search fee individually, or a combination of the two exceeds $25.00 over and above the free search time and duplication costs, where applicable, and the requesting party has not indicated in advance a willingness to pay so high a fee, the requesting party shall be promptly informed of the amount of the anticipated fee or such portion thereof as can readily be estimated. The notification shall offer the requesting party the opportunity to confer with agency representatives for the purpose of reformulating the request so as to meet that party's needs at a reduced cost.

[53 FR 37549, Sept. 27, 1988]

§ 15.21 Exemptions authorized by 5 U.S.C. 552.

A requested record shall not be withheld from inspection or copying unless it both: Comes within one of the classes of records exempted by 5 U.S.C. 552; and there is need in the public interest to withhold it. In determining the scope of the classes of records described in paragraph (a) of this section, the Attorney General's Memorandum on the Public Information Act, June 1967, will be used as a guide.

(a) The classes of records authorized to be exempted from disclosure by 5 U.S.C. 552 are those which concern matters that are:

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

(2) Related solely to the internal personnel rules and practices of the Department;

(3) Specifically exempted from disclosure by statute;

(4) Except as otherwise provided in paragraph (c) of this section, trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) Interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the Department;

(6) Personnel and medical files and similar files the disclosure of which

would constitute a clearly unwarranted invasion of personal privacy;

(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

(i) Could reasonably be expected to interfere with enforcement proceedings;

(ii) Would deprive a person of a right to a fair trial or an impartial adjudication;

(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;

(iv) Could reasonably be expected to disclose the identity of a confidential source, including a state, local or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;

(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or

(vi) Could reasonably be expected to endanger the life or physical safety of any individual.

(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of the Department in connection with its responsibility for the regulation or supervision of financial institutions; or (9) Geological and geophysical information and data, including maps, concerning wells.

(b) Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this section.

(c) Subject to the following conditions, financial and related information submitted by a mortgagor and

contained in Form HUD-92410 (Statement of Profit and Loss), or a HUD-approved substitute form that the mortgagor may have submitted, may be disclosed to eligible potential purchasers of HUD-held multifamily mortgages.

(1) Information from Form HUD-92410 concerning a project may be made available in conjunction with the sale of a HUD-held mortgage covering that project conducted under the authority of sections 207 (k) and (1) of the National Housing Act, 12 U.S.C. 1713 (k) and (1), or section 7(i)(3) of the Department of Housing and Urban Development Act, 42 U.S.C. 3535(i)(3).

(2) The release of this information by HUD to eligible potential purchasers shall be limited to the period specified by HUD for the mortgage sale.

(3) Eligible potential purchasers who have received this information shall agree to keep the information confidential, to disclose the information only to potential investors in the mortgage, to use the information for the sole purpose of their evaluation of the mortgage in connection with the mortgage sale, and to follow disclosure procedures for that sale that have been established by the Secretary.

(4) Any disclosure by eligible potential purchasers to potential investors in the mortgage shall be limited to the period specified by HUD for the mortgage sale. Similar, potential investors in the mortgage shall agree to keep the information confidential and to use the information for the sole purpose of their evaluation of the mortgage in connection with their investment decision. In addition, potential investors in the mortgage may not disclose the information to other entities, unless the disclosure is necessary for the investor's evaluation of the mortgage, is in accordance with disclosure procedures for the specific sale that have been established by the Secretary, and is limited to the period specified by HUD for the mortgage sale. Any potential purchaser is responsible for notifying potential investors in the mortgage who receive this information from that entity of the investors' obligations under this section.

(5) Disclosure of information from Form HUD-92410 by an eligible potential purchaser or by a potential inves

tor (who has received the information from a potential purchaser and has been notified by that entity of its obligations under paragraph (c)(3) of this section) that is not in accordance with this section is a violation of this regulation and may subject the entity making the unauthorized disclosure to administrative sanctions under 24 CFR part 24.

