Subpart B
Confidential commercial information is disclosed under the FOIA only in accordance with this section and Executive Order 12,600. A component must follow the procedures in 70.26 before releasing business information that a submitter claims is protected under Exemption 4.
A submitter should use good-faith efforts to mark the portions of its submission that it considers protected under Exemption 4 either at the time of submission or within a reasonable time afterward. This means clearly identifying (for example, with labels or markings) the specific parts of the record that the submitter claims are confidential as described in 70.26(b).
Designations expire ten years after the date of submission unless the submitter requests and justifies a longer period. The submitter must provide justification for any extension beyond the ten-year expiration as stated in 70.26(b).
A submitter will receive prompt written notice whenever required under paragraph (d), and the notice must describe the confidential commercial information requested or include copies of the requested records or portions containing that information. The component should provide that notice to give the submitter an opportunity to object, as explained in 70.26(c).
Notice is required whenever the requested information either (1) was designated in good faith by the submitter as protected under Exemption 4, or (2) the component has reason to believe the requested information may be protected under Exemption 4 but has not yet made a final determination. See 70.26(d) and the specific subparts 70.26(d)(1) and 70.26(d)(2).
If a submitter objects to disclosure, it must submit a detailed written statement showing why the information is a trade secret or commercial or financial information that is privileged or confidential. The statement should explain the legal or factual basis for withholding as required by 70.26(e).
A submitter is allowed a reasonable time to respond, with the component taking into account the amount of material to review and any FOIA deadlines or deadlines agreed with the requester. The timing standard is described in 70.26(c) and the component’s consideration of objections is described in 70.26(f).
The notice must state why the submitter's objections were not sustained, describe the confidential commercial information to be disclosed, and specify a disclosure date that is a reasonable time after the notice. These requirements are set out in 70.26(f)(1), 70.26(f)(2), and 70.26(f)(3).
The notice requirements do not apply if (1) the component determines the information should not be disclosed; (2) the information has lawfully been published or officially made public; (3) disclosure is required by statute or a regulation consistent with Executive Order 12,600; or (4) the submitter’s designation appears obviously frivolous or unsupportable (with some additional notice protections). See 70.26(g) and the numbered exceptions in 70.26(g)(1), 70.26(g)(2), 70.26(g)(3), and 70.26(g)(4).
If the designation appears obviously frivolous or unsupportable, the normal notice rules do not apply; however, the component must give the submitter written notice of any final decision to disclose the information within a reasonable time before the specified disclosure date. This special handling is described in 70.26(g)(4).
When a requester files suit to compel disclosure, the component must promptly notify the submitter. This litigation-notice requirement is stated in 70.26(h).
The component must notify requesters whenever it provides a submitter with notice and opportunity to object under paragraphs (d) and (e), whenever it notifies a submitter of an intent to disclose under paragraph (f), and whenever a submitter files suit to prevent disclosure. These reciprocal notice requirements are in 70.26(i).
The component must address notices to the submitter (or legal successor) at the address shown on the records or the last known address. If the notice is returned, the component must make a reasonable effort to locate the submitter or its legal successor. See 70.26(j).
If a submitter fails to respond within the time specified, the submitter is considered to have no objection to disclosure. This consequence is stated in 70.26(e).
Yes — information provided by a submitter in its written objection may itself be subject to disclosure under the FOIA. That possibility is explicitly noted in 70.26(e).
A component will consider a submitter's timely objections and the specific grounds stated for non-disclosure when deciding whether to disclose confidential commercial information. The component’s obligation to consider objections is stated in 70.26(f).
If not marked at the time of submission, a submitter should make good-faith efforts to designate confidential portions within a reasonable time after submission. The regulation permits designation either at submission or at a reasonable time thereafter, as explained in 70.26(b).
Notice is triggered when the component has reason to believe the requested information may be protected under Exemption 4 even if it has not yet made a final determination; in that situation the component will give the submitter prompt written notice so the submitter can object, per 70.26(d)(2).
The specified disclosure date is a reasonable date after the notice on which the component intends to disclose the information. The notice must include that reasonable future disclosure date as required by 70.26(f)(3).