Federal Register: April 4, 2002 (Volume 67, Number 65)
DOCID: FR Doc 02-7865
LIBRARY OF CONGRESS
Library of Congress
CFR Citation: 36 CFR Part 703
Docket ID: [Docket No. LOC 02-1]
NOTICE: RULES
DOCUMENT ACTION: Final regulation.
SUBJECT CATEGORY:
Disclosure or Production of Records or Information
EFFECTIVE DATES: April 4, 2002.
DOCUMENT SUMMARY:
The Library of Congress issues this final regulation to
include, in addition to information about public availability of
Library of Congress records, the information contained in new Library
of Congress Regulation 19174, Testimony by Employees and Production of
Documents in Certain Legal Proceedings Where the Library is Not a Party
(see 36 CFR 703.10 et seq.). This new regulation centralizes the
Library's determinations, to the greatest extent possible, concerning responses to subpoenas in matters where the Library
[[Page 16019]]
is not a party. Further it sets forth the standards by which the
Library will comply or not with such subpoenas and specifies the means
of serving those subpoenas. The regulation also gives due consideration
to the particular needs of the Congressional Research Service, the
Copyright Office, and the Law Library.
SUMMARY:
Disclosure or production of records or information,
SUPPLEMENTAL INFORMATION
This Regulation sets forth the policy and procedures of the Library of Congress regarding the testimony of employees and former employees concerning information acquired in the course of performing official duties or because of the employee's official relationship with the Library of Congress, as witnesses in legal proceedings and the production or disclosure of information contained in Library of Congress documents for use in legal proceedings where the Library is not a party, pursuant to a request, order, or subpoena (collectively referred to in this Regulation as a ``demand'').
A. This Regulation applies to:
(1) State court proceedings (including grand jury proceedings); (2) Federal court proceedings; and
(3) State and local legislative and administrative proceedings.
B. This Regulation does not apply to:
(1) Matters that are not related to the Library of Congress but relate solely to an employee's personal dealings;
(2) Congressional demands for testimony or documents;
(3) Any demand relating to activity within the scope of Title 17 of
the United States Code (the Copyright Act and related laws). These are
governed by Copyright Office regulations, which provide for different
procedures and for service on the General Counsel of the Copyright
Office. See 37 CFR 201.1, sec. 203, sec. 204, and sec. 205.
C. The purpose of this Regulation is to ensure that employees'
official time is used only for official purposes, to maintain the
impartiality of the Library of Congress among private litigants, to
ensure that public funds are not used for private purposes, to ensure
the protection of Congress' interests, and to establish centralized
procedures for deciding whether or not to approve testimony or the production of documents.
List of Subjects in 36 CFR part 703
Archives and records, Libraries.
Final Regulation
In consideration of the foregoing the Library of Congress revises 36 CFR part 703 as follows:
PART 703DISCLOSURE OR PRODUCTION OF RECORDS OR INFORMATION
Subpart AAvailability of Library of Congress Records
Sec.
703.1 Purpose and scope of this subpart.
703.2 Policy.
703.3 Administration responsibilities.
703.4 Definitions.
703.5 Records exempt from disclosure.
703.6 Procedures for access to and copying of records.
703.7 Public reading facility.
703.8 Fees and charges.
Appendix A to Subpart AFees and Charges for Services Provided to Requestors of Record
Subpart Btestimony by Employees and Production of Documents in Certain Legal Proceedings Where the Library Is Not a Party
703.15 Purpose and scope of this subpart.
703.16 Policy on presentation of testimony and production of documents.
703.17 Procedures when testimony and/or documents are demanded.
703.18 Procedures when an employee's appearance is demanded or documents are demanded.
703.19 Requests for authenticated copies of Library documents. 703.20 File copies.
703.21 Effect of this part.
703.22 Where to serve demands.
Authority: 2 U.S.C. 136.
Subpart AAvailability of Library of Congress Records
Sec. 703.1 Purpose and scope of this subpart.
(a) This subpart implements the policy of the Library with respect
to the public availability of Library of Congress records. Although the
Library is not subject to the Freedom of Information Act, as amended (5
U.S.C. 552), this subpart follows the spirit of that Act consistent
with the Library's duties, functions, and responsibilities to the
Congress. The application of that Act to the Library is not to be
inferred, nor should this subpart be considered as conferring on any
member of the public a right under that Act of access to or information
from the records of the Library. Nothing in this subpart modifies
current instructions and practices in the Library with respect to handling Congressional correspondence.
