12 C.F.R. Subpart B—Availability of Information Under the Freedom of Information Act
Title 12 - Banks and Banking
(a) Purpose. This subpart sets forth the standards, policies, and procedures that the OCC applies in administering the Freedom of Information Act (FOIA) (5 U.S.C. 552) to facilitate the OCC's interaction with the banking industry and the public. (b) Scope. (1) This subpart describes the information that the FOIA requires the OCC to disclose to the public (§4.12), and the three methods by which the OCC discloses that information under the FOIA (§§4.13, 4.14, and 4.15). (2) This subpart also sets forth predisclosure notice procedures that the OCC follows, in accordance with Executive Order 12600 (3 CFR, 1987 Comp., p. 235), when the OCC receives a request under §4.15 for disclosure of records that arguably are exempt from disclosure as confidential commercial information (§4.16). Finally, this subpart describes the fees that the OCC assesses for the services it renders in providing information under the FOIA (§4.17). (3) This subpart does not apply to a request for records pursuant to the Privacy Act (5 U.S.C. 552a). A person requesting records from the OCC pursuant to the Privacy Act should refer to 31 CFR part 1, subpart C, and appendix J of subpart C. (a) General. In accordance with the FOIA, OCC records are available to the public, except the exempt records described in paragraph (b) of this section. (b) Exemptions from availability. The following records, or portions thereof, are exempt from disclosure under the FOIA: (1) A record that is specifically authorized, under criteria established by an Executive order, to be kept secret in the interest of national defense or foreign policy, and that is properly classified pursuant to that Executive order; (2) A record relating solely to the internal personnel rules and practices of an agency; (3) A record specifically exempted from disclosure by statute (other than 5 U.S.C. 552b), provided that the statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, establishes particular criteria for withholding, or refers to particular types of matters to be withheld; (4) A record that is privileged or contains trade secrets, or commercial or financial information, furnished in confidence, that relates to the business, personal, or financial affairs of any person (see §4.16 for notice requirements regarding disclosure of confidential commercial information); (5) An intra-agency or interagency memorandum or letter not routinely available by law to a private party in litigation, including memoranda, reports, and other documents prepared by OCC employees, and records of deliberations and discussions at meetings of OCC employees; (6) A personnel, medical, or similar record, including a financial record, or any portion thereof, where disclosure would constitute a clearly unwarranted invasion of personal privacy; (7) A record or information compiled for law enforcement purposes, but only to the extent that the OCC reasonably believes that producing the record or information may: (i) Interfere with enforcement proceedings; (ii) Deprive a person of the right to a fair trial or an impartial adjudication; (iii) Constitute an unwarranted invasion of personal privacy; (iv) Disclose the identity of a confidential source, including a State, local, or foreign agency or authority, or any private institution that furnished information on a confidential basis; (v) Disclose information furnished by a confidential source, 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; (vi) Disclose techniques and procedures for law enforcement investigations or prosecutions, or disclose guidelines for law enforcement investigations or prosecutions if such disclosure reasonably could be expected to risk circumvention of the law; or (vii) Endanger the life or physical safety of any individual; (8) A record contained in or related to an examination, operating, or condition report prepared by, on behalf of, or for the use of the OCC or any other agency responsible for regulating or supervising financial institutions; and (9) A record containing or relating to geological and geophysical information and data, including maps, concerning wells. (c) Discretionary disclosure of exempt records. Even if a record is exempt under paragraph (b) of this section, the OCC may elect, on a case-by-case basis, not to apply the exemption to the requested record. The OCC's election not to apply an exemption to a requested record has no precedential significance as to the application or nonapplication of the exemption to any other requested record, regardless of who requests the record or when the OCC receives the request. The OCC will provide predisclosure notice to submitters of confidential commercial information in accordance with §4.16. (d) Segregability. The OCC provides copies of reasonably segregable portions of a record to any person properly requesting the record