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®: CRE Regulatory Action of the Week

OSHA Promulgates Interim Final Rule to Comply with Electronic Freedom of Information Act (EFOIA)

The Occupational Safety and Health Administration has issued an interim final rule amending the agency's FOIA regulation in order to comply with "EFOIA" - the Electronic Freedom of Information Act" ("EFOIA"). The interim rule will go into effect on May 22, 2000. OSHA will accept public comments through June 26.

The interim final rule will place OSHA into compliance with the following provisions of EFOIA:

A. Electronic Reading Rooms.

  • Under EFOIA, federal agencies must create "electronic reading rooms" in which types of documents not typically published in the Federal Register must now be available for public inspection and copying. Such documents include agency opinions, policy statements, interpretations, administrative staff manuals, and staff instructions. The essential point is that if the document contains provisions that affect members of the public, the public should have Internet access to the documents without having to make a FOIA request.
  • As part of the electronic reading room, the agency is required to create and publish an electronic index of all documents.
  • Documents withheld or deleted from the electronic reading room (e.g., due to national security or trade secret concerns) must indicated so as to enable members of the public to challenge the withholding.

B. Individual FOIA Requests.

  • Agencies must make records available in any form or format requested if the records are readily reproducible in that format. For example, an agency might be obligated to produce a list of documents containing a certain name.
  • Agencies must establish multiple "tracks" for completion of FOIA requests based on the amount of agency effort involved. A FOIA requester must have the opportunity to reduce his or her request so as to be placed in a faster track.
  • The deadline for responding to FOIA requests is extended from ten to 20 days. If the agency needs additional time, the agency must notify the requester and include a justification.
  • Expedited processing of a FOIA request can be requested on the following extremely narrow grounds: (1) there is a threat to life or physical safety; or (2) the requester is primarily engaged in information dissemination activities and there is an urgency to inform the public about an actual or alleged federal government activity.

CRE believes that OSHA's promulgation of a regulation to implement these statutory requirements is a positive step. At the same time, CRE questions whether it is appropriate to issue the regulation in "interim final" form without providing an opportunity for advance public comment. The Federal Register notice does not clarify what circumstances prevented OSHA from publishing a proposed rule in a timely manner so that public comments could be taken into account before the regulation has final effect.

CRE invites all interested parties to submit comments on these issues to CRE's Interactive Public Docket.

Please click below to submit comments to the CRE regarding OSHA's Interim Final Rule.
OSHA's Interim Final E-FOIA Rule: Interactive Public Docket

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