Goto Section: 0.460 | 0.463 | Table of Contents
FCC 0.461
Revised as of October 1, 2019
Goto Year:2018 |
2020
§ 0.461 Requests for inspection of materials not routinely available for
public inspection.
Any person desiring to inspect Commission records that are not
specified in § 0.453 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.
(2) The records in question must be reasonably described by the person
requesting them to permit personnel to locate them 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 must 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 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,
including the date range of the records sought, if applicable, and the
persons/offices to be searched, if known. Upon request by Commission
staff, the requester shall provide his or her street address, phone
number (if any), and email address (if any).
(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) Filed electronically though the Internet at
http://foiaonline.regulations.gov/; or
(ii) Delivered or mailed to the Managing Director, Attn: FOIA Request,
FCC, 445 12th Street SW., Room 1-A836, Washington, DC 20554.
(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. The Chief of the Bureau or Office may also designate an
appropriate person to sign the response to any FOIA request. See
§ 0.461(m).
(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 paragraph (e) of this
section) 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 entered into the FOIAonline system. The request will
be reviewed and, if it is determined that the request meets all the
requirements of a proper FOIA request, will be designated as perfected.
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) Where the amount of fees authorized is less than the estimated cost
for completing the production;
(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
paragraph (e)(2)(i)(A) of this section. Such request must be made no
later than ten calendar days after a request is properly received by
the custodian of records under paragraph (e)(1) of this section.
(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
email at foia-public-liaison@fcc.gov or by viewing their request at
http://foiaonline.regulations.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.
(iii) If the records in the possession of the Commission involve the
equities of another agency, the Commission will consult with that
agency prior to releasing the records.
(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 has 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 Commission may, at its discretion, grant the request
in full or in part, or deny the request.
(5) If there is a statutory basis for withholding part of a document
from inspection, to the extent that portion is reasonably segregable,
that part will be deleted and the remainder will be made available for
inspection. Unless doing so would harm an interest protected by an
applicable exemption, records disclosed in part shall be marked or
annotated, if technically feasible, to show the amount of information
deleted, the location of the information deleted, and the exemption
under which the deletion is made.
(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 a request is perfected 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
perfected by the FOIA Control Office. However, if a request for
clarification has been made under paragraph (e)(2)(i)(A) of this
section or an issue is outstanding regarding the payment of fees for
processing the FOIA request is pending under paragraph (e)(2)(i)(B) of
this section, 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, upon timely notice to the requester,
extend the time for action by up to ten business days, in any of the
following circumstances:
(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
email 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 provide the requester with the records, if
any, that could be located and produced within the allotted time. The
requester may file an application for review by the Commission.
(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 paragraph (i) of this
section.
(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 paragraph (d) of this section.
(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. Simply stating
that the request should be expedited is not a sufficient basis to
obtain expedited processing.
(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 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 shall be filed within
ten business days after the date of the written ruling, shall be
delivered or mailed to the General Counsel, or sent via email to
FOIA-Appeal@fcc.gov, 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. An application for review is considered filed when it is
received by the Commission. 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. A denial of an application for review is not subject to
a petition for reconsideration under § 1.106 of this chapter.
(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 90 calendar
days after the date of the written ruling by the custodian of records.
An application for review is considered filed when it is received by
the Commission. The application shall be delivered or mailed to the
General Counsel, or sent via email to FOIA-Appeal@fcc.gov. 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 14 calendar 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 14 calendar 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 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 paragraph
(i) or (j) of this section.
(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.
[ 82 FR 4192 , Jan. 13, 2017]
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Goto Section: 0.460 | 0.463
Goto Year: 2018 |
2020
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