Freedom of Information Act, 13472-13476 [2013-04479]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 78, Number 40 (Thursday, February 28, 2013)]
[Rules and Regulations]
[Pages 13472-13476]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04479]


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FEDERAL TRADE COMMISSION

16 CFR Part 4


Freedom of Information Act

AGENCY: Federal Trade Commission (FTC).

ACTION: Final rule.

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SUMMARY: The Federal Trade Commission is revising its Rules of Practice 
governing access to agency records. The Commission is adding one new 
category of public record materials; inserting additional contact 
information for the filing of initial Freedom of Information Act 
(``FOIA'') requests; clarifying agency procedures for acknowledging the 
receipt of a request, the proper filing of a request, and the ``cut-
off'' date for searches; and allowing an extension in unusual 
circumstances of the time period for a FOIA requester to file an 
administrative appeal.

DATES: These amendments are effective February 28, 2013.

FOR FURTHER INFORMATION CONTACT: G. Richard Gold, Attorney, Office of 
the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue 
NW., Washington, DC 20580, (202) 326-3355.

SUPPLEMENTARY INFORMATION: This document implements Rule amendments 
that create one new category of public record materials; provide 
additional contact information for the filing of initial FOIA requests; 
set out agency procedures for acknowledging the receipt of a request, 
the proper filing of a request, and for the ``cut-off'' date for 
searches; and extend the time period for a FOIA requester to file an 
administrative appeal in unusual circumstances. Pursuant to 5 U.S.C. 
553, these changes do not require public comment because they relate 
solely to agency practice and procedure.
    In a separate document published in today's Federal Register, the 
Commission seeks public comment pursuant to 5 U.S.C. 552(a)(4)(A)(i) on 
its proposal to amend its Rules of Practice to alter its fee schedule 
to reflect changes in the types of services that are provided, changes 
in the costs of providing services, and to add other fees for new 
services.

Public Record

    The Commission is amending Rule 4.9(a)(3), 16 CFR 4.9(a)(3), to 
include the specific FOIA weblink at www.ftc.gov.
    The Commission is amending Rule 4.9(a)(4)(i), 16 CFR 4.9(a)(4)(i), 
to include the mailing address for the Consumer Response Center, which 
is the contact point for the copying of official public records.
    The Commission is amending Rule 4.9(a)(4)(iii), 16 CFR 
4.9(a)(4)(iii), to include contact information for purchasing records 
from the Government Printing Office (``GPO''). The GPO is the primary 
source for purchasing official documents and electronic products from 
or relating to federal agencies.
    The Commission is amending Rule 4.9(b)(3), 16 CFR 4.9(b)(3), to 
revise one public record category related to rulemaking and to include 
a new category of records to the miscellaneous list of public records 
set forth in Rule 4.9(b)(10), 16 CFR 4.9(b)(10). First, Rule 
4.9(b)(3)(iii) is being revised to include on the Commission's public 
record other materials (in addition to transcripts) distributed to 
members of the public at workshops, hearings, or other public 
proceedings connected with a rulemaking. Second, the new category of 
records in Rule 4.9(b)(10)(xiv) includes transcripts or other materials 
that are distributed by staff at ``free-standing'' public workshops 
that are not part of a rulemaking process. These proposed revisions to 
Rule 4.9(b)(3) and (b)(10) do not require the creation of any 
materials, and merely provide that all materials distributed by staff 
at public proceedings be placed on the public record. Although such 
materials often are placed on the appropriate Public Record docket by 
staff, an explicit provision requiring that all such materials be 
placed on the Public Record will make such materials automatically 
available to the public. Because the public can access such materials 
without having to file a FOIA request, these rule changes likely will 
provide for more efficient use of FOIA staff and other agency 
resources.\1\ In addition, FOIA search and review fees are greater for 
the public than the fees associated with public record requests. 
Accordingly, the Commission is revising its list of public records in 
Rule 4.9(b) to include these items.
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    \1\ While these changes will likely reduce the requests made 
under FOIA, the Commission expects an increase in requests for 
public record materials. Nonetheless, placing documents on the 
public record and providing access through that process is generally 
less costly than the FOIA process. For example, the agency's search 
and review costs are often not recouped by fees (i.e., the FOIA 
statute does not allow recoupment of certain costs associated with 
many non-commercial requests), and thus often outweigh the agency's 
costs for public record access. Further, much of this material is 
already placed on the public record, and Commission staff often 
places such information on the Commission's Web site at www.ftc.gov 
for easy public availability. Thus, these proposed changes likely 
will decrease the overall cost to the Commission.
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FOIA Regulation

