Goto Section: 0.460 | 0.463 | Table of Contents
FCC 0.461
Revised as of October 1, 2014
Goto Year:2013 |
2015
§ 0.461 Requests for inspection of materials not routinely available for
public inspection.
Any person desiring to inspect Commission records that are not listed
in § 0.453 or § 0.455 shall file a request for inspection meeting the
requirements of this section. The FOIA Public Liaison is available to
assist persons seeking records under this section. See § 0.441(a).
(a)(1) Records include:
(i) Any information that would be an agency record subject to the
requirements of the Freedom of Information Act when maintained by the
Commission in any format, including an electronic format; and
(ii) Any information maintained for the Commission by an entity under
Government contract, for purposes of records management.
(2) The records in question must be reasonably described by the person
requesting them, so as to permit their location by staff personnel with
a reasonable amount of effort. Whenever possible, a request should
include specific information about each record sought, such as the
title or name, author, recipient, and subject matter of the record.
Requests should also specify the date or time period for the records
sought. The custodian of records sought may contact the requester to
obtain further information about the records sought to assist in
locating them.
(3) The person requesting records under this section may specify the
form or format of the records to be produced provided that the records
may be made readily reproducible in the requested form or format.
(b)(1) Requests shall be captioned "Freedom of Information Act
Request," shall be dated, shall list the telephone number (if any),
street address, and e-mail address (if any) of the person making the
request, and should reasonably describe, for each document requested
(see § 0.461(a)(1)), all information known to the person making the
request that would be helpful in identifying and locating the document.
(2) The request shall, in addition, specify the maximum search fee the
person making the request is prepared to pay or a request for waiver or
reduction of fees if the requester is eligible (see § 0.470(e)). By
filing a FOIA request, the requester agrees to pay all applicable fees
charged under § 0.467, unless the person making the request seeks a
waiver of fees (see § 0.470(e)), in which case the Commission will rule
on the waiver request before proceeding with the search.
(c) If the records are of the kinds listed in § 0.457 or if they have
been withheld from inspection under § 0.459, the request shall, in
addition, contain a statement of the reasons for inspection and the
facts in support thereof. In the case of other materials, no such
statement need accompany the request, but the custodian of the records
may require the submission of such a statement if he or she determines
that the materials in question may lawfully be withheld from
inspection.
(d)(1) Requests shall be
(i) Delivered or mailed to the Managing Director, FCC, 445--12th
Street, SW., Room 1-A836, Washington, DC 20554;
(ii) Sent by e-mail to foia@fcc.gov;
(iii) Filed electronically though the Internet at
http://www.fcc.gov/foia/#reqform; or
(iv) Sent by facsimile to (202) 418-2826 or (202) 418-0521. If the
request is filed by mail or facsimile, an original and two copies of
the request shall be submitted. If the request is enclosed in an
envelope, the envelope shall be marked, "Freedom of Information Act
Request."
(2) For purposes of this section, the custodian of the records is the
Chief of the Bureau or Office where the records are located. The Chief
of the Bureau or Office may designate an appropriate person to act on a
FOIA request.
(3) If the request is for materials submitted to the Commission by
third parties and not open to routine public inspection under
§ 0.457(d), § 0.459, or another Commission rule or order, or if a
request for confidentiality is pending pursuant to § 0.459, or if the
custodian of records has reason to believe that the information may
contain confidential commercial information, one copy of the request
will be provided by the custodian of the records (see § 0.461(e)) to
the person who originally submitted the materials to the Commission. If
there are many persons who originally submitted the records and are
entitled to notice under this paragraph, the custodian of records may
use a public notice to notify the submitters of the request for
inspection. The submitter or submitters will be given ten calendar days
to respond to the FOIA request. See § 0.459(d)(1). If a submitter has
any objection to disclosure, he or she is required to submit a detailed
written statement specifying all grounds for withholding any portion of
the information (see § 0.459). This response shall be served on the
party seeking to inspect the records. The requester may submit a reply
within ten calendar days unless a different period is specified by the
custodian of records. The reply shall be served on all parties that
filed a response. In the event that a submitter fails to respond within
the time specified, the submitter will be considered to have no
objection to disclosure of the information.
