PART 1301—FREEDOM OF INFORMATION Authority: 12 U.S.C. 5322; 5 U.S.C. 552. Source: 82 FR 55744, Nov. 24, 2017, unless otherwise noted. § 1301.1 General. This subpart contains the regulations of the Financial Stability Oversight Council (the “Council”) implementing the Freedom of Information Act (“FOIA”), 5 U.S.C. 552, as amended. These regulations set forth procedures for requesting access to records maintained by the Council. These regulations should be read together with the FOIA, which provides additional information about this topic. § 1301.2 Information made available. (a) General. (1) Information required to be published in the Federal Register (2) Information required to be made available for public inspection in an electronic format or, in the alternative, to be published and offered for sale (see § 1301.4); and (3) Information required to be made available to any member of the public upon specific request (see §§ 1301.5 through 1301.12). (b) Right of access. (c) Exemptions. (2) The Council shall withhold records or information under the FOIA only when it reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or when disclosure is prohibited by law. Whenever the Council determines that full disclosure of a requested record is not possible, the Council shall consider whether partial disclosure is possible and shall take reasonable steps to segregate and release nonexempt information. Nothing in this paragraph requires disclosure of information that is otherwise exempted from disclosure under 12 U.S.C. 552(b)(3). § 1301.3 Publication in the Federal Register. Subject to the application of the FOIA exemptions and exclusions (5 U.S.C. 552(b) and (c)) and subject to the limitations provided in 5 U.S.C. 552(a)(1), the Council shall state, publish and maintain current in the Federal Register (a) Descriptions of its central and field organization and the established places at which, the persons from whom, and the methods whereby, the public may obtain 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 Council; and (e) Each amendment, revision, or repeal of matters referred to in paragraphs (a) through (d) of this section. § 1301.4 Public inspection. (a) In general. (1) Final opinions, including concurring and dissenting opinions, and orders, made in the adjudication of cases; (2) Those statements of policy and interpretations which have been adopted by the Council but which are not published in the Federal Register (3) Its administrative staff manuals and instructions to staff that affect a member of the public; (4) Copies of all records, regardless of form or format, that have been released previously to any person under 5 U.S.C. 552(a)(3) and §§ 1301.5 through 1301.12, and that the Council determines have become or are likely to become the subject of subsequent requests for substantially the same records. When the Council receives three (3) or more requests for substantially the same records, then the Council shall place those requests in front of any existing processing backlog and make the released records available in the Council's public reading room and in the electronic reading room on the Council's Web site. (5) A general index of the records referred to in paragraph (a)(4) of this section. (b) Information made available online. (c) Redaction. (d) Public reading room. (e) Indices. Federal Register (2) The Council shall make the indices referred to in paragraphs (a)(5) and (e)(1) of this section available on its Web site. § 1301.5 Requests for Council records. (a) In general. (b) Form and content of request. (1) The request for records shall be made in writing and submitted by mail or via the Internet and should state, both in the request itself and on any envelope that encloses it, that it comprises a FOIA request. A request that does not explicitly state that it is a FOIA request, but clearly indicates or implies that it is a request for records, may also be processed under the FOIA. (2) If a request is sent by mail, it shall be addressed and submitted as follows: FOIA Request—Financial Stability Oversight Council, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington DC 20220. If a request is made via the Internet, it shall be submitted as set forth on the Council's Web site. (3) In order to ensure the Council's ability to respond in a timely manner, a FOIA request must describe the records that the requester seeks in sufficient detail to enable Council personnel to locate them with a reasonable amount of effort. Whenever possible, the request must include specific information about each record sought, such as the date, title or name, author, recipient, and subject matter of the record. If known, the requester must include any file designations or descriptions for the records requested. In general, a requester is encouraged to provide more specific information about the records or types of records sought to increase the likelihood that responsive records can be located. (4) The request shall include the name of and contact information for the requester, including a mailing address, telephone number, and, if available, an email address at which the Council may contact the requester regarding the request. (5) For the purpose of determining any fees that may apply to processing a request, a requester shall indicate in the request whether the requester is a commercial user, an educational institution, non-commercial scientific institution, representative of the news media, or “other” requester, as those terms are defined in § 1301.12(c), or in the alternative, state how the records released will be used. The Council shall use this information solely for the purpose of determining the appropriate fee category that applies to the requester and shall not use this information to determine whether to disclose a record in response to the request. (6) If a requester seeks a waiver or reduction of fees associated with processing a request, then the request shall include a statement to that effect, pursuant to § 1301.12(f). Any request that does