[Federal Register Volume 65, Number 221 (Wednesday, November 15, 2000)]
[Rules and Regulations]
[Pages 68891-68892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29208]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[A.G. Order No. 2333-2000]
RIN 1105-AA76


Access to Documents by Former Employees of the Department

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: This final rule establishes procedures under which former 
employees of the Department of Justice may request access to documents 
that they originated, reviewed, or signed while employees of the 
Department, for the purpose of responding to an official inquiry by a 
federal, state, or local government entity or professional licensing 
authority. The rule designates component heads and the Assistant 
Attorney General for Administration as the deciding officials.

DATES: This rule is effective November 15, 2000.

FOR FURTHER INFORMATION CONTACT: Stuart Frisch, General Counsel, or 
Evelyn Tang, Attorney-Advisor, Office of the General Counsel, Justice 
Management Division, U.S. Department of Justice, 1331 Pennsylvania 
Avenue NW., Suite 520N, (202) 514-3452.

SUPPLEMENTARY INFORMATION:

A. Background

Whom Does This Rule Affect?

    This rule applies to former employees of the Department who, after 
they leave the Department, have a need for access to Department 
documents that they originated, reviewed, or signed while employed by 
the Department, for the purpose of responding to an official inquiry by 
a federal, state, or local government entity or professional licensing 
authority.

What Does This Rule Do?

    A legitimate concern has been raised by current and former 
Department employees, that after they leave the Department, they may 
still be called upon to respond to official inquiries into their 
handling of matters at the Department. This is especially likely in the 
case of high-level employees. Without access to relevant documents to 
refresh their memories, it may be difficult to respond to such 
inquiries. To address this concern, this regulation establishes a 
procedure for former employees to request access to documents that they 
originated, reviewed, or signed while at the Department. As a general 
rule, former employees will be provided access to the documents if they 
are responding to an official inquiry by a federal, state, or local 
government entity or professional licensing authority--for example, 
responding to a Congressional committee request, an investigation by an 
Inspector General, an investigation by a state or local law enforcement 
agency, or a disciplinary action by a bar association. The Department 
may deny or limit access where providing the requested access would be 
unduly burdensome. This rule does not create a right enforceable at law 
by a party against the United States.

What Type of Documents Does the Rule Cover?

    The rule covers only documents that a former employee originated, 
reviewed, or signed while employed by the Department. Documents include 
memoranda, drafts, reports, notes, written communications, and 
documents stored electronically that are in the possession of the 
Department.

B. Administrative Procedure Act

    This rule is a rule of agency organization, procedure, and 
practice; it is therefore exempt from the notice requirement of 5 
U.S.C. 553(b) and is made effective upon issuance.

C. Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this regulation and by approving it 
certifies that it will not have a significant economic impact on a 
substantial number of small entities. This rule merely establishes 
procedures under which former employees of the Department of Justice 
may, for the purpose of responding to an official inquiry, request 
access to documents they originated, reviewed, or signed while employed 
by the Department.

D. Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866. The Department has determined that this rule is 
not a ``significant regulatory action'' under section 3(f) of Executive 
Order 12866, Regulatory Planning and Review, and accordingly this rule 
has not been reviewed by the Office of Management and Budget.

E. Unfunded Mandates Reform Act of 1995

    This rule will not, in the aggregate, result in this expenditure by 
state, local, and tribal governments, or by the private sector, of 
$100,000,000 or more

[[Page 68892]]

in any one year, and it will not significantly or uniquely affect small 
governments. Therefore, no actions were deemed necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.

F. Small Business Regulatory Enforcement Fairness Act of 1996

    The Department has determined that this action pertains to agency 
management and, accordingly, is not a ``rule'' as that term is used by 
the Congressional Review Act (Subtitle E of the Small Business 
Regulatory Enforcement Fairness Act, 5 U.S.C. 804). Therefore, the 
reports to Congress and the General Accounting Office specified by the 
SBREFA are not required.

List of Subjects in 28 CFR Part 16

    Administrative practice and procedure, Courts, Freedom of 
Information, Privacy, Sunshine Act.

    For the reasons stated in the preamble, Title 28 of the Code of 
Federal Regulations is amended as follows:
    1. The authority citation for Part 16 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C. 
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717.

    2. Add Subpart G to Part 16 to read as follows:
Subpart G--Access to Documents by Former Employees of the Department


Sec. 16.300  Access to documents for the purpose of responding to an 
official inquiry.


16.301  Limitations.

Subpart G--Access to Documents by Former Employees of the 
Department


Sec. 16.300  Access to documents for the purpose of responding to an 
official inquiry.

    (a) To the extent permitted by law, former employees of the 
Department shall be given access to documents that they originated, 
reviewed, or signed while employees of the Department, for the purpose 
of responding to an official inquiry by a federal, state, or local 
government entity or professional licensing authority. Documents 
include memoranda, drafts, reports, notes, written communications, and 
documents stored electronically that are in the possession of the 
Department. Access ordinarily will be provided on government premises.
    (b) Requests for access to documents under this section must be 
submitted in writing to the head of the component where the employee 
worked when originating, reviewing, or signing the documents. If the 
employee requesting access was the Attorney General, Deputy Attorney 
General, or Associate Attorney General, the request may be granted by 
the Assistant Attorney General for Administration. This authority may 
not be delegated below the level of principal deputy component head.
    (c) The written request should describe with specificity the 
documents to which access is sought (including time periods wherever 
possible), the reason for which access is sought (including the timing 
of the official inquiry involved), and any intended disclosure of any 
of the information contained in the documents.
    (d) The requester must agree in writing to safeguard the 
information from unauthorized disclosure and not to further disclose 
the information, by any means of communication, or to make copies, 
without the permission of the Department. Determinations regarding any 
further disclosure of information or removal of copies shall be made in 
accordance with applicable standards and procedures.


Sec. 16.301  Limitations.

    (a) The Department may deny or limit access under this subpart 
where providing the requested access would be unduly burdensome.
    (b) Access under this subpart to classified information is governed 
by Executive Order 12958 and 28 CFR 17.46. Requests for access to 
classified information must be submitted to (or will be referred to) 
the Department Security Officer and may be granted by the Department 
Security Officer in consultation with the appropriate component head.
    (c) Nothing in this subpart shall be construed to supplant the 
operation of other applicable prohibitions against disclosure.
    (d) This subpart is not intended to, does not, and may not be 
relied upon to, create any right or benefit, substantive or procedural, 
enforcecable at law by a party against the United States.

    Dated: November 7, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-29208 Filed 11-14-00; 8:45 am]
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