§ 0.461   Requests for inspection of materials not routinely available for
public inspection.

   Any person desiring to inspect Commission records that are not
   specified in § 0.453 shall file a request for inspection meeting the
   requirements of this section. The FOIA Public Liaison is available to
   assist persons seeking records under this section. See § 0.441(a).

   (a)(1) Records include:

   (i) Any information that would be an agency record subject to the
   requirements of the Freedom of Information Act when maintained by the
   Commission in any format, including an electronic format; and

   (ii) Any information maintained for the Commission by an entity under
   Government contract.

   (2) The records in question must be reasonably described by the person
   requesting them to permit personnel to locate them with a reasonable
   amount of effort. Whenever possible, a request should include specific
   information about each record sought, such as the title or name,
   author, recipient, and subject matter of the record. Requests must also
   specify the date or time period for the records sought. The custodian
   of records sought may contact the requester to obtain further
   information about the records sought to assist in locating them.

   (3) The person requesting records under this section may specify the
   form or format of the records to be produced provided that the records
   may be made readily reproducible in the requested form or format.

   (b)(1) Requests shall reasonably describe, for each document requested
   (see § 0.461(a)(1)), all information known to the person making the
   request that would be helpful in identifying and locating the document,
   including the date range of the records sought, if applicable, and the
   persons/offices to be searched, if known. Upon request by Commission
   staff, the requester shall provide his or her street address, phone
   number (if any), and email address (if any).

   (2) The request shall, in addition, specify the maximum search fee the
   person making the request is prepared to pay or a request for waiver or
   reduction of fees if the requester is eligible (see § 0.470(e)). By
   filing a FOIA request, the requester agrees to pay all applicable fees
   charged under § 0.467, unless the person making the request seeks a
   waiver of fees (see § 0.470(e)), in which case the Commission will rule
   on the waiver request before proceeding with the search.

   (c) If the records are of the kinds listed in § 0.457 or if they have
   been withheld from inspection under § 0.459, the request shall, in
   addition, contain a statement of the reasons for inspection and the
   facts in support thereof. In the case of other materials, no such
   statement need accompany the request, but the custodian of the records
   may require the submission of such a statement if he or she determines
   that the materials in question may lawfully be withheld from
   inspection.

   (d)(1) Requests shall be

   (i) Filed electronically though the Internet at
   http://foiaonline.regulations.gov/; or

   (ii) Delivered or mailed to the Managing Director, Attn: FOIA Request,
   FCC, 445 12th Street SW., Room 1-A836, Washington, DC 20554.

   (2) For purposes of this section, the custodian of the records is the
   Chief of the Bureau or Office where the records are located. The Chief
   of the Bureau or Office may designate an appropriate person to act on a
   FOIA request. The Chief of the Bureau or Office may also designate an
   appropriate person to sign the response to any FOIA request. See
   § 0.461(m).

   (3) If the request is for materials submitted to the Commission by
   third parties and not open to routine public inspection under
   § 0.457(d), § 0.459, or another Commission rule or order, or if a request
   for confidentiality is pending pursuant to § 0.459, or if the custodian
   of records has reason to believe that the information may contain
   confidential commercial information, one copy of the request will be
   provided by the custodian of the records (see paragraph (e) of this
   section) to the person who originally submitted the materials to the
   Commission. If there are many persons who originally submitted the
   records and are entitled to notice under this paragraph, the custodian
   of records may use a public notice to notify the submitters of the
   request for inspection. The submitter or submitters will be given ten
   calendar days to respond to the FOIA request. See § 0.459(d)(1). If a
   submitter has any objection to disclosure, he or she is required to
   submit a detailed written statement specifying all grounds for
   withholding any portion of the information (see § 0.459). This response
   shall be served on the party seeking to inspect the records. The
   requester may submit a reply within ten calendar days unless a
   different period is specified by the custodian of records. The reply
   shall be served on all parties that filed a response. In the event that
   a submitter fails to respond within the time specified, the submitter
   will be considered to have no objection to disclosure of the
   information.

