54256 Federal Register / Vol. 73, No. 182 / Thursday, September 18, 2008 / Rules and Regulations 

ELECTION ASSISTANCE COMMISSION 

11 CFR Chapter II 

RIN 3265–AA00 

Freedom of Information, Government 

in the Sunshine, and Privacy Act 

Requirements 

AGENCY: United States Election 

Assistance Commission (EAC). 

ACTION: Final rule. 

SUMMARY: The U.S. Election Assistance 

Commission is publishing notice of its 

final rules implementing provisions of 

the Freedom of Information Act, the 

Government in the Sunshine Act, and 

the Privacy Act. 

DATES: The rules promulgated today 

become effective September 18, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Tamar Nedzar, Attorney, U.S. Election 

Assistance Commission, 1225 New York 

Avenue NW., Suite 1100, Washington, 

DC 20005. Telephone (202) 566–3100. 

SUPPLEMENTARY INFORMATION:

Preamble Table of Contents 

The following is an outline of the 

preamble. 

I. Disposition of Comments 

II. Legal Basis for the Rulemaking 

III. Discussion of the Rulemaking 

IV. Rulemaking Analyses and Notices 

I. Disposition of Comments 

The EAC issued a notice of proposed 

rulemaking and requested public 

comment on these rules on June 30, 

2008 (73 FR 36,807). The comment 

period ended on August 29, 2008. The 

EAC received no comments on this 

rulemaking activity, and therefore made 

no changes to the proposed rules. The 

regulations in this notice are the same 

in form and substance as those posted 

in the Notice of Proposed Rulemaking 

associated with this RIN. 

II. Legal Basis for the Rulemaking 

The U.S. Election Assistance 

Commission (EAC) is required to 

promulgate this final rule pursuant to 

the Freedom of Information Act (FOIA), 

5 U.S.C. 552, as amended; the 

Government in the Sunshine Act 

(Sunshine Act), 5 U.S.C. 552b; and the 

Privacy Act, 5 U.S.C. 552a, as amended. 

The FOIA requires each federal agency 

to publish certain information in the 

Federal Register, to make available for 

public inspection and copying certain 

other information, and to make available 

certain information to any members of 

the public upon specific request for that 

information. The FOIA stipulates that 

an agency must promulgate regulations 

specifying the schedule of fees 

applicable to the processing of requests 

for information. The Government in the 

Sunshine Act requires meetings of a 

federal agency headed by a collegial 

body, a majority of whose members are 

appointed by the President with the 

advice and consent of the Senate, to be 

open to public observation. The EAC is 

a collegial body subject to the Act. The 

Act specifies certain exemptions from 

the open meeting requirement, and the 

procedures that an agency must follow 

to conduct or to close a meeting. The 

Privacy Act creates requirements that 

apply to systems of records pertaining to 

individuals that are established, 

maintained, or controlled by a federal 

agency, and prescribes rights and limits 

to access to such records. 

III. Discussion of the Rulemaking 

The United States Election Assistance 

Commission was created by Congress in 

the Help America Vote Act of 2002. The 

Commission’s primary function is to 

serve as a national clearinghouse and 

resource for information on and 

procedures for federal elections. The 

EAC conducts studies on election 

administration and makes those studies 

available to the public. The EAC also 

has adopted Voluntary Voting System 

Guidelines; administers a voting system 

testing and certification program; 

allocates election-related federal 

funding to the States; and carries out 

administrative duties under the 

National Voter Registration Act of 1993 

(the Motor Voter Law), including 

developing and maintaining a mail voter 

registration application form for 

elections to federal office. 

The EAC is committed to operating 

transparently, competently, and subject 

to public scrutiny and accountability. 

To help implement these goals, the EAC 

is promulgating these regulations to 

implement three important federal 

statutes addressing access to 

information about the EAC and its 

activities—the Freedom of Information 

Act, as amended, including recent 

amendments found in the OPEN 

Government Act of 2007; the 

Government in the Sunshine Act; and 

the Privacy Act. 

Many of the provisions in today’s 

rules are identical to or closely resemble 

the requirements adopted by other 

federal agencies, and as such represent 

regulatory ‘‘best practices’’ on the topics 

of FOIA, open government, and 

protection of the privacy of information 

about individuals. 

IV. Regulatory Analyses and Notices 

Regulatory Flexibility Act, as Amended 

The Regulatory Flexibility Act, as 

amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996 (5 U.S.C. 601 et seq.) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute, unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small government 

jurisdictions. The EAC has considered 

the effects of this regulatory action on 

small entities and certifies that these 

rules will not have a significant impact 

on a substantial number of small 

entities. 

Unfunded Mandates Reform Act of 1995 

The Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4; 2 U.S.C. 1532) 

requires each agency to assess the 

effects of its regulatory actions on State, 

local, and tribal governments and the 

private sector. Any agency promulgating 

a rule likely to result in a federal 

mandate requiring expenditures by a 

State, local, or tribal government or by 

the private sector of $120.7 million or 

more in any one year must prepare a 

written statement incorporating various 

assessments, estimates, and descriptions 

that are delineated in the Act. The EAC 

has determined that these rules would 

create no unfunded mandates because 

they require no expenditures by a State, 

local, or tribal government and will not 

have an impact of $120.7 million or 

more in any one year. 

Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as amended by 

SBREFA, provides that before a rule 

may take effect, the agency 

promulgating the rule must submit a 

rule report, which includes a copy of 

the rule, to each House of the Congress 

and to the Comptroller General of the 

United States. If the rule meets the 

definition of a major rule, as defined in 

SBREFA, the Comptroller General must 

provide a report to Congress and the 

rule may not take effect until 60 days 

after it has been published in the 

Federal Register. The current action is 

a Final Rule that does not meet the 

definition of a major rule. The EAC is 

submitting the necessary rule report to 

the Congress and the Comptroller 

General of the United States. 


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Federal Register / Vol. 73, No. 182 / Thursday, September 18, 2008 / Rules and Regulations 54257 

National Environmental Policy Act 

The EAC analyzed these rules for the 

purpose of the National Environmental 

Policy Act of 1969 (NEPA) (42 U.S.C. 

4321 et seq.) and determined that this 

action includes no circumstances that 

would have any effect on the quality of 

the environment. The rules pertain 

solely to the dissemination of 

information. Thus, these actions do not 

require an environmental assessment or 

an environmental impact statement. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3507(d)) requires the EAC to 

consider the impact of paperwork and 

other information collection burdens 

imposed on the public. These rules do 

not impose any reporting or 

recordkeeping requirements. They 

pertain solely to the dissemination of 

information under the FOIA; access to 

information about meetings and the 

decision-making process of the EAC; 

and dissemination of information about 

what information is maintained about 

identifiable individuals by the EAC and 

how they may gain access to and correct 

or amend information about them. 

Executive Order 12630 (Taking of 

Private Property) 

These rules would not affect a taking 

of private property or otherwise have 

taking implications under Executive 

Order 12630, ‘‘Governmental Actions 

and Interference with Constitutionally 

Protected Property Rights.’’ 

Executive Order 12988 (Civil Justice 

Reform) 

These rules meet applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, ‘‘Civil Justice Reform,’’ to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

Executive Order 13045 (Protection of 

Children) 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (April 23, 1997, 

62 FR 19885), requires that agencies 

issuing economically significant rules, 

which also concern an environmental 

health or safety risk that an agency has 

reason to believe may 

disproportionately affect children, must 

include an evaluation of the 

environmental health and safety effects 

of the regulation on children. Section 5 

of Executive Order 13045 directs an 

agency to submit for a covered 

regulatory action an evaluation of its 

environmental health or safety effects 

on children. The EAC has determined 

that these rules are not covered 

regulatory actions as defined under 

Executive Order 13045. This 

determination is based upon the fact 

that these rules are not economically 

significant under Executive Order 

12866, because the changes would not 

have an impact of $100 million or more 

in any one year, and do not constitute 

an environmental health risk or safety 

risk that would disproportionately affect 

children. 

Executive Order 12372 

(Intergovernmental Review) 

The regulations implementing 

Executive Order 12372 regarding 

intergovernmental consultation on 

federal programs and activities do not 

apply to this rulemaking. 

