For purposes of this part:

(a) The term "bank," as used in § 309.6, includes banks that have applied to the Corporation for federal deposit insurance, closed banks, presently operating banks, foreign banks, branches of foreign banks, and all affiliates of any of the foregoing;

(b) The term "Corporation" means the Federal Deposit Insurance Corporation;

(c) The words "disclose" or "disciosure," as used in § 309.6, mean to give access to a record, whether by producing the written record or by verbal discussion of its contents. Where the Cor

poration employee authorized to release Corporation documents makes a determination that furnishing copies of the documents is necessary, the words "disclose" or "disclosure" include the furnishing of copies of documents or records. In addition, "disclose" or "disclosure" as used in § 309.6 is synonymous with the term "transfer" as used in the Right to Financial Privacy Act of 1978 (12 U.S.C. 3401 et seq.);

(d) The term "examination" includes, but is not limited to, formal and informal investigations of irregularities involving suspected violations of Federal or State civil or criminal laws, or unsafe and unsound banking practices, as well as such other investigations as may be conducted pursuant to law;

(e) The term "record" includes records, files, documents, reports, correspondence, books, and accounts, or any portion thereof;

(f) The term "report of examination" includes, but is not limited to, examination reports resulting from examinations of banks conducted jointly by Corporation examiners and State banking authority examiners, as well as reports resulting from examinations conducted solely by Corporation examiners;

(g) The words "he", "his", or "him" shall also refer to the feminine gender where appropriate; and

(h) The term "customer financial records," as used in § 309.6, means an original of, a copy of, or information known to have been derived from, any record held by a bank pertaining to a customer's relationship with the bank but does not include any record that contains information not identified with or identifiable as being derived from the financial records of a particular customer. The term "customer" as used in § 309.6 refers to individuals or partnerships of five or fewer per

sons.

[42 FR 33715, July 1, 1977, as amended at 43 FR 17804, Apr. 26, 1978; 45 FR 50551, July 30, 1980]

§ 309.3 Federal Register Publication.

The FDIC publishes the following information in the FEDERAL REGISTER for the guidance of the public:

(a) Descriptions of its central and field organization and the established places at which, the officers from whom, and the methods whereby, the public may secure information, make submittals or requests, or obtain decisions;

(b) Statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;

(c) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports or examinations;

(d) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the FDIC;

(e) Every amendment, revision or repeal of the foregoing; and

(f) General notices of proposed rulemaking.

[47 FR 39130, Sept. 7, 1982]

$309.4 Publicly available information.

The following information is available upon request or, as noted, available for public inspection during normal business hours, at the listed offices. To the extent permitted by law, the FDIC may delete identifying details when it makes available or publishes a final opinion, final order, statement of policy, interpretation or staff manual or instruction. Fees for furnishing information under this § 309.4 are as set forth in § 309.5(b).

(a) At the Office of Information, Federal Deposit Insurance Corporation, 550-17th Street, NW., Washington, D.C. 20429, (202) 389-4221:

(1) Documents, including press releases, bank letters and proposed and adopted regulations, published by the FDIC and pertaining to its operations and those of insured banks it supervises.

(2) Reports on the competitive factors involved in merger transactions and the bases for approval of merger transactions as required by section 18(c) (4) and (9) of the Federal Deposit Insurance Act (12 U.S.C. 1828(c) (4) and (9)).

(b) At the Office of the Executive Secretary, Federal Deposit Insurance Corporation, 550-17th Street, N.W., Washington, D.C. 20429, which information is available for public inspection:

(1) All final opinions (including concurring and dissenting opinions) and all final orders made in the adjudication of cases.

(2) Statements of policy and interpretations which have been adopted by the FDIC but have not been published in the FEDERAL REGISTER.

(3) A current index of matters covered by paragraph (b) (1) and (2) of this section that were issued, adopted or promulgated after July 4, 1967. Copies of the index will be provided at the direct cost of duplication as set forth in § 309.5(b).

(c) At the Division of Bank Supervision, Federal Deposit Insurance Corporation, 550-17th Street, N.W., Washington, D.C. 20429:

(1) Filings and reports required under the provisions of 12 CFR Part 335 and the Securities and Exchange Act of 1934, as amended (15 U.S.C. 78a), by insured nonmember banks the securities of which are registered with the FDIC pursuant to section 12 of that Act (15 U.S.C.781). These filings and reports are available for public inspection as detailed in 12 CFR § 335.702.

