PART 309—DISCLOSURE OF INFORMATION Authority: 5 U.S.C. 552; 12 U.S.C. 1819 “Seventh” and “Tenth.” Source: 60 FR 61465, Nov. 30, 1995, unless otherwise noted. § 309.1 Purpose and scope. This part sets forth the basic policies of the Federal Deposit Insurance Corporation regarding information it maintains and the procedures for obtaining access to such information, including disclosure of information transferred to Federal Deposit Insurance Corporation from the Office of Thrift Supervision pursuant to section 312 and 323 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203. Section 309.2 sets forth definitions applicable to this part 309. Section 309.3 describes the types of information and documents typically published in the Federal Register. [76 FR 35965, June 21, 2011] § 309.2 Definitions. For purposes of this part: (a) The term depository institution, (b) The terms Corporation FDIC (c) The words disclose disclosure, disclose disclosure disclose disclosure transfer et seq. (d) The term examination (e) The term record (1) Any information that would be an agency record subject to the requirements of this section when maintained by the FDIC in any format, including an electronic format; and (2) Any information described under paragraph (e)(1) of this section that is maintained for the FDIC by an entity under Government contract, for purposes of records management. (f) The term report of examination (g) The term customer financial records, customer (h) The term Director of the Division having primary authority [60 FR 61465, Nov. 30, 1995, as amended at 63 FR 16404, Apr. 3, 1998; 81 FR 83646, Nov. 22, 2016] § 309.3 Federal Register publication. The FDIC publishes the following information in the Federal Register (a) Descriptions of its central and field organization and the established places at which, the officers from whom, and the methods whereby, the public may secure information, make submittals or requests, or obtain decisions; (b) Statements of the general course and method by which its 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 FDIC; (e) Every amendment, revision or repeal of the foregoing; and (f) General notices of proposed rule-making. § 309.4 Publicly available records. (a) Records available on the FDIC's World Wide Web page Discretionary release of documents. http://www.fdic.gov. (2) Documents required to be made available for inspection in an electronic format. http://www.fdic.gov: (A) Final opinions, including concurring and dissenting opinions, as well as final orders and written agreements, made in the adjudication of cases; (B) Statements of policy and interpretations adopted by the Board of Directors that are not published in the Federal Register (C) Administrative staff manuals and instructions to staff that affect the public; (D) Copies of all records released to any person under § 309.5: ( 1 ( 2 (E) A general index of the records referred to in paragraph (a)(2)(i)(D) of this section. (ii) To the extent permitted by law, the FDIC may delete identifying details when it makes available or publishes a final opinion, final order, statement of policy, interpretation or staff manual or instruction. If redaction is necessary, the FDIC will, to the extent technically feasible, indicate the amount of material deleted at the place in the record where such deletion is made unless that indication in and of itself will jeopardize the purpose for the redaction. (b) Public Information Center. (c) Applicable fees. (ii) Information on the FDIC's World Wide Web page is available to the public without charge. If, however, information available on the FDIC's World Wide Web page is provided pursuant to a Freedom of Information Act request processed under § 309.5, then fees apply and will be assessed pursuant to § 309.5(f). [63 FR 16404, Apr. 3, 1998, as amended at 76 FR 35965, June 21, 2011; 81 FR 83646, Nov. 22, 2016] § 309.5 Procedures for requesting records. (a) Definitions. (1) Commercial use request (2) Direct costs (3) Duplication records (4) Educational institution (5) Noncommercial scientific institution (6) Representative of the news media news news (7) Review (8) Search (b) Making a request for records. (i) By completing the online request form located on the FDIC's World Wide Web page, found at: http://www.fdic.gov; (ii) By facsimile clearly marked Freedom of Information Act Request to the FOIA/PA Group: (703) 562-2797; or (iii) By sending a letter to: Federal Deposit Insurance Corporation, Attn: FOIA/PA Group, 550 17th Street, NW., Washington, DC 20429. (2) The request shall contain the following information: (i) The name and address of the requester, an electronic mail address, if available, and the telephone number at which the requester may be reached during normal business hours; (ii) Whether the requester is an educational institution, noncommercial scientific institution, or news media representative; (iii) A statement agreeing to pay the applicable fees, or a statement identifying a maximum fee that is acceptable to the requester, or a request for a waiver or reduction of fees that satisfies paragraph (f)(1)(x) of this section; and (iv) The preferred form and format of any responsive information requested, if other than paper copies. (3) A request for identifiable records shall reasonably describe the records in a way that enables the FDIC's staff to identify and produce the records with reasonable effort and without unduly burdening or significantly interfering