Streamlining the Office of Inspector General's Freedom of Information Act Regulations and Implementing the FOIA Improvement Act of 2016, 7388-7394 [2018-03400]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 83, Number 35 (Wednesday, February 21, 2018)]
[Rules and Regulations]
[Pages 7388-7394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03400]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 2002

[Docket No. FR-6048-F-01]


Streamlining the Office of Inspector General's Freedom of 
Information Act Regulations and Implementing the FOIA Improvement Act 
of 2016

AGENCY: Office of Inspector General, HUD.

ACTION: Final rule.

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SUMMARY: This final rule amends the Freedom of Information Act (FOIA) 
regulations for the U.S. Department of Housing and Urban Development 
(HUD) Office of Inspector General (OIG) to align with HUD's FOIA 
regulations, to implement the FOIA Improvement Act of 2016, and to 
explain current OIG policies and practices with respect to FOIA.

DATES: Effective: March 23, 2018.

FOR FURTHER INFORMATION CONTACT: Maura Malone; Deputy Counsel to the 
Inspector General; Department of Housing and Urban Development; 451 
Seventh Street SW, Room 8260, Washington, DC 20410; 202-708-1613 (this 
is not a toll-free number). Persons with hearing or speech impairments 
may access this number through TTY by calling the Federal Relay Service 
at 800-877-8339 (this is a toll-free number).

SUPPLEMENTARY INFORMATION: 

I. Background

    In July 1967, HUD issued regulations at 24 CFR part 15 containing 
the policies and procedures governing public access to HUD records 
under the Freedom of Information Act (FOIA) (5 U.S.C. 552) (Pub. L. 89-
487, approved July 4, 1966). The Inspector General Act of 1978 (5 
U.S.C. App. 3) was enacted to ``create independent and objective 
units'' to perform investigative and monitoring functions within 
Executive agencies of the Federal Government, including HUD. HUD's 
regulations regarding public access to HUD records under the FOIA are 
at 24 CFR part 15. To further its independence, OIG officials, as 
opposed to HUD officials, make determinations concerning the release of 
OIG records. In 1984, the HUD OIG published 24 CFR part 2002, which 
explains the procedures for requesting information from the OIG under 
the FOIA. Part 2002 cross referenced several of HUD's regulations at 24 
CFR part 15. The OIG last amended its FOIA regulations in July 2002 (67 
FR 47216). Subsequently, HUD made several changes to its FOIA 
regulation, which has affected some of the regulations referenced in 
part 2002 (80 FR 49140).
    On June 30, 2016, the President signed into law the FOIA 
Improvement Act of 2016 (2016 Act) (Pub. L. 114-185). The 2016 Act 
addresses a range of procedural issues, including requirements that 
agencies establish a minimum of 90 days for requesters to file an 
administrative appeal and that agencies provide dispute resolution 
services at various times throughout the FOIA process. The 2016 Act 
also codifies a ``foreseeable harm'' standard, amends a FOIA disclosure 
exemption, creates a new Chief FOIA Officer Council within the 
Executive Branch, and adds two new elements to agency Annual FOIA 
Reports. The amendments apply to any request made after the date of 
enactment. The 2016 Act also requires agencies to review and issue 
updated regulations on procedures for the disclosure of records under 
FOIA, in accordance with the amendments made by the 2016 Act. On 
January 12, 2017, HUD issued a direct final rule amending its FOIA 
regulation to reflect the 2016 Act amendments (82 FR 3619).

II. Changes Made in This Final Rule

    In this final rule, the HUD OIG seeks to amend its FOIA regulations 
to address the 2016 Act changes, conform its regulations with HUD's, 
and simplify its regulations to make the process clearer to the 
requesting public. The following is an overview of nontechnical changes 
made in this final rule:

Section 2002.3 OIG's Overall Policy Concerning Disclosable Records

    The OIG adds the title and contact information for the FOIA Public 
Liaison that is available to answer questions for FOIA requesters, as 
required by the 2016 Act.

Section 2002.5 How To Make a Request for OIG Records; Records Produced

    This section is updated to provide for requests to be made in 
writing, which aligns with HUD's FOIA regulations, and provides that 
such requests may be made using the OIG public website. The regulations 
also reflect the requirement that the requestor, when requesting 
records on themselves, may be required to identify themselves when 
making a request or such a request may be found insufficient and 
closed. Lastly, the OIG also clarifies that for purposes of reasonably 
describing a record, a more specific FOIA request will likely result in 
the OIG locating the records requested. The OIG notes that a request 
for ``any and all'' records over an

[[Page 7389]]

extended period of time may be rejected for not reasonably describing 
the record.

Section 2002.7 OIG Processing of Requests, Multi-Tracking, and 
Expedited Processing

    This rule provides the tracking process for requests that qualify 
as unusual circumstance under the definition at 5 U.S.C. 
552(a)(6)(B)(iii). In adding the definition, the OIG adds an example of 
audit work papers under the definition of ``unusual circumstances'' to 
clarify that requests for audit work papers usually qualify as unusual 
circumstances and take longer than 20 working days to process because 
work papers related to an audit, if it is accepted for processing as a 
proper request, generally take weeks or months to process.

