[Federal Register Volume 60, Number 230 (Thursday, November 30, 1995)]
[Rules and Regulations]
[Pages 61465-61472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28718]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
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Federal Register / Vol. 60, No. 230 / Thursday, November 30, 1995 /
Rules and Regulations
[[Page 61465]]
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 309
RIN 3064-AB67
Disclosure of Information
AGENCY: Federal Deposit Insurance Corporation.
ACTION: Final rule.
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SUMMARY: The Federal Deposit Insurance Corporation (FDIC or
Corporation) is issuing a final rule which sets forth the Corporation's
rules governing disclosure of information to members of the public. The
final rule will become effective 30 days after the date of publication,
and will establish the procedures to be used by members of the public
when requesting records maintained by the FDIC, the amount of fees
charged by the Corporation for responding to requests, the procedures
to be used when appealing a decision to deny access to records or for a
waiver of fees, circumstances and procedures under which exempt records
might be disclosed, and the method by which a party can serve legal
process on the Corporation in order to obtain information. The final
rule provides a more streamlined and efficient process under which
members of the public can obtain information from the Corporation, thus
meeting the goals of section 303 of the Riegle Community Development
and Regulatory Improvement Act of 1994.
EFFECTIVE DATE: January 2, 1996.
FOR FURTHER INFORMATION CONTACT: Paul A. Jeddeloh, Senior Program
Attorney, Office of the Executive Secretary, telephone (202) 898-7161;
Z. Scott Birdwell, Senior Attorney, Corporate and Special Litigation
Section, Legal Division, telephone (202) 736-0536; or Dirck A.
Hargraves, Attorney, Regulation and Legislation Section, Legal
Division, telephone (202) 898-7049, FDIC, 550 17th Street, NW.,
Washington, DC 20429.
SUPPLEMENTARY INFORMATION:
I. Background
On July 6, 1995, the Corporation published for comment a proposed
rule to establish procedures for the disclosure of information to the
public (60 FR 35148-35158). The proposed rule prescribed a 60-day
comment period and invited comments from all interested parties. No
comments were received. The rule was technically corrected for
clarification through the deletion of the words court order in the
fifth sentence in Sec. 309.6(b)(8)(i) and 309.7(c); the addition of the
phrase and not otherwise prohibited by Federal statute to the end of
the first sentence in Sec. 309.6(b)(8)(ii); the addition of the last
sentence in Sec. 309.7(a); and the deletion of the word exempt in the
first sentence of Sec. 309.7(b) and 309.7(c).
II. Matters of Regulatory Procedure
Authority
This rule is promulgated under the FDIC's general authority to
prescribe, through its Board of Directors, such rules and regulations
as it may deem necessary to carry out the provisions of the Federal
Deposit Insurance Act or any other law which the FDIC has the
responsibility of administering or enforcing (except to the extent that
authority to issue such rules and regulations has been expressly and
exclusively granted to any other regulatory agency). 12 U.S.C. 1819
``Seventh'' and ``Tenth''; 5 U.S.C. 552; 12 U.S.C. 3401 et seq.
Regulatory Flexibility Act
The Board of Directors has concluded that the final rule will not
impose a significant economic hardship on small institutions.
Therefore, the Board of Directors hereby certifies pursuant to section
605 of the Regulatory Flexibility Act (5 U.S.C. 605) that the final
rule will not have a significant economic impact on a substantial
number of small business entities within the meaning of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
Paperwork Reduction Act
The Board of Directors has determined that this final rule does not
contain any information collection requirements that require the
approval of the Office of Management and Budget pursuant to the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
List of Subjects in 12 CFR Part 309
Banks, Banking, Credit, Freedom of information, Privacy.
For the reasons set forth in the preamble, the Federal Deposit
Insurance Corporation is revising Part 309 of Chapter III of title 12,
of the Code of Federal Regulations to read as follows:
PART 309--DISCLOSURE OF INFORMATION
Sec.
309.1 Purpose and scope.
309.2 Definitions.
309.3 Federal Register publication.
309.4 Publicly available records.
309.5 Procedures for requesting records.
309.6 Disclosure of exempt records.
309.7 Service of process.
Authority: 5 U.S.C. 552; 12 U.S.C. 1819 ``Seventh'' and
``Tenth.''
Sec. 309.1 Purpose and scope.
This part sets forth the basic policies of the Federal Deposit
Insurance Corporation regarding information it maintains and the
procedures for obtaining access to such information.
Sec. 309.2 Definitions.
For purposes of this part:
(a) The term depository institution, as used in Sec. 309.6,
includes depository institutions that have applied to the Corporation
for federal deposit insurance, closed depository institutions,
presently operating federally insured depository institutions, foreign
banks, branches of foreign banks, and all affiliates of any of the
foregoing.
(b) The terms Corporation or FDIC mean the Federal Deposit
Insurance Corporation.
(c) The words disclose or disclosure, as used in Sec. 309.6, mean
to give access to a record, whether by producing the written record or
by oral discussion of its contents. Where the Corporation employee
authorized to release Corporation documents makes a determination that
furnishing copies of the documents is necessary, the words disclose or
disclosure include the furnishing of copies of documents or records. In
addition, disclose or disclosure as used in Sec. 309.6 is synonymous
with the term transfer as
[[Page 61466]]
used in the Right to Financial Privacy Act of 1978 (12 U.S.C. 3401 et
seq.).
(d) The term examination includes, but is not limited to, formal
and informal investigations of irregularities involving suspected
violations of federal or state civil or criminal laws, or unsafe and
unsound practices as well as such other investigations as may be
conducted pursuant to law.
