PART 4—PUBLIC RECORDS AND THE FREEDOM OF INFORMATION ACT Authority: 5 U.S.C. 552, as amended. Source: 44 FR 33368, June 8, 1979, unless otherwise noted. § 4.1 Definitions. As used in this part: (a) Commission (b) Commissioner (c) Request (d) Requestor (e) Act (f) Public Disclosure and Media Relations Division (g) Direct costs (h) Search (i) Review i.e. (j) Duplication (k) Commercial use (l) Educational institution (m) Non-commercial scientific institution (n) Representative of the news media (o) Record [44 FR 33368, June 8, 1979, as amended at 45 FR 31291, May 13, 1980; 52 FR 39212, Oct. 21, 1987; 65 FR 9206, Feb. 24, 2000; 79 FR 77844, Dec. 29, 2014; 81 FR 92439, Dec. 23, 2016; 89 FR 213, Jan. 2, 2024] § 4.2 Policy on disclosure of records. (a) The Commission will make the fullest possible disclosure of records to the public, consistent with the rights of individuals to privacy, the rights of persons contracting with the Commission with respect to trade secret and commercial or financial information entitled to confidential treatment, and the need for the Commission to promote free internal policy deliberations and to pursue its official activities without undue disruption. (b) All Commission records shall be available to the public unless they are specifically exempt under this part. (c) To carry out this policy, the Commission shall designate a Freedom of Information Act Officer. § 4.3 Scope. The regulations in this part implement the provisions of the Freedom of Information Act, 5 U.S.C. 552, with respect to the availability of records for inspection and copying. [44 FR 33368, June 8, 1979, as amended at 45 FR 31291, May 13, 1980] § 4.4 Availability of records. (a) In accordance with 5 U.S.C. 552(a)(2), the Commission shall make the following materials available for public inspection in an electronic format: (1) Statements of policy and interpretation which have been adopted by the Commission; (2) Administrative staff manuals and instructions to staff that affect a member of the public; (3) Opinions of Commissioners rendered in enforcement cases, General Counsel's Reports and non-exempt 52 U.S.C. 30109 investigatory materials shall be placed on the public record of the Agency no later than 30 days from the date on which all respondents are notified that the Commission has voted to close such an enforcement file; (4) Copies of all records, regardless of form or format, which have been released to any person under this paragraph (a) and; (i) Which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records, or (ii) Which have been requested three or more times; and (5) A general index of the records referred to in paragraph (a)(4) of this section. (b) In accordance with 5 U.S.C. 552(a)(3), the Commission shall make available, upon proper request, all non-exempt Agency records, or portions of records, not previously made public pursuant to 5 U.S.C. 552(a)(1) and (a)(2). (c) The Commission shall maintain and make available for public inspection in an electronic format current indexes and supplements providing identifying information regarding any matter issued, adopted, or promulgated after April 15, 1975, as required by 5 U.S.C. 552(a)(2)(C) and (E). These indexes and supplements shall be published and made available on at least a quarterly basis for public distribution unless the Commission determines by Notice in the Federal Register (d) The Freedom of Information Act and the provisions of this part apply only to existing records; they do not require the creation of new records. (e) If documents or files contain both disclosable and nondisclosable information, the nondisclosable information will be deleted and the disclosable information released unless the disclosable portions cannot be reasonably segregated from the other portions in a manner which will allow meaningful information to be disclosed. (f) All records created in the process of implementing provisions of 5 U.S.C. 552 will be maintained by the Commission in accordance with the authority granted by General Records Schedule 14, approved by the National Archives and Records Service of the General Services Administration. (g) The Commission encourages the public to explore the information available on the Commission's website, located at http://www.fec.gov. Availability of FEC Information, (h) The Commission will withhold information under this section only if the Commission reasonably foresees that disclosure would harm an interest protected by an exemption described in § 4.5(a); or disclosure is prohibited by law. The Commission will consider whether partial disclosure of information is possible whenever it determines that full disclosure of a requested record is not possible, and the Commission will take reasonable steps necessary to segregate and release nonexempt information. [44 FR 33368, June 8, 1979, as amended at 45 FR 31291, May 13, 1980; 65 FR 9206, Feb. 24, 2000; 79 FR 77844, Dec. 29, 2014; 89 FR 213, Jan. 2, 2024; 89 FR 35687, May 2, 2024] § 4.5 Categories of exemptions. (a) No requests