Daily Rules, Proposed Rules, and Notices of the Federal Government
The proposed rule updates the Commission's FOIA regulations to reflect current Commission practice in responding to FOIA requests as reflected in the OPEN Government Act and the E-FOIA Act, and the Commission's transfer of FOIA responsibilities from its Regional Attorneys to its District Directors. The proposed rule also consolidates Commission public reading rooms in offices where there are adequate FOIA personnel and streamlines the Commission's FOIA regulations by removing excess verbiage.
The OPEN Government Act, Public Law 110-175, 121 Stat. 2524, was enacted into law on December 31, 2007 to make it easier for a requester to access agency records, and to require agencies to be more responsive, transparent, and accountable to the public in responding to FOIA requests. The Act addresses many aspects of agency FOIA administration, including:
• Time limits for agencies to act on FOIA requests;
• Recovery of attorney's fees and litigation costs in FOIA-related lawsuits;
• Disciplinary actions for arbitrary and capricious rejection of FOIA requests;
• Use of individualized identification numbers to track FOIA requests;
• Proper fee charges for FOIA requests from news media;
• Enhanced requirements for agencies' annual FOIA reports to Congress;
• Appointment of a Chief FOIA Officer in an agency;
• Appointment of a FOIA Public Liaison in an agency;
• Disclosure of records maintained for an agency by a private entity pursuant to a records management contract; and
• A new requirement that the amount of material deleted from a document produced pursuant to FOIA must be specifically identified at the site of the deletion, together with the exemption authorizing that deletion.
To conform the Commission's FOIA regulations to the requirements of the Act, the proposed rule revises the following sections of 29 CFR part 1610:
The Electronic FOIA Act of 1996 (E-FOIA) specifies that, after November 1996, information made available to the public for inspection and copying pursuant to FOIA must also be made available in electronic format. To coordinate the Commission's FOIA regulations with the E-FOIA, the proposed rule revises §§ 1610.18 and 1610.21 to state that the information identified therein shall be available in electronic as well as paper form. The E-FOIA Act also allows an agency to adopt a multi-track system for processing FOIA requests. EEOC therefore proposes to revise § 1610.9(a) in order to implement a multi-track system.
The Commission transferred FOIA responsibility from EEOC Regional Attorneys to EEOC District Directors in 2007. To coordinate the Commission's FOIA regulations with the EEOC's current delegation of responsibility for FOIA processing as reflected in EEOC Order 150.001, the proposed rule revises
In order to consolidate the Commission's public reading area functions in offices with adequate personnel to service the public, the proposed rule revises § 1610.04 by requiring the Commission's Headquarters library and District Offices to maintain public reading areas.
The Commission also wishes to update and clarify its FOIA regulations. To accomplish these goals, the proposed rule removes or revises the following sections of 29 CFR part 1610:
The proposed rule has been drafted and reviewed in accordance with Executive Order 12866, 58 FR 51735 (Sept. 30, 2003), section 1(b), Principles of Regulation, and Executive Order 13563, 76 FR 3821 (January 1, 2011), Improving Regulation and Regulatory Review. The rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866.
The proposed rule contains no new information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The Commission certifies under 5 U.S.C. 605(b) that the proposed rule will not have a significant economic impact on a substantial number of small entities because the proposed revisions do not impose any burdens upon FOIA requestors, including those that might be small entities. Therefore, a regulatory flexibility analysis is not required by the Regulatory Flexibility Act.
The proposed rule will not result in the expenditure by State, local, or tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Freedom of information.
For the Commission.
Accordingly, part 1610 is proposed to be amended as follows:
1. The authority citation for 29 CFR part 1610 continues to read as follows:
42 U.S.C. 2000e-12(a), 5 U.S.C. 552 as amended by Pub. L. 93-502, Pub. L. 99-570, and Pub. L. 105-231; for § 1610.15, non-search or copy portions are issued under 31 U.S.C. 9701.
