---
kind: "range"
citation: "16 C.F.R. §§ 4.8–4.11"
title: "16"
from: "4.8"
to: "4.11"
count: 4
url: "https://uscodex.org/cfr/16/4.8..4.11"
---

# §4.8. Costs for obtaining Commission records.

- (a) **Definitions.** For the purpose of this section:
  - (1) The term search includes all time spent looking, manually or by automated means, for material that is responsive to a request, including page-by-page or line-by-line identification of material within documents.
  - (2) The term duplication refers to the process of making a copy of a document for the purpose of releasing that document in response to a request for Commission records. Such copies can take the form of paper copy, microform, audio-visual materials, or machine readable documentation such as magnetic tape or computer disc. For copies prepared by computer and then saved to a computer disc, the Commission charges the direct costs, including operator time, of production of the disc or other output format. Where paper documents must be scanned in order to comply with a requester's preference to receive the records in an electronic format, the requester shall pay the direct costs associated with scanning those materials. As set out in [§ 4.8(b)](#b), certain requesters do not pay for direct costs associated with duplicating the first 100 pages.
  - (3) The term review refers to the examination of documents located in response to a request to determine whether any portion of such documents may be withheld, and the redaction or other processing of documents for disclosure. Review costs are recoverable from commercial use requesters even if a record ultimately is not disclosed. Review time includes time spent considering formal objections to disclosure made by a business submitter but does not include time spent resolving general legal or policy issues regarding the release of the document.
  - (4) The term direct costs means expenditures that the Commission actually incurs in processing requests. Direct costs include the salary of the employee performing work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of document review facilities or the costs of heating or lighting such a facility or other facilities in which records are stored. The direct costs of specific services are set forth in [§ 4.8(b)(6)](#b-6).
- (b) **Fees.** User fees pursuant to 31 U.S.C. [9701](/usc/31/9701.md) and [5](/usc/31/5.md) U.S.C. 552(a) shall be charged according to this paragraph, unless the requester establishes the applicability of a public interest fee waiver pursuant to [§ 4.8(e)](#e). The chart summarizes the types of charges that apply to requester categories set out in [paragraphs (b)(1)-(b)(3)](#b-1..b-3).
  - (1) **Commercial use requesters.** Commercial use requesters will be charged for the direct costs to search for, review, and duplicate documents. A commercial use requester is a requester who seeks information 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.
  - (2) **Educational requesters, non-commercial scientific institution requesters, and representative of the news media.** Requesters in these categories will be charged for the direct costs to duplicate documents, excluding charges for the first 100 pages.
    - (i) An educational institution is a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further the scholarly research of the institution and are not sought for a commercial or an individual use or goal.
    - (ii) A non-commercial scientific institution is an institution that is not operated on a commercial basis as that term is referenced in [paragraph (b)(1)](#b-1) of this section, and that is operated solely to conduct scientific research the results of which are not intended to promote any particular product or industry.
    - (iii) A representative of the news media is any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large and publishers of periodicals (but only in those instances where they can qualify as disseminators of news) who make their products available for purchase by or subscription by the general public or free distribution to the general public. These examples are not intended to be all-inclusive. As traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would provide a solid basis for such an expectation, but the past publication record of a requester may also be considered in making such a determination. To qualify for news media status, a request must not be for a nonjournalistic commercial use. A request for records supporting the news dissemination function of the requester is not considered a commercial use.
  - (3) **Other requesters.** Other requesters not described in paragraphs [(b)(1)](#b-1) or [(2)](#b-2) will be charged for the direct costs to search for and duplicate documents, except that the first 100 pages of duplication and the first two hours of search time shall be furnished without charge.
  - (4) **Waiver of small charges.** Notwithstanding the provisions of paragraphs [(b)(1)](#b-1), [(2)](#b-2), and [(3)](#b-3) of this section, charges will be waived if the total chargeable fees for a request are under $25.00.
  - (5) **Materials available without charge.** These provisions do not apply to public records, including but not limited to Commission decisions, orders, and other public materials that may be made available to all requesters without charge.
  - (6)
    - (i) **Schedule of direct costs.** The following uniform schedule of fees applies to records held by all constituent units of the Commission:
    - (ii) **Search, review and duplication fees.** Agency staff is divided into three categories: Clerical, attorney/economist, and other professional. Fees for search and review purposes, as well the costs of operating duplication machinery such as converting paper to electronic format (scanning), are assessed on a quarter-hourly basis, and are determined by identifying the category into which the staff member(s) conducting the search or review or duplication procedure belong(s), determining the average quarter-hourly wages of all staff members within that category, and adding 16 percent to reflect the cost of additional benefits accorded to government employees. The exact fees are calculated and announced periodically and are available from the Consumer Response Center, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580; (202) 326-2222.
  - (7) **Untimely responses.**
    - (i) Except as provided in [paragraphs (b)(7)(ii)-(iv)](#b-7-ii..b-7-iv) of this section, search fees for responding to a Freedom of Information Act request will not be assessed for responses that fail to comply with the time limits, as provided at [5 U.S.C. 552(a)(4)(A)(viii)](/usc/5/552.md?p=a-4-A-viii), [§ 4.11(a)(1)(ii)](/cfr/16/4.11.md?p=a-1-ii) and [§ 4.11(a)(3)(ii)](/cfr/16/4.11.md?p=a-3-ii), if there are no unusual or exceptional circumstances, as those terms are defined by [5 U.S.C. 552(a)(6)](/usc/5/552.md?p=a-6) and [§ 4.11(a)(1)(ii)](/cfr/16/4.11.md?p=a-1-ii). Except as provided below, duplication fees will not be assessed for an untimely response, where there are no unusual or exceptional circumstances, made to a requester qualifying for one of the fee categories set forth in [paragraph (b)(2)](#b-2) of this section.
    - (ii) If the Commission has determined that unusual circumstances apply and has provided a timely written notice to the requester in accordance with [5 U.S.C. 552(a)(6)(B)](/usc/5/552.md?p=a-6-B), the delay in a response is excused for an additional 10 days. If the Commission fails to comply with the extended time limit, it will not charge search fees (or, for a requester qualifying for one of the fee categories set forth in [paragraph (b)(2)](#b-2) of this section, will not charge duplication fees).
    - (iii) If the Commission has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, the agency may charge search fees (or, for requesters qualifying for one of the fee categories set forth in [paragraph (b)(2)](#b-2) of this section, may charge duplication fees) if timely written notice has been provided to the requester and the agency has discussed with the requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request.
    - (iv) If a court determines that exceptional circumstances exist, the Commission's failure to comply with a time limit shall be excused for the length of time provided by the court order.
- (c) **Information to determine fees.** Each request for records shall set forth whether the request is made for either commercial or non-commercial purposes or whether the requester is an educational institution, a noncommercial scientific institution, or a representative of the news media. The deciding official (as designated by the General Counsel) will use this information, any additional information provided by the requester, and any other relevant information to determine the appropriate fee category in which to place the requester. See [§ 4.11(a)(3)(i)(A)(3)](/cfr/16/4.11.md?p=a-3-i-A-3) for procedures on appealing fee category and fee waiver determinations.
- (d) **Agreement to pay fees.**
  - (1) Each request that does not contain an application for a fee waiver as set forth in [§ 4.8(e)](#e) shall specifically indicate that the requester will either:
    - (i) Pay, in accordance with [§ 4.8(b)](#b), whatever fees may be charged for processing the request; or
    - (ii) Pay such fees up to a specified amount, whereby the processing of the request would cease once the specified amount has been reached.
  - (2) Each request that contains an application for a fee waiver shall specifically indicate whether the requester, in the case that the fee waiver is not granted, will:
    - (i) Pay, in accordance with [§ 4.8(b)](#b), whatever fees may be charged for processing the request;
    - (ii) Pay fees up to a specified amount, whereby the processing of the request would cease once the specified amount has been reached; or
    - (iii) Not pay fees, whereby the processing of the request will cease at the point fees are to be incurred in accordance with [§ 4.8(b)](#b).
  - (3) If the agreement required by this section is absent, and if the estimated fees exceed $25.00, the requester will be advised of the estimated fees and the request will not be processed until the requester agrees to pay such fees. If the requester does not respond to the notification that the estimated fees exceed $25.00 within 20 calendar days from the date of the notification, the request will be closed.
- (e) **Public interest fee waivers—**
  - (1) **Procedures.** A requester may apply for a waiver of fees. The requester shall explain in sufficient detail why a waiver is appropriate under the standards set forth in this paragraph. The application shall also include a statement, as provided by [paragraph (d)](#d) of this section, of whether the requester agrees to pay costs if the waiver is denied. The deciding official (as designated by the General Counsel) will rule on applications for fee waivers. To appeal the deciding official's determination of the fee waiver, a requester must follow the procedures set forth in [§ 4.11(a)(3)](/cfr/16/4.11.md?p=a-3).
  - (2) **Standards.**
    - (i) The first requirement for a fee waiver is that disclosure will likely contribute significantly to public understanding of the operations or activities of the government. This requirement shall be met if the requester establishes that:
      - (A) The subject matter of the requested information concerns the operations or activities of the Federal government;
      - (B) The disclosure is likely to contribute to an understanding of these operations or activities;
      - (C) The understanding to which disclosure is likely to contribute is public understanding, as opposed to the understanding of the individual requester or a narrow segment of interested persons (e.g., by providing specific information about the requester's expertise in the subject area of the request and about the ability and intention to disseminate the information to the public); and
      - (D) The likely contribution to public understanding will be significant.
    - (ii) The second requirement for a fee waiver is that the request not be primarily in the commercial interest of the requester. This requirement shall be met if the requester shows either:
      - (A) That the requester does not have a commercial interest that would be furthered by the requested disclosure; or
      - (B) If the requester does have a commercial interest that would be furthered by the requested disclosure, that the public interest in disclosure outweighs the identified commercial interest of the requester so that the disclosure is not primarily in the requester's commercial interest.
- (f) **Searches that do not yield responsive records.** Charges may be assessed for search time even if the agency fails to locate any responsive records or if it locates only records that are determined to be exempt from disclosure.
- (g) **Aggregating requests.** If the deciding official (as designated by the General Counsel) initially, or the General Counsel on appeal, reasonably believes that a requester, or a group of requesters acting in concert, is attempting to evade an assessment of fees by dividing a single request into a series of smaller requests, the requests may be aggregated and fees charged accordingly.
- (h) **Advance payment.** If the deciding official (as designated by the General Counsel) initially, or the General Counsel on appeal, estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250.00, or if the requester has previously failed to pay a fee within 30 days of the date of billing, the requester may be required to pay some or all of the total estimated charge in advance. Further, the requester may be required to pay all unpaid bills, including accrued interest, prior to processing the request.
- (i) **Means of payment.** Payment shall be made either electronically through the Department of Treasury's pay.gov Web site or by check or money order payable to the Treasury of the United States.
- (j) **Interest charges.** The Commission will begin assessing interest charges on an unpaid bill starting on the 31st day following the day on which the bill was sent. Interest will accrue from the date of the billing, and will be calculated at the rate prescribed in [31 U.S.C. 3717](/usc/31/3717.md).
- (k) **Effect of the Debt Collection Act of 1982 (Pub. L. 97-365), as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134).** The Commission will pursue repayment, where appropriate, by employing the provisions of the Debt Collection Act of 1982, as amended by the Debt Collection Improvement Act of 1996, the Federal Claims Collection Standards (FCSS), [31 CFR 900-904](/cfr/31/900-904.md), and any other applicable authorities in collecting unpaid fees assessed under this section, including disclosure to consumer reporting agencies and use of collection agencies. The FTC also reserves the legal right to employ other lawful debt collection methods such as alternative dispute resolution and arbitration when appropriate.