Executive Order 13211 (Energy Supply, 

Distribution, or Use) 

The EAC has analyzed these rules 

under Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use.’’ This rule is not a 

significant energy action within the 

meaning of section 4(b) of the Executive 

Order. These rules involve internal 

procedures of and dissemination of 

information about the EAC, is not 

economically significant, and will not 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

List of Subjects 

11 CFR Part 9405 

Administrative practice and 

procedure, Confidential business 

information, Freedom of information, 

Government employees. 

11 CFR Part 9407 

Administrative practice and 

procedure, Government employees. 

11 CFR Part 9410 

Administrative practice and 

procedure, Freedom of information, 

Government employees. 

■ For the reasons set forth in the 

preamble, the Election Assistance 

Commission establishes a new Chapter 

II, consisting of parts 9405, 9407, and 

9410 in Title 11 of the code of Federal 

Regulations to read as follows: 

CHAPTER II—ELECTION 

ASSISTANCE COMMISSION 

PART 9405—PROCEDURES FOR 

DISCLOSURE OF RECORDS UNDER 

THE FREEDOM OF INFORMATION ACT 

Sec. 

9405.1 Purpose and scope. 

9405.2 Definitions. 

9405.3 Policy on disclosure of records. 

9405.4 Availability of records. 

9405.5 Categories of exemptions. 

9405.6 Discretionary release of exempt 

records. 

9405.7 Requests for records. 

9405.8 Appeals of denials of requests for 

records. 

9405.9 Fees in general. 

9405.10 Fees to be charged—categories of 

requesters. 

9405.11 Miscellaneous fee provisions. 

9405.12 Waiver or reduction of charges. 

Authority: 5 U.S.C. 552, as amended. 

§ 9405.1 Purpose and scope. 

The regulations in this part 

implement the provisions of the 

Freedom of Information Act (FOIA), 5 

U.S.C. 552, as amended, with respect to 

the availability of records for inspection 

and copying. 

§ 9405.2 Definitions. 

As used in this part, the term— 

Chief FOIA Officer means the person 

designated under § 9405.3(d) who has 

Commission-wide responsibility for the 

efficient and appropriate compliance 

with the FOIA. 

Commercial use request means a 

FOIA request from or on behalf of a 

person who seeks information for a use 

or purpose that furthers his/her 

commercial, trade, or profit interests, 

which can include furthering those 

interests through litigation. The FOIA 

Officer will determine, whenever 

reasonably possible, the use to which a 

requester will put the requested 

documents. Where the FOIA Officer has 

reasonable cause to doubt the use for 

which the requester claims to have 

made the FOIA request or where that 

use is not clear from the FOIA request 

itself, the FOIA Officer will seek 

additional clarification before assigning 

the request to a specific category. 

Commission means the U.S. Election 

Assistance Commission, established by 

the Help America Vote Act of 2002, 42 

U.S.C. 15301 et seq. 

Commissioner means an individual 

appointed to the Commission by the 

President and confirmed by the Senate 

under section 203 of the Help America 

Vote Act of 2002, 42 U.S.C. 15323. 

Direct costs means those expenditures 

which the Commission actually incurs 

in searching for, duplicating, and, in the 

case of commercial use requesters, 

reviewing documents to respond to a 

FOIA request. Direct costs include, but 

are not limited to, the salary of the 

employee performing the work (the 

basic rate of pay for the employee plus 

16 percent of that basic rate to cover 

benefits) and the cost of operating 

duplicating equipment. Direct costs do 

not include overhead expenses, such as 

the cost of space and heating or lighting 

the facility in which the records are 

stored. 


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Duplication means the process of 

making a copy of a document necessary 

to respond to a FOIA request. Examples 

of the form such copies can take 

include, but are not limited to, paper 

copy, microform, audio-visual materials, 

or machine readable documentation 

(e.g., magnetic tape, DVD, or CD). The 

Commission will honor a requester’s 

specified preference of form or format of 

disclosure if the records requested are 

reasonably reproducible with reasonable 

efforts in the requested form or format. 

Educational institution means a 

preschool, a public or private 

elementary or secondary school, an 

institution of undergraduate higher 

education, an institute of graduate 

higher education, an institution of 

professional education, and an 

institution of vocational education, 

which operates a program or programs 

of scholarly research. 

Executive Director means the 

Executive Director of the Commission or 

his or her designee. 

FOIA means Freedom of Information 

Act, 5 U.S.C. 552, as amended. 

FOIA Officer means a person 

designated by the Chief FOIA Officer 

under § 9405.3(d) to carry out day-today implementation of the FOIA 

activities of the Commission. 

FOIA Public Liaison means a person 

designated by the Chief FOIA Officer 

under § 9405.3(d) to assist in the 

resolution of any disputes between the 

requester and the Commission. 

FOIA request means to seek the 

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

amended. 

General Counsel means the General 

Counsel of the Commission or his or her 

designee. 

Non-commercial scientific institution 

means an organization that is not 

operated on a commercial basis and 

which is operated solely for the purpose 

of conducting scientific research, the 

results of which are not intended to 

promote any particular product or 

industry. 

Record means any information that 

would be a Commission record subject 

to the requirements of this part when 

maintained by the Commission in any 

format, including, but not limited to, an 

electronic format. Record includes 

information that is maintained for the 

Commission by an entity under 

Government contract for the purposes of 

records management. 

Representative of the news media 

means any person or entity that gathers 

information of potential interest to a 

segment of the public, uses editorial 

skills to turn the raw materials into a 

distinct work, and distributes that work 

to an audience. As used in this 

paragraph, ‘‘news’’ means information 

that is about current events or that 

would be of current interest to the 

public. Examples of news media entities 

include, but are not limited to, 

television or radio stations broadcasting 

to the public at large, web logs, and 

publishers of periodicals (but only in 

those instances in which these entities 

can qualify as disseminators of news, as 

defined in this paragraph) who make 

their products available for purchase or 

subscription by the general public. As 

used in this paragraph, a ‘‘web log’’ 

means a publicly available Web site, 

usually maintained by an individual, 

with regular entries of commentary, 

descriptions of events, or other material. 

A freelance journalist may be regarded 

as working for a news media entity and 

therefore, considered a representative of 

the news media if that person can 

demonstrate a solid basis for expecting 

publication by a news organization 

(whether or not the journalist is actually 

employed by the entity). A publication 

contract would present a solid basis for 

such an expectation. The Commission 

may also consider the past publication 

record of the requester in making this 

determination. 

Requester is any person who submits 

a FOIA request to the Commission for 

release of a record under 5 U.S.C. 552, 

as amended. 

Review means the process of 

examining a document located in 

response to a commercial use request to 

determine whether any portion of the 

document located is exempt from 

disclosure. Review also refers to 

processing any document for disclosure, 

i.e., doing all that is necessary to excise 

exempt portions of the document or 

otherwise prepare the document for 

release. Review time includes time 

spent considering any formal objection 

to disclosure made by a business 

submitter requesting confidential 

treatment but does not include time 

spent resolving general legal or policy 

issues regarding the application of 

exemptions. 

Search means all time spent 

reviewing, manually or by automated 

means, Commission records for the 

purpose of locating those records that 

are responsive to a FOIA request, 

including, but not limited to, page-bypage or line-by-line identification of 

material within documents and also 

includes reasonable efforts to locate and 

retrieve information from records 

maintained in electronic form or format. 

Search time does not include review of 

material to determine whether the 

material is exempt from disclosure. 

§ 9405.3 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 

individuals and other entities with 

respect to trade secrets and commercial 

or financial information entitled to 

privileged and 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) In the interest of efficiency and 

economy, the Commission’s preference 

is to furnish records to requesters in 

electronic format, when possible. 

(d) To carry out this policy, the 

Commission shall designate a Chief 

Freedom of Information Act Officer 

(Chief FOIA Officer). The Chief FOIA 

Officer shall designate one or more 

Commission officials, as appropriate, as 

FOIA Public Liaison and/or as FOIA 

Officers. A FOIA Public Liaison shall 

serve as a supervisory official to whom 

a FOIA requester can raise questions 

about the service the FOIA requester has 

received. A FOIA Officer shall have the 

authority, subject to the direction and 

supervision of the Chief FOIA Officer, 

the requirements of this part, and the 

FOIA, to make decisions concerning 

disclosure of records to the public. 

