Rules and Regulations

tial basis between July 4, 1967 and March 25, 1974, will not be routinely available for inspection and a persuasive showing as to the reasons for inspection of such information will be required in requests for inspection of such materials submitted under § 0.461.

(i) Unless the materials to be submitted are listed in paragraph (d)(1) of this section and the protection thereby afforded is adequate, it is important for any person who submits materials which he wishes withheld from public inspection under 5 U.S.C. 552(b)(4) to submit therewith a request for non-disclosure pursuant to § 0.459. If it is shown in the request that the materials contain trade secrets or commercial, financial or technical data which would customarily be guarded from competitors, the materials will not be made routinely available for inspection; and a persuasive showing as to the reasons for inspection will be required in requests for inspection submitted under § 0.461. In the absence of a request for nondisclosure, the Commission may, in the unusual instance, determine on its own motion that the materials should not be routinely available for public inspection. Ordinarily, however, in the absence of such a request, materials which are submitted will be made available for inspection upon request pursuant to § 0.461, even though some question may be present as to whether they contain trade secrets or like matter.

(e) Interagency and intra-agency memorandums or letters, 5 U.S.C. 552(b)(5). Interagency and intra-agency memorandums or letters and the work papers of members of the Commission or its staff will not be made available for public inspection, except in accordance with the procedures set forth in § 0.461. Only if it is shown in a request under § 0.461 that such a communication would be routinely available to a private party through the discovery process in litigation with the Commission will the communication be made available for public inspection. Normally such papers are privileged and not available to private parties through the discovery process, since their disclosure would tend to restrain the commitment of ideas to writing, would tend to inhibit communication among Government personnel, and would, in some cases, involve premature disclosure of their contents.

(f) Personnel, medical and other files whose disclosure would constitute a clearly unwarranted invasion of personal privacy, 5 U.S.C. 552(b)(6). (1) Under Executive Order 10561, 19 FR 5963, September 13, 1954, 3 CFR 1954-1958 Comp., page 205, the Commission maintains an Official Personnel Folder for each of its employees. Such folders are under the jurisdiction and control, and are a part of the records, of the U.S. Office of Personnel Management. Except as provided in the rules of the Office of Personnel Management (5 CFR 294.701-294.703), such folders will not be made available for public inspection by the Commission. In addition, other records of the Com

mission containing private, personal or financial information concerning particular employees will be withheld from public inspection.

(2) [Reserved]

(3) Information submitted to the Commission by applicants for commercial radio operator licenses concerning the character and mental or physical health of the applicant is available for inspection only under procedures set forth in § 0.461. Except in this respect, or where other aspects of a similar private nature warrant nondisclosure, commercial radio operator application files are available for inspection.

(g) Investigatory records compiled for law enforcement purposes, to the extent that production of such records would:

(1) Interfere with enforcement proceedings; (2) Deprive a person of a right to fair trial or an impartial adjudication;

(3) Constitute an unwarranted invasion of personal privacy;

(4) Disclose the identity of a confidential source;

(5) Disclose investigative techniques or procedures; or

(6) Endanger the life or physical safety of law enforcement personnel, 5 U.S.C. 552(b)(7).

[32 FR 10573, July 19, 1967, as amended at 32 FR 12180, Aug. 24, 1967; 39 FR 5918, Feb. 14, 1974; 39 FR 27802, Aug. 1, 1974; 40 FR 7313, Feb. 19, 1975; 40 FR 17255, Apr. 18, 1975; 40 FR 34116, Aug. 14, 1975; 40 FR 39507, Aug. 28, 1975; 42 FR 12867, Mar. 7, 1977; 43 FR 51794, Nov. 7, 1978; 45 FR 39850, June 12, 1980]

§ 0.459 Requests that materials or information submitted to the Commission be withheld from public inspection.

(a) Any person submitting information or materials to the Commission may submit therewith a request that such information not be made routinely available for public inspection. (If the materials are specifically listed in § 0.457, such a request is unnecessary.) A copy of the request shall be attached to and shall cover all of the materials to which it applies and all copies of those materials. If feasible, the materials to which the request applies shall be physically separated from any materials to which the request does not apply; if this is not feasible, the portion of the materials to which the request applies shall be identified.