# §4.9. The public record.

- (a) **General.**
  - (1) Materials on the public record of the Commission are available for public inspection and copying either from the Commission's Web site or upon request.
  - (2) Materials that are exempt from mandatory public disclosure, or are otherwise not available from the Commission's public record, may be made available only upon request under the procedures set forth in [§ 4.11](/cfr/16/4.11.md), or as provided in §§ [4.10(d) through (g)](/cfr/16/4.10.md?p=d..g), [4.13](/cfr/16/4.13.md), and [4.15(b)(3)](/cfr/16/4.15.md?p=b-3), or by the Commission.
  - (3) **Electronic access to public records.** The majority of recent Commission public records are available for review electronically on the Commission's Web site on the Internet, www.ftc.gov. Copies of records that the Commission is required to make available to the public electronically, pursuant to [5 U.S.C. 552(a)(2)](/usc/5/552.md?p=a-2), may be obtained in that format from http://www.ftc.gov/foia/readingroom.shtm.
  - (4) **Requesting public records—**
    - (i) **Procedures.** Certain older public records may not be available at the FTC Web site. Any person may request copies of such records by contacting the FTC Reading Room by telephone at (202) 326-2222, extension 2. These requests shall specify as clearly and accurately as reasonably possible the records desired. For records that cannot be specified with complete clarity and particularity, requesters shall provide descriptions sufficient to enable qualified Commission personnel to locate the records sought. The Commission, the Supervisor of the Consumer Response Center, the General Counsel, or the deciding official (as designated by the General Counsel) may decide to provide only one copy of any public record and may refuse to provide copies to the requester if the records have been published or are publicly available at places other than the Commission's offices.
    - (ii) **Costs; agreement to pay costs.** Requesters will be charged search and duplication costs prescribed by [Rule 4.8](/cfr/16/4.8.md) for requests under this section. All requests shall include a statement of the information needed to determine fees, as provided by [§ 4.8(c)](/cfr/16/4.8.md?p=c), and an agreement to pay fees (or a statement that the requester will not pay fees if a fee waiver is denied), as provided by [§ 4.8(d)](/cfr/16/4.8.md?p=d). Requests may also include an application for a fee waiver, as provided by [§ 4.8(e)](/cfr/16/4.8.md?p=e). Advance payment may be required, as provided by [§ 4.8(h)](/cfr/16/4.8.md?p=h).
    - (iii) **Records for sale at another government agency.** If requested materials are available for sale at another government agency, the requester will not be provided with copies of the materials but will be advised to obtain them from the selling agency. The U.S. Government Printing Office (“GPO”), the official bookstore for most U.S. Government publications, can be contacted at (202) 512-1800 or toll-free at (866) 512-1800, and at ContactCenter@gpo.gov. The GPO's online store can be accessed at http://bookstore.gpo.gov and mail orders should be directed to U.S. Government Printing Office, P.O. Box 979050, St. Louis, MO 63197-9000.
- (b) **Categories.** Except to the extent material is confidential, as provided in [paragraph (c)](#c) of this section, the public record of the Commission includes, but is not necessarily limited to:
  - (1) **Commission Organization and Procedures (16 CFR part 0 and §§ 4.14 through 4.15, 4.17).**
    - (i) A current index of opinions, orders, statements of policy and interpretations, administrative staff manuals, general instructions and other public records of the Commission;
    - (ii) A current record of the final votes of each member of the Commission in all matters of public record, including matters of public record decided by notational voting;
    - (iii) Descriptions of the Commission's organization, including descriptions of where, from whom, and how the public may secure information, submit documents or requests, and obtain copies of orders, decisions and other materials;
    - (iv) Statements of the Commission's general procedures and policies and interpretations, its nonadjudicative procedures, its rules of practice for adjudicative proceedings, and its miscellaneous rules, including descriptions of the nature and requirements of all formal and informal procedures available, and
    - (v) Reprints of the principal laws under which the Commission exercises enforcement or administrative responsibilities.
  - (2) **Industry Guidance (16 CFR 1.1-1.6).**
    - (i) Any advice, advisory opinion or response given and required to be made public under §§ [1.4](/cfr/16/1.4.md) and [2.41 (d)](/cfr/16/2.41.md?p=d) or [(f)](/cfr/16/2.41.md?p=f) of this chapter (whether by the Commission or the staff), together with a statement of supporting reasons;
    - (ii) Industry guides, digests of advisory opinions and compliance advice believed to be of interest to the public generally and other administrative interpretations;
    - (iii) Transcripts of hearings in all industry guide proceedings, as well as written statements filed with or forwarded to the Commission in connection with these proceedings; and
    - (iv) Petitions filed with the Secretary of the Commission for the promulgation or issuance, amendment, or repeal of industry guides.
  - (3) **Rulemaking (16 CFR 1.7 through 1.26).**
    - (i) Petitions filed with the Secretary of the Commission for the promulgation or issuance, amendment, or repeal of rules or regulations within the scope of §§ [1.7](/cfr/16/1.7.md) and [1.21](/cfr/16/1.21.md) of this chapter, and petitions for exemptions;
    - (ii) Notices and advance notices of proposed rulemaking and rules and orders issued in rulemaking proceedings; and
    - (iii) Transcripts of hearings of all rulemaking proceedings, all other materials that are distributed to the public during these proceedings, and written statements filed with or forwarded to the Commission in connection with these proceedings.
  - (4) **Investigations.**
    - (i) Petitions to limit or quash compulsory process and the rulings thereon; and
    - (ii) **Closing letters in initial phase and full phase investigations.**
  - (5) **Adjudicative proceedings, stay applications, requests to reopen, and litigated orders. (16 CFR 2.51, 3.1 through 3.24, 3.31 through 3.56, 3.71 through 3.72, 4.7)—** Except for transcripts of matters heard in camera pursuant to [§ 3.45](/cfr/16/3.45.md) and material filed in camera pursuant to §§ [3.22](/cfr/16/3.22.md), [3.24](/cfr/16/3.24.md), [3.45](/cfr/16/3.45.md), [3.46](/cfr/16/3.46.md), [3.51](/cfr/16/3.51.md) and [3.52](/cfr/16/3.52.md),
    - (i) The versions of pleadings and transcripts of prehearing conferences to the extent made available under [§ 3.21(e)](/cfr/16/3.21.md?p=e), motions, certifications, orders, and the transcripts of hearings (including public conferences), testimony, oral arguments, and other material made a part thereof, and exhibits and material received in evidence or made a part of the public record in adjudicative proceedings;
    - (ii) Initial decisions of administrative law judges;
    - (iii) Orders and opinions in interlocutory matters;
    - (iv) Final orders and opinions in adjudications, and rulings on stay applications, including separate statements of Commissioners;
    - (v) Petitions for reconsideration, and answers thereto, filed pursuant to [§ 3.55](/cfr/16/3.55.md);
    - (vi) Applications for stay, answers thereto, and replies, filed pursuant to [§ 3.56](/cfr/16/3.56.md);
    - (vii) Petitions, applications, pleadings, briefs, and other records filed by the Commission with the courts in connection with adjudicative, injunctive, enforcement, compliance, and condemnation proceedings, and in connection with judicial review of Commission actions, and opinions and orders of the courts in disposition thereof;
    - (viii) Records of ex parte communications in adjudicative proceedings and stay applications;
    - (ix) Petitions to reopen proceedings and orders to determine whether orders should be altered, modified, or set aside in accordance with [§ 2.51](/cfr/16/2.51.md); and
    - (x) Decisions reopening proceedings, and orders to show cause under [§ 3.72](/cfr/16/3.72.md).