§ 9405.4 Availability of records. 

(a) The FOIA and its provisions apply 

only to existing Commission records; 

the FOIA does not require the creation 

of new records. 

(b) In accordance with 5 U.S.C. 

552(a)(2), the Commission shall make 

the following materials available for 

public inspection and copying: 

(1) Statements of policy and 

interpretation that have been adopted by 

the Commission but have not been 

published in the Federal Register; 

(2) Administrative staff manuals and 

instructions to staff that affect a member 

of the public; 

(3) Copies of all records, regardless of 

form or format, that have been released 

to any person under this paragraph and 

that, because of their nature or subject 

matter, the Commission determines 

have become or are likely to become the 

subject of subsequent requests for 

substantially the same records; and 

(4) A general index of the records 

referred to in paragraph (b)(3) of this 

section. 

(c) In accordance with 5 U.S.C. 

552(a)(3), the Commission shall make 

available, upon proper request, all nonexempt Commission records, or portions 


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of records, not previously made public 

under 5 U.S.C. 552(a)(1) and (a)(2). 

(d) The Commission shall maintain 

and make available current indexes and 

supplements providing identifying 

information regarding any matter 

issued, adopted, or promulgated after 

July 4, 1967. 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. 

(e) If documents or files contain both 

disclosable and non-disclosable 

information, the non-disclosable 

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. 

(f) All records created in the process 

of implementing provisions of 5 U.S.C. 

552 will be maintained by the 

Commission in accordance with the 

authority granted by the National 

Archives and Records Service of the 

General Services Administration. 

(g) The Commission encourages the 

public to explore the information 

available on the Commission’s Web site, 

located at http://www.eac.gov. 

§ 9405.5 Categories of exemptions. 

(a) No FOIA 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 under 

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: 

(i) Requires that the matters be 

withheld from the public in such a 

manner as to leave no discretion on the 

issue, or 

(ii) Establishes particular criteria for 

withholding or refers to particular types 

of matters to be withheld; 

(4) Trade secrets and commercial or 

financial information obtained from a 

person that 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. For purposes 

of this section, trade secret means a 

secret, commercially valuable plan, 

formula, process, or device that is used 

for the making, preparing, 

compounding, or processing of trade 

commodities and that can be said to be 

the end product of either innovation or 

substantial effort. Examples of trade 

secrets may include, but are not limited 

to, plans, schematics, specifications of 

materials used in production, source 

code used to develop software, technical 

descriptions of manufacturing process, 

quality control methodology, and test 

results. The following procedures shall 

be used for submitting business 

information in confidence: 

(i) Clearly mark any portion of any 

data or information being submitted that 

in the submitter’s opinion is a trade 

secret or commercial and financial 

information that the submitter is 

claiming should be treated as privileged 

and confidential and submit such data 

or information separately from other 

material being submitted to the 

Commission; 

(ii) A request for confidential 

treatment shall be addressed to the 

Chief FOIA Officer, U.S. Election 

Assistance Commission, 1225 New York 

Avenue, NW., Suite 1100, Washington, 

DC 20005 and shall indicate clearly on 

the envelope that it is a request for 

confidential treatment. 

(iii) With each submission of, or offer 

to submit, business information 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. 

(iv) Approval or denial of requests 

shall be made only by the Chief FOIA 

Officer or his or her designees. A denial 

shall be in writing, shall specify the 

reason for the denial, and shall advise 

the submitter of the right to appeal to 

the Commission. 

(v) For good cause shown, the 

Commission may grant an appeal from 

a denial by the Chief FOIA Officer or his 

or her designee if the appeal is filed 

within 15 days after receipt of the 

denial. An appeal shall be addressed to 

the Chief FOIA Officer, U.S. Election 

Assistance Commission, 1225 New York 

Avenue, NW., Suite 1100, Washington, 

DC 20005 and shall clearly indicate that 

it is a confidential submission appeal. 

An appeal will be decided within 20 

days after its receipt (excluding 

Saturdays, Sundays, and legal holidays) 

unless an extension, stated in writing 

with the reasons therefore, has been 

provided to the person making the 

appeal. 

(vi) 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 FOIA or of judicial 

discovery proceedings. 

(5) Interagency or intra-agency 

memoranda or letters that 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) Records or information compiled 

for law enforcement purposes, but only 

to the extent that the production of such 

law enforcement records or information: 

(i) Could reasonably be expected to 

interfere with enforcement proceedings; 

(ii) Would deprive a person of a right 

to a fair trial or an impartial 

adjudication; 

(iii) Could reasonably be expected to 

constitute an unwarranted invasion of 

personal privacy; 

(iv) Could reasonably be expected to 

disclose the identity of a confidential 

source, including a State, local, or 

foreign agency or authority or any 

private institution that furnished 

information on a confidential basis, and, 

in the case of a record or information 

compiled by a criminal law enforcement 

authority in the course of a criminal 


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investigation, or by an agency 

conducting a lawful national security 

intelligence investigation, information 

furnished by a confidential source; 

(v) Would disclose techniques and 

procedures for law enforcement 

investigations or prosecutions or would 

disclose guidelines for law enforcement 

investigations or prosecutions if such 

disclosure could reasonably be expected 

to risk circumvention of the law; or 

(vi) Could reasonably be expected to 

endanger the life or physical safety of 

any individual. 

(b) Any portion of a record that 

reasonably can be segregated from the 

balance of the record shall be provided 

to any individual requesting such record 

after deletion of the portions which are 

exempt. The amount of information 

deleted and the exemption under which 

the deletion is made shall be indicated 

on the released portion of the record, 

unless including that indication would 

harm an interest protected by an 

exemption in paragraph (a) of this 

section under which the deletion is 

made. If technically feasible, the amount 

of the information deleted shall be 

indicated at the place in the record 

where such deletion is made. 

(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; nor is 

this part authority to withhold 

information from Congress. 

§ 9405.6 Discretionary release of exempt 

records. 

The Commission may, in its 

discretion, release requested records 

despite the applicability of the 

exemptions in § 9405.5, if it determines 

that it is in the public interest and that 

the rights of third parties would not be 

prejudiced. The Executive Director will 

have the authority to determine that 

requested records may be released 

despite otherwise applicable 

exemptions. 

§ 9405.7 Requests for records. 

(a) Requests for copies of Commission 

records under the FOIA shall be made 

in writing and addressed to the Chief 

FOIA Officer, U.S. Election Assistance 

Commission, 1225 New York Avenue, 

NW., Suite 1100, Washington, DC 

20005. 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 

requester 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. 

(b) Requests for Commission records 

and copies thereof shall specify the 

preferred form or format (including 

electronic formats) of the response. The 

Commission shall accommodate 

requesters as to form or format if the 

record is readily available in that form 

or format. When requesters do not 

specify the form or format of the 

response, the Commission shall respond 

in the form or format in which the 

document is most accessible to the 

Commission. In the interest of efficiency 

and economy, the Commission’s 

preference is to furnish records to 

requesters in electronic format, 

whenever possible. 

(c) The Commission shall determine 

within 20 working days after receipt of 

a request, or 20 working days after an 

appeal is granted, whether to comply 

with such request, unless in unusual 

circumstances the time is extended. The 

20-day period shall commence on the 

date on which the request was first 

received by the appropriate component 

of the Commission, but in any event, not 

later than 10 days after the request is 

first received by the component of the 

Commission designated to receive 

requests under this part. The 20-day 

period shall not be tolled by the 

Commission except— 

(1) The Commission may make one 

request of the requester for information 

and toll the 20-day period while it is 

awaiting such information that it has 

reasonably requested from the requester. 

(2) If it is necessary to clarify with the 

requester issues regarding fee 

assessment. 

(3) Under paragraphs (c)(1) or (2) of 

this section, the Commission’s receipt of 

the requester’s response to the 

Commission’s request for information or 

clarification ends the tolling period. 