under 5 U.S.C. 552 shall be denied release unless the record contains, or its disclosure would reveal, matters that are: (1) Specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order; (2) Related solely to the internal personnel rules and practices of the Commission; (3) Specifically exempted from disclosure by statute, provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; (4) Trade secrets and commercial or financial information obtained from a person which are privileged or confidential. Such information includes confidential business information which concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the production, sales, shipments, purchases, transfers, identification of customers, inventories, or amount of source of income, profits, losses, or expenditures of any person, firm, partnership, corporation, or other organization, if the disclosure is likely to have the effect of either impairing the Commission's ability to obtain such information as is necessary to perform its statutory functions, or causing substantial harm to the competitive position of the person, firm, partnership, corporation, or other organization from which the information was obtained, unless the Commission is required by law to disclose such information. These procedures shall be used for submitting business information in confidence: (i) A request for confidential treatment shall be addressed to the Chief FOIA Officer and filed pursuant to 11 CFR 100.19(g), and shall indicate clearly on the envelope or subject line, or in a similarly prominent location, that it is a request for confidential treatment. (ii) With each submission of, or offer to submit, business information which a submitter desires to be treated as confidential under paragraph (a)(4) of this section, the submitter shall provide the following, which may be disclosed to the public: (A) A written description of the nature of the subject information, and a justification for the request for its confidential treatment, and (B) a certification in writing under oath that substantially identical information is not available to the public. (iii) Approval or denial of requests shall be made only by the Chief FOIA Officer or his or her designees. A denial shall be in writing, shall specify the reason therefore, and shall advise the submitter of the right to appeal to the Commission. (iv) For good cause shown, the Commission may grant an appeal from a denial by the Chief FOIA Officer or his or her designee if the appeal is filed within fifteen (15) days after receipt of the denial. An appeal shall be addressed to the Chief FOIA Officer and filed pursuant to 11 CFR 100.19(g) and shall clearly indicate that it is a confidential submission appeal. An appeal will be decided within twenty (20) days after its receipt (excluding Saturdays, Sundays and legal holidays) unless an extension, stated in writing with the reasons therefore, has been provided the person making the appeal. (v) Any business information submitted in confidence and determined to be entitled to confidential treatment shall be maintained in confidence by the Commission and not disclosed except as required by law. In the event that any business information submitted to the Commission is not entitled to confidential treatment, the submitter will be permitted to withdraw the tender unless it is the subject of a request under the Freedom of Information Act or of judicial discovery proceedings. (vi) Since enforcement actions under 52 U.S.C. 30109 are confidential by statute, the procedures outlined in § 4.5(a)(4) (i) thru (v) are not applicable. (5) Inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the Commission, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested. (6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. (7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information: (i) Could reasonably be expected to interfere with enforcement proceedings; (ii) Would deprive a person of a right to a fair trial or an impartial adjudication; (iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy; (iv) 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; (v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or (vi) Could reasonably be expected to endanger the life or physical safety of any individual. (b) Whenever a request is made which involves access to records described in 11 CFR 4.5(a)(7); and (1) The investigation or proceeding involves a possible violation of criminal law; and (2) There is reason to believe that— (i) The subject of the investigation or proceeding is not aware of its pendency; and (ii) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings; The agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of the Freedom of Information Act. (c) Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt. The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by an exemption in paragraph (a) of this section under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made. (d) If a requested record is one of another government agency or