  - (6) **Consent agreements (16 CFR 2.31 through 2.34, 3.25).**
    - (i) Agreements containing orders, after acceptance by the Commission pursuant to §§ [2.34](/cfr/16/2.34.md) and [3.25(f)](/cfr/16/3.25.md?p=f) of this chapter;
    - (ii) Comments and other materials filed or placed on the public record under §§ [2.34](/cfr/16/2.34.md) and [3.25(f)](/cfr/16/3.25.md?p=f) concerning proposed consent agreements and related orders; and
    - (iii) Decisions and orders issued and served under §§ [2.34](/cfr/16/2.34.md) and [3.25(f)](/cfr/16/3.25.md?p=f), including separate statements of Commissioners.
  - (7) **Compliance/enforcement (16 CFR 2.33, 2.41).**
    - (i) Reports of compliance filed pursuant to the rules in this chapter or pursuant to a provision in a Commission order and supplemental materials filed in connection with these reports, except for reports of compliance, and supplemental materials filed in connection with Commission orders requiring divestitures or establishment of business enterprises of facilities, which are confidential until the last divestiture or establishment of a business enterprise or facility, as required by a particular order, has been finally approved by the Commission, and staff letters to respondents advising them that their compliance reports do not warrant any further action. At the time each such report is submitted the filing party may request confidential treatment in accordance with [paragraph (c)](#c) of this section and the General Counsel or the General Counsel's designee will pass upon such request in accordance with that paragraph;
    - (ii) Materials required to be made public under [16 CFR 2.41(f)](/cfr/16/2.41.md?p=f) in connection with applications for approval of proposed divestitures, acquisitions or similar transactions subject to Commission review under outstanding orders.
  - (8) **Access to documents and meetings (16 CFR 4.8, 4.11, 4.13, 4.15).**
    - (i) Letters requesting access to Commission records pursuant to [§ 4.11(a)](/cfr/16/4.11.md?p=a) of this chapter and the Freedom of Information Act, [5 U.S.C. 552](/usc/5/552.md), and letters granting or denying such requests (not including access requests and answers thereto from the Congress or other government agencies);
    - (ii) Announcements of Commission meetings as required under the Sunshine Act, [5 U.S.C. 552b](/usc/5/552b.md), including records of the votes to close such meetings;
    - (iii) Summaries or other explanatory materials relating to matters to be considered at open meetings made available pursuant to [§ 4.15(b)(3)](/cfr/16/4.15.md?p=b-3)
    - (iv) Commission minutes of open meetings, and, to the extent they are not exempt from mandatory public disclosure under the Sunshine Act or the Freedom of Information Act, portions of minutes or transcripts of closed meetings; and
    - (v) A guide for requesting records or information from the Commission, including an index of all major information systems, a description of major information and record locator systems maintained by the Commission, and a handbook for obtaining various types and categories of public information.
  - (9) **Standards of conduct (16 CFR 5.5 through 5.6, 5.10 through 5.26, 5.31, 5.57 through 5.68).**
    - (i) Memoranda to staff elaborating or clarifying standards described in administrative staff manuals and [part 5](/cfr/16/part5.md) of this subchapter.
  - (10) **Miscellaneous (press releases, clearance requests, reports filed by or with the Commission, continuing guaranties, registered identification numbers).**
    - (i) Releases by the Commission's Office of Public Affairs supplying information concerning the activities of the Commission;
    - (ii) Applications under [§ 4.1(b)(2)](/cfr/16/4.1.md?p=b-2) of this chapter for clearance or authorization to appear or participate in a proceeding or investigation and of the Commission's responses thereto;
    - (iii) Continuing guaranties filed under the Wool, Fur, and Textile Acts;
    - (iv) Published reports by the staff or by the Commission on economic surveys and investigations of general interest;
    - (v) Filings by the Commission or by the staff in connection with proceedings before other federal agencies or state or local government bodies;
    - (vi) Registration statements and annual reports filed with the Commission by export trade associations, and bulletins, pamphlets, and reports with respect to such associations released by the Commission;
    - (vii) The identities of holders of registered identification numbers issued by the Commission pursuant to [§ 1.32](/cfr/16/1.32.md) of this chapter;
    - (viii) The Commission's annual report submitted after the end of each fiscal year, summarizing its work during the year (with copies obtainable from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402) and any other annual reports made to Congress on activities of the Commission as required by law;
    - (ix) Records, as determined by the General Counsel or his or her designee, that have been released in response to a request made under the Freedom of Information Act, [5 U.S.C. 552](/usc/5/552.md), and which, because of the nature of the subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records, or that have been requested three or more times, except where some or all of those records would be exempt from disclosure under [5 U.S.C. 552](/usc/5/552.md) if requested by another party;
    - (x) A general index of the records referred to under [paragraph (b)(10)(ix)](#b-10-ix) of this section;
    - (xi) Grants of early termination of waiting periods published in accordance with the Hart-Scott-Rodino premerger notification provisions of the Clayton Act, [15 U.S.C. 18a(b)(2)](/usc/15/18a.md?p=b-2);
    - (xii) Reports on appliance energy consumption or efficiency filed with the Commission pursuant to [§ 305.8](/cfr/16/305.8.md) of this chapter;
    - (xiii) Annual filings by professional boxing sanctioning organizations as required by the Muhammed Ali Boxing Reform Act, [15 U.S.C. 6301](/usc/15/6301.md) note, 6307a-6307h;
    - (xiv) All transcripts or other materials that are distributed by staff at public workshops;
    - (xv) Other documents that the Commission has determined to place on the public record; and
    - (xvi) Every amendment, revision, substitute, or repeal of any of the foregoing items listed in [paragraphs (b)(1) through (10)](#b-1..b-10) of this section.
- (c) **Confidentiality and in camera material.**
  - (1) Persons submitting material to the Commission described in this section may designate that material or portions of it confidential and request that it be withheld from the public record. All requests for confidential treatment shall be supported by a showing of justification in light of applicable statutes, rules, orders of the Commission or its administrative law judges, orders of the courts, or other relevant authority. The General Counsel or the General Counsel's designee will act upon such request with due regard for legal constraints and the public interest. No such material or portions of material (including documents generated by the Commission or its staff containing or reflecting such material or portions of material) will be placed on the public record until the General Counsel or the General Counsel's designee has ruled on the request for confidential treatment and provided any prior notice to the submitter required by law.
  - (2) Motions seeking in camera treatment of material submitted in connection with a proceeding under [part 3](/cfr/16/part3.md) of these rules, except stay applications under [§ 3.56](/cfr/16/3.56.md), shall be filed with the Administrative Law Judge who is presiding over the proceeding. Requests for confidential treatment of material submitted in connection with a stay application shall be made in accordance with [§ 4.9(c)(1)](#c-1).
  - (3) To the extent that any material or portions of material otherwise falling within [paragraph (b)](#b) of this section contain information that is not required to be made public under [§ 4.10](/cfr/16/4.10.md) of this part, the General Counsel or the General Counsel's designee may determine, with due regard for legal constraints and the public interest, to withhold such materials from the public record.

