(ii) Whether the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requester.

(3) The requester has the burden of establishing eligibility for a waiver of fees or for reduced fees. The denial of a request for waiver of fees may be appealed under subpart C of this part.

§ 1204.13 Denials.

A denial of a request for reduced fees or of a request for waiver of fees, or denial of a request for a record, in whole or in part, will be made in writing, will state the reasons for the denial, and will notify the requester of the right to appeal the denial.

§ 1204.14 Requests for access to confidential commercial information.

(a) General. Confidential commercial information provided to the Board by a business submitter will not be disclosed in response to a Freedom of Information Act request except in accordance with this section.

means

(b) Definitions. (1) The term confidential commercial information records provided to the government by a submitter that arguably contain material exempt from release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm.

(2) The term submitter means any person or entity who provides confidential commercial information to the government. The term "submitter" includes, but is not limited to corporations, state governments, and foreign governments.

(c) Notice to business submitters. The Board will provide a business submitter with prompt written notice of a request encompassing its confidential commercial information whenever that action is required under paragraph (d) of this section, and except as provided in paragraph (h) of this section. This written notice will either describe the exact nature of the confidential information requested or will provide copies of the records or portions of records containing the commercial information.

(d) When initial notice is required. (1) With respect to confidential commercial information submitted to the Board before January 1, 1988, the Board will give the business submitter notice of a request whenever:

(i) The information is less than 10 years old; or

(ii) The Board has reason to believe that disclosure of the information could reasonably be expected to cause substantial competitive harm.

(2) With respect to confidential commercial information submitted to the Board on or after January 1, 1988, the Board will give notice to the business submitter whenever:

(i) The business submitter has designated the information in good faith as commercially or financially sensitive information; or

(ii) The Board has reason to believe that disclosure of the information could reasonably be expected to cause substantial competitive harm.

(3) Notice of a request for commercially confidential information submitted before January 1, 1988, is required for a period of not more than 10 years after the date on which the information is submitted unless the business submitter requests, and provides justification for, a longer specific notice period. Whenever possible, the submitter's claim of confidentiality must be supported by a statement or certification, by an officer or authorized representative of the company, that the information in question is in fact confidential commercial information and has not been disclosed to the public.

(e) Opportunity to object to disclosure. Through the notice described in paragraph (c) of this section, the Board will afford a business submitter a reasonable period within which to provide a detailed statement of any objection to disclosure. The statement must specify all grounds for withholding any of the information under any exemption of the Freedom of Information Act. In addition, in the case of Exemption 4, the statement must demonstrate why the information is alleged to be a trade secret, or to be commercial or financial information that is privileged or confidential. Information a business submitter provides under this paragraph

may itself be subject to disclosure under the Freedom of Information Act. (f) Notice of intent to disclose information. The Board will consider carefully a business submitter's objections and specific grounds for claiming that the information should not be disclosed before determining whether to disclose confidential commercial information. Whenever the Board decides to disclose confidential commerical information over the objection of a business submitter, it will forward to the business submitter a written notice that includes:

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

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

(3) A specified disclosure date. The Board will forward the notice of intent to disclose the information a reasonable number of days, as circumstances permit, before the specified date upon which disclosure is expected. It will forward a copy of the disclosure notice to the requester at the same time.

(g) Notice of Freedom of Information Act lawsuit. Whenever a requester files a lawsuit seeking to compel disclosure of business information covered by paragraph (d) of this section, the Board will notify the business submitter promptly.

(h) Exceptions to notice requirements. The notice requirements of this section do not apply when:

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

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

(3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or

(4) The disclosure is required by an agency rule that:

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

(ii) Specifies narrow classes of records submitted to the agency that are to be released under the Freedom of Information Act; or

(iii) Provides in exceptional circumstances for notice when the submitter provides written justification,

at the time the information is submitted or a reasonable time thereafter, that disclosure of the information could reasonably be expected to cause substantial competitive harm.