not seek a waiver or reduction of fees shall constitute an agreement of the requester to pay any and all fees (of up to $25) that may apply to the request, unless or until a request for waiver is sought and granted. The requester also may specify in the request an upper limit (of not less than $25) that the requester is willing to pay to process the request. (i) Any request for waiver or reduction of fees should be filed together with or as part of the FOIA request, or at a later time prior to the Council incurring costs to process the request. (ii) A waiver request submitted after the Council incurs costs will be considered in accordance with § 1301.12(f); however, the requester must agree in writing to pay the fees already incurred if the waiver is denied. (7) If a requester seeks expedited processing of a request, then the request must include a statement to that effect as is required by § 1301.7(c). (c) Request receipt; effect of request deficiencies. (d) Processing of request containing technical deficiency. § 1301.6 Responsibility for responding to requests for Council records. (a) In general. (b) Authority to grant or deny requests. (c) Referrals. (1) In the case of a record originated by a federal agency subject to the FOIA, refer the responsibility for responding to the request regarding that record to the originating agency to determine whether to disclose it; and (2) In the case of a record originated by a state agency, respond to the request after giving notice to the originating state agency and a reasonable opportunity to provide input or to assert any applicable privileges. (d) Notice of referral. § 1301.7 Timing of responses to requests for Council records. (a) In general. (b) Multitrack processing. (2) The Council may provide a requester in its complex track with an opportunity to limit the scope of the request to qualify for faster processing within the specified limits of the simple track(s). (c) Requests for expedited processing. (2) Form and content of a request for expedited processing. (i) A request for expedited processing shall be made in writing or via the Internet and submitted as part of the initial request for records. When a request for records includes a request for expedited processing, both the envelope and the request itself must be clearly marked “Expedited Processing Requested.” A request for expedited processing that is not clearly so marked, but satisfies the requirements in paragraphs (c)(2)(ii) and (iii) of this section, may nevertheless be granted. (ii) A request for expedited processing shall contain a statement that demonstrates a compelling need for the requester to obtain expedited processing of the requested records. A “compelling need” may be established under the standard in either paragraph (c)(2)(ii)(A) or (B) of this section by demonstrating that: (A) Failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual. The requester shall fully explain the circumstances warranting such an expected threat so that the Council may make a reasoned determination that a delay in obtaining the requested records would pose such a threat; or (B) 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. A person “primarily engaged in disseminating information” does not include individuals who are engaged only incidentally in the dissemination of information. The standard of “urgency to inform” requires that the records requested pertain to a matter of current exigency to the American general public and that delaying a response to a request for records would compromise a significant recognized interest to and throughout the American general public. The requester must adequately explain the matter or activity and why the records sought are necessary to be provided on an expedited basis. (iii) The requester shall certify the written statement that purports to demonstrate a compelling need for expedited processing to be true and correct to the best of the requester's knowledge and belief. The certification must be in the form prescribed by 28 U.S.C. 1746: “I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on [date].” (3) Determinations of requests for expedited processing. (4) Effect of granting expedited processing. (5) Appeals of denials of requests for expedited processing. (d) Time period for responding to requests for records. (1) Make one reasonable demand to the requester for clarifying information about the request and toll the twenty-day time period while it awaits the clarifying information; or (2) Toll the twenty-day time period while awaiting receipt of the requester's response to the Council's request for clarification regarding the assessment of fees. (e) Unusual circumstances In general. (2) Additional time. (3) As used in this paragraph (e), “unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular requests: (i) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (ii) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or (iii) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request, or among two or more components or component offices having substantial subject matter interest therein. (4) Where the Council reasonably believes that multiple requests submitted by a requester, or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances, and the requests involve clearly related matters, they may be aggregated. Multiple requests involving unrelated matters will not be aggregated. The Council may disaggregate and treat as separate requests a single request that has multiple unrelated components. The Council shall notify the requester if a request is disaggregated. § 1301.8 Responses to requests for Council records. (a) Acknowledgement of requests. (1) A brief description of the request; (2) The applicable request tracking number; (3) The date of receipt of the request, as determined in accordance with § 1301.5(c); and (4) A confirmation, with respect to any fees that may apply to the request pursuant to § 1301.12, that the requester has sought a waiver or reduction in such fees, has agreed to pay any and