PART 1610—AVAILABILITY OF RECORDS Authority: 42 U.S.C. 2000e-12(a), 5 U.S.C. 552 as amended by Pub. L. 93-502, Pub. L. 99-570, and Pub. L. 105-231; for § 1610.15, nonsearch or copy portions are issued under 31 U.S.C. 9701. Subpart A—Production or Disclosure Under 5 U.S.C. 552 § 1610.1 Definitions. (a) Title VII et seq. (b) Commission (c) Freedom of Information Act (d) Attestation (e) Certification (f) Agency record (g) FOIA Public Liaison [40 FR 8171, Feb. 26, 1975, as amended at 52 FR 13830, Apr. 27, 1987; 70 FR 57511, Oct. 3, 2005; 78 FR 36650, June 19, 2013; 81 FR 95870, Dec. 29, 2016] § 1610.2 Statutory requirements. (a) This subpart contains the rules that the Commission will follow in processing requests for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. 552. These rules should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Guidelines”). Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in accordance with the Commission's Privacy Act regulations as well as under this subpart. The Commission should administer the FOIA with a presumption of openness. (b) As referenced in this subpart, “component” means each separate office within the Commission that is responsible for processing FOIA requests. The rules described in this regulation that apply to the Commission also apply to its components. [82 FR 45181, Sept. 28, 2017] § 1610.3 Purpose and scope. (a) This subpart contains the regulations of the Equal Employment Opportunity Commission implementing 5 U.S.C. 552. The regulations of this subpart provide information concerning the procedures by which records may be obtained from all organizational units within the Commission. Official records of the Commission made available pursuant to the requirements of 5 U.S.C. 552 shall be furnished to members of the public only as prescribed by this subpart. Officers and employees of the Commission may continue to furnish to the public, informally and without compliance with the procedures prescribed herein, information and records which prior to the enactment of 5 U.S.C. 552 were furnished customarily in the regular performance of their duties. (b) Nothing in this subpart shall be construed 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. [81 FR 95871, Dec. 29, 2016] § 1610.4 Public reference facilities and current index. (a) Records that the FOIA requires the Commission to make available for public inspection in an electronic format may be accessed through the Commission's Web site. The Commission is responsible for determining which of its records must be made publicly available, for identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. The Commission must ensure that its Web site of posted records and indices is reviewed and updated on an ongoing basis. The Commission has a FOIA Requester Service Center or FOIA Public Liaison who can assist individuals in locating records particular to the Commission. Contact information is located at https://www.eeoc.gov/eeoc/foia/index.cfm. http://www.foia.gov/report-makerequest.html. (b) The Commission offices designated in § 1610.4(c) shall maintain and make available for public inspection and copying a copy of: (1) The Commission's notices and regulatory amendments which are not yet published in the Code of Federal Regulations; (2) The Commission's annual reports; (3) The Commission's Compliance Manual; (4) Blank forms relating to the Commission's procedures as they affect the public; (5) The Commission's Orders (agency directives); (6) “CCH Equal Employment Opportunity Commission Decisions” (1973 and 1983); (7) Commission awarded contracts; and (8) Copies of all records, regardless of form or format, that because of the nature of their subject matter— (i) The Commission determines have become, or are likely to become, the subject of subsequent requests for substantially the same records; or (ii) That have been requested 3 or more times. (c) The Commission's District Offices with public reading areas are: Atlanta District Office, Sam Nunn Atlanta Federal Center, 100 Alabama Street SW., Suite 4R30, Atlanta, GA 30303 (includes the Savannah Local Office). Birmingham District Office, Ridge Park Place, 1130 22nd Street South, Suite 2000, Birmingham, AL 35205-2397 (includes the Jackson Area Office and the Mobile Local Office). Charlotte District Office, 129 West Trade Street, Suite 400, Charlotte, NC 28202 (includes the Raleigh Area Office, the Greensboro Local Office, the Greenville Local Office, the Norfolk Local Office, and the Richmond Local Office). Chicago District Office, 500 West Madison Street, Suite 2000, Chicago, IL 60661 (includes the Milwaukee Area Office and the Minneapolis Area Office). Dallas District Office, 207 S. Houston Street, 3rd Floor, Dallas, TX 75202-4726 (includes the San Antonio Field Office and the El Paso Area Office). Houston District Office, Mickey Leland Building, 1919 Smith Street, 6th Floor, Houston, TX 77002 (includes the New Orleans Field Office). Indianapolis District Office, 101 West Ohio Street, Suite 1900, Indianapolis, IN 46204-4203 (includes the Detroit Field Office, the Cincinnati Area Office, and the Louisville Area Office). Los Angeles District Office, Roybal Federal Building, 255 East Temple Street, 4th Floor, Los Angeles, CA 90012 (includes the Fresno Local Office, the Honolulu Local Office, the Las Vegas Local Office, and the San Diego Local Office). Memphis District Office, 1407 Union Avenue, 9th Floor, Memphis, TN 38104 (includes the Little Rock Area Office, and the Nashville Area Office). Miami District Office, Miami Tower, 100 SE 2nd Street, Suite 1500, Miami, FL 33131 (includes the Tampa Field Office, and the San Juan Local Office). New York District Office, 33 Whitehall Street, 