(d) In the event the time is extended 

under paragraph (c) of this section, the 

requester shall be notified of the reasons 

for the extension and the date on which 

a determination is expected to be made. 

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 

quantity of separate and distinct records 

that are the subject of a single request; 

or 

(3) Necessary for consultation with 

another agency that has a substantial 

interest in the determination of the 

request. 

(e) If the Commission determines that 

an extension of time is necessary to 

respond to a request satisfying the 

unusual circumstances specified in 

paragraph (c) of this section, the 

Commission shall so notify the 

requester and give the requester an 

opportunity to limit the scope of the 

request so that it may be processed 

within the time limit prescribed in 

paragraph (c) of this section or arrange 

with the Commission an alternative 

time frame for processing the request or 

a modified request. 

(f) The Commission may aggregate 

and process as a single request requests 

by the same requester, or a group of 

requesters acting in concert, if the 

Commission reasonably believes that 

the requests actually constitute a single 

request that would otherwise satisfy the 

unusual circumstances specified in 

paragraph (c) of this section, and the 

requests involve clearly related matters. 

(g) The Commission will process 

requests under the FOIA based on the 

order they are received. 

(h) The Commission shall consider 

requests for the expedited processing of 

requests in cases where the requester 

demonstrates a compelling need for 

such processing. 

(1) The term ‘‘compelling need’’ 

means, with respect to a request made 

by a person primarily engaged in 

disseminating information, urgency to 

inform the public concerning actual or 

alleged Federal government activity. 

(2) Requesters for expedited 

processing must include in their 

requests a statement setting forth the 

basis for the claim that a ‘‘compelling 

need’’ exists for the requested 

information, certified by the requester to 

be true and correct to the best of his or 

her knowledge and belief. 

(3) The Commission shall determine 

whether to grant a request for expedited 

processing and notify the requester of 

such determination within 10 days of 

receipt of the request. Denials of 

requests for expedited processing may 

be appealed as set forth in § 9405.8. The 

Commission shall expeditiously 

determine any such appeal. As soon as 

practicable, the Commission shall 

process the documents responsive to a 

request for which expedited processing 

is granted. 

(i) Any person denied access to 

records by the Commission shall be 

notified immediately of the denial, 

including the reasons for the decision 


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and notified of his or her right to appeal 

the adverse determination to the 

Commission. 

(j) The date of receipt of a request 

under this part shall be the date on 

which the Chief FOIA Officer actually 

receives the request. 

(k) Each request received by the Chief 

FOIA Officer will be assigned an 

individualized tracking number. 

Requesters may call (866) 747–1471 

and, using the tracking number, obtain 

information about the request, including 

the date on which the Commission 

originally received the request and an 

estimated date on which the 

Commission will complete action on the 

request. 

§ 9405.8 Appeals of denials of requests for 

records. 

(a) Any person who has been notified 

under § 9405.7(i) that his/her request for 

inspection of a record or for a copy of 

a record has been denied, or who has 

received no response within 20 working 

days (or within such extended period as 

is permitted under § 9405.7(d)) after the 

request has been received by the 

Commission, or who has received no 

response within 20 days after a request 

for expedited processing 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 or that the expedited 

processing shall occur. 

(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 Chief 

FOIA Officer, U.S. Election Assistance 

Commission, 1225 New York Avenue, 

NW., Suite 1100, Washington, DC 

20005. 

(d) The requester may state facts and 

cite legal or other authorities as he or 

she deems appropriate in support of the 

appeal request. 

(e) The Commission will make a 

determination with respect to any 

appeal within 20 working days after 

receipt of the appeal (or within such 

extended period as is permitted under 

§ 9405.7). 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 requester 

of the denial and shall notify him or her 

of the provisions for judicial review of 

that determination as set forth in 5 

U.S.C. 552(a)(4). 

(f) 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 or 

she believes to have been improperly 

denied should resubmit the request in 

writing as set forth in § 9405.7. 

§ 9405.9 Fees in general. 

(a) Generally. The Commission will 

charge fees that recoup the full 

allowable direct costs it incurs. The 

Commission will use the most efficient 

and least costly means to comply with 

requests for documentation. 

(b) Manual searches for records. The 

Commission will charge fees at the 

salary rate(s) (basic pay plus 16 percent) 

of the employee(s) making the search. 

(c) Computer searches for records. 

The Commission will charge the actual 

direct cost of operating the central 

processing unit (CPU) for that portion of 

operating time that is directly 

attributable to searching for records 

responsive to a FOIA request and 

operator/programmer salary 

apportionable to the search. 

(d) Review of records. Only requesters 

who are seeking documents for 

commercial use may be charged for time 

spent reviewing records to determine 

whether they are exempt from 

mandatory disclosure. Charges may be 

assessed only for the initial review (i.e., 

the review undertaken the first time the 

Commission analyzes the applicability 

of a specific exemption to a particular 

record or portion of a record). Records 

or portions of records withheld in full 

under an exemption that is 

subsequently determined not to apply 

may be reviewed again to determine the 

applicability of other exemptions not 

previously considered. The costs for 

such a subsequent review are assessable. 

The Commission will charge at the 

salary rate(s) (basic pay plus 16 percent) 

of the employee(s) reviewing records. 

(e) Duplication of records. Records 

will be duplicated at a rate of fifteen 

(15) cents per page. For copies prepared 

by computers, such as tapes, CDs, DVDs, 

or printouts, the Commission shall 

charge the actual cost, including 

operator time, of production. For other 

methods of reproduction or duplication, 

the Commission will charge the actual 

direct costs of producing the 

document(s). If the Commission 

estimates that duplication charges are 

likely to exceed $25, it shall notify the 

requester of the estimated amount of 

fees, unless the requester has indicated 

in advance a willingness to pay fees as 

high as those anticipated. Such a notice 

shall offer a requester the opportunity to 

confer with agency personnel with the 

object of reformulating the request to 

meet his or her needs at a lower cost. 

(f) Other charges. The Commission 

will recover the full costs of providing 

services such as those enumerated 

below when it provides them in 

response to a direct request for such 

services: 

(1) Certifying that records are true 

copies; or 

(2) Sending records by special 

methods such as express mail. 

(g) Payment of fees. Remittance shall 

be in the form either of a personal check 

or bank draft drawn on a bank in the 

United States or a postal money order. 

Remittance shall be made payable to the 

order of the Treasury of the United 

States and mailed to the Chief FOIA 

Officer, U.S. Election Assistance 

Commission, 1225 New York Avenue, 

NW., Suite 1100, Washington, DC 

20005. 

(h) Receipt of fees. A receipt for fees 

paid will be given upon request. Refund 

of fees paid for services actually 

rendered will not be made. 

(i) Restrictions on assessing fees. The 

Commission shall not assess search fees 

or duplication fees under this paragraph 

if the Commission fails to comply with 

any time limit in these regulations. The 

Commission will not charge fees to any 

requester, including commercial use 

requesters, if the cost of collecting a fee 

would be equal to or greater than the fee 

itself. With the exception of requesters 

seeking documents for a commercial 

use, the Commission will not charge 

fees for the first 100 pages of 

duplication and the first two hours of 

search time. 

(1) The elements to be considered in 

determining the ‘‘cost of collecting a 

fee’’ are the administrative costs of 

receiving and recording a requester’s 

remittance and processing the fee for 

deposit in the Treasury Department’s 

special account. 

(2) For purposes of these restrictions 

on assessment of fees, the word ‘‘pages’’ 

means paper copies of 8.5′′ x 11′′ or 11′′ 

x 14.′′ Thus, requesters are not entitled 

to 100 computer disks, for example. 

(3) For purposes of these restrictions 

on assessment of fees, the term ‘‘search 

time’’ means manual search. To apply 

this term to searches made by computer, 

the Commission will determine the 

hourly cost of operating the CPU and 

the operator’s hourly salary plus 16 

percent. When the cost of such search 

(including operator time and the cost of 

operating the computer to process a 

request) equals the equivalent dollar 

amount of two hours of salary of the 

person performing the search (i.e., the 


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operator), the Commission will begin 

assessing charges for computer search. 

§ 9405.10 Fees to be charged—categories 

of requesters. 