(b) The Copyright Office, although a service unit of the Library,
is by law (17 U.S.C. 701) subject to the provisions of the Freedom of
Information Act, as amended, only for purposes of actions taken under
the copyright law. The Copyright Office has published its own
regulation with respect to the general availability of information (see
37 CFR 201.2) and requests for copyright records made pursuant to the
Freedom of Information Act (see 37 CFR 203.1 et seq.) and the Privacy Act (see 37 CFR 204.1 et seq.).
Sec. 703.2 Policy.
(a) Subject to limitations set out in this part, Library of
Congress records shall be available as hereinafter provided and shall
be furnished as promptly as possible within the Library to any member
of the public at appropriate places and times and for an appropriate fee, if any.
(b) The Library shall not provide records from its files that
originate in another federal agency or nonfederal organization to
persons who may not be entitled to obtain the records from the
originator. In such instances, the Library shall refer requesters to the agency or organization that originated the records.
(c) In order to avoid disruption of work in progress, and in the
interests of fairness to those who might be adversely affected by the
release of information which has not been fully reviewed to assure its
accuracy and completeness, it is the policy of the Library not to
provide records which are part of ongoing reviews or other current
projects. In response to such requests, the Library will inform the
requester of the estimated completion date of the review or project so
that the requester may then ask for the records. At that time, the
Library may release the records unless the same are exempt from disclosure as identified in Sec. 703.5.
Sec. 703.3 Administration responsibilities.
The administration of this part shall be the responsibility of the
Chief, Office Systems Services (OSS), Library of Congress, 101
Independence Avenue, SE., Washington, DC 205409440, and to that end,
the Chief may promulgate such supplemental rules or guidelines as may be necessary.
Sec. 703.4 Definitions.
(a) Records includes all books, papers, maps, photographs, reports,
and other documentary materials, exclusive of materials in the
Library's collections, regardless of physical form or characteristics,
made or received and under the control of the Library in pursuance of
law or in connection with the transaction of public business, and
retained, or appropriate for retention, by the Library as evidence of
the organization, functions, policies, decisions, procedures, operations, or
[[Page 16020]]
other activities of the government or because of the informational
value of data contained therein. The term refers only to such items in
being and under the control of the Library. It does not include the
compiling or procuring of a record, nor does the term include objects
or articles, such as furniture, paintings, sculpture, threedimensional models, structures, vehicles, and equipment.
(b) Identifiable means a reasonably specific description of a
particular record sought, such as the date of the record, subject
matter, agency or person involved, etc. which will permit location or retrieval of the record.
(c) Records available to the public means records which may be
examined or copied or of which copies may be obtained, in accordance
with this part, by the public or representatives of the press regardless of interest and without specific justification.
(d) Disclose or disclosure means making available for examination or copying, or furnishing a copy.
(e) Person includes an individual, partnership, corporation,
association, or public or private organization other than a federal agency.
Sec. 703.5 Records exempt from disclosure.
(a) The public disclosure of Library records provided for by this
part does not apply to records, or any parts thereof, within any of the
categories set out below. Unless precluded by law, the Chief, OSS,
nevertheless may release records within these categories, except for
Congressional correspondence and other materials identified in
Sec. 703.5(b)(1), after first consulting with the General Counsel.
(b) Records exempt from disclosure under this part are the following:
(1) Congressional correspondence and other materials relating to
work performed in response to or in anticipation of Congressional
requests, unless authorized for release by officials of the Congress.
(2) Materials specifically authorized under criteria established by
Executive Order to be withheld from public disclosure in the interest
of national defense or foreign policy and that are properly classified pursuant to Executive Orders.
(3) Records related solely to the internal personnel rules and
practices of the Library. This category includes, in addition to
internal matters of personnel administration, internal rules and
practices which cannot be disclosed without prejudice to the effective
performance of a Library function, such as guidelines and procedures
used by auditors, investigators, or examiners in the Office of the Inspector General.
(4) Records 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.
(5) Records containing trade secrets and commercial or financial
information obtained from a person as privileged or confidential. This
exemption may include, but is not limited to, business sales
statistics, inventories, customer lists, scientific or manufacturing processes or development information.
(6) Personnel and medical files and similar files the disclosure of
which could constitute a clearly unwarranted invasion of personal
privacy. This exemption includes all private or personal information
contained in files compiled to evaluate candidates for security clearances.
(7) Materials and information contained in investigative or other records compiled for law enforcement purposes.
(8) Materials and information contained in files prepared in
connection with government litigation and adjudicative proceedings,
except for those portions of such files which are available by law to persons in litigation with the Library.