(e) The term record includes records, files, documents, reports,
correspondence, books, and accounts, or any portion thereof.
(f) The term report of examination includes, but is not limited to,
examination reports resulting from examinations of depository
institutions conducted jointly by Corporation examiners and state
banking authority examiners or other federal financial institution
examiners, as well as reports resulting from examinations conducted
solely by Corporation examiners. The term also includes compliance
examination reports.
(g) The term customer financial records, as used in Sec. 309.6,
means an original of, a copy of, or information known to have been
derived from, any record held by a depository institution pertaining to
a customer's relationship with the depository institution but does not
include any record that contains information not identified with or
identifiable as being derived from the financial records of a
particular customer. The term customer as used in Sec. 309.6 refers to
individuals or partnerships of five or fewer persons.
(h) The term Director of the Division having primary authority
includes Deputies to the Chairman and directors of FDIC Divisions and
Offices that create, maintain custody, or otherwise have primary
responsibility for the handling of FDIC records or information.
Sec. 309.3 Federal Register publication.
The FDIC publishes the following information in the Federal
Register for the guidance of the public:
(a) Descriptions of its central and field organization and the
established places at which, the officers from whom, and the methods
whereby, the public may secure 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 FDIC;
(e) Every amendment, revision or repeal of the foregoing; and
(f) General notices of proposed rule-making.
Sec. 309.4 Publicly available records.
The following records are available upon request or, as noted,
available for public inspection during normal business hours, at the
listed offices. Certain records are also available on the Internet at
the following address: http://www.fdic.gov. To the extent permitted by
law, the FDIC may delete identifying details when it makes available or
publishes a final opinion, final order, statement of policy,
interpretation or staff manual or instruction. Fees for furnishing
records under this section are as set forth in Sec. 309.5(c).
(a) At the Office of Corporate Communications, Federal Deposit
Insurance Corporation, 550 17th Street, N.W., Washington, D.C. 20429,
(202) 898-6996:
(1) Documents, including press releases, financial institution
letters and proposed and adopted regulations, published by the FDIC and
pertaining to its operations and those of insured depository
institutions that it supervises.
(2) Reports on the competitive factors involved in merger
transactions and the bases for approval of merger transactions as
required by sections 18(c)(4) and 18(c)(9) of the Federal Deposit
Insurance Act (12 U.S.C. 1828(c) (4) and (9)).
(3) Community Reinvestment Act (CRA) Public Evaluations.
(4) Final decisions and orders concerning compliance, enforcement,
and other related administrative actions.
(5) At the FDIC's discretion, Summary of Deposits filed by insured
depository institutions, except that information on the size and number
of accounts filed before June, 1982 is not available.1
\1\ Summary of Deposits reports are described at 12 CFR 304.5.
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(6) Annual Report of Trust Assets for commercial banks and state
savings banks.2
\2\ Annual Report of Trust Assets, FFIEC Form 001.
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(b) At the Office of the Executive Secretary, Federal Deposit
Insurance Corporation, 550 17th Street, N.W., Washington, D.C. 20429,
which information is available for public inspection:
(1) All final opinions (including concurring and dissenting
opinions) and all final orders made in the adjudication of
administrative cases.
(2) Statements of policy and interpretations which have been
adopted by the FDIC but have not been published in the Federal
Register.
(3) A current index of matters covered by paragraphs (b)(1) and
(b)(2) of this section that were issued, adopted or promulgated after
July 4, 1967. Copies of the index will be provided at the direct cost
of duplication as set forth in Sec. 309.5(b).
(c) At the Division of Supervision, Federal Deposit Insurance
Corporation, 550 17th Street, N.W., Washington, D.C. 20429:
(1) Filings and reports required under the provisions of 12 CFR
Part 335 and the Securities and Exchange Act of 1934, as amended (15
U.S.C. 78a), by insured nonmember banks the securities of which are
registered with the FDIC pursuant to section 12 of that Act (15 U.S.C.
78l). These filings and reports are available for public inspection as
detailed in 12 CFR 335.702.
(2) Manual of Examination Policies.
(3) Manual of Trust Examination Policies.
(4) Federal Financial Institutions Examination Council (FFIEC)
Information Systems Examination Handbook.
(5) In the FDIC's discretion, the Consolidated Reports of Condition
and Income filed by insured nonmember banks (and certain nonfederally
insured depository institutions in the case of reports of condition),
except that select sensitive financial information may be
withheld.3
\3\ Reports of income and of condition are described at 12 CFR
304.4.
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(d) At the regional office of the FDIC for the region in which the
applicant or subject depository institution is located (A list of
FDIC's regional offices is available from the Office of Corporate
Communications, Federal Deposit Insurance Corporation, 550 17th Street,
N.W., Washington, DC 20429, (202) 898-6996):
(1) In the FDIC's discretion, non-confidential portions of
application files as provided in 12 CFR 303.6(g), including
applications for deposit insurance, to establish branches, to relocate
offices and to merge.
(2)(i) After acceptance by the FDIC of a notice filed pursuant to
the Change in Bank Control Act of 1978 (12 U.S.C. 1817(j)) (other than
a notice filed in contemplation of a public tender offer subject to the
Securities Exchange Act of 1934 (15 U.S.C. 78m and 78n) and the
[[Page 61467]]
FDIC's tender offer regulations (12 CFR 335.501-335.530), the
appropriate FDIC regional office will make available, on request, the
following information: The name of the depository institution whose
stock is to be acquired; the date the notice was accepted; the identity
of the acquiring person(s); the number of shares to be acquired; and
the number of outstanding shares of stock in the depository
institution. (The mere filing of a notice does not automatically
constitute ``acceptance'' by the FDIC; a notice is ``accepted'' when
the regional office determines that the notice contains all the
information required by 12 U.S.C. 1817(j)(6)).