Note to paragraph (d)(3): Under the ex parte rules, § 1.1206(a)(7) of
this chapter, a proceeding involving a FOIA request is a
permit-but-disclose proceeding, but is subject to the special service
rules in this paragraph. We also note that while the FOIA request
itself is a permit-but-disclose proceeding, a pleading in a FOIA
proceeding may also constitute a presentation in another proceeding if
it addresses the merits of that proceeding.
(e)(1) When the request is received by the Managing Director, it will
be assigned to the Freedom of Information Act (FOIA) Control Office,
where it will be date-stamped and assigned to the appropriate custodian
of the records. A FOIA request is then considered properly received.
This will occur no later than ten calendar days after the request is
first received by the agency.
(2)(i) Except for the purpose of making a determination regarding
expedited processing under paragraph (h) of this section, the time for
processing a request for inspection of records will be tolled
(A) While the custodian of records seeks reasonable clarification of
the request;
(B) Until clarification with the requester of issues regarding fee
assessment occurs, including:
(1) While there is an unresolved fee waiver issue pending under
§ 0.470(e), unless the requester has provided a written statement
agreeing to pay some or all of the fees pending the outcome of the
waiver question;
(2) Following the denial of a fee waiver, unless the requester had
provided a written statement agreeing to pay the fees if the fee waiver
was denied;
(3) Where advance payment is required pursuant to § 0.469 and has not
been made.
(ii) Only one Commission request for information shall be deemed to
toll the time for processing a request for inspection of records under
§ 0.461(e)(2)(i)(A). Such request must be made no later than ten
calendar days after a request is properly received by the custodian of
records under § 0.461(e)(1).
(3) The FOIA Control Office will send an acknowledgement to the
requester notifying the requester of the control number assigned to the
request, the due date of the response, and the telephone contact number
(202-418-0440) to be used by the requester to obtain the status of the
request. Requesters may also obtain the status of an FOIA request via
e-mail at foia@fcc.gov.
(4) Multiple FOIA requests by the same or different FOIA requesters may
be consolidated for disposition. See also § 0.470(b)(2).
(f) Requests for inspection of records will be acted on as follows by
the custodian of the records.
(1) If the Commission is prohibited from disclosing the records in
question, the request for inspection will be denied with a statement
setting forth the specific grounds for denial.
(2)(i) If records in the possession of the Commission are the property
of another agency, the request will be referred to that agency and the
person who submitted the request will be so advised, with the reasons
for referral.
(ii) If it is determined that the FOIA request seeks only records of
another agency or department, the FOIA requester will be so informed by
the FOIA Control Officer and will be directed to the correct agency or
department.
(3) If it is determined that the Commission does not have authority to
withhold the records from public inspection, the request will be
granted.
(4) If it is determined that the Commission does have authority to
withhold the records from public inspection, the considerations
favoring disclosure and non-disclosure will be weighed in light of the
facts presented, and the request will be granted, either conditionally
or unconditionally, or denied.
(5) If there is a statutory basis for withholding part of a document
from inspection, that part will be deleted and the remainder will be
made available for inspection. Records disclosed in part shall be
marked or annotated to show the amount of information deleted unless
doing so would harm an interest protected by an applicable exemption.
The location of the information deleted and the exemption under which
the deletion is made also shall be indicated on the record, if
technically feasible.
(6) In locating and recovering records responsive to an FOIA request,
only those records within the Commission's possession and control as of
the date of its receipt of the request shall be considered.
(g)(1) The custodian of the records will make every effort to act on
the request within twenty business days after it is received and
date-stamped by the FOIA Control Office. However, if a request for
clarification has been made under § 0.461(e)(2)(i)(A) or an issue is
outstanding regarding the payment of fees for processing the FOIA
request is pending under § 0.461(e)(2)(i)(B), the counting of time will
start upon resolution of these requests. If it is not possible to
locate the records and to determine whether they should be made
available for inspection within twenty business days, the custodian
may, in any of the following circumstances, extend the time for action
by up to ten business days:
(i) It is necessary to search for and collect the requested records
from field facilities or other establishments that are separate from
the office processing the request.