Section 2002.9 Proactive Disclosures of Records

    The 2016 Act requires agencies to ``make available for public 
inspection in an electronic format'' records that, because of their 
subject matter, the agency determines ``have become or are likely to 
become the subject of subsequent requests for substantially the same 
records,'' or that have been requested 3 or more times. The 2016 Act 
also adds new reporting requirements for agencies by requiring that 
agencies submit an Annual FOIA Report, which covers the preceding 
fiscal year, to be submitted to the Director of the Office of 
Government Information Services.\1\ The raw statistical data used in 
each report must be made available without charge, license, or 
registration requirement; in an aggregated, searchable format, and in a 
format that may be downloaded in bulk. Both the report and the raw 
statistical data used in the report must be made available for public 
inspection in an electronic format. In response, the OIG is amending 
Sec.  2002.9 to comply with these requirements.
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    \1\ Under FOIA, agencies are also required to submit an Annual 
FOIA Report to the Attorney General of the United States (5 U.S.C. 
552(e)(1)).
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Section 2002.13 Fee Schedule, Advance Payment, Interest Charges, and 
Waiving or Reducing Fees

    This rule amends Sec.  2002.13 to adopt HUD's fee schedule and 
policies in their entirety through cross-reference to HUD's FOIA 
regulation at Sec.  15.106. Incorporated in HUD's regulations are the 
2016 Act new provisions regarding agencies' ability to assess search 
and duplication fees. First, the 2016 Act provides that an agency shall 
not assess any search fees, or in some cases, duplication fees, if the 
agency has failed to comply with any time limit described at 5 U.S.C. 
552(a)(6), which are set out in OIG's FOIA regulations at Sec.  
2002.15, with limited exceptions. Second, if an agency determines that 
unusual circumstances apply to the processing of a FOIA request, and 
the agency has provided timely written notice to the requester, then a 
delayed response time is excused for an additional 10 days; however, if 
the agency fails to comply with the extended time limit, it may not 
charge search fees, or, in some cases, duplication fees, with limited 
exceptions. Third, the 2016 Act provides an exception allowing agencies 
to charge search fees, or in some cases, duplication fees, if unusual 
circumstances apply, more than 5,000 pages are necessary to respond to 
the request, timely written notice has been made to the requester, and 
the agency 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. Fourth, the 2016 Act maintains that if a court 
determines that ``exceptional circumstances'' exist, as defined in 5 
U.S.C. 552(a)(6)(C), the agency's failure to comply with a time limit 
``shall be excused for the length of time provided by the court 
order.''
    As for the definition of ``commercial requesters'' adopted from 
HUD's regulation, the OIG clarifies that as a policy, it will treat 
owners of websites that contain advertisements, or that charge fees in 
any way, to be ``commercial requesters,'' if they do not use editorial 
skills to turn the posted materials into a distinct work, or provide 
significant editorial comments. Owners of websites that do not contain 
advertisements, but that post requested documents without altering such 
documents or providing editorial comments, will be considered ``other 
requesters,'' unless the websites are used to advertise or publicize 
the skills or expertise of the owners.
    This rule also removes OIG's existing FOIA regulations at Sec.  
2002.13 because the collecting of interest charges on any unpaid bills 
is consistent with HUD's FOIA regulations at Sec.  15.106(g).

Section 2002.15 Time Limitations

    When a FOIA request involves ``unusual circumstances,'' agencies 
have long been required to provide written notice to the requester, and 
in those instances where an extension of time of more than 10 working 
days is specified, agencies have been required to provide the requester 
with an opportunity to limit the scope of the request so that it can be 
processed more quickly or to arrange an alternative time to respond. 
The 2016 Act adds an additional requirement that when unusual 
circumstances exist and an agency extends the time limits by more than 
10 additional working days, in the written notice to the requester they 
must notify the requester of their right to seek dispute resolution 
services from the FOIA Public Liaison of the agency or the Office of 
Government Information Services. To address this requirement, the OIG 
is revising Sec.  2002.15 to incorporate the change enacted by the 2016 
Act.
    The OIG is also using this final rule to update several specific 
provisions of Sec.  2002.15 to more accurately reflect the statutory 
language in 5 U.S.C. 552(a)(6)(A)(i). First, the OIG is amending Sec.  
2002.15(a) to state that OIG will generally ``make a determination 
whether to comply with a FOIA request within 20 working days.'' Second, 
the OIG is amending the provision that addresses when OIG may extend 
the time periods for processing a FOIA request, to remove the sentence 
that limits extensions to 10 working days. The OIG is removing this 
language as inconsistent with the plain reading of the statute, the 
logic of the rest of the language in Sec.  2002.15, and Department of 
Justice guidance.\2\ Finally, in accordance with 5 U.S.C. 
552(a)(6)(B)(ii), the OIG is updating Sec.  2002.15 to include the 
provision that the OIG shall make available its FOIA Public Liaison, 
who shall assist in the resolution of any disputes between the 
requester and the OIG.
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    \2\ See Department of Justice Guide to the Freedom of 
Information Act, https://www.justice.gov/oip/doj-guide-freedom-information-act-0.
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    When an agency makes a determination regarding whether to comply 
with a FOIA request, the 2016 Act provides that the agency is required 
to immediately notify the requester of such determination and the 
reasons therefore, and notify the requester that they have a right to 
seek assistance from the agency's FOIA Public Liaison. For adverse 
determinations, the 2016 Act requires that agencies afford the 
requester no less than 90 days from the date of the adverse 
determination on the request to file an appeal. In addition, the 2016 
Act requires that agencies notify the requester that they may seek 
dispute resolution services from the FOIA Public Liaison or from the 
Office of Government Information Services. Consistent with this 
requirement, the OIG has revised Sec.  2002.15 to provide that, once 
OIG makes a determination regarding compliance, the OIG will

