§ 171.12 - Timing of responses to requests.

§ 171.12 Business informationTiming of responses to requests.

(a) Definitions. The following definitions apply for purposes of this section:

(1) Business information means commercial or financial or proprietary intellectual information obtained by the Department from a submitter that may be exempt from disclosure as privileged or confidential under Exemption 4 of the FOIA.

(2) Submitter means any person or entity from which the Department obtains business information, directly or indirectly. The term includes corporations, partnerships, and sole proprietorships; state, local, and tribal governments; foreign governments, NGOs and educational institutions.

(b) Designation of business information. A submitter of information must use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers exempt from disclosure under FOIA Exemption 4. These designations will expire ten years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period.

(c) Notice to submitters. The Department shall provide a submitter with prompt written notice of a FOIA request that seeks its business information, or of an administrative appeal of a denial of such a request, whenever required under paragraph (d) of this section, except as provided in paragraph (e) of this section, in order to give the submitter an opportunity to object to disclosure of any specified portion of that information under paragraph (f) of this section. The notice shall either describe the information requested or include copies of the requested records or record portions containing the business information.

(d) When notice is required. Notice shall be given to a submitter whenever:

(1) The information has been designated in good faith by the submitter as information considered exempt from disclosure under Exemption 4; or

(2) The Department has reason to believe that the information may be exempt from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure under that exemption or any other applicable exemption.

(e) When notice is not required. The notice requirements of paragraphs (c) and (d) of this section shall not apply if:

(1) The Department determines that the information is exempt from disclosure;

(2) The information lawfully has been published or has been officially made available to the public;

(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; or

(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous, except that, in such a case, the Department shall, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information.

(f) Opportunity to object to disclosure. The Department will allow a submitter a reasonable time to respond to the notice described in paragraph (c) of this section and will specify that time period in the notice. If a submitter has any objections to disclosure, it should provide the component 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 privileged or confidential. In the event that a submitter fails to respond to the notice within the time specified in it, the submitter will be considered to have no objection to disclosure of the information. Information provided by a submitter under this paragraph may itself be subject to disclosure under the FOIA.

(g) Notice of intent to disclose. The Department shall consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose business information. Whenever the Department decides to disclose business information over the objection of a submitter, it shall give the submitter written notice, which shall include:

(1) A statement of the reason(s) why each of the submitter's disclosure objections was not sustained;

(2) A description of the business information to be disclosed; and

(3) A specified disclosure date, which shall be a reasonable time subsequent to the notice.

(h) Notice of lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of business information, the Department shall promptly notify the submitter.

(i) Notice to requester. Whenever the Department provides a submitter with notice and an opportunity to object to disclosure under paragraph (f) of this section, the Department shall also notify the requester. Whenever the Department notifies a submitter of its intent to disclose requested business information under paragraph (g) of this section, the Department shall also notify the requester. Whenever a submitter files a lawsuit seeking to prevent the disclosure of business information, the Department shall notify the requester

In general. The Department ordinarily will respond to requests in the order received. In instances involving misdirected requests that are re-routed pursuant to § 171.11 (b), the response time will commence on the date that the request is received by the proper office that is designated to receive requests (A/GIS/IPS, OIG or PPT), but in any event not later than 10 working days after the request is first received by any of these three offices.

(b) Multi-track processing. The Department has a specific track for requests that are granted expedited processing, in accordance with the standards that are set forth in paragraph (d) of this section. An intake office (A/GIS/IPS, OIG, or PPT) may also designate additional processing tracks that, for example, distinguish between simple and more complex requests based on the estimated amount of work and/or time needed to process the request. Among the factors that may also be considered are the number of records requested, the number of pages involved in processing the request, and the need for consultations or referrals. The Department must advise requesters of the track in which their request falls and, when appropriate, should offer the requesters an opportunity to narrow their request so that it can be placed in a different processing track.

(c) Unusual circumstances. Whenever the statutory time limit for processing a request cannot be met because of unusual circumstances, as defined in the FOIA, and the Department extends the time limit on that basis, the Department must, before expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances involved. Where the extension exceeds 10 working days, the Department must, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or a modified request. The Department must make available its designated FOIA contact and FOIA Public Liaison for this purpose (see foia.state.gov/contact/). In the written notice to the requester, the Department must also alert the requester to the availability of the Office of Government Information Services to provide dispute resolution services.

(d) Expedited processing.

(1) Requests shall receive expedited processing when a requester demonstrates that a compelling need for the information exists. A compelling need is deemed to exist when the requester can demonstrate one of the following:

(i) Failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;

(ii) With respect to a request made by a person primarily engaged in disseminating information, there exists an urgency to inform the public concerning actual or alleged Federal Government activity; or

(iii) Failure to release the information would impair substantial due process rights or harm substantial humanitarian interests.

(2) A request for expedited processing may be made at the time of the initial request for records or at any later time. Requests for expedited processing must be submitted to the office responsible for receiving the FOIA request (A/GIS/IPS, OIG, or PPT). When making a request for expedited processing of an administrative appeal, the request must be submitted to A/GIS/IPS, or OIG in the case of appeals of OIG decisions (see § 171.15). A Department FOIA office that receives a misdirected request for expedited processing must forward it promptly to the correct office responsible for receiving requests (A/GIS/IPS, OIG, or PPT) for its determination. The time period for making the determination on the request for expedited processing commences on the date that the correct office receives the request, provided that the Department will be considered to have received the request for expedited processing no more than 10 working days after the request for expedited processing is received by A/GIS/IPS, OIG, or PPT.

(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 (d)(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. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, the Department may waive the formal certification requirement.

(4) A notice of the determination whether to grant expedited processing must be provided to the requester within 10 calendar days of the date of the receipt of the request for expedited processing in the appropriate office (whether A/GIS/IPS, OIG, or PPT). If expedited processing is granted, the request must be given priority, placed in the processing track for expedited requests, and processed as soon as practicable. A denial of a request for expedited processing may be appealed within 90 calendar days of the date of the Department's letter denying the request. A decision in writing on the appeal will be issued within 10 calendar days of the receipt of the appeal.