Freedom of Information Act Regulations

SELECTIVE SERVICE SYSTEM <CFR>32 CFR Part 1662</CFR> <RIN>RIN 3240-AA03</RIN> <SUBJECT>Freedom of Information Act Regulations</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> United States Selective Service System. <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Selective Service System (SSS) proposes the following revisions to its Freedom of Information Act (FOIA) regulations to meet the requirements set forth in the Electronic Freedom of Information Act Amendments of 1996 (E-FOIA); the Openness Promotes Effectiveness requirement in the National Government Act of 2007 (the OPEN Government Act); and the FOIA Improvement Act of 2016 (FOIA Improvement Act). This proposed rule comprehensively updates the Agency's FOIA regulations. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received 60 days from publication date. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments identified by docket number and/or Regulatory Information Number (RIN) number and title by email to <E T="03">federalregisterliaison@sss.gov,</E> or by mail to: Selective Service System, <E T="04">Federal Register</E> Liaison, 1501 Wilson Boulevard, Suite 700, Arlington, VA 22209. <E T="03">Instructions:</E> All submissions received must include the Agency name and docket number or RIN for this <E T="04">Federal Register</E> document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the internet at <E T="03">https://www.regulations.gov</E> as they are received without change, including any personal identifiers or contact information. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Daniel A. Lauretano, Sr., General Counsel, 703-605-4012, <E T="03">dlauretano@sss.gov</E> . </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background & Legal Basis for This Rule</HD> <HD SOURCE="HD2">A. The Housekeeping Statute</HD> The Housekeeping Statute, 5 U.S.C. 301, authorizes agency heads to promulgate regulations governing “the custody, use, and preservation of its records, papers, and property.” The FOIA is a Federal statute that allows the public to request records from the Federal government. The FOIA provides that any person has a right, enforceable in court, to obtain access to Federal agency records subject to the FOIA, except to the extent that any portions of such records are protected from public disclosure by one of nine exemptions or other law. Additionally, under the FOIA, agencies must make records specified in 5 U.S.C. 552(a)(2) ( <E T="03">e.g.,</E> instructional manuals issued to employees, general statements of policy, etc.) available for public inspection in an electronic format. The FOIA also statutorily requires Federal agencies to annually report on numerous and various metrics to the Department of Justice (DOJ). Since the most recent update to 32 CFR part 1662, the E-FOIA, the OPEN Government Act, and the FOIA Improvement Act have been enacted. These laws provide guidance to agencies for the implementation of the FOIA requirements. This proposed rule updates and revises part 1662 consistent with these laws. The revisions will better streamline the process for the Agency's FOIA policies and procedures. These updates are consistent with the Plain Writing Act of 2010 which requires Federal agencies to use clear communications that the public can understand and use. They underscore the FOIA guidelines issued by Attorney General Merrick Garland in his March 15, 2022, Memorandum for Heads of Executive Departments and Agencies. The Memorandum directs the heads of all executive branch departments and agencies to apply a presumption of openness in administering the FOIA, instructs agencies to remove barriers to access, and asks agencies to help requesters understand the FOIA process. In the sections that follow, SSS explains the requirements of the E-FOIA, the OPEN Government Act, and the FOIA Improvement Act. To visualize the proposed reorganization of part 1662, the Agency provides a table that identifies the old (existing) regulatory sections, the sections to which the content moved, and the names of the new sections. Following the table is a section-by-section summary wherein SSS identifies proposed changes to ensure compliance with the E-FOIA, the OPEN Government Act, and the FOIA Improvement Act. It also updates the SSS process for ease of understanding the Agency's FOIA policies and procedures. <HD SOURCE="HD2">B. The E-FOIA</HD> The E-FOIA requires agencies to make certain types of records, created by the Agency on or after November 1, 1996, available electronically. It requires agencies to make available for public inspection, via an electronic reading room, “copies of all records, regardless of form or format that have been released to any person [under the FOIA] and which, because of the nature of their subject matter, the Agency determines have become or are likely to become the subject