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

   Any person desiring to inspect Commission records that are not listed in
   § 0.453  or  § 0.455  shall  file  a  request for inspection meeting the
   requirements of this section. The FOIA Public Liaison is available to assist
   persons seeking records under this section. See § 0.441(a).

   (a)(1) Records include:

   (i)  Any  information  that  would  be an agency record subject to the
   requirements  of the Freedom of Information Act when maintained by the
   Commission in any format, including an electronic format; and

   (ii)  Any information maintained for the Commission by an entity under
   Government contract, for purposes of records management.

   (2) The records in question must be reasonably described by the person
   requesting them, so as to permit their location by staff personnel with a
   reasonable amount of effort. Whenever possible, a request should include
   specific information about each record sought, such as the title or name,
   author, recipient, and subject matter of the record. Requests should also
   specify the date or time period for the records sought. The custodian of
   records sought may contact the requester to obtain further information about
   the records sought to assist in locating them.

   (3) The person requesting records under this section may specify the form or
   format of the records to be produced provided that the records may be made
   readily reproducible in the requested form or format.

   (b)(1) Requests shall be captioned “Freedom of Information Act Request,”
   shall be dated, shall list the telephone number (if any), street address,
   and e-mail address (if any) of the person making the request, and should
   reasonably describe, for each document requested (see § 0.461(a)(1)), all
   information known to the person making the request that 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 or a request for waiver or
   reduction of fees if the requester is eligible (see § 0.470(e)). By filing a
   FOIA request, the requester agrees to pay all applicable fees charged under
   § 0.467, unless the person making the request seeks a waiver of fees (see
   § 0.470(e)), in which case the Commission will rule on the waiver request
   before proceeding with the search.

   (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 or she determines that the materials in question may
   lawfully be withheld from inspection.

   (d)(1) Requests shall be

   (i) Delivered or mailed to the Managing Director, FCC, 445—12th Street, SW.,
   Room 1-A836, Washington, DC 20554;

   (ii) Sent by e-mail to foia@fcc.gov;

   (iii)     Filed     electronically     though    the    Internet    at
   http://www.fcc.gov/foia/#reqform; or

   (iv) Sent by facsimile to (202) 418-2826 or (202) 418-0521. If the request
   is filed by mail or facsimile, an original and two copies of the request
   shall be submitted. If the request is enclosed in an envelope, the envelope
   shall be marked, “Freedom of Information Act Request.”

   (2) For purposes of this section, the custodian of the records is the Chief
   of the Bureau or Office where the records are located. The Chief of the
   Bureau  or Office may designate an appropriate person to act on a FOIA
   request.

   (3) If the request is for materials submitted to the Commission by third
   parties and not open to routine public inspection under § 0.457(d), § 0.459,
   or another Commission rule or order, or if a request for confidentiality is
   pending pursuant to § 0.459, or if the custodian of records has reason to
   believe  that  the  information  may  contain  confidential commercial
   information, one copy of the request will be provided by the custodian of
   the records (see § 0.461(e)) to the person who originally submitted the
   materials  to the Commission. If there are many persons who originally
   submitted the records and are entitled to notice under this paragraph, the
   custodian of records may use a public notice to notify the submitters of the
   request  for inspection. The submitter or submitters will be given ten
   calendar  days  to respond to the FOIA request. See § 0.459(d)(1). If a
   submitter has any objection to disclosure, he or she is required to submit a
   detailed  written statement specifying all grounds for withholding any
   portion of the information (see § 0.459). This response shall be served on
   the party seeking to inspect the records. The requester may submit a reply
   within ten calendar days unless a different period is specified by the
   custodian of records. The reply shall be served on all parties that filed a
   response. In the event that a submitter fails to respond within the time
   specified,  the  submitter  will be considered to have no objection to
   disclosure of the information.

   Note to paragraph (d)(3): Under the ex parte rules, § 1.1206(a)(7) of this
   chapter, a proceeding involving a FOIA request is a permit-but-disclose
   proceeding, but is subject to the special service rules in this paragraph.
   We also note that while the FOIA request itself is a permit-but-disclose
   proceeding,  a  pleading  in  a  FOIA proceeding may also constitute a
   presentation  in another proceeding if it addresses the merits of that
   proceeding.

   (e)(1) When the request is received by the Managing Director, it will be
   assigned to the Freedom of Information Act (FOIA) Control Office, where it
   will  be date-stamped and assigned to the appropriate custodian of the
   records. A FOIA request is then considered properly received. This will
   occur no later than ten calendar days after the request is first received by
   the agency.