    The Commission is amending Rule 4.11(a)(1)(i)(A) to include 
additional information about the different methods by which a proper 
FOIA request can be filed. The current regulation only provides 
instructions about how to mail a FOIA request. Because of advances in 
technology, we are including information about other methods by which 
proper FOIA requests can be filed. The amended section includes 
information about how to file FOIA requests through facsimile 
transmissions, the agency's FOIA email account, and the online FOIA 
request submission page on the FTC's Web site.
    The Commission also is adding a new Rule 4.11(a)(1)(i)(C) to set 
forth the Commission procedures regarding the

[[Page 13473]]

acknowledgment of receipt of a request. Acknowledging requests provides 
FOIA requesters with improved customer service, which is a goal 
described in the agency's annual strategic plans prepared in accordance 
with the Government Performance Results Act of 1993, as amended. In 
addition, this rule change helps prevent situations where requesters 
send the same request to the Commission multiple times because they are 
unsure whether their initial request was received.
    The re-designated Rule 4.11(a)(1)(i)(D), formerly at 
4.11(a)(ii)(A), provides additional specificity to assist requesters in 
reasonably describing the records sought and also asks for sufficient 
contact information from the requester for a response to be sent.
    The re-designated Rule 4.11(a)(1)(i)(F), formerly at 
4.11(a)(ii)(A), would give the requester ten calendar days to agree to 
pay estimated fees in situations where a fee waiver is not granted.
    The Commission also is adding in the new Rule 4.11(a)(1)(i)(H), 
contact information for purchasing records from the Government Printing 
Office (``GPO''). This will assist the public since GPO is the primary 
source for purchasing official documents and electronic products from 
or relating to federal agencies.
    The Commission is amending the re-designated Rule 
4.11(a)(1)(ii)(A), previously Rule (a)(1)(iii), to provide additional 
guidance about when a FOIA request is considered properly filed. A 
request is properly filed after the agency receives any request for 
records in which the requester has reasonably described such records, 
agreed to pay fees necessary for a response, and provided sufficient 
contact information for a response to be sent. Although most requesters 
learn about when the Commission begins calculating its 20-day FOIA 
response deadline through oral conversations with FTC staff, the FOIA 
Office's response letter, or the FOIA page on the FTC Web site, the new 
rule sets forth this procedure to provide requesters with more advance 
notice.
    The Commission also is amending the re-designated Rule 
4.11(a)(1)(iii)(A), previously Rule 4.11(a)(1)(iv)(A), to provide 
notice to the public about the ``cut-off'' date that the agency uses 
for FOIA searches. The rule, as amended, explains that the Commission 
will search for materials that existed at the time the FOIA request was 
received by the agency. The agency already customarily provides actual 
notice of ``cut-off'' dates used for FOIA searches in its outgoing 
responses to FOIA requests. However, providing this explanation in the 
rule provides more advance constructive notice to FOIA requesters 
regarding the ``cut-off'' date.
    The Commission is amending the re-designated Rule 
4.11(a)(1)(iii)(C), previously Rule 4.11(a)(1)(iv)(C), to clarify that 
only certain records which are not easily copied or duplicated, such as 
tangible exhibits, are typically made available for on-site inspection.
    The Commission is amending the re-designated Rule 
4.11(a)(1)(iii)(D), previously Rule 4.11(a)(1)(iv)(D), to clarify 
procedures for notifying requesters when official files are missing. No 
section of the Commission's FOIA regulation directly addressed the 
procedures the agency must follow when the only copy of a responsive 
record is missing and that record should have been maintained in an 
