Title 17—Commodity and Securities Exchanges--Volume 1
PART 145—COMMISSION RECORDS AND INFORMATION
§ 145.0   Definitions.
For the purposes of part 145 the following definitions are applicable:
(a) FOIA Compliance Staff —refers to the Freedom of Information Act compliance staff assigned to respond to requests for information under the Freedom of Information Act.
(b) Public records —in addition to the records described in § 145.1 (material published in the Federal Register ) and in § 145.2 (records required to be made publicly available under the Freedom of Information Act), includes those records that have been determined by the Commission to be generally available to the public directly upon oral or written request from the Commission office or division responsible for the maintenance of such records. A compilation of Commission records routinely available to the public upon request appears in appendix A to this part 145.
(c) Nonpublic records —are records not identified in § 145.1, § 145.2, or appendix A of this part 145. Nonpublic records must be requested, in writing, in accordance with the provisions of § 145.7.
(d) Record —is any information or agency record maintained by the Commission in any format, including an electronic format. It includes any document, writing, photograph, sound or magnetic recording, videotape, microfiche, drawing, or computer-stored information or output in the possession of the Commission. The term “record” does not include personal convenience materials over which the Commission has no control, such as appointment calendars and handwritten notes, which may be retained or destroyed at an employee's discretion.
§ 145.1   Information published in the Federal Register.
Except as provided in § 145.5, pertaining to nonpublic matters, the following materials shall be published in the Federal Register for the guidance of the public:
(a) Description of the Commission's central and field organization and the established place at which, the employees from whom, and the methods whereby the public may obtain information, make submittals or requests, or obtain decisions;
(b) Statements of the general course and method by which the Commission's functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(c) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
(d) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the Commission; and
(e) Each amendment, revision, or repeal of the foregoing.
§ 145.2   Records available for public inspection and copying; documents published and indexed.
Except as provided in § 145.5, pertaining to nonpublic matters, and in addition to those documents listed in appendix A to part 145, Compilation of Commission Records Available to the Public, the following materials are available for public inspection and copying during normal business hours at the Commission's Public Reading Room, located at the Commission's Washington, DC headquarters and at the regional offices of the Commission:
(a) A guide for requesting records or publicly available information from the Commission which includes:
(1) An index of all publicly available information of the Commission;
(2) A description of major information and record locator systems;
(3) Guidance for obtaining various types and categories of public information from the Commission;
(b) Final opinions and orders of the Commission in the adjudication of cases, including concurring and dissenting opinions;
(c) Statements of policy and interpretations which have been adopted by the Commission and are not published in the Federal Register ;
(d) Records released in response to FOIA requests that have been, or the Commission anticipates will be, the subject of additional FOIA requests;
(e) Administrative manuals and instructions that affect the public; and
(f) Indices providing identifying information to the public as to the materials made available pursuant to paragraphs (a) through (e) of this section.
§ 145.3   [Reserved]
§ 145.4   Public records available with identifying details deleted; nonpublic records available in abridged or summary form.
(a) To the extent required to prevent a clearly unwarranted invasion of personal privacy, the Commission may delete identifying details when it makes available “public records” as defined in § 145.0(b). In such instances, the Commission shall explain the justification for the deletion fully in writing.
(b) Certain “nonpublic records,” as defined in § 145.0(c), may, as authorized by the Commission, be made available for public inspection and copying in an abridged or summary form, with identifying details deleted.
§ 145.5   Disclosure of nonpublic records.
The Commission shall withhold information in “nonpublic records,” as defined in § 145.0(c), only if the Commission reasonably foresees that disclosure would harm an interest protected by an exemption described in paragraphs (a) through (i) of this section, or if disclosure is prohibited by law. The Commission shall consider whether partial disclosure of information is possible whenever the Commission determines that a full disclosure of the requested record is not possible. The Commission shall take reasonable steps necessary to segregate and release nonexempt information in “nonpublic records” subject to a request under § 145.7 if those portions do not fall within an exemption described in paragraphs (a) through (i) of this section.