   (2)(i) Except for the purpose of making a determination regarding expedited
   processing under paragraph (h) of this section, the time for processing a
   request for inspection of records will be tolled

   (A) While the custodian of records seeks reasonable clarification of the
   request;

   (B)  Until  clarification  with  the requester of issues regarding fee
   assessment occurs, including:

   (1) While there is an unresolved fee waiver issue pending under § 0.470(e),
   unless the requester has provided a written statement agreeing to pay some
   or all of the fees pending the outcome of the waiver question;

   (2) Following the denial of a fee waiver, unless the requester had provided
   a written statement agreeing to pay the fees if the fee waiver was denied;

   (3) Where advance payment is required pursuant to § 0.469 and has not been
   made.

   (ii) Only one Commission request for information shall be deemed to toll the
   time  for  processing  a  request  for  inspection  of  records  under
   § 0.461(e)(2)(i)(A). Such request must be made no later than ten calendar
   days after a request is properly received by the custodian of records under
   § 0.461(e)(1).

   (3) The FOIA Control Office will send an acknowledgement to the requester
   notifying the requester of the control number assigned to the request, the
   due date of the response, and the telephone contact number (202-418-0440) to
   be used by the requester to obtain the status of the request. Requesters may
   also obtain the status of an FOIA request via e-mail at foia@fcc.gov.

   (4) Multiple FOIA requests by the same or different FOIA requesters may be
   consolidated for disposition. See also § 0.470(b)(2).

   (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)(i) If records in the possession of the Commission 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 for referral.

   (ii) If it is determined that the FOIA request seeks only records of another
   agency or department, the FOIA requester will be so informed by the FOIA
   Control Officer and will be directed to the correct agency or department.

   (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 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 from
   inspection,  that  part will be deleted and the remainder will be made
   available for inspection. Records disclosed in part shall be marked or
   annotated to show the amount of information deleted unless doing so would
   harm an interest protected by an applicable exemption. The location of the
   information deleted and the exemption under which the deletion is made also
   shall be indicated on the record, if technically feasible.

   (6) In locating and recovering records responsive to an FOIA request, only
   those records within the Commission's possession and control as of the date
   of its receipt of the request shall be considered.

   (g)(1) The custodian of the records will make every effort to act on the
   request within twenty business days after it is received and date-stamped by
   the FOIA Control Office. However, if a request for clarification has been
   made under § 0.461(e)(2)(i)(A) or an issue is outstanding regarding the
   payment  of  fees  for  processing  the  FOIA request is pending under
   § 0.461(e)(2)(i)(B), the counting of time will start upon resolution of these
   requests. If it is not possible to locate the records and to determine
   whether they should be made available for inspection within twenty business
   days, the custodian may, in any of the following circumstances, extend the
   time for action by up to ten business days:

   (i) 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.

   (ii) 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

   (iii) 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 having substantial subject matter interest
   therein.

   (2) The custodian of the records will notify the requester in writing of any
   extension of time exercised pursuant to paragraph (g) of this section. The
   custodian of the records may also call the requester to extend the time
   provided  a  subsequent written confirmation is provided. If it is not
   possible  to  locate the records and make the determination within the
   extended period, the person or persons who made the request will be provided
   an opportunity to limit the scope of the request so that it may be processed
   within the extended time limit, or an opportunity to arrange an alternative
   time frame for processing the request or a modified request, and asked to
   consent to an extension or further extension. If the requester agrees to an
   extension, the custodian of the records will confirm the agreement in a
   letter or e-mail specifying the length of the agreed-upon extension. If he
   or she does not agree to an extension, the request will be denied, on the
   grounds that the custodian has not been able to locate the records and/or to
   make  the determination within the period for a 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.
   Records will be made available with the written notice of action or as soon
   thereafter as is feasible.

   (3) If the custodian of the records grants a request for inspection of
   records submitted to the Commission in confidence under § 0.457(d), § 0.459,
   or some other Commission rule or order, the custodian of the records will
   give the submitter written notice of the decision and of the submitter's
   right to seek review pursuant to § 0.461(i).

   (h)(1) Requesters who seek expedited processing of FOIA requests shall
   submit  such requests, along with their FOIA requests, to the Managing
   Director,  as described in § 0.461(d). If the request is enclosed in an
   envelope,   the  envelope  shall  be  marked  “Request  for  Expedited
   Proceeding—FOIA Request.” An original and two copies of the request for
   expedition shall be submitted, but only one copy is necessary if submitted
   by e-mail or by the Internet. When the request is received by the Managing
   Director, it, and the accompanying FOIA request, will be assigned to the
   FOIA Control Office, where it will be date-stamped and assigned to the
   custodian of records.

   (2) Expedited processing shall be granted to a requester demonstrating a
   compelling need that is certified by the requester to be true and correct to
   the best of his or her knowledge and belief.

   (3) For purposes of this section, compelling need means—

   (i) That failure to obtain requested records on an expedited basis could
   reasonably be expected to pose an imminent threat to the life or physical
   safety of an individual; or

   (ii)  With  respect to a request made by a person primarily engaged in
   disseminating  information,  there  is an urgency to inform the public
   concerning actual or alleged Federal Government activity.