pursuant to §4.15, after redacting any portion that is exempt under paragraph (b) of this section. The OCC publishes certain documents in the (a) Proposed and final rules; and (b) Certain notices and policy statements of concern to the general public. (a) Available information. Subject to the exemptions listed in §4.12(b), the OCC makes the following information readily available for public inspection and copying: (1) Any final order, agreement, or other enforceable document issued in the adjudication of an OCC enforcement case, including a final order published pursuant to 12 U.S.C. 1818(u); (2) Any final opinion issued in the adjudication of an OCC enforcement case; (3) Any statement of general policy or interpretation of general applicability not published in the (4) Any administrative staff manual or instruction to staff that may affect a member of the public as such; (5) A current index identifying the information referred to in paragraphs (a)(1) through (a)(4) of this section issued, adopted, or promulgated after July 4, 1967; (6) A list of available OCC publications; (7) A list of forms available from the OCC, and specific forms and instructions;1 1 Some forms and instructions that national banks use, such as the Consolidated Report of Condition and Income (FFIEC 031–034), are not available from the OCC. The OCC will provide information on where persons may obtain these forms and instructions upon request. (8) Any public Community Reinvestment Act performance evaluation; (9) Any public securities-related filing required under part 11 or 16 of this chapter; (10) Any public comment letter regarding a proposed rule; and (11) The public file (as defined in 12 CFR 5.9) with respect to a pending application described in part 5 of this chapter. (b) Redaction of identifying details. To the extent necessary to prevent an invasion of personal privacy, the OCC may redact identifying details from any information described in paragraph (a) of this section before making the information available for public inspection and copying. (c) Addresses. The information described in paragraphs (a)(1) through (a)(10) of this section is available from the Disclosure Officer, Communications Division, Office of the Comptroller of the Currency, 250 E Street, SW, Washington, DC 20219. The information described in paragraph (a)(11) of this section is available from the Licensing Manager at the appropriate district office at the address listed in §4.5(a), or in the case of banks supervised by the Multinational Banking Department, from the Licensing Manager, Multinational Banking, Office of the Comptroller of the Currency, 250 E Street, SW, Washington, DC 20219. (a) Available information. Subject to the exemptions described in §4.12(b), any OCC record is available to any person upon specific request in accordance with this section. (b) Where to submit request or appeal—(1) General. Except as provided in paragraph (b)(2) of this section, a person requesting a record or filing an administrative appeal under this section must submit the request or appeal to the Disclosure Officer, Communications Division, Office of the Comptroller of the Currency, 250 E Street, SW, Washington, DC 20219. (2) Exceptions—(i) Records at the Federal Deposit Insurance Corporation. A person requesting any of the following records, other than blank forms (see §4.14(a)(7)), must submit the request to the Disclosure Group, Federal Deposit Insurance Corporation, 550–17th Street, NW, Washington, DC 20429, (800) 945–2186: (A) Consolidated Report of Condition and Income (FFIEC 031, 032, 033, 034); (B) Annual Report of Trust Assets (FFIEC 001); (C) Uniform Bank Performance Report; and (D) Special Report. (ii) Records of another agency. When the OCC receives a request for records in its possession that another Federal agency either generated or provided to the OCC, the OCC promptly informs the requester and immediately forwards the request to that agency for processing in accordance with that agency's regulations. (c) Request for records—(1) Content of request for records. A person requesting records under this section must state, in writing: (i) The requester's full name, address, and telephone number; (ii) A reasonable description of the records sought (including sufficient detail to enable OCC employees who are familiar with the subject matter of the request to locate the records with a reasonable amount of effort); (iii) A statement agreeing to pay all fees that the OCC assesses under §4.17; (iv) A description of how the requester intends to use the records, if a requester seeks placement in a lower fee category (i.e., a fee category other than “commercial use requester”) under §4.17; and (v) Whether the requester prefers the OCC to deliver a copy of the records or to allow the requester to inspect the records at the appropriate OCC office. (2) Initial determination. The OCC's Director of Communications or that person's delegate