[ Reply ]
From: Todd Espinosa/Jim Grow
email: mailto:tespinosa@nhlp.org
link: http://
date: 9/7/0 21:03
Date: 12/21/00
Time: 12:13:33 PM
Remote Name: 207.251.188.199
by overnight mail
September 7, 2000
Office of the General Counsel Rules Docket Clerk Room 10276 U.S. Department of Housing and Urban Development 451 Seventh Street, SW Washington, DC 20410-0500
Re: Docket No. FR-4292-P-01: Revision of Freedom of Information Act Regulations
To the U.S. Department of Housing and Urban Development:
These comments on HUD's proposed Freedom of Information regulations are submitted on behalf of the Greater Upstate Law Project of New York, HOME Line of Minnesota, Legal Aid Services of Oregon, the Legal Aid Society of Minneapolis, the National Housing Law Project, and the Public Justice Center of Maryland. Each of these are legal advocacy organizations representing low-income families throughout the country with a longstanding commitment to strengthening the access to and availability of affordable housing. Greater Boston Legal Services also joins in these comments on behalf of its clients residing in federally assisted low-income housing.
Summary
We commend HUD for its continued commitment to openness in government as represented in the proposed revisions to its Freedom of Information regulations. In particular, we commend HUD for its thoughtful and effective use of technology to publish information to the citizenry, now and in the past.
In our view, HUD's promulgation of regulations to implement the statutory amendments of the Electronic Freedom of Information Act Amendments of 1996 is an excellent opportunity for the Department to build on its previous successes, such as its www.hud.gov, www.huduser.org, www.hudclips.org websites and its on-line related information systems, like the Multifamily Tenant Characteristics System.
In an effort to assist HUD in achieving the full potential posed by the opportunity to revise the Freedom of Information regulations and in fully meeting its obligations under the authorizing statutes, we have formulated a number of recommendations. Specifically, HUD should:
· encourage requests for information in electronic formats in its assessment of fees and tracking assignments for greater administrative convenience and to guarantee compliance with the 1996 legislation;
· further encourage requests for information in electronic formats by creating a third track for the processing of requests for information in electronic formats when such information is maintained electronically;
· continue to provide and publish information to the public without FOIA requests to further the goals of the Administration and to comply with statutory obligations;
· provide detailed information on the location of on-line records and indices to ensure compliance with statutory obligations and further the purposes of the amended act;
· use statutorily required indices to specify whether requests for certain types of information should be send to headquarters or a field office to minimize the delays and inconvenience of misdirected requests;
· foster communication between the different subdivisions among HUD to allow for efficient processing of FOIA requests;
· clarify the deadlines involved in responding to FOIA requests, sending information, and billing to ensure compliance with statutory obligations and to further the goals of the FOIA;
· clarify the definition of "compelling need" for expedited processing in circumstances involving expiring use and expiring Section 8 subsidy contract buildings to protect the due process rights of residents;
· restore the description of FOIA exemptions appearing in the existing regulations and clarify provisions as to the availability of Form HUD-92410 and similar records to ensure compliance with the FOIA and other statutory authorities and to advance the purposes of openness in government; and
· provide for the mandatory waiver or reduction of fees for requests made in the public interest and not primarily for commercial purposes so as to encourage such requests and to bring the regulations into compliance with the provisions of the statute.
I. Encourage Requests for Information in Electronic Formats in Billing and Tracking Decisions
In his statements made when signing the Electronic Freedom of Information Act Amendments of 1996 into law, President Clinton explained that since the enactment of the FOIA in 1966, "the world has changed a great deal. Records are no longer principally maintained in paper format. Now, they are maintained in a variety of technologies, including CD ROM and computer tapes and diskettes." 1996 U.S.C.C.A.N. 3477 (Oct. 2, 1996). The 1996 Act, he said, brings the "FOIA into the information and electronic age by clarifying that it applies to records maintained in electronic format." Id.
