Revisions to the Public Access to HUD Records Under the Freedom of Information Act (FOIA) Regulations

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[Federal Register: March 15, 2007 (Volume 72, Number 50)]
[Rules and Regulations]
[Page 12539-12543]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15mr07-29]
[[Page 12540]]

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 15
[Docket No. FR-5069-F-02]
RIN 2501-AD22

Revisions to the Public Access to HUD Records Under the Freedom
of Information Act (FOIA) Regulations

AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.

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SUMMARY: This final rule clarifies and explains the procedures to be
followed by requesters seeking a waiver or a reduction of fees under
the Freedom of Information Act (FOIA). This final rule describes the
information that must be included in a FOIA request and the
demonstrations that must be made in order for a waiver or reduction of
fees to be granted. This final rule also revises the FOIA fee schedule,
clarifies the time at which HUD will begin processing a FOIA request,
and modifies HUD's policy on the use of outside contractors to fulfill
FOIA requests. HUD undertook this effort in order to make the
regulations governing fee waivers more informative and helpful in
accordance with the President's recently issued Executive Order 13392,
``Improving Agency Disclosure of Information.'' This final rule also
makes technical and conforming changes to reflect the realignment of
FOIA correspondence processing functions within HUD, to correct HUD's
definition of ``representative of the news media requester'' to ensure
conformance with the Office of Management and Budget (OMB) Fee
Guidelines, and to update a cross-reference to time limits applicable
to HUD for responding to a FOIA request. This final rule follows
publication of an October 5, 2006, proposed rule on which HUD received
one public comment.

DATES: Effective Date: April 16, 2007.

FOR FURTHER INFORMATION CONTACT: Vicky Lewis, Assistant Executive
Secretary, Freedom of Information Act (FOIA) Office, Office of the
Executive Secretariat, Office of Administration, Department of Housing
and Urban Development, 451 Seventh Street, SW., Room 10139, Washington,
DC 20410-5000; telephone (202) 708-3054 (this is not a toll-free
number). Persons with hearing or speech impairments may access this
number via TTY by calling the toll-free Federal Information Relay
Service at 1-(800) 877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

On December 14, 2005, President Bush issued Executive Order 13392,
entitled ``Improving Agency Disclosure of Information,'' which
acknowledged the importance of participation by an informed citizenry
in the effective functioning of our constitutional democracy. Executive
Order 13392 was published in the Federal Register on December 19, 2005
(70 FR 75373). The Freedom of Information Act (5 U.S.C. 552) (FOIA)
provides the means by which the public can obtain information regarding
federal agencies. Under FOIA, the public can request records from any
agency, which the agency must provide, subject to certain exemptions
and statutory exclusions.
HUD's regulations at 24 CFR part 15, entitled ``Public Access to
HUD Records under the Freedom of Information Act and Testimony and
Production of Information by HUD Employees,'' describe the policies and
procedures governing public access to HUD records under FOIA. Those
regulations describe how the public is to make a FOIA request, what
must be included in the request, how the request will be processed, any
applicable fees that will be charged, and the process for appealing a
denial of a request or a fee determination.

II. The October 5, 2006, Proposed Rule

On October 5, 2006 (71 FR 58994), HUD published a proposed rule to
respond to Executive Order 13392. This Executive Order has served as an
impetus for each agency to review its FOIA regulations to determine
whether its regulations are as helpful as they can be, especially since
these regulations reach out to the public generally and are not
specific to participants in particular government programs. HUD issued
the proposed rule to amend HUD's regulations at 24 CFR part 15 in order
to clarify and explain the procedures to be followed by requesters
seeking a waiver or reduction of fees under FOIA. HUD also proposed to
revise the FOIA fee schedule, clarify the time at which HUD would begin
processing a FOIA request, and modify HUD's policy on the use of
outside contractors to fulfill FOIA requests. For more detailed
information regarding the regulatory changes, please refer to the
preamble of the October 5, 2006, proposed rule.