all applicable fees, or has specified an upper limit (of not less than $25) that the requester is willing to pay in fees to process the request. (b) Initial determination to grant or deny a request In general. (2) Granting of request. (3) Denial of requests. (i) State the exemptions relied on in not granting the request; (ii) If technically feasible, indicate the volume of information redacted (including the number of pages withheld in part and in full) and the exemptions under which the redaction is made at the place in the record where such redaction is made (unless providing such indication would harm an interest protected by the exemption relied upon to deny such material); (iii) Set forth the name and title or position of the responsible official; (iv) Advise the requester of the right to administrative appeal in accordance with § 1301.11 and specify the official or office to which such appeal shall be submitted; and (v) Advise the requester of the right to seek assistance from the FOIA Public Liaison or seek dispute resolution services offered by the Office of Government Information Services. (4) No records found. i.e., § 1301.9 Classified information. (a) Referrals of requests for classified information. (b) Determination of continuing need for classification of information. § 1301.10 Requests for business information provided to the Council. (a) In general. (b) Definitions. (1) Business information (2) Submitter (3) Exemption 4 (c) Designation of business information. (d) Notice to submitters. (e) When notice is required. (1) The information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or (2) The Council has reason to believe that the information may be protected from disclosure under Exemption 4 because disclosure could reasonably be expected to cause substantial competitive harm to the submitter. (f) Opportunity to object to disclosure. (2) When notice is given to a submitter under this section, the Council shall advise the requester that such notice has been given to the submitter. The requester shall be further advised that a delay in responding to the request may be considered a denial of access to records and that the requester may proceed with an administrative appeal or seek judicial review, if appropriate. However, the Council shall invite the requester to agree to an extension of time so that the Council may review the submitter's objection to disclosure. (g) Notice of intent to disclose. (1) A statement of the reasons for which the submitter's disclosure objections were not sustained; (2) A description of the business information to be disclosed; and (3) A specified disclosure date which is not less than ten (10) days (exclusive of Saturdays, Sundays, and legal public holidays) after the notice of the final decision to release the requested information has been provided to the submitter. Except as otherwise prohibited by law, notice of the final decision to release the requested information shall be forwarded to the requester at the same time. (h) Notice of FOIA lawsuit. (i) Exception to notice requirement. (1) The Council determines that the information shall not be disclosed; (2) The information lawfully has been published or otherwise made available to the public; or (3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600 (3 CFR, 1987 Comp., p. 235). § 1301.11 Administrative appeals and dispute resolution. (a) Grounds for administrative appeals. (1) To deny access to records in whole or in part (as provided in § 1301.8(b)(3)); (2) To assign a particular fee category to the requester (as provided in § 1301.12(c)); (3) To deny a request for a reduction or waiver of fees (as provided in § 1301.12(f)(7)); (4) That no records could be located that are responsive to the request (as provided in § 1301.8(b)(4)); or (5) To deny a request for expedited processing (as provided in § 1301.7(c)(5)). (b) Time limits for filing administrative appeals. (c) Form and content of administrative appeals. (1) Be made in writing or, as set forth on the Council's Web site, via the Internet; (2) Be clearly marked on the appeal request and any envelope that encloses it with the words “Freedom of Information Act Appeal” and addressed to Financial Stability Oversight Council, U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220; (3) Set forth the name of and contact information for the requester, including a mailing address, telephone number, and, if available, an email address at which the Council may contact the requester regarding the appeal; (4) Specify the date of the initial request and date of the letter of initial determination, and, where possible, enclose a copy of the initial request and the initial determination being appealed; and (5) Set forth specific grounds for the appeal. (d) Processing of administrative appeals. (e) Determinations to grant or deny administrative appeals. (1) If it is decided that the appeal is to be denied (in whole or in part) the requester shall be— (i) Notified in writing of the denial; (ii) Notified of the reasons for the denial, including the FOIA exemptions relied upon; (iii) Notified of the name and title or position of the official responsible for the determination on appeal; (iv) Provided with a statement that judicial review of the denial is available in the United States District Court for the judicial district in which the requester resides or has a principal place of business, the judicial district in which the requested records are located, or the District of Columbia in accordance with 5 U.S.C. 552(a)(4)(B); and (v) Provided with notification that mediation services may be available to the requester as a non-exclusive alternative to litigation through the Office of Government Information Services in accordance with 5 U.S.C. 552(h)(3). (2) If the Council grants the appeal in its entirety, the Council shall so notify the requester and promptly process the request in accordance with the decision on appeal. (f) Dispute resolution. § 1301.12 Fees for processing requests for Council records. (a) In