32 C.F.R. Subpart D—Additional Administrative Matters
Title 32 - National Defense
(a) In general. Business information obtained by NACIC by a submitter shall not be disclosed pursuant to a Freedom of Information Act request except in accordance with this section. For purposes of this section, the following definitions apply: Business information means commercial or financial information in which a legal entity has a recognized property interest; Confidential commercial information means such business information provided to the United States Government by a submitter which is reasonably believed to contain information exempt from release under exemption (b)(4) of the Freedom of Information Act, 5 U.S.C. 552, because disclosure could reasonably be expected to cause substantial competitive harm; Submitter means any person or entity who provides confidential commercial information to the United States Government; it includes, but is not limited to, corporations, businesses (however organized), state governments, and foreign governments; and (b) Designation of confidential commercial information. A submitter of business information will use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers to be confidential commercial information and hence protected from required disclosure pursuant to exemption (b)(4). Such designations shall expire ten (10) years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period. (c) Process in event of FOIA request—(1) Notice to submitters. NACIC shall provide a submitter with prompt written notice of receipt of a Freedom of Information Act request encompassing business information whenever: (i) The submitter has in good faith designated the information as confidential commercial information, or (ii) NACIC believes that disclosure of the information could reasonably be expected to cause substantial competitive harm, and (iii) The information was submitted within the last ten (10) years unless the submitter requested and provided acceptable justification for a specific notice period of greater duration. (2) Form of notice. This notice shall either describe the exact nature of the confidential commercial information at issue or provide copies of the responsive records containing such information. (3) Response by submitter. (i) Within seven (7) days of the above notice, all claims of confidentiality by a submitter must be supported by a detailed statement of any objection to disclosure. Such statement shall: (A) Specify that the information has not been disclosed to the public; (B) Explain why the information is contended to be a trade secret or confidential commercial information; (C) Explain how the information is capable of competitive damage if disclosed; (D) State that the submitter will provide NACIC and the Department of Justice with such litigation defense as requested; and (E) Be certified by an officer authorized to legally bind the corporation or similar entity. (ii) It should be noted that information provided by a submitter pursuant to this provision may itself be subject to disclosure under the FOIA. (4) Decision and notice of intent to disclose. (i) NACIC shall consider carefully a submitter's objections and specific grounds for nondisclosure prior to its final determination. If NACIC decides to disclose a document over the objection of a submitter, NACIC shall provide the submitter a written notice which shall include: (A) A statement of the reasons for which the submitter's disclosure objections were not sustained; (B) A description of the information to be disclosed; and (C) A specified disclosure date which is seven (7) days after the date of the instant notice. (ii) When notice is given to a submitter under this section, NACIC shall also notify the requester and, if NACIC notifies a submitter that it intends to disclose information, then the requester shall be notified also and given the proposed date for disclosure. (5) Notice of FOIA lawsuit. If a requester initiates a civil action seeking to compel disclosure of information asserted to be within the scope of this section, NACIC shall promptly notify the submitter. The submitter, as specified above, shall provide such litigation assistance as required by NACIC and the Department of Justice. (6) Exceptions to notice requirement. The notice requirements of this section shall not apply if NACIC determines that: (i) The information should not be disclosed in light of other FOIA exemptions; (ii) The information has been published lawfully or has been officially made available to the public; (iii) The disclosure of the information is otherwise required by law or federal regulation; or (iv) The designation made by the submitter under this section appears frivolous, except that, in such a case, NACIC will, within a reasonable time prior to the specified disclosure date, give the submitter written notice of any final decision to disclose the information. [64 FR 49879, Sept. 14, 1999; 64 FR 53769, Oct. 4, 1999] (a) In general. Personal information concerning individuals other than the requester shall not be disclosed under the Freedom of Information Act if the proposed release would constitute a clearly unwarranted invasion of personal privacy. See 5 U.S.C. 