III. This Final Rule; Discussion of Public Comments Received on the
October 5, 2006, Proposed Rule

This final rule follows publication of the October 5, 2006,
proposed rule. The public comment period on the proposed rule closed on
December 4, 2006. HUD received one public comment in response to the
proposed rule. The commenter expressed support for FOIA and for the
proposed rule, and stated that the proposed changes would allow for a
better and easier understanding of requests for fee waivers or
reductions. HUD appreciates the commenter's interest in the proposed
rule. This final rule adopts the proposed regulatory changes contained
in the October 5, 2006, proposed rule without change.

IV. Technical and Conforming Changes

In addition to adopting the revisions and amendments outlined in
the proposed rule, this final rule makes technical and conforming
changes to Sec. Sec. 15.103, 15.106, and 15.110 to reflect the
realignment of HUD's FOIA processing functions, to correct HUD's
definition of ``representative of the news media requester,'' and to
update a cross-reference to time limits for HUD to respond to a FOIA
request.
Executive Order 13392 required Federal agencies to develop agency-
specific plans to ensure the efficient and timely administration of
FOIA requests. Such plans were to include specific activities that the
agency would implement to eliminate or reduce the agency's FOIA
backlog, and activities that would increase public awareness of the
agency's FOIA processing. HUD submitted its plan to OMB and the
Attorney General on June 14, 2006. (See http://www.hud.gov/offices/
ogc/foia/hudfoiaplanfinal.pdf.) An integral part of HUD's plan is the
realignment of FOIA processing functions from the Office of General
Counsel to the Office of the Executive Secretariat in the Office of
Administration. The realignment of FOIA processing functions will
improve the efficiency and consistency of HUD's FOIA operations. This
final rule updates HUD's FOIA regulations at Sec. 15.103 (which
describes the procedures for obtaining records from HUD) and Sec.
15.106 (which describes how HUD will respond to requests for records)
by replacing outdated references to the Office of General Counsel with
references to the Office of Administration.
In addition to the conforming changes described above, HUD has also
taken the opportunity afforded by this final rule to correct two
technical errors in its FOIA regulations. Section 552(a)(4)(A)(i) of
FOIA requires federal agencies to conform their fee schedules to the
uniform schedule of fees developed by the Office of Management and
Budget (OMB). (See ``Uniform Freedom of Information Act Fee Schedule
and Guidelines'' published by OMB in the

[[Page 12541]]

Federal Register on March 27, 1987 (52 FR 10012)). HUD's definition of
``representative of the news media requester'' is not in conformance
with the OMB uniform fee guidelines. Specifically, Sec. 15.110(a)(4)
defines a representative of a news media requester as someone who
gathers news for an entity that is ``primarily'' organized and operated
to publish or broadcast news to the public. The OMB uniform guidelines,
however, do not use the word ``primarily'' in the corresponding
definition. (See 52 FR 10018). This final rule makes the necessary
correction to Sec. 15.110(a)(4) by removing the word ``primarily''
from the definition of news media requester.
This final rule also updates a cross-reference in Sec. 15.106(b).
Presently, the cross-reference in Sec. 15.106(b) is to ``the time
limit described in Sec. 15.103.'' However, time limitations are
discussed in Sec. 15.104. Therefore, the cross-reference should be to
time limits described in Sec. 15.104.

V. Findings and Certifications

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
The regulatory amendments made by this final rule are procedural and
explanatory in nature. The FOIA statute establishes criteria by which
waivers of fees or reduction of fees may be obtained for a FOIA
request. Furthermore, the fees charged under this rule are limited by
FOIA to direct costs of searching for, reviewing, and duplicating the
records processed for requesters and are not economically significant.
Accordingly, the undersigned certifies that this rule will not have
a significant economic impact on a substantial number of small entities.

Environmental Impact

This final rule 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. Accordingly, under 24 CFR 50.19(c)(1), this
final rule is categorically excluded from the requirements of the
National Environmental Policy Act (42 U.S.C. 4321 et seq.).

Executive Order 13132, Federalism

Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either imposes substantial direct compliance costs on state and local
governments and is not required by statute, or the rule preempts state
law, unless the agency meets the consultation and funding 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) (UMRA) establishes requirements for Federal agencies to assess
the effects of their regulatory actions on state, local, and tribal
governments, and on the private sector. This final rule does not impose
any Federal mandates on any State, local, or tribal governments, or on
the private sector, within the meaning of UMRA.