deals with subject matter to which a government agency other than the Commission has exclusive or primary responsibility, the request for such a record shall be promptly referred by the Commission to that agency for disposition or guidance as to disposition. (e) Nothing in this part authorizes withholding of information or limiting the availability of records to the public, except as specifically provided in this part; nor is this part authority to withhold information from Congress. [44 FR 33368, June 8, 1979, as amended at 50 FR 50778, Dec. 12, 1985; 52 FR 23638, June 24, 1987; 52 FR 39212, Oct. 21, 1987; 65 FR 9206, Feb. 24, 2000; 75 FR 31, Jan. 4, 2010; 79 FR 77844, Dec. 29, 2014; 82 FR 60852, Dec. 26, 2017; 89 FR 213, Jan. 2, 2024; 89 FR 35687, May 2, 2024] § 4.6 Discretionary release of exempt records. The Commission may, in its discretion, release requested records despite the applicability of the exemptions in § 4.5(a), if it determines that it is in the public interest and that the rights of third parties would not be prejudiced. § 4.7 Requests for records. (a) [Reserved] (b)(1) Requests for copies of records pursuant to the Freedom of Information Act shall be addressed to the Chief FOIA Officer and filed pursuant to 11 CFR 100.19(g). The request shall reasonably describe the records sought with sufficient specificity with respect to names, dates, and subject matter, to permit the records to be located. A requester will be promptly advised if the records cannot be located on the basis of the description given and that further identifying information must be provided before the request can be satisfied. (2) Requests for Commission records and copies thereof shall specify the preferred form or format (including electronic formats) of the response. The Commission shall 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 shall respond in the form or format in which the document is most accessible to the Commission. (c) The Commission shall determine within twenty working days after receipt of a request, or twenty working days after an appeal is granted, whether to comply with such request, unless in unusual circumstances the time is extended or subject to § 4.9(f)(3), which governs advance payments. The Commission shall immediately notify the requester of such determination, the reasons therefor, and the right of the requester to seek assistance from the FOIA Public Liaison for the Commission and to seek dispute resolution services from the Office of Government Information Services. In the event the time is extended, the requester shall be notified of the reasons for the extension and the date on which a determination is expected to be made, but in no case shall the extended time exceed ten working days. An extension may be made if it is— (1) Necessary to locate records or transfer them from physically separate facilities; or (2) Necessary to search for, collect, and appropriately examine a large quantity of separate and distinct records which are the subject of a single request; or (3) Necessary for consultation with another agency which has a substantial interest in the determination of the request, or with two or more components of the Commission which have a substantial subject matter interest therein. (d) If the Commission determines that an extension of time greater than ten working days is necessary to respond to a request satisfying the “unusual circumstances” specified in paragraph (c) of this section, the Commission shall so notify the requester and give the requester an opportunity to limit the scope of the request so that it may be processed within the time limit prescribed in paragraph (c) of this section, or arrange with the Commission an alternative time frame for processing the request or a modified request. (e) The Commission may aggregate and process as a single request requests by the same requester, or a group of requesters acting in concert, if the Commission reasonably believes that the requests actually constitute a single request that would otherwise satisfy the unusual circumstances specified in paragraph (c) of this section, and the requests involve clearly related matters. (f) The Commission uses a multitrack system to process requests under the Freedom of Information Act that is based on the amount of work and/or time involved in processing requests. Requests for records are processed in the order they are received within each track. Upon receipt of a request for records, the Commission shall determine which track is appropriate for the request. The Commission may contact requesters whose requests do not appear to qualify for the fastest tracks and provide such requesters the opportunity to limit their requests so as to qualify for a faster track. Requesters who believe that their requests qualify for the fastest tracks and who wish to be notified if the Commission disagrees may so indicate in the request and, where appropriate and feasible, shall also be given an opportunity to limit their requests. (g) The Commission shall