[Federal Register Volume 63, Number 117 (Thursday, June 18, 1998)]
[Rules and Regulations]
[Pages 33251-33254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16243]


=======================================================================
-----------------------------------------------------------------------

LEGAL SERVICES CORPORATION

45 CFR Part 1644


Disclosure of Case Information

AGENCY: Legal Services Corporation.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule implements a provision in the Legal Services 
Corporation's (LSC or Corporation) FY 1998 appropriations act which 
requires basic field recipients to disclose certain information to the 
public and to the Corporation regarding cases their attorneys file in 
court. The case information that is provided to the Corporation will be 
subject to disclosure under the Freedom of Information Act.

DATES: This rule is effective July 20, 1998.

FOR FURTHER INFORMATION CONTACT: Suzanne Glasow, Office of the General 
Counsel, 202-336-8817.

SUPPLEMENTARY INFORMATION: This final rule is intended to implement 
Section 505 of the Corporation's FY 1998 appropriations act, which 
requires basic field recipients to disclose certain information to the 
public and to the Corporation regarding cases filed in court by 
attorneys employed by recipients. See Public Law 105-119, 111 Stat. 
2440. The Corporation issued a program letter on December 9, 1997, 
providing recipients with guidance on compliance with Section 505 until 
such time as a rule could be promulgated by the Corporation. On 
February 6, 1998, the Corporation's Operations and Regulations 
Committee (Committee) of the Corporation's Board of Directors (Board) 
met to consider a draft proposed rule to implement the case disclosure 
requirement. After deliberation, the Committee adopted a proposed rule 
that was published in the Federal Register for public comment. See 63 
FR 8387 (Feb. 19, 1998).
    The Corporation received 4 comments on the proposed rule. The 
comments agreed that, for the most part, the proposed rule accurately 
reflected legislative intent. For those provisions of the rule that the 
commenters believed went beyond the intent of Section 505, suggestions 
were made for changes. Several comments also asked for clarification on 
certain issues either in the commentary or the text of the final rule. 
The Committee met on April 5, 1998, to consider public comment. After 
making revisions to the proposed rule, the Committee recommended the 
rule as revised to the Board as a final rule. The Board adopted the 
rule as recommended by the Committee on April 6, 1998, for publication 
as a final rule in the Federal Register.
    A section-by-section analysis and discussion of changes made from 
the proposed rule is provided below.

Section-by-Section Analysis

Section 1644.1 Purpose

    The purpose section states that the rule is intended to ensure that 
recipients disclose certain required information to the public and to 
the Corporation on cases filed in court by their attorneys.

Section 1644.2 Definitions

    The case disclosure provision requires that recipients disclose 
certain information, among which is the cause of action, for each case 
filed in court by their attorneys. To clarify this requirement, this 
final rule includes three definitions. Paragraph (a) of Sec. 1644.2 
defines to disclose the cause of action. The term means to provide a 
sufficient description of a particular case to indicate the principal 
nature of the case. Examples would include: breach of warranty, 
bankruptcy, divorce, domestic violence, petition to quiet title, action 
to recover property, and employment discrimination action.
    Paragraph (b) clarifies the type of recipient subject to the case 
disclosure requirement. Recipient is defined as an entity that receives 
funds under Sec. 1006(a)(1)(A) of the LSC Act, 42 U.S.C. 
2996e(a)(1)(A), that is, a basic field recipient which provides direct 
legal assistance to the poor. Although Section 505 does not 
specifically apply to subrecipients, as a matter of policy, the 
proposed rule extended the case disclosure requirement to subrecipients 
which provide direct legal representation to eligible clients.
    The comments generally disagreed with this policy and urged the 
Corporation to exclude subrecipients from the reach of the requirement 
or, at least, limit the application of the requirement to activities 
under an LSC subgrant. In addition, comments pointed out that the 
interplay of the discussion of this issue in the preamble and the 
language in the rule itself created confusion as to whether the rule 
was intended to apply to all cases filed by subrecipients or only to 
cases filed by subrecipients that are funded under a subgrant.
    The Board revised the definition of recipient and the applicability 
provisions in Sec. 1644.3 \1\ in order to clarify the intended 
application of the case disclosure requirement to subrecipients. It was 
the intent of the