552(b)(6). For purposes of this section, the following definitions apply: Personal information means any information about an individual that is not a matter of public record, or easily discernible to the public, or protected from disclosure because of the implications that arise from Government possession of such information. Public interest means the public interest in understanding the operations and activities of the United States Government and not simply any matter which might be of general interest to the requester or members of the public. (b) Determination to be made. In making the required determination under this section and pursuant to exemption (b)(6) of the FOIA, NACIC will balance the privacy interests that would be compromised by disclosure against the public interest in release of the requested information. (c) Otherwise. A requester seeking information on a third person is encouraged to provide a signed affidavit or declaration from the third person waiving all or some of their privacy rights. However, all such waivers shall be narrowly construed and the Coordinator, in the exercise of his discretion and administrative authority, may seek clarification from the third party prior to any or all releases. (a) In general. NACIC components shall devote such personnel and other resources to the responsibilities imposed by the Freedom of Information Act as may be appropriate and reasonable considering: (1) The totality of resources available to the component, (2) The business demands imposed on the component by the Director of NACIC or otherwise by law, (3) The information review and release demands imposed by the Congress or other governmental authority, and (4) The rights of all members of the public under the various information review and disclosure laws. (b) Discharge of FOIA responsibilities. Components shall exercise due diligence in their responsibilities under the FOIA and must allocate a reasonable level of resources to requests under the Act in a strictly “first-in, first-out” basis and utilizing two or more processing queues to ensure that smaller as well as larger (i.e., project) cases receive equitable attention. The Information and Privacy Coordinator is responsible for management of the NACIC-wide program defined by this part and for establishing priorities for cases consistent with established law. The Director, NACIC shall provide policy and resource direction as necessary and render decisions on administrative appeals. (c) Requests for extension of time. When NACIC is unable to meet the statutory time requirements of the FOIA, it will inform the requester that the request cannot be processed within the statutory time limits, provide an opportunity for the requester to limit the scope of the request so that it can be processed within the statutory time limits, or arrange with the requester an agreed upon time frame for processing the request, or determine that exceptional circumstances mandate additional time in accordance with the definition of “exceptional circumstances” per section 552(a)(6)(C) of the Freedom of Information Act, as amended, effective October 2, 1997. In such instances NACIC will, however, inform a requester of his or her right to decline our request and proceed with an administrative appeal or judicial review as appropriate. (a) In general. All requests will be handled in the order received on a strictly “first-in, first-out” basis. Exceptions to this section will only be made in accordance with the following procedures. In all circumstances, however, and consistent with established judicial precedent, requests more properly the scope of requests under the Federal Rules of Civil or Criminal Procedure (or other federal, state, or foreign judicial or quasi-judicial rules) will not be granted expedited processing under this or related (e.g., Privacy Act) provisions unless expressly ordered by a federal court of competent jurisdiction. (b) Procedure. Requests for expedited processing will be approved only when a compelling need is established to the satisfaction of NACIC. A requester may make such a request with a certification of “compelling need” and, within ten (10) days of receipt, NACIC will decide whether to grant expedited processing and will notify the requester of its decision. The certification shall set forth with specificity the relevant facts upon which the requester relies and it appears to NACIC that substantive records relevant to the stated needs may exist and be deemed releasable. A “compelling need” is deemed to exist: (1) When the matter involves an imminent threat to the life or physical safety of an individual; or (2) When the request is made by a person primarily engaged in disseminating information and the information is relevant to a subject of public urgency concerning an actual or alleged Federal government activity.
Title 32: National Defense
PART 1800—PUBLIC ACCESS TO NACIC RECORDS UNDER THE FREEDOM OF INFORMATION ACT (FOIA)
Subpart D—Additional Administrative Matters
§ 1800.31 Procedures for business information.
§ 1800.32 Procedures for information concerning other persons.
§ 1800.33 Allocation of resources; agreed extensions of time.
§ 1800.34 Requests for expedited processing.