2. Amend § 1610.1 by adding new paragraphs (j), (k), and (l) to read as follows:
3. Revise § 1610.4 to read as follows:
(a) The Commission will maintain in a public reading area located in the Commission's library at 131 M Street NE., Washington, DC 20507, the materials which are required by 5 U.S.C. 552(a)(2) and 552(a)(5) to be made available for public inspection and copying. Any such materials created on or after November 1, 1996 may also be accessed through the Internet at
(b) The Commission offices designated in § 1610.4(c) shall maintain and make available for public inspection and copying a copy of:
(1) The Commission's notices and regulatory amendments which are not yet published in the Code of Federal Regulations;
(2) The Commission's annual reports;
(3) The Commission's Compliance Manual;
(4) Blank forms relating to the Commission's procedures as they affect the public;
(5) The Commission's Orders (agency directives);
(6) “CCH Equal Employment Opportunity Commission Decisions” (1973 and 1983); and
(7) Commission awarded contracts.
(c) The Commission's District Offices with public reading areas are:
4. Amend § 1610.5 by revising paragraph (a), redesignating paragraphs (b) and (c) as (d) and (e), and adding new paragraphs (b) and (c) to read as follows:
(a) A written request for inspection or copying of a record of the Commission may be presented in person, or by mail, or by fax, or by email, or through
(b) A request must be clearly and prominently identified as a request for information under the “Freedom of Information Act.” If submitted by mail, or otherwise submitted under any cover, the envelope or other cover must be similarly identified.
(c) A respondent must always provide a copy of the “Filed” stamped court complaint when requesting a copy of a charge file. The charging party must provide a copy of the “Filed” stamped court complaint when requesting a copy of the charge file if the Notice of Right to Sue has expired.
5. Revise § 1610.6 to read as follows:
Requests for records that originated in another Agency and are in the custody of the Commission will be referred to that Agency and the person submitting the request shall be so notified. The decision made by that Agency with respect to such records will be honored by the Commission.
6. Amend § 1610.7 by revising the introductory sentence of paragraph (a), revising paragraphs (b) and (c), and removing paragraphs (d) and (e) to read as follows:
(a) Requests for the following types of records shall be submitted to the District Director for the pertinent district, field, area, or local office, at the district office address listed in § 1610.4(c) or, in the case of the Washington Field Office, shall be submitted to the Field Office Director at 131 M Street NE., Fourth Floor, Washington, DC 20507.
(1) * * *
(b) A request for any record which does not fall within the ambit of subparagraph (a) of this section, or a request for any record the location of which is unknown to the person making the request, shall be submitted in writing to the Assistant Legal Counsel, FOIA Programs, U.S. Equal Employment Opportunity Commission, by mail to 131 M Street NE., Suite 5NW02E, Washington, DC 20507, or by fax to (202) 663-4679, or by email to
(c) Any Commission officer or employee who receives a written Freedom of Information Act request shall promptly forward it to the appropriate official specified in paragraph (a) or (b) of this section. Any Commission officer or employee who receives an oral request under the Freedom of Information Act shall inform the person making the request that it must be in writing and also inform such person of the provisions of this subpart.
7. Revise § 1610.8 to read as follows:
The Assistant Legal Counsel, FOIA Programs, the District Director, or the District Director's designee, when receiving a request pursuant to these regulations, shall grant or deny such request. That decision shall be final, subject only to administrative review as provided in§ 1610.11 of this subpart.
8. Amend § 1610.9 by redesignating paragraphs (a) through (c) as paragraphs (d) through (f), adding new paragraphs (a), (b), (c), and (g), and revising newly redesignated paragraphs (d) through (f) to read as follows:
(a) The EEOC utilizes a multi track system for responding to FOIA requests. After review, a FOIA request is placed on one of three tracks: the simple track, the complex track, or the expedited track. A FOIA request is assigned to the simple track if it will be processed in fewer than 10 business days. A FOIA request requiring more than 10 business days to process will be assigned to the complex track. A FOIA request which has been granted expedited processing will be assigned to the expedited track.