(ii) In the case of a notice filed in contemplation of a public
tender offer that is subject to the Securities Exchange Act of 1934 (15
U.S.C. 78m and 78n) and the FDIC's tender offer regulations (12 CFR
335.501-335.530), when public disclosure is determined under
Sec. 303.4(b)(4) of the FDIC's regulations (12 CFR 303.4(b)(4)) to be
appropriate, the appropriate FDIC regional office will make available,
on request, the information described in paragraph (d)(2)(i) of this
section.
(iii) After a transaction subject to the Change in Bank Control Act
of 1978 has been consummated, the appropriate FDIC regional office will
make available, on request, the following information, in addition to
the information described in paragraph (d)(2)(i) of this section: The
date the shares were acquired; the names of the sellers (or
transferors); and the total number of shares owned by the purchasers
(or acquirors).
(e) At the Division of Depositor and Asset Services, Federal
Deposit Insurance Corporation, 550 17th Street, N.W., Washington, D.C.,
20429:
(1) Credit Manual;
(2) Agriculture Manual;
(3) Claims Manual;
(4) Operations Manual;
(5) Closing Manual;
(6) Environmental Guidelines Manual;
(7) Deposit Insurance Manual;
(8) Settlement Manual.
(f) At the Division of Compliance and Consumer Affairs, Federal
Deposit Insurance Corporation, 550 17th Street, N.W., Washington, D.C.
20429: Compliance Examination Manual.
Sec. 309.5 Procedures for requesting records.
(a) Definitions. For purposes of this section:
(1) Commercial use request means a request from or on behalf of a
requester who seeks records for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person
on whose behalf the request is made. In determining whether a request
falls within this category, the FDIC will determine the use to which a
requester will put the records requested and seek additional
information as it deems necessary.
(2) Direct costs means those expenditures the FDIC actually incurs
in searching for, duplicating, and, in the case of commercial
requesters, reviewing records in response to a request for records.
(3) Duplication means the process of making a copy of a record
necessary to respond to a request for records or for inspection of
original records that contain exempt material or that cannot otherwise
be directly inspected. Such copies can take the form of paper copy,
microfilm, audiovisual records, or machine readable records (e.g.,
magnetic tape or computer disk).
(4) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, an institution of professional education,
and an institution of vocational education, which operates a program or
programs of scholarly research.
(5) Non-commercial scientific institution means an institution that
is not operated on a commercial basis as that term is defined in
paragraph (a)(1) of this section, and which is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry.
(6) Representative of the news media means any person actively
gathering news for, or a free-lance journalist who reasonably expects
to have his or her work product published or broadcast by, an entity
that is organized and operated to publish or broadcast news to the
public. The term news means information that is about current events or
that would be of current interest to the general public.
(7) Review means the process of examining records located in
response to a request for records to determine whether any portion of
any record is permitted to be withheld as exempt information. It
includes processing any record for disclosure, e.g., doing all that is
necessary to excise them or otherwise prepare them for release.
(8) Search includes all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within records. Searches may be done
manually and/or by computer using existing programming.
(b) Initial request. (1) Except as provided in paragraphs (d) and
(h) of this section, the FDIC, upon request for any record in its
possession, will make the record available to any person who agrees to
pay the costs of searching, review and duplication as set forth in
paragraph (c) of this section. The request must be in writing, provide
information reasonably sufficient to enable the FDIC to identify the
requested records and specify a dollar limit which the requester is
willing to pay for the costs of searching, review and duplication,
unless the costs are believed to be less than the FDIC's cost of
processing the requester's remittance, which cost will be set forth in
the ``Notice of Federal Deposit Insurance Corporation Records Fees'' as
described in paragraph (c)(3) of this section. Requests under this
paragraph (b) should be addressed to the Office of the Executive
Secretary, FDIC, 550 17th Street, N.W., Washington, DC 20429.
(2) The FDIC will transmit notice to the requester within 10
business days after receipt of the initial request whether it is
granted or denied. Denials of requests will be based on the exemptions
provided for in paragraph (d) of this section.
(3) Notification of a denial of an initial request will be in
writing and will state:
(i) If the denial is in part or in whole;
(ii) The name and title of each person responsible for the denial
(when other than the person signing the notification);
(iii) The exemptions relied on for the denial; and
(iv) The right of the requester to appeal the denial to the FDIC's
General Counsel within 30 business days following receipt of the
notification.
(c) Fees--(1) General rules. (i) Persons requesting records of the
FDIC shall be charged for the direct costs of search, duplication and
review as set forth in paragraphs (c)(2) and (c)(3) of this section,
unless such costs are less than the FDIC's cost of processing the
requester's remittance.
(ii) Requesters will be charged for search and review costs even if
responsive records are not located and, if located, are determined to
be exempt from disclosure.
(iii) Multiple requests seeking similar or related records from the
same requester or group of requesters will be aggregated for the
purposes of this section.
(iv) If the FDIC determines that the estimated costs of search,
duplication or review of requested records will exceed the dollar
amount specified in the request or if no dollar amount is specified,
the FDIC will advise the requester of the estimated costs (if greater
than the FDIC's cost of
[[Page 61468]]
processing the requester's remittance). The requester must agree in
writing to pay the costs of search, duplication and review prior to the
FDIC initiating any records search.