official agency file according to the record disposition schedules that 
have been approved by the National Archives and Records Administration. 
To add a provision that addresses this situation, this amended rule now 
states that the requester will also be notified if a record that is 
part of an official agency file is lost or missing. If the person so 
requests, he will also be notified if the record should subsequently be 
located.
    The Commission also is creating a new Rule 4.11(a)(2) that lists 
the contact telephone number for the FOIA Requester Service Center and 
includes information about the FTC's Public Liaison, which already must 
be on the agency's Web site. See 5 USC 552, as amended; EO 13392, 
``Improving Agency Disclosure of Information,'' 70 FR 75373 (Dec. 19, 
2005). Although this contact information is not required in the 
regulation by statute or executive order, the amendment comports with 
the general directive from Congress and the President to be as 
transparent and customer-friendly as possible.
    The re-designated Rule 4.11(a)(3)(i)(A)(2), previously at Rule 
4.11(a)(2)(i)(A)(2), clarifies that a requester has 30 days after the 
date of the letter to appeal the initial FOIA determination to the 
General Counsel. The re-designated Rule 4.11(a)(3)(i)(A)(2) also 
provides the General Counsel with discretion to allow extra time or 
flexibility in certain instances for a requester to file a FOIA appeal. 
For example, the increased security procedures in mail delivery have 
generally led to longer delivery times. The General Counsel needs the 
flexibility to assess such situations and determine whether to consider 
an appeal notwithstanding any delay in its receipt.
    Finally, the re-designated Rule 4.11(a)(3)(i)(A)(4), previously at 
Rule 4.11(a)(2)(i)(A)(3), expands the methods for proper submission of 
FOIA appeals to include both facsimile and email submissions. This 
change allows for electronic options for submitting appeals and 
reflects Congressional and Presidential directives to make the FOIA 
process more user friendly. Independent reports have noted federal 
agencies' need to provide electronic means for communications, one of 
the main factors that prompted the 1996 E-FOIA amendments.\2\
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    \2\ For example, please see the National Security Archive's 
Knight Open Government Survey 2007 at https://www.gwu.edu/~nsarchiv/
NSAEBB/NSAEBB216/e-foia--audit--report.pdf where FTC was cited as 
one of the five top performers in implementing E-FOIA Amendments of 
1996. The Web site (https://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB349/
index.htm) also contains links to more recent FOIA Audits in 2008, 
2010, and 2011.
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    The Commission certifies that the Rule amendments set forth in this 
notice do not require an initial or final regulatory analysis under the 
Regulatory Flexibility Act because the amendments will not have a 
significant economic impact on a substantial number of small entities. 
See 5 U.S.C. 605(b). Most requests for access to FTC records are filed 
by individuals who are not ``small entities'' within the meaning of 
that Act. Id. at 601(6). In any event, the economic impact of the rule 
changes on all requesters is expected to be minimal, if any, and the 
Act does not require an analysis for rules that are not subject to the 
notice-and-comment requirements of the Administrative Procedure Act, as 
discussed below. The Rule amendments also do not contain information 
collection requirements within the meaning of the Paperwork Reduction 
Act, 44 U.S.C. 3501-3520. Furthermore, the rule amendments relate 
solely to agency practice and procedure, and thus are not subject to 
the notice and comment requirements of the Administrative Procedure 
Act. See 5 USC 553(b)(3(A) .

List of Subjects in 16 CFR Part 4

    Administrative practice and procedure, Freedom of Information Act.