(2) At the FDIC's discretion, reports required under section 7(j) of the Federal Deposit Insurance Act (12 U.S.C. 1817(j)) on changes in the control of an insured bank, to the extent that such reports contain (i) the name of the bank in which control has changed; (ii) the names of the sellers and purchasers of the stock; (iii) the number of shares of stock involved in the transaction; and (iv) the number of shares of issued stock of the bank that are outstanding.

(3) Manual of Examination Policies. (d) At the regional office of the FDIC where the applicant bank is lo

cated: In the FDIC's discretion, nonconfidential portions of application files as provided in 12 CFR 303.14(c), including applications for deposit insurance, to establish branches, to relocate offices and to merge. A list of FDIC's regional offices is available from the Office of Information, Federal Deposit Insurance Corporation, 55017th Street, N.W., Washington, D.C. 20429, (202) 389-4221.

(e) At the Data Base Section, Office of Management Systems and Financial Analysis, Federal Deposit Insurance Corporation, 550-17th Street, N.W., Washington, D.C. 20429:

(1) At FDIC's discretion, the Consolidated Reports of Income and Consolidated Reports of Condition filed by insured nonmember banks (and certain nonfederally insured banks in the case of reports of condition), except that select sensitive financial information may be withheld.1

(2) At the FDIC's discretion, Summary of Accounts and Deposits filed by insured banks, except that information on the size and number of accounts is not available.2

(f) At the Bank Statistics Branch, Office of Management Systems and Financial Analysis, Federal Deposit Insurance Corporation, 550-17th Street, N.W., Washington, D.C. 20429: Annual Reports of Trust Assets for commercial and mutual savings banks. 3

(g) At the Division of Liquidation, Federal Deposit Insurance Corporation, 550-17th Street, N.W., Washington, D.C., 20429: Instructions to Liquidators.

[47 FR 39131, Sept. 7, 1982]

§ 309.5 Information made available upon request.

(a) Initial request. (1) Except as provided in paragraphs (c), (g) and (h), of this section, the FDIC, upon request for any record in its possession or control, will make the record available to

'Reports of income and of condition are described at 12 CFR 304.3 (m)-(p).

2 Summary of accounts and deposit reports are described at 12 CFR 304.3 (q) and (r).

3 Annual Report of Trust Assets, FFIEC Form 001.

any person who agrees to pay the costs of searching and duplication as set forth in paragraph (b) of this section. The request must be in writing, provide information reasonably sufficient to enable the FDIC to identify the requested records and specify a dollar limit which the requester is willing to pay for the costs of searching and duplication, unless the costs are believed to be less than $25.00. Requests under this paragraph (a) should be addressed to the Office of the Executive Secretary, FDIC, 55017th Street, N.W., Washington, D.C. 20429.

(2) The FDIC will notify the requester within 10 business days after receipt of the initial request whether it is granted or denied. Denials of requests will be based on the exemptions provided for in paragraph (c) of this section.

(3) Notification of a denial of an initial request will be in writing and will state: (i) If the denial is in part or in whole; (ii) the name and title of each person responsible for the denial (when other than the person signing the notification); (iii) the exemptions relied on for the denial; and (iv) the right of the requester to appeal the denial to the FDIC's General Counsel within 30 business days following receipt of the notification.

(b) Fees. (1) Persons requesting records of the FDIC shall be charged for the costs of searching (even though records are not found or released) and duplication unless the total costs are $25.00 or less for any request or series of requests. "Search" includes any method of extracting information from computerized record systems; and, the cost of searching may include direct costs associated with the transfer of records and the indexing and filing of records as necessary to maintain the integrity of FDIC's record systems. Where the FDIC estimates that the costs of searching and duplication will exceed the dollar amount specified in the request, or where no dollar amount is specified, the FDIC will advise the requester of the estimated costs (if greater than $25.00). Whenever it is estimated that the costs will exceed $200.00, the requester must pay in

advance an amount equal to 20 percent of the estimated costs. For the purpose of computing the time in which a request must be granted or denied, a request for records will not be deemed to have been received by the FDIC until the requester has agreed in writing to pay the costs of searching and duplication, as estimated by the FDIC, and until the FDIC receives any required advance payment. Upon written request and at fees comparable to those listed in this paragraph (b), the FDIC will undertake to compile requested information in summary, tabular or other form, unless the FDIC determines, in its discretion, that compliance with the request would be unduly burdensome or time consuming.

(2) Fees for search and duplication

(3) Any person may request, as part of the initial request for records, that the FDIC waive or reduce the chargeable fees for searching and duplication. Requests for a waiver or reduction of fees should state how the requested information will primarily benefit the general public. Determinations whether a waiver or reduction of fees is in the public interest because furnishing the information will primarily benefit the general public will be made by the Executive Secretary (or designee). The requester will be notified in writing of the determination whether a waiver or reduction of fees is in the public interest.