5th Floor, New York, NY 10004 (includes the Boston Area Office, the Newark Area Office, and the Buffalo Local Office). Philadelphia District Office, 801 Market Street, Suite 1300, Philadelphia, PA 19107-3127 (includes the Baltimore Field Office, the Cleveland Field Office, and the Pittsburgh Area Office). Phoenix District Office, 3300 N. Central Avenue, Suite 690, Phoenix, AZ 85012-2504 (includes the Denver Field Office, and the Albuquerque Area Office). San Francisco District Office, 450 Golden Gate Avenue, 5 West, P.O. Box 36025, San Francisco, CA 94102-3661 (includes the Seattle Field Office, the Oakland Local Office, and the San Jose Local Office). St. Louis District Office, Robert A. Young Federal Building, 1222 Spruce Street, Room 8100, St. Louis, MO 63103 (includes the Kansas City Area Office, and the Oklahoma City Area Office). [78 FR 36650, June 19, 2013, as amended at 81 FR 95871, Dec. 29, 2016] § 1610.5 Request for records. (a) General information. https://www.eeoc.gov/eeoc/foia/index.cfm (2) Where a request for records pertains to another individual, a requester may receive greater access by submitting either a notarized authorization signed by that individual or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased (for example, a copy of a death certificate or an obituary). As an exercise of administrative discretion, the Commission can require a requester to supply additional information if necessary in order to verify that a particular individual has consented to disclosure. (b) Description of records sought. (1) A written request for inspection or copying of a record of the Commission may be presented in person, by mail, by fax, by email at [email protected], https://publicportalfoiapal.eeoc.gov/palMain.aspx, (2) A request must be clearly and prominently identified as a request for information under the “Freedom of Information Act.” If submitted by mail, or otherwise submitted under any cover, the envelope or other cover must be similarly identified. (3) A respondent must always provide a copy of the “Filed” stamped court complaint when requesting a copy of a charge file. The charging party must provide a copy of the “Filed” stamped court complaint when requesting a copy of the charge file if the Notice of Right to Sue has expired as of the date of the charging party's request. (4) Each request must contain information which reasonably describes the records sought and, when known, should contain date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number and location for the records requested in order to permit the records to be promptly located. (c) Format. (d) Requester information. [82 FR 45181, Sept. 28, 2017] § 1610.6 [Reserved] § 1610.7 Where to make request; form. (a) In general. (1) Information about current or former employees of an office; (2) Existing non-confidential statistical data related to the case processing of an office; (3) Agreements between the Commission and State or local fair employment agencies operating within the jurisdiction of an office; or (4) Materials in office investigative files related to charges under: Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq. et seq. et seq. et seq. et seq. (b) Request for other records. [email protected], https://publicportalfoiapal.eeoc.gov/palMain.aspx. (c) Authority to grant or deny requests. (d) Re-routing of misdirected requests. (e) Consultation, referral, and coordination. (1) Consultation. (2) Referral. (ii) Whenever the Commission refers any part of the responsibility for responding to a request to another agency, it must document the referral, maintain a copy of the record that it refers, and notify the requester of the referral, informing the requester of the name(s) of the agency to which the record was referred, including that agency's FOIA contact information. (3) Coordination. (e) Classified information. (f) Timing of responses to consultations and referrals. (g) Agreements regarding consultations and referrals. [81 FR 95872, Dec. 29, 2016, as amended at 87 FR 14799, Mar. 16, 2022; 89 FR 11170, Feb. 14, 2024] § 1610.8 Authority to determine. The Assistant Legal Counsel, FOIA Programs, the District Director, or the District Director's designee, when receiving a request pursuant to these regulations, shall grant or deny such request. That decision shall be final, subject only to administrative review as provided in § 1610.11 of this subpart. [78 FR 36651, June 19, 2013] § 1610.9 Responses: Timing. (a) In general. https://www.eeoc.gov/eeoc/foia/index.cfm. www.foia.gov/report-makerequest.html (b) Multitrack processing. (c) Acknowledgment. (d) Unusual circumstances. https://www.eeoc.gov/eeoc/foia/index.cfm. http://www.foia.gov/report-makerequest.html. (e) Aggregating requests. (f) Expedited processing. (i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (ii) An urgency to inform the public about an actual or alleged Federal Government activity, if made by a person who is primarily engaged in disseminating information. (2) A request for expedited processing may be made at any time. Requests based on paragraphs (f)(1)(i) and (ii) of this section must be submitted to the Commission or component of the Commission that maintains the records requested. When making a request for expedited processing of an administrative appeal, the request should be submitted to the Commission's Office of Legal Counsel, the office that adjudicates appeals. (3) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (f)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester's sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public's right to know about government activity generally. Depending on the circumstances, the existence of numerous