   Note to paragraph (d)(3): Under the ex parte rules, § 1.1206(a)(7) of
   this chapter, a proceeding involving a FOIA request is a
   permit-but-disclose proceeding, but is subject to the special service
   rules in this paragraph. We also note that while the FOIA request
   itself is a permit-but-disclose proceeding, a pleading in a FOIA
   proceeding may also constitute a presentation in another proceeding if
   it addresses the merits of that proceeding.

   (e)(1) When the request is received by the Managing Director, it will
   be assigned to the Freedom of Information Act (FOIA) Control Office,
   where it will be entered into the FOIAonline system. The request will
   be reviewed and, if it is determined that the request meets all the
   requirements of a proper FOIA request, will be designated as perfected.
   A FOIA request is then considered properly received. This will occur no
   later than ten calendar days after the request is first received by the
   agency.

   (2)(i) Except for the purpose of making a determination regarding
   expedited processing under paragraph (h) of this section, the time for
   processing a request for inspection of records will be tolled

   (A) While the custodian of records seeks reasonable clarification of
   the request;

   (B) Until clarification with the requester of issues regarding fee
   assessment occurs, including:

   (1) Where the amount of fees authorized is less than the estimated cost
   for completing the production;

   (2) Following the denial of a fee waiver, unless the requester had
   provided a written statement agreeing to pay the fees if the fee waiver
   was denied;

   (3) Where advance payment is required pursuant to § 0.469 and has not
   been made.

   (ii) Only one Commission request for information shall be deemed to
   toll the time for processing a request for inspection of records under
   paragraph (e)(2)(i)(A) of this section. Such request must be made no
   later than ten calendar days after a request is properly received by
   the custodian of records under paragraph (e)(1) of this section.

   (3) The FOIA Control Office will send an acknowledgement to the
   requester notifying the requester of the control number assigned to the
   request, the due date of the response, and the telephone contact number
   (202-418-0440) to be used by the requester to obtain the status of the
   request. Requesters may also obtain the status of an FOIA request via
   email at foia-public-liaison@fcc.gov or by viewing their request at
   http://foiaonline.regulations.gov/.

   (4) Multiple FOIA requests by the same or different FOIA requesters may
   be consolidated for disposition. See also § 0.470(b)(2).

   (f) Requests for inspection of records will be acted on as follows by
   the custodian of the records.

   (1) If the Commission is prohibited from disclosing the records in
   question, the request for inspection will be denied with a statement
   setting forth the specific grounds for denial.

   (2)(i) If records in the possession of the Commission are the property
   of another agency, the request will be referred to that agency and the
   person who submitted the request will be so advised, with the reasons
   for referral.

   (ii) If it is determined that the FOIA request seeks only records of
   another agency or department, the FOIA requester will be so informed by
   the FOIA Control Officer and will be directed to the correct agency or
   department.

   (iii) If the records in the possession of the Commission involve the
   equities of another agency, the Commission will consult with that
   agency prior to releasing the records.

   (3) If it is determined that the Commission does not have authority to
   withhold the records from public inspection, the request will be
   granted.

   (4) If it is determined that the Commission has authority to withhold
   the records from public inspection, the considerations favoring
   disclosure and non-disclosure will be weighed in light of the facts
   presented, and the Commission may, at its discretion, grant the request
   in full or in part, or deny the request.

   (5) If there is a statutory basis for withholding part of a document
   from inspection, to the extent that portion is reasonably segregable,
   that part will be deleted and the remainder will be made available for
   inspection. Unless doing so would harm an interest protected by an
   applicable exemption, records disclosed in part shall be marked or
   annotated, if technically feasible, to show the amount of information
   deleted, the location of the information deleted, and the exemption
   under which the deletion is made.

   (6) In locating and recovering records responsive to an FOIA request,
   only those records within the Commission's possession and control as of
   the date a request is perfected shall be considered.

   (g)(1) The custodian of the records will make every effort to act on
   the request within twenty business days after it is received and
   perfected by the FOIA Control Office. However, if a request for
   clarification has been made under paragraph (e)(2)(i)(A) of this
   section or an issue is outstanding regarding the payment of fees for
   processing the FOIA request is pending under paragraph (e)(2)(i)(B) of
   this section, the counting of time will start upon resolution of these
   requests. If it is not possible to locate the records and to determine
   whether they should be made available for inspection within twenty
   business days, the custodian may, upon timely notice to the requester,
   extend the time for action by up to ten business days, in any of the
   following circumstances:

   (i) It is necessary to search for and collect the requested records
   from field facilities or other establishments that are separate from
   the office processing the request.