# §4.10. Nonpublic material.

- (a) The following records and other material of the Commission are not required to be made public pursuant to [5 U.S.C. 552](/usc/5/552.md).
  - (1) Records, except to the extent required to be disclosed under other laws or regulations, related solely to the internal personnel rules and practices of the Commission. This exemption applies to internal rules or instructions to Commission personnel which must be kept confidential in order to assure effective performance of the functions and activities for which the Commission is responsible and which do not affect members of the public.
  - (2) Trade secrets and commercial or financial information obtained from a person and privileged or confidential. As provided in section 6(f) of the Federal Trade Commission Act, [15 U.S.C. 46(f)](/usc/15/46.md?p=f), this exemption applies to competitively sensitive information, such as costs or various types of sales statistics and inventories. It includes trade secrets in the nature of formulas, patterns, devices, and processes of manufacture, as well as names of customers in which there is a proprietary or highly competitive interest.
  - (3) Interagency or intra-agency memoranda or letters that would not routinely be available by law to a private party in litigation with the Commission, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records are requested. This exemption preserves the existing freedom of Commission officials and employees to engage in full and frank communication with each other and with officials and employees of other governmental agencies. This exemption includes records of the deliberations of the Commission except for the record of the final votes of each member of the Commission in every agency proceeding. It includes intraagency and interagency reports, memorandums, letters, correspondence, work papers, and minutes of meetings, as well as staff papers prepared for use within the Commission or between the Commission and other governmental agencies. It also includes information scheduled for public release, but as to which premature release would be contrary to the public interest;
  - (4) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy except to the extent such files or materials must be disclosed under other laws or regulations. This exemption applies to personnel and medical records and similar records containing private or personal information concerning any individual which, if disclosed to any person other than the individual concerned or his designated legal representative without his permission in writing, would constitute a clearly unwarranted invasion of personal privacy. Examples of files exempt from disclosure include, but are not limited to:
    - (i) The personnel records of the Commission;
    - (ii) Files containing reports, records or other material pertaining to individual cases in which disciplinary or other administrative action has been or may be taken, including records of proceedings pertaining to the conduct or performance of duties by Commission personnel;
  - (5) Records or information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information:
    - (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 that furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;
    - (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.**
  - (6) Information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions;
  - (7) Geological and geophysical information and data, including maps, concerning wells; and
  - (8) Material, as that term is defined in section 21(a) of the Federal Trade Commission Act, which is received by the Commission:
    - (i) In an investigation, a purpose of which is to determine whether any person may have violated any provision of the laws administered by the Commission; and
    - (ii) Which is provided pursuant to any compulsory process under the Federal Trade Commission Act, [15 U.S.C. 41](/usc/15/41.md), et seq., or which is provided voluntarily in place of compulsory process in such an investigation. See [section 21(f)](/cfr/16/21.md?p=f) of the Federal Trade Commission Act.
  - (9) Material, as that term is defined in section 21(a) of the Federal Trade Commission Act, which is received by the Commission pursuant to compulsory process in an investigation, a purpose of which is to determine whether any person may have violated any provision of the laws administered by the Commission. See [section 21(b)(3)(C)](/cfr/16/21.md?p=b-3-C) of the Federal Trade Commission Act.
  - (10) Such other material of the Commission as may from time to time be designated by the Commission as confidential pursuant to statute or Executive Order. This exempts from disclosure any information that has been designated nonpublic pursuant to criteria and procedures prescribed by Executive Order and that has not been subsequently declassified in accordance with applicable procedures. The exemption also preserves the full force and effect of statutes that restrict public access to specific government records or material.
  - (11) Material in an investigation or proceeding that involves a possible violation of criminal law, when there is reason to believe that the subject of the investigation or proceeding is not aware of its pendency, and disclosure of the existence of the investigation could reasonably be expected to interfere with enforcement proceedings. When a request is made for records under [§ 4.11(a)](/cfr/16/4.11.md?p=a), the Commission may treat the records as not subject to the requirements of the Freedom of Information Act.
- (b) With respect to information contained in transcripts of Commission meetings, the exemptions contained in [paragraph (a)](#a) of this section, except for paragraphs [(a)(3)](#a-3) and [(a)(7)](#a-7) of this section, shall apply; in addition, such information will not be made available if it is likely to have any of the effects described in 5 U.S.C. [552b (c)(5)](/usc/5/552b.md?p=c-5), [(c)(9)](/usc/5/552b.md?p=c-9), or [(c)(10)](/usc/5/552b.md?p=c-10).
- (c) Under section 10 of the Federal Trade Commission Act, any officer or employee of the Commission who shall make public any information obtained by the Commission, without its authority, unless directed by a court, shall be deemed guilty of a misdemeanor, and upon conviction thereof, may be punished by a fine not exceeding five thousand dollars ($5,000), or by imprisonment not exceeding 1 year, or by fine and imprisonment, in the discretion of the court.
- (d) Except as provided in paragraphs [(f)](#f) or [(g)](#g) of this section or in § [4.11(b)](/cfr/16/4.11.md?p=b), [(c)](/cfr/16/4.11.md?p=c), [(d)](/cfr/16/4.11.md?p=d), [(i)](/cfr/16/4.11.md?p=i), or [(j)](/cfr/16/4.11.md?p=j), no material that is marked or otherwise identified as confidential and that is within the scope of [§ 4.10(a)(8)](#a-8), and no material within the scope of [§ 4.10(a)(9)](#a-9) that is not otherwise public, will be made available without the consent of the person who produced the material, to any individual other than a duly authorized officer or employee of the Commission or a consultant or contractor retained by the Commission who has agreed in writing not to disclose the information. All other Commission records may be made available to a requester under the procedures set forth in [§ 4.11](/cfr/16/4.11.md) or may be disclosed by the Commission except where prohibited by law.
- (e) Except as provided in paragraphs [(f)](#f) or [(g)](#g) of this section or in § [4.11(b)](/cfr/16/4.11.md?p=b), [(c)](/cfr/16/4.11.md?p=c), [(d)](/cfr/16/4.11.md?p=d), [(i)](/cfr/16/4.11.md?p=i), or [(j)](/cfr/16/4.11.md?p=j), material not within the scope of [§ 4.10(a)(8)](#a-8) or [§ 4.10(a)(9)](#a-9) that is received by the Commission and is marked or otherwise identified as confidential may be disclosed only if it is determined that the material is not within the scope of [§ 4.10(a)(2)](#a-2), and the submitter is provided at least ten days notice of the intent to disclose the material.
- (f) Nonpublic material obtained by the Commission may be disclosed to persons other than the submitter in connection with the taking of oral testimony without the consent of the submitter only if the material or transcript is not within the scope of [§ 4.10(a)(2)](#a-2). If the material is marked confidential, the submitter will be provided 10 days' notice of the intended disclosure or will be afforded an opportunity to seek an appropriate protective order.
- (g) **Material obtained by the Commission—**
  - (1) Through compulsory process and protected by section 21(b) of the Federal Trade Commission Act, [15 U.S.C. 57b-2(b)](/usc/15/57b-2.md?p=b) or voluntarily in lieu thereof and designated by the submitter as confidential and protected by section 21(f) of the Federal Trade Commission Act, [15 U.S.C. 57b-2(f)](/usc/15/57b-2.md?p=f), and [§ 4.10(d)](#d) of this part; or
  - (2) That is designated by the submitter as confidential, and protected by section 21(c) of the Federal Trade Commission Act, [15 U.S.C. 57b-2(c)](/usc/15/57b-2.md?p=c), and [§ 4.10(e)](#e) of this part; or
  - (3) That is confidential commercial or financial information protected by section 6(f) of the Federal Trade Commission Act, [15 U.S.C. 46(f)](/usc/15/46.md?p=f), and [§ 4.10(a)(2)](#a-2) of this part, may be disclosed in Commission administrative or court proceedings subject to Commission or court protective or in camera orders as appropriate. See §§ [1.18(b)](/cfr/16/1.18.md?p=b) and [3.45](/cfr/16/3.45.md).

# §4.11. Disclosure requests.

- (a) **Freedom of Information Act—**
  - (1) **Initial requests—**
    - (i) **Form and contents; time of receipt.**
      - (A) A request under the provisions of the Freedom of Information Act, [5 U.S.C. 552](/usc/5/552.md), as amended, for access to Commission records shall be in writing and transmitted by one of the following means: by the form located on the FTC's FOIA Web site, found at www.ftc.gov; by email message to the FOIA email account at foia@ftc.gov; by facsimile transmission to (202) 326-2477; or by mail to the following address: Freedom of Information Act Request, Office of the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.
      - (B) Failure to mark the envelope and the request in accordance with [paragraph (a)(1)(i)(A)](#a-1-i-A) of this section, or the filing of a request for expedited treatment under [paragraph (a)(1)(i)(G)](#a-1-i-G) of this section, will result in the request (or requests, if expedited treatment has been requested) as received on the date that the processing unit in the Office of General Counsel actually receives the request(s).
      - (C) **Acknowledgment of requests.** Once a FOIA request is properly received by the processing unit in the Office of the General Counsel, a letter acknowledging the receipt of the request shall be mailed to the requester if processing the request will likely take more than 5 business days.
      - (D) **Identifiability.** (1) A properly filed FOIA request shall reasonably describe the records sought with enough detail to enable the Commission to locate them with a reasonable amount of effort. Whenever possible, the request should include specific information about each record sought such as date, title, name, author, recipient, subject matter of the record, provide information regarding fees pursuant to [§ 4.8(c)](/cfr/16/4.8.md?p=c), and provide sufficient contact information for a response to be sent. Although a mailing address is generally required, an email address can suffice in some instances. The FOIA Office will consider requests to send responses by email.

        (2) A denial of a request may state that the description required by paragraph (a)(2)(ii)(A) of this section is insufficient to allow identification and location of the records.