(b) Each such request shall contain a statement of the reasons for withholding the materials from inspection (see §0.457) and of the facts upon which those reasons are based. If the request is that the materials be withheld from inspection for a limited period of time, that period shall be specified.

(c) Casual requests which do not comply with the requirements of paragraphs (a) and (b) of this section will not be considered.

(d) Requests which comply with the requirements of paragraphs (a) and (b) of this section will be acted on by the appropriate Bureau or Office Chief, who is directed to grant the request

only if it presents a clear and convincing case for non-disclosure consistent with the provisions of the Freedom of Information Act, 5 U.S.C. 552. If the request is granted, the ruling will be placed in a public file in lieu of the materials withheld from public inspection. A copy of the ruling shall be forwarded to the General Counsel.

(e) If the materials are submitted voluntarily (i.e., absent any direction by the Commission), the person submitting them may request the Commission to return the materials without consideration if the request for confidentiality should be denied. In that event, the materials will ordinarily be returned (e.g., an application will be returned if it cannot be considered on a confidential basis); only in the unusual instance where the public interest so requires will the materials be made available for public inspection. If submission of the materials is required by the Commission and the request for confidentiality is denied, the materials will be made available for public inspection.

(f) If no request for confidentiality is submitted, the Commission assumes no obligation to consider the need for non-disclosure but, in the unusual instance, may determine on its own motion that the materials should be withheld from public inspection. See § 0.457(g).

[40 FR 7313, Feb. 19, 1975]

$ 0.460 Requests for inspection of records which are routinely available for public inspection.

(a) Sections 0.453 and 0.455 list those Commission records which are routinely available for public inspection and the places at which those records may be inspected. Subject to the limitations set out in this section and to the provisions of 0.466, a person who wants to inspect such records need only appear at the specified location and ask to see the records.

(b) A person who does not want a copy of the records must appear at the specified location during the office hours of the Commission and must inspect the records at that location. (Procedures governing requests for copies are set out in § 0.465.) However, arrangements may be made in advance, by telephone or by correspondence, to make the records available for inspection on a particular date, and there are many circumstances in which such advance arrangements will save inconvenience. If the request is for a large number of documents, for example, a delay in collecting them is predictable. Current records may be in use by the staff when the request is made. Older records may have been forwarded to another location for storage.

(c) The records in question must be reasonably described by the person requesting them so as to permit their location by staff personnel. The information needed to locate the records will vary, depending on the records requested. Advice concerning the kind of information needed to locate

particular records will be furnished in advance upon request. Members of the public will not be given access to the area in which records are kept and will not be permitted to search the files.

(d) If it appears that there will be an appreciable delay in locating or producing the records (as where a large number of documents is the subject of a single request or where an extended search for a document appears to be necessary), the request shall be submitted in writing, either in person or by mail.

(e) Written requests shall be captioned “REQUEST FOR INSPECTION OF RECORDS”, shall be dated, shall list the telephone number (if any) of the person making the request and, for each document requested, shall set out all information known to the person making the request which would be helpful in identifying and locating the document. Written requests shall, in addition, specify the maximum search fee the person making the request is prepared to pay (see § 0.466). If the specified maximum is reached before all of the records have been located, the search will be terminated, and the person making the request will be so notified.

(f) Written requests shall be delivered or mailed directly to the chief of the organizational unit having custody of the records, as listed in §§ 0.453 and 0.455. If the request is enclosed in an envelope, the envelope shall be marked, "REQUEST FOR INSPECTION OF RECORDS."

(g) When a written request is received by the custodian of the records, it will be date-stamped. (h) All requests limited to records listed in §§ 0.453 and 0.455 will be granted. Requests for records listed in those sections shall not be combined with requests for other records.

(i) The records will be produced for inspection at the earliest possible time.