consider requests for the expedited processing of requests in cases where the requester demonstrates a compelling need for such processing. (1) The term compelling need means: (i) 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 (ii) 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. (2) Requesters for expedited processing must include in their requests a statement setting forth the basis for the claim that a “compelling need” exists for the requested information, certified by the requester to be true and correct to the best of his or her knowledge and belief. (3) The Commission shall determine whether to grant a request for expedited processing and notify the requester of such determination within ten days of receipt of the request. Denials of requests for expedited processing may be appealed as set forth in § 4.8. The Commission shall expeditiously determine any such appeal. As soon as practicable, the Commission shall process the documents responsive to a request for which expedited processing is granted. (h) Any person denied access to records by the Commission shall be notified immediately giving reasons therefor, and notified of the right of such person to appeal such adverse determination to the Commission within 90 days from the date of the adverse determination and the right of such person to seek dispute resolution services from the FOIA Public Liaison for the Commission or the Office of Government Information Services. (i) The date of receipt of a request under this part shall be the date on which the FOIA Officer actually receives the request. (j) The FOIA Public Liaison is responsible for reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes. The FOIA Public Liaison may be contacted at the address identified in the definition of “Commission” in § 1.2 of this chapter. [44 FR 33368, June 8, 1979, as amended at 45 FR 31292, May 13, 1980; 50 FR 50778, Dec. 12, 1985; 52 FR 39213, Oct. 21, 1987; 65 FR 9206, Feb. 24, 2000; 75 FR 31, Jan. 4, 2010; 82 FR 60853, Dec. 26, 2017; 89 FR 213, Jan. 2, 2024; 89 FR 35687, May 2, 2024] § 4.8 Mediation services and appeal of denial. (a) Any person who has been notified pursuant to § 4.7(h) of this part that his/her request for inspection of a record or for a copy has been denied, or who has received no response within twenty working days (or within such extended period as is permitted under § 4.7(c) of this part) after the request has been received by the Commission, may appeal the adverse determination or the failure to respond by requesting the Commission to direct that the record be made available. (b) The appeal request shall be in writing, shall clearly and prominently state on the envelope or subject line, or in a similarly prominent location, “FOIA Appeal”, and shall identify the record in the form in which it was originally requested. (c) The appeal request should be addressed to the Chief FOIA Officer and filed pursuant to 11 CFR 100.19(g). (d) The requestor may state facts and cite legal or other authorities as he/she deems appropriate in support of the appeal request. (e) For good cause shown, the Commission may disclose a record which is subject to one of the exemptions listed in § 4.5 of this part. (f) The Commission will make a determination with respect to any appeal within twenty days (excluding Saturdays, Sundays and legal holidays) after receipt of the appeal (or within such extended period as is permitted under § 4.7(c) of this part). If on appeal, the denial of the request for a record or a copy is in whole or in part upheld, the Commission shall advise the requestor of the denial and shall notify him/her of the provisions for judicial review of that determination as set forth in 5 U.S.C. 552(a)(4). (g) Because of the risk of misunderstanding inherent in oral communications, the Commission will not entertain any appeal from an alleged denial or failure to comply with an oral request. Any person who has orally requested a copy of a record that he/she believes to have been improperly denied should resubmit the request in writing as set forth in § 4.7. (h) The National Archives and Records Administration (NARA), Office of Government Information Services (OGIS) offers non-compulsory, non-binding mediation services to help resolve FOIA disputes as a non-exclusive alternative to litigation. A requester may contact OGIS at: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001; email: [email protected] https://www.archives.gov/ogis [44 FR 33368, June 8, 1979, as amended at 50 FR 50778, Dec. 12, 1985; 75 FR 31, Jan. 4, 2010; 79 FR 16663, Mar. 26, 2014; 81 FR 34863, June 1, 2016; 82 FR 60853, Dec. 26, 2017; 89 FR 213, Jan. 2, 2024; 89 FR 35687, May 2, 2024] § 4.9 Fees. (a) Exceptions to fee charges General. (2) Definition of pages. pages 1/2 1/2 (3) Minimum charge. (5) Time limit for compliance. (ii) If the Commission has determined that unusual circumstances (as defined in 5 U.S.C. 552(a)(6)(B)(iii) and § 4.7(c)(1) through (3)) apply and the Commission provided timely written notification to the