There are four categories of FOIA 

requesters: Commercial use requesters; 

educational and non-commercial 

scientific institutions; representatives of 

the news media; and all other 

requesters. 

(a) Commercial use requesters. When 

the Commission receives a request for 

documents for commercial use, it will 

assess charges that recover the full 

direct costs of searching for, reviewing 

for release, and duplicating the record 

sought. Commercial use requesters are 

neither entitled to two hours of free 

search time nor 100 free pages of 

duplication. The Commission may 

recover the cost of searching for and 

reviewing records even if there is 

ultimately no disclosure of records (see 

§ 9405.11(b)). 

(b) Educational and non-commercial 

scientific institution requesters. The 

Commission shall provide documents to 

requesters in this category for the cost 

of reproduction alone, excluding 

charges for the first 100 pages. To be 

eligible for inclusion in this category, 

requesters must show that the record is 

being made as authorized by and under 

the auspices of a qualifying institution 

and that the records are not sought for 

a commercial use but are sought in the 

furtherance of scholarly (if the request is 

from an educational institution) or 

scientific (if the request is from a noncommercial scientific institution) 

research. 

(c) Representatives of the news media. 

The Commission shall provide 

documents to requesters in this category 

for the cost of reproduction alone, 

excluding charges for the first 100 

pages. To be eligible for inclusion in 

this category, the requester must fit the 

definition of a representative of the 

news media as stated in § 9405.2, and 

the request must not be made for 

commercial use. For purposes of this 

paragraph, a request for records 

supporting the news dissemination 

function of the requester shall not be 

considered to be a request that is for 

commercial use. 

(d) All other requesters. The 

Commission shall charge requesters 

who do not fit into any of the categories 

above fees that recover the full 

reasonable direct cost of searching for 

and reproducing records that are 

responsive to the request, except that 

the first 100 pages of reproduction and 

the first two hours of search time shall 

be furnished without charge. 

§ 9405.11 Miscellaneous fee provisions. 

(a) Charging Interest—notice and rate. 

The Commission may begin assessing 

interest charges on an unpaid bill 

starting on the 31st day following the 

day on which the billing was sent. The 

fact that the fee has been received by the 

Commission within the 30-day grace 

period, even if it is not processed, will 

suffice to stay the accrual of interest. 

Interest will be at the rate prescribed in 

section 3717 of title 31 of the United 

States Code and will accrue from the 

date of the billing. 

(b) Charges for unsuccessful search. 

The Commission may assess charges for 

time spent searching, even if it fails to 

locate the records or if the records 

located are determined to be exempt 

from disclosure. If the Commission 

estimates that search charges are likely 

to exceed $25, it shall notify the 

requester of the estimated amount of 

fees, unless the requester has indicated 

in advance his willingness to pay fees 

as high as those anticipated. Such a 

notice shall offer the requester the 

opportunity to confer with agency 

personnel with the object of 

reformulating the request to meet his or 

her needs at a lower cost. 

(c) Aggregating requests. A requester 

may not file multiple requests at the 

same time, each seeking portions of a 

document or documents, solely in order 

to avoid payment of fees. When the 

Commission reasonably believes that a 

requester or a group of requestors acting 

in concert has submitted requests that 

constitute a single request involving 

clearly related matters, the Commission 

may aggregate those requests and charge 

accordingly. One element to be 

considered in determining whether a 

belief would be reasonable is the time 

period over which the requests have 

occurred. 

(d) Advance payments. The 

Commission may not require a requester 

to make an advance payment (i.e., 

payment before work is commenced or 

continued on a request) unless: 

(1) The Commission estimates or 

determines that allowable charges that a 

requester may be required to pay are 

likely to exceed $250. Then, the 

Commission will notify the requester of 

the likely cost and obtain satisfactory 

assurance of full payment where the 

requester has a history of prompt 

payment of FOIA fees or require an 

advance payment of an amount up to 

the full estimated charges in the case of 

requesters with no history of payment; 

or 

(2) A requester has previously failed 

to pay a fee charged in a timely fashion 

(i.e., within 30 days of the date of the 

billing). Then, the Commission may 

require the requester to: 

(i) Pay the full amount owed plus any 

applicable interest as provided above or 

demonstrate that he or she has, in fact, 

paid the fee, and 

(ii) Make an advance payment of the 

full amount of the estimated fee before 

the agency begins to process a new 

request or a pending request from that 

requester. 

(3) When the Commission acts under 

paragraphs (d)(1) or (2) of this section, 

the administrative time limits 

prescribed in 5 U.S.C. 552(a)(6) will 

begin only after the Commission has 

received payments described in 

paragraphs (d)(1) and (2) of this section. 

(e) Effect of Debt Collection Act of 

1982. The Commission shall comply 

with the provisions of the Debt 

Collection Act, including disclosure to 

consumer reporting agencies and use of 

collection agencies, where appropriate, 

to encourage repayment. 

§ 9405.12 Waiver or reduction of charges. 

Records responsive to a request will 

be furnished without charge when the 

Chief FOIA Officer determines, based on 

all available information, that disclosure 

of the requested information is in the 

public interest because it is likely to 

contribute significantly to public 

understanding of the operations or 

activities of the government and is not 

primarily in the commercial interest of 

the requester. 

PART 9407—IMPLEMENTATION OF 

THE GOVERNMENT IN THE SUNSHINE 

ACT 

Sec. 

9407.1 Purpose and scope. 

9407.2 Definitions. 

9407.3 Open meetings. 

9407.4 Notice of meetings. 

9407.5 Closed meetings. 

9407.6 Procedures for closing meetings. 

9407.7 Recordkeeping requirements. 

9407.8 Public availability of records. 

Authority: 5 U.S.C. 552b. 

§ 9407.1 Purpose and scope. 

This part contains the regulations of 

the U.S. Election Assistance 

Commission implementing the 

Government in the Sunshine Act (5 

U.S.C. 552b). Consistent with the Act, it 

is the policy of the Commission that the 

public is entitled to the fullest 

practicable information regarding its 

decision making processes. This part 

sets forth the basic responsibilities of 

the Commission with regard to this 

policy and offers guidance to members 

of the public who wish to exercise the 

rights established by the Act. These 

regulations also fulfill the requirement 


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of 5 U.S.C. 552b(g) that each agency 

subject to the Act promulgates 

regulations to implement the open 

meeting requirements of paragraphs (b) 

through (f) of section 552b. 

§ 9407.2 Definitions. 

As used in this part, the term— 

Commission means the U.S. Election 

Assistance Commission, established by 

the Help America Vote Act of 2002, 42 

U.S.C. 15301 et seq. 

Commissioner means an individual 

appointed to the Commission by the 

President and confirmed by the Senate 

under section 203 of the Help America 

Vote Act of 2002, 42 U.S.C. 15323. 

Executive Director means the 

Executive Director of the Commission or 

his or her designee. 

General Counsel means the General 

Counsel of the Commission or his or her 

designee. 

Meeting means the deliberations of at 

least three Commissioners where such 

deliberations determine or result in the 

joint conduct or disposition of official 

Commission business. A deliberation 

conducted through telephone or similar 

communications equipment in which 

all persons participating can hear each 

other shall be considered a meeting. For 

the purposes of this section, ‘‘joint 

conduct’’ does not include situations 

where the requisite number of members 

is physically present in one place but 

not conducting agency business as a 

body. In addition, the term ‘‘meeting’’ 

does not include a process of notation 

voting by circulated memorandum for 

the purpose of expediting consideration 

of official Commission business. The 

term ‘‘meeting’’ also does not include 

deliberations on whether to: 

(1) Schedule a meeting; 

(2) Hold a meeting with less than 

seven days notice, as provided in 

§ 9407.4(e); 

(3) Change the subject matter of a 

publicly announced meeting or the 

determination of the Commission to 

open or close a meeting or portions of 

a meeting to public observation, as 

provided in § 9407.4(f); 

(4) Change the time or place of an 

announced meeting, as provided in 

§ 9407.4(g); 

(5) Close a meeting or portions of a 

meeting, as provided in § 9407.5; or 

(6) Withhold from disclosure 

information pertaining to a meeting or 

portions of a meeting, as provided in 

§ 9407.5. 