(j) Records shall be inspected within 7 days after notice is given that they have been located and are available for inspection. After that period, they will be returned to storage and additional charges may be imposed for again producing them.

(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 154, 303, 397)

[40 FR 7314, Feb. 19, 1975, as amended at 45 FR 85027, Dec. 24, 1980]

§ 0.461 Requests for inspection of materials not routinely available for public inspection.

Any person desiring to inspect Commission records which are not listed in § 0.453 or § 0.455 shall file a request for inspection meeting the requirements of this section.

(a) The records in question must be reasonably described by the person requesting them, so as to permit their location by staff personnel. See § 0.460(c).

(b)(1) Requests shall be captioned, “REQUEST FOR INSPECTION OF RECORDS", shall be

dated, shall list the telephone number (if any) of the person making the request and, for each document requested, shall set out all information known to the person making the request which would be helpful in identifying and locating the document.

(2) The request shall, in addition, specify the maximum search fee the person making the request is prepared to pay (see § 0.466). If the specified maximum is reached before all of the records have been located, the search will be terminated and the person making the request will be so notified.

(c) If the records are of the kinds listed in § 0.457 or if they have been withheld from inspection under § 0.459, the request shall, in addition, contain a statement of the reasons for inspection and the facts in support thereof. In the case of other materials, no such statement need accompany the request; but the custodian of the records may require the submission of such a statement if he determines that the materials in question may lawfully be withheld from inspection.

(d)(1) Requests shall be delivered or mailed to the Executive Director, who will determine the identity of the custodian of the records and deliver the request to him. (For purposes of this section, the custodian of the records is the Chief of the appropriate Bureau or Office.)

(2) If the request is enclosed in an envelope, the envelope shall be marked, "REQUEST FOR INSPECTION OF RECORDS."

(3) An original and two copies of the request shall be submitted. If the request is for materials not open to routine public inspection under § 0.457(d) or § 0.459, one copy of the request will be mailed by the custodian of the records to the person who originally submitted the materials to the Commission.

(e) When the request is received by the Executive Director, it will be date-stamped.

(f) Requests for inspection of records will be acted on as follows by the custodian of the records.

(1) If the Commission is prohibited from disclosing the records in question, the request for inspection will be denied with a statement setting forth the specific grounds for denial.

(2) If the records are the property of another agency, the request will be referred to that agency and the person who submitted the request will be so advised, with the reasons therefor.

(3) If it is determined that the Commission does not have authority to withhold the records from public inspection, the request will be granted.

(4) If it is determined that the Commission does have authority to withhold the records from public inspection, the considerations favoring disclosure and non-disclosure will be weighed in the light of the facts presented, and the request will be granted, either conditionally or unconditionally, or denied.

(5) If there is a statutory basis for withholding part of a document only from inspection, that part will be deleted and the remainder will be made available for inspection.

(g) The custodian of the records will make every effort to act on the request within 10 working days after it is received by the Executive Director. If it is not possible to locate the records and to determine whether they should be made available for inspection within 10 working days, the custodian may, in any of the following circumstances, extend the time for action by up to 10 working days:

(1) It is necessary to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.

(2) It is necessary to search for, collect and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or

(3) It is necessary to consult with another agency having a substantial interest in the determination of the request or among two or more components of the Commission.

If these circumstances are not present or if it is not possible to locate the records and make the determination within the extended period, the person who made the request will be advised of his rights and asked to consent to an extension or further extension. If he agrees to an extension, the custodian of the records will confirm the agreement in a letter specifying the length of the agreed-upon extension. If he does not agree to an extension, the request will be denied, on the ground that the custodian has not been able to locate the records and/or to make the determination within the period for an initial ruling mandated by the Freedom of Information Act, 5 U.S.C. 552. In that event, the custodian will continue to search for and/or assess the records and will advise the person who made the request of further developments; but that person may file an application for review by the Commission. When action is taken by the custodian of the records, written notice of the action will be given. (h) (1) If a request for inspection of records submitted to the Commission in confidence under § 0.457(d) or § 0.459 is granted, an application for review of the action may be filed only by the person who submitted the records to the Commission. The application for review and the envelope containing it (if any) shall be captioned "REVIEW OF FREEDOM OF INFORMATION ACTION." The application for review shall be filed within 10 working days after the date of the written ruling, shall be delivered or mailed to the General Counsel, and shall be served on the person who filed the request for inspection of records. The person who filed the request for inspection of records may respond to the application for review within 10 working days after it is

filed. If an application for review is not filed within this period, the records will be produced for inspection.