general. (b) Fees chargeable for specific services. (1) Duplicating records. (i) $0.08 per page, up to 8 1/2 (ii) Photographs, films, and other materials—actual cost of duplication. (iii) Other types of duplication services not mentioned above—actual cost. (iv) Material provided to a private contractor for copying shall be charged to the requester at the actual cost charged by the private contractor. (2) Search services. (i) Searches for other than electronic records. (ii) Searches for electronic records. i.e., (3) Review of records. i.e., (4) Inspection of records in the reading room. (5) Other services. (i) Certifying that records are true copies; and (ii) Sending records by special methods (such as by express mail, etc.). (c) Fees applicable to various categories of requesters Generally. (2) Requester selection of fee category. (i) Commercial. (ii) Educational institution. (iii) Non-commercial scientific institution. (iv) Representative of the news media. (v) Other requester. (d) Fees applicable to each category of requester. (1) Commercial use. (2) Educational and non-commercial scientific uses. (3) News media uses. (4) Other requests. (e) Other circumstances when fees are not charged. (i) Services were performed without charge; (ii) The cost of collecting a fee would be equal to or greater than the fee itself; or (iii) The fees were waived or reduced in accordance with paragraph (f) of this section. (2) Notwithstanding paragraphs (b), (c), and (d) of this section, the Council may not charge a requester search fees or, in the case of a requester described in paragraphs (c)(2)(ii) through (iv) of this section, duplication fees if the Council fails to comply with any time limit under § 1301.7 or § 1301.11; provided that: (i) If unusual circumstances (as that term is defined in § 1301.7(e)) apply to the processing of the request and the Council has provided a timely notice to the requester in accordance with § 1301.7(e)(1), then a failure to comply with such time limit shall be excused for an additional ten days; (ii) If unusual circumstances (as that term is defined in § 1301.7(e)) apply to the processing of the request, more than 5,000 pages are necessary to respond to the request, the Council has provided a timely written notice to the requester in accordance with § 1301.7(e)(2), and the Council 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 § 1301.7(e)(2), then the Council may charge a requester such fees; and (iii) If a court has determined that exceptional circumstances exist, then a failure to comply with such time limit shall be excused for the length of time provided by the court order. (f) Waiver or reduction of fees. (i) Requests such waiver or reduction of fees in writing and submits the written request to the Council together with or as part of the FOIA request, or at a later time consistent with § 1301.5(b)(7) to process the request; and (ii) Demonstrates that the fee reduction or waiver request is in the public interest because: (A) Furnishing the information is likely to contribute significantly to public understanding of the operations or activities of the government; and (B) Furnishing the information is not primarily in the commercial interest of the requester. (2) To determine whether the requester has satisfied the requirements of paragraph (f)(1)(ii)(A) of this section, the Council shall consider: (i) The subject of the requested records must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated; (ii) The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be as likely to contribute to such understanding where nothing new would be added to the public's understanding; (iii) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area and ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration. (iv) The public's understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced by the disclosure to a significant extent. (3) To determine whether the requester satisfies the requirement of paragraph (f)(1)(ii)(B) of this section, the Council shall consider: (i) Any commercial interest of the requester (with reference to the definition of “commercial use” in paragraph (c)(2)(i) of this section), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. In the administrative process, a requester may provide explanatory information regarding this consideration; and (ii) Whether the public interest is greater in magnitude than that of any identified commercial interest in disclosure. The Council ordinarily shall presume that, if a news media requester satisfies the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest. (4) Where only some of the records to be released satisfy the requirements for a waiver or reduction of fees, a waiver or reduction shall be granted for those records. (5) Determination of request to reduce or waive fees. (6) Effect of denying request to reduce or waive fees. (7) Appeals of denials of requests to reduce or waive fees. (g) Notice of estimated fees; advance payments. (2) If the requester fails to state a limit and the costs are estimated to exceed $250, the requester shall be notified of the estimated costs, broken down by search, review and duplication fees, and must pay such amount prior to the processing of the request, or provide satisfactory assurance of full payment if the requester has a history of prompt payment of FOIA fees. Alternatively, the requester may reformulate the request in such a way as to constitute a request for responsive records at a reduced fee. (3) The Council reserves the right to request advance payment after a request is processed and before records are released. (4) If a requester previously has failed to pay a fee within thirty (30) calendar days of the date of the billing, the requester shall be required to pay the full amount owed plus any applicable interest, and to make an advance payment of the full amount of the estimated fee before the Council begins to process a new request or the pending request. (h) Form of payment. (i) Charging interest. (j) Aggregating requests.