(5) The information requested is not designated by the submitter as exempt from disclosure in accordance with agency regulations promulgated pursuant to this section, when the submitter has an opportunity to do so at the time of submission of the information or a reasonable time thereafter, unless the agency has substantial reason to believe that disclosure of the information would result in competitive harm; or

(6) The designation made by the submitter in accordance with Board regulations appears obviously frivolous; except that, in such case, the Board must provide the submitter with written notice of any final administrative disclosure determination within a reasonable period prior to the specified disclosure date.

Subpart C-Appeals

§ 1204.21 Submission.

A person may appeal a denial by the Clerk of the Board, or by any regional director, of access to agency records, waiver of fees, or reduction of fees. The appeal must be filed with the Chairman, Merit Systems Protection Board, 1120 Vermont Avenue NW., Washington, DC 20419. Any appeal must include a copy of the initial request, a copy of the letter denying the request, and a statement of the reasons why the appellant believes the denying official erred.

[55 FR 39911, Oct. 1, 1990, as amended at 59 FR 65243, Dec. 19, 1994]

§ 1204.22 Decisions on appeal.

Decisions on an appeal will be made within 20 workdays after the appeal is received. Each decision will be in writing and, if the denial of access to records is upheld, will contain the reasons for the decision, as well as information about the appellant's right to seek judicial review of the denial.

The definitions of 5 U.S.C. 552a apply to this part. In addition, as used in this part:

(a) Inquiry means a request by an individual regarding whether the Board has a record that pertains to that individual.

(b) Request for access means a request by an individual to inspect or copy a record.

(c) Request for amendment means a request by an individual to change the substance of a particular record by addition, deletion, or other correction.

(d) Requester means the individual requesting access to or amendment of a record. The individual may be either the person to whom the requested record pertains, a legal guardian acting on behalf of the individual, or a representative designated by that individual.

§ 1205.4 Disclosure of Privacy Act records.

(a) Except as provided in 5 U.S.C. 552a(b), the Board will not disclose any personal record information from systems of records it maintains to any individual other than the individual to whom the record pertains, or to any other agency, without the express written consent of the individual to whom the record pertains, or his or her agent or attorney.

(b) The Board's staff will take necessary steps, in accordance with the law and these regulations, to protect the security and integrity of the records and the personal privacy interests of the subjects of the records.

Subpart B-Procedures for
Obtaining Records

§ 1205.11 Access to Board records.
(a) Submission of request. Inquiries or
requests for access to records must be
submitted to the appropriate regional
office of the Board, or to the Office of

the Clerk of the Board, U.S. Merit Systems Protection Board, 1120 Vermont Avenue NW., Washington, DC 20419. If the requester has reason to believe the records in question are located in a regional office, the request must be submitted to that office. Requests submitted to the region must be addressed to the regional director at the appropriate regional office listed in appendix II of 5 CFR part 1201.

(b) Form. Each submission must contain the following information:

(1) The name, address, and telephone number of the individual to whom the record pertains;

(2) The name, address, and telephone number of the individual making the request if the requester is someone other than the person to whom the record pertains, such as a legal guardian or an attorney, along with evidence of the relationship. Evidence of the relationship may consist of an authenticated copy of: (i) the birth certificate of the minor child, and (ii) the court document appointing the individual legal guardian, or (iii) an agreement for representation signed by the individual to whom the record pertains;

(3) Any additional information that may assist the Board in responding to the request, such as the name of the agency that took an action against an individual, or the docket number of the individual's case;

(4) The date of the inquiry or request; (5) The inquirer's or requester's signature; and

(6) A conspicuous indication, both on the envelope and the letter, that the inquiry is a "PRIVACY ACT REQUEST".

(c) Identification. Each submission must comply with the identification requirements stated in §1205.13 of this part.

(d) Payment. Records usually will not be released until fees have been received.

§1205.12 Time limits and determinations.

(a) Board determinations. The Board will acknowledge the request and make a determination on it within 10 workdays after it receives the request, except under the unusual circumstances described below:

(1) When the Board needs to obtain the records from other Board offices; (2) When it needs to obtain and examine a large number of records;

(3) When it needs to consult with another agency that has a substantial interest in the records requested; or

(4) When other extenuating circumstances prevent the Board from processing the request within the 10day period.

