33368 Federal Register / V ol. 44, No. 112 / Friday, June 8 ,1 9 7 9 / Rules and Regulations

FEDERAL ELECTION COMMISSION

11 CFR Part 4

Public Records and Freedom of

Information Act

AGENCY: Federal Election Commission. 

ACTION: Final rule.

s u m m a r y: This notice contains the final 

Federal Election Commission 

regulations setting forth procedures to 

implement the Freedom of Information 

Act (5 USC § 552} and creates a new 

part, Part 4, to be added to 11 CFR, 

Chapter 1.

EFFECTIVE DATE: June 8,1979.

FOR FURTHER INFORMATION CONTACT:

Frederick S. Eiland, Public Information 

Officer, (202) 523-4065.

SUPPLEMENTARY INFORMATION: The 

proposed regulation was published on 

November 22,1977,- at 42 FR 59944. A 

comment period was specified and a 

single party commented. The 

Commission adopted one of the 

suggestions made by that commentator 

and revised proposed 11 CFR 4.5(a)(3) to 

reflect a two-pong test for determining 

whether information is specifically 

exempted from disclosure by statute.

In addition, the Commission made 

several other changes to the proposed 

regulations. With the exception of the 

change to 11 CFR 4.4(a)(4) which was 

revised to provide for the availability of 

transcripts made from tapes of 

Commission meetings, all changes were 

minor.

Only minor changes have been made 

from the proposed rule and comments 

were received from only one party. The 

Commission at present has no FOIA 

regulations in effect. There is therefore 

good cause to dispense with the 30 day 

waiting period before the regulations 

may become effective. Pursuant to 5 

USC 553(d)(3), the regulations are made 

effective upon publication.

Dated: June 4,1979.

R obert O . Tiem an,

Chairman, Federal Election Commission.

Chapter I of Title 11, Code of Federal 

Regulations, is amended by the addition 

of the following new part:

PART 4—PUBLIC RECORDS AND THE

FREEDOM OF INFORMATION ACT

Sec.

4.1 Definitions.

4.2 Policy of disclosure of records.

4.3 Scope.

4.4 Availability of records.

4.5 Categories of exemptions.

4.6 Discretionary release of exempt records.

4 .7 R e q u e s t s f o r r e c o r d s .

4 .8 A p p e a l o f d e n ia l.

4 .9 F e e s .

a u t h o r it y : 5 U.S.C. 552

§ 4.1 Definitions.

As used in this part:

(a) "Commission” means the Federal 

Election Commission, established by the 

Federal Election Campaign Act of 1971, 

as amended.

(b) "Commissioner” means one of the 

six appointees confirmed by the Senate 

who is a voting member of the 

Commission.

(c) “Request” means to seek the 

release of records under 5 U.S.C. 552.

(d) "Requestor” is any person who 

submits a request to the Commission.

(e) “Act” means the Federal Election 

Campaign Act of 1971, as amended by 

the Federal Election Campaign Act 

Amendments of 1974, and 1976, and 

unless specifically excluded, includes 

Chapters 95 and 96 of the Internal 

Revenue Code of 1954 relating to public 

financing of Federal elections.

§ 4.2 Policy on disclosure of records.

(a) The Commission will make the 

fullest possible disclosure of records to 

the public, consistent with the rights of 

individuals to privacy, the rights of 

persons contracting with the 

Commission with respect to trade secret 

and commercial or financial information 

entitled to confidential treatment, and 

the need for the Commission to promote 

free internal policy deliberations and to 

pursue its official activities without 

undue disruption.

(b) All Commission records shall be 

available to the public unless they are 

specifically exempt under this part.

(c) To carry out this policy, the 

Commission shall designate a Freedom 

of Information Act Officer.

§ 4.3 Scope.

(a) The regulations in this part 

implement the provisions of the 

Freedom of Information Act, 5 U.S.C.

552, with respect to the availability of 

records for inspection and copying.

(b) The regulations in this part do not 

apply to release of the following records:

(1) Reports of receipts and 

expenditures, designations of campaign 

depositories, statements of organization 

candidate designations of campaign 

committees; and the indexes compiled 

from the filings therein.

(2) Requests for advisory opinions, 

written comments submitted thereto and 

responses issued by the Commission;

(3) With respect to enforcement 

matters under the provisions of 2 U.S.C. 

437g, the results of any conciliation

attempt, including any conciliation 

agreement entered into by the 

Commission; and any determination by 

the Commission that no violation of the 

Act has occurred.

(4) Copies of studies published 

pursuant to the Commission’s duty to 

serve as a national clearinghouse on 

election law administration.