Just as government has turned increasingly to electronic information systems to manage records and data, so too have private individuals and organizations turned to these technologies and the greater efficiency they provide. Given the advances of the digital age, electronic records, such as computer files, are often easier to use and reproduce that written documents. As the House of Representatives and Senate Reports on the 1996 legislation explain,
[T]he electronic information technology currently being used by executive departments and agencies should be applied in a manner that promotes efficiency in responding to FOIA requests. This objective includes using technology to provide requesters with information in the form most useful to them. S. REP. 104-272, II (May 15, 1996); H.R. REP. 104-795, I.C. (Sept. 17, 1996).
We believe that HUD should continue to recognize the importance of electronic information and encourage its use and that these priorities should be reflected in the billing and tracking provisions of the Department's Freedom of Information regulations.
A. Billing for Electronically Maintained Records Should Reflect Changes in Information Technology
Under the proposed regulations at § 15.110, duplication costs are assessed according to the number of "pages" to be duplicated. Section 15.2(b) defines duplication broadly to include the making of a "copy," including copies made in "machine readable" formats.
While pages are a useful billing increment for written records, they are much less useful in calculating the costs of producing records in electronic formats. First, electronic records, especially those designed for retrieval in computerized information systems, often do not logically divide into pages. Second, the expense, time, and effort of duplicating records in electronic formats is typically much lower than what is involved in paper duplication of the same records.
Because HUD is only permitted to charge fees related to search, duplication, and, in some instances, review under the authorizing statute, it cannot base its fees for records in electronic formats on the cost of producing records in a paper format. See 5 U.S.C.A. (a)(4)(A)(ii) (West 2000). Changes in technology have all but erased the relation between cost of producing a printed duplicate of an electronic record and the cost of producing a duplicate in an electronic format. The House Report on the 1996 legislation recognizes the advantages of new technologies, stating that "[o]ften, searching by computer will reduce costs because computer searches are generally faster, more thorough and more accurate, than manual searches."
HUD should tailor its Freedom of Information regulations to account for the greater efficiency of duplication of electronic records. When assessing fees for the processing of requests for information in electronic formats, HUD should charge only for search time and the actual cost of the CD ROM, diskette, or other electronic media on which the duplicate in reproduced. When records are sent to requesters by electronic mail, HUD should charge only for search time.
B. Tracking Decisions Should Reflect the Greater Ease and Efficiency with which Electronic Records May Be Located and Duplicated
Under the proposed regulations, HUD will assign requests to "its simple or complex track based on the amount of work and time involved in processing the request." § 15.105(a). The regulations state that factors included in track assignment decisions "will include whether the request involves the processing of voluminous documents." Id.
In the case of FOIA requests for information maintained in computerized information systems, nearly any retrieval of records from such system will involve the processing of voluminous records by the computer system. Digital automation has greatly relieved the burdens once involved in managing voluminous documents stored in electronic formats.
HUD's new Freedom of Information regulations should take advances in information technology into account. Requests should not be more likely to be assigned to the complex track when the processing of voluminous documents involved in the request are maintained in electronic format.
We further recommend that HUD establish a third track for the processing of requests for electronically maintained information, especially when records are requested in electronic formats. Such a tracking arrangement will contribute to the prompt and efficient processing of requests and further the aims of the statute and the 1996 amendments.
II. Continue Affirmative Efforts to Publish Information to the Public without FOIA Requests
When President Clinton signed the bill enacting the 1996 Electronic Freedom of Information Act Amendments into law, he expressed his hope that "[a]s the Government actively disseminates more information … there will be less need to use FOIA to obtain government information." 1996 U.S.C.C.A.N. 3477 (Oct. 2, 1996). HUD has already demonstrated a strong commitment to publishing information through its websites and other means to meet what President Clinton described as "the crucial need in a democracy for open access to government information by citizens." Id.
We recommend that HUD continue and strengthen its commitment to advancing the goal of an informed electorate. To this end and to comply with the requirements of the 1996 amendments, HUD should include more specific regulatory provisions for the on-line publication of records that have become or likely will become the subject of subsequent FOIA requests. See 5 U.S.C.A. § 552(a)(2) (West 2000).
