' The 
subject of the requested records must concern identifiable operations 
or activities of LSC, with a connection that is direct and clear, not 
remote or attenuated.
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of LSC operations or activities. The requested records must be 
meaningfully informative about LSC operations or activities in order to 
be likely to contribute to an increased public understanding of those 
operations or activities. The disclosure of information that is already 
in the public domain, in either a duplicative or a substantially 
identical form, would not be likely to contribute to such understanding 
where nothing new would be added to the public's understanding.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested records will contribute to ``public understanding.'' The 
disclosure must contribute to a reasonably broad audience of persons 
interested in the subject, as opposed to the personal interest of the 
requester. A requester's expertise in the subject area and ability and 
intention to effectively convey information to the public shall be 
considered. LSC shall presume that a representative of the news media 
will satisfy this consideration.
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of LSC operations or activities. The disclosure 
must enhance the public's understanding of the subject in question to a 
significant extent.
    (2) In order to determine whether disclosure of the information is 
not primarily in the commercial interest of the requester, LSC will 
consider the following two factors:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. LSC shall consider any commercial interest of the 
requester (with reference to the definition of commercial use in this 
part) or of any person on whose behalf the requester may be acting, 
that would be furthered by the requested disclosure.
    (ii) The primary interest in disclosure: Whether the magnitude of 
the identified commercial interest is sufficiently large, in comparison 
with the public interest in disclosure, that disclosure is 
``primarily'' in the commercial interest of the requester. A fee waiver 
or reduction is justified where the public interest is of greater 
magnitude than is

[[Page 91045]]

any identified commercial interest in disclosure. LSC ordinarily shall 
presume that where a news media requester has satisfied the public 
interest standard, the public interest will be the interest primarily 
served by disclosure to that requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return shall not be presumed primarily to serve a public 
interest.
    (3) Where LSC has determined that a fee waiver or reduction request 
is justified for only some of the records to be released, LSC shall 
grant the fee waiver or reduction for those records.
    (4) Requests for fee waivers and reductions shall be made in 
writing and must address the factors listed in this paragraph as they 
apply to the request.
    (h) Requesters must agree to pay all fees charged for services 
associated with their requests. LSC will assume that requesters agree 
to pay all charges for services associated with their requests up to 
$25 unless otherwise indicated by the requester. For requests estimated 
to exceed $25, LSC will consult with the requester prior to processing 
the request, and such requests will not be deemed to have been received 
by LSC until the requester agrees in writing to pay all fees charged 
for services. LSC will also make available its FOIA Public Liaison or 
other FOIA professional to assist any requester in reformulating a 
request to meet the requester's needs at a lower cost.
    (i) No requester will be required to make an advance payment of any 
fee unless:
    (1) The requester has previously failed to pay a required fee 
within 30 days of the date of billing, in which case an advance deposit 
of the full amount of the anticipated fee together with the fee then 
due plus interest accrued may be required (and the request will not be 
deemed to have been received by LSC until such payment is made); or
    (2) LSC determines that an estimated fee will exceed $250, in which 
case the requester shall be notified of the amount of the anticipated 
fee or such portion thereof as can readily be estimated. Such 
notification shall be transmitted as soon as possible, but in any event 
within five working days of receipt by LSC, giving the best estimate 
then available. The notification shall offer the requester the 
opportunity to confer with appropriate representatives of LSC for the 
purpose of reformulating the request so as to meet the needs of the 
requester at a reduced cost. The request will not be deemed to have 
been received by LSC for purposes of the initial 20-day response period 
until the requester makes a deposit on the fee in an amount determined 
by LSC.
    (j) Interest may be charged to those requesters who fail to pay the 
fees charged. Interest will be assessed on the amount billed, starting 
on the 31st day following the day on which the billing was sent. The 
rate charged will be as prescribed in 31 U.S.C. 3717.
    (k) If LSC reasonably believes that a requester or group of 
requesters is attempting to break a request into a series of requests 
for the purpose of evading the assessment of fees, LSC shall aggregate 
such requests and charge accordingly. Likewise, LSC will aggregate 
multiple requests for documents received from the same requester within 
45 days.


Sec.  1602.15  Submitter's rights process.

    (a) When LSC receives a FOIA request seeking the release of 
confidential commercial information, LSC shall provide prompt written 
notice of the request to the submitter in order to afford the submitter 
an opportunity to object to the disclosure of the requested 
confidential commercial information. The notice shall reasonably 
describe the confidential commercial information requested, inform the 
submitter of the process required by paragraph (b) of this section, and 
provide a reasonable time period for the submitter to respond.
    (b) If a submitter who has received notice of a request for the 
submitter's confidential commercial information wishes to object to the 
disclosure of the confidential commercial information, the submitter 
must provide LSC within the time period set forth in the notice, a 
detailed written statement identifying the information which it 
objects. The submitter must send its objections to the Office of Legal 
Affairs or, if it pertains to Office of Inspector General records, to 
the Office of Inspector General, and must specify the grounds for 
withholding the information under FOIA or this part. In particular, the 
submitter must demonstrate why the information is commercial or 
financial information that is privileged or confidential. If the 
submitter fails to respond to the notice from LSC within the time 
period specified in the notice, LSC will deem the submitter to have no 
objection to the disclosure of the information.
    (c) Upon receipt of written objection to disclosure by a submitter, 
LSC shall consider the submitter's objections and specific grounds for 
withholding in deciding whether to release the disputed information. 
Whenever LSC decides to disclose information over the objection of the 
submitter, LSC shall give the submitter written notice which shall 
include:
    (1) A description of the information to be released and a notice 
that LSC intends to release the information;
    (2) A statement of the reason(s) why the submitter's request for 
withholding is being rejected; and
    (3) A specified disclosure date, which must be a reasonable time 
after the notice.
    (d) The requirements of this section shall not apply if:
    (1) LSC determines upon initial review of the requested 
confidential commercial information that the requested information 
should not be disclosed;
    (2) The information has been previously published or officially 
made available to the public; or
    (3) Disclosure of the information is required by statute (other 
than FOIA) or LSC's regulations.
    (e) Whenever a requester files a lawsuit seeking to compel 
disclosure of a submitter's information, LSC shall promptly notify the 
submitter.
    (f) Whenever LSC provides a submitter with notice and opportunity 
to oppose disclosure under this section, LSC shall notify the requester 
that the submitter's rights process under this section has been 
triggered. Likewise, whenever a submitter files a lawsuit seeking to 
prevent the disclosure of the submitter's information, LSC shall notify 
the requester.

    Dated: December 12, 2016.
Stefanie K. Davis,
Assistant General Counsel.
[FR Doc. 2016-30144 Filed 12-15-16; 8:45 am]
 BILLING CODE P