(c) Release of the records identified in 

subsection (b)(1)—(4) above (11 CFR 

4.3(b)(l)-(4)) are governed by the 

provisions of 2 U.S.C. 438(a)(5), 437f(c), 

437g(a)(6)(C) and 438(b) and are 

available to the public from the. Office of 

Public Records located on the first floor 

a t 1325 K Street, Northwest,

Washington, D.C. This office is open 

Monday through Friday from 9:00 a.m. to 

5:00 p.m. except legal holidays.

§ 4.4 Availability of records.

(а) In accordance with 5 U.S.C. 552

(a)(2) and (a)(3) the Commission shall 

make the following materials available 

for public inspection and copying:

(1) Statements of policy and 

interpretation which have been adopted 

by the Commission;

(2) Administrative staff manuals and 

instructions to staff that affect a member 

of the public;

(3) Opinions of Commissioners 

rendered in enforcement cases and 

General Counsel reports and 2 U.S.C, 

437g investigatory materials in 

enforcement files 60 days after the 

Commission has voted to close a case 

and td take no further action; provided 

that no civil action under 2 U.S.C. 437g 

(a)(9) has been filed to compel the 

Commission to take further action. In 

the event that such civil action is filed, if 

the court sustains the Commission’s 

action in closing the case, the materials 

will be made available thereupon. If the 

Court orders the Commission to take 

further action, the materials will be 

made available when the case is again 

closed;

(4) Letter requests for guidance and 

responses thereto;

i (5) The minutes of Commission 

meetings ànd transcripts made from 

tapes of Commission meetings;

(б) Material routinely prepared for 

public distribution, e.g. campaign 

guidelines, FEC Record, press releases, 

speeches, notices to candidates and 

committees.

(7) Proposals submitted in response to 

a request for proposals formulated 

pursuant to the Federal Procurement 

Regulations. 41 CFR 1-1.001 et seq.

(8) Contracts for services and supplies 

entered into by the Commission.

(9) Statements and certifications (with 

respect to closing meetings) as required
Federal R egister / V ol. 44, No. 112 / Friday, June 8, 1979 / Rules and Regulations 33369

by the Government in the Sunshine Act, 

5 U.S.C. 552b.

(b) The Commission shall maintain 

and make available current indexes and 

supplements providing identifying 

information regarding any matter issued, 

adopted or promulgated after April 15, 

1975 as required by 5 U.S.C. 552(a)(2)(c). 

These indexes and supplements shall be 

published and made available on at 

least a quarterly basis for public 

distribution unless the Commission 

determines by Notice in the Federal 

Register that publication would be 

unnecessary, impracticable, or not 

feasible due to budgetary 

considerations. Nevertheless, copies of 

any index or supplement shall be made 

available upon request at a cost not to 

exceed the direct cost of duplication.

(c) The Freedom of Information Act 

and the provisions of this part apply 

only to existing records; they do not 

require the creation of new records.

(d) If documents or files contain both 

disclosable and nondisclosable 

information, the nondisclosable 

information will be deleted and the 

disclosable information released unless 

the disclosable portions cannot be 

reasonably segregated from the other 

portions in a manner which will allow 

meaningful information to be disclosed.

. (e) All records created in the process 

of implementing provisions of 5 U.S.C. 

552 will maintained by the Commission 

in accordance with the authority granted 

by General Records Schedule 14, 

approved by the National Archives and 

Records Service of the General Services 

Administration.

§ 4.5 Categories of exemptions.

(a) 5 U.S.C. 552(b) establishes nine 

categories of matters which are exempt 

from the mandatory disclosure 

requirements of 5 U.S.C. 552(a). No 

requests under 5 U.S.C. 552 shall be 

denied release unless the record 

contains, or its disclosure would reveal, 

matters that are:

(1) Specifically authorized under 

criteria established by an executive 

order to be kept secret in the interest of 

national defense or foreign policy and 

are in fact properly classified pursuant 

to such Executive order;

(2) Related solely to the internal 

personnel rules and practices of the 

Commission;

(3) Specifically exempted from 

disclosure by statute, provided that 

such statute (A) requires that the 

matters be withheld from the public in 

such a manner as to leave no discretion 

on the issue, or (B) establishes particular 

criteria for withholding or refers to

particular types of matters to be 1 

withheld;

(4) Trade secrets and commercial or 

financial information obtained from a 

person which are privileged or 

confidential. Such information includes 

confidential business information which 

concerns or relates to the trade secrets, 

processes, operations, style of works, or 

apparatus, or to the production, sales, 

shipments, purchases, transfers, 

identification of customers, inventories, 

or'amount of source of income, profits, 

losses, or expenditures of any person, 

firm, partnership, corporation, or other 

organization, if the disclosure is likely to 

have the effect of either impairing the 

Commission’s ability to obtain such 

information as is necessary to perform 

its statutory functions, or causing 

substantial harm to the competitive 

position of the person, firm, partnership, 

corporation, or other organization from 

which the information was obtained, 

unless the Commission is required by 

law to disclose such information. These 

procedures shall be used for submitting 

business information in confidence:

(i) A request for confidential 

treatment shall be addressed to the 

FOIA officer, Federal Election 

Commission, 1325 K Street, Northwest, 

Washington, D.C. 20463, and shall 

indicate clearly on the envelope that it is 

a request for confidential treatment

(ii) With each submission of, or offer 

to submit, business iàformation which a 

submitter desires to be treated as 

confidential under paragraph (a)(4) of 

this section, the submitter shall provide 

the following, which may be disclosed to 

the public: (A) A written description of 

the nature of the subject information, 

and a justification for the request for its 

confidential treatment, and (B) a 

certification in writing under oath that 

substantially identical information is not 

available to the public.

(iii) Approval or denial of requests 

shall be made only by the FOIA officer 

or his or her designees. A denial shall be 

in writing, shall specify the reason 

therefore, and shall advise the submitter 

of the right to appeal to the Commission.

(iv) For good cause shown, the 

Commission may grant an appeal from a 

denial by the FOIA Officer or his or her 

designee if the appeal is filed within 

fifteen (15) days after receipt of the 

denial. An appeal shall be addressed to 

the FOIA Officer, Federal Election 

Commission, 1325 K Street, Northwest, 

Washington, D.C. 20463 and shall clearly 

indicate that it is a confidential 

submission appeal. An appeal will be 

decided within twenty (20) days after its 

receipt (excluding Saturdays, Sundays 

and legal holidays) unless an extension, '

stated in writing with the reasons 

therefore, has been provided the person 

making the appeal.

(v) Any business information 

submitted in confidence and determined 

to be entitled to confidential treatment 

shall be maintained in confidence by the 

Commission and not disclosed except as 

required by law. In the event that any 

business information submitted to the 

Commission is not entitled to 

confidential treatment, the submitter

-Will be permitted to withdraw the tender 

unless it is the subject of a request 

under the Freedom of Information Act or 

of judicial discovery proceedings.

(vi) Since enforcement actions under 2 

U.S.C. 437g are confidential by statute, 

the procedures outlined in § 4.5(a)(4) (i) 

thru (v) are not applicable.

(5) Inter-agency or intra-agency 

memoranda or letters which would not 

be available by law to a party in 

litigation with the Commission.

(6) Personnel and medical files and 

similar files, the disclosure of which 

would constitute a clearly unwarranted 

invasion of personal privacy.

(7) Investigatory records compiled for 

law enforcement purposes, but only to 

the extent that the production of such 

records would (i) interfere with 

enforcement proceedings, (ii) deprive a 

person of a right to a fair trial, (iii) 

constitute an unwarranted invasion of 

personal privacy, (iv) disclose the 

identity of a confidential source and, in 

the case of a record compiled by a 

criminal law enforcement authority in 

the course of a criminal investigation, or 

by an agency conducting^ lawful 

national security intélligence 

investigation, confidential information 

furnished only by the confidential 

source, (v) disclose investigative 

techniques and procedures, or (vi) 

endanger the life or physical safety of 

law enforcement personnel.

(b) Any reasonably segregable portion 

of a record shall be provided to any 

person requesting such record after 

deletion of the portions which are 

exempt.

(c) If a requested record is one of 

another government agency or deals 

with subject matter to which a 

government agency other than the 

Commission has exclusive or primary 

responsibility, the request for such a 

record shall be promptly referred by the 

Commission to that agency for 

disposition or guidance as to 

disposition.

(d) Nothing in this part authorizes 

withholding of information or limiting 

the availability of records to the public, 

except as specifically provided in this
33370 Federal R egister / V o l 44, No. 112 / Friday, June 8, 1979 / Rules and Regulations

part; nor is this part authority to 

withhold information from Congress.

§ 4.6 Discretionary release of exempt

records.

The Commission may, in its 

discretion, release requested records 

despite the applicability of the 

exemptions in § 4.5(a), if it determines 

that it is in the public interest and that 

the rights of third parties would not be 

prejudiced.

§ 4.7 Requests for records.

(a) A request to inspect or copy 

Commission public records as described 

in § 4.3(b) may be made in person or by 

mail. The Public Records Office is open 

Monday through Friday between the 

hours of 9:00 a.m. and 5:00 p.m. and is 

located on the first floor, 1325 K Street, 

Northwest, Washington, D.C. 20463.