(v) If the FDIC estimates that its search, duplication and review
costs will exceed $250.00, the requester must pay an amount equal to 20
percent of the estimated costs prior to the FDIC initiating any records
search.
(vi) The FDIC may require any requester who has previously failed
to pay the charges under this section within 30 days of mailing of the
invoice to pay in advance the total estimated costs of search,
duplication and review. The FDIC may also require a requester who has
any charges outstanding in excess of 30 days following mailing of the
invoice to pay the full amount due, or demonstrate that the fee has
been paid in full, prior to the FDIC initiating any additional records
search.
(vii) The FDIC may begin assessing interest charges on unpaid bills
on the 31st day following the day on which the notice was sent.
Interest will be at the rate prescribed in section 3717 of title 31 of
the United States Code and will accrue from the date of the invoice.
(viii) The time limit for FDIC to respond to a request will not
begin to run until the FDIC has received the requester's written
agreement under paragraph (c)(1)(iv) of this section, and advance
payment under paragraph (c)(1) (v) or (vi) of this section, or
outstanding charge under paragraph (c)(1)(vi) of this section.
(ix) As part of the initial request, a requester may ask that the
FDIC waive or reduce fees if disclosure of the records 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.
Determinations as to a waiver or reduction of fees will be made by the
Executive Secretary (or designee) and the requester will be notified in
writing of his/her determination. A determination not to grant a
request for a waiver or reduction of fees under this paragraph may be
appealed to the FDIC's General Counsel (or designee) pursuant to the
procedure set forth in paragraph (e) of this section.
(2) Chargeable fees by category of requester. (i) Commercial use
requesters shall be charged search, duplication and review costs.
(ii) Educational institutions, non-commercial scientific
institutions and news media representatives shall be charged
duplication costs, except for the first 100 pages.
(iii) Requesters not within the scope of paragraph (c)(2) (i) or
(ii) of this section shall be charged the full reasonable direct cost
of search and duplication, except for the first two hours of search
time and first 100 pages of duplication.
(3) Fee schedule. The dollar amount of fees which the FDIC may
charge to records requesters will be established by the Chief Financial
Officer of the FDIC (or designee), and will be set forth in the
``Notice of Federal Deposit Insurance Corporation Records Fees'' issued
in December of each year or in such ``Interim Notice of Federal Deposit
Insurance Corporation Records Fees'' as may be issued. Copies of such
notices may be obtained at no charge from the FDIC's Office of the
Executive Secretary, FOIA Unit, 550 17th Street NW., Washington, DC
20429. The fees implemented in the December or Interim Notice will be
effective 30 days after issuance. The FDIC may charge fees that recoup
the full allowable direct costs it incurs. The FDIC may contract with
independent contractors to locate, reproduce, and/or disseminate
records; provided however, that the FDIC has determined that the
ultimate cost to the requester will be no greater than it would be if
the FDIC performed these tasks itself. In no case will the FDIC
contract out responsibilities which the Freedom of Information Act
(FOIA) (5 U.S.C. 552) provides that the FDIC alone may discharge, such
as determining the applicability of an exemption or whether to waive or
reduce fees. Fees are subject to change as costs change.
(i) Manual searches for records. The FDIC will charge for manual
searches for records at the basic rate of pay of the employee making
the search plus 16 percent to cover employee benefit costs. Where a
single class of personnel (e.g., all clerical, all professional, or all
executive) is used exclusively, the FDIC, at its discretion, may
establish and charge an average rate for the range of grades typically
involved.
(ii) Computer searches for records. The fee for searches of
computerized records is the actual direct cost of the search, including
computer time, computer runs, and the operator's time apportionable to
the search. The fee for a computer printout is the actual cost. The
fees for computer supplies are the actual costs. The FDIC may, at its
discretion, establish and charge a fee for computer searches based upon
a reasonable FDIC-wide average rate for central processing unit
operating costs and the operator's basic rate of pay plus 16 percent to
cover employee benefit costs.
(iii) Duplication of records. (A) The per-page fee for paper copy
reproduction of documents is the average FDIC-wide cost based upon the
reasonable direct costs of making such copies.
(B) For other methods of reproduction or duplication, the FDIC will
charge the actual direct costs of reproducing or duplicating the
documents.
(iv) Review of records. The FDIC will charge commercial use
requesters for the review of records at the time of processing the
initial request to determine whether they are exempt from mandatory
disclosure at the basic rate of pay of the employee making the search
plus 16 percent to cover employee benefit costs. Where a single class
of personnel (e.g., all clerical, all professional, or all executive)
is used exclusively, the FDIC, at its discretion, may establish and
charge an average rate for the range of grades typically involved. The
FDIC will not charge at the administrative appeal level for review of
an exemption already applied. When records or portions of records are
withheld in full under an exemption which is subsequently determined
not to apply, the FDIC may charge for a subsequent review to determine
the applicability of other exemptions not previously considered.
(v) Other services. Complying with requests for special services is
at the FDIC's discretion. The FDIC may recover the full costs of
providing such services to the extent it elects to provide them.
(d) Exempt information. A request for records may be denied if the
requested record contains information which falls into one or more of
the following categories.4 If the requested record contains both
exempt and nonexempt information, the nonexempt portions which may
reasonably be segregated from the exempt portions will be released to
the requester.