initially determines whether to grant a request for OCC records. (3) If request is granted. If the OCC grants a request for records, in whole or in part, the OCC promptly discloses the records in one of two ways, depending on the requester's stated preference: (i) The OCC may deliver a copy of the records to the requester. If the OCC delivers a copy of the records to the requester, the OCC duplicates the records at reasonable and proper times that do not interfere with their use by the OCC or preclude other persons from making inspections; or (ii) The OCC may allow the requester to inspect the records at reasonable and proper times that do not interfere with their use by the OCC or preclude other persons from making inspections. If the OCC allows the requester to inspect the records, the OCC may place a reasonable limit on the number of records that a person may inspect during a day. (4) If request is denied. If the OCC denies a request for records, in whole or in part, the OCC notifies the requester by mail. The notification is dated and contains a brief statement of the reasons for the denial, sets forth the name and title or position of the official making the decision, and advises the requester of the right to an administrative appeal in accordance with paragraph (d) of this section. (d) Administrative appeal of a denial—(1) Procedure. A requester must submit an administrative appeal of denial of a request for records in writing within 35 days of the date of the initial determination. The appeal must include the circumstances and arguments supporting disclosure of the requested records. (2) Appellate determination. The Comptroller or the Comptroller's delegate determines whether to grant an appeal of a denial of a request for OCC records. (3) If appeal is granted. If the OCC grants an appeal, in whole or in part, the OCC treats the request as if it were originally granted, in whole or in part, by the OCC in accordance with paragraph (c)(3) of this section. (4) If appeal is denied. If the OCC denies an appeal, in whole or in part, the OCC notifies the requester by mail. The notification contains a brief statement of the reasons for the denial, sets forth the name and title or position of the official making the decision, and advises the requester of the right to judicial review of the denial under 5 U.S.C. 552(a)(4)(B). (e) Judicial review—(1) General. If the OCC denies an appeal pursuant to paragraph (d) of this section, or if the OCC fails to make a determination within the time limits specified in paragraph (f) of this section, the requester may commence an action to compel disclosure of records, pursuant to 5 U.S.C. 552(a)(4)(B), in the United States district court in: (i) The district where the requester resides; (ii) The district where the requester's principal place of business is located; (iii) The district where the records are located; or (iv) The District of Columbia. (2) Service of process. In commencing an action described in paragraph (e)(1) of this section, the requester, in addition to complying with the Federal Rules of Civil Procedure (28 U.S.C. appendix) for service upon the United States or agencies thereof, must serve process on the Chief Counsel or the Chief Counsel's delegate at the following location: Office of the Comptroller of the Currency, 250 E Street, SW, Washington, DC 20219. (f) Time limits—(1) Request. The OCC makes an initial determination to grant or deny a request for records within 10 business days after the date of receipt of the request, as described in paragraph (g) of this section, except as stated in paragraph (f)(3) of this section. (2) Appeal. The OCC makes a determination to grant or deny an administrative appeal within 20 business days after the date of receipt of the appeal, as described in paragraph (g) of this section, except as stated in paragraph (f)(3) of this section. (3) Extension of time. The time limits set forth in paragraphs (f)(1) and (2) of this section may be extended as follows: (i) In unusual circumstances. The OCC may extend the time limits in unusual circumstances for a maximum of 10 business days. If the OCC extends the time limits, the OCC provides written notice to the person making the request or appeal, containing the reason for the extension and the date on which the OCC expects to make a determination. Unusual circumstances exist when the OCC requires additional time to: (A) Search for and collect the requested records from field facilities or other buildings that are separate from the office processing the request or appeal; (B) Search for, collect, and appropriately examine a voluminous amount of requested records; (C) Consult with another agency that has a substantial interest in the determination of the request; or (D) Allow two or more components of the OCC that have substantial interest in the determination of the request to consult with each other; (ii) By agreement. A requester may agree