CFR Subpart D

CFR Subpart D
in effect

22 C.F.R. § 706.30 Responsibility for responding to requests.

(a) Authority to grant or deny requests. The DFC President and CEO or designee is authorized to grant or to deny any requests for records. (b) Consultation, referral, and coordination. When reviewing records responsive to a request, DFC will determine whether another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. As to any such record, DFC will proceed in one of the following ways: (1) Consultation. When records originated with DFC, but contain within them information of interest to another agency or other Federal Government office, DFC will typically consult with that other entity prior to making a release determination. (2) Referral. (i) When DFC believes that a different agency is best able to determine whether to disclose the record, DFC will typically refer the responsibility for responding to the request regarding that record to that agency. Ordinarily, the agency that originated the record is presumed to be the best agency to make the disclosure determination. However, if DFC and the originating agency jointly agree that DFC is in the best position to respond regarding the record, then the record may be handled as a consultation. (ii) Whenever DFC refers any part of the responsibility for responding to a request to another agency, it will document the referral, maintain a copy of the record that it refers, and notify the requester of the referral, informing the requester of the name(s) of the agency to which the record was referred, including that agency's FOIA contact information. (3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if in responding to a request for records on a living third party, DFC locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if DFC locates within its files material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In such instances, in order to avoid harm to an interest protected by an applicable exemption, DFC should coordinate with the originating agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination should then be conveyed to the requester by DFC. (c) Classified information. On receipt of any request involving a record containing information that has been classified or may be appropriate for classification by another agency under any applicable executive order concerning the classification of records, DFC must refer the responsibility for responding to the request to the agency that classified the information, or that should consider the information for classification. Whenever DFC's record contains information that has been derivatively classified (for example, when it contains information classified by another agency), DFC must refer the responsibility for responding to that portion of the request to the agency that classified the underlying information. (d) Timing of responses to consultations and referrals. All consultations and referrals will be handled according to the date that the first agency received the perfected FOIA request. (e) Agreements regarding consultations and referrals. DFC may establish agreements with other agencies to eliminate the need for consultations or referrals with respect to particular types of records.

22 C.F.R. § 706.31 Timing of responses to requests.

(a) In general. DFC ordinarily will process requests according to their order of receipt within their appropriate track under paragraph (b) of this section. The response time will commence on the date that the request is received by the FOIA Office, but in any event not later than ten working days after the request is first received by DFC. Any time tolled under subparagraph (c) of this section does not count against DFC's response time. (b) Multitrack processing. DFC has a track for requests that are granted expedited processing, in accordance with the standards set forth in paragraph (f) of this section. Non-expedited requests will be placed into a “simple” or “complex” track based on the estimated amount of work or time needed to process the request. DFC will consider the number of records requested, the number of pages involved in processing the request, and the need for consultations or referrals. DFC will advise the requester into which track the request falls and, when appropriate, will offer requesters the opportunity to narrow or modify the request so that it can be placed in a different track. (c) Tolling of response time. DFC may toll its response time once to seek clarification of a request in accordance with § 706.11(b) or as needed to resolve fee issues in accordance with §§ 706.22(c) and 706.23(d) of this part. The response time will resume upon DFC's receipt of the requester's clarification or upon resolution of the fee issue. (d) Unusual circumstances. Whenever the statutory time limits for processing cannot be met because of “unusual circumstances” as defined in the FOIA, and DFC extends the time limits on that basis, DFC will notify the requester in writing of the unusual circumstances involved and of the date by which DFC estimates processing of the request will be completed. Where the extension exceeds ten working days, the requester will be provided an opportunity to modify the request or agree to an alternative time period for processing the original or modified request. DFC will make its FOIA Office and its FOIA Public Liaison available for this purpose and will notify the requester of the availability of the Office of Government Services (OGIS) dispute resolution services. (e) Aggregating requests. For the purposes of satisfying unusual circumstances under the FOIA, DFC may aggregate requests in cases where it reasonably appears that multiple requests, submitted either by a requester or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances. DFC will not aggregate multiple requests that involve unrelated matters. (f) Expedited processing. (1) Requests and appeals will be processed on an expedited basis whenever it is determined that they involve: (i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; (ii) An urgency to inform the public about an actual or alleged Federal government activity, if made by a person who is primarily engaged in disseminating information; (2) A request for expedited processing may be made at any time. (3) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (f)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary activity or occupation is information dissemination, though it need not be the requester's sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public's right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on the tDFC. DFC may waive the formal certification requirement in its administrative discretion. (4) DFC shall notify the requester within ten calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request shall be given priority, placed in the processing track for expedited requests, and shall be processed as soon as practicable. If DFC denies expedited processing, any appeal of that decision which complies with the procedures set forth in § 706.34 of this subpart shall be acted on expeditiously.