recently published articles on a given subject may be helpful in establishing the requirement that there be an “urgency to inform” the public on the topic. This factor is not dispositive. As a matter of administrative discretion, the Commission may waive the formal certification requirement. (4) The Commission must notify the requester within 10 calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request must be given priority, placed in the processing track for expedited requests, and must be processed as soon as practicable. If a request for expedited processing is denied, the Commission must act on any appeal of that decision expeditiously. (g) Tolling. [81 FR 95873, Dec. 29, 2016] § 1610.10 Responses: Form and content. (a) In general. (b) Acknowledgments of requests. (c) Estimated dates of completion and interim responses. (d) Grants of requests. (e) Adverse determinations of requests. (f) Content of denial. (1) The name and title or position of the person responsible for the denial; (2) A brief statement of the reasons for the denial, including any FOIA exemption applied by the Commission in denying the request; (3) An estimate of the volume of any records or information withheld, such as the number of pages or some other reasonable form of estimation (such an estimate is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part or if providing an estimate would harm an interest protected by an applicable exemption); (4) A statement that the denial may be appealed under paragraph 1610.11 of this section, and a description of the appeal requirements; and (5) A statement notifying the requester of the assistance available from the Commission's FOIA Public Liaison and the dispute resolution services offered by OGIS. (g) Markings on released documents. [81 FR 95874, Dec. 29, 2016] § 1610.11 Appeals to the legal counsel from initial denials. (a) Requirements for making an appeal. [email protected], https://publicportalfoiapal.eeoc.gov/palMain.aspx. (b) Adjudication of appeals. (2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation. (c) Decisions on appeals. (d) Engaging in dispute resolution services provided by OGIS. (e) When appeal is required. (f) No personal appearance, oral argument or hearing will ordinarily be permitted in connection with an appeal to the Legal Counsel or the Assistant Legal Counsel, FOIA Programs. (g) On appeal, the Legal Counsel or designee, or the Assistant Legal Counsel, FOIA Programs, as appropriate, may reduce any fees previously assessed. (h) In the event that the Commission terminates its proceedings on a charge after the District Director or the District Director's designee denies a request, in whole or in part, for the charge file but during consideration of the requester's appeal from that denial, the request may be remanded for redetermination. The requester retains a right to appeal to the Assistant Legal Counsel, FOIA Programs, from the decision on remand. [78 FR 36652, June 19, 2013, as amended at 81 FR 95874, Dec. 29, 2016; 82 FR 45182, Sept. 28, 2017; 87 FR 14799, Mar. 16, 2022] § 1610.13 Maintenance of files. The Commission must preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to Title 44 of the United States Code or the General Records Schedule 4.2 of the National Archives and Records Administration. The Commission must not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under the FOIA. [82 FR 45182, Sept. 28, 2017] § 1610.14 Waiver of user charges. (a) Except as provided in paragraph (b) of this section, the Legal Counsel or designee, the Assistant Legal Counsel, FOIA Programs, and the District Directors or designees shall assess fees where applicable in accordance with § 1610.15 for search, review, and duplication of records requested. They shall also have authority to furnish documents without any charge or at a reduced charge if disclosure of the information 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. (b) District directors, field directors, area directors, local directors and the librarian are hereby authorized to collect fees where applicable in accordance with § 1610.15 for duplication of records which are to be made available for public inspection and copying in the district, field, area or local office, or in the headquarters library in accordance with § 1610.4(b). District directors, field directors, area directors, local directors and the librarian are hereby authorized to duplicate such records without charge, or at a reduced charge in accordance with the criteria of paragraph (a) of this section. [52 FR 13830, Apr. 27, 1987, as amended at 54 FR 32062, Aug. 4, 1989; 56 FR 29578, June 28, 1991; 63 FR 1342, Jan. 9, 1998; 71 FR 26830, May 9, 2006; 78 FR 36653, June 19, 2013] § 1610.15 Schedule of fees and method of payment for services rendered. (a) In general. (i) Commercial use requesters; (ii) Non-commercial scientific or educational institutions or news media requesters; and (iii) All other requesters. (2) Different fees are assessed depending on the category. Requesters may seek a fee waiver. The Commission must consider requests for fee waiver in accordance with the requirements in paragraph (k) of this section. To resolve any fee issues that arise under this section, the Commission may contact a requester for additional information. The Commission must ensure that searches, review, and duplication are conducted in the most efficient and the least expensive manner. The Commission ordinarily will collect all applicable fees before sending copies of records to a requester. Requesters must pay fees by check or money order made payable to the Treasury of the United States, or through Pay.gov. (b) Definitions. (1) Commercial use request refers