[[Page 33252]]

proposed rule to apply the requirement to cases funded under subgrants 
provided for the direct legal assistance to the poor, except for PAI 
subgrants. The language in the text and preamble, however, did not make 
this clear. The revised language better states the intent and also 
clarifies that the disclosure requirement does not apply to a 
subrecipient's non-LSC funded activities. This means that subrecipients 
are required to disclose information only for cases funded by their LSC 
subgrants. The final rule thus ensures that information will be 
available to the public regarding all cases filed by recipients and any 
cases filed by subrecipients that are funded under an LSC subgrant for 
the direct representation of eligible clients, except for PAI 
subgrants.
---------------------------------------------------------------------------

    \1\ The section numbers for Secs. 1644.3 and 1644.4 have been 
reversed from the proposed rule.
---------------------------------------------------------------------------

    Paragraph (c) defines the term attorney, for the purposes of this 
part, to mean any attorney who is employed by a recipient. This would 
include attorneys employed as regular or contract employees, regardless 
of whether such attorneys are employed full-time or part-time. One 
comment asked for additional language in the definition that would 
clarify that attorney does not include any private attorney who, under 
the recipient's PAI program, receives compensation from a recipient 
under the terms of a contract or judicare arrangement, or who 
undertakes representation of eligible clients on a pro bono basis. 
Although the Board agreed with the substance of the comment, it did not 
revise the definition of attorney. Instead, it added Sec. 1644.3(b) to 
the rule, which provides that the case disclosure requirement does not 
apply to private attorneys who provide legal assistance as part of a 
recipient's PAI activities.

Section 1644.3 Applicability

    This section, which has been renumbered, clarifies the scope of the 
case disclosure requirement. Technical and clarifying revisions were 
made to this section by the Board, and language was added to clarify 
the applicability of this rule to subrecipients, as discussed under 
Sec. 1644.2 above. Subparagraph (a)(1) clarifies that the disclosure 
requirement is limited to cases filed on behalf of plaintiffs and 
petitioners. This is consistent with the language of Section 505, which 
requires case information about ``each case filed by its [a 
recipient's] attorneys.'' This language clearly applies to ``each 
case'' filed, not to individual filings in a particular case. Thus, the 
case disclosure requirement does not require updates on the status of 
cases for which information has already been filed. In addition, the 
language of Section 505 refers to cases filed by a recipient attorney. 
The general understanding of the meaning of filing a case is that it 
refers to the initiation of a case, such as the filing of a complaint 
by a plaintiff. Accordingly, disclosure is not required for submissions 
of pleadings such as an answer or a cross claim on behalf of a 
defendant in a case that was not initiated by a recipient.
    Although the case disclosure requirement normally applies only to 
the original filing of a case, subparagraph (a)(2) applies the 
requirement when there is an appeal filed in court by a recipient, the 
recipient's client is the appellant, and the recipient was not the 
attorney of record in the case below. The Board revised this provision 
from the proposed rule to add the requirement that the case be one 
where the recipient's client is the appellant. This is consistent with 
Sec. 1644.3(a)(1), which limits the case disclosure requirement to 
cases filed on behalf of plaintiffs or petitioners.
    Subparagraph (a)(3) applies the requirement to a request for 
judicial review of an administrative action filed in a court of 
competent jurisdiction. The language of this provision was revised to 
state more accurately the situation covered by the provision.
    Finally, paragraph (b) provides that this rule does not apply to 
cases filed by private attorneys as part of a recipient's private 
attorney involvement activities pursuant to part 1614. PAI attorneys 
are not attorneys employed by recipients; rather, they are generally 
private attorneys with their own private practices who have been 
recruited by recipients to provide some legal assistance to eligible 
clients, either pro bono or on a compensated basis.

