Availability of Information Under the Freedom of Information Act: Interim Final Rule

Summary

The Office of the Comptroller of the Currency (OCC) has published an interim final rule with request for comment to amend its regulations governing the disclosure of information pursuant to requests made under the Freedom of Information Act (FOIA). The amendments to the FOIA regulations reflect changes to the FOIA made by the FOIA Improvement Act of 2016 and the OPEN FOIA Act of 2009. The interim final rule also makes other technical changes to update the OCC’s FOIA regulations.

Highlights

Among other changes, the interim final rule:

• Grants additional time for requesters to appeal denials, provides requesters with access to dispute resolution services, updates the types of circumstances in which the OCC may assess search or duplication fees, amends the OCC’s rules for processing requests in unusual circumstances, and provides additional information about the OCC’s information segregation procedures.
• Amends OCC standards regarding the public inspection of documents, including a change specifying that the OCC generally will make records that have been requested at least three times available for public inspection in an electronic format.
• Amends 12 CFR 4.12(a) to state that the OCC will withhold information pursuant to a FOIA exemption only if the OCC reasonably foresees that disclosure would harm an interest protected by an exemption or if the disclosure is prohibited by law.
• Modifies 12 CFR 4.12(b)(5) to limit the deliberative process exemption to records created within 25 years of the request date. The deliberative process exemption protects intra-agency and interagency memoranda and letters not routinely available by law to a private party in litigation.
• Amends 12 CFR 4.14(a)(12) to require the OCC to provide reference materials or a guide for requesting records or information from the OCC.
• Updates 12 CFR 4, subpart B, to reflect the responsibilities of the OCC’s FOIA Public Liaison and Chief FOIA Officer, provide current OCC contact information, make certain types of information electronically available, and make additional technical and clarifying changes.

Background

The FOIA sets forth the process for obtaining federal agency records, unless the records are protected from disclosure by one of the FOIA's nine exemptions or by one of its three special law enforcement record exclusions. On June 30, 2016, the FOIA Improvement Act amended the FOIA to, among other changes, require federal agencies to make certain records electronically available, extend the time available for a requester to appeal an adverse determination, amend the circumstances under which an agency can assess search and duplication fees, require agencies to establish FOIA dispute resolution procedures, and create a new standard for the withholding of information pursuant to a FOIA exemption. The interim final rule implements these changes.

The interim final rule also amends 12 CFR 4.12(b)(3) to reflect the OPEN FOIA Act of 2009 provision requiring that statutes enacted after the date of the enactment of the OPEN FOIA Act must specifically cite Exemption 3 of the FOIA in order to qualify under Exemption 3, which applies to information specifically exempted from disclosure by statute.

Finally, the interim final rule incorporates certain technical changes originally proposed as part of the OCC’s review pursuant to section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996.

Further Information

Please contact Melissa Lisenbee, Attorney, Legislative and Regulatory Activities Division, at (202) 649-5490.

Amy S. Friend
Senior Deputy Comptroller and Chief Counsel

Related Link

• “Availability of Information Under the Freedom of Information Act: Interim Final Rule”