[[Page 7390]]

immediately notify the requester of such determination, the reasons 
therefore, and their right to seek assistance from the FOIA Public 
Liaison.

Section 2002.19 Authority To Deny Requests for Records and Form of 
Denial, Exemptions, and Exclusions

    The 2016 Act requires that agencies withhold information under FOIA 
``only if the agency reasonably foresees that disclosure would harm an 
interest protected by an exemption'' or if disclosure is prohibited by 
law. The 2016 Act further directs agencies to consider whether partial 
disclosure of information is possible whenever the agency determines 
that a full disclosure of a requested record is not possible, and to 
take reasonable steps necessary to segregate and release nonexempt 
information. The 2016 Act does not require disclosure of information 
that is otherwise prohibited from disclosure by law or otherwise 
exempted from disclosure under Exemption 3.
    Consistent with these changes, the OIG is amending Sec.  2002.19 to 
provide that the OIG shall withhold information only if it is 
reasonably foreseeable that disclosure would harm an interest protected 
by an exemption, or if disclosure is prohibited by law. The OIG will 
also consider whether partial disclosure of information is possible if 
it determines that a full disclosure of a requested record is not 
possible and will take reasonable steps necessary to segregate and 
release nonexempt information.
    In addition, the 2016 Act amends Exemption 5 of FOIA to provide 
that the deliberative process privilege does not apply to records 
created 25 years or more before the date on which the records were 
requested. In accordance with the 2016 Act, the OIG is revising Sec.  
2002.19 to state that the deliberative process privilege ``shall not 
apply to records created 25 years or more before the date on which the 
records were requested.''
    For adverse determinations, the OIG is amending Sec.  2002.19 to 
provide that the OIG will notify the requester of their right to file 
an appeal no less than 90 days after the date of receiving the adverse 
determination. Finally, the OIG is amending Sec.  2002.19 to provide 
that the OIG will notify the requester of their right to seek dispute 
resolution services from the FOIA Public Liaison or from the Office of 
Government Information Services.

Section 2002.23 Administrative Review

    The OIG amends Sec.  2002.23, consistent with the 2016 Act to 
provide that the OIG will notify requesters of dispute resolution 
services in its FOIA appeal determination response letter and that they 
have 90 days to seek an appeal. The OIG is also amending Sec.  2002.23 
to clarify that appeals may be submitted electronically and lists the 
items that a requestor should include in an appeal, such as a copy of 
the original request and the written denial.

III. Justification for Final Rulemaking

    In general, OIG publishes a rule for public comment before issuing 
a rule for effect, in accordance with OIG's regulations on rulemaking 
at 24 CFR part 10. Section 10.1, however, provides an exception from 
that general rule where OIG finds good cause to omit advance notice and 
public participation. The good cause requirement is satisfied when the 
prior public procedure is ``impracticable, unnecessary or contrary to 
the public interest.''
    The OIG finds that good cause exists to publish this rule for 
effect without first soliciting public comment because prior public 
comment is unnecessary. This final rule follows the statutory directive 
in section 3 of the 2016 Act, which requires agencies to review and 
issue updated regulations on procedures for the disclosure of records 
under FOIA, in accordance with the amendments made by the 2016 Act. The 
2016 Act codifies a number of transparency and openness principles and 
enacts a number of procedural requirements, including requiring that 
agencies establish a minimum of 90 days for requesters to file an 
administrative appeal and that they provide dispute resolution services 
at various times throughout FOIA process. This final rule reflects the 
changes required by the 2016 Act. Additionally, this final rule makes 
technical amendments to align the OIG's FOIA regulation with HUD's FOIA 
regulation at 24 CFR part 15 and clarifies current OIG FOIA procedures 
to streamline and simplify the process of filing FOIA requests.

IV. Findings and Certifications

Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if the 
regulation is necessary, to select the regulatory approach that 
maximizes net benefits. This final rule incorporates changes enacted by 
the 2016 Act and makes other minor procedural changes that align this 
OIG regulation to HUD's FOIA regulation at 24 CFR part 15. As a result, 
this rule was determined to not be a significant regulatory action 
under section 3(f) of Executive Order 12866, Regulatory Planning and 
Review, and therefore was not reviewed by OMB.