(a)(1) Specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy, and (2) are in fact properly classified pursuant to such executive order;
(b) Related solely to the internal personnel rules and practices of the Commission or any other agency of the Government of the United States, including operation rules, guidelines, and manuals of procedure for investigators, auditors, and other employees (other than those rules and practices which establish legal requirements to which members of the public are expected to conform);
(c) Specifically exempted from disclosure by statute, including:
(1) Data and information which would separately disclose the business transactions or market positions of any person and trade secrets or names of customers; and
(2) Any data or information concerning or obtained in connection with any pending investigation of any person;
(d) Trade secrets and commercial or financial information obtained from a person and privileged or confidential, including, but not limited to:
(1)(i) Reports of stocks of grain, such as Forms 38, 38C, 38M and 38T required to be filed pursuant to 17 CFR 1.44;
(ii) Statements of reporting traders on Form 40 required to be filed pursuant to 17 CFR 18.04;
(iii) Statements concerning special calls on positions required to be filed pursuant to 17 CFR part 21;
(iv) Statements concerning identification of special accounts on Form 102 required to be filed pursuant to 17 CFR 17.01;
(v) Reports required to be filed pursuant to parts 15 through 21 of this chapter;
(vi) Reports concerning option positions of large traders required to be filed pursuant to part 16 of this chapter;
(vii) Form 188; and
(viii) The following reports and statements that are also set forth in paragraph (h) of this section, except as specified in 17 CFR 1.10(g)(2) or 17 CFR 31.13(m): Forms 1-FR required to be filed pursuant to 17 CFR 1.10; FOCUS reports that are filed in lieu of Forms 1-FR pursuant to 17 CFR 1.10(h); Forms 2-FR required to be filed pursuant to 17 CFR 31.13; the accountant's report on material inadequacies filed in accordance with 17 CFR 1.16(c)(5); all reports and statements required to be filed pursuant to 17 CFR 1.17(c)(6); and
(A)( 1 ) The following portions of Form CPO-PQR required to be filed pursuant to 17 CFR 4.27: Schedule A: Question 2, subparts (b) and (d); Question 3, subparts (g) and (h); Question 9; Question 10, subparts (b), (c), (d), (e), and (g); Question 11; Question 12; and Schedules B and C;
( 2 ) The following portions of Form CTA-PR required to be filed pursuant to 17 CFR 4.27: Question 2, subparts (c) and (d);
(2) Information contained in reports, summaries, analyses, transcripts, letters or memoranda arising out of, in anticipation of or in connection with an examination or inspection of the books and records of any person or any other formal or informal inquiry or investigation; and
(3) Information for which confidential treatment has been requested and granted in accordance with § 145.9;
(e) Inter-agency or intra-agency memoranda or letters, except those which by law would routinely be made available to a party other than an agency in litigation with the Commission. Exemption 5 (5 U.S.C. 552(b)(5)) protects inter-agency or intra-agency communications that are protected by legal privileges, such as the attorney-client privilege, the attorney work-product privilege, and the deliberative process privilege. The deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested.
(f) Personnel files, medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, including but not limited to, information of that character contained in:
(1) Files concerning employees of the Commission;
(2) Files concerning persons subject to regulation by the Commission, including files with respect to applications for registration and biographical supplements submitted with such applications. Examples of the information on the applications and biographical supplements which may be protected are an individual's home address and telephone number, social security number, date and place of birth, fingerprints and, in appropriate cases, the information concerning prior arrests, indictments, criminal convictions or other judgments or sanctions imposed by State or Federal courts or regulatory authorities;
(3) Files concerning information for which confidential treatment has been requested and granted in accordance with § 145.9;
(g) Records or information compiled for law enforcement purposes to the extent that the production of such records or information:
(1) Could reasonably be expected to interfere with enforcement activities undertaken or likely to be undertaken by the Commission or any other authority including, but not limited to, the Department of Justice or any United States Attorney or any Federal, State, local, or foreign governmental authority or any futures or securities industry self-regulatory organization;
(2) Would deprive a person of a right to a fair trail or an impartial adjudication;
(3) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;
(4) Could reasonably be expected to disclose the identity of a confidential source including a State, local or foreign agency or authority or any private institution which furnished information on a confidential basis and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;
(5) Would disclose techniques or procedures or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or
(6) Could reasonably be expected to endanger the life or physical safety of any individual.
