PART 1202—FREEDOM OF INFORMATION ACT Authority: Pub. L. 110-289, 122 Stat. 2654; 5 U.S.C. 301, 552; 12 U.S.C. 4526; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235; E.O. 13392, 70 FR 75373-75377, 3 CFR, 2006 Comp., p. 216-200. Source: 82 FR 13745, Mar. 15, 2017, unless otherwise noted. § 1202.1 Why did FHFA issue this part? The Federal Housing Finance Agency (FHFA) issued this regulation to comply with the Freedom of Information Act (FOIA) (5 U.S.C. 552). (a) The Freedom of Information Act (FOIA) (5 U.S.C. 552), is a Federal law that requires the Federal Government to disclose certain Federal Government records to the public. (b) This part explains the rules that the FHFA will follow when processing and responding to requests for records under the FOIA. It also explains what you must do to request records from FHFA under the FOIA. You should read this part together with the FOIA, which explains in more detail your rights and the records FHFA may release to you. (c) If you want to request information about yourself that is contained in a system of records maintained by FHFA, you may do so under the Privacy Act of 1974, as amended (5 U.S.C. 552a). This is considered a first-party or Privacy Act request under the Privacy Act, and you must file your request following FHFA's Privacy Act regulation at part 1204 of this title. If you file a request for information about yourself, FHFA will process your request under both the FOIA and Privacy Act in order to give you the greatest degree of access to any responsive material. (d) Notwithstanding the FOIA and this part, FHFA may routinely publish or disclose to the public information without following these procedures. § 1202.2 What do the terms in this part mean? Some of the terms you need to understand while reading this regulation are— Aggregating Appeals Officer or FOIA Appeals Officer Chief FOIA Officer Confidential commercial information Days, Direct costs Duplication Employee, Fee Waiver FHFA FOIA Officer, FOIA Official and Chief FOIA Officer FOIA Public Liaison Proactive disclosure Readily reproducible Record (1) Created or received under Federal law or in connection with the transaction of public business; (2) Preserved or determined is appropriate for preservation as evidence of operations or activities of FHFA, or because of the value of the information it contains; and (3) Controls at the time it receives a request under the FOIA. Regulated entities Requester three (1) Commercial (2) Noncommercial (i) Educational institution (ii) Noncommercial scientific institution (iii) Representative of the news media (3) Other Requester Service Centers Review Search Submitter Unusual circumstances (1) Search for and collect records from agencies, offices, facilities, or locations that are separate from the office processing the request; (2) Search for, collect, and appropriately examine a voluminous amount of separate and distinct records in order to process a single request; or (3) Consult with another agency or among two or more components of the FHFA that have a substantial interest in the determination of a request. Vaughn index [82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5683, Feb. 9, 2018] § 1202.3 What information can I obtain through the FOIA? (a) General. (b) Proactive disclosure. (1) Final opinions or orders made in the adjudication of cases; (2) Statements of policy and interpretation adopted by FHFA that are not published in the Federal Register (3) Administrative staff manuals and instructions to staff that affect a member of the public and are not exempt from disclosure under the FOIA; (4) Copies of all records, regardless of form or format, that have been released to any person under 5 U.S.C. 552(a)(3), that because of the nature of their subject matter, FHFA determines have become or are likely to become the subject of subsequent requests for substantially the same records, or that have been requested 3 or more times; and (5) A general index of the records referred to in paragraph (b)(4) of this section. (c) Reading rooms. § 1202.4 What information is exempt from disclosure? (a) General. (1) Specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy, and in fact is properly classified pursuant to such Executive Order; (2) Related solely to FHFA's internal personnel rules and practices; (3) Specifically exempted from disclosure by statute (other than 5 U.S.C. 552a), provided that such statute— (i) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (ii) 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 and privileged or confidential; (5) Contained in inter-agency or intra-agency memoranda or letters that would not be available by law to a private party in litigation with FHFA; 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) Contained in personnel, medical or similar files (including financial files) the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) 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 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 or an entity that is regulated and examined by FHFA that furnished information on a confidential basis, and, in the case of a record 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. (8) Contained in or related to examination, operating, or condition reports that are prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) Geological and geophysical information and data, including maps, concerning wells. (b) Redacted portion. (c) Exempt and redacted material. [82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5683, Feb. 9, 2018] § 1202.5 How do I request information from FHFA under the FOIA? (a) Where to send your request. (b) Provide your name and address. (c) Request is under the FOIA. (d) Your FOIA status. (e) Describing the records you request. (f) How you want the records produced to you. e.g., (g) Agreement to pay fees. (h) Valid requests. [82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5683, Feb. 9, 2018] § 1202.6 What if my request does not have all the information FHFA requires? If FHFA determines that your request does not reasonably describe the records you seek, cannot be processed for reasons related to fees, or lacks required information, you will be informed in writing why your request cannot be processed. You will be given 15 calendar days to meet all requirements. If you are notified that your request