Environmental Review

    This final rule is categorically excluded from environmental review 
under the National Environmental Policy Act of 1969 (42 U.S.C. 4321). 
The revision of the FOIA-related provisions of 24 CFR part 2002 falls 
within the exclusion provided by 24 CFR 50.19(c)(1), in that it does 
not direct, provide for assistance or loan and mortgage insurance for, 
or otherwise govern or regulate real property acquisition, disposition, 
leasing, rehabilitation, alteration, demolition, or new construction; 
or establish, revise, or provide for standards for construction or 
construction materials, manufactured housing, or occupancy.

Regulatory Flexibility Act

    The Secretary, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605(b)), has reviewed this final rule before publication and by 
approving it certifies that this rule does not have a significant 
economic impact on a substantial number of small entities. This final 
rule contains no anti-competitive discriminatory aspects with regard to 
small entities nor are there any unusual procedures that would need to 
be complied with by small entities.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an 
agency, to the extent practicable and permitted by law, from 
promulgating a regulation that has federalism implications and either 
imposes substantial direct compliance costs on State and local 
governments and is not required by statute, or preempts State law, 
unless the agency meets the relevant requirements of section 6 of the 
Executive Order. This final rule does not have federalism implications 
and does not impose substantial direct compliance costs on State and 
local governments or preempt State law within the meaning of the 
Executive order.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538) establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. This final rule does not impose any 
Federal mandates on any State, local, or tribal governments or the 
private sector within the meaning of the

[[Page 7391]]

Unfunded Mandates Reform Act of 1995.

List of Subjects in 24 CFR Part 2002

    Release of information under the Freedom of Information Act.

0
Accordingly, for the reasons stated above, OIG revises 24 CFR part 2002 
to read as follows:

PART 2002--AVAILABILITY OF INFORMATION TO THE PUBLIC

Sec.
2002.1 Scope of this part and applicability of other HUD 
regulations.
2002.3 OIG's overall policy concerning disclosable records and 
requests for OIG records.
2002.5 How to make a request for OIG records; records produced.
2002.7 OIG processing of requests, multi-tracking, and expedited 
processing.
2002.9 Proactive disclosures of records.
2002.11 Agency review of records and aggregating requests.
2002.13 Fee schedule, advance payment, and waiving or reducing fees.
2002.15 Time limitations.
2002.17 Authority to release records or duplications.
2002.19 Authority to deny requests for records and form of denial, 
exemptions, and exclusions.
2002.21 Effect of denial of request.
2002.23 Administrative review.

    Authority:  5 U.S.C. 552; 5 U.S.C. App. 3; 42 U.S.C. 3535(d); 
Delegation of Authority, 46 FR 2389.


Sec.  2002.1  Scope of this part and applicability of other HUD 
regulations.

    (a) General. This part contains the regulations of the Office of 
Inspector General (OIG) that implement the Freedom of Information Act 
(FOIA) (5 U.S.C. 552). It informs the public how to request records and 
information from the OIG and explains the procedure to use if a request 
is denied. Requests made by individuals for records about themselves 
under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in 
accordance with 24 CFR part 2003 as well as this part. Requests for 
documents made by subpoena or other demands of courts or other 
authorities are governed by procedures contained in part 2004 of this 
chapter. These rules should be read in conjunction with the text of the 
FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines 
published by the Office of Management and Budget. This policy does not 
create any right enforceable in court.
    (b) Applicability of HUD's FOIA regulations. In addition to the 
regulations in this part, Sec. Sec.  15.2 and 15.106 of this title 
apply to the production or disclosure of information in the possession 
of the OIG, except as limited in paragraph (c) of this section or 
otherwise expressly stated in this part.
    (c) Limited applicability of Sec. Sec.  15.2 and 15.106 of this 
title. The OIG has different people and entities involved in the FOIA 
process than those defined in Sec.  15.2 and these people and entities 
are specifically identified in this part. For purposes of this part, 
when the words ``HUD'' or ``Department'' are used in Sec.  15.2 or 
Sec.  15.106, the term means the OIG. The OIG will follow the fee 
schedule at Sec.  15.106 except as otherwise provided in this part. 
Where Sec.  15.106 references Sec.  15.103, the OIG reference in this 
part is Sec.  2002.15.


Sec.  2002.3  OIG's overall policy concerning disclosable records.

    (a) The OIG will administer its FOIA program with a presumption of 
openness. This policy does not create any right enforceable in court. 
The OIG will fully and responsibly disclose its identifiable records 
and information consistent with competing public interests, such as 
national security, personal privacy, grand jury and investigative 
secrecy, complainant confidentiality, and agency deliberative process, 
as are recognized by FOIA and other Federal statutes. The OIG will 
apply the FOIA exemptions if release could foreseeably harm an interest 
protected by a FOIA exemption. Release of records will be made as 
promptly as possible.
    (b) The OIG FOIA Public Liaison is the Deputy Counsel to the 
Inspector General. Requesters who have questions or comments concerning 
their FOIA request may contact the FOIA Public Liaison at 202-708-1613, 
or through the FOIA email at [email protected].


Sec.  2002.5  How to make a request for OIG records; records produced.

