[Code of Federal Regulations]
[Title 36, Volume 3]
[Revised as of July 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 36CFR902.54]

[Page 152-154]
 
              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY
 
         CHAPTER IX--PENNSYLVANIA AVENUE DEVELOPMENT CORPORATION
 
PART 902--FREEDOM OF INFORMATION ACT--Table of Contents
 
     Subpart F--Exemptions From Public Access to Corporation Records
 
Sec. 902.54  Trade secrets and commercial or financial information that is privileged or confidential.

    (a) Trade secrets and commercial or financial information that are 
privileged and for which confidentiality is requested by the person 
possessing such privilege are within the statutory exemption. This 
includes the following:
    (1) Commercial or financial information not customarily released to 
the public, furnished and accepted in confidence or disclosure of which 
could reasonably be expected to cause substantial competitive harm, or 
both;
    (2) Statements of financial interest furnished by officers and 
employees of the Corporation;
    (3) Commercial, technical, and financial information furnished by 
any person in connection with an application for a loan or a loan 
guarantee;

[[Page 153]]

    (4) Commercial or financial information customarily subjected to an 
attorney-client or similar evidentiary privilege; or,
    (5) Materials in which the Corporation has a property right such as 
designs, drawings, and other data and reports acquired in connection 
with any research project, inside or outside of the Corporation, or any 
grant or contract.
    (b) The purpose of this section is to authorize the protection of 
trade secrets and commercial or financial records that are customarily 
privileged or are appropriately given to the Corporation in confidence. 
It assures the confidentiality of trade secrets and commercial or 
financial information obtained by the Corporation through questionnaires 
and required reports to the extent that the information would not 
customarily be made public by the person from whom it was obtained. In 
any case in which the Corporation has obligated itself not to disclose 
trade secrets and commercial or financial information it receives, this 
section indicates the Corporation's intention to honor that obligation 
to the extent permitted by law. In addition, this section recognizes 
that certain materials, such as research data and materials, formulae, 
designs, and architectural drawings, have significance not as records 
but as items of property acquired, in many cases at public expense. In 
any case in which similar proprietary material in private hands would be 
held in confidence, material covered in this section may be held in 
confidence.
    (c)(1) In general. For commercial or financial information furnished 
to the Corporation on or after March 30, 1988, the Corporation shall 
require the submitter to designate, at the time the information is 
furnished or within a reasonable time thereafter, any information the 
submitter considers confidential or privileged. Commercial or financial 
information provided to the Corporation shall not be disclosed pursuant 
to a Freedom of Information Act request except in accordance with this 
paragraph.
    (2) Notice to submitters. The Corporation shall provide a submitter 
with prompt written notice of a request encompassing its commercial or 
financial information whenever required under paragraph (c)(3) of this 
section, and except as is provided in paragraph (c)(7) of this section. 
Such written notice shall either describe the exact nature of the 
information requested or provide copies of the records or portions 
thereof containing the information. Concurrently with its notice to a 
submitter, the Corporation shall inform a requestor in writing that the 
submitter is afforded a reasonable period within which to object to 
disclosure and that the 10 workday initial determination period provided 
for in 36 CFR 902.60 may therefore be extended.
    (3) When notice is required. (i) For information submitted to the 
Corporation prior to March 30, 1988, the Corporation shall provide a 
submitter with notice of a request whenever:
    (A) The information is less than ten years old;
    (B) The information is subject to prior express commitment of 
confidentiality given by the Corporation to the submitter; or
    (C) The Corporation has reason to believe that disclosure of the 
information may result in substantial competitive harm to the submitter.
    (ii) For information submitted to the Corporation on or after March 
30, 1988, the Corporation shall provide a submitter with notice of a 
request whenever:
    (A) The submitter has in good faith designated the information as 
confidential, or
    (B) The Corporation has reason to believe that disclosure of the 
information may result in substantial competitive harm to the submitter.

Notice of a request for information falling within the former category 
shall be required for a period of not more than ten years after the date 
of submission unless the submitter requests, and provides acceptable 
justification for, a specific notice period of greater duration. The 
submitter's claim of confidentiality should be supported by a statement 
or certification by an officer or authorized representative that the 
information in question is in fact confidential and has not been 
disclosed to the public.

[[Page 154]]

    (4) Opportunity to object to disclosure. Through the notice 
described in paragraph (c)(2) of this section, the Corporation shall 
afford a submitter a reasonable period within which to provide the 
Corporation with a detailed statement of any objection to disclosure. 
Such statement shall specify all grounds for withholding any of the 
information under any exemption of the Freedom of Information Act and, 
in the case of Exemption 4, shall demonstrate why the information is 
contended to be privileged or confidential. Information provided by a 
submitter pursuant to this paragraph may itself be subject to disclosure 
under the Freedom of Information Act.
    (5) Notice of intent to disclose. The Corporation shall consider 
carefully a submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose information. 
Whenever the Corporation decides to disclose information over the 
objection of a submitter, the Corporation shall forward to the submitter 
a written notice which shall include:
    (i) A statement of the reasons for which the submitter's disclosure 
objections were not sustained;
    (ii) A description of the information to be disclosed; and
    (iii) A specified disclosure date.

Such notice of intent to disclose shall be forwarded a reasonable number 
of days, as circumstances permit, prior to the specified date upon which 
disclosure is intended. A copy of such disclosure notice shall be 
forwarded to the requester at the same time.
    (6) Notice of lawsuit. Whenever a requester brings suit seeking to 
compel disclosure of information covered by paragraph (c) of this 
section, the Corporation shall promptly notify the submitter.
    (7) Exceptions to notice requirements. The notice requirements of 
this section shall not apply if:
    (i) The Corporation determines that the information should not be 
disclosed;
    (ii) The information lawfully has been published or otherwise made 
available to the public;
    (iii) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (iv) The designation made by the submitter in accordance with 
paragraphs (c)(1) and (c)(3)(ii) of this section appears obviously 
frivolous; except that, in such case, the Corporation shall provide the 
submitter with written notice of any final decision to disclose 
information within a reasonable number of days prior to a specified 
disclosure date.

[41 FR 43143, Sept. 30, 1976, as amended at 53 FR 10374, Mar. 31, 1988]