      - (E) **Costs; agreement to pay costs.** Requesters will be charged search, review, duplication and other chargeable direct costs as prescribed by [§ 4.8](/cfr/16/4.8.md) for requests under this section. All requests shall include a statement of the information needed to determine fees, as provided by [§ 4.8(c)](/cfr/16/4.8.md?p=c), and an agreement to pay fees (or a statement that the requester will not pay fees if a fee waiver is denied), as provided by [§ 4.8(d)](/cfr/16/4.8.md?p=d). Requests may also include an application for a fee waiver, as provided by [§ 4.8(e)](/cfr/16/4.8.md?p=e). An advance payment may be required in appropriate cases as provided by [§ 4.8(h)](/cfr/16/4.8.md?p=h).
      - (F) **Failure to agree to pay fees.** If a request does not include an agreement to pay fees, and if the requester is notified of the estimated costs pursuant to [§ 4.8(d)(3)](/cfr/16/4.8.md?p=d-3), the request will be deemed not to have been received until the requester agrees to pay such fees. If a requester declines to pay fees within 20 calendar days and is not granted a fee waiver, the request will be denied.
      - (G) **Expedited treatment.** Requests may include an application for expedited treatment. Where such an application is not included with an initial request for access to records under [paragraph (a)(1)](#a-1) of this section, the application may be included in any appeal of that request filed under [paragraph (a)(3)](#a-3) of this section. Such application, which shall be certified by the requester to be true and correct to the best of such person's knowledge and belief, shall describe the compelling need for expedited treatment, including an explanation as to why a failure to obtain the 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, with respect to a request made by a person primarily engaged in disseminating information, an explanation of the urgency to inform the public concerning actual or alleged Federal Government activity. The deciding official (as designated by the General Counsel) will, within 10 calendar days of receipt of a request for expedited treatment, notify the requester, in writing, of the decision to either grant or deny the request for expedited treatment, and, if the request is denied, advise the requester that this determination may be appealed to the General Counsel.
      - (H) **Records for sale at another government agency.** If requested materials are available for sale at another government agency, the requester will not be provided with copies of the materials but will be advised to obtain them from the selling agency. The U.S. Government Printing Office (“GPO”), the official bookstore for most U.S. Government publications, can be contacted at (202) 512-1800 (for those in the Washington, DC area), toll-free at (866) 512-1800 and at ContactCenter@gpo.gov. The GPO's online store can be accessed at http://bookstore.gpo.gov and mail orders should be directed to U.S. Government Printing Office, P.O. Box 979050, St. Louis, MO 63197-9000.
    - (ii) **Time limit for initial determination.**
      - (A) The deciding official (as designated by the General Counsel) will, within 20 working days of the receipt of a request, or if applicable, the date that a request is properly filed, either grant or deny, in whole or in part, such request, unless the request has been granted expedited treatment in accordance with this section, in which case the request will be processed as soon as practicable. The date that a request is properly filed is the date on which the requester agrees to pay fees necessary for a response, reasonably describes the records sought, and provides sufficient contact information for a response to be sent. Any tolling of the 20-working day period will be done in compliance with the FOIA statute, as amended.
      - (B) Except in exceptional circumstances as provided in [paragraph (a)(1)(ii)(C)](#a-1-ii-C) of this section, the deciding official (as designated by the General Counsel) may extend the time limit by not more than 10 working days if such extension is:

        (1) Necessary to search for and collect the records from field facilities or other establishments that are separate from the office processing the request; or

        (2) Necessary to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are sought in a single or series of closely related requests; or

        (3) Necessary for consultation with another agency having a substantial interest in the determination, or for consultation among two or more components of the Commission having substantial subject matter interest therein.

      - (C) If the deciding official (as designated by the General Counsel) extends the time limit for initial determination pursuant to [paragraph (a)(1)(ii)(B)](#a-1-ii-B) of this section, the requester will be notified in accordance with [5 U.S.C. 552(a)(6)(B)](/usc/5/552.md?p=a-6-B). In exceptional circumstances, when the request cannot be processed within the extended time limit, the requester will be so notified and provided an opportunity to limit the scope of the request so that it may be processed within such time limit, or to arrange an alternative time frame for processing the request or a modified request. In exceptional circumstances, when the request cannot be processed within the extended time limit, the Commission will also make available the agency's FOIA Public Liaison to assist in the resolution of any disputes and notify the requester of the right to seek dispute resolution services from the Office of Government Information Services. “Exceptional” circumstances will not include delays resulting from a predictable workload of requests under this section. Unwillingness to make reasonable modifications in the scope of the request or to agree to an alternative time frame may be considered as factors in determining whether exceptional circumstances exist and whether the agency has exercised due diligence in responding to the request.
      - (D) If the deciding official (as designated by the General Counsel) reasonably believes that requests made by a requester, or a group of requesters acting in concert, actually constitute a single request that would otherwise involve unusual circumstances, as specified in [paragraph (a)(1)(ii)(B)](#a-1-ii-B) of this section, and the requests involve clearly related matters, those multiple requests may be aggregated.
      - (E) If a request is not granted within the time limits set forth in paragraphs [(a)(1)(ii)(A)](#a-1-ii-A) and [(B)](#a-1-ii-B) of this section, the request shall be deemed to be denied and the requesting party may appeal such denial to the General Counsel in accordance with [paragraph (a)(3)](#a-3) of this section.
    - (iii) **Initial determination.**
      - (A) The deciding official (as designated by the General Counsel) will make reasonable efforts to search, using either manual or electronic means, for documents that exist as of the date of the receipt of a request for the requested records in electronic form or format, except when such efforts would significantly interfere with the operation of the Commission's automated information systems. The deciding official will only withhold information if the agency reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or disclosure is prohibited by law. The deciding official shall consider whether partial disclosure of information is possible whenever there is a determination that a full disclosure of a requested record is not possible and take reasonable steps necessary to segregate and release nonexempt information. Determination letters to a requester shall include the reasons therefor and the right of such person to seek assistance from the FTC's FOIA Public Liaison. Denials will advise the requester that this determination may be appealed to the General Counsel not more than 90 days after the date of the determination if the requester believes either that the records are not exempt, or that the General Counsel should exercise discretion to release such records notwithstanding their exempt status. The deciding official (as designated by the General Counsel) will also provide a reasonable, good-faith estimate of the volume of any materials to which access is denied, unless providing such an estimate would harm an interest protected by an exemption in [5 U.S.C. 552(b)](/usc/5/552.md?p=b) that was cited as a basis for withholding materials. In the case of an adverse determination, FOIA response letters will notify requesters that they may seek dispute resolution services from the FTC's FOIA Public Liaison or from the Office of Government Information Services.
      - (B) The deciding official (as designated by the General Counsel) is deemed to be the sole official responsible for all denials of initial requests, except denials of access to materials contained in active investigatory files, in which case the Director or Deputy Director of the Bureau or the Director of the Regional Office responsible for the investigation will be the responsible official.
      - (C) Records to which access has been granted will be made available to the requester in any form or format specified by the requester, if the records are readily reproducible in that form or format, or can be converted to that form or format with a reasonable amount of effort. Certain records which are not easily copied or duplicated, such as tangible exhibits, will be made be available for inspection for a period not to exceed 30 days from date of notification to the requester unless the requester asks for and receives the consent of the deciding official (as designated by the General Counsel) to a longer period. Records assembled pursuant to a request will remain available only during this period and thereafter will be refiled. Appropriate fees may be imposed for any new or renewed request for the same records.
      - (D) If a requested record cannot be located from the information supplied, or is known to have been destroyed or otherwise disposed of, the requester shall be so notified. The requester will also be notified if a record that is part of an official agency file is lost or missing. If the person so requests, he will also be notified if the record should subsequently be located.
  - (2) **FOIA Requester Service Center.** If a requester has questions or comments about the FOIA process, the requester should call the FOIA Requester Service Center at (202) 326-2430 to either speak directly to a FOIA Case Officer or leave a voice message. A requester should also ask the FOIA Case Officer to speak with the FOIA Public Liaison if there are concerns about the quality of the service received, or seek mediation resolution assistance during the FOIA response process.
  - (3) **Appeals to the General Counsel from initial denials—**
    - (i) **Form and contents; time of receipt—**
      - (A) (1) If an initial request for expedited treatment is denied, the requester, at any time before the initial determination of the underlying request for records by the deciding official (as designated by the General Counsel) (or, if the request for expedited treatment was filed with any appeal filed under paragraph (a)(3)(i)(A)(2) of this section, at any time before the General Counsel's determination on such an appeal), may appeal the denial of expedited treatment to the General Counsel.

        (2) If an initial request for records is denied in its entirety, the requester may, within 90 days after the adverse determination, appeal such denial to the General Counsel. If an initial request is denied in part, the time for appeal will not expire until 90 days after the date of the final letter notifying the requester that all records to which access has been granted have been made available. In unusual circumstances, the General Counsel or his or her designee may extend the time to appeal.