(h) Contained in or related to examinations, operating, or condition reports prepared by, on behalf of, or for the use of the Commission or any other agency responsible for the regulation or supervision of financial institutions, including, but not limited to the following reports and statements that are also set forth in paragraph (d)(1)(viii) of this section, except as specified in 17 CFR 1.10(g)(2) and 17 CFR 31.13(m): Forms 1-FR required to be filed pursuant to 17 CFR 1.10; FOCUS reports that are filed in lieu of Forms 1-FR pursuant to 17 CFR 1.10(h); Forms 2-FR required to be filed pursuant to 17 CFR 31.13; the accountant's report on material inadequacies filed in accordance with 17 CFR 1.16(c)(5); all reports and statements required to be filed pursuant to 17 CFR 1.17(c)(6); and
(1) The following portions of Form CPO-PQR required to be filed pursuant to 17 CFR 4.27: Schedule A: Question 2, subparts (b) and (d); Question 3, subparts (g) and (h); Question 9; Question 10, subparts (b), (c), (d), (e), and (g); Question 11; Question 12; and Question 13; and Schedules B and C;
(2) The following portions of Form CTA-PR required to be filed pursuant to 17 CFR 4.27: Question 2, subparts (c) and (d); and
(i) Geological and geophysical information and data, including maps, concerning wells.
§ 145.6   Commission offices to contact for assistance; registration records available.
(a) All requests for non-public records shall be made in writing and shall be addressed or otherwise directed to the Office of the General Counsel at the Commission's Washington, DC headquarters, Attn: FOIA Request, or electronically via foiasubmissions@cftc.gov . Requests for public records directed to a regional office of the Commission pursuant to § 145.2 should be sent to the Eastern Regional Office, Central Regional Office, or Southwestern Regional Office, as applicable.
(b)(1) The publicly available portions of Form 7-R (application for registration as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator or leverage transaction merchant), Form 8-R (application for registration as an associated person, floor broker, floor trader and biographical supplement to application on Form 7-R), Form 3-R (changes and corrections; multiple associations) Form 8-S (certificate of special registration), Form 8-T (notice of termination), Form 7-W (withdrawal from firm registration) and Form 8-W (withdrawal from floor broker or floor trader registration) will be available for public inspection and copying. Such registration forms will be available in the offices of the National Futures Association, 300 S Riverside Plaza, Suite 1800, Chicago, IL 60606. Telephone: (312) 781-1300.
(2) The fingerprint card and any supplementary attachments filed in response to:
(i) Items 6-9, 14-21, the “Personal Information,” or the “Disciplinary Information” sections on Form 8-R;
(ii) Item 3 on Form 8-S;
(iii) Items 3-5, 9-11, the “Withdrawal Reasons,” the “Disciplinary Information,” or the “Matter Information” sections on Form 8-T;
(iv) Items 9-10 on Form 7-R;
(v) Item 7 and the “Additional Customer Information” section on Form 7-W; and
(vi) Item 7 on Form 8-W generally will not be available for public inspection and copying unless such disclosure is required under the Freedom of Information Act. Changes or corrections to those items reported on Form 3-R will be treated similarly. When such fingerprint cards or supplementary attachments are on file, the FOI, Privacy and Sunshine Acts compliance staff will decide any request for access in accordance with the procedures set forth in §§ 145.7 and 145.9.
§ 145.7   Requests for Commission records and copies thereof.
Requests for Commission records and copies thereof shall specify the preferred form or format (including electronic formats) of the response. The Commission will accommodate requesters as to form or format if the record is readily available in that form or format. When requesters do not specify the form or format of the response, the Commission will respond in the form or format in which the document is most accessible to the Commission.
(a) Public inquiries and inspection of public records. Information concerning the nature and extent of available public records may be obtained in person, by telephone, via Internet ( http://www.cftc.gov ), or by writing to the Commission offices designated in §§ 145.2 and 145.6.
(b) Requests for nonpublic records. Except as provided in paragraph (a) of this section with respect to public records, all requests for records maintained by the Commission shall be in writing, shall be addressed to the Office of the General Counsel of the Commission and shall be clearly marked “Freedom of Information Act Request.”
(c) Misdirected written requests. The Commission cannot ensure that a timely or satisfactory response will be given to requests for records that are directed to the Commission other than in the manner prescribed in paragraph (b) of this section. Any misdirected written request for nonpublic records should be promptly forwarded to the Office of the General Counsel of the Commission. Misdirected requests for nonpublic records will be considered to have been received for purposes of this section only when they actually have been received by the Office of the General Counsel.