(ii) It is necessary to search for, collect and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
(iii) It is necessary to consult with another agency having a
substantial interest in the determination of the request, or among two
or more components of the Commission having substantial subject matter
interest therein.
(2) The custodian of the records will notify the requester in writing
of any extension of time exercised pursuant to paragraph (g) of this
section. The custodian of the records may also call the requester to
extend the time provided a subsequent written confirmation is provided.
If it is not possible to locate the records and make the determination
within the extended period, the person or persons who made the request
will be provided an opportunity to limit the scope of the request so
that it may be processed within the extended time limit, or an
opportunity to arrange an alternative time frame for processing the
request or a modified request, and asked to consent to an extension or
further extension. If the requester agrees to an extension, the
custodian of the records will confirm the agreement in a letter or
e-mail specifying the length of the agreed-upon extension. If he or she
does not agree to an extension, the request will be denied, on the
grounds that the custodian has not been able to locate the records
and/or to make the determination within the period for a ruling
mandated by the Freedom of Information Act, 5 U.S.C. 552. In that
event, the custodian will continue to search for and/or assess the
records and will advise the person who made the request of further
developments; but that person may file an application for review by the
Commission. When action is taken by the custodian of the records,
written notice of the action will be given. Records will be made
available with the written notice of action or as soon thereafter as is
feasible.
(3) If the custodian of the records grants a request for inspection of
records submitted to the Commission in confidence under § 0.457(d),
§ 0.459, or some other Commission rule or order, the custodian of the
records will give the submitter written notice of the decision and of
the submitter's right to seek review pursuant to § 0.461(i).
(h)(1) Requesters who seek expedited processing of FOIA requests shall
submit such requests, along with their FOIA requests, to the Managing
Director, as described in § 0.461(d). If the request is enclosed in an
envelope, the envelope shall be marked "Request for Expedited
Proceeding--FOIA Request." An original and two copies of the request
for expedition shall be submitted, but only one copy is necessary if
submitted by e-mail or by the Internet. When the request is received by
the Managing Director, it, and the accompanying FOIA request, will be
assigned to the FOIA Control Office, where it will be date-stamped and
assigned to the custodian of records.
(2) Expedited processing shall be granted to a requester demonstrating
a compelling need that is certified by the requester to be true and
correct to the best of his or her knowledge and belief.
(3) For purposes of this section, compelling need means--
(i) That 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
(ii) With respect to a request made by a person primarily engaged in
disseminating information, there is an urgency to inform the public
concerning actual or alleged Federal Government activity.
(4)(i) Notice of the determination whether to grant expedited
processing shall be provided to the requester by the custodian of
records within ten calendar days after receipt of the request by the
FOIA Control Office. Once the determination has been made to grant
expedited processing, the custodian shall process the FOIA request as
soon as practicable.
(ii) If a request for expedited processing is denied, the person
seeking expedited processing may file an application for review within
five business days after the date of the written denial. The
application for review and the envelope containing it (if any) shall be
captioned "Review of FOIA Expedited Proceeding Request." The
application for review shall be delivered or mailed to the General
Counsel. (For general procedures relating to applications for review,
see § 1.115 of this chapter.) The Commission shall act expeditiously on
the application for review, and shall notify the custodian of records
and the requester of the disposition of such an application for review.
(i)(1) If a request for inspection of records submitted to the
Commission in confidence under § 0.457(d), § 0.459, or another
Commission rule or order is granted in whole or in part, an application
for review may be filed by the person who submitted the records to the
Commission, by a third party owner of the records or by a person with a
personal privacy interest in the records, or by the person who filed
the request for inspection of records within the ten business days
after the date of the written ruling. The application for review and
the envelope containing it (if any) shall be captioned "Review of
Freedom of Information Action." The application for review shall be
filed within ten business days after the date of the written ruling,
shall be delivered or mailed to the General Counsel, and shall be
served on the person who filed the request for inspection of records
and any other parties to the proceeding. The person who filed the
request for inspection of records may respond to the application for
review within ten business days after it is filed.