\4\ Classification of a record as exempt from disclosure under
the provisions of Sec. 309.5(d) shall not be construed as authority
to withhold the record if it is otherwise subject to disclosure
under the Privacy Act of 1974 (5 U.S.C. 552a) or other federal
statute, any applicable regulation of FDIC or any other federal
agency having jurisdiction thereof, or any directive or order of any
court of competent jurisdiction.
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(1) Records which are specifically authorized under criteria
established by an Executive Order to be kept secret in the interest of
national defense or foreign policy and are in fact properly classified
pursuant to such Executive Order;
(2) Records related solely to the internal personnel rules and
practices of the FDIC;
[[Page 61469]]
(3) Records specifically exempted from disclosure by statute,
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 that is privileged or confidential;
(5) Interagency or intra-agency memoranda or letters which would
not be available by law to a private party in litigation with the FDIC;
(6) Personnel, medical, and similar files (including financial
files) the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy;
(7) Records compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a 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 which furnished records on a
confidential basis;
(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) Records that are contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
use of the FDIC or any agency responsible for the regulation or
supervision of financial institutions; or
(9) geological and geophysical information and data, including
maps, concerning wells.
(e) Appeals. (1) A person whose initial request for records under
paragraph (a) of this section, or whose request for a waiver of fees
under paragraph (c)(1)(ix) of this section, has been denied, either in
part or in whole, has the right to appeal the denial to FDIC's General
Counsel (or designee) within 30 business days after receipt of
notification of the denial. Appeals of denials of initial requests or
for a waiver of fees must be in writing and include any additional
information relevant to consideration of the appeal. Appeals should be
addressed to the Office of the Executive Secretary, FDIC, 550 17th
Street, N.W., Washington, DC 20429.
(2) The FDIC will notify the appellant within 20 business days
after receipt of the appeal whether it is granted or denied. Denials of
appeals on initial requests for records will be based on the exemptions
provided for in paragraph (c) of this section.
(3) Notifications of a denial of an appeal will be in writing and
will state:
(i) Whether the denial is in part or in whole;
(ii) The name and title of each person responsible for the denial
(if other than the person signing the notification);
(iii) The exemptions relied upon for the denial in the case of
initial requests for records; and
(iv) The right to judicial review of the denial under the FOIA.
(f) Extension of time. (1) Under unusual circumstances the FDIC may
require additional time, up to a maximum of 10 business days, to
determine whether to grant or deny an initial request or to respond to
an appeal of an initial denial. These circumstances would arise in
cases where:
(i) The records are in facilities, such as field offices or storage
centers, that are not part of the FDIC's Washington office;
(ii) The records requested are voluminous and are not in close
proximity to one another; or
(iii) There is a need to consult with another agency or among two
or more components of the FDIC having a substantial interest in the
determination.
(2) The FDIC will promptly give written notification to the person
making the request of the estimated date it will make its determination
and the reasons why additional time is required.
(g) FDIC procedures. (1) Initial requests for records will be
forwarded by the Executive Secretary to the head of the FDIC division
or office which has primary authority over such records. Where it is
determined that the requested records may be released, the appropriate
division or office head will grant access to the records. A request for
records may be denied only by the Executive Secretary (or designee),
except that a request for records not responded to within 10 business
days following its receipt by the Office of Executive Secretary--by
notice to the requester either granting the request, denying the
request, or extending the time for making a determination on the
request--shall, if the requester chooses to treat such delay in
response as a denial, be deemed to have been denied.
(2) Appeals from a denial of an initial request will be forwarded
by the Executive Secretary to the General Counsel (or designee) for a
determination whether the appeal will be granted or denied. The General
Counsel (or designee) may on his or her own motion refer an appeal to
the Board of Directors for a determination or the Board of Directors
may in its discretion consider such an appeal.
(h) Records of another agency. If a requested record is the
property of another federal agency or department, and that agency or
department, either in writing or by regulation, expressly retains
ownership of such record, upon receipt of a request for the record the
FDIC will promptly inform the requester of this ownership and
immediately shall forward the request to the proprietary agency or
department either for processing in accordance with the latter's
regulations or for guidance with respect to disposition.
Sec. 309.6 Disclosure of exempt records.
(a) Disclosure prohibited. Except as provided in paragraph (b) of
this section or by 12 CFR part 310 5, no person shall disclose or
permit the disclosure of any exempt records, or information contained
therein, to any persons other than those officers, directors,
employees, or agents of the Corporation who have a need for such
records in the performance of their official duties. In any instance in
which any person has possession, custody or control of FDIC exempt
records or information contained therein, all copies of such records
shall remain the property of the Corporation and under no circumstances
shall any person, entity or agency disclose or make public in any
manner the exempt records or information without written authorization
from the Director of the Corporation's Division having primary
authority over the records or information as provided in this section.
\5\ The procedures for disclosing records under the Privacy Act
are separately set forth in 12 CFR part 310.
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(b) Disclosure authorized. Exempt records or information of the
Corporation may be disclosed only in accordance with the conditions and
requirements set forth in this paragraph (b). Requests for
discretionary disclosure of exempt records or information pursuant to
this paragraph (b) may be submitted directly to the Division having
primary authority over the exempt records or information or to
[[Page 61470]]
the Office of Executive Secretary for forwarding to the appropriate
Division having primary authority over the records sought. Such
administrative request must clearly state that it seeks discretionary
disclosure of exempt records, clearly identify the records sought,
provide sufficient information for the Corporation to evaluate whether
there is good cause for disclosure, and meet all other conditions set
forth in paragraph (b)(1) through (10) of this section. Information
regarding the appropriate FDIC Division having primary authority over a
particular record or records may be obtained from the Office of
Executive Secretary. Authority to disclose or authorize disclosure of
exempt records of the Corporation is delegated as follows:
(1) Disclosure to depository institutions. The Director of the
Corporation's Division having primary authority over the exempt
records, or designee, may disclose to any director or authorized
officer, employee or agent of any depository institution, information
contained in, or copies of, exempt records pertaining to that
depository institution.