    (a) Any request for OIG records must be made in writing. The 
easiest way to make a FOIA request is electronically through our public 
website at www.hudoig.gov. A request may also be made by submitting the 
written request to The Office of Inspector General; Department of 
Housing and Urban Development; 451 Seventh Street SW, Suite 8260, 
Washington, DC 20410. The envelope should indicate it is a FOIA 
request. A request for OIG records may also be made in person during 
normal business hours at any office where OIG employees are permanently 
stationed.
    (b) Each request must reasonably describe the desired record, 
including the title or name, author, subject matter, and number or 
date, where possible, so that the record may be identified and located. 
The more specific the FOIA request for records, the more likely OIG 
officials will be able to locate the records requested. The request 
should also include the name, address and telephone number of the 
requester, the fee category that the requester believes applies to the 
request, and the form or format in which the requester would like the 
desired record to be reproduced, if the requester has a preference. In 
order to enable the OIG to comply with the time limitations set forth 
in Sec.  2002.15, both the envelope containing a written request and 
the letter itself should clearly indicate that the subject is a Freedom 
of Information Act request.
    (c) The request must be accompanied by the fee or an offer to pay 
the fee as determined in Sec.  15.106 of this title and Sec.  2002.13.
    (d) The OIG may require information verifying the requester's 
identity, if the requester requests agency records pertaining to the 
requester, a minor, or an individual who is legally incompetent. 
Failure to provide the information when requested will result in the 
request being found insufficient and closed. It will not prevent the 
future refiling of the request.
    (e) Duplication of available records will be made as promptly as 
possible. Such duplication can take the form of paper copy, audiovisual 
materials, or machine-readable documentation (e.g., electronic 
documents on CD, DVD, flash drive, etc.). Records that are published or 
available for sale will not be reproduced.
    (f) The OIG shall honor a requester's specified preference of form 
or format of disclosure if the record is readily reproducible with 
reasonable efforts in the requested form or format by the office 
responding to the request.
    (g) If the requester makes a request for expedited processing, the 
request must provide a detailed explanation of the basis for the 
request. The requester should also include a statement certifying the 
truth of the circumstances supporting the requester's compelling need. 
Requests for expedited processing that simply recite the statutory 
language are generally not granted.


Sec.  2002.7  OIG processing of requests, multi-tracking, and expedited 
processing.

    (a) Tracking number. FOIA requests will be logged in the order that 
they are received and be assigned a tracking number, except as provided 
in paragraph (c) of this section. A requester should use the tracking 
number to identify his or her request when contacting the FOIA office 
for any reason. An acknowledgement of receipt of the request, with the 
assigned

[[Page 7392]]

tracking number, will be sent to the requester by the FOIA office.
    (b) Multi-track processing--(1) Types of tracks. For requests that 
do not qualify for expedited processing, the OIG places each request in 
one of two tracks, simple or complex, based on the amount of work and 
time involved in processing the request. In doing so, the OIG will 
consider whether the request involves the processing of voluminous 
documents or responsive documents from more than one organizational 
unit. Within each track, the OIG processes requests in the order in 
which they are received.
    (2) Unusual circumstances. Requests for audit work papers are 
considered complex requests and generally qualify as an unusual 
circumstance under 5 U.S.C. 552(a)(6)(B)(iii), taking longer than 20 
working days to process. Requests for ``all'' specified records over a 
span of time, if they are accepted as reasonably describing a specific 
group of records, are considered complex requests and usually qualify 
as an unusual circumstance under 5 U.S.C. 552(a)(6)(B)(iii), taking 
longer than 20 working days to process. Requesters who make requests 
qualifying as unusual circumstances will be offered an opportunity to 
narrow the scope of their request or arrange for an alternative time 
period.
    (3) Misdirected requests. For requests that have been sent to the 
wrong office, the OIG will assign the request within each track using 
the earlier of either:
    (i) The date on which the request was referred to the appropriate 
office; or
    (ii) The end of the 10 working-day period in which the request 
should have been referred to the appropriate office.
    (c) Expedited processing. (1) The OIG may take your request or 
appeal out of normal order if the OIG determines that you have a 
compelling need for the records or in other cases as determined by the 
OIG. Any requester may ask for expedited processing at any time. If 
expedited processing is requested, the OIG will notify the requester 
within 10 working days whether it will grant expedited processing.
    (2) The OIG will grant requests for expedited processing if it 
finds a compelling need under 5 U.S.C. 552(a)(6)(E). Evidence of a 
compelling need by a person making a request for expedited processing 
must be made in a statement certified by such person to be true and 
correct to the best of such person's knowledge and belief. A compelling 
need exists if:
    (i) Your failure to obtain the 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) You are primarily engaged in disseminating information and 
there is an urgency to inform the public concerning actual or alleged 
Federal Government activity; or
    (iii) Your failure to obtain the requested records on an expedited 
basis could result in the loss of substantial due process rights.
    (3) If the OIG grants the request for expedited processing, the OIG 
will give the request priority and will process it as soon as 
practicable.


Sec.  2002.9  Proactive disclosures of records.