cannot be processed for the reasons cited herein, your request will be placed on hold and will not be considered as being received by FHFA for the purpose of processing your request under this part. (a) If you respond with all the necessary information, FHFA will process this response as a new request and the time period for FHFA to respond to your request will start from the date the additional information is actually received by FHFA. (b) If you do not respond or provide additional information within the time period allowed, or if the additional information you provide is still incomplete or insufficient, FHFA will consider your request closed and will notify you that it will not be processed. [82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5683, Feb. 9, 2018] § 1202.7 How will FHFA respond to my FOIA request? (a) Authority to grant or deny requests. (b) Designated standard “cut-off” date for searches. (c) Multi-Track request processing. (1) Standard Track. (2) Complex Track. (A) Be voluminous; (B) Involve two or more FHFA components or units; (C) Require consultation with other agencies or entities; (D) Require searches of archived documents; (E) Seek confidential commercial information as described in § 1202.8 of this part; (F) Require an unusually high level of effort to search for, review and/or duplicate records; or (G) Cause undue disruption to the day-to-day activities of FHFA in regulating and supervising the regulated entities or in carrying out its statutory responsibilities. (ii) FHFA will respond to Complex Track requests as soon as reasonably possible, regardless of the date of receipt. (d) Referrals to other agencies. (e) Consultation with other agencies. (f) Responses to FOIA requests. (1) Requests that are granted. (2) Requests that are denied, or granted and denied in part. (g) Format and delivery of disclosed records. (h) Extensions of time. (i) The reason for the extension; and (ii) The date on which the determination is expected. (2) When a request requires more than 30 days to process, FHFA will make available its FOIA Public Liaison or other FOIA contact to assist you in modifying or reformulating your request. If the request cannot be modified or reformulated, FHFA will notify you regarding an alternative time period for processing the request. FHFA will also notify you of the availability of the Office of Government Information Services to provide dispute resolution service. (3) For the purpose of satisfying unusual circumstances under the FOIA, FHFA may aggregate requests in cases where it reasonably appears that multiple requests, submitted either by a requester or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances. FHFA will not aggregate multiple requests that involve unrelated matters. [82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5683, Feb. 9, 2018] § 1202.8 If the requested records contain confidential commercial information, what procedures will FHFA follow? (a) General. (b) Designation of confidential commercial information. (c) Pre-Disclosure Notification. (1) The submitter has in good faith designated the information as confidential commercial information protected from disclosure under 5 U.S.C. 552(b)(4) and § 1202.4(a)(4) of this part; or (2) FHFA has reason to believe that the request seeks confidential commercial information, the disclosure of which may result in substantial competitive harm to the submitter. (d) Content of Pre-Disclosure Notification. (1) A description of the commercial information requested or copies of the records or portions thereof containing the business information; and (2) An opportunity to object to disclosure within 10 days or such other time period that FHFA may allow by providing to FHFA a detailed written statement demonstrating all reasons the submitter opposes disclosure. (e) Exceptions to Pre-Disclosure Notification. (1) FHFA determines that information should not be disclosed; (2) The information has been published lawfully or has been made officially available to the public; (3) Disclosure of the information is required by law, other than the FOIA; (4) The information requested is not designated by the submitter as confidential commercial information pursuant to this section, unless the agency has substantial reason to believe that disclosure of the information would result in competitive harm; or (5) The submitter's designation, under paragraph (b) of this section, appears on its face to be frivolous; except that FHFA will provide the submitter with written notice of any final decision to disclose the designated confidential commercial information within a reasonable number of days prior to a specified disclosure date. (f) Submitter's objection to disclosure. (g) Notice of Intent to disclose information. (1) A statement of the reasons why the information will be disclosed; (2) A description of the information to be disclosed; and (3) A specific disclosure date. (h) Notice to requester. (1) A written notice that the request encompasses confidential commercial information that may be exempt from disclosure under 5 U.S.C. 552(b)(4) and § 1202.4(a)(4) of this part and that the submitter of the information has been given a Pre-Disclosure Notification with the opportunity to comment on the proposed disclosure of the information; and (2) A written notice that a Notice of Intent to disclose has been provided to the submitter, and that the submitter has 10 days, or such other time period that FHFA may allow, to respond. (i) Notice of FOIA lawsuit. [82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5684, Feb. 9, 2018] § 1202.9 How do I appeal a response denying my FOIA request? (a) Right of appeal. (b) Timing, form, content, and receipt of an appeal. (c) Extensions of time to appeal. (d) Final action on appeal. (1) Affirm, in whole or in part, the initial denial of the request and may include a brief statement of the reason or reasons for the decision, including each FOIA exemption relied upon; (2) Reverse, in whole or in part, the denial of a request in whole or in part, and require the request to be processed promptly in accordance with the decision; or (3) Remand a request to FHFA, as appropriate, for re-processing. (e) Notice of delayed determinations on appeal. (f) Judicial review. (g) Additional resource. [email protected]; [82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5684, Feb. 