(9) Records having information contained in or related to
examination, operation, or condition reports prepared by, on behalf of,
or for the use of an agency responsible for the regulation or supervision of financial institutions.
(10) Interagency or intraagency memoranda, letters or other
materials that are part of the deliberative process, the premature
disclosure of which would inhibit internal communications or be
detrimental to a Library function (e.g., case files in the Manuscript Division).
(11) Records containing information customarily subject to
protection as privileged in a court or other proceedings such as
information protected by the doctorpatient, attorney work product, or attorneyclient privilege.
(12) Information submitted by a person to the Library in confidence
or which the Library has obligated itself not to disclose such as
information received by the Office of the Inspector General through its hotline.
(13) Materials related to specific patron use of the Library's
collections, resources, or facilities either on site or off site. This exemption includes:
(i) Reader Records. Library records which identify readers by name,
such as registration records, reading room logs or registers, telephone
inquiry logs, and charge slips, if retained for administrative purposes.
(ii) Use Records. Users of the Library are entitled to privacy with
respect to their presence and use of the Library's facilities and
resources. Records pertaining to the use of the Library and of Library
collections and subjects of inquiry are confidential and are not to be
disclosed either to other readers, to members of the staff who are not
authorized, or to other inquirers including officials of law
enforcement, intelligence, or investigative agencies, except pursuant
to court order or administratively by order of the Librarian of Congress.
(c) Any reasonably segregable portion of a record shall be provided
to anyone requesting such records after deletion of the portions which
are exempt under this section. A portion of a record shall be
considered reasonably segregable when segregation can produce an
intelligible record which is not distorted out of context, does not
contradict the record being withheld, and can reasonably provide all relevant information.
Sec. 703.6 Procedure for access to and copying of records.
(a) A request to inspect or obtain a copy of an identifiable record
of the Library of Congress shall be submitted in writing to the Chief,
OSS, Library of Congress, 101 Independence Avenue, SE., Washington, DC
205409440, who shall promptly record and process the request.
(b) Requests for records shall be specific and shall identify the
precise records or materials that are desired by name, date, number, or
other identifying data sufficient to allow the OSS staff to locate,
retrieve, and prepare the record for inspection or copying and to
delete exempted matter where appropriate to do so. Blanket or
generalized requests (such as ``all matters relating to'' a general
subject) shall not be honored and shall be returned to the requester.
(c) Records shall be available for inspection and copying in person during business hours.
(d) Records in media other than print (e.g., microforms and
machinereadable media) shall be available for inspection in the medium
in which they exist. Copies of records in machinereadable media shall be made in media determined by the Chief, OSS.
[[Page 16021]]
(e) Library staff shall respond to requests with reasonable
dispatch. Use of a record by the Library or Library employees, however,
shall take precedence over any request. Under no circumstances shall
official records be removed from Library control without the written authorization of the Librarian.
(f) The Chief, OSS, shall make the initial determination on whether:
(1) The record described in a request can be identified and located pursuant to a reasonable search, and
(2) The record (or portions thereof) may be made available or
withheld from disclosure under the provisions of this part. In making
the initial determinations, the Chief shall consult with any unit in
the Library having a continuing substantial interest in the record
requested. Where the Chief finds no valid objection or doubt as to the
propriety of making the requested record available, the Chief shall
honor the request upon payment of prescribed fees, if any are required by Sec. 703.8.
(g) If the Chief, OSS, determines that a requested record should be
withheld, the Chief shall inform the requester in writing that the
request has been denied; shall identify the material withheld; and
shall explain the basis for the denial. The Chief shall inform the
requester that further consideration of the denied request may be
obtained by a letter to the General Counsel setting out the basis for the belief that the denial of the request was unwarranted.
(h) The General Counsel shall make the final determination on any
request for reconsideration and shall notify the requester in writing
of that determination. The decision of the General Counsel shall be the final administrative review within the Library.
(1) If the General Counsel's decision reverses in whole or in part
the initial determination by the Chief, OSS, the Chief shall make the
requested record, or parts thereof, available to the requester, subject to the provisions of Sec. 703.8.
(2) If the General Counsel's decision sustains in whole or in part
the initial determination by the Chief, OSS, the General Counsel shall
explain the basis on which the record, or portions thereof, will not be made available.
Sec. 703.7 Public Reading Facility.
(a) The Chief, OSS, shall maintain a reading facility for the
public inspection and copying of Library records. This facility shall
be open to the public from 8:30 a.m. to 4:30 p.m., except Saturdays,
Sundays, holidays, and such other times as the Library shall be closed to the public.