(Approved by the Office of Management and Budget under control number 2502-0052)

[40 FR 48123, Oct. 14, 1975, as amended at 51 FR 44286, Dec. 9, 1986; 60 FR 11903, Mar. 3, 1995]

Subpart D-[Reserved]

Subpart E-Procedures for
Requesting Access to Records

§ 15.41 Requests for records.

(a) Requests for copies of records may be made in person during normal business hours at information centers listed in §15.31 or by mail addressed to such centers. Although oral requests may be honored, a requester may be asked to submit his request in writing. (b) Each request must reasonably describe the desired record including the name, subject matter, and number or date, where possible, so that the record may be identified and located. In order to enable the Department to comply with the time limitations set forth in § 15.42, the envelope containing a written request and the letter itself should both clearly indicate that the subject is a Freedom of Information Act request.

(c) The request shall be accompanied by an agreement to pay a fee to be determined in accordance with §15.14. Under the circumstances enumerated in § 15.18, the Department may refuse to furnish records before receipt of the appropriate fee. A requester may specify a limit for fees, above which the requester is not willing to pay without advance consultation with the Department.

(d) Copies of available records shall be made as promptly as possible. Copying service shall be limited to not more than 10 copies of any single page.

Records which are published or available for sale need not be reproduced.

[40 FR 48123, Oct. 14, 1975, as amended at 60 FR 11904, Mar. 3, 1995]

§ 15.42 Time limitations.

(a) Upon receipt of a request for records, the appropriate office will determine within ten working days whether to comply with such requests. The office will either agree to provide the requested documents, or will notify the requester, in writing, of an adverse determination, the reasons therefor, and the right to appeal the denial to the:

(1) General Counsel, with respect to a denial issued by the Office of the Executive Secretariat or by the offices in which there is a Field Assistant General Counsel; or

(2) Field Assistant General Counsel, with respect to a denial issued by the Field Offices.

(b) When a request for records is misdirected by the requester, the office receiving the request shall:

(1) Promptly refer it to the appropriate office; and

(2) Advise the requester that the time of receipt by the appropriate office will be the time of receipt for processing purposes.

(c) A determination by the General Counsel or the Field Assistant General Counsel with respect to an appeal under §15.61 shall be made within 20 working days after receipt of the appeal, and shall be communicated to the appellant, in writing.

(d) In unusual circumstances, the General Counsel, or the appropriate Field Assistant General Counsel, may extend the time limits prescribed in paragraphs (a) and (c) of this section, by written notice to the requester setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. An extension shall not exceed ten working days. As used in this paragraph, unusual circumstances means that there is a need:

(1) To search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;

(2) To search for, collect, and examine appropriately a voluminous amount of separate and distinct records that are demanded in a single request; or

(3) 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 organizational units of the Department having a substantial interest in the subject matter of the request.

[60 FR 11904, Mar. 3, 1995]

Subpart F-Disclosure of Records and Refusal To Disclose

§ 15.51 Authority to release records or copies.

The Office of the Executive Secretariat in Headquarters and the FOIA liaisons in each Field Office are authorized to release copies of any Department records upon written request unless disclosure is clearly not appropriate under this part.

[60 FR 11904, Mar. 3, 1995]

§ 15.52 Authority to deny requests for records.

The officers described in §15.51, or other official designated by the Secretary's Representative, may deny a request for a record only with the concurrence of the appropriate program counsel in Headquarters or counsel in the Field Offices. Any denial shall:

(a) Be made in writing, describing the documents denied and, if fewer than 21, listing them specifically;

(b) Contain a simple reason for the denial, stating the appropriate exemption used; and

(c) Advise of the right to appeal the adverse determination, in accordance with § 15.61, to the:

(1) General Counsel, with respect to a denial issued by the Office of Executive Secretariat or by offices in which there is a Field Assistant General Counsel; and

(2) Field Assistant General Counsel, with respect to a denial issued by Field Offices.

[60 FR 11904, Mar. 3, 1995]

§ 15.54 Business information.

(a) In general. Business information provided to the Department by a submitter shall not be disclosed pursuant

to a FOIA request except in accordance with this section.