(d) Description of requested records. Each written request for Commission records made under paragraph (b) of this section shall reasonably describe the records sought with sufficient specificity to permit the records to be located among the records maintained by or for the Commission. The Commission staff may communicate with the requester (by telephone when practicable) in an effort to reduce the administrative burden of processing a broad request and to minimize fees for copying and search services.
(e) Description of requester and intended use of requested records. In each request for records, requesters shall reasonable identify themselves as a commercial user, educational institution, noncommercial scientific institution, or representative of the news media if one of these categories is applicable. The requester shall describe the use to which the records will be put.
(f) Request for existing records. The Commission's response to a request for nonpublic records will encompass all nonpublic records identifiable as responsive to the request that are in existence on the date that the written request is received by the Office of the General Counsel. The Commission need not create a new record in response to a FOIA request.
(g) Fee agreement. A request for copies of records pursuant to paragraph (b) of this section must indicate the requester's agreement to pay all fees that are associated with the processing of the request, in accordance with the rates set forth in appendix B to this part, or the requester's intention to limit the fees incurred to a stated amount. If the requester states a fee limitation, no work will be done that will result in fees beyond the stated amount. A requester who seeks a waiver or reduction of fees pursuant to paragraph (b) of appendix B of this part must show that such a waiver or reduction would be in the public interest. If the Office of the General Counsel receives a request for records under paragraph (b) of this section from a requester who has not paid fees from a previous request in accordance with appendix B of this part, the staff will decline to process the request until such fees have been paid.
(h) Initial determination, denials. (1) With respect to any request for nonpublic records as defined in § 145.0(c), the FOIA compliance staff of the Commission will forward the request to the Commission divisions or offices likely to maintain records that are responsive to the request. If a responsive record is located, the FOIA compliance staff will, in consultation with the Commission office in which the record was located, determine whether to comply with such request. The FOIA compliance staff may, in their discretion, determine whether to comply with any portion of a request for nonpublic records before considering the remainder of the request. The FOIA compliance staff will inform the requester of the availability of the Commission's FOIA Public Liaison to offer assistance.
(2) Where it is determined to deny, in whole or in part, a request for nonpublic records, the FOIA compliance staff will notify the requester of the denial, citing applicable exemptions of the Freedom of Information Act or other provisions of law that require or allow the records to be withheld. The FOIA compliance staff's response to the FOIA request should describe in general terms what categories of documents are being withheld under which applicable FOIA exemption or exemptions. The FOIA compliance staff's response will include a statement notifying the requester of the right to seek dispute resolution services from the Commission's FOIA Public Liaison and the National Archives and Records Administration's Office of Government Information Services. The FOIA compliance staff, in denying an initial request for records, is not required to provide the requester with an inventory of those documents determined to be exempt from disclosure.
(3) The FOIA compliance staff will issue an initial determination with respect to a FOIA request within twenty business days after receipt by the Office of the General Counsel. In unusual circumstances, as defined in this paragraph, the prescribed time limit may be extended by written notice to the person making a request for a record or a copy. The notice shall set forth the reasons for the extension and the date on which a determination is expected to be dispatched. Where the extension exceeds ten business days, the FOIA compliance staff will provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or modified request. The FOIA compliance staff or the FOIA Public Liaison is available to assist the requester in unusual circumstances. The FOIA compliance staff will notify the requester of the right to seek dispute resolution services from the Office of Government Information Services. As used in this paragraph, “unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of a particular request:
(i) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
(ii) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request;
(iii) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components in the Commission having substantial subject matter interest therein;
(iv) The need to coordinate a response with several Commission offices;
(v) The need to obtain records currently being used by members of the Commission, the Commission staff, or the public;
(vi) The need to respond to a large number of previously-filed FOIA requests.
(i) Administrative review. (1) Any person who has been notified pursuant to paragraph (g) of this section that his request for records has been denied in whole or in part may file an application for review as set forth below.