to a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. An agency's decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester's intended use of the information. The Commission will notify requesters of their placement in this category. (2) Direct costs refers to those expenses that the Commission incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records in order to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work (for example, the basic rate of pay for the employee, plus 16 percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space, and of heating or lighting a facility. (3) Duplication refers to reproducing a copy of a record, or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others. (4) Educational institution refers to any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with his or her role at the educational institution. The Commission may seek verification from the requester that the request is in furtherance of scholarly research, and the Commission will advise requesters of their placement in this category. Example 1. A request from a professor of sociology at a university for records relating to women in the workplace, written on letterhead of the Department of Sociology, would be presumed to be from an educational institution. Example 2. A request from the same professor of sociology seeking candidate correspondence from the Commission in furtherance of a mystery book she is writing would not be presumed to be an institutional request, regardless of whether it was written on institutional stationery. Example 3. A student who makes a request in furtherance of her coursework or other school-sponsored activities and provides a copy of a course syllabus or other reasonable documentation to indicate the research purpose for the request, would qualify as part of this fee category. (5) Noncommercial scientific institution is an institution that is not operated on a “commercial basis,” as defined in paragraph (b)(1) of this section, and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further scientific research and are not for a commercial use. The Commission will advise requesters of their placement in this category. (6) Representative of the news media is any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations that broadcast “news” to the public at large and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the Internet. A request for records supporting the news-dissemination function of the requester will not be considered to be for a commercial use. “Freelance journalists” who demonstrate a solid basis for expecting publication through a news media entity will be considered representatives of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, the Commission can also consider a requester's past publication record in making this determination. The Commission will advise requesters of their placement in this category. (7) Review is the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 1610.19, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions. (8) Search is the process of looking for and retrieving records or information responsive to a request. Search time includes page-by-page or line-by-line identification of information within records and the reasonable efforts expended to locate and retrieve information from electronic records. (c) Charging fees. (1) Search. (ii) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be charged as follows: (A) By clerical personnel—at the rate of $5.00 per quarter hour. (B) By paralegals—at the rate of $9.00 per quarter hour. (C) By professional personnel—at the rate of $10.00 per quarter hour. (D) By managers—at the rate of $17.50 per quarter hour. (E) By SES employees—at the rate of $20.00 per quarter hour. (iii) The Commission will charge the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. The Commission must notify the requester of the costs associated with creating such a program, and the requester must agree to pay the associated costs before the costs may be incurred. (iv) For requests that require the retrieval of records stored by the Commission at a Federal Records Center operated by the National Archives and Records Administration (NARA), the Commission will charge additional costs in accordance with the Transactional Billing Rate Schedule established by NARA: http://www.archives.gov/dc-metro/suitland/delivery-fees.html. (2) Duplication. (3) Review. (d) Restrictions on charging fees. (2)(i) If the Commission fails to comply with the FOIA's time limits in which to respond to a request, it may not charge search fees, or, in instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees, except as described in paragraphs (d)(2)(ii) through (iv) of this section. (ii) If the Commission has determined that unusual circumstances as defined by the FOIA apply and the Commission provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 days. (iii) If the Commission has determined that unusual circumstances, as defined by the FOIA, apply and more than 5,000 pages are necessary to respond to the request, the Commission may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees, if the following steps are taken. The Commission must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA, and the Commission must have discussed with the requester via written mail, email or telephone (or not made less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C 552(a)(6)(B)(ii). If this exception is satisfied, the Commission 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) Except for requesters seeking records for a commercial use, the Commission must 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. (e) Notice of anticipated fees