(2) Disclosure to state banking agencies. The Director of the
Corporation's Division having primary authority over the exempt
records, or designee, may in his or her discretion and for good cause,
disclose to any authorized officer or employee of any state banking or
securities department or agency, copies of any exempt records to the
extent the records pertain to a state-chartered depository institution
supervised by the agency or authority, or where the exempt records are
requested in writing for a legitimate depository institution
supervisory or regulatory purpose.
(3) Disclosure to federal financial institutions supervisory
agencies and certain other agencies. The Director of the Corporation's
Division having primary authority over the exempt records, or designee,
may in his or her discretion and for good cause, disclose to any
authorized officer or employee of any federal financial institution
supervisory agency including the Comptroller of the Currency, the Board
of Governors of the Federal Reserve System, the Office of Thrift
Supervision, the Securities and Exchange Commission, the National
Credit Union Administration, or any other agency included in section
1101(7) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3401
et. seq.) (RFPA), any exempt records for a legitimate depository
institution supervisory or regulatory purpose. The Director, or
designee, may in his or her discretion and for good cause, disclose
exempt records, including customer financial records, to certain other
federal agencies as referenced in section 1113 of the RFPA for the
purposes and to the extent permitted therein, or to any foreign bank
regulatory or supervisory authority as provided, and to the extent
permitted, by section 206 of the Federal Deposit Insurance Corporation
Improvement Act of 1991 (12 U.S.C. 3109).
(4) Disclosure to prosecuting or investigatory agencies or
authorities. (i) Reports of Apparent Crime pertaining to suspected
violations of law, which may contain customer financial records, may be
disclosed to federal or state prosecuting or investigatory authorities
without giving notice to the customer, as permitted in the relevant
exceptions of the RFPA.
(ii) The Director of the Corporation's Division having primary
authority over the exempt records, or designee, may disclose to the
proper federal or state prosecuting or investigatory authorities, or to
any authorized officer or employee of such authority, copies of exempt
records pertaining to irregularities discovered in depository
institutions which are believed to constitute violations of any federal
or state civil or criminal law, or unsafe or unsound banking practices,
provided that customer financial records may be disclosed without
giving notice to the customer, only as permitted by the relevant
exceptions of the RFPA. Unless such disclosure is initiated by the
FDIC, customer financial records shall be disclosed only in response to
a written request which:
(A) Is signed by an authorized official of the agency making the
request;
(B) Identifies the record or records to which access is requested;
and
(C) Gives the reasons for the request.
(iii) When notice to the customer is required to be given under the
RFPA, the Director of the Corporation's Division having primary
authority over the exempt records, or designee, may disclose customer
financial records to any federal or state prosecuting or investigatory
agency or authority, provided, that:
(A) The General Counsel, or designee, has determined that
disclosure is authorized or required by law; or
(B) Disclosure is pursuant to a written request that indicates the
information is relevant to a legitimate law enforcement inquiry within
the jurisdiction of the requesting agency and:
(1) The Director of the Corporation's Division having primary
authority over the exempt records, or designee, certifies pursuant to
section 1112(a) 6 of the RFPA that the records are believed
relevant to a legitimate law enforcement inquiry within the
jurisdiction of the receiving agency; and
\6\ The form of certification generally is as follows.
Additional information may be added:
Pursuant to section 1112(a) of the Right to Financial Privacy
Act of 1978 (12 U.S.C. 3412), I, ______ [name and appropriate title]
hereby certify that the financial records described below were
transferred to (agency or department) in the belief that they were
relevant to a legitimate law enforcement inquiry, within the
jurisdiction of the receiving agency.
(2) A copy of such certification and the notice required by section
1112(b) 7 of the RFPA is sent within fourteen days of the
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disclosure to the customer whose records are disclosed.8
\7\ The form of notice generally is as follows. Additional
information may be added:
Dear Mr./Ms. ______:
Copies of, or information contained in, your financial records
lawfully in the possession of the Federal Deposit Insurance
Corporation have been furnished to (agency or department) pursuant
to the Right to Financial Privacy Act of 1978 for the following
purpose: ______. If you believe that this transfer has not been made
to further a legitimate law enforcement inquiry, you may have legal
rights under the Right to Financial Privacy Act of 1978 or the
Privacy Act of 1974.
\8\ Whenever the Corporation is subject to a court-ordered delay
of the customer notice, the notice shall be sent immediately upon
the expiration of the court-ordered delay.
(5) Disclosure to servicers and serviced institutions. The Director
of the Corporation's Division having primary authority over the exempt
records, or designee, may disclose copies of any exempt record related
to a bank data center, a depository institution service corporation or
any other data center that provides data processing or related services
to an insured institution (hereinafter referred to as ``data center'')
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to:
(i) The examined data center;
(ii) Any insured institution that receives data processing or
related services from the examined data center;
(iii) Any state agency or authority which exercises general
supervision over an institution serviced by the examined data center;
and
(iv) Any federal financial institution supervisory agency which
exercises general supervision over an institution serviced by the
examined data center. The federal supervisory agency may disclose any
such examination report received from the Corporation to an insured
institution over which it exercises general supervision and which is
serviced by the examined data center.
