[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR1820.8]

[Page 318-319]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
                 CHAPTER VIII--OFFICE OF SPECIAL COUNSEL
 
PART 1820_FREEDOM OF INFORMATION ACT REQUESTS; PRODUCTION OF RECORDS OR 
 
Sec. 1820.8  Business information.

    (a) In general. Business information obtained by OSC from a 
submitter will be disclosed under the FOIA only under this section.
    (b) Definitions. For purposes of this section:
    (1) ``Business information'' means commercial or financial 
information obtained by OSC from a submitter that may be protected from 
disclosure under exemption 4 of the FOIA.
    (2) ``Submitter'' means any person or entity from whom the OSC 
obtains business information, directly or indirectly. The term includes 
corporations, and state, local, tribal and foreign governments.
    (c) Designation of business information. A submitter of business 
information will use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portion of its submission that it considers to be 
protected from disclosure under exemption 4. These designations will 
expire 10 years after the date of the submission unless the submitter 
requests, and provides justification for, a longer designation period.
    (d) Notice to submitters. OSC shall provide a submitter with prompt 
written notice of a FOIA request or administrative appeal that seeks its 
business information wherever required under paragraph (e) of this 
section, except as provided in paragraph (h) of this section, in order 
to give the submitter an opportunity to object to disclosure of any 
specified portion of that information under paragraph (f) of this 
section. The notice shall either describe the

[[Page 319]]

business information requested or include copies of the requested 
records or record portions containing the information. When notification 
of a voluminous number of submitters is required, notification may be 
made by posting or publishing the notice in a place reasonably likely to 
accomplish it.
    (e) When notice is required. Notice shall be given to a submitter 
wherever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
exemption 4; or
    (2) OSC has reason to believe that the information may be protected 
from disclosure under exemption 4.
    (f) Opportunity to object to disclosure. OSC will allow a submitter 
a reasonable time to respond to the notice described in paragraph (d) of 
this section and will specify that time period within the notice. If a 
submitter has any objection to disclosure, it is required to submit a 
detailed written statement. The statement must specify all grounds for 
withholding any portion of the information under any exemption of the 
FOIA and, in the case of exemption 4, it must show why the information 
is a trade secret or commercial or financial information that is 
privileged or confidential. If a submitter fails to respond to the 
notice within the time specified in it, the submitter will be considered 
to have no objection to disclosure of the information. Information 
provided by the submitter that is not received by OSC until after its 
disclosure decision has been made shall not be considered by OSC. 
Information provided by a submitter under this paragraph may itself be 
subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. OSC shall consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether to 
disclose business information. Whenever OSC decides to disclose business 
information over the objection of a submitter, OSC shall give the 
submitter written notice, which shall include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) OSC determines that the information should not be disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other than 
the FOIA) or by a regulation issued in accordance with the requirements 
of Executive Order 12600; or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous - except that, in such a case, 
OSC shall, within a reasonable time prior to a specified disclosure 
date, give the submitter written notice of any final decision to 
disclose the information.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, OSC shall 
promptly notify the submitter.
    (j) Corresponding notice to requesters. Whenever OSC provides a 
submitter with notice and an opportunity to object to disclosure under 
paragraph (d) of this section, OSC shall also notify the requester(s). 
Whenever OSC notifies a submitter of its intent to disclose requested 
information under paragraph (g) of this section, OSC shall also notify 
the requester(s). Whenever a submitter files a lawsuit seeking to 
prevent the disclosure of business information, OSC shall notify the 
requester(s).