Section 1644.4 Case Disclosure Requirement

    This section sets out the basic requirements of the case disclosure 
provision. Paragraph (a) provides that the disclosure requirement 
applies to each case filed in court by a recipient's attorneys. The 
preamble to the proposed rule explained that the disclosure requirement 
does not apply to cases filed by part-time attorneys outside of their 
employment with the recipient. One comment asked that this 
clarification be made explicit in the rule. The Board agreed and added 
language to Sec. 1644.4(a) of the final rule that provides that the 
rule applies only to cases filed by recipient attorneys ``on behalf of 
a client of the recipient.'' A similar revision was also made for 
Sec. 1644.3(a)(1).
    Name and address of parties: Subparagraphs 1644.4(a)(1) through 
(a)(4) list the information a recipient must disclose about applicable 
cases. First, the name and full address of each party to a case must be 
disclosed unless one of the two statutory protections discussed below 
applies. The term ``full address'' means an address sufficient to 
contact a party to the case by mail, such as a street address or post 
office box number with the city, State and zip code. This provision is 
not intended to require recipients to provide a name and address of a 
party when they have no knowledge of and cannot reasonably obtain such 
information. This could occur, for example, when the information is not 
a matter of public record, the party is not a client of the recipient, 
and the private attorney for that party refuses to provide the 
information. However, the recipient must make a reasonable effort to 
obtain the information.
    Pursuant to Section 505, a name or address need not be disclosed if 
(1) the name or address is protected by an order or rule of court or by 
State or Federal law, or (2) the recipient's attorney reasonably 
believes that revealing the information would put the client of the 
recipient at risk of physical harm. These protections are consistent 
with the express legislative intent of the purpose and scope of the 
requirement. The legislative history indicates that Congress intends 
that the disclosure requirement apply to ``the most basic information'' 
about a case which is already public and on file in court records, but 
does not apply to information, for example, that would risk harm to a 
person or that is protected by the attorney-client privilege. See 143 
Cong. Rec. H 8004-8008 (Sept. 26, 1997).
    One comment from an LSC recipient stated that the program receives 
a grant through the Victims of Crime Act (VOCA), which only funds legal 
assistance to protect victims of violence. In the view of the 
recipient, virtually all cases handled under the VOCA grant are likely 
to come within the physical harm exemption. Accordingly, the recipient 
asked that the rule include a blanket exemption for cases filed under 
grants specifically targeted for domestic violence victims.
    The Board did not adopt the recommendation. The remedy provided by 
statute allows individual attorneys to decide for particular cases 
whether the physical harm exemption applies. Although many of the 
clients served under the VOCA grant may indeed fall within the physical 
harm exemption, the Board was not convinced that

[[Page 33253]]