(2) The first day to be counted in computing the time period for filing
the application for review is the day after the date of the written
ruling. If an application for review is not filed within this period,
the records will be produced for inspection.
(3) If an application for review is denied, the person filing the
application for review will be notified in writing and advised of his
or her rights.
(4) If an application for review filed by the person who submitted,
owns, or has a personal privacy interest in the records to the
Commission is denied, or if the records are made available on review
which were not initially made available, the person will be afforded
ten business days from the date of the written ruling in which to move
for a judicial stay of the Commission's action. The first day to be
counted in computing the time period for seeking a judicial stay is the
day after the date of the written ruling. If a motion for stay is not
made within this period, the records will be produced for inspection.
(j) Except as provided in paragraph (i) of this section, an application
for review of an initial action on a request for inspection of records,
a fee determination (see § 0.467 through § 0.470), or a fee reduction
or waiver decision (see § 0.470(e)) may be filed only by the person who
made the request. The application shall be filed within 30 calendar
days after the date of the written ruling by the custodian of records.
The application for review and the envelope (if any) shall be
captioned, "Review of Freedom of Information Action." The application
shall be delivered or mailed to the General Counsel. If the proceeding
involves records subject to confidential treatment under § 0.457 or
§ 0.459, or involves a person with an interest as described in
§ 0.461(i), the application for review shall be served on such persons.
That person may file a response within ten business days after the
application for review is filed. If the records are made available for
review, the person who submitted them to the Commission will be
afforded ten business days after the date of the written ruling to seek
a judicial stay. See paragraph (i) of this section. The first day to be
counted in computing the time period for filing the application for
review or seeking a judicial stay is the day after the date of the
written ruling.
Note to paragraphs (i) and (j): The General Counsel may review
applications for review with the custodian of records and attempt to
informally resolve outstanding issues with the consent of the
requester. For general procedures relating to applications for review,
see § 1.115 of this chapter.
(k)(1)(i) The Commission will make every effort to act on an
application for review of an action on a request for inspection of
records within twenty business days after it is filed. In the following
circumstances and to the extent time has not been extended under
paragraphs (g)(1)(i), (ii), or (iii) of § 0.461(g) of this section, the
Commission may extend the time for acting on the application for review
up to ten business days. (The total period of extensions taken under
this paragraph and under paragraph (g) of this section without the
consent of the person who submitted the request shall not exceed ten
business days.):
(A) It is necessary to search for and collect the requested records
from field facilities or other establishments that are separate from
the office processing the request;
(B) It is necessary to search for, collect and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
(C) It is necessary to consult with another agency having a substantial
interest in the determination of the request or among two or more
components of the Commission having substantial subject matter interest
therein.
(ii) If these circumstances are not present, the person who made the
request may be asked to consent to an extension or further extension.
If the requester or person who made the request agrees to an extension,
the General Counsel will confirm the agreement in a letter specifying
the length of the agreed-upon extension. If the requestor or person who
made the request does not agree to an extension, the Commission will
continue to search for and/or assess the records and will advise the
person who made the request of further developments; but that person
may file a complaint in an appropriate United States district court.
(2) The Commission may at its discretion or upon request consolidate
for consideration related applications for review filed under
§ 0.461(i) or § 0.461(j).
(l)(1) Subject to the application for review and judicial stay
provisions of paragraphs (i) and (j) of this section, if the request is
granted, the records will be produced for inspection at the earliest
possible time.
(2) If a request for inspection of records becomes the subject of an
action for judicial review before the custodian of records has acted on
the request, or before the Commission has acted on an application for
review, the Commission may continue to consider the request for
production of records.
(m) Staff orders and letters ruling on requests for inspection are
signed by the official (or officials) who give final approval of their
contents. Decisions of the Commission ruling on applications for review
will set forth the names of the Commissioners participating in the
decision.
(n) Records shall be inspected within seven days after notice is given
that they have been located and are available for inspection. After
that period, they will be returned to storage, and additional charges
may be imposed for again producing them.
[ 74 FR 14078 , Mar. 30, 2009, as amended at 76 FR 24389 , May 2, 2011]
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Goto Year: 2013 |
2015
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