(b) The General Counsel shall advise the Chief, OSS, of the records
to be available in the public reading facility following consultation with the Library managers who may be concerned.
Sec. 703.8 Fees and charges.
(a) The Library will charge no fees for:
(1) Access to or copies of records under the provisions of this
part when the direct search and reproduction costs are less than $10.
(2) Records requested which are not found or which are determined to be exempt under the provisions of this part.
(3) Staff time spent in resolving any legal or policy questions pertaining to a request.
(4) Copies of records, including those certified as true copies,
that are furnished for official use to any officer or employee of the federal government.
(5) Copies of pertinent records furnished to a party having a
direct and immediate interest in a matter pending before the Library,
when furnishing such copies is necessary or desirable to the performance of a Library function.
(b) When the costs for services are $10 or more, the Chief, OSS,
shall assess and collect the fees and charges set out in appendix A to
this part for the direct costs of search and reproduction of records available to the public.
(c) The Chief, OSS, is authorized to waive fees and charges, in
whole or in part, where it is determined that the public interest is
best served to do so, because waiver 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. Persons seeking a waiver or reduction of fees may be
required to submit a written statement setting forth the intended
purpose for which the records are requested or otherwise indicate how
disclosure will primarily benefit the public and, in appropriate cases, explain why the volume of records requested is necessary.
Determinations made pursuant to the authority set out herein are solely within the discretion of the Chief, OSS.
(d) Fees and charges for services identified in the appendix to
this part shall be paid in full by the requester before the records are
delivered. Payment shall be made in U.S. funds by personal check, money
order, or bank draft made payable to the Library of Congress. The
Chief, OSS, shall remit all fees collected to the Director, Financial
Services, who shall cause the same to be credited to appropriate
accounts or deposited with the U.S. Treasury as miscellaneous receipts.
(e) The Chief, OSS, shall notify a requester and may require an
advance deposit where the anticipated fees will exceed $50.
Appendix A to Part 703Fees and Charges for Services Provided to Requesters of Records
(a) Searches.
(1) There is no charge for searches of less than one hour.
(2) Fees charged for searches of one hour or more are based on prevailing rates. Currently, those charges are:
(i) Personnel searches (clerical): $15 per hour.
(ii) Personnel searches (professional): $25 per hour.
(iii) Reproduction costs: $.50 per page.
(iv) Shipping and mailing fees: variable.
(3) In situations involving the use of computers to locate and
extract the requested information, charges will be based on the direct
cost to the Library, including labor, material, and computer time.
(b) Duplication of Records. Fees charged for the duplication of
records shall be according to the prevailing rates established by the
Library's Photoduplication Service, or in the case of machine media
duplication, by the Resources Management Staff, Information Technology Services.
(c) Certifications. The fee charges for certification of a record
as authentic or a true copy shall be $10.00 for each certificate.
(d) Other Charges. When no specific fee has been established for a
service required to meet the request for records, the Chief, OSS, shall
establish an appropriate fee based on direct costs in accordance with the Office of Management and Budget Circular No. A25.
Subpart BTestimony by Employees and Production of Documents in Certain Legal Proceedings Where the Library Is Not a Party
Sec. 703.15 Purpose and scope of this subpart.
This subpart sets forth the policy and procedures of the Library of
Congress regarding, first, the testimony, as witnesses in legal
proceedings where the Library is not a party, of employees and former
employees concerning information acquired in the course of performing
official duties or because of the employee's official relationship with
the Library of Congress, and second, the production or disclosure of information
[[Page 16022]]
contained in Library of Congress documents for use in legal proceedings
where the Library is not a party, pursuant to a request, order, or
subpoena (collectively referred to in this subpart as a ``demand''). (a) This subpart applies to:
(1) State court proceedings (including grand jury proceedings); (2) Federal court proceedings; and
(3) State and local legislative and administrative proceedings. (b) This subpart does not apply to:
(1) Matters that are not related to the Library of Congress but relate solely to an employee's personal dealings;
(2) Congressional demands for testimony or documents;
(3) Any demand relating to activity within the scope of Title 17 of
the United States Code (the Copyright Act and related laws). These are
governed by Copyright Office regulations, which provide for different
procedures and for service on the General Counsel of the Copyright
Office. See 37 CFR 201.1, sec. 203, sec. 204, and sec. 205.
(c) The purpose of this subpart is to ensure that employees'
official time is used only for official purposes, to maintain the
impartiality of the Library of Congress among private litigants, to
ensure that public funds are not used for private purposes, to ensure
the protection of Congress' interests, and to establish centralized
procedures for deciding whether or not to approve testimony or the production of documents.
