[Code of Federal Regulations]
[Title 17, Volume 1]
[Revised as of April 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 17CFR145.7]

[Page 525-528]
 
              TITLE 17--COMMODITY AND SECURITIES EXCHANGES
 
             CHAPTER I--COMMODITY FUTURES TRADING COMMISSION
 
PART 145_COMMISSION RECORDS AND INFORMATION--Table of Contents
 
Sec.  145.7  Requests for Commission records and copies thereof.

    Requests for Commission records and copies thereof shall specify the 
preferred form or format (including electronic formats) of the response. 
The Commission will accommodate requesters as to form or format if the 
record is readily available in that form or format. When requesters do 
not specify the form or format of the response, the Commission will 
respond in the form or format in which the document is most accessible 
to the Commission.
    (a) Public inquiries and inspection of public records. Information 
concerning the nature and extent of available public records may be 
obtained in person, by telephone, via Internet (http://www.cftc.gov), or 
by writing to the Commission offices designated in Sec. Sec.  145.2 and 
145.6.
    (b) Requests for nonpublic records. Except as provided in paragraph 
(a) of this section with respect to public records, all requests for 
records maintained by the Commission shall be in writing, shall be 
addressed to the Assistant Secretary of the Commission for FOI, Privacy 
and Sunshine Acts Compliance, and shall be clearly marked ``Freedom of 
Information Act Request''.
    (c) Misdirected written requests/oral requests. (1) The Commission 
cannot assure that a timely or satisfactory response will be given to 
requests for records that are directed to the Commission other than in 
the manner prescribed in paragraph (b) of this section. Any misdirected 
written request for nonpublic records should be promptly forwarded to 
the Assistant Secretary of the Commission for FOI, Privacy and Sunshine 
Acts Compliance. Misdirected requests for nonpublic records will be 
considered to have been received for purposes of this section only when 
they actually have been received by the Assistant Secretary. The 
Commission will not entertain an appeal under paragraph (h) of this 
section from an alleged denial or failure to comply with a misdirected 
request, unless the request was in fact received by the Assistant 
Secretary for FOI, Privacy and Sunshine Acts Compliance.

[[Page 526]]

    (2) While the Commission will attempt to comply with oral requests 
for copies of records designated by the Commission as public records, 
the Commission cannot assure a timely or satisfactory response to such 
requests. The Commission will not consider an oral request for nonpublic 
records. An appeal under paragraph (h) of this section from an alleged 
denial or failure to comply with an oral request will not be considered. 
Any person who has orally requested a copy of a record and who believes 
that the request was denied improperly should resubmit the request in 
writing in accordance with paragraph (b) of this section.
    (d) Description of requested records. Each written request for 
Commission records made under paragraph (b) of this section shall 
reasonably describe the records sought with sufficient specificity to 
permit the records to be located among the records maintained by or for 
the Commission. The Commission staff may communicate with the requester 
(by telephone when practicable) in an effort to reduce the 
administrative burden of processing a broad request and to minimize fees 
for copying and search services.
    (e) Description of requester and intended use of requested records. 
In each request for records, requesters shall reasonable identify 
themselves as a commercial user, educational institution, noncommercial 
scientific institution, or representative of the news media if one of 
these categories is applicable. The requester shall describe the use to 
which the records will be put.
    (f) Request for existing records. The Commission's response to a 
request for nonpublic records will encompass all nonpublic records 
identifiable as responsive to the request that are in existence on the 
date that the written request is received by the Assistant Secretary for 
FOI, Privacy and Sunshine Acts Compliance. The Commission need not 
create a new record in response to a FOIA request.
    (g) Fee agreement. A request for copies of records pursuant to 
paragraph (b) of this section must indicate the requester's agreement to 
pay all fees that are associated with the processing of the request, in 
accordance with the rates set forth in appendix B to part 145, or the 
requester's intention to limit the fees incurred to a stated amount. If 
the requester states a fee limitation, no work will be done that will 
result in fees beyond the stated amount. A requester who seeks a waiver 
or reduction of fees pursuant to paragraph (a)(8) of appendix B of this 
part must show that such a waiver or reduction would be in the public 
interest. If the Assistant Secretary receives a request for records 
under paragraph (b) of this section from a requester who has not paid 
fees from a previous request in accordance with appendix B of this part, 
the staff will decline to process the request until such fees have been 
paid.
    (h) Initial determination, denials. (1) With respect to any request 
for nonpublic records as defined in Sec.  145.0(d), the Assistant 
Secretary of the Commission for FOI, Privacy and Sunshine Acts 
Compliance, or his or her designee, will forward the request to the 
Commission divisions or offices likely to maintain records that are 
responsive to the request. If a responsive record is located, the 
Assistant Secretary, or designee, will, in consultation with the 
Commission office in which the record was located, determine whether to 
comply with such request. The Assistant Secretary may, in his or her 
discretion, determine whether to comply with any portion of a request 
for nonpublic records before considering the remainder of the request.
    (2) Where it is determined to deny, in whole or in part, a request 
for nonpublic records, the Assistant Secretary, or designee, will notify 
the requester of the denial, citing applicable exemptions of the Freedom 
of Information Act or other provisions of law that require or allow the 
records to be withheld. The Assistant Secretary's response to the FOIA 
request should describe in general terms what categories of documents 
are being withheld under which applicable FOIA exemption or exemptions. 
The Assistant Secretary, in denying an initial request for records, is 
not required to provide the requester with an inventory of those 
documents determined to be exempt from disclosure.