to extend the time limits for any amount of time; or (iii) By judicial action. If a requester commences an action pursuant to paragraph (e) of this section for failure to comply with the time limits set forth in this paragraph (f), a court with jurisdiction may, pursuant to 5 U.S.C. 552(a)(6)(C), allow the OCC additional time to complete the review of the records requested. (g) Date of receipt of request or appeal. The date of receipt of a request for records or an appeal is the date that OCC Communications Division receives a request that satisfies the requirements of paragraph (c)(1) or (d)(1) of this section, except as provided in §4.17(d). (a) Definitions. For purposes of this section, the following definitions apply: (1) Confidential commercial information means records that arguably contain material exempt from release under Exemption 4 of the FOIA (5 U.S.C. 552(b)(4); §4.12(b)(4)), because disclosure reasonably could cause substantial competitive harm to the submitter. (2) Submitter means any person or entity that provides confidential commercial information to the OCC. This term includes corporations, State governments, foreign governments, and banks and their employees, officers, directors, and principal shareholders. (b) Notice to submitter—(1) When provided. In accordance with Executive Order 12600 (3 CFR, 1987 Comp., p. 235), when the OCC receives a request under §4.15(c) or, where appropriate, an appeal under §4.15(d) for disclosure of confidential commercial information, the OCC provides a submitter with prompt written notice of the receipt of that request (except as provided in paragraph (b)(2) of this section) in the following circumstances: (i) With respect to confidential commercial information submitted to the OCC prior to January 1, 1988, if: (A) The records are less than 10 years old and the submitter designated the information as confidential commercial information; (B) The OCC reasonably believes that disclosure of the information may cause substantial competitive harm to the submitter; or (C) The information is subject to a prior express OCC commitment of confidentiality; and (ii) With respect to confidential commercial information submitted to the OCC on or after January 1, 1988, if: (A) The submitter in good faith designated the information as confidential commercial information; (B) The OCC designated the class of information to which the requested information belongs as confidential commercial information; or (C) The OCC reasonably believes that disclosure of the information may cause substantial competitive harm to the submitter. (2) Exceptions. The OCC generally does not provide notice under paragraph (b)(1) of this section if the OCC determines that: (i) It will not disclose the information; (ii) The information already has been disclosed officially to the public; (iii) The OCC is required by law (other than 5 U.S.C. 552) to disclose the information; (iv) The OCC acquired the information in the course of a lawful investigation of a possible violation of criminal law; (v) The submitter had an opportunity to designate the requested information as confidential commercial information at the time of submission of the information or a reasonable time thereafter and did not do so, unless the OCC has substantial reason to believe that disclosure of the information would result in competitive harm; or (vi) The OCC determines that the submitter's designation under paragraph (b)(1)(ii)(A) of this section is frivolous; in such case, however, the OCC will provide the submitter with written notice of any final administrative determination to disclose the information at least 10 business days prior to the date that the OCC intends to disclose the information. (3) Content of notice. The OCC either describes in the notice the exact nature of the confidential commercial information requested or includes with the notice copies of the records or portions of records containing that information. (4) Expiration of notice period. The OCC provides notice under this paragraph (b) with respect to information that the submitter designated under paragraph (b)(1)(ii)(A) of this section only for a period of 10 years after the date of the submitter's designation, unless the submitter requests and justifies to the OCC's satisfaction a specific notice period of greater duration. (5) Certification of confidentiality. If possible, the submitter should support the claim of confidentiality with a statement or certification that the requested information is confidential commercial information that the submitter has not disclosed to the public. This statement should be prepared by an officer or authorized representative if the submitter is a corporation or other entity. (c) Notice to requester. If the OCC provides notice to a submitter under paragraph (b) of this section, the OCC notifies the person requesting confidential commercial information (requester) that it has provided