Public observation means attendance 

by one or more members of the public 

at a meeting of the Commission but does 

not include participation in the meeting. 

Public participation means the 

presentation or discussion of 

information, raising of questions, or 

other manner of involvement in a 

meeting of the Commission by one or 

more members of the public in a manner 

that contributes to the disposition of 

Commission business. 

§ 9407.3 Open meetings. 

(a) The Commissioners shall not 

jointly conduct, determine, or dispose of 

agency business other than in 

accordance with this section. 

(b) Except as otherwise provided in 

this part, every portion of every 

Commission meeting shall be open to 

public observation. 

(c) No additional right to participate 

in Commission meetings is granted to 

any person by this part. Meetings of the 

Commission, or portions of a meeting, 

shall be open to public participation 

only when an announcement to that 

effect is issued under § 9407.4(b)(4). 

Public participation shall be conducted 

in an orderly, non-disruptive manner 

and in accordance with any procedures 

as the chairperson of the meeting may 

establish. Public participation may be 

terminated at any time for any reason. 

(d) When holding open meetings, the 

Commission shall make a diligent effort 

to provide appropriate space, sufficient 

visibility, and adequate acoustics to 

accommodate the public attendance 

anticipated for the meeting. When open 

meetings are conducted through 

telephone or similar communications 

equipment, the Commission shall make 

an effort to provide sufficient access to 

the public in a manner which allows the 

public to clearly hear, see, or otherwise 

follow the proceedings. The meeting 

room or other forum selected shall be 

sufficient to accommodate a reasonable 

number of interested members of the 

public. The Commission shall ensure 

that public meetings are held at a 

reasonable time and are readily 

accessible to individuals with 

disabilities. 

(e) Members of the public attending 

open Commission meetings may use 

small electronic audio recording devices 

to record the proceedings. The use of 

any other recording equipment and 

cameras requires advance coordination 

with and notice to the Commission’s 

Communications Office. The chair or 

acting chair of the Commission may 

prohibit, at any time, the use of any 

recording equipment during a public 

meeting if he or she determines that 

such recording would disrupt the 

orderly conduct of the meeting. 

§ 9407.4 Notice of meetings. 

(a) Except as otherwise provided in 

this section, the Commission shall make 

a public announcement at least seven 

days prior to a meeting. 

(b) The public announcement shall 

include: 

(1) The time and place of the meeting; 

(2) The subject matter of the meeting; 

(3) Whether the meeting is to be open, 

closed, or portions of a meeting will be 

closed; 

(4) Whether public participation will 

be allowed; and 

(5) The name and telephone number 

of the person who will respond to 

requests for information about the 

meeting. 

(c) The public announcement 

requirement shall be implemented by: 

(1) Publishing the announcement on 

the Commission’s Web site; and 

(2) Distributing the announcement to 

affected government entities and 

persons and organizations that the 

Executive Director determines may have 

an interest in the subject matter of the 

meeting. 

(d) The announcement will be 

submitted for publication in the Federal 

Register immediately following the 

public posting and distribution noted in 

paragraph (c) of this section. 

(e) A meeting may be held with less 

than seven days notice if a majority of 

the Commission determines by recorded 

vote that the business of the 

Commission so requires. The 

Commission shall make a public 

announcement to this effect at the 

earliest practicable time. The 

announcement shall include the 

information required by paragraph (b) of 

this section and shall be issued in 

accordance with those procedures set 

forth in paragraphs (c) and (d) of this 

section that are practicable given the 

available period of time. 

(f) The subject matter of an 

announced meeting or the 

determination of the Commission to 

open or close a meeting or portions of 

a meeting to public observation may be 

changed only if: 

(1) A majority of the Commissioners 

determine by a recorded vote that 

agency business so requires and that no 

earlier announcement of the change was 

possible, 

(2) The Commission publicly 

announces the change and the vote of 

each Commissioner upon such change 

at the earliest practicable time. 

(3) The announcement of the change 

noted in paragraph (f)(2) of this section 

is issued in accordance with those 

procedures set forth in paragraphs (c) 

and (d) of this section that are 

practicable given the available period of 

time. 

(g) The time or place of an announced 

meeting may be changed only if a public 


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54264 Federal Register / Vol. 73, No. 182 / Thursday, September 18, 2008 / Rules and Regulations 

announcement of the change is made at 

the earliest practicable time. The 

announcement shall be issued in 

accordance with those procedures set 

forth in paragraphs (c) and (d) of this 

section that are practicable given the 

available period of time. 

§ 9407.5 Closed meetings. 

(a) A meeting or portions of a meeting 

may be closed and information 

pertaining to such meeting or portions 

of a meeting may be withheld from the 

public only if the Commission 

determines that such meeting or 

portions of a meeting or the disclosure 

of such information is likely to: 

(1) Disclose matters that are: 

(i) Specifically authorized under 

criteria established by an Executive 

Order to be kept secret in the interest of 

national defense or foreign policy, and 

(ii) To be properly classified under 

that Executive Order; 

(2) Relate solely to the internal 

personnel rules and practices of the 

Commission; 

(3) Disclose matters specifically 

exempted from disclosure by statute 

(other than the Freedom of Information 

Act, 5 U.S.C. 552) provided that the 

statute: 

(i) Requires that the matters be 

withheld from the public in such a 

manner as to leave no discretion on the 

issue, or 

(ii) Establishes particular criteria for 

withholding or refers to particular types 

of matters to be withheld; 

(4) Disclose the trade secrets and 

commercial or financial information 

obtained from a person and privileged 

or confidential; 

(5) Involve either accusing any person 

of a crime or formally censuring any 

person; 

(6) Disclose information of a personal 

nature, if disclosure would constitute a 

clearly unwarranted invasion of 

personal privacy; 

(7) Disclose either investigatory 

records compiled for law enforcement 

purposes or information which, if 

written, would be contained in such 

records but only to the extent that the 

production of the records or information 

would: 

(i) Interfere with enforcement 

proceedings, 

(ii) Deprive a person of a right to 

either a fair trial or an impartial 

adjudication, 

(iii) Constitute an unwarranted 

invasion of personal privacy, 

(iv) Disclose the identity of a 

confidential source or sources and, in 

the case of a record compiled either by 

a criminal law enforcement authority in 

the course of a criminal investigation or 

by an agency conducting a lawful 

national security intelligence 

investigation, confidential information 

furnished only by the confidential 

source or sources, 

(v) Disclose investigative techniques 

and procedures, or 

(vi) Endanger the life or physical 

safety of law enforcement personnel; 

(8) Disclose information contained in 

or related to examination, operating, or 

condition reports prepared by, on behalf 

of, or for the use of an agency 

responsible for the regulation or 

supervision of financial institutions; 

(9) Disclose information the 

premature disclosure of which would be 

likely to significantly frustrate 

implementation of a proposed action of 

the Commission. This exception shall 

not apply in any instance where the 

Commission has already disclosed to 

the public the content or nature of the 

proposed action or where the 

Commission is required by law to make 

such disclosure on its own initiative 

prior to taking final action on the 

proposal; or 

(10) Specifically concern the issuance 

of a subpoena by the Commission; or the 

participation of the Commission in a 

civil action or proceeding, an action in 

a foreign court or international tribunal, 

or an arbitration; or the initiation, 

conduct, or disposition by the 

Commission of a particular case of 

formal adjudication under the 

procedures in 5 U.S.C. 554 or otherwise 

involving a determination on the record 

after opportunity for a hearing. 

(b) Before a meeting or portions of a 

meeting may be closed to public 

observation, the Commission shall 

determine, notwithstanding the 

exemptions set forth in paragraph (a) of 

this section, whether the public interest 

requires that the meeting or portions of 

a meeting be open consistent with 

Federal law. The Commission may open 

a meeting or portions of a meeting that 

could be closed under paragraph (a) of 

this section if the Commission finds it 

to be in the public interest to do so and 

the disclosure is not otherwise 

prohibited by Federal law. 

§ 9407.6 Procedures for closing meetings. 

(a) A meeting or portions of a meeting 

may be closed and information 

pertaining to a meeting or portions of a 

meeting may be withheld under 

§ 9407.5(a) only when a majority of the 

members of the Commission vote to take 

the action. 