(c) Exempt information. A request for records may be denied if the requested record contains information which falls into one or more of the following categories. If the requested record contains both exempt and nonexempt information, the nonexempt portions which may reasonably be segregated from the exempt portions will be released to the requester.

(1) Records which are (i) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (ii) are in fact properly classified pursuant to such Executive order;

(2) Records related solely to the internal personnel rules and practices of the FDIC;

(3) Records specifically exempted from disclosure by statute (other than the Privacy Act of 1974, 5 U.S.C. 552a), provided that such statute (i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) Interagency or intraagency memoranda or letters which would not be available by law to a private party in litigation with the FDIC;

(6) Personnel and medical files and similar files (including financial files) the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(7) Investigatory records compiled for law enforcement purposes, but only to the extent that disclosure of the records would (i) interfere with enforcement proceedings, (ii) deprive a person of a right to a fair trial or an

'Classification of a record as exempt from disclosure under the provisions of § 309.5(c) shall not be construed as authority to withhold the record if it is otherwise subject to disclosure under the Privacy Act of 1974 (5 U.S.C. 552a) or other Federal statute, any applicable regulation of FDIC or any other Federal agency having jurisdiction thereof, or any directive or order of any court of competent jurisdiction.

13-032 0-83--6

impartial adjudication, (iii) constitute an unwarranted invasion of personal privacy, (iv) disclose the identity of a confidential source, (v) disclose investigative techniques and procedures, or (vi) endanger the life or physical safety of law enforcement personnel; and

(8) Records contained in or related to examination, operating, or condition reports by or on behalf of, or for the use of, the FDIC or any agency responsible for the regulation or supervision of financial institutions.

(d) Appeals. (1) A person whose initial request for records under paragraph (a) of this section has been denied, either in part or in whole, has the right to appeal the denial to FDIC's General Counsel (or designee) within 30 business days after receipt of notification of the denial. Appeals of denials of initial requests must be in writing and include any additional information relevant to consideration of the appeal. Appeals should be addressed to the Office of the Executive Secretary, FDIC, 550-17th Street, N.W., Washington, D.C., 20429.

(2) The FDIC will notify the appellant within 20 business days after receipt of the appeal whether it is granted or denied. Denials of appeals will be based on the exemptions provided for in paragraph (c) of this section.

(3) Notifications of a denial of an appeal will be in writing and will state: (i) whether the denial is in part or in whole; (ii) the name and title of each person responsible for the denial (if other than the person signing the notification); (iii) the exemptions relied upon for the denial; and (iv) the right to judicial review of the denial under the Freedom of Information Act (5 U.S.C. 552).

(e) Extension of time. Under unusual circumstances the FDIC may require additional time, up to a maximum of 10 business days, to determine whether to grant or deny an initial request or to respond to an appeal of an initial denial. These circumstances would arise in cases where (1) the records are in facilities, such as field offices or storage centers, that are not part of the FDIC's Washington office, (2) the records requested are voluminous and are not in close proximity to one an

other, or (3) there is a need to consult with another agency or among two or more components of the FDIC having a substantial interest in the determination. The FDIC will promptly give written notification to the person making the request of the estimated date it will make its determination and the reasons why additional time is required.

(f) FDIC procedures. (1) Initial requests for records will be forwarded by the Executive Secretary to the head of the FDIC division or office which has custody of such records. Where it is determined that the requested information may be released, the appropriate division or office head will grant access to the information. A request for records may be denied only by the Executive Secretary (or designee), except that a request for records not responded to within 10 business days following its receipt by the Office of Executive Secretary-by notice to the requester either granting the request, denying the request, or extending the time for making a determination on the request-shall, if the requester chooses to treat such delay in response as a denial, be deemed to have been denied by the head of the division or office to which the request was referred for action.

(2) Appeals from a denial of an initial request will be forwarded by the Executive Secretary to the General Counsel (or designee) for a determination whether the appeal will be granted or denied. The General Counsel (or designee) may on his or her own motion refer an appeal to the Board of Directors for a determination and the Board of Directors on its own motion may consider an appeal.

(g) Records of another agency. If a requested record is the property of another Federal agency or department, and that agency or department, either in writing or by regulation, expressly retains ownership of such record, upon receipt of a request for the record the FDIC will promptly inform the requester of this ownership and immediately shall forward the request to the proprietary agency or department either for processing in accordance with the latter's regulations or for guidance with respect to disposition.