virtually all such clients do. Nor was the Board convinced that the 
burden of making individual judgments for each case is a substantial 
burden on recipients.
    During public consideration of the rule, a question was raised 
about the rule's policy for protecting relatives of the client, whose 
physical safety would be put at risk by disclosure of the client's name 
and address. For example, if the children of the client rather than the 
client had been threatened with physical harm, could the rule's 
exemption from disclosing the name and address be applied to protect 
the children? The Board noted that the statute does not expressly 
provide protections for any person other than the client of the 
recipient, but also noted that it is clear from the legislative history 
of the requirement that Congress did not intend for the requirement to 
put anyone in harm's way. The Board did not revise the rule, but 
directed staff to provide guidance for situations where a family member 
of a client would be put at risk of physical harm. Accordingly, when a 
recipient's attorney determines that a relative of the client would be 
put at risk of physical harm by disclosure of the client's name and 
address, the recipient may withhold the information, but the attorney 
should keep a record of that determination. This policy is based on the 
reasonable presumption that if one family member is put at risk by 
revealing the client's name and address, then it is likely that the 
client and any other family member who could be found by revealing the 
information are also at risk. This is especially true in cases where 
the relative at risk is a child of the client. For other situations 
where it may not be clear whether the risk-of-harm exception applies, a 
recipient should consult the Corporation for guidance.
    Cause of action: The case disclosure requirement also requires 
disclosure of the cause of action for any applicable case. This 
requirement is intended to provide the public and the Corporation with 
information regarding the nature or types of cases filed in court by 
legal services attorneys, so that there is a public awareness of how 
legal services funds are being expended.
    Name and address of court/case number: Finally, the case disclosure 
provision requires disclosure of the name and full address of the court 
where a case is filed and the case number assigned to the case. Full 
address means an address sufficient to contact the court by U.S. mail.
    Paragraph (b) of this section requires recipients to provide their 
case information to the Corporation in semiannual reports as specified 
by the Corporation. The Corporation will provide guidance to recipients 
on how and when to provide the information. This paragraph also 
clarifies that reports submitted to the Corporation are subject to 
public disclosure by the Corporation under the Freedom of Information 
Act (FOIA).
    The disclosure requirement in this rule is separate from the FOIA 
and nothing in this rule is intended to suggest that LSC recipients are 
subject to the FOIA. They are not. (However, they are subject to other 
disclosure requirements applicable to recipients in 45 CFR part 1619.) 
The Corporation, on the other hand, is subject to the FOIA, and this 
rule requires the Corporation to treat the case information submitted 
to it by recipients as subject to disclosure under the FOIA.
    Paragraph (c) provides that a recipient must make the case 
information described in paragraph (a) available in written form to any 
person who requests such information. This rule does not mandate how 
recipients must maintain the case information for disclosure to the 
public, except that it must be provided in written form. However 
maintained, the case information must be made available within a 
reasonable time after a request is made by any member of the public. 
Paragraph (c) also permits recipients to charge reasonable mailing and 
document copying fees.
    Comments expressed confusion regarding exactly what information 
recipients are required to disclose and inquired whether requests would 
be limited to certain time frames or whether recipients must respond to 
requests for information in a form different from that maintained by a 
recipient. For example, a recipient may choose to maintain a list of 
every case filed after January 1, 1998, in the order in which the cases 
were filed. If a request asks only for cases dealing with domestic 
violence, the recipient is not required to prepare another list 
separating out domestic violence cases. The recipient is only required 
to provide the list it has compiled, and the requester would have to 
search the list to find the domestic violence cases. This does not mean 
that a recipient may not choose to provide the information in different 
formats; it is just not required to do so by this rule.
    In regard to time frames, recipients must disclose the required 
case information when requested by a member of the public for all cases 
filed by their attorneys after January 1, 1998, whenever the request is 
made. This rule does not include any cut-off dates or other specifics 
on the manner of reporting or disclosing information in the rule. If 
the Corporation determines that information loses its value after a 
period of time, so that it does not need to be maintained by 
recipients, it will provide clear written guidance on the matter.
    Another comment asked that disclosure be required only for cases 
filed after the effective date of this rule if the client refuses to 
permit disclosure, since the client may have had no prior information 
about the rule and could not have consented to disclosure as a 
condition of representation.
    The Board did not agree. The Corporation issued a program letter to 
all recipients on December 9, 1997, clearly stating that the law would 
be in effect as of January 1, 1998, and that recipients must start 
implementation of the case disclosure requirements set out in the 
letter. The letter advised recipients to inform affected clients, prior 
to filing a lawsuit, of the possible disclosure of the information 
required by this law.
    Section 1644.4(c) provides that a recipient must make its case 
information available in written form, upon request from any person. 
One comment asked for clarification as to whether the word person 
includes government agencies, departments or subdivisions, non-profit 
corporations, public corporations, foreign corporations, or a person 
outside a program's service area. The term is intended to be all 
inclusive and is not limited by geography, or by the fact that the 
requesting person is asking on behalf of an organization or government 
entity. The legislative history clearly indicates an intent to make the 
information public to any requester. This is consistent with the 
interpretation of the terms person and public in the FOIA. The Board 
requested that this interpretation be included in this preamble.