(b) A separate vote of the 

Commissioners shall be taken with 

respect to each meeting or portion of a 

meeting proposed to be closed and with 

respect to information which is 

proposed to be withheld. A single vote 

may be taken with respect to a series of 

meetings or portions of a meeting that 

are proposed to be closed, so long as 

each meeting or portion of a meeting in 

the series involves the same particular 

matter and is scheduled to be held no 

more than 30 days after the initial 

meeting in the series. The vote of each 

participating Commission member shall 

be recorded, and no proxies shall be 

allowed. 

(c) A person whose interests may be 

directly affected by a portion of a 

meeting may request in writing that the 

Commission close that portion of the 

meeting for any of the reasons referred 

to in § 9407.5(a)(5), (6), or (7) . Upon the 

request of a Commissioner, a recorded 

vote shall be taken whether to close 

such meeting or a portion of a meeting. 

(d) Before the Commission may hold 

a meeting that is closed, in whole or 

part, a certification shall be obtained 

from the General Counsel that, in his or 

her opinion, the meeting may properly 

be closed. The certification shall be in 

writing and shall state each applicable 

exemption provision from § 9407.5(a). 

(e) Within one day of a vote taken 

under this section, the Commission 

shall make publicly available a written 

copy of such vote reflecting the vote of 

each Commissioner. 

(f) In the case of the closure of a 

meeting or portions thereof, the 

Commission shall make publicly 

available within one day of the vote on 

such action a full written explanation of 

the reasons for the closing with a list of 

all persons expected to attend the 

meeting and their affiliation. 

§ 9407.7 Recordkeeping requirements. 

(a) The Commission shall maintain 

either a complete transcript or 

electronic recording of the proceedings 

of each meeting. 

(b) In the case of either a meeting or 

portions of a meeting closed to the 

public under § 9407.5(a)(8) or (10), the 

Commission shall maintain a complete 

transcript, an electronic recording, or a 

set of minutes of the proceedings. If 

minutes are maintained, they shall fully 

and clearly describe all matters 

discussed and shall provide a full and 

accurate summary of any actions taken 

and the reasons for which such actions 

were taken, including a description of 

the views expressed on any item and a 

record reflecting the vote of each 

Commissioner. All documents 

considered in connection with any 

action shall be identified in the minutes. 

(c) The transcript, electronic 

recording, or copy of the minutes of a 

meeting shall disclose the identity of 

each speaker. 


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(d) The Commission shall maintain a 

complete verbatim copy of the 

transcript, a complete electronic 

recording, or a complete copy of the 

minutes of the proceedings of each 

meeting for at least two years, or for one 

year after the conclusion of any 

Commission proceeding with respect to 

which the meeting was held, whichever 

occurs later. 

§ 9407.8 Public availability of records. 

The Commission shall make available 

to the public the transcript, electronic 

recording, or minutes of a meeting, 

except for items of discussion or 

testimony that relate to matters the 

Commission has determined to contain 

information that may be withheld under 

§ 9407.5(a). This information shall be 

made available as soon as practicable 

after each meeting on the Commission’s 

Web site. Otherwise, requests to receive 

or review transcripts, electronic 

recordings, or minutes of a meeting 

should be addressed to the 

Communications Director, U.S. Election 

Assistance Commission, 1225 New York 

Avenue, Suite 1100, Washington, DC 

20005. Copies of a transcript, a 

transcription of the electronic recording, 

or the minutes of a meeting (except for 

items of discussion or testimony that 

relate to matters withheld under 

§ 9407.5) shall be furnished at cost to 

any person upon written request 

pursuant to the requirements of 11 CFR 

part 9405. 

PART 9410—IMPLEMENTATION OF 

THE PRIVACY ACT OF 1974 

Sec. 

9410.1 Purpose and scope. 

9410.2 Definitions. 

9410.3 Procedures for requests pertaining to 

individual records in a record system. 

9410.4 Times, places, and requirements for 

identification of individuals making 

requests. 

9410.5 Disclosure of requested information 

to individuals. 

9410.6 Request for correction or 

amendment to record. 

9410.7 Commission review of request for 

correction or amendment of record. 

9410.8 Appeal of initial adverse 

determination on amendment or 

correction. 

9410.9 Disclosure of record to person other 

than the individual to whom it pertains. 

9410.10 Fees. 

9410.11 Penalties. 

Authority: 5 U.S.C. 552a. 

§ 9410.1 Purpose and scope. 

(a) This part sets forth rules that 

inform the public as to what 

information is maintained by the U.S. 

Election Assistance Commission about 

identifiable individuals and that inform 

those identifiable individuals how they 

may gain access to and correct or amend 

information about them. 

(b) The regulations in this part carry 

out the requirements of the Privacy Act 

of 1974 (Pub. L. 93–579) and in 

particular 5 U.S.C. 552a as added by 

that Act. 

(c) The regulations in this part apply 

only to records disclosed or requested 

under the Privacy Act of 1974 and not 

to requests for information made under 

5 U.S.C. 552, the Freedom of 

Information Act, or requests for reports 

and statements filed with the Election 

Assistance Commission which are 

public records and available for 

inspection and copying. 

§ 9410.2 Definitions. 

As used in this part, the term— 

Commission means the U.S. Election 

Assistance Commission, established by 

the Help America Vote Act of 2002, 42 

U.S.C. 15301 et seq. 

Commissioner means an individual 

appointed to the Commission by the 

President and confirmed by the Senate 

under section 203 of the Help America 

Vote Act of 2002, 42 U.S.C. 15323. 

Individual means a citizen of the 

United States or an alien lawfully 

admitted for permanent residence. 

Maintain includes maintain, collect, 

use, or disseminate. 

Record means any item, collection, or 

grouping of information about an 

individual that is maintained by the 

Commission including, but not limited 

to, his or her education, financial 

transactions, medical history, and 

criminal or employment history and 

that contains his or her name or the 

identifying number, symbol, or other 

identifying information particularly 

assigned to the individual, such as 

finger or voice print or a photograph. 

Systems of records means a group of 

any records under the control of the 

Commission from which information is 

retrieved by the name of the individual 

or by some identifying number, symbol, 

or other identifying information 

particularly assigned to the individual. 

§ 9410.3 Procedures for requests 

pertaining to individual records in a record 

system. 

(a) Any individual may request the 

Commission to inform him or her 

whether a particular record system 

named by the individual contains a 

record pertaining to him or her. The 

request may be made in person or in 

writing at the location of the record 

system and to the person specified in 

the notice describing that record system. 

(b) An individual, who believes that 

the Commission maintains records 

pertaining to him or her but cannot 

determine which record system contains 

those records, may request assistance by 

mail or in person from the Executive 

Director, U.S. Election Assistance 

Commission, 1225 New York Avenue, 

Suite 1100, Washington, DC 20005 

during the hours of 9 a.m. to 5:30 p.m. 

(c) Requests under paragraphs (a) or 

(b) of this section shall be acknowledged 

by the Commission within 15 working 

days from the date of receipt of the 

request. If the Commission is unable to 

locate the information requested under 

paragraphs (a) or (b) of this section, it 

shall so notify the individual within 15 

working days after receipt of the 

request. The notification may request 

additional information to assist the 

Commission in locating the record, or it 

may advise the individual that no 

record or document exists about that 

individual. 

§ 9410.4 Times, places, and requirements 

for identification of individuals making 

requests. 

(a) After being informed by the 

Commission that a record system 

contains a record pertaining to him or 

her, an individual may request that the 

Commission disclose that record in the 

manner described in this section. Each 

request for the disclosure of a record or 

a copy of a record it shall be made in 

person or by written correspondence to 

the U.S. Election Assistance 

Commission, 1225 New York Avenue, 

Suite 1100, Washington, DC 20005 and 

to the person identified in the notice 

describing the systems of records. 

Requests can also be made by 

specifically authorized agents or by 

parents or guardians of individuals. 

(b) Each individual requesting the 

disclosure of a record or copy of a 

record shall furnish the following 

information with his or her request: 

(1) The name of the record system 

containing the record; 

(2) Proof as described in paragraph (c) 

of this section that he or she is the 

individual to whom the requested 

record relates; and 

(3) Any other information required by 

the notice describing the record system. 