(2) An application for review must be received by the Office of General the Counsel within 90 days of the date of the denial by the FOIA compliance staff. This 90-day period shall not begin to run until the FOIA compliance staff has issued an initial determination with respect to all portions of the request for nonpublic records. An application for review shall be in writing and shall be marked “Freedom of Information Act Appeal” and be sent to the Commission's Office of the General Counsel. If the appeal involves information as to which the FOIA requester has received a detailed written justification of a request for confidential treatment pursuant to § 145.9(e), the requester must also serve a copy of the appeal on the submitter of the information.
(3) The applicant must attach to the application for review a copy of all correspondence relevant to the request, i.e., the initial request, any correspondence amending or modifying the request, and all correspondence from the staff responding to the request.
(4) The application for review shall state such facts and cite such legal or other authorities as the applicant may consider appropriate. The application may, in addition, include a description of the general benefit to the public from disclosure of that information.
(5) If the appeal involves information that is subject to a petition for confidential treatment filed under § 145.9, the submitter of the information shall have an opportunity to respond in writing to the appeal within 10 business days of the date of filing the appeal. Any response shall be sent to the Commission's Office of the General Counsel. Copies shall be sent to the person requesting the information.
(6) The General Counsel, or his or her designee, shall have the authority to consider all appeals under this section from initial determinations of the FOIA compliance staff of the Commission. The General Counsel, or his or her designee, may:
(i) Determine either to affirm or to reverse the initial determination in whole or in part;
(ii) Determine to disclose a record, even if exempt, if good cause for doing so either is shown by the application or otherwise appears;
(iii) Remand the matter to the FOIA compliance staff—
(A) To correct a deficiency in the initial processing of the request, or
(B) When an investigation as to which the staff originally claimed exemption from mandatory disclosure on the basis of 5 U.S.C. 555(b)(7)(A) or 7 U.S.C. 12(a) is subsequently closed; or
(iv) Refer the matter to the Commission for a decision.
(7) If the initial denial of the request for nonpublic records is reversed, the Office of the General Counsel shall, in writing, advise the requester that the records will be available on or after a specified date. If, on appeal, the denial of access to a record is affirmed in whole or in part, the person who requested the information shall be notified in writing of:
(i) The reasons for the denial,
(ii) The mediation services offered by the Office of Government Information Services as a non-exclusive alternative to litigation, and
(iii) The provisions of 5 U.S.C. 552(a)(4) providing for judicial review of a determination to withhold records.
(j) Expedited processing. A request may be given expedited processing if the requester demonstrates a compelling need for the requested records. For purposes of this provision, the term “compelling need” means: That a failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged federal government activity. A requester who seeks expedited processing must demonstrate a compelling need by submitting a statement that is certified by the requester to be true and correct to the best of that person's knowledge and belief. The FOIA compliance staff

will determine whether to provide expedited processing, and notice of the determination will be provided to requester, within ten days after the date of the request. If the request for expedited processing is denied, the requester may file an appeal with the Office of the General Counsel within ten days of the date of the denial by the FOIA compliance staff. The Office of the General Counsel will respond to the appeal within ten days after the date of the appeal.
§ 145.8   Fees for records services.
A schedule of fees for record services, including locating, and making records available, and copying, appears in appendix B to this part. Copies of the schedule of fees may also be obtained upon request made in person, by telephone or by mail from the FOIA compliance staff or at any regional office of the Commission.
§ 145.9   Petition for confidential treatment of information submitted to the Commission.
(a) Purpose. This section provides a procedure by which persons submitting information in any form to the Commission can request that the information not be disclosed pursuant to a request under the Freedom of Information Act, 5 U.S.C. 552. This section does not affect the Commission's right, authority, or obligation to disclose information in any other context.
(b) Scope. The provisions of this section shall apply only where the Commission has not specified that an alternative procedure be utilized in connection with a particular study, report, investigation, or other matter. See 40.8 for procedures to be utilized in connection with filing information required to be filed pursuant to 17 CFR parts 40 and 41.
(c) Definitions. The following definitions apply to this section:
(1) Submitter. A “submitter” is any person who submits any information or material to the Commission or who permits any information or material to be submitted to the Commission. For purposes of paragraph (d)(1)(ii) of this section only, “submitter” includes any person whose information has been submitted to a designated contract market, derivatives clearing organization, swap execution facility, swap data repository or registered futures association that in turn has submitted the information to the Commission.