(6) Disclosure to third parties. (i) Except as otherwise provided
in paragraphs (c) (1) through (5) of this section, the Director of the
Corporation's Division having primary authority over
[[Page 61471]]
the exempt records, or designee, may in his or her discretion and for
good cause, disclose copies of any exempt records to any third party
where requested to do so in writing. Any such written request shall:
(A) Specify, with reasonable particularity, the record or records
to which access is requested; and
(B) Give the reasons for the request.
(ii) Either prior to or at the time of any disclosure, the Director
or designee shall require such terms and conditions as he deems
necessary to protect the confidential nature of the record, the
financial integrity of any depository institution to which the record
relates, and the legitimate privacy interests of any individual named
in such records.
(7) Authorization for disclosure by depository institutions or
other third parties. (i) The Director of the Corporation's Division
having primary authority over the exempt records, or designee, may, in
his or her discretion and for good cause, authorize any director,
officer, employee, or agent of a depository institution to disclose
copies of any exempt record in his custody to anyone who is not a
director, officer or employee of the depository institution. Such
authorization must be in response to a written request from the party
seeking the record or from management of the depository institution to
which the report or record pertains. Any such request shall specify,
with reasonable particularity, the record sought, the party's interest
therein, and the party's relationship to the depository institution to
which the record relates.
(ii) The Director of the Corporation's Division having primary
authority over the exempt records, or designee, may, in his or her
discretion and for good cause, authorize any third party, including a
federal or state agency, that has received a copy of a Corporation
exempt record, to disclose such exempt record to another party or
agency. Such authorization must be in response to a written request
from the party that has custody of the copy of the exempt record. Any
such request shall specify the record sought to be disclosed and the
reasons why disclosure is necessary.
(iii) Any subsidiary depository institution of a bank holding
company or a savings and loan holding company may reproduce and furnish
a copy of any report of examination of the subsidiary depository
institution to the parent holding company without prior approval of the
Director of the Division having primary authority over the exempt
records and any depository institution may reproduce and furnish a copy
of any report of examination of the disclosing depository institution
to a majority shareholder if the following conditions are met:
(A) The parent holding company or shareholder owns in excess of 50%
of the voting stock of the depository institution or subsidiary
depository institution;
(B) The board of directors of the depository institution or
subsidiary depository institution at least annually by resolution
authorizes the reproduction and furnishing of reports of examination
(the resolution shall specifically name the shareholder or parent
holding company, state the address to which the reports are to be sent,
and indicate that all reports furnished pursuant to the resolution
remain the property of the Federal Deposit Insurance Corporation and
are not to be disclosed or made public in any manner without the prior
written approval of the Director of the Corporation's Division having
primary authority over the exempt records as provided in paragraph (b)
of this section;
(C) A copy of the resolution authorizing disclosure of the reports
is sent to the shareholder or parent holding company; and
(D) The minutes of the board of directors of the depository
institution or subsidiary depository institution for the meeting
immediately following disclosure of a report state:
(1) That disclosure was made;
(2) The date of the report which was disclosed;
(3) To whom the report was sent; and
(4) The date the report was disclosed.
(iv) With respect to any disclosure that is authorized under this
paragraph (b)(7), the Director of the Corporation's Division having
primary authority over the exempt records, or designee, shall only
permit disclosure of records upon determining that good cause exists.
If the exempt record contains information derived from depository
institution customer financial records, disclosure is to be authorized
only upon the condition that the requesting party and the party
releasing the records comply with any applicable provision of the RFPA.
Before authorizing the disclosure, the Director (or designee) may
require that both the party having custody of a copy of a Corporation
exempt record and the party seeking access to the record agree to such
limitations as the Director (or designee) deems necessary to protect
the confidential nature of the record, the financial integrity of any
depository institution to which the record relates and the legitimate
privacy interests of any persons named in such record.
(8) Disclosure by General Counsel. (i) The Corporation's General
Counsel, or designee, may disclose or authorize the disclosure of any
exempt record in response to a valid judicial subpoena, court order, or
other legal process, and authorize any current or former officer,
director, employee, agent of the Corporation, or third party, to appear
and testify regarding an exempt record or any information obtained in
the performance of such person's official duties, at any administrative
or judicial hearing or proceeding where such person has been served
with a valid subpoena, court order, or other legal process requiring
him or her to testify. The General Counsel shall consider the relevancy
of such exempt records or testimony to the litigation, and the
interests of justice, in determining whether to disclose such records
or testimony. Third parties seeking disclosure of exempt records or
testimony in litigation to which the FDIC is not a party shall submit a
request for discretionary disclosure directly to the General
Counsel.9 Such request shall specify the information sought with
reasonable particularity and shall be accompanied by a statement with
supporting documentation showing in detail the relevance of such exempt
information to the litigation, justifying good cause for disclosure,
and a commitment to be bound by a protective order. Failure to exhaust
such administrative request prior to service of a subpoena or other
legal process may, in the General Counsel's discretion, serve as a
basis for objection to such subpoena or legal process. Customer
financial records may not be disclosed to any federal agency that is
not a federal financial supervisory agency pursuant to this paragraph
unless notice to the customer and certification as required by the RFPA
have been given except where disclosure is subject to the relevant
exceptions set forth in the RFPA.
\9\ This administrative requirement does not apply to subpoenas,
court orders or other legal process issued for records of depository
institutions held by the FDIC as Receiver or Conservator. Subpoenas,
court orders or other legal process issued for such records will be
processed in accordance with State and Federal law, regulations,
rules and privileges applicable to FDIC as Receiver or Conservator.