    (a) You may review records that section 552(a)(2) of FOIA requires 
the OIG to make available to the public in the electronic reading rooms 
identified in paragraph (b) of this section. That is the preferable 
method; however, you may also ask to review those documents that are in 
hardcopy at the Headquarters offices at HUD's Library, 451 Seventh 
Street SW, Suite 8141, Washington, DC 20410. This request should be 
coordinated through Office of Legal Counsel, Office of Inspector 
General, Suite 8254. Local offices may coordinate local requests for 
hardcopy reviews.
    (b) As required by 5 U.S.C. 552(a)(2), the OIG makes records 
created on or after November 1, 1996, available through its Electronic 
FOIA Reading Room, located at https://www.hudoig.gov/foia. These 
records include:
    (1) Copies of all records, regardless of form or format that have 
been released to any person under this part: and
    (i) Because of the nature of their subject matter, the agency 
determines that the records have become or are likely to become the 
subject of subsequent requests for substantially the same records; or
    (ii) Have been requested three or more times.
    (2) Report for the preceding fiscal year submitted to the U.S. 
Attorney General and the Director of the Office of Government 
Information Services as required by 5 U.S.C. 552(e) and the raw 
statistical data used in each report. This report will be made 
available:
    (i) Without charge, license, or registration requirement;
    (ii) In an aggregated, searchable format; and
    (iii) In a format that may be downloaded in bulk.
    (c) The OIG also makes other documents, such as audits and 
semiannual reports, available to the public at https://www.hudoig.gov/.


Sec.  2002.11  Agency review of records and aggregating requests.

    (a) Review of records. Only requesters who are seeking documents 
for commercial use may be charged for the time the OIG spends reviewing 
records to determine whether the records are exempt from mandatory 
disclosure. Charges will be assessed only for the initial review; i.e., 
the review undertaken the first time the OIG reviews a particular 
record or portion of a record to apply an exemption. The OIG will not 
charge for review at the administrative appeal level of an exemption 
already applied. However, records or portions of records withheld under 
an exemption that is subsequently determined not to apply may be 
reviewed again to determine the applicability of other exemptions not 
previously considered. The costs for such a subsequent review would be 
properly assessable. Review time will be assessed at the same rates 
established for search time in Sec. Sec.  2002.13 and 15.106 of this 
title.
    (b) Aggregating requests. (1) The OIG may aggregate multiple 
requests in cases where unusual circumstances exist and the OIG 
determines that:
    (i) Certain requests from the same requester or from a group of 
requesters acting in concert actually constitute a single request; and
    (ii) The requests involve clearly related matters.
    (2) Aggregation of requests for this purpose will be conducted 
independent of aggregation of requests for fee purposes under Sec.  
15.106(h) of this title.


Sec.  2002.13   Fee schedule, advance payment, interest charges, and 
waiving or reducing fees.

    The OIG will charge for processing requests under the FOIA in 
accordance with Sec.  15.106 of this title, except where those 
provisions conflict with provisions of this part; more specifically, 
where Sec.  15.106 references Sec.  15.103 of this title replace such 
reference with Sec.  2002.15.


Sec.  2002.15  Time limitations.

    (a) General. Upon receipt of a request for records, the appropriate 
Assistant Inspector General or an appointed designee will generally 
make a determination whether to comply with a FOIA request within 20 
working days. The Assistant Inspector General or designee will 
immediately notify the requestor in writing of the determination and 
the reason(s) for such determination and the right of the person to 
request assistance from the FOIA Public Liaison. The 20-day period will 
begin on the day the request is

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received by the OIG, but in any event not later than 10 working days 
after the request is received by any component designated to receive 
FOIA requests, and after any fees or advance payment of fees under 
Sec.  2002.13 has been made.
    (b) Scope of responsive records. In determining which records are 
responsive to a request, an agency ordinarily will include only records 
in its possession as of the date that it begins its search. If any 
other date is used, the agency must inform the requester of that date. 
A record that is excluded from the requirements of the FOIA pursuant to 
5 U.S.C. 552(c) is not considered responsive to a request.
    (c) Unusual circumstances. Under unusual circumstances, as 
specified in this paragraph (c), the OIG may extend the time period for 
processing a FOIA request. In such circumstances, the OIG will provide 
the requester with written notice setting forth the unusual 
circumstances for the extension and the date on which a determination 
is expected to be made. This date will not exceed 10 working days 
beyond the general time established in paragraph (a) of this section. 
If processing a request would require more than 10 working days beyond 
the general time limit established in paragraph (a) of this section, 
the OIG will offer the requester an opportunity to reduce or limit the 
scope of the request in order to allow the OIG to process it within the 
extra 10-day working period or arrange an alternative time period 
within which the FOIA request will be processed. To aid the requester, 
the OIG shall make available its FOIA Public Liaison, who shall assist 
in the resolution of any disputes between the requester and the OIG, 
and notify the requester of the right of the requester to seek dispute 
resolution services from the Office of Government Information Services. 
Unusual circumstances mean that there is a need:
    (1) To search for and collect the requested records from field 
facilities or other establishments that are separate from the office 
processing the request;
    (2) To search for, collect, and appropriately examine a voluminous 
amount of separate and distinct records that are demanded in a single 
request (e.g. audit work papers); or
    (3) For consultation, which shall be conducted with all practicable 
speed, with another agency having a substantial interest in the 
determination of the request or among two or more offices of the Office 
of Inspector General having a substantial interest in the subject 
matter of the request.