22 C.F.R. § 706.32 Responses to requests.

(a) In general. To the extent practicable, DFC will communicate electronically with requesters who have access to the internet. (b) Acknowledgments of requests. If a request will take longer than ten days to process, DFC will send the requester an acknowledgment letter that assigns the request an individualized tracking number. The letter will include a brief description of the records sought to allow requesters to more easily keep track of requests. (c) Grants of requests. DFC will notify the requester in writing if it makes a determination to grant a request in full or in part. The notice will inform the requester of any fees charged under § 706.22 of this part and of the availability of the FOIA Public Liaison to offer assistance. DFC will disclose the requested records to the requester promptly upon payment of any applicable fees. (d) Adverse determinations of requests. DFC will notify the requester in writing if it makes an adverse determination denying a request in any respect. Adverse determinations, or denials of requests, include decisions that: The requested record is exempt, in whole or in part; the request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. Adverse determinations also include denials involving fees or fee waiver matters or denials of requests for expedited processing. (e) Content of denial letter. The denial letter will be signed by the person responsible for the denial, and will include: (1) The name and title or position of the person responsible for the denial; (2) A brief statement of the reasons for the denial, including any FOIA exemptions applied; (3) An estimate of the volume of any records or information withheld, for example, by providing the number of pages or some other reasonable form of estimation. This estimation is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption; (4) A brief description of the types of information withheld and the reasons for doing so. A description and explanation are not required if providing it would harm an interest protected by an applicable exemption; (5) A statement that the denial may be appealed under Section 706.34(a) of this subpart, and a description of the appeal requirements; (6) A statement notifying the requester of the assistance available from DFC's FOIA Public Liaison and dispute resolution services offered by OGIS; and (7) Notice of any fees charged under § 706.23 of this part. (f) Markings on released documents. Records disclosed in part must be marked clearly to show the amount of information deleted and the exemption under which the deletion was made unless doing so would harm an interest protected by an applicable exemption. If technically feasible, the location of the information deleted will be indicated on the record. (g) Notice of record exclusions. (1) In the event that DFC identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the agency will confer with the Department of Justice, Office of Information Policy, to obtain approval to apply the exclusion. (2) DFC will maintain an administrative record of the process of invocation and approval of the exclusion by OIP.