List of Subjects in 24 CFR Part 15

Classified information, Courts, Freedom of information, Government
employees, Reporting and recordkeeping requirements.

? Accordingly, for the reasons discussed in the preamble, HUD amends 24
CFR part 15 to read as follows:

PART 15--PUBLIC ACCESS TO HUD RECORDS UNDER THE FREEDOM OF INFORMATION
ACT AND TESTIMONY AND PRODUCTION OF INFORMATION BY HUD EMPLOYEES

? 1. The authority citation for part 15 continues to read as follows:

Authority: 42 U.S.C. 3535(d).

? 2. In Sec. 15.103, revise the first sentence of paragraph (c) and
paragraph (d)(4) to read as follows:

Sec. 15.103 How can I get other records from HUD?

* * * * *
(c) Records located in HUD headquarters. If you are submitting a
request for records located in HUD Headquarters, you should deliver or
mail your request to the FOIA Office, Office of the Executive
Secretariat in the Office of Administration. * * *
(d) * * *
(4) State your agreement to pay the fee. You may specify a dollar
amount above which you want HUD to consult with you before you will
agree to pay the fee. If you are seeking a waiver or reduction of fees,
you must include such a request at the same time as your request for
disclosure, and you must describe how the disclosure of the requested
information is in the public interest and not primarily in the
commercial interest of the requester (see Sec. 15.110(h));
* * * * *

? 3. In Sec. 15.106, revise paragraph (a), paragraph (b) introductory
text, and the second sentence of paragraph (b)(2) to read as follows:

Sec. 15.106 How will HUD respond to my request?

(a) Who will respond to my request? (1) The FOIA Office of the
Office of the Executive Secretariat in the Office of Administration in
HUD Headquarters and the FOIA liaisons in each HUD Field Office are
authorized to release copies of any HUD records unless disclosure is
clearly not appropriate under FOIA.
(2) The FOIA Office of the Office of the Executive Secretariat in
the Office of Administration in HUD Headquarters and the FOIA liaisons
in each HUD Field Office may deny a request for a record in accordance
with the provisions of FOIA and this part.
(b) What type of response will I receive? Within the time limit
described in Sec. 15.104, HUD will either:
* * * * *
(2) * * *Any denial or partial denial of a requested record must be
concurred in by the FOIA Office of the Office of the Executive
Secretariat in the Office of Administration in HUD Headquarters, by
counsel in the Field Offices, or by counsel in HUD's Departmental
Enforcement Center Satellite Offices. * * *
* * * * *

? 4. Amend Sec. 15.110 as follows:
? a. Revise paragraph (b)(4)(i);
? b. Revise the chart captioned ``FOIA Fee Schedule'' in paragraph (c);
? c. Revise paragraphs (h) and (i); and
? d. In paragraph (k), remove the first three sentences and add two new
sentences in their place to read as follows:

Sec. 15.110 What fees will HUD charge?

* * * * *
(b) * * *
(4) * * *
(i) You are a representative of the news media requester if you
actively gather news for an entity that is organized and operated to
publish or broadcast news to the public.
* * * * *

[[Page 12542]]

FOIA Fee Schedule
----------------------------------------------------------------------------------------------------------------
News media,
educational
Activity Rate Commercial use research, or Other requester
requester scientific
research requester
----------------------------------------------------------------------------------------------------------------
(1) Professional search......... Actual salary rate Applies........... Does not apply.... Applies. No charge
of employee for first two
involved, plus 16 hours of
percent of salary cumulative search
rate. time.
(2) Professional review......... Actual salary rate Applies........... Does not apply.... Does not apply.
of employee
involved, plus 16
percent of salary
rate.
(3) Clerical search............. Actual salary rate Applies........... Does not apply.... Applies. No charge
of employee for first two
involved, plus 16 hours of
percent of salary cumulative search
rate. time.
(4) Clerical review............. Actual salary rate Applies........... Does not apply.... Does not apply.
of employee
involved, plus 16
percent of salary
rate.
(5) Programming services........ $35 per hour...... Applies........... Does not apply.... Applies.
(6) Computer run time (includes The direct cost of Applies........... Does not apply.... Applies.
only mainframe search time not conducting the
printing). search.
(7) Duplication costs........... $0.18 per page.... Applies........... Applies. No charge Applies. No charge
for first 100 for first 100
pages. pages.
(8) Duplication costs--tape, CD Actual cost....... Applies........... Applies........... Applies.
ROM or diskette.
----------------------------------------------------------------------------------------------------------------