(b) Oral or written requests for copies 

of records not available in the Public 

Records Office shall be addressed to 

FOIA Officer, Federal Election 

Commission, 1325 K Street, Northwest, 

Washington, D.C. 20463. The request 

shall reasonably describe the records 

sought with sufficient specificity with 

respect to names, dates and subject 

matter to permit the records to be 

located. A requestor will be promptly 

advised if the records cannot be located 

on the basis of the description given and 

that further identifying information must 

be provided before the request can be 

satisfied.

(c) Records or copies thereof will 

normally be made available either 

immediately upon receipt of a request or 

within ten working days thereafter, or 

twenty working days in the case of an 

appeal, unless in unusual circumstances 

the time is extended. In the latter event, 

the requestor shall be notified of the 

reasons for the extension and the date 

on which a determination is expected to 

be made, but in no case shall the 

extended time exceed ten working days. 

An extension may be made if it is (1) 

necessary to locate records or transfer 

them from physically separate facilities; 

or (2) necessary to search for, collect, 

and appropriately examine a large 

quantify of separate and distinct records 

which are the subject of a single request; 

or (3) necessary for consultation with 

another agency which has a substantial 

interest in the determination of the 

request, or with two or more 

components of the Commission which 

have a substantial subject matter 

interest therein.

(d) Any person denied access to 

records by the Commission shall be 

notified immediately giving reasons 

therefore, and notified of the right of

such person to appeal such adverse 

determination to the Commission.

(e) The date of receipt of a request 

under this part shall be the date on 

which the FOIA Officer actually 

receives the request

§ 4.8 Appeal of denial

(a) Any person who has been notified 

pursuant to § 4.6(d) of this part that his/ 

her request for inspection of a record or 

for a copy has been denied, or who has 

received no response within ten working 

days (or within such extended period as 

is permitted under § 4.7(c) of this part) 

after the request has been received by 

the Commission, may appeal the 

adverse determination or the failure to 

respond by requesting the Commission 

to direct that the record be made 

available.

(b) The appeal request shall be in 

writing, shall clearly and prominently 

state on the envelope or other cover and 

at the top of the first page "FOIA 

Appeal", and shall identify the record in 

the form in which it was originally 

requested.

(c) The appeal request should be 

delivered or addressed to the FOIA 

Officer, Federal Election Commission, 

1325 K Street, Northwest, Washington, 

D.C. 20463.

(d) The requestor may state facts and 

cite legal or other authorities as he/she 

deems appropriate in support of the 

appeal request.

(e) For good cause shown, the 

Commission may disclose a record 

which is subject to one of the 

exemptions listed in § 4.5 of this part.

(f) The Commission will make a 

determination with respect to any 

appeal within twenty days (excluding 

Saturdays, Sundays and legal holidays) 

after receipt of the appeal (or within 

such extended period as is permitted 

under § 4.7(c) of this part). If on appeal, 

the denial of the request for a record or 

a copy is in whole or in part upheld, the 

Commission shall advise the requestor 

of the denial and shall notify him/her of 

the provisions for judicial review of that 

determination as set forth in 5 U.S.C. 

552(a)(4).

(g) Because of the risk of 

misunderstanding inherent in oral 

communications, the Commission will 

not entertain any appeal from an alleged 

denial or failure to comply with an oral 

request. Any person who has orally 

requested a copy of a record that he/she 

believes to have been improperly denied 

should resubmit the request in writing as 

set forth in § 4.7.

§ 4.9 Fees.

(a) Fees will be charged for copies of 

records which are furnished a requestor 

under this part and for time spent in 

locating and reproducing them in 

accordance with the fee schedule below:

Record search time—1st V4 hour free; Each additional Vt hour..-...... ................— ---------$2.50

Reproduction of documents, per page— ....- — ------- .10

Transcript of tape-recorded matter, per page........ ...... 3.00

(b) In the event fees for pending 

requests under this part from the same 

requestor exceed $25.00, such records 

will not be searched for or made 

available, nor copies furnished, unless 

the requestor first pays or make 

acceptable arrangements to pay the 

total amount due, or if the fee is not 

precisely ascertainable, the approximate 

amount due upon the completion of the 

Commission’s search and/or copying. In 

the event an advance payment 

hereunder shall differ from the actual 

fees due, an appropriate adjustment will 

be made at the time the copies are 

delivered or made available pr a denial 

of same is notified.

(c) The Commission may reduce or 

waive payments of fees hereunder if 

such reduction or waiver would be in 

the public interest.

[FR Doc. 79-17976 Filed 6-7-79; 8:45 am]

BILUNG CODE 6715-01-M