News Column

NASA Revises Procedures for Records Disclosure Under Freedom of Information Act

August 12, 2014



Targeted News Service

WASHINGTON, Aug. 12 -- The U.S. National Aeronautics & Space Administration published the following rule in the Federal Register:

Procedures for Disclosure of Records Under the Freedom of Information Act (FOIA)

A Rule by the National Aeronautics and Space Administration on 08/11/2014

Publication Date: Monday, August 11, 2014

Agency: National Aeronautics and Space Administration

Entry Type: Rule

Action: Final rule.

Document Citation: 79 FR 46676

Page: 46676 -46690 (15 pages)

CFR: 14 CFR 1206

Agency/Docket Number: Docket Number NASA-2014-0008

RIN: 2700-AE04

Document Number: 2014-18770

Shorter URL: https://federalregister.gov/a/2014-18770

Action

Final Rule.

Summary

This rule revises the National Aeronautics and Space Administration (NASA) Freedom of Information Act (FOIA) regulations that the Agency follows in processing records under the FOIA. The revisions clarify and update procedures for requesting information from the Agency, as well as procedures that the Agency follows in responding to requests from the public. The revisions also incorporate clarifications and updates resulting from changes to the FOIA and case law. Finally, the revisions include current cost figures to be used in calculating and charging fees and increase the amount of information that members of the public may receive from the Agency without being charged processing fees.

DATES:

Effective Date: August 11, 2014.

FOR FURTHER INFORMATION CONTACT:

Miriam Brown-Lam, (202) 358-0718.

SUPPLEMENTARY INFORMATION:

I. Background

NASA published a proposed rule in the Federal Register at 79 FR 9430 on February 18, 2014, to amend its FOIA regulations. The rule updated and streamlined several procedural provisions and to incorporate certain changes brought resulting from amendments to the FOIA under the Openness Promotes Effectiveness in our National (OPEN) Government Act of 2007, to reflect developments in case law, and to include current cost figures to be used in calculating and charging fees.

II. Discussion and Analysis

NASA received comments from two members of the public as well as comments from a subcomponent of a Federal agency. NASA has also made minor corrections to the text. The following is a discussion of Comments:

Comment 1: One commenter suggested that in section 1206.201, NASA establish categories of records to proactively disclose and post on its Web site.

Response: The FOIA requires Agencies to proactively post agency records (Subsection (a)(2) of the FOIA) when they have received two requests for the documents and anticipate a third. NASA has regularly taken affirmative steps to make information available to the public through the use of robust Web sites. NASA routinely updates these Web sites to provide the public with documents as well as information, video links, etc. that are of value and interest to the public. NASA declines to adopt this comment.

Comment 2: One commenter suggested that in section 1206.300(g) NASA include an alternative for third party requesters access to Privacy Act records if they are able to demonstrate an overriding public interest in the records.

Response: NASA believes adding a statement of this kind would create confusion with regard to releasing Privacy Act records. There are significant variables concerning release of privacy-protected information, which is addressed on a case-by-case basis. An overriding public interest with regard to the release of privacy-protected information cannot be defined for the purposes of this section. NASA declines to adopt this comment.

Comment 3: One commenter suggested that in section 1206.300(g) NASA include a definition of a FOIA Public Liaison.

Response: NASA has adopted this comment and included this reference in section 1206.801(c).

Comment 4: One commenter suggested that in section 1206.301(a) the word `must' be changed to `should' in the reference requiring requesters to either address their request to an appropriate FOIA Office or identify their letter as a request for an Agency record under the FOIA.

Response: If a requester submits a request to a program office not designated to process FOIA requests and it is not identified as a FOIA request, it may not be appropriately handled. Therefore, a request not sent to a FOIA office must be identified as a request `Under the Freedom of Information Act' in order for staff to understand that it needs to be forwarded to the FOIA office for proper processing. NASA declines to adopt this comment.

Comment 5: One commenter suggested that in section 1206.301(e) that the language indicating NASA need not comply with a blanket or categorical request where it is not reasonably feasible to determine what record is sought be changed to indicate NASA will work with the requester and locate the records sought.

Response: This comment is already reflected in section section 1206.301(f) of this subsection. NASA declines to adopt this comment.

Comment 6: One commenter made a statement in reference to section 1206.301(g) noting from Schladetsch v. HUD (D.D.C. Apr. 4, 2000) that extracting, sorting, and compiling discrete pieces of information from an existing database does not amount to the creation of a new record.

Response: The FOIA does not obligate agencies to create records, it obligates them to provide access to those which it has created or retained. FOIA staff will generally provide information from an existing database, removing exempt information as necessary unless the information as a whole is exempt from release.

Comment 7: One commenter suggested that in section 1206.302(a) NASA clearly address the statutory fee entitlements for the various processing categories.

Response: NASA has adopted this comment by adding a cross-reference in section 1206.302(a) to Subpart E, section 1206.507(b) and (c), Categories of requesters.

Comment 8: One commenter suggested that in section 1206.302(b)(1) and (h) NASA provide requesters with a breakdown of the fee estimate and/or bill as a best practice.