(2) If the request for inspection of records submitted to the Commission in confidence under § 0.457(d) or § 0.459 is partially granted and partially denied, the person who submitted the records to the Commission and the person who filed the request for inspection of those records may file an application for review within 10 working days after the date of the written ruling. The application for review and the envelope containing it (if any) shall be captioned "REVIEW OF FREEDOM OF INFORMATION ACTION." The application for review shall be delivered or mailed to the General Counsel. If either person files an application for review, he shall serve it on the other. Responses may be filed within 10 working days after the application(s) for review is filed. If both persons file, or if an application for review is filed only by the person who filed the request for inspection of records, the application(s) will be acted on within 20 working days after the application filed by the person who requested the records is filed. If an application for review is filed only by the person who submitted the records to the Commission, it will be acted on within 20 days after it is filed. The time for filing applications for review and responses may be reduced on notice, if necessary to act on the request within the 20 day period. If an application for review is not filed within this period by the person who submitted the records to the Commission, the partial grant will be implemented.

(3) If the application for review filed by either person is denied, that person will be notified and advised of his rights in writing.

(4) If an application for review filed by the person who submitted the records to the Commission is denied, or if records are made available on review which were not initially made available, the person who submitted the records to the Commission will be afforded 10 working days from the date of the written ruling in which to move for a judicial stay of the Commission's action. If he does not move for stay within this period, the records will be produced for inspection.

(5) Because of the statutory constraints imposed upon the Commission, no extensions of time will be granted to seek either Commission review or a judicial stay.

(i) Except as provided in paragraph (h) of this section, an application for review of an initial action on a request for inspection may be filed only by the person who made the request. The application shall be filed within 30 days after the date of the written ruling by the custodian of the records, and shall be captioned, "REVIEW OF FREEDOM OF INFORMATION ACTION." The envelope (if any) shall also be so captioned. The application shall be delivered or mailed to the General Counsel and shall be served on the

person (if any) who originally submitted the materials to the Commission. That person may file a response within 10 working days after the application for review is filed. If the records are made available on review, the person who submitted them to the Commission (if any) will be afforded 10 working days after the date of the written ruling to seek a judicial stay. See paragraph (h) of this section. (For general procedures relating to applications for review, see § 1.115 of this chapter.)

(j) [Reserved]

(k) The Commission will make every effort to act on an application for review of an action on a request for inspection of records within 20 working days after it is filed. See, however, paragraph (h)(2) of this section. If it is not possible to locate the records and to determine whether they should be made available for inspection within 20 working days, the General Counsel may, in the following circumstances and to the extent time has not been extended under paragraph (g) of this section, extend the time for action by up to 10 working days (The total period of extensions taken under this paragraph and under paragraph (g) of this section without the consent of the person who submitted the request shall not exceed 10 working days.):

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

(2) It is necessary to search for, collect and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or

(3) It is necessary to consult with another agency having a substantial interest in the determination of the request or among two or more components of the Commission.

(1) Subject to the application for review and judicial stay provisions of paragraphs (h) and (i) of this section, if the request is granted, the records will be produced for inspection at the earliest possible time.

(m) Staff orders and letters denying requests for inspection are signed by the official (or officials) who give final approval of their contents. If

a request is denied by the Commission, notice of denial will set forth the names of the Commissioners participating in the decision.

(n) Records shall be inspected within 7 days after notice is given that they have been located and are available for inspection. After that period, they will be returned to storage, and additional charges may be imposed for again producing them.