        (3) If an initial request for a fee waiver or reduction is denied, the requester may, within 30 days of the date of the letter notifying the requester of that decision, appeal such denial to the General Counsel. In unusual circumstances, the time to appeal may be extended by the General Counsel or his or her designee.

        (4) The appeal shall be in writing and shall clearly refer to the adverse decision, or portions of the decision, being appealed; the appeal should include a copy of the initial request and a copy of the response to that initial request, if any. The appeal may be: mailed to Freedom of Information Act Appeal, Office of the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580; submitted by facsimile to (202) 326-3198; or emailed to FOIAAppeal@ftc.gov.

      - (B) If the appeal is mailed, failure to mark the envelope and the appeal in accordance with paragraph (a)(3)(i)(A)(4) of this section will result in the appeal (and any request for expedited treatment filed with that appeal) being treated as received on the actual date of receipt by the Office of General Counsel.
      - (C) Each appeal to the General Counsel that requests him or her to exercise his discretion to release exempt records shall set forth the interest of the requester in the subject matter and the purpose for which the records will be used if the request is granted.
    - (ii) **Time limit for appeal.**
      - (A) (1) Regarding appeals from initial denials of a request for expedited treatment, the General Counsel will either grant or deny the appeal expeditiously;

        (2) Regarding appeals from initial denials of a request for records, the General Counsel will, within 20 working days of the Office of General Counsel's receipt of such an appeal, either grant or deny it, in whole or in part, unless expedited treatment has been granted in accordance with this section, in which case the appeal will be processed expeditiously.

      - (B) The General Counsel may, by written notice to the requester in accordance with [5 U.S.C. 552(a)(6)(B)](/usc/5/552.md?p=a-6-B), extend the time limit for deciding an appeal by not more than 10 working days pursuant to [paragraph (a)(1)(ii)(B)](#a-1-ii-B) of this section, provided that the amount of any extension utilized during the initial consideration of the request under that paragraph will be subtracted from the amount of additional time otherwise available. Where exceptional circumstances do not permit the processing of the appeal within the extended time limit, the notice and procedures set forth in [paragraph (a)(1)(ii)(C)](#a-1-ii-C) of this section shall apply.
    - (iii) **Determination of appeal.**
      - (A) The General Counsel has the authority to grant or deny all appeals and to release as an exercise of discretion records exempt from mandatory disclosure under [5 U.S.C. 552(b)](/usc/5/552.md?p=b). In unusual or difficult cases, the General Counsel may, in his or her sole discretion, refer an appeal to the Commission for determination. A denial of an appeal in whole or in part will set forth the basis for the denial; will include a reasonable, good-faith estimate of the volume of any materials to which access is denied, unless providing such an estimate would harm an interest protected by an exemption in [5 U.S.C. 552(b)](/usc/5/552.md?p=b) that was cited as a basis for withholding materials; and will advise the requester that judicial review of the decision is available by civil suit in the district in which the requester resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia.
      - (B) The General Counsel may designate a Deputy General Counsel to make any determination assigned to the General Counsel by [paragraph (a)](#a) of this section. The General Counsel or the official designated by the General Counsel to make the determination shall be deemed solely responsible for the denial of all appeals, except where an appeal is denied by the Commission. In such instances, the Commission shall be deemed solely responsible for the denial.
- (b) **Requests from congressional committees and subcommittees.** Requests from congressional committees and subcommittees for nonpublic material shall be referred to the General Counsel for presentation to the Commission, subject to the provisions in [5 U.S.C. 552(c)](/usc/5/552.md?p=c) and FTC Act 21(b) that neither the Freedom of Information Act, [5 U.S.C. 552](/usc/5/552.md), nor the Federal Trade Commission Act, [15 U.S.C. 41](/usc/15/41.md), et seq., is authority to withhold information from Congress. Upon receipt of a request from a congressional committee or subcommittee, notice will be given to the submitter of any material marked confidential, or any material within the scope of [§ 4.10(a)(9)](/cfr/16/4.10.md?p=a-9), that is responsive to the request that the request has been received. No other notice need be provided prior to granting the request. The Commission will inform the committee or subcommittee that the submitter considers such information confidential.
- (c) **Requests from Federal and State law enforcement agencies.** Requests from law enforcement agencies of the Federal and State governments for nonpublic records shall be addressed to a liaison officer, where the Commission has appointed such an officer, or if there is none, to the General Counsel. With respect to requests under this paragraph, the General Counsel, the General Counsel's designee, or the appropriate liaison officer is delegated the authority to dispose of them. Alternatively, the General Counsel may refer such requests to the Commission for determination, except that requests must be referred to the Commission for determination where the Bureau having the material sought and the General Counsel do not agree on the disposition. Prior to granting access under this section to any material submitted to the Commission, the General Counsel, the General Counsel's designee, or the liaison officer will obtain from the requester a certification that such information will be maintained in confidence and will be used only for official law enforcement purposes. The certificate will also describe the nature of the law enforcement activity and the anticipated relevance of the information to that activity. A copy of the certificate will be forwarded to the submitter of the information at the time the request is granted unless the agency requests that the submitter not be notified. Requests for material pursuant to compulsory process, or for voluntary testimony, in cases or matters in which the Commission is not a party will be treated in accordance with [paragraph (e)](#e) of this section.
- (d) **Requests from Federal and State agencies for purposes other than law enforcement.** Requests from Federal and State agencies for access to nonpublic records for purposes not related to law enforcement should be addressed to the General Counsel. The General Counsel or the General Counsel's designee is delegated the authority to dispose of requests under this paragraph. Disclosure of nonpublic information will be made consistent with sections [6(f)](/cfr/16/6.md?p=f) and [21](/cfr/16/21.md) of the FTC Act. Requests under this section shall be subject to the fee and fee waiver provisions of [§ 4.8](/cfr/16/4.8.md). Requests for material pursuant to compulsory process, or for voluntary testimony, in cases or matters in which the Commission is not a party will be treated in accordance with [paragraph (e)](#e) of this section.
- (e) **Requests for testimony, pursuant to compulsory process or otherwise, and requests for material pursuant to compulsory process, in cases or matters to which the Commission is not a party.**
