(a) Resolving requests for
confidential treatment. In general, a request by a submitter
for confidential treatment of any information shall be considered
in connection with a request for access to that information. At its
discretion, the Board may act on a request for confidentiality prior
to any request for access to the documents.
(b) Notice to the submitter.
(1) When the Board receives a FOIA
request for information for which a submitter has requested confidential
treatment, the Board shall promptly provide written notice of the
request to the submitter if the Board determines that it may be required
to disclose the records, provided:
(i) The requested information has been
designated in good faith by the submitter as information considered
protected from disclosure under 5 U.S.C. 552(b)(4) or (b)(6); and
(ii) The Board has reason to believe
that the requested information may be protected from disclosure, but
has not yet determined whether the information may be protected from
disclosure.
(2) Where
a submitter has not requested confidential treatment but the Board
reasonably believes the requested information may be protected from
disclosure under 5 U.S.C. 552(b)(4) or (b)(6), the Board may notify
a submitter of the receipt of a request for access to that information
and provide the submitter an opportunity to respond.
(3) The notice given to the submitter shall:
(i) Describe the information
that has been requested or include a copy of the requested records
or portions of records containing the information. In cases involving
a voluminous number of submitters, the Board may post or publish a
notice in a place or manner reasonably likely to inform the submitters
of the proposed disclosure, instead of sending individual notifications;
and
(ii) Give the submitter a
reasonable opportunity, not to exceed 10 working days from the date
of notice, to submit written objections to disclosure of the information.
(c) Exceptions
to notice to submitter. Notice to the submitter need not be given
if:
(1) The Board determines
that the information is exempt under the FOIA and, therefore, will
not be disclosed;
(2) The requested
information has been lawfully published or has been officially made
available to the public;
(3) Disclosure
of the information is required by a statute (other than 5 U.S.C. 552)
or by a regulation issued in accordance with the requirements of Executive
Order 12600 of June 23, 1987; or
(4) The submitter’s claim of confidentiality appears obviously
frivolous or has already been denied by the Board. In such case, the
Board shall give the submitter written notice of the determination
to disclose the information at least five working days prior to disclosure.
(d) Notice to requester. The requester shall be notified whenever:
(1) The submitter is provided with notice
and an opportunity to object to disclosure under paragraph (b) of
this section;
(2) The submitter
is notified of the Board’s intention to disclose the requested
information; or
(3) The submitter
files a lawsuit to prevent the disclosure of information.
(e) Written objections by submitter.
(1) Upon receipt of
the notice referenced in paragraph (b) of this section, a submitter
that has any objections to disclosure should provide a detailed written
statement that specifies all grounds for withholding the particular
information under any exemption identified in section 261.15(a). A
submitter relying on section 261.15(a)(4) as the basis for nondisclosure
must explain why the information constitutes a trade secret or commercial
or financial information that is confidential and must explain the
consequences of disclosure of the information.
(2) A submitter who fails to respond within
the time period specified in the notice will be considered to have
no objection to disclosure of the information. The Board is not required
to consider any information received after the date of any disclosure
decision. Any information provided by a submitter under this subpart,
including a written request for confidential treatment, may itself
be subject to disclosure under the FOIA.
(f) Analysis of objections. The Board’s
determination to disclose any information for which confidential treatment
has been requested shall be communicated to the submitter immediately.
If the Board determines to disclose the information and the submitter
has objected to such disclosure pursuant to paragraph (e) of this
section, the Board shall provide the submitter with the reasons for
disclosure and shall delay disclosure for 10 working days from the
date of the determination.
(g) Notice
of lawsuit. The Board shall promptly notify any submitter of
information covered by this section of the filing of any legal action
against the Board to compel disclosure of such information.