22 C.F.R. § 706.33 Confidential commercial information.

(a) Definitions—(1) Confidential commercial information means commercial or financial information obtained by the agency from a submitter that may be protected from disclosure under Exemption 4 of the FOIA. Exemption 4 protects certain: (i) Trade secrets as defined under FOIA law; or (ii) Commercial or financial information that is privileged or confidential as defined under FOIA law. (2) Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides confidential commercial information to the Federal government, directly or indirectly. (b) Designation of confidential commercial information. All submitters may designate, by appropriate markings, any portions of their submissions that they consider to be protected from disclosure under the FOIA. These markings will be considered by DFC in responding to a FOIA request but such markings (or the absence of such markings) will not be dispositive as to whether the marked information is ultimately released. Unless otherwise requested and approved these markings will be considered no longer applicable ten years after submission or five years after the close of the associated project, whichever is later. (c) When notice to submitters is required. (1) Except as provided in paragraph (d) of this section, DFC's FOIA Office will use reasonable efforts to notify a submitter in writing whenever: (i) The requested information has been designated in good faith by the submitter as confidential commercial information protected from disclosure under Exemption 4; or (ii) DFC has reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure. (2) This notification will describe the nature and scope of the request, advise the submitter of its right to submit written objections in response to the request, and provide a reasonable time for response. The notice will either describe the commercial information requested or include copies of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending individual notifications. (d) Exceptions to submitter notice requirements. The notice requirements of this section shall not apply if: (1) DFC determines that the information is exempt under the FOIA, and therefore will not be disclosed; (2) The information has been lawfully published or has been officially made available to the public; (3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or (4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, DFC will give the submitter written notice of any final decision to disclose the information within a reasonable number of days prior to a specified disclosure date. (e) Opportunity to object to disclosure. (1) DFC will specify a reasonable time period within which the submitter must respond to the notice referenced above. (2) If a submitter has any objections to disclosure, it should provide DFC with a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In setting forth such grounds, the submitter should explain the basis of its belief that the nondisclosure of any item of information requested is mandated or permitted by law. In order to rely on Exemption 4 as a basis for nondisclosure, the submitter shall explain why the information is considered a trade secret or commercial or financial information that is privileged or confidential as defined under FOIA law. (3) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. DFC is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA. (4) The period for providing DFC with objections to disclosure of information may be extended by DFC upon receipt of a written request for an extension from the submitter. Such written request shall set forth the date upon which any objections are expected to be completed and shall provide reasonable justification for the extension. In its discretion, DFC may permit more than one extension. (f) Analysis of objections. DFC will consider a submitter's objections and specific grounds for nondislosure in deciding whether to disclose the requested information. (g) Notice of intent to disclose. If DFC decides to disclosure information over the objection of a submitter, DFC will notify the submitter of its determination at least five working days prior to release of the information. The notification will include: (1) A statement of the reasons why each of the submitter's disclosure objections was not sustained; (2) A description of the information to be disclosed, or a copy thereof; and (3) A specified disclosure date, which shall be a reasonable time subsequent to the notice. (h) Notice of FOIA lawsuit. Whenever a requester files a FOIA lawsuit seeking to compel the disclosure of confidential commercial information, DFC will promptly notify the submitter. (i) Requester notification. DFC will notify a requester whenever it provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.

22 C.F.R. § 706.34 Administrative appeals.

(a) Requirements for making an appeal. A requester may appeal any adverse determinations to DFC's Vice President and General Counsel at foia@dfc.gov or 1100 New York Avenue NW., Washington, DC 20527. Examples of adverse determinations are provided in Section 706.06(c) of this subpart. The requester must make the appeal in writing and it must be postmarked, or in the case of electronic submissions, transmitted, within ninety calendar days after the date of the response. The appeal should clearly identify DFC's determination that is being appealed and the assigned request number. The requester should mark both the appeal letter and envelope, or subject line of the electronic transmission, “Freedom of Information Act Appeal.” (b) Adjudication of appeals. DFC's Vice President and General Counsel or his/her designee will render a written decision within twenty working days after the date of DFC's receipt of the appeal, unless an extension of up to ten working days is deemed necessary due to unusual circumstances. The requester will be notified in writing of any extension. (c) Decisions on appeals. A decision that upholds the initial determination will contain a written statement that identifies the reasons for the affirmance, including any FOIA exemptions applied, and will provide the requester with notification of the statutory right to file a lawsuit and the ability to request dispute resolution from the Office of Government Information Services. If an initial determination is remanded or modified on appeal the requester will be notified in writing. DFC's FOIA Office will then process the request in accordance with that appeal determination and respond directly to the requester. If an appeal is granted in whole or in part, the information will be made available promptly, provided the requirements of Section 706.23 regarding payment of fees are satisfied. (d) Engaging in dispute resolution services provided by OGIS. Dispute resolution is a voluntary process. If DFC agrees to participate in the dispute resolution services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute. (e) When appeal is required. Before seeking court review, a requester generally must first submit a timely administrative appeal.

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