with any of the FDIC's operations. (c) Defective requests. (d) Processing requests Receipt of requests. (2) Multitrack processing. (ii) The FDIC will make the determination whether a request qualifies for fast-track processing. A requester may contact the FOIA/PA Group to learn whether a particular request has been assigned to fast-track processing. If the request has not qualified for fast-track processing, the requester will be given an opportunity to refine the request in order to qualify for fast-track processing. Changes made to requests to obtain faster processing must be in writing. (3) Expedited processing. (A) The failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (B) The requester can establish that they are primarily engaged in information dissemination as their main professional occupation or activity, and there is urgency to inform the public of the government activity involved in the request; and (C) The requester's statement must be certified to be true and correct to the best of the person's knowledge and belief and explain in detail the basis for requesting expedited processing. (ii) The formality of the certification required to obtain expedited treatment may be waived by the FDIC as a matter of administrative discretion. (4) A requester seeking expedited processing will be notified whether expedited processing has been granted within ten (10) working days of the receipt of the request. If the request for expedited processing is denied, the requester may file an appeal pursuant to the procedures set forth in paragraph (i) of this section, and the FDIC shall respond to the appeal within ten (10) working days after receipt of the appeal. (5) Priority of responses. (6) Checking status of request. (i) Online at the FDIC's FOIA Service Center, at http://www.fdic.gov, (ii) By calling the FDIC's FOIA Service Center at (202) 898-7021, if the request was submitted by email, facsimile or regular mail. (7) Notification. (A) In the case of expedited treatment under paragraph (d)(3) of this section; (B) Where the running of such time is suspended for the calculation of a cost estimate for the requester if the FDIC determines that the processing of the request may exceed the requester's maximum fee provision or if the charges are likely to exceed $250 as provided for in paragraph (f)(1)(v) of this section; (C) Where the running of such time is suspended for the payment of fees pursuant to the paragraphs (d)(6)(i)(B) and (f)(1) of this section; or (D) In unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B) and further described in paragraph (d)(6)(iii) of this section. (ii) In unusual circumstances as referred to in paragraph (d)(6)(i)(D) of this section, the time limit may be extended for a period of: (A) Ten (10) working days as provided by written notice to the requester, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched; or (B) Such alternative time period as agreed to by the requester or as reasonably determined by the FDIC when the FDIC notifies the requester that the request cannot be processed in the specified time limit. (iii) Unusual circumstances may arise when: (A) The records are in facilities, such as field offices or storage centers, that are not located at the FDIC's Washington office; (B) The records requested are voluminous or are not in close proximity to one another; or (C) There is a need to consult with another agency or among two or more components of the FDIC having a substantial interest in the determination. (8) Response to request. (i) The FDIC's determination of the request; (ii) The reasons for the determination; (iii) The right of the requester to seek assistance from the FDIC's FOIA Public Liaison; and (iv) If the response is a denial of an initial request or if any information is withheld, the FDIC will advise the requester in writing: (A) If the denial is in part or in whole; (B) The name and title of each person responsible for the denial (when other than the person signing the notification); (C) The exemptions relied on for the denial; (D) The right of the requester to appeal the denial to the FDIC's General Counsel within 90 calendar days following receipt of the notification, as specified in paragraph (i) of this section; and (E) The right of the requester to seek dispute resolution services from the FDIC's FOIA Public Liaison and/or the Office of Government Information Services (OGIS). (e) Providing responsive records. (2) The FDIC shall provide a copy of the record in any form or format requested if the record is readily reproducible by the FDIC in that form or format, but the FDIC need not provide more than one copy of any record to a requester. (3) By arrangement with the requester, the FDIC may elect to send the responsive records electronically if a substantial portion of the request is in electronic format. If the information requested is made pursuant to the Privacy Act of 1974, 5 U.S.C. 552a, it will not be sent by electronic means unless reasonable security measures can be provided. (f) Fees General rules. (ii) Requesters will be charged for search and review costs even if responsive records are not located or, if located, are determined to be exempt from disclosure. (iii) Multiple requests seeking similar or related records from the same requester or group of requesters will be aggregated for the purposes of this section. (iv) If the FDIC determines that the estimated costs of search, duplication, or review of requested