1202.8—If the records I request contain confidential commercial information, what procedures will FHFA follow?
(a) General.
FHFA will not disclose confidential commercial information in response to your FOIA request except as described in this section.
(b) Designation of Confidential Commercial Information.
Submitters of commercial information should use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, those portions of the information they deem to be protected under 5 U.S.C. 552(b)(4) and section 1202.4(a)(4). Any such designation expired ten (10) years after they were submitted to the Government, unless the submitter requests, and provides reasonable justification for, a designation period of longer duration.
(c) Predisclosure Notification.
Except as provided in paragraph (e) of this section, if your FOIA request encompasses confidential commercial information, FHFA will, prior to disclosure of the information and to the extent permitted by law, provide prompt written notice to a submitter that confidential commercial information was requested when—
(1)
The submitter has in good faith designated the information as confidential commercial information protected from disclosure under 5 U.S.C. 552(b)(4) and section 1202.4(a)(4); or
(2)
FHFA has reason to believe that the request seeks confidential commercial information, the disclosure of which may result in substantial competitive harm to the submitter.
(d) Content of Predisclosure Notification.
When FHFA sends a predisclosure notification to a submitter, it will contain—
(1)
A description of the exact nature of the confidential commercial information requested or copies of the records or portions thereof containing the confidential business information; and
(2)
An opportunity to object to disclosure within ten (10) days by providing to FHFA a detailed written statement demonstrating all reasons the submitter opposes disclosure.
(e) Exceptions to Predisclosure Notification.
FHFA is not required to send a predisclosure notification if—
(2)
The information lawfully has been published or has been officially made available to the public;
(4)
The information requested is not designated by the submitter as confidential commercial information pursuant to this section; or
(5)
The designation made by the submitter, under paragraph (b) of this section, appears obviously frivolous; except that, FHFA will provide the submitter with written notice of any final decision to disclose the designated confidential commercial information within a reasonable number of days prior to a specified disclosure date.
(f) Submitter's Objection to Disclosure.
A submitter may object to disclosure within ten (10) days after date of the Predisclosure Notification, or such other time period that FHFA may allow, by delivering to FHFA a statement demonstrating all grounds on which it opposes disclosure, and all reasons supporting its contention that the information should not be disclosed. The submitter's objection must contain a certification by the submitter, or an officer or authorized representative of the submitter, that the grounds and reasons presented are true and correct to the best of the submitter's knowledge. The submitter's objection may itself be subject to disclosure under the FOIA.
(g) Notice of Intent to Disclose Information.
FHFA will consider carefully all grounds and reasons provided by a submitter objecting to disclosure. If FHFA decides to disclose confidential commercial information over the objection of the submitter, it will provide to the submitter, at least ten (10) days before the date of disclosure, written notice containing—
(h) Notice to Requester.
FHFA will give a requester whose request encompasses confidential commercial information the following notices—
(1)
At the time a Predisclosure Notification is provided to the submitter, written notice that the request encompasses confidential commercial information that may be exempt from disclosure under 5 U.S.C. 552(b)(4) and section 1202.4(a)(4) and that the submitter of the information has been given the opportunity to comment on the proposed disclosure of the information; and
(2)
At the time a Notice of Intent to Disclose is provided to the submitter, a copy of the Notice of Intent to Disclose, at least days before the specified disclosure date.
(i) Notice of FOIA Lawsuit.
FHFA will promptly notify the submitter whenever a requester files suit seeking to compel disclosure of the submitter's confidential commercial information.