of subsequent requests for substantially the same records.” <HD SOURCE="HD2">C. The OPEN Government Act</HD> The OPEN Government Act amended the FOIA by providing new procedural and reporting requirements agencies must implement in their administration of the FOIA. It requires that (1) all FOIA requests that will take longer than ten days to process must be assigned an individualized tracking number and (2) agencies must provide requesters with a telephone line or internet service from which requesters can receive the status of their request(s). The statute established the Office of Government Information Services (OGIS) within the National Archives and Records Administration that, among other duties, offers mediation services between FOIA requesters and Federal agencies as an alternative to litigation. It further directs agencies to designate a Chief FOIA Officer, who: (1) has responsibility for FOIA compliance; (2) monitors FOIA implementation; (3) makes recommendations to the Agency head concerning improvements to FOIA implementation; (4) reports to the Attorney General (through the Agency Head), as requested, on the Agency's FOIA implementation; (5) facilitates public understanding of the purposes of FOIA's statutory exemptions; and (6) designates one or more FOIA Public Liaisons. The FOIA Public Liaison serves as an official to whom a FOIA requester can raise concerns about service and is responsible for assisting in reducing delays in FOIA request processing, helping resolve disputes, and helping requesters understand the status of their requests. The OPEN Government Act also revised annual reporting obligations, mandating reports on agency compliance with the FOIA to include information on: (1) FOIA denials based upon particular statutes; (2) response times; and (3) compliance by the agency and by each principal component thereof. Regarding FOIA request processing, the OPEN Government Act: (1) modifies and specifies the time limits for an agency to determine whether to comply with a FOIA request; (2) establishes limitations on the circumstances under which the statutory time period may be “tolled”; and (3) prohibits an agency from assessing search or duplication fees under the FOIA if it fails to comply with time limits, provided that no unusual or exceptional circumstances apply. Lastly, the OPEN Government Act provides for the definition of “representative of the news media” and amends the definition of “record” to include any information maintained by an agency contractor “for the purposes of record management.” The changes to part 1662 in this proposed rule conform with the requirements of the OPEN Government Act as follows: • Sections 1662.1 and 1662.2 introduce and provide information on the services of the FOIA Public Liaison and OGIS; • Section 1662.2 defines “representative of the news media” and adds new terms such as the FOIA Public Liaison, OGIS, and Chief FOIA Officer; and • Section 1662.11 updates and clarifies the following business practices: (1) the Chief FOIA Officer's acknowledgment of FOIA requests; (2) when a request is considered perfected; (3) multi-tracking procedures; (4) unusual circumstances; and (5) tolling of the 20-business-day statutory time period. <HD SOURCE="HD2">D. The FOIA Improvement Act</HD> The FOIA Improvement Act took effect on June 30, 2016, and applies to any FOIA request made after the date of enactment. Its intent is to improve Agency transparency and responsiveness in processing FOIA requests. The statute codifies the “foreseeable harm” standard, establishing that agencies may only withhold information if the Agency reasonably foresees that disclosure would harm an interest protected by a statutory exemption, or if disclosure is prohibited by existing law. Unless the record is prohibited from disclosure by law, asserting a FOIA exemption alone is not sufficient; an agency must also determine that release of the record would cause foreseeable harm to others/interests protected under the exemption. The FOIA Improvement Act also imposes numerous administrative and procedural requirements upon Federal agencies. It adds new elements to the annual reports that capture the number of record denials and the number of records of general interest or use to the public that are made available for public inspection. It also creates new duties for the Chief FOIA Officer, requiring the Chief FOIA Officer to (1) serve as the primary liaison between OGIS and the Office of Information Policy at DOJ and (2) offer training to staff regarding their FOIA responsibilities. It also creates a council of Chief FOIA Officers whose purpose is to improve an agency's administration of the FOIA. Within the Agency's proposed revisions to part 1662, it is not addressing the additional reporting requireme ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 106k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━