Sec.  2002.17  Authority to release records or duplications.

    Any Assistant Inspector General or an appointed designee is 
authorized to release any record (or duplication) pertaining to 
activities for which he or she has primary responsibility, unless 
disclosure is clearly inappropriate under this part. No authorized 
person may release records for which another officer has primary 
responsibility without the consent of the officer or his or her 
designee.


Sec.  2002.19  Authority to deny requests for records and form of 
denial, exemptions, and exclusions.

    (a) Process for denying requests. An Assistant Inspector General or 
the Counsel to the Inspector General, or their designees, may deny a 
request for a record. Any denial will:
    (1) Be in writing;
    (2) State simply the reasons for the denial;
    (3) Provide an estimate of the volume of records or information 
withheld, when appropriate, in number of pages or in some other 
reasonable form of estimation. This estimate does not need to be 
provided if the volume is otherwise indicated through deletions on 
records disclosed in part, or if providing an estimate would harm an 
interest protected by an applicable exemption;
    (4) Identify the person(s) responsible for the denial by name and 
title;
    (5) Provide notice of the right of the requester to appeal to the 
Deputy Inspector General, within a period determined by the head of the 
agency that is not less than 90 days after the date of such adverse 
determination, consistent with Sec.  2002.23; and
    (6) Provide notice of the right of the requester to seek dispute 
resolution services from the FOIA Public Liaison of the agency or the 
Office of Government Information Services.
    (b) Denying requests generally. The OIG shall withhold information 
only if the OIG reasonably foresees that disclosure would harm an 
interest protected by an exemption as provided in this section, or 
disclosure is prohibited by law. The OIG will consider whether partial 
disclosure of information is possible whenever the OIG determines that 
a full disclosure of a requested record is not possible and will take 
reasonable steps necessary to segregate and release nonexempt 
information. Nothing in this section requires disclosure of information 
that is otherwise prohibited from disclosure by law or otherwise 
exempted from disclosure as provided in this section.
    (c) FOIA exemptions. The FOIA contains nine exemptions (5 U.S.C. 
552(b)) that authorize agencies to withhold various records from 
disclosure, and two exclusions to the statute that may be used by the 
OIG. With regard to the records normally requested, the OIG generally 
applies the exemptions and exclusions as follows:
    (1) Classified documents. Exemption 1 (5 U.S.C. 552(b)(1)) protects 
classified national defense and foreign relations information. The OIG 
seldom relies on this exception to withhold documents. However, where 
applicable, the OIG will refer a request for records classified under 
Executive Order 13526 and the pertinent records to the originating 
agency for processing. The OIG may refuse to confirm or deny the 
existence of the requested information if the originating agency 
determines that the fact of the existence of the information itself is 
classified.
    (2) Internal agency rules and practices. Exemption 2 (5 U.S.C. 
552(b)(2)) protects records relating to internal personnel rules and 
practices.
    (3) Information prohibited from disclosure by another statute. 
Exemption 3 (5 U.S.C. 552(b)(3)) protects information that is 
prohibited from disclosure by another Federal law. Some investigative 
records contain information that could reveal grand jury proceedings, 
which are protected from disclosure by Federal Rule of Criminal 
Procedure 6(e). Section 7 of the Inspector General Act of 1978 
prohibits the OIG from disclosing the identity of employees who make 
protected disclosures. The OIG generally will not disclose competitive 
proposals prior to contract award, competitive proposals that are not 
set forth or incorporated by reference into the awarded contract, (see 
41 U.S.C. 4702), or, during the selection process, any covered 
selection information regarding such selection, either directly or 
indirectly (see 42 U.S.C. 3537a).
    (4) Commercial or financial information. Exemption 4 (5 U.S.C. 
552(b)(4)) protects trade secrets and commercial or financial 
information obtained from a person that is privileged and confidential. 
The OIG frequently obtains this information through its audits. The OIG 
will process the release of this category of information pursuant to 
Executive Order 12600 and give notice to the affected business and an 
opportunity for the business to present evidence of its confidentiality 
claim. If the OIG is sued by a requester under the FOIA for 
nondisclosure of confidential business information, the OIG expects the 
affected business to cooperate to the