(b) Time extensions. When unusual circumstances exist, the Board may extend the time for making a determination on the request for no more than 10 additional workdays. If it does so, it will notify the requester of the extension.

(c) Improper request. If a request or an appeal is not properly labeled, does not contain the necessary identifying information, or is submitted to the wrong office, the time period for processing the request will begin when the correct official receives the properly labeled request and the necessary information.

(d) Determining officials. The Clerk of the Board or a regional director will make determinations on requests.

§ 1205.13 Identification.

(a) In person. Each requester must present satisfactory proof of identity. The following items, which are listed in order of the Board's preference, are acceptable proof of the requester's identity when the request is made in person:

(1) A document showing the requester's photograph;

(2) A document showing the requester's signature; or

(3) If the items described in paragraphs (a)(1) and (2) of this section are not available, a signed statement in which the requester asserts his or her identity and acknowledges understanding that misrepresentation of identity in order to obtain a record is a misdemeanor and subject to a fine of up to $5,000 under 5 U.S.C. 552a(i)(3).

(b) By mail. The identification of a requester making a request by mail must be certified by a notary public or equivalent official or contain other information sufficient to identify the requester. Sufficient information could be the date of birth of the requester

(3) The agreement of representation, where appropriate.

§ 1205.14 Granting access.

(a) The Board may allow a requester to inspect records through either of the following methods:

(1) It may permit the requester to inspect the records personally during normal business hours at a Board office or other suitable Federal facility closer to the requester; or

(2) It may mail copies of the records to the requester.

(b) A requester seeking personal access to records may be accompanied by another individual of the requester's choice. Under those circumstances, however, the requester must sign a statement authorizing the discussion and presentation of the record in the accompanying individual's presence.

§ 1205.15 Denying access.

(a) Basis. In accordance with 5 U.S.C. 552a(k)(2), the Board may deny access to records that are of an investigatory nature and that are compiled for law enforcement purposes. Those requests will be denied only where access to them would otherwise be unavailable under Exemption (b)(7) of the Freedom of Information Act.

(b) Form. All denials of access under this section will be made in writing and will notify the requester of the right to judicial review.

§ 1205.16 Fees.

(a) No fees will be charged except for making copies of records.

(b) Photocopies of records duplicated by the Board will be subject to a charge of 10 cents a page.

(c) If the fee to be assessed for any request is less than $25 (the cost to the

Board of processing and collecting the fee), no charge will be made to the requester.

(d) Fees for duplicating audio tapes and computer records will be charged at a rate representing the actual costs to the Board, as those costs are shown below.

(1) Audio tapes will be provided at a charge of $5.75 for each cassette tape. (2) Computer printouts will be provided at a charge of 1 cent a page.

(3) Records reproduced on magnetic computer tapes will be provided at a charge of $21 a tape.

(4) Records produced on computer diskettes will be provided at a charge of $2.70 a diskette.

(e) If duplication costs exceed $25, the Board will notify the requester of the estimated amount before copying the records.

(f) When the Board determines that charges for a request are likely to exceed $250, it will require the requester to pay the entire fee before it continues to process the request.

(g) The Board will provide one copy of the amended parts of any record it amends free of charge as evidence of the amendment.

Subpart C-Amendment of Records

§ 1205.21 Request for amendment.

A request for amendment of a record must be submitted to the director of the appropriate regional office, or to the Office of the Clerk of the Board, U.S. Merit Systems Protection Board, 1120 Vermont Avenue NW., Washington, DC 20419, depending on which office is maintaining the record. The request must be in writing, must be identified conspicuously on the outside of the envelope and the letter as a "PRIVACY ACT REQUEST," and must include the following information:

(a) An identification of the record to be amended;

(b) A description of the amendment requested; and

(c) A statement of the basis for the amendment, along with supporting documentation, if any.