   (4)(i) Notice of the determination whether to grant expedited processing
   shall be provided to the requester by the custodian of records within ten
   calendar days after receipt of the request by the FOIA Control Office. Once
   the determination has been made to grant expedited processing, the custodian
   shall process the FOIA request as soon as practicable.

   (ii) If a request for expedited processing is denied, the person seeking
   expedited processing may file an application for review within five business
   days after the date of the written denial. The application for review and
   the envelope containing it (if any) shall be captioned “Review of FOIA
   Expedited Proceeding Request.” The application for review shall be delivered
   or  mailed to the General Counsel. (For general procedures relating to
   applications for review, see § 1.115 of this chapter.) The Commission shall
   act  expeditiously on the application for review, and shall notify the
   custodian  of  records and the requester of the disposition of such an
   application for review.

   (i)(1) If a request for inspection of records submitted to the Commission in
   confidence under § 0.457(d), § 0.459, or another Commission rule or order is
   granted in whole or in part, an application for review may be filed by the
   person who submitted the records to the Commission, by a third party owner
   of  the records or by a person with a personal privacy interest in the
   records, or by the person who filed the request for inspection of records
   within the ten business 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 filed within ten business 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 and any
   other  parties to the proceeding. The person who filed the request for
   inspection of records may respond to the application for review within ten
   business days after it is filed.

   (2) The first day to be counted in computing the time period for filing the
   application for review is the day after the date of the written ruling. If
   an application for review is not filed within this period, the records will
   be produced for inspection.

   (3)  If  an  application  for  review is denied, the person filing the
   application for review will be notified in writing and advised of his or her
   rights.

   (4) If an application for review filed by the person who submitted, owns, or
   has a personal privacy interest in the records to the Commission is denied,
   or if the records are made available on review which were not initially made
   available, the person will be afforded ten business days from the date of
   the written ruling in which to move for a judicial stay of the Commission's
   action. The first day to be counted in computing the time period for seeking
   a judicial stay is the day after the date of the written ruling. If a motion
   for stay is not made within this period, the records will be produced for
   inspection.

   (j) Except as provided in paragraph (i) of this section, an application for
   review of an initial action on a request for inspection of records, a fee
   determination (see § 0.467 through § 0.470), or a fee reduction or waiver
   decision  (see § 0.470(e)) may be filed only by the person who made the
   request. The application shall be filed within 30 calendar days after the
   date of the written ruling by the custodian of records. The application for
   review and the envelope (if any) shall be captioned, “Review of Freedom of
   Information Action.” The application shall be delivered or mailed to the
   General Counsel. If the proceeding involves records subject to confidential
   treatment under § 0.457 or § 0.459, or involves a person with an interest as
   described in § 0.461(i), the application for review shall be served on such
   persons. That person may file a response within ten business days after the
   application for review is filed. If the records are made available for
   review, the person who submitted them to the Commission will be afforded ten
   business days after the date of the written ruling to seek a judicial stay.
   See paragraph (i) of this section. The first day to be counted in computing
   the time period for filing the application for review or seeking a judicial
   stay is the day after the date of the written ruling.

   Note to paragraphs (i) and (j): The General Counsel may review applications
   for review with the custodian of records and attempt to informally resolve
   outstanding issues with the consent of the requester. For general procedures
   relating to applications for review, see § 1.115 of this chapter.

   (k)(1)(i) The Commission will make every effort to act on an application for
   review of an action on a request for inspection of records within twenty
   business days after it is filed. In the following circumstances and to the
   extent time has not been extended under paragraphs (g)(1)(i), (ii), or (iii)
   of § 0.461(g) of this section, the Commission may extend the time for acting
   on the application for review up to ten business 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 ten business days.):

   (A) 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;

   (B) 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

   (C) 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 having substantial subject matter interest therein.

   (ii) If these circumstances are not present, the person who made the request
   may  be  asked to consent to an extension or further extension. If the
   requester or person who made the request agrees to an extension, the General
   Counsel will confirm the agreement in a letter specifying the length of the
   agreed-upon extension. If the requestor or person who made the request does
   not agree to an extension, the Commission 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 a complaint in an appropriate
   United States district court.

   (2) The Commission may at its discretion or upon request consolidate for
   consideration related applications for review filed under § 0.461(i) or
   § 0.461(j).

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

   (2) If a request for inspection of records becomes the subject of an action
   for  judicial  review before the custodian of records has acted on the
   request, or before the Commission has acted on an application for review,
   the  Commission may continue to consider the request for production of
   records.

   (m) Staff orders and letters ruling on requests for inspection are signed by
   the official (or officials) who give final approval of their contents.
   Decisions of the Commission ruling on applications for review will set forth
   the names of the Commissioners participating in the decision.

   (n) Records shall be inspected within seven 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.

   [ 74 FR 14078 , Mar. 30, 2009, as amended at  76 FR 24389 , May 2, 2011]

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