Sec. 703.16 Policy on presentation of testimony and production of documents.
No Library of Congress employee may provide testimony or produce
documents in any proceeding to which this part applies concerning
information acquired in the course of performing official duties or
because of the employee's official relationship with the Library of
Congress, unless authorized by the General Counsel or his/her designee,
or the Director of the Congressional Research Service (CRS) with
respect to records and testimony relating to CRS's work for Congress,
or the Law Librarian for records and testimony relating to the Law
Library's work for Congress or materials prepared for other federal
agencies covered by evidentiary privileges. The aforementioned
officials (hereinafter ``deciding officials'') will consider and act
upon demands under this part with due regard for the interests of
Congress, where appropriate, statutory requirements, the Library's
interests, and the public interest, taking into account factors such as
applicable privileges and immunities, including the deliberative
process privilege and the speech or debate clause, the need to conserve
the time of employees for conducting official business, the need to
avoid spending the time and money of the United States for private
purposes, the need to maintain impartiality among private litigants in
cases where a substantial government interest is not involved, the
established legal standards for determining whether or not
justification exists for the disclosure of confidential information and
records, and any other purpose that the deciding official deems to be in the interest of Congress or the Library of Congress.
Sec. 703.17 Procedures when testimony and/or documents are demanded.
A demand for testimony and/or documents by a Library employee must
be in writing, must state the nature of the requested testimony and/or
specify documents, and must meet the requirements of Sec. 703.15. A
demand must also show that the desired testimony or document is not
reasonably available from any other source and must show that no
document could be provided and used in lieu of testimony. When an
employee of the Library receives such a request the employee will
immediately forward it, with the recommendation of the employee's
supervisors, to the appropriate deciding official under Sec. 703.22 of
this part. The deciding official, in consultation with the appropriate
offices of the Library or congressional offices, will determine whether
or not compliance with the request would be appropriate and will respond as soon as practicable.
Sec. 703.18 Procedures when an employee's appearance is demanded or documents are demanded.
(a) If the deciding official has not acted by the return date on a
subpoena, the employee must appear at the stated time and place (unless
advised by the deciding official that the subpoena was not validly
issued or served or that the subpoena has been withdrawn) and inform
the court (or other interested parties) that the demand has been or is
being, as the case may be, referred for the prompt consideration of the
appropriate Library or congressional officials and shall respectfully
request the court (or other authority) to stay the demand pending receipt of the requested instructions.
(b) If the deciding official has denied approval to comply with the
subpoena, and the court or authority rules that the demand must be
complied with irrespective of such a denial, the employee upon whom
such a demand has been made shall produce a copy of this Part and shall
respectfully refuse to provide any testimony or produce any documents. United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
(c) The deciding official, as appropriate, will request the
assistance of the Department of Justice or the U.S. Attorney's Office
or congressional officials where necessary to represent the interests
of the Library, the Congress, and the employee in any of the foregoing proceedings.
Sec. 703.19 Requests for authenticated copies of library documents.
Requests for authenticated copies of Library documents for purposes of admissibility under 28 U.S.C. 1733 and Rule 44 of the Federal Rules of Civil Procedure will be granted for documents that would otherwise be released pursuant to the Library's Regulations governing the release of information. The advice of the appropriate deciding official should be obtained concerning the proper form of authentication and information as to the proper person having custody of the record. Sec. 703.20 File copies.
The Office of the General Counsel will maintain the official file of copies of all demands served on the Library and deciding officials' responses.
Sec. 703.21 Effect of this part.
This part is intended only to provide guidance for the internal
operations of the Library of Congress and is not intended to, and does
not, and may not, be relied upon to create any right or benefit,
substantive or procedural, enforceable at law by a party against the Library of Congress or the United States.
Sec. 703.22 Where to serve demands.
Requesting parties must serve subpoenas:
(a) For Congressional Research Service matters: Director,
Congressional Research Service, LM 203, Library of Congress, Washington, DC 20540.
(b) For Law Library matters: Law Librarian, LM 240, Library of Congress, Washington, DC 20540.
(c) For all other matters: General Counsel, LM 601, Library of Congress, Washington, DC 20540.
Dated: March 11, 2002.
James H. Billington,
The Librarian of Congress.
[FR Doc. 027865 Filed 4302; 8:45 am]
BILLING CODE 141004P
FOR FURTHER INFORMATION CONTACT
Elizabeth A. Pugh, General Counsel, Office of the General Counsel, Library of Congress, Washington, DC 205401050. Telephone No. (202) 7076316.