Freedom of Information Act and Privacy Act Regulations

<RULE> COUNCIL ON ENVIRONMENTAL QUALITY <CFR>40 CFR Parts 1515 and 1516</CFR> <DEPDOC>[CEQ-2024-0001]</DEPDOC> <RIN>RIN 0331-AA02</RIN> <SUBJECT>Freedom of Information Act and Privacy Act Regulations</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Council on Environmental Quality. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Council on Environmental Quality (CEQ) is finalizing its Freedom of Information Act (FOIA) regulations to incorporate amendments to the FOIA set forth in the FOIA Improvement Act of 2016; to conform to guidance for Federal agencies from the Department of Justice; to make them easier for the public to understand and use; and to better reflect CEQ's current policy and practice. These final regulations reaffirm CEQ's commitment to providing the fullest possible disclosure of records to the public. In addition, CEQ is amending its regulations implementing the Privacy Act of 1974 (the Privacy Act) to make them easier for the public to understand and use and to better reflect CEQ's current policy and practice. These final regulations also make administrative changes, including reorganizing, renumbering, and renaming the sections of CEQ's current FOIA and Privacy Act regulations. CEQ considered all of the public comments received on its proposed rule and made changes in response in this final rule. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> The effective date is February 20, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> CEQ established a docket for this action on <E T="03">www.regulations.</E> gov, under docket number CEQ-2024-0001. The docket contains all of the public comments that CEQ received on this action. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Samuel Roth, Associate General Counsel, 202-395-5750, <E T="03">Samuel.E.Roth@ceq.eop.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> <HD SOURCE="HD2">A. The FOIA</HD> The FOIA, 5 U.S.C. 552, provides a right of access to certain records that Federal agencies maintain and control. The FOIA directs each Federal agency to publish regulations that describe how the agency will process FOIA requests it receives from members of the public. CEQ first adopted its FOIA regulations in 1977. <SU>1</SU> <FTREF/> In 2010, CEQ amended its regulations to reflect legislative amendments to the FOIA, a 2009 Presidential Memorandum regarding FOIA policy, and additional guidance from the Department of Justice (DOJ) and the Office of Management and Budget (OMB). <SU>2</SU> <FTREF/> CEQ's current FOIA regulations are codified at 40 CFR part 1515. <FTNT> <SU>1</SU>  CEQ, Freedom of Information Act Procedures; Final Rule, 42 FR 65158 (Dec. 30, 1977). </FTNT> <FTNT> <SU>2</SU>  CEQ, Revision of Freedom of Information Act Regulations, 75 FR 48585 (Sept. 10, 2010). </FTNT> CEQ is revising and republishing its FOIA regulations in their entirety in order to make several improvements to the current rules. First, CEQ is making updates to reflect a number of important changes to the FOIA made by the FOIA Improvement Act of 2016 (Pub. L. 114-185). Section 3(a) of the Act directs each agency to review its FOIA regulations and update them to implement the changes set forth in the Act. Second, CEQ is including a number of provisions to improve the usefulness and readability of its FOIA regulations consistent with DOJ's 2017 revised Template for Agency Regulations (the Template). <SU>3</SU> <FTREF/> CEQ modeled this final rule on the Template, which also incorporates the FOIA Improvement Act of 2016's amendments to the FOIA. <FTNT> <SU>3</SU>  Template for Agency FOIA Regulations (February 22, 2017), <E T="03">https://www.justice.gov/oip/template-agency-foia-regulations.</E> </FTNT> Third, CEQ is making updates to better convey the FOIA's and the CEQ regulation's requirements to members of the public who are interested in CEQ's operations and activities, so they can easily understand and use CEQ's FOIA process. <SU>4</SU> <FTREF/> Specifically, CEQ referred to the Plain Writing Act of 2010 and the Federal Plain Language Guidelines  <SU>5</SU> <FTREF/> in preparing the final rule. <FTNT> <SU>4</SU>   <E T="03">See, e.g.,</E> E.O. 13563, <E T="03">Improving Regulation and Regulatory Review,</E> 76 FR 3821 (Jan. 21, 2011) (stating that “regulations [must be] accessible, consistent, written in plain language, and easy to understand”). </FTNT> <FTNT> <SU>5</SU>  Federal Plain Language Guidelines (1st rev. May 2011), <E T="03">https://www.plainlanguage.gov/media/FederalPLGuidelines.pdf.</E> </FTNT> Finally, the final rule reflects updates to CEQ's FOIA policies and procedures, as well as the practical experience of CEQ's FOIA staff. As it does under its current regulations, CEQ will administer the FOIA under the final regulations with a presumption of openness, consistent with the Memorandum of the Attorney General dated March 15, 2022. <SU>6</SU> <FTREF/> <FTNT> <SU>6</SU>  Department of Justice, <E T="03">Freedom of Information Act Guidelines</E> (March 15, 2022), <E T="03">https://www.justice.gov/media/1212566/dl.