records will exceed the dollar amount specified in the request, or if no dollar amount is specified, the FDIC will advise the requester of the estimated costs (if greater than the FDIC's cost of processing the requester's remittance). The requester must agree in writing to pay the costs of search, duplication, and review prior to the FDIC initiating any records search. (v) If the FDIC estimates that its search, duplication, and review costs will exceed $250.00, the requester must pay an amount equal to 20 percent of the estimated costs prior to the FDIC initiating any records search. (vi) The FDIC shall ordinarily collect all applicable fees under the final invoice before releasing copies of requested records to the requester. (vii) The FDIC may require any requester who has previously failed to pay the charges under this section within 30 calendar days of mailing of the invoice to pay in advance the total estimated costs of search, duplication, and review. The FDIC may also require a requester who has any charges outstanding in excess of 30 calendar days following mailing of the invoice to pay the full amount due, or demonstrate that the fee has been paid in full, prior to the FDIC initiating any additional records search. (viii) The FDIC may begin assessing interest charges on unpaid bills on the 31st day following the day on which the invoice was sent. Interest will be at the rate prescribed in section 3717 of title 31 of the United States Code and will accrue from the date of the invoice. (ix) The time limit for the FDIC to respond to a request will not begin to run until the FDIC has received the requester's written agreement under paragraph (f)(1)(iv) of this section, and advance payment under paragraph (f)(1)(v) or (vii) of this section, or payment of outstanding charges under paragraph (f)(1)(vii) or (viii) of this section. (x) As part of the initial request, a requester may ask that the FDIC waive or reduce fees if disclosure of the records is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. Determinations as to a waiver or reduction of fees will be made by the FOIA/PA Group, Legal Division (or designee) and the requester will be notified in writing of his/her determination. A determination not to grant a request for a waiver or reduction of fees under this paragraph may be appealed to the FDIC's General Counsel (or designee) pursuant to the procedure set forth in paragraph (i) of this section. (2) Chargeable fees by category of requester. (ii) Educational institutions, non-commercial scientific institutions and news media representatives shall be charged duplication costs, except for the first 100 pages. (iii) Requesters not described in paragraph (f)(2)(i) or (ii) of this section shall be charged the full reasonable direct cost of search and duplication, except for the first two hours of search time and first 100 pages of duplication. (3) Fee schedule. (i) Manual searches for records. (ii) Computer searches for records. (iii) Duplication of records. (B) For other methods of reproduction or duplication, the FDIC will charge the actual direct costs of reproducing or duplicating the documents. (iv) Review of records. (v) Other services. (4) Publication of fee schedule and effective date of changes. http://www.fdic.gov. (ii) The fee schedule will be set forth in the “Notice of Federal Deposit Insurance Corporation Records Fees” issued in December of each year or in such “Interim Notice of Federal Deposit Insurance Corporation Records Fees” as may be issued. Copies of such notices may be obtained at no charge from the Federal Deposit Insurance Corporation, FOIA/PA Group, 550 17th Street NW., Washington, DC 20429, and are available on the FDIC's World Wide Web page as noted in paragraph (f)(4)(i) of this section. (iii) The fees implemented in the December or Interim Notice will be effective 30 days after issuance. (5) Use of contractors. (g) Exempt information. 1 1 (1) Records that are 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) Records related solely to the internal personnel rules and practices of the FDIC; (3) Records specifically exempted from disclosure by statute, provided that such statute: (i)(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; and (ii) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to 5 U.S.C. 552(b)(3); (4) Trade secrets and commercial or financial information obtained from a person that is privileged or confidential; (5) Interagency or intra-agency memoranda or letters that would not be available by law to a private party in litigation with the FDIC; (6) Personnel, medical, and similar files (including financial files) the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) Records compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records: (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 records on a confidential basis; (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; (8) Records that are contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of the FDIC or any agency responsible for the regulation or supervision of financial institutions; or (9) geological and geophysical information and data, including maps, concerning wells. (h) Dispute resolution. http://www.fdic.gov. (i) Appeals. (2) A person whose initial request for records under this section, or whose request for a waiver of fees under paragraph (f)(1)(x) of this section, has been denied, either in part or in whole, has the right to appeal the