(b) The Assistant Legal Counsel, FOIA Programs, the District Director, or the District Director's designee shall, within 10 days from receipt of a request, notify the requester in writing of the date EEOC received the request, the expected date of issuance of the determination, the individualized FOIA tracking number assigned to the request, and the telephone number or Internet site where requesters may inquire about the status of their request.
(c) If a FOIA request is submitted to the incorrect EEOC-FOIA office, that office shall forward the misdirected request to the appropriate EEOC-FOIA
(d) Within 20 business days after receipt of the request, the Assistant Legal Counsel, FOIA Programs, the District Director, or the District Director's designee shall either grant or deny the request for agency records, unless additional time is required for one of the following reasons:
(1) It is necessary to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
(2) It is necessary to search for, collect, and appropriately examine a voluminous number of separate and distinct records which are demanded in a single request; or
(3) It is necessary to consult with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial interest therein.
(e) When additional time is required for one of the reasons stated in paragraph (d) of this Section, the Assistant Legal Counsel, FOIA Programs, District Director, or the District Director's designee shall, within the statutory 20 business day period, issue to the requester a brief written statement of the reason for the delay and an indication of the date on which it is expected that a determination as to disclosure will be forthcoming. If more than 10 additional business days are needed, the requester shall be notified and provided an opportunity to limit the scope of the request or to arrange for an alternate time frame for processing the request.
(f)(1) A request for records may be eligible for expedited processing if the requester demonstrates a compelling need. For the purposes of this section, compelling need means:
(i) That the failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(ii) That the requester is a representative of the news media as described in § 1610.1(l) and there is an urgency to inform the public concerning actual or alleged Federal government activity.
(2) A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. A determination on the request for expedited processing will be made and the requester notified within 10 calendar days. The Legal Counsel or designee, or the Assistant Legal Counsel, FOIA Programs, as appropriate, shall promptly respond to any appeal of the denial of a request for expedited processing.
(g) The Commission may toll the statutory time period to issue its determination on a FOIA request one time during the processing of the request to obtain clarification from the requester. The statutory time period to issue the determination on disclosure is tolled until EEOC receives the information reasonably requested from the requester. The agency may also toll the statutory time period to issue the determination to clarify with the requester issues regarding fees. There is no limit on the number of times the agency may request clarifying fee information from the requester.
9. Amend § 1610.10 by revising paragraphs (b) and (c) to read as follows:
(b) A reply either granting or denying a written request for a record shall be in writing, signed by the Assistant Legal Counsel, FOIA Programs, the District Director, or the District Director's designee, and shall include:
(1) His or her name and title;
(2) A reference to the specific exemption under the Freedom of Information Act authorizing the withholding of the record and a brief explanation of how the exemption applies to the record withheld, or a statement that, after diligent effort, the requested records have not been found or have not been adequately examined during the time allowed under § 1610.9 (d), and that the denial will be reconsidered as soon as the search or examination is complete; and
(3) A written statement that the denial may be appealed to the Legal Counsel, or Assistant Legal Counsel, FOIA Programs, as appropriate, within 30 calendar days of receipt of the denial or partial denial.
(c) When a request for records is denied, the Commission shall provide to the requester a written statement identifying the estimated volume of denied material unless providing such estimate would harm an interest protected by the exemptions in 5 U.S.C. 522(b). When a reasonably segregable portion of a record is provided, the amount of information deleted from the released portion and, to the extent technically feasible, the place in the record where such deletion was made, and the exemption upon which the deletion was based, shall be indicated on the record provided to the requester.