HUD should build on existing information systems as much as possible when publishing information on-line. The Department should, for example, enhance public web access to its Multifamily Tenant Characteristics System so that it is as extensive as that of HUD program staff. The Department should also expand the holdings of its www.hudclips.org Library to include memoranda from Assistant Secretaries, Deputy Assistant Secretaries, and other HUD officials circulated within the Department and to Field Offices that explain HUD policies, as well as letters that apply HUD policies in particular circumstances in order to comply with the requirements of 5 U.S.C.A. §§ 552(a)(2)(A)-(C) (West 2000).
Broadening access to existing information systems to which the public already has partial access or expanding the holdings of these systems poses little additional cost since HUD already collects and manages information for these systems and already has in place an automated mechanism through which the public can obtain this information.
In addition, the legislative history of the 1996 amendments explain that both the information contained within computer information systems and the software that operates these systems are to be treated as public records for FOIA purposes. See S. REP. 104-272, III, § 5 (May 15, 1996). HUD should provide greater public access to on-line information systems because the public can obtain the information systems in their entirety, both the data they contain and the software to manipulate it, under the amended Act, and because these systems are likely to be subject to FOIA requests in the future, obligating HUD to make these information systems available on-line pursuant to 5 U.S.C.A. §§ 552(a)(2)(D) (West 2000).
III. Maintain Easily Accessible Electronic Indices to Assist the Public in Locating Information that Has Already Been Published or in Determining which Office to Send FOIA Requests when Necessary
Section 15.02 of the proposed regulations provides for indices of records 5 U.S.C.A. § 552(a)(2) requires HUD to make publicly available, such records that likely will become the subject of subsequent FOIA requests, to be published on the http://www.hud.gov website. We commend this concept. However, since the www.hud.gov website will become an increasingly dynamic and complex informational source, we recommend that the regulations specify a more detailed URL citation for the on-line indices, for example: www.hud.gov/foia.
In addition, to maximize the value of the on-line indices, we recommend that the indices include hypertext links to information already published on-line. The indices should also include detailed explanations of the specific HUD office to which requests for various kinds of information should be directed. A detailed description of the location of information within HUD will help to prevent the delays and administrative inconvenience of misdirected requests.
Further, HUD should define the term "located" in the regulations with the current state of networked information technology in mind. Electronic records should be considered to be "located" at particular HUD offices if these records are electronically accessible by personnel at these offices, regardless of where the machines on which the records are stored may be located.
If HUD is not able to provide sufficiently detailed information as to the location of information and therefore expects routine delays in the processing of records as requests are forwarded between offices, it should establish a single FOIA request receiving center or take other steps to ensure compliance with the statutory twenty-day response deadline. See 5 U.S.C.A. § 552(a)(6)(A)(i) (West 2000).
IV. Foster Communication Between Subdivisions within HUD on FOIA Requests
In our view, when a centralized FOIA liaison is designated in a HUD field office, it is important that there is coordination and consultation between different sections within the field office with respect to a FOIA request. There have been some cases in which we have been told that records do not exist by HUD employees in one section, only to find out later that the records do exist. Consultation between different subdivisions within a HUD field office is important to ensure that requests for records are not improperly denied.
V. Clarify the Deadlines Involved in Responding to FOIA Requests, Sending Information, and Billing
Section 15.104 of the proposed regulations states that HUD will generally respond within twenty business days of the receipt of a FOIA request. Section 15.106 describes how HUD will respond to requests. However, the proposed rules are unclear as to when records will actually be provided to requesters after requests are approved.
The statute requires that once HUD has received a FOIA request and agreed to provide records, "the records shall be made promptly available to such person making such request." 5 U.S.C.A. § 552(a)(6)(C)(i) (West 2000). As Senator Patrick Leahy, sponsor of the 1996 bill, stated in his testimony before the House of Representatives Government Reform and Oversight Subcommittee: "Long delays in access can mean no access at all. [R]outine failure to comply with the statutory time limits is bad for morale in the agencies and breeds contempt by citizens who expect government officials to abide by, not routinely break, the law." H.R. REP. 104-795 (Sept. 17, 1996).