Section 1644.5 Recipient Policies and Procedures

    This section requires the recipient to establish written policies 
and procedures to guide the recipient's staff to ensure compliance with 
this rule. Such procedures could include information regarding how any 
person may be given access to or be provided with copies of a 
recipient's case disclosure information. The procedures could also set 
out the costs for copying or mailing such information.

List of Subjects in 45 CFR part 1644

    Grant programs, Legal services, Reporting and recordkeeping.


[[Page 33254]]


    For reasons set forth in the preamble, LSC amends Chapter XVI of 
Title 45 by adding part 1644 as follows:

PART 1644--DISCLOSURE OF CASE INFORMATION

Sec.
1644.1 Purpose.
1644.2 Definitions.
1644.3 Applicability.
1644.4 Case disclosure requirement.
1644.5 Recipient policies and procedures.

    Authority: Pub. L. 105-119, 111 Stat. 2440, Sec. 505; Pub. L. 
104-134, 110 Stat. 1321; 42 U.S.C. 2996g(a).


Sec. 1644.1  Purpose.

    The purpose of this rule is to ensure that recipients disclose to 
the public and to the Corporation certain information on cases filed in 
court by their attorneys.


Sec. 1644.2  Definitions.

    For the purposes of this part:
    (a) To disclose the cause of action means to provide a sufficient 
description of the case to indicate the type or principal nature of the 
case.
    (b) Recipient means any entity receiving funds from the Corporation 
pursuant to a grant or contract under section 1006(a)(1)(A) of the Act.
    (c) Attorney means any full-time or part-time attorney employed by 
the recipient as a regular or contract employee.


Sec. 1644.3  Applicability.

    (a) The case disclosure requirements of this part apply:
    (1) To actions filed on behalf of plaintiffs or petitioners who are 
clients of a recipient;
    (2) Only to the original filing of a case, except for appeals filed 
in appellate courts by a recipient if the recipient was not the 
attorney of record in the case below and the recipient's client is the 
appellant;
    (3) To a request filed on behalf of a client of the recipient in a 
court of competent jurisdiction for judicial review of an 
administrative action; and
    (4) To cases filed pursuant to subgrants under 45 CFR part 1627 for 
the direct representation of eligible clients, except for subgrants for 
private attorney involvement activities under part 1614 of this 
chapter.
    (b) This part does not apply to any cases filed by private 
attorneys as part of a recipient's private attorney involvement 
activities pursuant to part 1614 of this chapter.


Sec. 1644.4  Case disclosure requirement.

    (a) For each case filed in court by its attorneys on behalf of a 
client of the recipient after January 1, 1998, a recipient shall 
disclose, in accordance with the requirements of this part, the 
following information:
    (1) The name and full address of each party to a case, unless:
    (i) the information is protected by an order or rule of court or by 
State or Federal law; or
    (ii) the recipient's attorney reasonably believes that revealing 
such information would put the client of the recipient at risk of 
physical harm;
    (2) The cause of action;
    (3) The name and full address of the court where the case is filed; 
and
    (4) The case number assigned to the case by the court.
    (b) Recipients shall provide the information required in paragraph 
(a) of this section to the Corporation in semiannual reports in the 
manner specified by the Corporation. Recipients may file such reports 
on behalf of their subrecipients for cases that are filed under 
subgrants. Reports filed with the Corporation will be made available by 
the Corporation to the public upon request pursuant to the Freedom of 
Information Act, 5 U.S.C. 552.
    (c) Upon request, a recipient shall make the information required 
in paragraph (a) of this section available in written form to any 
person. Recipients may charge a reasonable fee for mailing and copying 
documents.


Sec. 1644.5  Recipient policies and procedures.

    Each recipient shall adopt written policies and procedures to 
implement the requirements of this part.

    June 15, 1998.
Victor M. Fortuno,
General Counsel.
[FR Doc. 98-16243 Filed 6-17-98; 8:45 am]
BILLING CODE 7050-01-P