10. Revise § 1610.11 to read as follows:
(a) When the Assistant Legal Counsel, FOIA Programs, the District Director, or the District Director's designee has denied a request for records in whole or in part, the requester may appeal within 30 calendar days of receipt of the determination letter. The appeal must be in writing addressed to the Legal Counsel, or the Assistant Legal Counsel, FOIA Programs, as appropriate, Equal Employment Opportunity Commission, 131 M Street NE., Suite 5NW02E, Washington, DC 20507, and clearly labeled as a “Freedom of Information Act Appeal.” Any appeal of a determination issued by a District Director or the District Director's designee must include a copy of the District Director's or the District Director's designee's determination. If a FOIA appeal is misdirected to a District Office, the District Office shall forward the appeal to the Legal Counsel, or the Assistant Legal Counsel, FOIA Programs, as appropriate, within 10 business days.
(b) The Legal Counsel or designee, or the Assistant Legal Counsel, FOIA Programs, as appropriate, shall act upon the appeal within 20 business days of its receipt, and more rapidly if practicable. If the decision is in favor of the person making the request, the decision shall order that records be promptly made available to the person making the request. The Legal Counsel or designee, or the Assistant Legal Counsel, FOIA Programs, as appropriate, may extend the 20 business day period in which to render a decision on an appeal for that period of time which could have been claimed and used by the Assistant Legal Counsel, FOIA Programs, the District Director, or the District Director's designee under § 1610.9, but which was not in fact used in making the original determination.
(c) The decision on appeal shall be in writing and signed by the Legal Counsel or designee, or the Assistant Legal Counsel, FOIA Programs, as appropriate. A denial in whole or in part of a request on appeal shall set forth the exemption relied on, a brief
(d) No personal appearance, oral argument or hearing will ordinarily be permitted in connection with an appeal to the Legal Counsel or the Assistant Legal Counsel, FOIA Programs.
(e) On appeal, the Legal Counsel or designee, or the Assistant Legal Counsel, FOIA Programs, as appropriate, may reduce any fees previously assessed.
(f) In the event that the Commission terminates its proceedings on a charge after the District Director or the District Director's designee denies a request, in whole or in part, for the charge file but during consideration of the requester's appeal from that denial, the request may be remanded for redetermination. The requester retains a right to appeal to the Assistant Legal Counsel, FOIA Programs, from the decision on remand.
11. Revise § 1610.13 to read as follows:
The Legal Counsel or designee, the Assistant Legal Counsel, FOIA Programs, and the District Directors or designees shall maintain files containing all material required to be retained by or furnished to them under this subpart. The material shall be filed by individual request.
12. Amend § 1610.14 by revising paragraph (a) to read as follows:
(a) Except as provided in paragraph (b) of this section, the Legal Counsel or designee, the Assistant Legal Counsel, FOIA Programs, and the District Directors or designees shall assess fees where applicable in accordance with § 1610.15 for search, review, and duplication of records requested. They shall also have authority to furnish documents without any charge or at a reduced charge if disclosure of the 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.
13. Amend § 1610.15 by adding paragraph (g) to read as follows:
(g) A search fee will not be charged to requesters specified in paragraphs (a)(1) and (a)(3) of this section, and a duplication fee will not be charged to requesters specified in paragraph (a)(2) of this section, if the Commission issues an untimely determination and the untimeliness is not due to unusual or exceptional circumstances.
14. Amend § 1610.18 by revising the introductory text and adding paragraph (h) to read as follows:
The Commission will provide the following information to the public. This information will also be made available electronically:
(h) Underlying annual FOIA report data.
15. Amend § 1610.19 by removing paragraph (b)(2), redesignating paragraph (b)(3) as paragraph (b)(2), and removing the word “working” wherever it appears in paragraphs (d) and (e) and add in its place the word “business.”
16. Remove and reserve § 1610.20.
17. Revise § 1610.21 to read as follows:
The Legal Counsel shall, on or before February 1, submit individual Freedom of Information Act reports for each principal agency FOIA component and one for the entire agency covering the preceding fiscal year to the Attorney General of the United States. The reports shall include those matters required by 5 U.S.C. 552(e), and shall be made available electronically on the agency Web site.