denial to the FDIC's General Counsel (or designee) within 90 calendar days after receipt of notification of the denial. Appeals of denials of initial requests or for a waiver of fees must be in writing and include any additional information relevant to consideration of the appeal. (3) Except in the case of an appeal for expedited treatment under paragraph (d)(3) of this section, the FDIC will notify the appellant in writing within 20 business days after receipt of the appeal and will state: (i) Whether it is granted or denied in whole or in part; (ii) The name and title of each person responsible for the denial (if other than the person signing the notification); (iii) The exemptions relied upon for the denial in the case of initial requests for records; and (iv) The right to judicial review of the denial under the FOIA. (4) If a requester is appealing for denial of expedited treatment, the FDIC will notify the appellant within 10 business days after receipt of the appeal of the FDIC's disposition. (5) Complete payment of any outstanding fee invoice will be required before an appeal is processed. (j) Records of another agency. [63 FR 16404, Apr. 3, 1998, as amended at 67 FR 71071, Nov. 29, 2002; 76 FR 35965, June 21, 2011; 76 FR 63818, Oct. 14, 2011; 81 FR 83647, Nov. 22, 2016] § 309.6 Disclosure of exempt records. (a) Disclosure prohibited. 2 2 (b) Disclosure authorized. (1) Disclosure to depository institutions. (2) Disclosure to state banking agencies. (3) Disclosure to federal financial institutions supervisory agencies and certain other agencies. et seq. (4) Disclosure to prosecuting or investigatory agencies or authorities. (ii) The Director of the Corporation's Division having primary authority over the exempt records, or designee, may disclose to the proper federal or state prosecuting or investigatory authorities, or to any authorized officer or employee of such authority, copies of exempt records pertaining to irregularities discovered in depository institutions which are believed to constitute violations of any federal or state civil or criminal law, or unsafe or unsound banking practices, provided that customer financial records may be disclosed without giving notice to the customer, only as permitted by the relevant exceptions of the RFPA. Unless such disclosure is initiated by the FDIC, customer financial records shall be disclosed only in response to a written request which: (A) Is signed by an authorized official of the agency making the request; (B) Identifies the record or records to which access is requested; and (C) Gives the reasons for the request. (iii) When notice to the customer is required to be given under the RFPA, the Director of the Corporation's Division having primary authority over the exempt records, or designee, may disclose customer financial records to any federal or state prosecuting or investigatory agency or authority, provided, that: (A) The General Counsel, or designee, has determined that disclosure is authorized or required by law; or (B) Disclosure is pursuant to a written request that indicates the information is relevant to a legitimate law enforcement inquiry within the jurisdiction of the requesting agency and: ( 1 3 3 Pursuant to section 1112(a) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3412), I, ______ [name and appropriate title] hereby certify that the financial records described below were transferred to (agency or department) in the belief that they were relevant to a legitimate law enforcement inquiry, within the jurisdiction of the receiving agency. ( 2 4 5 4 Dear Mr./Ms. ______: Copies of, or information contained in, your financial records lawfully in the possession of the Federal Deposit Insurance Corporation have been furnished to (agency or department) pursuant to the Right to Financial Privacy Act of 1978 for the following purpose: ______. If you believe that this transfer has not been made to further a legitimate law enforcement inquiry, you may have legal rights under the Right to Financial Privacy Act of 1978 or the Privacy Act of 1974. 5 (5) Disclosure to servicers and serviced institutions. (i) The examined data center; (ii) Any insured institution that receives data processing or related services from the examined data center; (iii) Any state agency or authority which exercises general supervision over an institution serviced by the examined data center; and (iv) Any federal financial institution supervisory agency which exercises general supervision over an institution serviced by the examined data center. The federal supervisory agency may disclose any such examination report received from the Corporation to an insured institution over which it exercises general supervision and which is serviced by the examined data center. (6) Disclosure to third parties. (A) Specify, with reasonable particularity, the record or records to which access is requested; and (B) Give the reasons for the request. (ii) Either prior to or at the time of any disclosure, the Director or designee shall require such terms and conditions as he deems necessary to protect the confidential nature of the record, the financial integrity of any depository institution to which the record relates, and the legitimate privacy interests of any individual named in such records. (7) Authorization for disclosure by depository institutions or other third parties. (ii) The Director of the Corporation's Division having primary authority over the exempt