(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 154, 303, 397)

[40 FR 39507, Aug. 28, 1975, as amended at 40 FR 59439, Dec. 24, 1975; 45 FR 85028, Dec. 24, 1980]

§ 0.463 Demand by competent authority for the production of documents or testimony concerning information contained therein.

(a) In the event that a demand (subpoena, order or other demand) is made by a court or other competent authority outside the Commission, upon any officer or employee of the Commission for the production of records or files or for testimony concerning information contained therein, he shall promptly advise the Executive Director of such demand, the nature of the papers or information sought, and all other relevant facts and circumstances. The Commission will thereupon issue such instructions as it may deem advisable.

(b) Unless specifically authorized to produce such records or files or to testify with respect thereto, any officer or employee of the Commission who is served with a demand for the production of records or files or his testimony concerning the same, shall appear in response to the demand and respectfully decline to produce such records or files or to testify concerning them, basing his refusal upon this rule.

§ 0.465 Request for copies of materials which are available, or made available, for public inspection. (a) The Commission awards a contract to a commercial duplication firm to make copies of Commission records and offer them for sale to the public. The contract is awarded on the basis of lowest overall cost and best service to the public. In addition to the cost of copying, the contractor may charge a research fee for extracting the requested documents from the Commission's files. The research fee charged by the Contractor shall be that price set forth in the latest contract. The Contractor's price may vary from the search fee imposed under Section 0.446(a) of this Part when a party requests inspection of records under the Freedom of Information Act. The contractor also provides self-service coin-operated photocopy machines in Commission reference rooms. Also, persons may make photocopies with their own equipment upon arrangements with the Procurement Branch.

NOTE: Currently, the Contractor is Downtown Copy Center, 1114 21st NW., Washington, D.C. 20037 (Tel. 202-452-1422). The current duplicating contract specifies a research charge of $10.00 per

hour. The copying charges under the contract vary in accordance with quantity and speed of service. The duplication fee is 9 cents per page; the coin-operated copying machines are set by the Contractor at 10 cents per page (June 1980). Copies of the FCC Telephone Directory are also available from the contractor.

(b) The Commission annually awards a contract to a commercial firm to transcribe Commission proceedings in which a verbatim record is kept and to offer copies of the transcript for sale to the public. The contract is awarded on the basis of the lowest cost to the public and to the Commission. Except as authorized by the Commission, the firm is required to retain the capacity to furnish copies of the transcript for a period of 5 years, and may retain that capacity for a longer period, even though another firm is currently transcribing Commission proceedings. Requests for copies of the transcript of current proceedings should be directed to the current contractor, International Transcription Services, Inc., 4931 Bethesda Avenue, Bethesda, Md. 20014 (301-6561030). Requests for transcripts of older proceedings will be forwarded by the Commission to the firm which made the transcript in question; and the names of contracting firms for past years will be furnished upon request. If a transcript cannot be obtained from the reporting firm, it can be obtained from the general duplicating contractor, as provided in paragraph (a) of this section.

(c)(1) This section has no application to printed publications, which may be purchased from the Superintendent of Documents or private firms (see §§ 0.411-420). Nor does it apply to application forms or information bulletins, which are prepared for the use and information of the public and are available upon request (see §§ 0.421 and 0.423).

(2) Contractual arrangements which have been entered into with commercial firms, as described in this section, do not in any way limit the right of the public to inspect Commission records or to extract therefrom whatever information may be desired. Any person may, in addition, make photocopies of Commission records with his own equipment at locations where those records may be inspected. Coin-operated photocopy machines are available for use by the public in the Broadcast and Dockets Reference Room and the Common Carrier Bureau for the duplication of records available for inspection at those locations. (3) The Commission has reserved the right to make copies of its records for its own use or for the use of other agencies of the U.S. Government. When it serves the regulatory or financial interests of the U.S. Government, the Commission will make and furnish copies of its records free of charge. In other circumstances, however, if it should be necessary for the Commission to make and furnish copies of its records for the use of others, the fee for this service shall be the same as that charged by the general duplicating contractor for copies of those records under contractual arrangements described in paragraph (a) of

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Rules and Regulations, Part 13