We urge HUD to provide requesters with exact dates by which information will actually be provided after HUD approves a FOIA request. These dates should be specified in each affirmative FOIA response that HUD issues. Further, since HUD has already located the requested records and made a decision as to their release by the time it makes its response to a FOIA request and since the time for response has been extended by the 1996 amendments, records should generally be sent to requesters no later than twenty business days after HUD issues its response.
VI. Tailor the Definition of "compelling need" for Expedited Processing to Circumstances Involving Expiring Use and Expiring Section 8 Subsidy Contract Buildings
In HUD subsidized or insured developments in which use restrictions and/or Section 8 contracts are set to expire on a particular date, timing in receiving access to relevant HUD records can be critical to efforts to preserve the subsidized housing and the homes of tenants. Loss of time in gaining access to HUD records can result in the irretrievable foreclosure of options for preserving such federal housing resources. We, therefore, recommend that in § 15.105(b) (1), following "a threatened loss of substantial due process rights" that the words "or federal housing resources" be added.
We also recommend that language be added to § 15.105(b) to clarify that HUD is not limited to subparts (1) or (2) in determining that a need for expedited processing exists, but has the discretion to do so under other compelling circumstances that may arise.
VII. Clarify FOIA Exemptions in the Regulations and Ensure Access to Information Related to Participation in HUD Programs
Section 15.21 of HUD's existing Freedom of Information regulations provide a detailed description of the FOIA exemptions set forth in 5 U.S.C.A. § 552(b). This section lends important clarity to HUD's FOIA policies and procedures, interpreting and applying the more general requirements of the statute to the specific circumstances relating to HUD and its programs. Clarity should be highly valued in HUD's preparation of its Freedom of Information regulations both to ensure efficient administrability by the Department and effective use of the procedures by the public. As President Clinton directed early in his Administration: "The use of the [Freedom of Information] Act by ordinary citizens is not complicated, nor should it be. … I therefore call upon all Federal departments and agencies to renew their commitment to the Freedom of Information Act, and to its underlying principles of government oneness, and to its sound administration." Memorandum for Heads of Departments and Agencies, October 4, 1993 ("The Freedom of Information Act").
Section 15.21 of the existing regulations further explain how the exemptions are to be applied in processing FOIA requests, stating that: "A requested record shall not be withheld from inspection or copying unless it both: Comes within one of the classes of records exempted by 5 U.S.C. 552; and there is need in the public interest to withhold it." (emphasis added) The exemption provisions set forth in the proposed regulations, §§ 15.108 and 15.109 in particular, have a much more limited usefulness that the existing § 15.21. The new sections focus closely on "business information," placing unusual emphasis on such information without explaining that such information may only be withheld if there is a need in the public interest to withhold it.
We recommend that HUD preserve the provisions of § 15.21 in the new regulations. A concise description of the FOIA exemptions made specifically relevant to HUD and an explanation that these exemptions are to be applied only in a manner that will further the public interest will greatly contribute to the smooth and effective administration of the FOIA process. As a secondary alternative, we recommend that HUD remove all exemption provisions from the new regulations and rely solely on the statute, so as not to imply a special status for Exemption 4 over other exemptions.
A. Amend Provisions on Requests for Form HUD-92410 (Statement of Profit and Loss) to Comply with Existing Legal Obligations
Section 15.109(a) of the proposed regulations allow for the release of information from Form HUD-92410 "only to potential eligible purchasers." This restriction is at odds with existing statutory authorities that guarantee access to such information to HUD residents, tenant organizations, and their representatives in the context of multifamily operations and restructuring activities to allow them to exercise their rights under these programs effectively. In 12 U.S.C.A. § 1715z-1b(b)(1), as amended Pub. L. No. 105-276, § 599, Congress provided that
The Secretary shall assure that … where the Secretary's written approval is required with respect to … [rent increases, major physical alterations, or where the Secretary proposes to sell a mortgage secured by a multifamily housing project … ] … tenants have … reasonable access to relevant information about such actions.