   (ii) It is necessary to search for, collect and appropriately examine a
   voluminous amount of separate and distinct records which are demanded
   in a single request; or

   (iii) It is necessary to consult with another agency having a
   substantial interest in the determination of the request, or among two
   or more components of the Commission having substantial subject matter
   interest therein.

   (2) The custodian of the records will notify the requester in writing
   of any extension of time exercised pursuant to paragraph (g) of this
   section. The custodian of the records may also call the requester to
   extend the time provided a subsequent written confirmation is provided.
   If it is not possible to locate the records and make the determination
   within the extended period, the person or persons who made the request
   will be provided an opportunity to limit the scope of the request so
   that it may be processed within the extended time limit, or an
   opportunity to arrange an alternative time frame for processing the
   request or a modified request, and asked to consent to an extension or
   further extension. If the requester agrees to an extension, the
   custodian of the records will confirm the agreement in a letter or
   email specifying the length of the agreed-upon extension. If he or she
   does not agree to an extension, the request will be denied, on the
   grounds that the custodian has not been able to locate the records
   and/or to make the determination within the period for a ruling
   mandated by the Freedom of Information Act, 5 U.S.C. 552. In that
   event, the custodian will provide the requester with the records, if
   any, that could be located and produced within the allotted time. The
   requester may file an application for review by the Commission.

   (3) If the custodian of the records grants a request for inspection of
   records submitted to the Commission in confidence under § 0.457(d),
   § 0.459, or some other Commission rule or order, the custodian of the
   records will give the submitter written notice of the decision and of
   the submitter's right to seek review pursuant to paragraph (i) of this
   section.

   (h)(1) Requesters who seek expedited processing of FOIA requests shall
   submit such requests, along with their FOIA requests, to the Managing
   Director, as described in paragraph (d) of this section.

   (2) Expedited processing shall be granted to a requester demonstrating
   a compelling need that is certified by the requester to be true and
   correct to the best of his or her knowledge and belief. Simply stating
   that the request should be expedited is not a sufficient basis to
   obtain expedited processing.

   (3) For purposes of this section, compelling need means—

   (i) That 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; or

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

   (4)(i) Notice of the determination whether to grant expedited
   processing shall be provided to the requester by the custodian of
   records within ten calendar days after receipt of the request by the
   FOIA Control Office. Once the determination has been made to grant
   expedited processing, the custodian shall process the FOIA request as
   soon as practicable.

   (ii) If a request for expedited processing is denied, the person
   seeking expedited processing may file an application for review within
   five business days after the date of the written denial. The
   application for review shall be delivered or mailed to the General
   Counsel. (For general procedures relating to applications for review,
   see § 1.115 of this chapter.) The Commission shall act expeditiously on
   the application for review, and shall notify the custodian of records
   and the requester of the disposition of such an application for review.

   (i)(1) If a request for inspection of records submitted to the
   Commission in confidence under § 0.457(d), § 0.459, or another Commission
   rule or order is granted in whole or in part, an application for review
   may be filed by the person who submitted the records to the Commission,
   by a third party owner of the records or by a person with a personal
   privacy interest in the records, or by the person who filed the request
   for inspection of records within the ten business days after the date
   of the written ruling. The application for review shall be filed within
   ten business days after the date of the written ruling, shall be
   delivered or mailed to the General Counsel, or sent via email to
   FOIA-Appeal@fcc.gov, and shall be served on the person who filed the
   request for inspection of records and any other parties to the
   proceeding. The person who filed the request for inspection of records
   may respond to the application for review within ten business days
   after it is filed.

   (2) The first day to be counted in computing the time period for filing
   the application for review is the day after the date of the written
   ruling. An application for review is considered filed when it is
   received by the Commission. If an application for review is not filed
   within this period, the records will be produced for inspection.