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(ii) The General Counsel, or designee, may in his or her discretion
and for good cause, disclose or authorize disclosure of any exempt
record or testimony by a current or former officer, director, employee,
agent of the Corporation, or third party, sought in connection with any
civil or criminal hearing, proceeding or investigation without the
service of a judicial
[[Page 61472]]
subpoena, or other legal process requiring such disclosure or
testimony, if he or she determines that the records or testimony are
relevant to the hearing, proceeding or investigation and that
disclosure is in the best interests of justice and not otherwise
prohibited by Federal statute. Customer financial records shall not be
disclosed to any federal agency pursuant to this paragraph that is not
a federal financial supervisory agency, unless the records are sought
under the Federal Rules of Civil Procedure (28 U.S.C. appendix) or the
Federal Rules of Criminal Procedure (18 U.S.C. appendix) or comparable
rules of other courts and in connection with litigation to which the
receiving federal agency, employee, officer, director, or agent, and
the customer are parties, or disclosure is otherwise subject to the
relevant exceptions in the RFPA. Where the General Counsel or designee
authorizes a current or former officer, director, employee or agent of
the Corporation to testify or disclose exempt records pursuant to this
paragraph (b)(8), he or she may, in his or her discretion, limit the
authorization to so much of the record or testimony as is relevant to
the issues at such hearing, proceeding or investigation, and he or she
shall give authorization only upon fulfillment of such conditions as he
or she deems necessary and practicable to protect the confidential
nature of such records or testimony.
(9) Authorization for disclosure by the Chairman of the
Corporation's Board of Directors. Except where expressly prohibited by
law, the Chairman of the Corporation's Board of Directors may in his or
her discretion, authorize the disclosure of any Corporation records.
Except where disclosure is required by law, the Chairman may direct any
current or former officer, director, employee or agent of the
Corporation to refuse to disclose any record or to give testimony if
the Chairman determines, in his or her discretion, that refusal to
permit such disclosure is in the public interest.
(10) Limitations on disclosure. All steps practicable shall be
taken to protect the confidentiality of exempt records and information.
Any disclosure permitted by paragraph (b) of this section is
discretionary and nothing in paragraph (b) of this section shall be
construed as requiring the disclosure of information. Further, nothing
in paragraph (b) of this section shall be construed as restricting, in
any manner, the authority of the Board of Directors, the Chairman of
the Board of Directors, the Director of the Corporation's Division
having primary authority over the exempt records, the Corporation's
General Counsel, or their designees, or any other Corporation Division
or Office head, in their discretion and in light of the facts and
circumstances attendant in any given case, to require conditions upon
and to limit the form, manner, and extent of any disclosure permitted
by this section. Wherever practicable, disclosure of exempt records
shall be made pursuant to a protective order and redacted to exclude
all irrelevant or non-responsive exempt information.
Sec. 309.7 Service of process.
(a) Service. Any subpoena or other legal process to obtain
information maintained by the FDIC shall be duly issued by a court
having jurisdiction over the FDIC, and served upon either the Executive
Secretary (or designee), FDIC, 550 17th Street, N.W., Washington, DC
20429, or the Regional Director or Regional Manager of the FDIC region
where the legal action from which the subpoena or process was issued is
pending. A list of the FDIC's regional offices is available from the
Office of Corporate Communications, FDIC, 550 17th Street, N.W.,
Washington, DC 20429 (telephone 202-898-6996). Where the FDIC is named
as a party, service of process shall be made pursuant to the Federal
Rules of Civil Procedure, and upon the Executive Secretary (or
designee), FDIC, 550 17th Street N.W., Washington, DC 20429, or upon
the agent designated to receive service of process in the state,
territory, or jurisdiction in which any insured depository institution
is located. Identification of the designated agent in the state,
territory, or jurisdiction may be obtained from the Office of the
Executive Secretary or from the Office of the General Counsel, FDIC,
550 17th Street N.W., Washington, DC 20429. The Executive Secretary (or
designee), Regional Director or designated agent shall immediately
forward any subpoena, court order or legal process to the General
Counsel. The Corporation may require the payment of fees, in accordance
with the fee schedule referred to in Sec. 309.5(c)(3), prior to the
release of any records requested pursuant to any subpoena or other
legal process.
(b) Notification by person served. If any current or former
officer, director, employee or agent of the Corporation, or any other
person who has custody of records belonging to the FDIC, is served with
a subpoena, court order, or other process requiring that person's
attendance as a witness concerning any matter related to official
duties, or the production of any exempt record of the Corporation, such
person shall promptly advise the Office of the Corporation's General
Counsel of such service, of the testimony and records described in the
subpoena, and of all relevant facts which may be of assistance to the
General Counsel in determining whether the individual in question
should be authorized to testify or the records should be produced. Such
person should also inform the court or tribunal which issued the
process and the attorney for the party upon whose application the
process was issued, if known, of the substance of this section.
(c) Appearance by person served. Absent the written authorization
of the Corporation's General Counsel, or designee, to disclose the
requested information, any current or former officer, director,
employee, or agent of the Corporation, and any other person having
custody of records of the Corporation, who is required to respond to a
subpoena or other legal process, shall attend at the time and place
therein specified and respectfully decline to produce any such record
or give any testimony with respect thereto, basing such refusal on this
section.
By Order of the Board of Directors.
Dated at Washington, DC this 14th day of November, 1995.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Deputy Executive Secretary.
[FR Doc. 95-28718 Filed 11-29-95; 8:45 am]
BILLING CODE 6714-01-P