in excess of $25.00. (2) If the agency notifies the requester that the actual or estimated fees are in excess of $25.00, the request will not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with the requester's statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. The Commission is not required to accept payments in installments. (3) If the requester has indicated a willingness to pay some designated amount of fees, but the Commission estimates that the total fee will exceed that amount, the Commission will toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The Commission will inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification. (4) The Commission must make available its FOIA Public Liaison or other FOIA professional to assist any requester in reformulating a request to meet the requester's needs at a lower cost. (f) Charges for other services. (1) For attestation of documents—$25.00 per authenticating affidavit or declaration. Additionally, there may be search and review charges assessed in accordance with the rates listed in paragraph (c)(1) of this section. (2) For certification of document—$50.00 per authenticating affidavit or declaration. Additionally, there may be search and review charges assessed in accordance with the rates listed in paragraph (c)(1) of this section. (g) Charging interest. (h) Aggregating requests. (i) Advance payments. (2) When the Commission determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. The Commission may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment. (3) Where a requester has previously failed to pay a properly charged FOIA fee to the Commission within 30 calendar days of the billing date, the Commission may require that the requester pay the full amount due, plus any applicable interest on that prior request, and the Commission may require that the requester make an advance payment of the full amount of any anticipated fee before the Commission begins to process a new request or continues to process a pending request or any pending appeal. Where the Commission has a reasonable basis to believe that a requester has misrepresented the requester's identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity. (4) In cases in which the Commission requires advance payment, the request will not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of the Commission's fee determination, the request will be closed. (j) Other statutes specifically providing for fees. (k) Requirements for waiver or reduction of fees. (2) The Commission must furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that the factors described in paragraphs (k)(2)(i) through (iii) of this section are satisfied. (i) Disclosure of the requested information would shed light on the operations or activities of the 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. (ii) Disclosure of the requested information would be likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met: (A) Disclosure of the requested records 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. (B) 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 as well as the requester's ability and intention to effectively convey information to the public must be considered. The Commission will presume that a representative of the news media will satisfy this consideration. (iii) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, the Commission will consider the following criteria: (A) The Commission must identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters must be given an opportunity to provide explanatory information regarding this consideration. (B) If there is an identified commercial interest, the Commission must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (k)(2)(i) and (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. The Commission ordinarily will presume that when a news media requester has satisfied factors set forth in paragraphs (k)(2)(i) and (ii) of this section, the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest. (3) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver must be granted for those records. (4) Requests for a waiver or reduction of fees should be made when the request is first submitted to the Commission and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester must pay any costs incurred up to the date the fee waiver request was received. [81 FR 95875, Dec. 29, 2016] § 1610.16 [Reserved] § 1610.17 Exemptions. (a) 5 U.S.C. 552 exempts from all of its publication and disclosure requirements nine categories of records which are described in 552(b). These categories include such matters as national defense and foreign policy information, investigatory files, internal procedures and communications, materials exempted from disclosure by other statutes, information given in confidence, and matters involving personal privacy. (b) The Commission shall withhold information under the FOIA only if: (1) It reasonably foresees that disclosure would harm an interest protected by an exemption; or (2) Disclosure is prohibited by law. (c)(1) The Commission shall consider whether partial disclosure of information is possible whenever it determines that a full disclosure of a requested record is not possible; and (2) Take reasonable steps necessary to segregate and release nonexempt information. (d) Paragraph (c) of this section does not require disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under Exemption 3. (e) Section 706(b) of title VII provides that the Commission shall not make public charges which have been filed. It also provides that (subsequent to the filing of a charge, an investigation, and a finding that there is reasonable cause to believe that the charge is true) nothing said or done during and as a part of the Commission's endeavors to eliminate any alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion may be made public by the Commission without the written consent of the parties concerned; nor may it be used as evidence in a subsequent proceeding. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of section 706(b) shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or imprisoned not more than 1 year. (f) Section 709 of title VII authorizes the Commission to conduct investigations of charges filed under section 706, engage in cooperative efforts with State and local agencies charged with the administration of State or local fair employment practices laws, and issue regulations concerning reports and record-keeping. Section (e) of section 709 provides that it shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under section 709 prior to the institution of any proceeding under the act involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of section 709(e) shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or imprisoned not more than 1 year. (g) Special disclosure rules apply to the case files for charging parties, aggrieved persons on whose behalf a charge has been filed, and entities against whom charges have been filed. The special disclosure rules are available in the public reading areas of the Commission. Under sections 706 and 709, case files involved in the administrative process of the Commission are not available to the public. (h) Each executed statistical reporting form required under part 1602 of this chapter, such as Employer Information Report EEO-1, etc., relating to a particular employer is exempt from disclosure to the public prior to the institution of a proceeding under title VII involving information from such form. (i) Section 107 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117); section 207(a) of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff-6); and section 104 of the Pregnant Workers Fairness Act (42 U.S.C. 2000gg-2) explicitly adopt the powers, remedies, and procedures set forth in sections 706 and 709 of title VII. Accordingly, the prohibitions on disclosure contained in sections 706 and 709 of title VII as outlined in paragraphs (b), (c), (d), and (e) of this section, apply with equal force to requests for information related to charges and executed statistical reporting forms filed with the Commission under the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, or the Pregnant Workers Fairness Act. (j) Requests for information relating to open case files covering alleged violations of the Equal Pay Act (29 U.S.C. 206(b)) or the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq. (k) The medical, financial, and personnel files of employees of the Commission are exempt from disclosure to the public. (l) The deliberative process privilege attached to Exemption 5 shall not apply to records created 25 years or more before the date on which the records were requested. [40 FR 8171, Feb. 26, 1975, as amended at 45 FR 40605, June 16, 1980; 56 FR 29579, June 28, 1991; 74 FR 63983, Dec. 7, 2009; 81 FR 95878, Dec. 29, 2016; 89 FR 11170, Feb. 14, 2024] § 1610.18 Information to be disclosed. The Commission will provide the following information to the public. This information will also be made available electronically: (a) The Commission will make available for inspection and copying certain tabulations of aggregate industry, area, and other statistics derived from the Commission's reporting programs authorized by section 709(c) of title VII, provide that such tabulations: Were previously compiled by the Commission and are available in documentary form; comprise an aggregation of data from not less than three responding entities; and, do not reveal the identity of an individual or dominant entity in a particular industry or area; (b) All blank forms used by the Commission; (c) Subject to the restrictions and procedures set forth in § 1610.19, all signed contracts, final bids on all signed contracts, and agreements between the Commission and State or local agencies charged with the administration of State or local fair employment practices laws; (d) All final reports that do not contain statutorily confidential material in a recognizable form; (e) All agency correspondence to members of the public, Members of Congress, or other persons not government employees or special government employees, except those containing information that would produce an invasion of privacy if made public; (f) All administrative staff manuals and instructions to staff that affect members of the public unless the materials are promptly published and copies offered for sale; and (g) All final votes of each Commissioner, for every Commission meeting, except for votes pertaining to filing suit against respondents until such litigation is commenced. (h) Underlying annual FOIA report data. [56 FR 29579, June 28, 1991, as amended at 63 FR 1342, Jan. 9, 1998; 78 FR 36653, June 19, 2013] § 1610.19 Predisclosure notification procedures for confidential commercial information. (a) Definitions. (2) Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides confidential commercial information, either directly or indirectly to the Federal Government. (b) Designation of confidential commercial information. (c) When notice to submitters is required. (i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or (ii) The Commission has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure. (2) The notice must either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, the Commission may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending individual notifications. (d) Exceptions to submitter notice requirements. (1) The Commission determines that the information is exempt under the FOIA, and therefore will not be disclosed; (2) The information has been lawfully published or has been officially made available to the public; (3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or (4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, the Commission must give the submitter written notice of any final decision to disclose the information within 10 days prior to a specified disclosure date. (e) Opportunity to object to disclosure. (2) If a submitter has any objections to disclosure, it should provide the agency a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is confidential. (3) A submitter who fails to respond within the time period specified in the notice will be considered to have no objection to disclosure of the information. The Commission is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA. (f) Analysis of objections. (g) Notice of intent to disclose. (1) A statement of the reasons why each of the submitter's disclosure objections was not sustained; (2) A description of the information to be disclosed or copies of the records as the Commission intends to release them; and (3) A specified disclosure date, which must be 10 days after the notice. (h) Notice of FOIA lawsuit. (i) Requester notification. [81 FR 95878, Dec. 29, 2016] § 1610.20 [Reserved] § 1610.21 Annual report. (a) The Legal Counsel shall, on or before February 1, submit individual Freedom of Information Act reports for each principal agency FOIA component and one for the entire agency covering the preceding fiscal year to the Attorney General of the United States and to the director of the Office of Information Government Services. The reports shall include those matters required by 5 U.S.C. 552(e), and shall be made available electronically on the agency Web site. (b) The Commission will make each such report available for public inspection in an electronic format. In addition, the Commission will make the raw statistical data used in each report available in a timely manner for public inspection in an electronic format, which will be available— (1) Without charge, license, or registration requirement; (2) In an aggregated, searchable format; and (3) In a format that may be downloaded in bulk. (c) When and as directed by the Attorney General, the Chief FOIA Officer, through the Office of the Chair, shall review and report to the Attorney General on the agency's performance in implementing its responsibilities under FOIA. [78 FR 36653, June 19, 2013, as amended at 81 FR 95879, Dec. 29, 2016] Subpart B—Production in Response to Subpenas or Demands of Courts or Other Authorities § 1610.30 Purpose and scope. This subpart contains the regulations of the Commission concerning procedures to be followed when a subpena, order, or other demand (hereinafter in this subpart referred to as a “demand”) of a court or other authority is issued for the production or disclosure of (a) any material contained in the files of the Commission; (b) any information relating to material contained in the files of the Commission; or (c) any information or material acquired by any person while such person was an employee of the Commission as a part of the performance of his official duties or because of his official status. [32 FR 16261, Nov. 29, 1967] § 1610.32 Production prohibited unless approved by the Legal Counsel. No employee or former employee of the Commission shall, in response to a demand of a court or other authority, produce any material contained in the files of the Commission or disclose any information or produce any material acquired as part of the performance of his official duties or because of his official status without the prior approval of the Legal Counsel. [32 FR 16261, Nov. 29, 1967, as amended at 47 FR 46275, Oct. 18, 1982] § 1610.34 Procedure in the event of a demand for production or disclosure. (a) Whenever a demand is made upon an employee or former employee of the Commission for the production of material or the disclosure of information described in § 1610.30, he shall immediately notify the Legal Counsel. If possible, the Legal Counsel shall be notified before the employee or former employee concerned replies to or appears before the court or other authority. (b) If response to the demand is required before instructions from the Legal Counsel are received, an attorney designated for that purpose by the Commission shall appear with the employee or former employee upon whom the demand has been made, and shall furnish the court or other authority with a copy of the regulations contained in this part and inform the court or other authority that the demand has been or is being, as the case may be, referred for prompt consideration by the Legal Counsel. The court or other authority shall be requested respectfully to stay the demand pending receipt of the requested instructions from the Legal Counsel. [32 FR 16261, Nov. 29, 1967, as amended at 47 FR 46275, Oct. 18, 1982; 63 FR 1342, Jan. 9, 1998] § 1610.36 Procedure in the event of an adverse ruling. If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 1610.34(b) pending receipt of instructions from the Legal Counsel, or if the court or other authority rules that the demand must be complied with irrespective of the instructions from the Legal Counsel not to produce the material or disclose the information sought, the employee or former employee upon whom the demand has been made shall respectfully decline to comply with the demand (United States ex rel. Touhy Ragen, [32 FR 16261, Nov. 29, 1967, as amended at 47 FR 46275, Oct. 18, 1982]