[Code of Federal Regulations]
[Title 16, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 16CFR4.11]

[Page 103-108]
 
                     TITLE 16--COMMERCIAL PRACTICES
 
                   CHAPTER I--FEDERAL TRADE COMMISSION
 
PART 4_MISCELLANEOUS RULES--Table of Contents
 
Sec. 4.11  Disclosure requests.

    (a) Freedom of Information Act requests--(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, as amended, for access 
to Commission records shall be in writing and addressed as follows: 
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) of this section, or the filing of a request for 
expedited treatment under paragraph (a)(1)(i)(E) of this section, will 
result in the request (or requests, if expedited treatment has been 
requested) being treated as received on the date that the processing 
unit in the Office of General Counsel actually receives the request(s).
    (C) Costs; agreement to pay costs. Requesters will be charged search 
and duplication costs prescribed by Rule 4.8 for requests under this 
section. All requests shall include a statement of the information 
needed to determine fees, as provided by Sec. 4.8(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 Sec. 4.8(d). Requests may also 
include an application for a fee waiver, as provided by Sec. 4.8(e). An 
advance payment may be required in appropriate cases as provided by 
Sec. 4.8(h).
    (D) 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 Rule 4.8(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 and is not granted a fee waiver, the 
request will be denied.
    (E) 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) of this 
section, the application may be included in any appeal of that request 
filed under paragraph (a)(2) 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.
    (F) 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

[[Page 104]]

but will be advised to obtain them from the selling agency.
    (ii) Identifiability. (A) A request for access to Commission records 
must reasonably describe the records requested to enable Commission 
personnel to identify and locate them with a reasonable amount of 
effort. A request should be as specific as possible, and include, where 
known, information regarding dates, titles, file designations, location, 
and any other information which may assist the Commission in identifying 
and locating the records requested.
    (B) A denial of a request may state that the description required by 
paragraph (a)(1)(ii)(A) of this section is insufficient to allow 
identification and location of the records.
    (iii) 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, 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.
    (B) Except in exceptional circumstances as provided in paragraph 
(a)(1)(iii)(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 for locating records or transferring them from 
physically separate facilities; 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)(iii)(B) of this section, the requester will be notified in 
accordance with 5 U.S.C. 552(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. ``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)(iii)(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)(iii) (A) and (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)(2) of this section.
    (iv) 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 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. Access will be granted to requested records, or any portions 
thereof, that must be made available under the Freedom of Information 
Act. Access will be denied to records that are exempt under the Freedom 
of Information Act, 5 U.S.C. 552(b), unless the deciding official (as 
designated by the General Counsel) determines that such records fall 
within a category the Commission or the General Counsel has

[[Page 105]]

previously authorized to be made available to the public as a matter of 
policy. Denials will set forth the reasons therefor and advise the 
requester that this determination may be appealed to the General Counsel 
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) that was cited as a basis for withholding 
materials.
    (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, and 
they will remain available for inspection and copying 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.
    (2) 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)(2)(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 30 days of the date of the determination, appeal 
such denial to the General Counsel. If an initial request is denied in 
part, the time for appeal will not expire until 30 days after the date 
of the letter notifying the requester that all records to which access 
has been granted have been made available.
    (3) The appeal shall be in writing and should include a copy of the 
initial request and a copy of the response to that initial request, if 
any. The appeal shall be addressed as follows: Freedom of Information 
Act Appeal, Office of the General Counsel, Federal Trade Commission, 600 
Pennsylvania Avenue, NW., Washington, DC 20580.
    (B) Failure to mark the envelope and the appeal in accordance with 
paragraph (a)(2)(i)(A) 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 which requests him 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 receipt of such 
an appeal, either grant or deny it, in whole or in part, unless 
expedited treatment has

[[Page 106]]

been granted in accordance with this section, in which case the appeal 
will be processed as soon as practicable.
    (B) The General Counsel may, by written notice to the requester in 
accordance with 5 U.S.C. 552(a)(6)(B), extend the time limit for 
deciding an appeal by not more than 10 working days pursuant to 
paragraph (a)(1)(iii)(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)(iii)(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). 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) 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 shall be deemed solely responsible for all 
denials of 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) and FTC Act 
21(b) that neither the Freedom of Information Act, 5 U.S.C. 552, nor the 
Federal Trade Commission Act, 15 U.S.C. 41, 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 Sec. 4.10(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

[[Page 107]]

party will be treated in accordance with paragraph (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) and 21 of the FTC Act. Requests under this 
section shall be subject to the fee and fee waiver provisions of Sec. 
4.8. 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) 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) 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 Sec. 4.10, 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 of the United States Code.
    (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) 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

[[Page 108]]

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) 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) and 21 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) 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 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.

(15 U.S.C. 41 et seq.)

[40 FR 7629, Feb. 21, 1975, as amended at 42 FR 13820, Mar. 14, 1977; 43 
FR 5802, Feb. 10, 1978; 46 FR 26292, May 12, 1981; 48 FR 4280, Jan. 31, 
1983; 49 FR 20279, May 14, 1984; 49 FR 21048, May 18, 1984; 50 FR 53306, 
Dec. 31, 1985; 55 FR 29839, July 23, 1990; 57 FR 10807, Mar. 31, 1992; 
58 FR 15764, Mar. 24, 1993; 60 FR 37750, July 21, 1995; 63 FR 32978, 
June 17, 1998; 63 FR 45647, Aug. 26, 1998; 64 FR 3013, Jan. 20, 1999; 64 
FR 32180, June 16, 1999; 64 FR 35256, June 30, 1999; 65 FR 67259, Nov. 
9, 2000; 66 FR 64144, Dec. 12, 2001]