Presidential records: Denial of access; appeals extension,

[Federal Register: April 1, 2005 (Volume 70, Number 62)]

[Rules and Regulations]

[Page 16717]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr01ap05-6]

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1270

RIN 3095-AB40

Presidential Records Act Procedures

AGENCY: National Archives and Records Administration (NARA).

ACTION: Final rule.

SUMMARY: In response to a petition for rulemaking, NARA is amending our rules concerning Presidential records to lengthen the time from 10 working days to 35 calendar days to appeal denial of access. This proposed rule will affect the public.

DATES: Effective May 2, 2005.

FOR FURTHER INFORMATION CONTACT: Jennifer Davis Heaps at (301) 837- 1801.

SUPPLEMENTARY INFORMATION: The proposed rule was published in the October 1, 2004, Federal Register (69 FR 58875) for a 60-day public comment period. NARA notified several researcher organizations about the proposed rule. A copy of the proposed rule was also posted on the NARA Web site. NARA received three responses to the proposed rule from the public.

NARA proposed, in response to a petition for proposed rulemaking, to extend the timeframe in which a person may appeal the denial of a request for access to Presidential records made under the Presidential Records Act (PRA) (44 U.S.C. 2201-2207). Two public commenters agreed with the proposed regulation changes. One member of the public objected to NARA's proposed length of appeal time. The commenter said that a requester should be able to appeal NARA's letter of denial ``within 35 working days after the requester receives written notification,'' not ``within 35 calendar days of the date of NARA's denial letter'' as NARA proposed.

We did not adopt that recommendation. The commenter argued that the proposed length in timeframe was unfair because the delivery of NARA's denial letter could be considerably delayed. The commenter said that the appeal timeframe should continue to be based on when the requester receives the denial, not the date of NARA's denial letter.

NARA proposed the timeframe requested by the petitioners, which was based on the timeframe for appeals NARA permits under the provisions of the Freedom of Information Act (FOIA) (see 36 CFR 1250.72(a)) and the Privacy Act (PA) (see 36 CFR 1202.56(a)). The petition cited the following compelling reasons for requesting an extension to the length of time to file an appeal under the PRA:

NARA's longer appeal timeframes for FOIA and PA denials;

The disparity with the lengthy waits requesters have, only to learn of a denial of access; and,

Extenuating circumstances that make it difficult for requesters to appeal in 10 days after receipt of NARA's denial. Among the latter are requesters being on vacation, business trips, and academic absences like visiting professorships and sabbaticals.

The petitioners' request is based on well-recognized and widely accepted practices in implementing the FOIA. NARA believes that this rule will be of assistance to requesters of Presidential records.

This rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget (OMB). As required by the Regulatory Flexibility Act, it is hereby certified that this rule will not have a significant impact on a substantial number of small entities because this rule applies to the public. This rule does not have any federalism implications. This rule is not a major rule as defined in 5 U.S.C. Chapter 8, Congressional Review of Agency Rulemaking.

List of Subjects in 36 CFR Part 1270

Archives and records.

0 For the reasons set forth in the preamble, NARA amends part 1270 of title 36, Code of Federal Regulations, as follows:

PART 1270--PRESIDENTIAL RECORDS

0 1. The authority citation for part 1270 is revised to read as follows:

Authority: 44 U.S.C. 2201-2207.

0 2. Amend Sec. 1270.42 by revising paragraphs (a), (b), and (d) to read as follows:

Subpart D--Access to Presidential Records

Sec. 1270.42 Denial of access to public; right to appeal.

(a) Any person denied access to a Presidential record (hereinafter the requester) because of a determination that the record or a reasonable segregable portion of the record was properly restricted under 44 U.S.C. 2204(a), and not placed in the public domain by the former President or his agent, may file an administrative appeal with the appropriate Presidential library director at the address cited in part 1253 of this chapter.

(b) All appeals must be received by NARA within 35 calendar days of the date of NARA's denial letter. * * * * *

(d) Upon receipt of an appeal, the appropriate Presidential library director has 30 working days from the date an appeal is received to consider the appeal and respond in writing to the requester. The director's response must state whether or not the Presidential records requested are to be released and the basis for this determination. The director's decision to withhold release of Presidential records is final and not subject to judicial review.

Dated: March 25, 2005. Allen Weinstein, Archivist of the United States.

[FR Doc. 05-6410 Filed 3-31-05; 8:45 am]

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