(b) Definitions. As used in this section:

Business information means commercial or financial information provided to the Department by a submitter that arguably is protected from disclosure under Exemption 4 (42 U.S.C. 552(b)(4)) of the Act.

Submitter means any person or entity who provides business information, directly or indirectly, to the Department. The term includes, but is not limited to, corporations, State governments, and foreign governments.

(c) Designation of business information. A submitter's claim that certain information is confidential or proprietary should be supported by a statement or certification by an officer or authorized representative of the submitter that the information is, in fact, confidential or proprietary and has not been disclosed to the public. All information considered confidential or proprietary by a submitter should be clearly designated with a prominent stamp, typed legend, or other suitable form of notice, stating "Confidential Treatment Requested by [insert name of submitter]", which should appear on each page or segregable portion of the page. If such marking is impractical, a cover sheet prominently marked "Confidential Treatment Requested by [insert name of submitter]" should be securely attached to the information for which confidential treatment is requested. These designations shall be deemed to have expired 10 years after the date of the submission, unless the submitter requests, and provides reasonable justification for, a longer period of designation.

(d) Notice to submitter. To the extent permitted by law, the Department

shall provide a submitter with prompt written notice of a FOIA request or administrative appeal encompassing its business information, unless notice is excused under paragraph (h) of this section. Such notice shall afford the submitter an opportunity to object to disclosure pursuant to paragraph (f) of this section. The notice shall either describe the exact nature of the business information requested or provide copies of the records or portions thereof containing the business information. The Department will provide this notice whenever:

(1) The information has been designated in good faith by the submitter as information deemed protected under Exemption 4; or

(2) The Department has reason to believe that the information may be protected from disclosure under Exemption 4.

(e) Notice to requester. At the same time the Department notifies the submitter, the Department shall also notify the requester that the request is subject to the provisions of this section and that the submitter is being afforded an opportunity to object to disclosure of the information.

(f) Opportunity to object to disclosure. Through the notice described in paragraph (d) of this section, the Department shall afford a submitter or its designee 10 Federal working days to provide the Department a detailed written statement of the submitter's objection to disclosure of any portion of the information it submitted to the Department. Such statement shall specify all grounds for withholding any of the information and shall demonstrate why the information is a trade secret or commercial or financial information that is privileged or confidential. Conclusory statements that particular information would be useful to competitors or would impair sales, or similar statements, generally will not be considered sufficient to justify confidential treatment. Information provided by a submitter or its designee pursuant to this paragraph may itself be subject to disclosure under the FOIA.

(g) Notice of intent to disclose. The Department shall consider carefully a submitter's objections and specific

grounds for nondisclosure, before determining whether to disclose business information. If the Department decides to disclose business information over the objection of a submitter, the Department shall forward to both the submitter and the requester a written notice of intent to disclose. The written notice shall be forwarded 10 Federal working days before the specified disclosure date and shall include:

(1) A statement of the reasons for which the submitter's disclosure objections were not sustained;

(2) A description of the business information to be disclosed; and

(3) A specified disclosure date.

(h) Exceptions to the notice requirement. The notice requirements of paragraphs (d) and (g) of this section shall not apply if:

(1) The Department determines that the information should not be disclosed;

(2) The information has been published lawfully or has been made available officially to the public;

(3) Disclosure of the information is required by law (other than the Act); (4) Disclosure of the information is required by a departmental regulation that:

(i) Was adopted pursuant to notice and public comment;

(ii) Specifies narrow classes of records submitted to the Department that are to be released under the FOIA; and

(iii) Provides for notice in exceptional circumstances when the submitter provides, at the time the information is submitted or a reasonable time thereafter, written justification that disclosure of the information could reasonably be expected to cause substantial competitive harm;

(5) The information requested was not designated by the submitter as exempt from disclosure in accordance with paragraph (c) of this section at the time of the submission of the information or a reasonable time thereafter, unless the Department has substantial reason to believe that the disclosure of the information would cause competitive harm; or

(6) The designation made by the submitter in accordance with paragraph (c) of this section appears obviously