§ 1504.208 - Treatment of “business” information.

(a) For information petitioned to be designated as “business,” for which the petition has not been rejected as patently inadequate under § 1504.207(c), the OFI will stamp “ ‘business’ petition pending,” with the notation that public disclosure is not allowed without prior official OFI approval pursuant to this section, whether in the case of FOIA requests or disclosure at the OFI employee's own initiative. Otherwise, the OFI will impose no special procedures for internal control.

(b) When a request for public disclosure of the information stamped “business” is received or when the OFI on its own initiative intends to make pubic disclosure, the OFI Freedom of Information Officer will so notify the original submitter of the information, giving the submitter up to five days to supplement the original petition for “business” designation, first filed pursuant to § 1504.207(a). This supplementation may be accompanied by a sworn affidavit if appropriate and should include the following:

(1) Statement of any change in facts since the petition was first filed (including whether the petition has become unnecessary);

(2) Detailed explanation of the market value of the information at issue and why disclosure would reduce or eliminate that value; and

(3) Suggested ways to minimize economic harm from disclosure while still affording public access, such as isolating the specific portions of documents warranting special treatment.

(c) As part of the OFI initial determination on any FOIA request for stamped information (under §§ 1504.309 and 1504.312 of subpart C) or as part of an independent OFI decision to disclose that stamped information to the public, the OFI General Counsel or designee will make one of the following decisions on the pending petition for “business” designation:

(1) The information is not “business” within the meaning of § 1504.204(a), and the petition is therefore denied. If there is no other reason to withhold public disclosure, the OFI Freedom of Information Office will then grant the FOIA request.

(2) The information is “business” within the meaning of § 1504.204(a). The petition is therefore granted and the information is designated as “business.” However, when balancing the competing factors as to disclosure under § 1504.204(b) through (d), the public interest favors disclosure. Thus, the OFI Freedom of Information Office will then grant the FOIA request.

(3) The information is “business” within the meaning of § 1504.204(a). The petition is therefore granted, and the information is designated as “business.” When balancing the competing factors as to disclosure under § 1504.204(b) through (d) the public interest is against disclosure. Thus, the OFI Freedom of Information Officer will then deny the FOIA request as per § 1504.312 of subpart C, subject to the petitioner's ongoing assistance to the OFI in defense of any proceeding that might thereafter be brought to compel the OFI to disclose the “business” information.

(d) Any information designated “ ‘business’ petition pending,” which is released pursuant to a joint federal/state agreement or any other arrangement, shall not be released to the public by the State or any other entity receiving it unless the OFI General Counsel has made a determination otherwise.

(e) To the extent that a state agency or any other entity does not agree in advance to § 1504.208(d), the OFI will not release such information to it.

(f) The OFI Freedom of Information Officer will immediately advise the petitioner (submitter of the information at issue) of:

(1) The determinations made pursuant to either § 1504.208(c)(1) or (c)(2); and

(2) The fact that the information at issue will be publicly disclosed ten calendar days after the determination.