(2) FOIA requester. A “FOIA requester” is any person who files with the Commission a request to inspect or copy Commission records or documents pursuant to the Freedom of Information Act, 5 U.S.C. 552.
(d) Written request for confidential treatment. (1) Any submitter may request in writing that the Commission afford confidential treatment under the Freedom of Information Act to any information that he or she submits to the Commission. Except as provided in paragraph (d)(4) of this section, no oral requests for confidential treatment will be accepted by the Commission. The submitter shall specify the grounds on which confidential treatment is being requested but need not provide a detailed written justification of the request unless required to do so under paragraph (e) of this section. Confidential treatment may be requested only on the grounds that disclosure:
(i) Is specifically exempted by a statute that either requires that the matters be withheld from the public in such manner as to leave no discretion on the issue or establishes particular criteria for withholding or refers to particular types of matters to be withheld.
(ii) Would reveal the submitter's trade secrets or confidential commercial or financial information.
(iii) Would constitute a clearly unwarranted invasion of the submitter's personal privacy.
(iv) Would reveal investigatory records compiled for law enforcement purposes whose disclosure would deprive the submitter of a right to a fair trial or an impartial adjudication.
(v) Would reveal investigatory records compiled for law enforcement purposes whose disclosure would constitute an unwarranted invasion of the personal privacy of the submitter.
(vi) Would reveal investigatory records compiled for law enforcement purposes when disclosure would interfere with enforcement proceedings or disclose investigative techniques and procedures, provided, that the claim may be made only by a designated contract market, derivatives clearing organization, swap execution facility, swap data repository or registered futures association with regard to its own investigatory records.
(2) The original of any written request for confidential treatment must be sent to the Office of the General Counsel at the Commission's Washington, DC headquarters, Attn: FOIA compliance staff. A copy of any request for confidential treatment shall be sent to the Commission division or office receiving the original of any material for which confidential treatment is being sought.
(3) A request for confidential treatment shall be clearly marked “FOIA Confidential Treatment Request” and shall contain the name, address, and telephone number of the submitter. The submitter is responsible for informing the FOIA compliance staff of any changes in his or her name, address, and telephone number.
(4) A request for confidential treatment should accompany the material for which confidential treatment is being sought. If a request for confidential treatment is filed after the filing of such material, the submitter shall have the burden of showing that it was not possible to request confidential treatment for that material at the time the material was filed. A request for confidential treatment of a future submission will not be processed. All records which contain information for which a request for confidential treatment is made or the appropriate segregable portions thereof should be marked by the person submitting the records with a prominent stamp, typed legend, or other suitable form of notice on each page or segregable portion of each page stating “Confidential Treatment Requested by [name].” If such marking is impractical under the circumstances, a cover sheet prominently marked “Confidential Treatment Requested by [name]” should be securely attached to each group of records submitted for which confidential treatment is requested. Each of the records transmitted in this matter should be individually marked with an identifying number and code so that they are separately identifiable. In some circumstances, such as when a person is testifying in the course of a Commission investigation or providing documents requested in the course of a Commission inspection, it may be impractical to submit a written request for confidential treatment at the time the information is first provided to the Commission. In no circumstances can the need to comply with the requirements of this section justify or excuse any delay in submitting information to the Commission. Rather, in such circumstances, the person testifying or otherwise submitting information should inform the Commission employee receiving the information, at the time the information is submitted or as soon thereafter as practicable, that the person is requesting confidential treatment for the information. The person shall then submit a written request for confidential treatment within 30 days of the submission of the information. If access is requested under the Freedom of Information Act with respect to material for which no timely request for confidential treatment has been made, it may be presumed that the submitter of the information has waived any interest in asserting that the material is confidential.
(5) A request for confidential treatment shall state the length of time for which confidential treatment is being sought.
(6) A request for confidential treatment (as distinguishing from the material that is the subject of the request) shall be considered a public document. When a submitter deems it necessary to include, in its request for confidential treatment, information for which it seeks confidential treatment, the submitter shall place that information in an appendix to the request.
(7) On 10 business days notice from the FOIA compliance staff, a submitter shall submit a detailed written justification of a request for confidential treatment, as specified in paragraph (e) of this section. Upon request and for good cause shown, the FOIA compliance staff may grant an extension of such time. The FOIA compliance staff will notify the submitter that failure to provide timely a detailed written justification will be deemed a waiver of the submitter's opportunity to appeal an adverse determination.