</E> </FTNT> <HD SOURCE="HD2">B. The Privacy Act</HD> The Privacy Act, 5 U.S.C. 552a, governs each Federal agency's collection, maintenance, use, and dissemination of any information about individuals that it maintains in a system of records. The Privacy Act directs each Federal agency to publish regulations that describe the agency's procedures for carrying out the provisions of the Privacy Act. CEQ first adopted its Privacy Act regulations in 1977, <SU>7</SU> <FTREF/> codified at 40 CFR part 1516. <FTNT> <SU>7</SU>  CEQ, Procedures for Gaining Access to Information Under the Privacy Act of 1974; Final Regulations, 42 FR 32537 (June 27, 1977); <E T="03">see also</E> Procedures for Gaining Access to Information Under the Privacy Act of 1974, Correction to Final Regulations, 42 FR 35960 (July 13, 1977) (technical amendment). </FTNT> CEQ is revising and republishing its Privacy Act regulation in its entirety to make it easier for the public to understand and use and to reflect updates to CEQ's Privacy Act procedures over the past five decades. <HD SOURCE="HD1">II. Discussion of Comments on the Notice of Proposed Rulemaking</HD> On December 11, 2024, CEQ published a notice of proposed rulemaking for public comment. <SU>8</SU> <FTREF/> The public comment period concluded on January 10, 2025. Two commenters provided input on the proposal during the public comment period. As noted above, their comments are available on <E T="03">www.regulations.gov</E> under docket number CEQ-2024-0001. <FTNT> <SU>8</SU>  CEQ, Freedom of Information Act and Privacy Act Regulations, 89 FR 99799 (Dec. 11, 2024). </FTNT> <E T="03">Comment 1:</E> One commenter recommended that CEQ explicitly incorporate the “presumption of openness” in its FOIA regulations. The presumption of openness, which Congress codified in the FOIA through the FOIA Improvement Act of 2016, directs agencies to withhold information in response to a FOIA request “only if . . . the agency reasonably foresees that disclosure would harm an interest protected by an exemption [under the FOIA],” or disclosure is prohibited by law. 5 U.S.C. 552(a)(8)(A). As the Memorandum of the Attorney General dated March 15, 2022, explains, the presumption means that “[i]nformation that might technically fall within an exemption should not be withheld from a FOIA requester unless the agency can identify a foreseeable harm or legal bar to disclosure.”  <SU>9</SU> <FTREF/> <FTNT> <SU>9</SU>  Department of Justice, <E T="03">Freedom of Information Act Guidelines</E> (Mar. 15, 2022), <E T="03">https://www.justice.gov/media/1212566/dl.</E> </FTNT> As CEQ noted in the preamble to the proposed rule, CEQ currently administers its FOIA program consistent with the presumption of openness and will continue to do so under its revised regulations. CEQ has revised the language of § 1515.16(b) to clarify that it applies the presumption of openness in its FOIA program. <E T="03">Comment 2:</E> One commenter recommended that CEQ revise § 1515.4 to clarify that, when a FOIA requester submits an appeal, a CEQ official other than the one who was responsible for processing the original request will process the appeal. The commenter observed that the Department of Justice's Office of Information Policy, which provides guidance to agencies on FOIA administration, recommends this practice. <SU>10</SU> <FTREF/> Consistent with this recommendation, the commenter recommended that CEQ delete the last sentence of § 1515.4(b) (“Otherwise, the Chief FOIA Officer or the Chief FOIA Officer's designee is responsible for processing FOIA appeals.”). <FTNT> <SU>10</SU>  Department of Justice, OIP Guidance: Adjudicating Administrative Appeals Under the FOIA (Aug. 12, 2021), <E T="03">https://www.justice.gov/oip/oip-guidance/Adjudicating%20Administrative%20Appeals%20Under%20the%20FOIA.</E> </FTNT> CEQ agrees with the commenter that it is good practice to assign the processing of a FOIA appeal to a different official than the one who was responsible for processing the original FOIA request. CEQ routinely follows this practice in its administration of the FOIA. CEQ is a small agency, however, whose size varies widely from one Presidential Administration to the next. From time to time, it may not be reasonably possible to assign a FOIA appeal to a different official than the one who reviewed the original request, if CEQ lacks sufficient personnel with FOIA expertise. Accordingly, CEQ has inserted a sentence in § 1515.22(b) to explain that, whenever reasonably practicable, CEQ will assign the processing of a FOIA appeal to ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 85k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━