[[Page 7394]]

fullest extent possible in defending such a decision.
    (5) Certain interagency or intra-agency communications. Exemption 5 
(5 U.S.C. 552(b)(5)) protects interagency or intra-agency 
communications that are protected by legal privileges, such as the 
attorney-client privilege, attorney work-product privilege, or 
communications reflecting the agency's deliberative process. These 
communications may include communications with the Department of 
Justice and with HUD. The deliberative process privilege shall not 
apply to records created 25 years or more before the date on which the 
records were requested.
    (6) Personal privacy. Exemption 6 (5 U.S.C. 552(b)(6)) protects 
information involving matters of personal privacy. This information may 
be found in personnel, medical, and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy. Names, addresses, telephone numbers, and email addresses of 
persons identified in audits or complaints generally will not be 
disclosed. The OIG has learned through experience that some of its 
employees (i.e. Hotline employees) will be harassed if their identities 
are known, and the OIG will protect the identities of these employees. 
As a law enforcement agency, the OIG finds individuals generally have a 
heightened privacy interest for not having their identities associated 
with the OIG.
    (7) Law enforcement records. Exemption 7 (5 U.S.C. 552(b)(7)) 
protects certain records or information compiled for law enforcement 
purposes. This exemption protects records where the production could 
reasonably be expected to interfere with enforcement proceedings. The 
protection of this exemption also encompasses, but is not limited to, 
information in law enforcement files that could reasonably be expected 
to constitute an unwarranted invasion of personal privacy; the names of 
confidential informants; and techniques and procedures for law 
enforcement investigations, or guidelines for law enforcement 
investigations if such disclosure could reasonably be expected to risk 
circumvention of the law. It is the policy of the OIG in responding to 
all FOIA requests for investigative records pertaining to specifically 
named individuals to refuse to confirm or deny the existence of such 
records. Lacking the subject individuals consent, proof of death, an 
official acknowledgement of an investigation, or an overriding public 
interest, even to acknowledge the existence of such records could 
reasonably be expected to constitute an unwarranted invasion of 
personal privacy.
    (8) Supervision of financial institutions. Exemption 8 (5 U.S.C. 
552(b)(8)) protects information relating to the supervision of 
financial institutions. It is unlikely that the OIG will have these 
documents.
    (9) Wells. Exemption 9 (5 U.S.C. 552(b)(9)) protects geological 
information on wells. It is unlikely that the OIG will have these 
documents.
    (d) FOIA exclusion. Some law enforcement records are excluded from 
the FOIA. 5 U.S.C. 552(c)(1) permits a law enforcement agency to 
exclude a document from the FOIA if there is reason to believe that:
    (1) The subject of the investigation or proceeding is not aware of 
its pendency; and
    (2) Disclosure of the existence of the records could reasonably be 
expected to interfere with enforcement proceedings, in which case the 
agency may, during only such time as that circumstance continues, treat 
the records as not subject to the requirements of the FOIA. Section 
552(c)(2) of FOIA allows the exclusion of informant records, unless the 
existence of the informant has been officially confirmed.


Sec.  2002.21  Effect of denial of request.

    Denial of a request shall terminate the authority of the Assistant 
Inspector General or his or her designee to release or disclose the 
requested record, which thereafter may not be made publicly available 
except with express authorization of the Inspector General, Deputy 
Inspector General, or Counsel to the Inspector General.


Sec.  2002.23  Administrative review.

    (a) Review is available only from a written determination denying a 
request for a record and only if a written request for review is filed 
within 90 days after issuance of the written determination. If mailed, 
the requester's letter of appeal must be postmarked within 90 calendar 
days of the date of the letter of determination. If the letter of 
appeal is transmitted electronically or by a means other than the 
United States Postal Service, it must be received in the appropriate 
office by the close of business on the 90th calendar day after the date 
of the letter of determination. Before seeking court review of an 
adverse determination, a requester must exhaust their administrative 
remedies under this section.
    (b) A review may be initiated by sending a request for review to 
the Office of Inspector General; Department of Housing and Urban 
Development; 451 Seventh Street SW, Room 8256, Washington, DC 20410 or 
to [email protected] In order to enable the OIG to comply with 
the time limitations set forth in Sec.  2002.17, both the envelope 
containing the request for review and the letter itself should clearly 
indicate that the subject is a Freedom of Information Act request for 
review. Each request for review must contain the following:
    (1) A copy of the original request;
    (2) A copy of the written denial; and
    (3) A statement of the circumstances, reasons, or arguments 
advanced in support of disclosure of the original records requested.
    (c) Review will be made promptly by the Deputy Inspector General, 
or designee, on the basis of the written record. The OIG will decide an 
appeal of a denial of a request to expedite processing of a FOIA 
request within 10 working days of receipt of the appeal. The OIG will 
make a determination on all other appeals within 20 working days of 
receipt, unless unusual circumstances require the OIG to extend the 
time for an additional 10 working days.
    (d) The time of receipt for processing of a request is the time it 
is received by the Inspector General. If a request is misdirected by 
the requester and is received by one other than the Inspector General, 
the OIG official who receives the request will forward it promptly to 
the Inspector General and will advise the requester about the delayed 
time of receipt.
    (e) The decision after review will be in writing, will constitute 
final agency action on the request, and, if the denial of the request 
for records is in full or in part upheld, the Inspector General will 
notify the person making the request of his or her right to seek 
judicial review under 5 U.S.C. 552(a)(4).
    (f) Adverse decisions will include the name and contact information 
of dispute resolution services that offer mediation services to resolve 
disputes between FOIA requesters and Federal agencies as a nonexclusive 
alternative to litigation.

    Dated: January 18, 2018.
Helen M. Albert,
Acting Inspector General.
[FR Doc. 2018-03400 Filed 2-20-18; 8:45 am]
 BILLING CODE 4210-67-P