[[Page 527]]

    (3) The Assistant Secretary, or his or her designee, will issue an 
initial determination with respect to a FOIA request within twenty 
business days after receipt by the Assistant Secretary. In unusual 
circumstances, as defined in this paragraph, the prescribed time limit 
may be extended by written notice to the person making a request for a 
record or a copy. The notice shall set forth the reasons for the 
extension and the date on which a determination is expected to be 
dispatched. No such notice shall specify a date that would result in an 
extension for more than ten business days. As used in this paragraph, 
``unusual circumstances'' means, but only to the extent reasonably 
necessary to the proper processing of a particular request:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request;
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components in the 
Commission having substantial subject matter interest therein;
    (iv) The need to coordinate a response with several Commission 
offices;
    (v) The need to obtain records currently being used by members of 
the Commission, the Commission staff, or the public;
    (vi) The need to respond to a large number of previously-filed FOIA 
requests.
    (i) Administrative review. (1) Any person who has been notified 
pursuant to paragraph (g) of this section that his request for records 
has been denied in whole or in part may file an application for review 
as set forth below.
    (2) An application for review must be received by the Office of 
General Counsel within 30 days of the date of the denial by the 
Assistant Secretary. This 30-day period shall not begin to run until the 
Assistant Secretary has issued an initial determination with respect to 
all portions of the request for nonpublic records. An application for 
review shall be in writing and shall be marked ``Freedom of Information 
Act Appeal.'' The original shall be sent to the Commission's Office of 
General Counsel. If the appeal involves information as to which the FOIA 
requester has received a detailed written justification of a request for 
confidential treatment pursuant to Sec.  145.9(e), the requester must 
also serve a copy of the appeal on the submitter of the information.
    (3) The applicant must attach to the application for review a copy 
of all correspondence relevant to the request, i.e., the initial 
request, any correspondence amending or modifying the request, and all 
correspondence from the staff responding to the request.
    (4) The application for review shall state such facts and cite such 
legal or other authorities as the applicant may consider appropriate. 
The application may, in addition, include a description of the general 
benefit to the public from disclosure of that information.
    (5) If the appeal involves information that is subject to a petition 
for confidential treatment filed under Sec.  145.9, the submitter of the 
information shall have an opportunity to respond in writing to the 
appeal within 10 business days of the date of filing of the appeal. Any 
response shall be sent to the Commission's Office of General Counsel. 
Copies shall be sent to the Assistant Secretary of the Commission for 
FOI, Privacy and Sunshine Acts Compliance and to the person requesting 
the information.
    (6) The General Counsel, or his or her designee, shall have the 
authority to consider all appeals under this section from initial 
determinations of the Assistant Secretary of the Commission for FOI, 
Privacy and Sunshine Acts Compliance. The General Counsel may:
    (i) Determine either to affirm or to reverse the initial 
determination in whole or in part;
    (ii) Determine to disclose a record, even if exempt, if good cause 
for doing so either is shown by the application or otherwise appears;

[[Page 528]]

    (iii) Remand the matter to the Assistant Secretary (A) to correct a 
deficiency in the initial processing of the request, or (B) when an 
investigation as to which the staff originally claimed exemption from 
mandatory disclosure on the basis of 5 U.S.C. 555(b)(7)(A) or 7 U.S.C. 
12(a) is subsequently closed; or;
    (iv) Refer the matter to the Commission for a decision.
    (7) If the initial denial of the request for nonpublic records is 
reversed, the Office of General Counsel shall, in writing, advise the 
requester that the records will be available on or after a specified 
date. If, on appeal, the denial of access to a record is affirmed in 
whole or in part, the person who requested the information shall be 
notified in writing of (1) the reasons for the denial and (2) the 
provisions of 5 U.S.C. 552(a)(4) providing for judicial review of a 
determination to withhold records.
    (j) Expedited processing. A request may be given expedited 
processing if the requester demonstrates a compelling need for the 
requested records. For purposes of this provision, the term ``compelling 
need'' means: That a failure to obtain requested records on an expedited 
basis could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual; or with respect to a request 
made by a person primarily engaged in disseminating information, urgency 
to inform the public concerning actual or alleged federal government 
activity. A requester who seeks expedited processing must demonstrate a 
compelling need by submitting a statement that is certified by the 
requester to be true and correct to the best of that person's knowledge 
and belief. The Assistant Secretary, or his or her designee, will 
determine whether to provide expedited processing, and notice of the 
determination will be provided to the requester, within ten days after 
the date of the request. If the request for expedited processing is 
denied, the requester may file an appeal with the Office of General 
Counsel within ten days of the date of the denial by the Assistant 
Secretary. The Office of General Counsel will respond to the appeal 
within ten days after the date of the appeal.

[51 FR 26870, July 28, 1986, as amended at 52 FR 19307, May 22, 1987; 62 
FR 17069, Apr. 9, 1997; 69 FR 67507, Nov. 18, 2004]