requester in accordance with § 4.7(c), a failure to comply with the time limit is excused for an additional 10 days. If the Commission fails to comply with the extended time limit, the Commission may not assess any search fees or, where applicable, duplication fees. (iii) If the Commission has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, the Commission may charge search fees or, where applicable, duplication fees, if the Commission has provided timely written notification to the requester in accordance with § 4.7(c) and the Commission has discussed with the requester via written mail, electronic mail, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with § 4.7(d). (iv) If a court has determined that exceptional circumstances exist, a failure to comply with the time limit shall be excused for the length of time provided by the court order. (b) Fee reduction or waiver (2) A request for a reduction or waiver of fees shall be made in writing by the FOIA requestor; shall accompany the relevant FOIA request so as to be considered timely; and shall include a specific explanation as to why the fee for that FOIA request should be reduced or waived, applying the standard stated in paragraph (b)(1) of this section to the facts of that particular request. In addition, the explanation shall include: the requester's (and user's, if the requester and the user are different persons or entities) identity, qualifications and expertise in the subject area, and ability and intention to disseminate the information to the public; and a discussion of any commercial or personal benefit that the requestor (and user, if the requestor and user are different persons or entities) expects as a result of disclosure, including whether the information disclosed would be resold in any form at a fee above actual cost. (c) Fees to be charged. (i) Commercial use requestors. (ii) Educational and non-commercial scientific institution requestors. (iii) Requestors who are representatives of the news media. (iv) All other requestors. (2) The Commission may assess fees for the full allowable direct costs of searching for documents in response to a request even if the Commission fails to locate any documents which are responsive to that request and, in the case of commercial use requestors, of reviewing documents located in response to a request which the Commission determines are exempt from disclosure. (3) If the Commission estimates that search or duplication charges are likely to exceed $25.00, it will notify the requestor of the estimated amount of the fee unless the requestor has indicated in advance a willingness to pay a fee as high as that estimated by the Commission. Through this notification, the Commission will offer the requestor the opportunity to confer with Commission staff to reformulate the original request in order to meet the requestor's needs at a lower cost. (4) For a paper photocopy of a record, the fee will be $.07 per page, which has been calculated to include staff time. For other forms of duplication, including copies produced by computer, the Commission will charge the direct costs, including staff time and the actual cost of any digital storage device provided. The Commission will charge $7.50 for certification of a document. The Commission will not charge a fee for ordinary packaging and mailing of records requested. When a request for special mailing or delivery services is received the Commission will package the records requested. The requestor shall make all arrangements for pick-up and delivery of the requested materials. The requestor shall pay all costs associated with special mailing or delivery services directly to the courier or mail service. (5) The Commission will advise the requestor of the identity of any private contractor who will perform the duplication services. If fees are charged for such services, they shall be made payable to that private contractor and shall be forwarded to the Commission. (d) Interest charges. (e) Aggregating requests. (f) Advance payments. i.e. (1) The Commission estimates or determines that allowable charges that a requestor may be required to pay are likely to exceed $250. In such a case, the Commission will notify the requestor of the likely cost and, where the requestor has a history of prompt payment of FOIA fees, obtain satisfactory assurance of full payment, or in the case of a requestor with no FOIA fee payment history, the Commission will require an advance payment of an amount up to the full estimated charges; or (2) A requestor has previously failed to pay a fee in a timely fashion ( i.e. (3) If the provisions of paragraph (f) (1) or (2) of this section apply, the administrative time limits prescribed in 11 CFR 4.7(c) will begin only after the Commission has received the payments or the requestor has made acceptable arrangements to make the payments required by paragraph (f) (1) or (2) of this section. [52 FR 39213, Oct. 21, 1987, as amended at 75 FR 31, Jan. 4, 2010; 89 FR 213, Jan. 2, 2024; 89 FR 35687, May 2, 2024]