Response: NASA works with requesters regarding fee estimates, applicable charges, etc. NASA will continue to work with and provide requesters a breakdown of the cost estimate as a best practice but declines to adopt this comment in the regulation.

Comment 9: One commenter suggested that in section 1206.307(b)(2) when denying records, NASA provide a brief description of the exemption as well as a description of the information NASA is withholding.

Response: NASA currently provides a brief description of the exemptions, as required. On a case-by-case basis, NASA does provide descriptive information. However, NASA believes a requirement to provide this information for every case would have a negative impact on NASA's processing and response times while providing the requester with very little, if any, additional meaningful information. NASA declines to adopt this comment.

Comment 10: One commenter suggested that in section 1206.308 when referring records to another agency, NASA provide the name of the contact information.

Response: NASA declines to adopt this comments as it is addressed in section 1206.308(e). However, this particular section has been reworded for clarity purposes.

Comment 11: One commenter suggested that the language in section 1206.400 regarding the subrequirement for expedited processing requiring that a requester `must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his/her sole occupation' would create an additional obligation and an impediment to expedited processing criteria by imposing an added requirement.

Response: After consideration, NASA has removed this subrequirement.

Comment 12: One commenter suggested that in section 1206.401 NASA clarify the language and change the word `made' to `submitted' to ensure requesters do not think they can make a request verbally.

Response: NASA has adopted this comment.

Comment 13: One commenter suggested that NASA should not increase the fees for copy in section 1206.501(f) stating the costs associated with photo-duplication have declined rather than increased over the last 16 years.

Response: Based on inflation, the increase is reasonable and consistent with fees charged by other Federal agencies. This is the first increase in fees NASA has issued in 16 years. NASA declines to adopt this comment.

Comment 14: One commenter suggested that in section 1206.503(c), NASA should increase the minimum threshold to $50.00 for charging fees to FOIA requesters.

Response: NASA has adopted this comment and will increase the minimum threshold accordingly.

Comment 15: One commenter suggested that in section 1206.504, NASA should provide a breakdown of the fees for search, review and/or duplication.

Response: NASA works with requesters regarding fee estimates, applicable charges, etc. NASA will continue to work with and provide requesters with a breakdown of the cost estimate as a best practice but declines to adopt this comment in the regulation.

Comment 16: One commenter suggested that in section 1206.506(a) the difference between a fee waiver and fee category should be clarified.

Response: To alleviate confusion, NASA has adopted this comment by cross-referencing section 1206.506(a) with section 1206.507 fee categories.

Comment 17: One commenter suggested that in section 1206.506(d)(3) the language in the last sentence be rewritten to conform with the FOIA language `using editorial skills to turn raw materials into a distinct work.'

Response: NASA has adopted this comment.

Comment 18: One commenter suggested that in section 1206.506(j) the language should be revised to allow FOIA staff to provide assistance to a requester when composing a request in order to receive a fee waiver.

Response: NASA disagrees with this suggestion. It would place and undue burden on the FOIA staff it they were to provide assistance in composing a request in order for requesters to receive a fee waiver. This would also place them in a position that would prevent them from making an unbiased determination regarding a fee waiver request. NASA declines to adopt this comment.

Comment 19: One commenter suggested that NASA also include the information in section 1206.507(a) in section 1206.300.

Response: NASA declines to adopt this comment as this information is already in section 1206.300(a). NASA need not act on this comment.

Comment 20: One commenter suggested that in section 1206.700(a), NASA increase the minimum time for requesters to prepare and submit appeals from 30 days from the date of the initial determination to 60 days.

Response: NASA has carefully considered this comment but declines to adopt it. The current 30 days from the date of the initial determination allows requesters to consider the response they have received and determine whether or not the response is satisfactory in a timely manner.

Comment 21: One commenter suggested that in section 1206.700(b)(3), NASA change the language requiring requesters to clearly identify a FOIA appeal on the outside envelope of their appeal.

Response: While this is not a requirement of the FOIA, it has been a long-standing requirement for processing appeals and is in the best interest of both the appellant as well as the Agency. Agencies have a limited time to process an appeal in a timely manner; therefore, clearly identifying a FOIA appeal on the outside of the envelope in order to ensure it reaches the proper office in a timely manner is administratively beneficial to both parties. NASA declines to adopt this comment.

Comment 22: One commenter suggested in section 1206.701, NASA include a reference for requesters to contact the Office of Government Information Services (OGIS) to resolve a dispute between requesters and the Agency.

Response: NASA has adopted this comment and included language to reference OGIS in section 1206.701(f)(4).

Comment 23: One commenter suggested that in Appendix A, NASA also provide fax numbers and email addresses to which requesters can submit requests.

Response: NASA has adopted this comment and will include this information in Appendix A.

Comment 24: The OGIS also suggested NASA include information about the preservation of records and records management in the FOIA regulations.

Response: While this is very good information, NASA has a records management office that is responsible for issuing records management information and requirements in accordance with the General Records Schedule of the National Archives and Records Administration (NARA). NASA declines to adopt this comment.

[*Federal RegisterVJ 2014-08-11]

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TNS 22VistaJ-140811 gv-1171991


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