   (3) If an application for review is denied, the person filing the
   application for review will be notified in writing and advised of his
   or her rights. A denial of an application for review is not subject to
   a petition for reconsideration under § 1.106 of this chapter.

   (4) If an application for review filed by the person who submitted,
   owns, or has a personal privacy interest in the records to the
   Commission is denied, or if the records are made available on review
   which were not initially made available, the person will be afforded
   ten business days from the date of the written ruling in which to move
   for a judicial stay of the Commission's action. The first day to be
   counted in computing the time period for seeking a judicial stay is the
   day after the date of the written ruling. If a motion for stay is not
   made within this period, the records will be produced for inspection.

   (j) Except as provided in paragraph (i) of this section, an application
   for review of an initial action on a request for inspection of records,
   a fee determination (see § 0.467 through § 0.470), or a fee reduction or
   waiver decision (see § 0.470(e)) may be filed only by the person who
   made the request. The application shall be filed within 90 calendar
   days after the date of the written ruling by the custodian of records.
   An application for review is considered filed when it is received by
   the Commission. The application shall be delivered or mailed to the
   General Counsel, or sent via email to FOIA-Appeal@fcc.gov. If the
   proceeding involves records subject to confidential treatment under
   § 0.457 or § 0.459, or involves a person with an interest as described in
   § 0.461(i), the application for review shall be served on such persons.
   That person may file a response within 14 calendar days after the
   application for review is filed. If the records are made available for
   review, the person who submitted them to the Commission will be
   afforded 14 calendar days after the date of the written ruling to seek
   a judicial stay. See paragraph (i) of this section. The first day to be
   counted in computing the time period for filing the application for
   review or seeking a judicial stay is the day after the date of the
   written ruling.

   Note to paragraphs (i) and (j): The General Counsel may review
   applications for review with the custodian of records and attempt to
   informally resolve outstanding issues with the consent of the
   requester. For general procedures relating to applications for review,
   see § 1.115 of this chapter.

   (k)(1)(i) The Commission will make every effort to act on an
   application for review of an action on a request for inspection of
   records within twenty business days after it is filed. In the following
   circumstances and to the extent time has not been extended under
   paragraphs (g)(1)(i), (ii), or (iii) of this section, the Commission
   may extend the time for acting on the application for review up to ten
   business days. (The total period of extensions taken under this
   paragraph and under paragraph (g) of this section without the consent
   of the person who submitted the request shall not exceed ten business
   days.):

   (A) It is necessary to search for and collect the requested records
   from field facilities or other establishments that are separate from
   the office processing the request;

   (B) It is necessary to search for, collect and appropriately examine a
   voluminous amount of separate and distinct records which are demanded
   in a single request; or

   (C) It is necessary to consult with another agency having a substantial
   interest in the determination of the request or among two or more
   components of the Commission having substantial subject matter interest
   therein.

   (ii) If these circumstances are not present, the person who made the
   request may be asked to consent to an extension or further extension.
   If the requester or person who made the request agrees to an extension,
   the General Counsel will confirm the agreement in a letter specifying
   the length of the agreed-upon extension. If the requestor or person who
   made the request does not agree to an extension, the Commission will
   continue to search for and/or assess the records and will advise the
   person who made the request of further developments; but that person
   may file a complaint in an appropriate United States district court.

   (2) The Commission may at its discretion or upon request consolidate
   for consideration related applications for review filed under paragraph
   (i) or (j) of this section.

   (l)(1) Subject to the application for review and judicial stay
   provisions of paragraphs (i) and (j) of this section, if the request is
   granted, the records will be produced for inspection at the earliest
   possible time.

   (2) If a request for inspection of records becomes the subject of an
   action for judicial review before the custodian of records has acted on
   the request, or before the Commission has acted on an application for
   review, the Commission may continue to consider the request for
   production of records.

   (m) Staff orders and letters ruling on requests for inspection are
   signed by the official (or officials) who give final approval of their
   contents. Decisions of the Commission ruling on applications for review
   will set forth the names of the Commissioners participating in the
   decision.

   [ 82 FR 4192 , Jan. 13, 2017]

   return arrow Back to Top