9, 2018] § 1202.10 Will FHFA expedite my request or appeal? (a) Request for expedited processing. (1) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; (2) An urgency to inform the public about an actual or alleged Federal Government activity if you are a person primarily engaged in disseminating information; (3) The loss of substantial due process or rights; (4) A matter of widespread and exceptional media interest in which there exists possible questions about the Federal Government's integrity, affecting public confidence; or (5) Humanitarian need. (b) Certification of compelling need. (c) Determination on request. [82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5684, Feb. 9, 2018] § 1202.11 What will it cost to get the records I requested? (a) Assessment of fees, generally. (b) Assessment of fees, categories of requesters. (1) Commercial use. (2) Educational institution, noncommercial scientific institution, or representative of the news media. (3) Other. (c) Fee schedule. www.fhfa.gov, 1 1 (d) Notice of anticipated fees in excess of $25.00. (e) Advance payment of fees. (1) The fees are likely to exceed $250.00; (2) You do not have a history of payment; (3) You previously failed to pay a FOIA fee to FHFA in a timely fashion, i.e., (4) You have an outstanding balance due from a prior request. FHFA will require you to pay the full amount owed plus any applicable interest, as provided in paragraph (f) of this section, or demonstrate that the fee owed has been paid, as well as payment of the full amount of anticipated fees before processing your request. (f) Interest. (g) FHFA assistance to reduce costs. (h) Fee waiver requests. (1) Whether the subject of the requested records concerns the operations or activities of the Federal Government. The subject of the request must concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated; (2) Whether the disclosure is likely to contribute significantly to the public understanding of Federal Government operations or activities. This factor is satisfied when the following criteria are met: (i) Disclosure of the requested information must be meaningfully informative about government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding; and (ii) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to your individual understanding. Your expertise in the subject area as well as your ability and intention to effectively convey information to the public must be considered. FHFA will presume that a representative of the news media will satisfy this consideration. (3) The disclosure must not be primarily in your commercial interest. To determine whether disclosure of the requested information is primarily in your commercial interest FHFA will consider the following criteria: (i) FHFA will determine whether you have any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. You will be given an opportunity to provide explanatory information regarding this consideration; and (ii) If there is an identified commercial interest, FHFA will determine whether that is the primary interest furthered by the request. (i) Fee Waiver determination. (j) Restrictions on charging fees. (2)(i) If FHFA fails to comply with the FOIA's time limits in which to respond to your request, FHFA will not charge search fees, or, in the instances of requests from requesters described in paragraph (j)(1) of this section, will not charge duplication fees, except as described in paragraphs (j)(2)(ii) through (iv) of this section. (ii) If FHFA has determined that unusual circumstances as defined by the FOIA apply and FHFA has provided timely written notice to you in accordance with the FOIA, FHFA's failure to comply with the time limit will be excused for an additional 10 days. (iii) If FHFA determines that unusual circumstances, as defined by the FOIA, apply and more than 5,000 pages are necessary to respond to your request, FHFA may charge search fees, or, in the case of a requester described in paragraph (j)(1) of this section, may charge duplication fees, if the following steps are taken. FHFA must have provided timely written notice of unusual circumstances to you in accordance with the FOIA and FHFA must have discussed with you via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how you could effectively limit the scope of your request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, FHFA may charge all applicable fees incurred in the processing of the request. (iv) If a court has determined that exceptional circumstances exist, as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order. (3) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review. (4) If you seek records for a commercial use, FHFA will provide without charge: (i) The first 100 pages of duplication (or the cost equivalent for other media); and (ii) The first two hours of search. (5) No fee will be charged when the total fee, after deducting the 100 free pages (or its cost equivalent) and the first two hours of search, is equal to or less than $25.00. (k) Additional resource. [82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5684, Feb. 9, 2018] § 1202.12 Is there anything else I need to know about FOIA procedures? This FOIA regulation does not and shall not be construed to create any right or to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA. This regulation only provides procedures for requesting records under the FOIA. Appendix A to Part 1202—FHFA Headquarters 1. This Appendix applies to the Federal Housing Finance Agency's Headquarters Office. 2. Reading room. http://www.fhfa.gov/AboutUs/FOIAPrivacy/Pages/Reading-Room.aspx 3. Where to send your request. [email protected]. http://www.fhfa.gov/AboutUs/FOIAPrivacy/Pages/FOIA-Reference-Guide.aspx 4. Right of appeal. [email protected]. http://www.fhfa.gov/AboutUs/FOIAPrivacy/Pages/FOIA-Reference-Guide.aspx [82 FR 13745, Mar. 15, 2017, as amended at 83 FR 5685, Feb. 9, 2018] Appendix B to Part 1202—FHFA Office of Inspector General This Appendix applies to the Federal Housing Finance Agency's Office of Inspector General (FHFA-OIG). 1. Contact information for FOIA Officer. [email protected]. 2. Information about the FHFA-OIG FOIA process. https://www.fhfaoig.gov/FOIA 3. Reading room. https://www.fhfaoig.gov/FOIA/ReadingRoom 4. Where to send your request. [email protected]. 5. Right of appeal. [email protected].