(c) Proof of identity as required by 

paragraph (b)(2) of this section shall be 

provided as described in paragraphs 

(c)(1) and (c)(2) of this section. Requests 

made by an agent, parent, or guardian 

shall be in accordance with the 

procedures described in § 9410.9. 

(1) Requests made in writing shall 

include a statement affirming the 

individual’s identity, signed by the 

individual and either notarized or 

witnessed by two persons (including 

witnesses’ addresses). If the individual 


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appears before a notary, he or she shall 

submit adequate proof of identification 

in the form of a driver’s license, birth 

certificate, passport, or other 

identification acceptable to the notary. If 

the statement is witnessed, it shall 

include a sentence above the witnesses’ 

signatures that they personally know the 

individual or that the individual has 

submitted proof of his or her 

identification to their satisfaction. In 

cases involving records of extreme 

sensitivity, the Commission may 

determine that the identification is not 

adequate and may request the 

individual to submit additional proof of 

identification. 

(2) If the request is made in person, 

the requester shall submit proof of 

identification similar to that described 

in paragraph (c)(1) of this section, 

acceptable to the Commission. 

§ 9410.5 Disclosure of requested 

information to individuals. 

(a) Upon submission of proof of 

identification as required by § 9410.4, 

the Commission shall allow the 

individual to see and/or obtain a copy 

of the requested record or shall send a 

copy of the record to the individual by 

registered mail. If the individual 

requests to see the record, the 

Commission may make the record 

available either at the location where 

the record is maintained or at a place 

more suitable to the requestor, if 

possible. The record shall be made 

available as soon as possible, but in no 

event later than 15 working days after 

proof of identification. The individual 

may have a person or persons of his or 

her own choosing accompany him or 

her when the record is disclosed. 

(b) The Commission must furnish 

each record requested by an individual 

under this part in a form intelligible to 

that individual. 

(c) If the Commission denies access to 

a record to an individual, he or she shall 

be advised of the reason for the denial 

and advised of the right to judicial 

review. 

(d) Upon request, an individual will 

be provided access to the accounting of 

disclosures from his or her record under 

the same procedures as provided above 

and in § 9410.4. 

§ 9410.6 Request for correction or 

amendment to record. 

(a) Any individual who has reviewed 

a record pertaining to him or her that 

was furnished under this part may 

request that the Commission correct or 

amend all or any part of that record. 

(b) Each individual requesting a 

correction or amendment shall send or 

provide in person the written request to 

the Commission through the person 

who furnished the record. 

(c) Each request for a correction or 

amendment of a record shall contain the 

following information: 

(1) The name of the individual 

requesting the correction or amendment; 

(2) The name of the system of records 

in which the record sought to be 

amended is maintained; 

(3) The location of the system of 

records from which the individual 

record was obtained; 

(4) A copy of the record sought to be 

amended or corrected or a sufficiently 

detailed description of that record; 

(5) A statement of the material in the 

record that the individual desires to 

correct or amend; and 

(6) A statement of the basis for the 

requested correction or amendment 

including any material that the 

individual can furnish to substantiate 

the reasons for the correction or 

amendment sought. 

§ 9410.7 Commission review of request for 

correction or amendment of record. 

(a) The Commission shall, not later 

than 10 working days after the receipt 

of the request for a correction or 

amendment of a record under § 9410.6, 

acknowledge receipt of the request and 

inform the individual whether 

additional information is required 

before the correction or amendment can 

be considered. 

(b) If no additional information is 

required, within 10 working days from 

receipt of the request, the Commission 

shall either make the requested 

correction or amendment or notify the 

individual of its refusal to do so, 

including in the notification the reasons 

for the refusal and the appeal 

procedures provided in § 9410.8. 

(c) The Commission shall make each 

requested correction or amendment to a 

record if that correction or amendment 

will negate inaccurate, irrelevant, 

untimely, or incomplete information in 

the record. 

(d) The Commission shall inform 

prior recipients of a record of any 

amendment or correction or notation of 

dispute of the individual’s record if an 

accounting of the disclosure was made. 

The individual may request a list of 

prior recipients if an accounting of the 

disclosure was made. 

§ 9410.8 Appeal of initial adverse 

determination on amendment or correction. 

(a) Any individual whose request for 

a correction or amendment has been 

denied in whole or in part may appeal 

that decision to the Commissioners no 

later than 180 days after the adverse 

decision is rendered. 

(b) The appeal shall be in writing and 

shall contain the following information: 

(1) The name of the individual 

making the appeal; 

(2) Identification of the record sought 

to be amended; 

(3) The record system in which that 

record is contained; 

(4) A short statement describing the 

amendment sought; and 

(5) The name and location of the 

Commission official who initially 

denied the correction or amendment. 

(c) Not later than 30 working days 

after the date on which the Commission 

receives the appeal, the Commissioners 

shall complete their review of the 

appeal and make a final decision 

thereon. However, for good cause 

shown, the Commissioners may extend 

that 30-day period. If the 

Commissioners extend the period, the 

individual requesting the review shall 

be promptly notified of the extension 

and the anticipated date of a decision. 

(d) After review of an appeal, the 

Commission shall send a written notice 

to the requestor containing the 

following information: 

(1) The decision and, if the denial is 

upheld, the reasons for the decision; 

(2) The right of the requestor to 

institute a civil action in a Federal 

District Court for judicial review of the 

decision; and 

(3) The right of the requestor to file 

with the Commission a concise 

statement setting forth the reasons for 

his or her disagreement with the 

Commission’s denial of the correction or 

amendment. The Commission shall 

make this statement available to any 

person to whom the record is later 

disclosed, together with a brief 

statement, if appropriate, of the 

Commission’s reasons for denying the 

requested correction or amendment. The 

Commission shall also send a copy of 

the statement to prior recipients of the 

individual’s record if an accounting of 

the disclosures was made. 

§ 9410.9 Disclosure of record to person 

other than the individual to whom it 

pertains. 

(a) Any individual who desires to 

have a record covered by this part 

disclosed to or mailed to another person 

may designate such person and 

authorize the person to act as his or her 

agent for that specific purpose. The 

authorization shall be in writing, signed 

by the individual, and notarized or 

witnessed as provided in § 9410.4(c). 

(b) The parent of any minor 

individual or the legal guardian of any 

individual who has been declared by a 

court of competent jurisdiction to be 

incompetent due to physical or mental 


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incapacity or age may act on behalf of 

that individual in any matter covered by 

this part. A parent or guardian who 

desires to act on behalf of such an 

individual shall present suitable 

evidence of parentage or guardianship, 

by birth certificate, certified copy of a 

court order, or similar documents, and 

proof of the individual’s identity in a 

form that complies with § 9410.4(c). 

(c) An individual to whom a record is 

to be disclosed in person under this part 

may have a person or persons of his or 

her own choosing accompany him or 

her when the record is disclosed. 

§ 9410.10 Fees. 

(a) The Commission shall not charge 

an individual for the cost of making a 

search for a record or the cost of 

reviewing the record. When the 

Commission makes a copy of a record as 

a necessary part of the process of 

disclosing the record to an individual, 

the Commission shall not charge the 

individual for the cost of making that 

copy. When the Commission makes a 

copy of a record in response to a request 

from an individual, the Commission 

may charge the individual for the 

reasonable cost of making the copy. 

(b) If an individual requests that the 

Commission furnish a copy of the 

record, the Commission shall charge the 

individual for the cost of making the 

copy. The fee that the Commission has 

established for making a copy is fifteen 

(15) cents per page. 

§ 9410.11 Penalties. 

Any person who makes a false 

statement in connection with any 

request for a record or an amendment or 

correction thereto under this part is 

subject to the penalties prescribed in 18 

U.S.C. 494 and 495 and 5 U.S.C. 552a 

(i)(3). 

Thomas R. Wilkey, 

Executive Director, U.S. Election Assistance 

Commission. 

[FR Doc. E8–21801 Filed 9–17–08; 8:45 am] 

BILLING CODE 6820–KF–P 


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