notice to the submitter. The OCC also advises the requester that if there is a delay in its decision whether to grant or deny access to the information sought, the delay may be considered a denial of access to the information, and that the requester may proceed with an administrative appeal or seek judicial review. However, the requester may agree to a voluntary extension of time to allow the OCC to review the submitter's objection to disclosure (see §4.15(f)(3)(ii)). (d) Opportunity to object to disclosure. Within 10 days after receiving notice under paragraph (b) of this section, the submitter may provide the OCC with a detailed statement of objection to disclosure of the information. That statement must specify the grounds for withholding any of the information under any exemption of the FOIA. Any statement that the submitter provides under this paragraph (d) may be subject to disclosure under the FOIA. (e) Notice of intent to disclose. The OCC considers carefully a submitter's objection and specific grounds for nondisclosure prior to determining whether to disclose the requested information. If the OCC decides to disclose information over the objection of the submitter, the OCC provides to the submitter, with a copy to the requester, a written notice that includes: (1) A statement of the OCC's reasons for not sustaining the submitter's objections to disclosure; (2) A description of the information to be disclosed; (3) The anticipated disclosure date, which is not less than 10 business days after the OCC mails the written notice required under this paragraph (e); and (4) A statement that the submitter must notify the OCC immediately if the submitter intends to seek injunctive relief. (f) Notice of requester's lawsuit. Whenever the OCC receives service of process indicating that a requester has brought suit seeking to compel the OCC to disclose information covered by paragraph (b)(1) of this section, the OCC promptly notifies the submitter. (a) Definitions. For purposes of this section, the following definitions apply: (1) Actual costs means those expenditures that the OCC incurs in providing services (including searching for, reviewing, and duplicating records) in response to a request for records under §4.15. (2) Search means the process of locating a record in response to a request, including page-by-page or line-by-line identification of material within a record. The OCC may perform a search manually or by electronic means. (3) Review means the process of examining a record located in response to a request to determine which portions of that record should be released. It also includes processing a record for disclosure. (4) Duplication means the process of copying a record in response to a request. A copy may take the form of a paper copy, microform, audiovisual materials, or machine readable material (e.g., magnetic tape or disk), among others. (5) Commercial use requester means a person who seeks records for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made. (6) Educational institution requester means a person who seeks records on behalf of a public or private educational institution, including a preschool, an elementary or secondary school, an institution of undergraduate or graduate higher education, an institution of professional education, or an institution of vocational education that operates a program of scholarly research. (7) Noncommercial scientific institution requester means a person who is not a “commercial use requester,” as that term is defined in paragraph (a)(5) of this section, and who seeks records on behalf of an institution operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry. (8) Requester who is a representative of the news media means a person who seeks records for the purpose of gathering news (i.e., information about current events or of current interest to the public) on behalf of, or a free-lance journalist who reasonably expects to have his or her work product published or broadcast by, an entity organized and operated to publish or broadcast news to the public. (b) Fees—(1) General. The hourly and per page rate that the OCC generally charges requesters is set forth in the “Notice of Comptroller of the Currency Fees” (Notice) described in 12 CFR 8.8. Any interested person may request a copy of the Notice from the OCC by mail or may obtain a copy at the location described in §4.14(c). The OCC may contract with a commercial service to search for, duplicate, or disseminate records, provided that the OCC determines that the fee assessed upon a requester is no greater than if the OCC performed the tasks itself. The OCC does not contract out responsibilities that the FOIA provides that the OCC alone may discharge, such as determining the applicability of an exemption or whether to waive or reduce a fee. (2) Fee categories. The OCC assesses a fee based on the fee category in which the OCC places the requester. If the request