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Disclosure or Production of Records or Information

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AGENCY:

Library of Congress.

ACTION:

Final regulation.

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 1917-4, 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 Start Printed Page 16019is 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.

EFFECTIVE DATE:

April 4, 2002.

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FOR FURTHER INFORMATION CONTACT:

Elizabeth A. Pugh, General Counsel, Office of the General Counsel, Library of Congress, Washington, DC 20540-1050. Telephone No. (202) 707-6316.

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SUPPLEMENTARY 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.

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List of Subjects in 36 CFR part 703

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Final Regulation

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In consideration of the foregoing the Library of Congress revises

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PART 703—DISCLOSURE OR PRODUCTION OF RECORDS OR INFORMATION

Subpart A—Availability of Library of Congress Records
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 A—Fees and Charges for Services Provided to Requestors of Record Subpart B—testimony 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.
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Authority: 2 U.S.C. 136.

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Subpart A—Availability of Library of Congress Records

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.).

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 non-federal 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 on-going 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 § 703.5.

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 20540-9440, and to that end, the Chief may promulgate such supplemental rules or guidelines as may be necessary.

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 Start Printed Page 16020other 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, three-dimensional 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.

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 § 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) Inter-agency or intra-agency 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 doctor-patient, attorney work product, or attorney-client 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.

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 20540-9440, 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 machine-readable media) shall be available for inspection in the medium in which they exist. Copies of records in machine-readable media shall be made in media determined by the Chief, OSS. Start Printed 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 § 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 § 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.

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.

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 703—Fees 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. A-25.

Subpart B—Testimony by Employees and Production of Documents in Certain Legal Proceedings Where the Library Is Not a Party

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 Start Printed Page 16022contained 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.

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.

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 § 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 § 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.

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.

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.

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.

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.

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.

Start Signature

Dated: March 11, 2002.

James H. Billington,

The Librarian of Congress.

End Signature End Supplemental Information

[FR Doc. 02-7865 Filed 4-3-02; 8:45 am]

BILLING CODE 1410-04-P