Section 514(f)(1)(B) of the Multifamily Assisted Housing Reform and Affordability Act of 1997, Pub. L. No. 105-65 (Oct. 27, 1997), also requires HUD to "take into account the need to provide tenants of the project, residents of the neighborhood, the local government, and other affected parties … appropriate access to information about restructuring activities." Id. HUD's regulations require owners to provide tenants with extensive information about HUD multifamily project operations, including the same Statement of Profit and Loss that the proposed § 15.109 would allow HUD to release only to potential eligible purchasers. See 24 C.F.R. §§ 245.310, 245.315 (1999).
We urge HUD to ensure that its Freedom of Information regulations provide real and meaningful access to information concerning multifamily project operations - especially physical, financial, and management information that is specifically made the subject of tenant participation disclosure requirements by other laws - so that all of HUD's partners can participate in its programs effectively. This often must include access to documents containing financial information when these records relate to HUD-assisted properties and participation in HUD programs. Access to this information is entirely consistent with fundamental purposes of democracy and openness that underlie the FOIA and the 1996 amendments. Entities receiving public dollars from HUD must be accountable to the public for how these dollars are spent. See Pub. L. No. 104-231, § 2(a)(3), 110 Stat 3048 (Oct. 2, 1996).
VIII. Waive or Reduce Fees for FOIA Requests Made in the Public Interest and not Primarily for Commercial Purposes, such as Requests Made by Low-Income HUD Residents, Advocates for HUD Residents, and HUD Grantees
The statute requires HUD to waive or reduce processing fees in certain circumstances. It states in relevant part:
Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) 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. 5 U.S.C.A. § 552(a)(4)(A)(iii) (West 2000) (emphasis added).
HUD must amend § 15.110(h) of the proposed regulations to reflect its obligation to waive or reduce fees in certain circumstances involving requests not made primarily to advance requesters' commercial interests.
In addition, we recommend that HUD adjust its FOIA fee structure to encourage the informed and fruitful participation of HUD partners for whom fees are unusually burdensome or partners who have special need for information from HUD. These include: low-income HUD residents and homeowners; tenant organizations; advocates representing low-income residents, homeowners, or tenant organizations; and HUD-funded technical assistance grantees, under such programs as the Resident Opportunity Self-Sufficiency Program, the Outreach and Technical Assistance Grant Program, or the Intermediary Technical Assistance Grantee Program.
HUD should include regulatory provisions waiving fees for these requesters pursuant to 5 U.S.C.A. § 552(a)(4)(A)(iii). Alternatively, HUD should include these requesters in the existing category for news media and educational and scientific research in § 15.110 of the proposed regulations.
We have made every effort to make these comments helpful to you in your development of the final regulations. If you have any questions concerning these comments, please contact Todd Espinosa at the National Housing Law Project.
Respectfully submitted,
Todd Espinosa James Grow National Housing Law Project 614 Grand Avenue, Suite 320 Oakland, California 94610 510-251-9400 tespinosa@nhlp.org jgrow@nhlp.org
Debra Gardner Public Justice Center 500 East Lexington Street Baltimore, Maryland 21202 410-625-9409 gardnerd@publicjustice.org
Michael Hanley Greater Upstate Law Project 80 St. Paul Street, 3rd Floor Rochester, New York 14604 716-454-6500, ext. 656 mhanley@wnylc.com
Ann Jochnick Greater Boston Legal Services, on behalf of its client residing in federally assisted low-income housing 197 Friend Street Boston, Massachusetts 02114 617-371-1270 ajochnick@gbls.org
Ellen Johnson Legal Aid Services of Oregon 230 NE 2nd Street, Suite A Hillsboro, Oregon 97123 503-640-8228, ext. 104 ellen.johnson@lasoregon.org
Charlie Warner HOME Line 7462 Oxford Street St. Louis Park, Minnesota 55426 952-908-0991 charliew@homelinemn.org
Dorinda Wider Legal Aid Society of Minneapolis 430 1st Avenue, N, Suite 300 Minneapolis Minnesota 55401 612-332-1441, ext. 262 dwider@midmnlegal.org