(8)(i) Requests for confidential treatment for any reasonably segregable material that is not exempt from public disclosure under the Freedom of Information Act, as implemented in § 145.5, shall be summarily rejected under § 145.9(d)(9). Requests for confidential treatment of public information contained in financial reports as specified in § 1.10 shall not be processed. A submitter has the burden of specifying clearly and precisely the material that is the subject of the confidential treatment request. A submitter may be able to meet this burden in various ways, including:
(A) Segregating material for which confidential treatment is being sought;
(B) Submitting two copies of the submission: a copy from which material for which confidential treatment is being sought has been obliterated, deleted, or clearly marked and an unmarked copy; and
(C) Clearly describing the material within a submission for which confidential treatment is being sought.
(ii) A submitter shall not employ a method of specifying the material for which confidential treatment is being sought if that method makes it unduly difficult for the Commission to read the full submission, including all portion claimed to be confidential, in its entirely.
(9) If a submitter fails to follow the procedures set forth in paragraphs (d)(1) through (d)(8) of this section, the FOIA compliance staff may summarily reject the submitter's request for confidential treatment with leave to the submitter to refile a proper petition. Failure of the FOIA compliance staff summarily to reject a confidential treatment request pursuant to this paragraph shall not be construed to indicate that the submitter has complied with the procedures set forth in paragraphs (d)(1) through (d)(8) of this section.
(10) Except as provided in paragraph (d)(9) of this section, no determination with respect to any request for confidential treatment will be made until the Commission receives a Freedom of Information Act request for the material for which confidential treatment is being sought.
(e) Detailed written justification of request for confidential treatment. (1) If the FOIA compliance staff determines that a FOIA request seeks material for which confidential treatment has been requested pursuant to § 145.9, the FOIA compliance staff shall require the submitter to file a detailed written justification of the confidential request within ten business days (unless under § 145.9(d)(7) an extension of time has been granted) of that determination unless, pursuant to an earlier FOIA request, a prior determination to release or withhold the material has been made, the submitter has already provided sufficient information to grant the request for confidential treatment; or the material is otherwise in the public domain. The detailed written justification shall be filed with the FOIA compliance staff. It shall be clearly marked “Detailed Written Justification of FOIA Confidential Treatment Request” and shall contain the request number supplied by the Commission. The submitter shall also send a copy of the detailed written justification to the FOIA requester at the address specified by the Commission.
(2) The period for filing a detailed written justification may be extended upon request and for good cause shown.
(3) The detailed written justification of the confidential treatment request shall contain:
(i) The reasons, referring to the specific exemptive provisions of the Freedom of Information Act listed in paragraph (d)(1) of this section, why the information that is the subject of the FOIA request should be withheld from access under the Freedom of Information Act;
(ii) The applicability of any specific statutory or regulatory provisions that govern or may govern the treatment of the information;
(iii) The existence and applicability of prior determinations by the Commission, other federal agencies, or courts concerning the specific exemptive provisions of the Freedom of Information Act pursuant to which confidential treatment is being requested. Submitters shall satisfy any evidentiary burdens imposed upon them by applicable Freedom of Information Act case law.
(iv) Such additional facts and authorities as the submitter may consider appropriate.
(4) The detailed written justification of a confidential treatment request shall be accompanied by affidavits to the extent necessary to establish the facts necessary to satisfy the submitter's evidentiary burden.
(5) The detailed written justification of a confidential treatment request (as distinguished from the material that is the subject of the request) shall be considered a public document. However, a submitter will be permitted to submit to the Commission supplementary confidential affidavits with his or her detailed written justification if that is the only way in which he or she can convincingly demonstrate that the material that is the subject of the confidential treatment request should not be disclosed to the FOIA requester.
(f) Initial determination with respect to petition for confidential treatment. (1) The FOIA compliance staff, in consultation with the Office in which the record was located, shall issue an initial determination with respect to a confidential treatment request for material that is responsive to the FOIA request. This determination shall be issued at the same time as the initial determination with respect to the FOIA request. See § 145.7(g). To the extent that the initial determination grants a confidential treatment request in full or in part, it should specify the FOIA exemptions upon which this determination is based and briefly describe the material to which each exemption applies. See § 145.7(g)(2). To the extent that the initial determination denies confidential treatment to any material for which confidential treatment was requested, it should briefly describe the material for which confidential treatment is denied.