* * * * *
(h) Waiver or reduction of fees in the public interest. If HUD
determines that disclosure of the information you seek is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the Federal
Government, and that you are not seeking the information primarily for
your own commercial interests, HUD may waive or reduce the fee.
(1) In order to qualify for a waiver or a reduction of fees, a
requester must make the following demonstrations in the FOIA request:
(i) Disclosure of the requested information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the Federal Government.
(A) The subject of the request pertains to the operations or
activities of the Federal Government. Requesters must be seeking
documents and records that contain information regarding identifiable
operations or activities of the Federal Government. The connection
between the content of the records and Federal governmental operations
or activities must be direct and clear.
(B) The informative value of the information to be disclosed is
consequential. The disclosable portions of the requested records must
be meaningfully informative about Federal Governmental 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 substantially identical form, would not be as likely to
contribute to the public's understanding of Federal governmental
operations or activities.
(C) The disclosure is likely to contribute to an understanding of
the subject by the public. The disclosure must contribute to the
understanding of a reasonably broad audience of persons interested in
the subject, as opposed to the individual understanding of the
requester, in order to provide a great benefit to the public at large.
A requester's expertise in the subject area and ability and intention
to effectively convey the information will be considered.
(D) The contribution to public understanding is significant. The
public's understanding of the subject in question, as compared to the
level of public understanding existing prior to the disclosure, must be
enhanced by the disclosure to a substantial degree. HUD will not make
value judgments about whether the information to be disclosed is worthy
or important enough to be made public, but rather whether it would
contribute substantially to public understanding of the operations or
activities of the government.
(ii) Disclosure of the information is not primarily in the
commercial interest of the requester.
(A) The existence and magnitude of a commercial interest. The
requester must describe and explain any commercial interest that would
be furthered by the requested disclosure, whether personally benefiting
the requester or any person on whose behalf the requester may be
acting. See the definition of a ``commercial use requester'' in
paragraph (b)(1) of this section for further explanation.
(B) Primary interest in disclosure. A fee waiver or reduction in
fees is justified where the requester has demonstrated that the public
interest in disclosure is greater in magnitude than that of any
identified commercial interest in disclosure. However, disclosure to
data brokers or others who merely compile and market government
information for direct economic return will not be presumed to
primarily serve the public interest.
(2) Requests for waivers must address the elements listed in
paragraph (h)(1) of this section, insofar as they apply to each
request. HUD will exercise its discretion in considering the cost-
effectiveness of its investment of administrative resources in deciding
whether to grant waivers or reductions of fees, in consultation with
appropriate offices as needed. Requests for the waiver or reduction of
fees must be submitted with the request.
(3) When only some of the requested records satisfy the requirements
for a waiver of fees, a waiver will be granted for only those records.
(4) When a fee waiver request is denied, HUD will do no further
work on the request until it receives an assurance

[[Page 12543]]

of payment, or an appeal of the fee waiver adverse determination is filed
and HUD has made a final appeal determination pursuant to Sec. 15.112.
(i) When do I pay the fee? HUD will bill you when it responds to
your request. You must pay within 31 calendar days. If the estimated
fee is more than $250.00 or you have a history of failing to pay FOIA
fees to HUD in a timely manner, HUD will ask you to remit the estimated
amount and any past due charges before processing and sending you the
records.
* * * * *
(k) Contract services. HUD will contract with private sector
sources to locate, reproduce, and disseminate records in response to
FOIA requests when that is the most efficient and least costly method.
HUD will ensure that the ultimate cost to the requester is no greater
than it would be if the agency itself had performed these tasks.
* * *

Dated: March 7, 2007.
Roy A. Bernardi,
Deputy Secretary.
[FR Doc. E7-4682 Filed 3-14-07; 8:45 am]
BILLING CODE 4210-67-P

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Revisions to the Public Access to HUD Records Under the Freedom of Information Act (FOIA) Regulations

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