states how the requester intends to use the requested records (see §4.15(c)(1)(iv)), the OCC may place the requester in a lower fee category; otherwise, the OCC categorizes the requester as a “commercial use requester.” If the OCC reasonably doubts the requester's stated intended use, or if that use is not clear from the request, the OCC may place the requester in the “commercial use” category or may seek additional clarification. The fee categories are as follows: (i) Commercial use requesters. The OCC assesses a fee for a requester in this category for the actual cost of search, review, and duplication. A requester in this category does not receive any free search, review, or duplication services. (ii) Educational institution requesters, noncommercial scientific institution requesters, and requesters who are representatives of the news media. The OCC assesses a fee for a requester in this category for the actual cost of duplication. A requester in this category receives 100 free pages. (iii) All other requesters. The OCC assesses a fee for a requester who does not fit into either of the above categories for the actual cost of search and duplication. A requester in this category receives 100 free pages and two hours of free search time. (3) Special services. The OCC may, in its discretion, accommodate a request for special services. The OCC may recover the actual cost of providing any special services. (4) Waiving or reducing a fee. The OCC may waive or reduce a fee under this section whenever, in its opinion, disclosure of records is in the public interest because the disclosure: (i) Is likely to contribute significantly to public understanding of the operations or activities of the government; and (ii) Is not primarily in the commercial interest of the requester. (5) Fee for unsuccessful search. The OCC may assess a fee for time spent searching for records, even if the OCC does not locate the records requested. (c) Payment of fees—(1) General. The OCC generally assesses a fee when it delivers the records in response to the request, if any. A requester must send payment within 30 calendar days of the billing date to the Communications Division, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219. (2) Fee likely to exceed $25. If the OCC estimates that a fee is likely to exceed $25, the OCC notifies the requester of the estimated fee, unless the requester has indicated in advance a willingness to pay a fee as high as the estimated fee. If so notified by the OCC, the requester may confer with OCC employees to revise the request to reflect a lower fee. (3) Fee likely to exceed $250. If the OCC estimates that a fee is likely to exceed $250, the OCC notifies the requester of the estimated fee. In this circumstance, the OCC may require, as a condition to processing the request, that the requester: (i) Provide satisfactory assurance of full payment, if the requester has a history of prompt payment; or (ii) Pay the estimated fee in full, if the requester does not have a history of prompt payment. (4) Failure to pay a fee. If the requester fails to pay a fee within 30 days of the date of the billing, the OCC may require, as a condition to processing any further request, that the requester pay any unpaid fee, plus interest (as provided in paragraph (c)(5) of this section), and any estimated fee in full for that further request. (5) Interest on unpaid fee. The OCC may assess interest charges on an unpaid fee beginning on the 31st day following the billing date. The OCC charges interest at the rate prescribed in 31 U.S.C. 3717. (d) Tolling of time limits. Under the circumstances described in paragraphs (c) (2), (3), and (4) of this section, the time limits set forth in §4.15(f) (i.e., 10 business days from the receipt of a request for records and 20 business days from the receipt of an administrative appeal, plus any permissible extension) begin only after the OCC receives a revised request under paragraph (c)(2) of this section, an assurance of payment under paragraph (c)(3)(i) of this section, or the required payments under paragraph (c)(3)(i) or (c)(4) of this section. (e) Aggregating requests. When the OCC reasonably believes that a requester or group of requesters is attempting to break a request into a series of requests for the purpose of evading the assessment of a fee, the OCC may aggregate the requests and assess a fee accordingly.
Title 12: Banks and Banking
PART 4—ORGANIZATION AND FUNCTIONS, AVAILABILITY AND RELEASE OF INFORMATION, CONTRACTING OUTREACH PROGRAM, POST-EMPLOYMENT RESTRICTIONS FOR SENIOR EXAMINERS
Subpart B—Availability of Information Under the Freedom of Information Act
§ 4.11 Purpose and scope.
§ 4.12 Information available under the FOIA.
§ 4.13 Publication in the Federal Register.
§ 4.14 Public inspection and copying.
§ 4.15 Specific requests for records.
§ 4.16 Predisclosure notice for confidential commercial information.
§ 4.17 Fees for services.