  - (1) The procedures specified in this section will apply to compulsory process and requests for voluntary testimony directed to Commission employees, except special government employees, that relate in any way to the employees' official duties. These procedures will also apply to compulsory process and requests for voluntary testimony directed to former Commission employees or to current or former special government employees of the Commission that seek nonpublic materials or information acquired during Commission employment. The provisions of [paragraph (e)(3)](#e-3) of this section will also apply when requests described above are directed to the Commission. For purposes of this section, the term testimony includes any written or oral statement by a witness, such as depositions, affidavits, declarations, and statements at a hearing or trial; the term nonpublic includes any material or information which, under [§ 4.10](/cfr/16/4.10.md), is not required to be made public; the term employees, except where otherwise specified, includes special government employees and other Commission employees; and the term special government employees includes consultants and other employees as defined by section 202 of [title 18](/cfr/18.md) of the United States Code. Where a demand is made for Commission Office of Inspector General (“OIG”) records or OIG employee testimony, the term “Inspector General” will be substituted in this [paragraph (e)](#e) for the term “General Counsel.
  - (2) Any employee or former employee who is served with compulsory process shall promptly advise the General Counsel of its service, the nature of the material or information sought, and all relevant facts and circumstances. This notification requirement also applies to any employee or former employee whose testimony is sought on a voluntary basis under the conditions set forth in [paragraph (e)(1)](#e-1) of this section.
  - (3) A party who causes compulsory process to be issued to, or who requests testimony by, the Commission or any employee or former employee of the Commission shall furnish a statement to the General Counsel, unless, with respect to a request by a Federal or State agency, the General Counsel determines, as a matter of discretion, to waive this requirement. The statement shall set forth the party's interest in the case or matter, the relevance of the desired testimony or material, and a discussion of whether it is reasonably available from other sources. If testimony is desired, the statement shall also contain a general summary of the testimony and a discussion of whether Commission records could be produced and used in its place. Any authorization for testimony will be limited to the scope of the demand as summarized in such statement.
  - (4) Absent authorization from the General Counsel, the employee or former employee shall respectfully decline to produce requested material or to disclose requested information. The refusal should be based on this paragraph and on United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
  - (5) The General Counsel will consider and act upon compulsory process and requests for voluntary testimony under this section with due regard for statutory restrictions, the Commission's rules and the public interest, taking into account such factors as the need to conserve the time of employees for conducting official business; the need to avoid spending the time and money of the United States for private purposes; the need to maintain impartiality between private litigants in cases where a substantial government interest is not involved; and the established legal standards for determining whether justification exists for the disclosure of confidential information and material.
  - (6) Invitations to testify before Congressional committees or subcommittees or to testify before other government bodies on the possible effects of legislative and regulatory proposals are not subject to [paragraphs (e)(1) through (5)](#e-1..e-5) of this section.
- (f) Requests by current or former employees to use nonpublic memoranda as writing samples shall be addressed to the General Counsel. The General Counsel or the General Counsel's designee is delegated the authority to dispose of such requests consistent with applicable nondisclosure provisions, including sections [6(f)](/cfr/16/6.md?p=f) and [21](/cfr/16/21.md) of the FTC Act.
- (g) Employees are encouraged to engage in teaching, lecturing, and writing that is not prohibited by law, Executive order, or regulation. However, an employee shall not use information obtained as a result of his Government employment, except to the extent that such information has been made available to the general public or will be made available on request, or when the General Counsel or the General Counsel's designee gives written authorization for the use of nonpublic information on the basis that the use is in the public interest.
- (h) The General Counsel (or General Counsel's designee) may authorize a Commission member, other Commission official, or Commission staff to disclose an item or category of information from Commission records not currently available to the public for routine inspection and copying under [Rule 4.9(b)](/cfr/16/4.9.md?p=b) where the General Counsel (or General Counsel's designee) determines that such disclosure would facilitate the conduct of official agency business and would not otherwise be prohibited by applicable law, order, or regulation. Requests for such determinations shall be set forth in writing and, in the case of staff requests, shall be forwarded to the General Counsel (or General Counsel's designee) through the relevant Bureau. In unusual or difficult cases, the General Counsel may refer the request to the Commission for determination.
- (i) The Director of the Bureau of Competition is authorized, without power of redelegation, to respond to access requests for records and other materials pursuant to an agreement under the International Antitrust Enforcement Assistance Act, [15 U.S.C. 6201](/usc/15/6201.md) et seq. Before responding to such a request, the Bureau Director shall transmit the proposed response to the Secretary and the Secretary shall notify the Commission of the proposed response. If no Commissioner objects within three days following the Commission's receipt of such notification, the Secretary shall inform the Bureau Director that he or she may proceed.
- (j)
  - (1) The procedures specified in this section apply to disclosures of certain records to foreign law enforcement agencies in specified circumstances in accordance with the U.S. SAFE WEB Act of 2006. Nothing in this section authorizes the disclosure of material obtained in connection with the administration of the Federal antitrust laws or foreign antitrust laws, as defined in [paragraph (j)(5)(i)](#j-5-i) of this section.
  - (2) Requests from foreign law enforcement agencies, as defined in [paragraph (j)(5)(ii)](#j-5-ii) of this section, for nonpublic records shall be addressed to the Director of the Office of International Affairs or the Director's designee, who shall forward them to the General Counsel with recommendations for disposition after obtaining any required certification described in [paragraph (j)(3)](#j-3) of this section and approval of the Bureau of Consumer Protection. With respect to requests under this paragraph, the General Counsel or the General Counsel's designee is delegated the authority to dispose of them. Alternatively, the General Counsel may refer such requests to the Commission for determination, except that requests must be referred to the Commission for determination where the Bureau of Consumer Protection or the Office of International Affairs disagrees with the General Counsel's proposed disposition.
  - (3) Access under this section to any material subject to the disclosure restrictions in sections 6(f) or 21(b) of the FTC Act or [§ 4.10(d)](/cfr/16/4.10.md?p=d) may not be granted unless—
    - (i) An appropriate official of the foreign law enforcement agency has certified, either by prior agreement or memorandum of understanding or by other written certification, that such material will be maintained in confidence and will be used only for official law enforcement purposes; and
    - (ii)
      - (A) The foreign law enforcement agency has set forth a bona fide legal basis for its authority to maintain the material in confidence;
      - (B) The materials are to be used for purposes of investigating, or engaging in enforcement proceedings related to, possible violations of:

        (1) Foreign laws prohibiting fraudulent or deceptive commercial practices, or other practices substantially similar to practices prohibited by any law administered by the Commission;

        (2) A law administered by the Commission, if disclosure of the material would further a Commission investigation or enforcement proceeding; or

        (3) With the approval of the Attorney General, other foreign criminal laws, if such foreign criminal laws are offenses defined in or covered by a criminal mutual legal assistance treaty in force between the government of the United States and the foreign law enforcement agency's government;

      - (C) The appropriate Federal banking agency, (as defined in section 3(q) of the Federal Deposit Insurance Act ([12 U.S.C. 1813(q)](/usc/12/1813.md?p=q)) or, in the case of a Federal credit union, the National Credit Union Administration has given its prior approval if the materials to be provided under [paragraph (j)(3)(ii)(B)](#j-3-ii-B) of this section are requested by the foreign law enforcement agency for the purpose of investigating, or engaging in enforcement proceedings based on, possible violations of law by a bank, a savings and loan institution described in section 18(f)(3) of the Federal Trade Commission Act ([15 U.S.C. 57a(f)(3)](/usc/15/57a.md?p=f-3)), or a Federal credit union described in section 18(f)(4) of the Federal Trade Commission Act ([15 U.S.C. 57a(f)(4)](/usc/15/57a.md?p=f-4)); and
      - (D) The foreign law enforcement agency is not from a foreign state that the Secretary of State has determined, in accordance with section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), has repeatedly provided support for acts of international terrorism, unless and until such determination is rescinded pursuant to [section 6(j)(4)](/cfr/16/6.md?p=j-4) of that Act (50 U.S.C. App. 2405(j)(4)).
  - (4) A copy of the certificate described in [paragraph (j)(3)](#j-3) of this section will be forwarded to the submitter of the information at the time the request is granted unless the foreign law enforcement agency requests that the submitter not be notified.
  - (5) **For purposes of this section—**
    - (i) “Federal antitrust laws” and “foreign antitrust laws” are to be interpreted as defined in paragraphs [(5)](#j-5) and (7), respectively, of section 12 of the International Antitrust Enforcement Assistance Act of 1994 ([15 U.S.C. 6211](/usc/15/6211.md)); and
    - (ii) “Foreign law enforcement agency” is defined as:
      - (A) Any agency or judicial authority of a foreign government, including a foreign state, a political subdivision of a foreign state, or a multinational organization constituted by and comprised of foreign states, that is vested with law enforcement or investigative authority in civil, criminal, or administrative matters and
      - (B) Any multinational organization, to the extent that it is acting on behalf of an entity described in paragraph (j)(5)(i)(A) of this section.