(2) If the FOIA compliance staff determines that a confidential treatment request shall be denied in full or in part, the submitter shall be informed of his or her right to appeal to the Commission's General Counsel in accordance with the procedures set forth in paragraph (g) of this section. The material for which confidential treatment was denied shall be released to the FOIA requester if the submitter does not file an appeal within 10 business days of the date on which his or her request was denied.
(3) If the FOIA compliance staff determines that a confidential treatment request shall be granted in full or in part, the FOIA requester shall be informed of his or her right to appeal to the Commission's General Counsel in accordance with the procedures set forth in § 145.7(h).
(g) Appeal from initial determination that confidential treatment is not warranted. (1) An appeal from an initial determination to deny a confidential treatment request in full or in part shall be filed with the General Counsel of the Commission. No disclosure of the material that is the subject of the appeal shall be made until the appeal is resolved. If both a submitter and a FOIA requester appeal to the General Counsel from a partial grant and partial denial of a confidential treatment request, those appeals shall be consolidated.
(2) Any appeal of a denial of a request for confidential treatment shall be in writing, and shall be clearly marked “FOIA Confidential Treatment Appeal.” The appeal shall include a copy of the initial determination and shall clearly indicate the portions of the initial determination from which an appeal is being taken.
(3) The appeal shall be sent to the Commission's Office of the General Counsel. A copy of the appeal shall be sent to the FOIA requester. The General Counsel or his or her designee shall have the authority to consider all appeals from initial determinations of the FOIA compliance staff. The General Counsel may, in his sole and unfettered discretion, refer such appeals and questions concerning stays under paragraph (g)(10) of this section to the Commission for decision.
(4) In the appeal, the submitter may supply additional substantiation for his or her request for confidential treatment, including additional affidavits and additional legal argument. Such submissions shall be governed by paragraph (e)(5) of this section.
(5) The FOIA requester shall have an opportunity to respond in writing to the appeal within 10 business days of the date of filing of the FOIA Confidential Treatment Appeal. The FOIA requester need not respond, however. Any response shall be sent to the Commission's Office of the General Counsel. A copy shall be sent to the submitter.
(6) All FOIA Confidential Treatment Appeals and all responses thereto shall be considered public documents.
(7) The General Counsel will make a determination with respect to any appeal within twenty business days after receipt by the Office of the General Counsel of such appeal or within such extended period as may be permitted in accordance with the standards set forth in § 145.7(g)(3). Although other procedures may be employed, to the extent possible the General Counsel will decide the appeal on the basis of the affidavits and other documentary evidence submitted by the submitter and the FOIA requests.
(8) The General Counsel or his or her designee shall have the authority to remand any matter to the FOIA compliance staff to correct deficiencies in the initial processing of the confidential treatment request.
(9) If the General Counsel or his or her designee denies a confidential treatment appeal in full or in part, the information for which confidential treatment is denied shall be disclosed to the FOIA requester 10 business days later, subject to any stay entered pursuant to paragraph (g)(10) of this section.
(10) The General Counsel or their designee shall have the authority to enter and vacate stays as set forth below. If, within 10 business days of the date of issuance of a determination by the General Counsel or their designee to disclose information for which a submitter sought confidential treatment, the submitter commences an action in federal court concerning that determination, the General Counsel will stay the public disclosure of the information pending final judicial resolution of the matter. The General Counsel or their designee may vacate a stay entered under this section, either on his or her own motion or at the request of the FOIA requester. If such a stay is vacated, the information will be released to the requester 10 business days after the submitter is notified of this action, unless a court orders otherwise.
(h) Extensions of time limits. Any time limit under this section may be extended for good cause shown, in the discretion of the Commission, the Commission's General Counsel, or the FOIA compliance staff.
(i) A submitter whose confidential treatment request has been upheld by the Commission shall, upon request of the General Counsel, aid the Commission in defending a court action to compel the Commission to disclose the information subject to the confidential treatment request. If the submitter is unwilling to aid the Commission in this regard, the General Counsel may, in appropriate cases, make the information available to the public.