records, or designee, may, in his or her discretion and for good cause, authorize any third party, including a federal or state agency, that has received a copy of a Corporation exempt record, to disclose such exempt record to another party or agency. Such authorization must be in response to a written request from the party that has custody of the copy of the exempt record. Any such request shall specify the record sought to be disclosed and the reasons why disclosure is necessary. (iii) Any subsidiary depository institution of a bank holding company or a savings and loan holding company may reproduce and furnish a copy of any report of examination of the subsidiary depository institution to the parent holding company without prior approval of the Director of the Division having primary authority over the exempt records and any depository institution may reproduce and furnish a copy of any report of examination of the disclosing depository institution to a majority shareholder if the following conditions are met: (A) The parent holding company or shareholder owns in excess of 50% of the voting stock of the depository institution or subsidiary depository institution; (B) The board of directors of the depository institution or subsidiary depository institution at least annually by resolution authorizes the reproduction and furnishing of reports of examination (the resolution shall specifically name the shareholder or parent holding company, state the address to which the reports are to be sent, and indicate that all reports furnished pursuant to the resolution remain the property of the Federal Deposit Insurance Corporation and are not to be disclosed or made public in any manner without the prior written approval of the Director of the Corporation's Division having primary authority over the exempt records as provided in paragraph (b) of this section; (C) A copy of the resolution authorizing disclosure of the reports is sent to the shareholder or parent holding company; and (D) The minutes of the board of directors of the depository institution or subsidiary depository institution for the meeting immediately following disclosure of a report state: ( 1 ( 2 ( 3 ( 4 (iv) With respect to any disclosure that is authorized under this paragraph (b)(7), the Director of the Corporation's Division having primary authority over the exempt records, or designee, shall only permit disclosure of records upon determining that good cause exists. If the exempt record contains information derived from depository institution customer financial records, disclosure is to be authorized only upon the condition that the requesting party and the party releasing the records comply with any applicable provision of the RFPA. Before authorizing the disclosure, the Director (or designee) may require that both the party having custody of a copy of a Corporation exempt record and the party seeking access to the record agree to such limitations as the Director (or designee) deems necessary to protect the confidential nature of the record, the financial integrity of any depository institution to which the record relates and the legitimate privacy interests of any persons named in such record. (8) Disclosure by General Counsel. 6 6 (ii) The General Counsel, or designee, may in his or her discretion and for good cause, disclose or authorize disclosure of any exempt record or testimony by a current or former officer, director, employee, agent of the Corporation, or third party, sought in connection with any civil or criminal hearing, proceeding or investigation without the service of a judicial subpoena, or other legal process requiring such disclosure or testimony, if he or she determines that the records or testimony are relevant to the hearing, proceeding or investigation and that disclosure is in the best interests of justice and not otherwise prohibited by Federal statute. Customer financial records shall not be disclosed to any federal agency pursuant to this paragraph that is not a federal financial supervisory agency, unless the records are sought under the Federal Rules of Civil Procedure (28 U.S.C. appendix) or the Federal Rules of Criminal Procedure (18 U.S.C. appendix) or comparable rules of other courts and in connection with litigation to which the receiving federal agency, employee, officer, director, or agent, and the customer are parties, or disclosure is otherwise subject to the relevant exceptions in the RFPA. Where the General Counsel or designee authorizes a current or former officer, director, employee or agent of the Corporation to testify or disclose exempt records pursuant to this paragraph (b)(8), he or she may, in his or her discretion, limit the authorization to so much of the record or testimony as is relevant to the issues at such hearing, proceeding or investigation, and he or she shall give authorization only upon fulfillment of such conditions as he or she deems necessary and practicable to protect the confidential nature of such records or testimony. (9) Authorization for disclosure by the Chairman of the Corporation's Board of Directors. (10) Limitations on disclosure. [60 FR 61465, Nov. 30, 1995, as amended at 63 FR 16408, Apr. 3, 1998; 67 FR 71071, Nov. 29, 2002; 73 FR 2146, Jan. 14, 2008; 76 FR 35965, June 21, 2011] § 309.7 Service of process. (a) Service. (b) Notification by person served. (c) Appearance by person served. [60 FR 61465, Nov. 30, 1995, as amended at 67 FR 71071, Nov. 29, 2002]