    For the reasons set forth in the preamble, the Federal Trade 
Commission amends Title 16, Chapter I, Subchapter A of the Code of 
Federal Regulations as follows:

PART 4--MISCELLANEOUS RULES

0
1. The authority citation for part 4 continues to read as follows:

    Authority:  15 U.S.C. 46, unless otherwise noted.


[[Page 13474]]



0
2. Amend Sec.  4.9 by revising paragraphs (a)(3), (a)(4)(i), 
(a)(4)(iii), (b)(3)(iii), (b)(9), (b)(10)(xiv) and (xv), and by adding 
(b)(10)(xvi) to read as follows:


Sec.  4.9  The public record.

    (a) * * *
    (3) Location. All of the public records of the Commission are 
available for inspection at the principal office of the Commission on 
each business day from 9 a.m. to 5 p.m., and copies of some of those 
records are available at the regional offices on each business day from 
8:30 a.m. to 5 p.m. Copies of records that the Commission is required 
to make available to the public electronically, pursuant to 5 U.S.C. 
552(a)(2), may be obtained in that format from the Commission's Web 
site on the Internet, https://www.ftc.gov/foia/readingroom.shtm.
    (4) Copying of public records (i) Procedures. Reasonable facilities 
for copying public records are provided at each office of the 
Commission. Subject to appropriate limitations and the availability of 
facilities, any person may copy public records available for inspection 
at each of those offices. Further, the agency will provide copies to 
any person upon request. Written requests for copies of public records 
shall be addressed to the Supervisor, Consumer Response Center, Federal 
Trade Commission, Room 130, 600 Pennsylvania Avenue NW., Washington, DC 
20580, and shall specify as clearly and accurately as reasonably 
possible the records desired. For records that cannot be specified with 
complete clarity and particularity, requesters shall provide 
descriptions sufficient to enable qualified Commission personnel to 
locate the records sought. In any instance, the Commission, the 
Supervisor of the Consumer Response Center, the General Counsel, the 
deciding official (as designated by the General Counsel), or the 
official in charge of each office may prohibit the use of Commission 
facilities to produce more than one copy of any public record, and may 
refuse to permit the use of such facilities for copying records that 
have been published or are publicly available at places other than the 
offices of the Commission.
* * * * *
    (iii) Records for sale at another government agency. If requested 
materials are available for sale at another government agency, the 
requester will not be provided with copies of the materials but will be 
advised to obtain them from the selling agency. The U.S. Government 
Printing Office (``GPO''), the official bookstore for most U.S. 
Government publications, can be contacted at (202) 512-1800 or toll-
free at (866) 512-1800, and at ContactCenter@gpo.gov. The GPO's online 
store can be accessed at https://bookstore.gpo.gov and mail orders 
should be directed to U.S. Government Printing Office, P.O. Box 979050, 
St. Louis, MO 63197-9000.
* * * * *
    (b) * * *
    (3) * * *
    (iii) Transcripts of hearings of all rulemaking proceedings, all 
other materials that are distributed to the public during these 
proceedings, and written statements filed with or forwarded to the 
Commission in connection with these proceedings.
* * * * *
    (10) * * *
    (xiv) All transcripts or other materials that are distributed by 
staff at public workshops;
    (xv) Other documents that the Commission has determined to place on 
the public record; and
    (xvi) Every amendment, revision, substitute, or repeal of any of 
the foregoing items listed in paragraphs (b)(1) through (10) of this 
section.
* * * * *

0
3. In Sec.  4.11, revise paragraph (a) to read as follows:


Sec.  4.11  Disclosure requests.

    (a) Freedom of Information Act--(1) Initial requests--(i) Form and 
contents; time of receipt. (A) A request under the provisions of the 
Freedom of Information Act, 5 U.S.C. 552, as amended, for access to 
Commission records shall be in writing and transmitted by one of the 
following means: by mail to the following address: Freedom of 
Information Act Request, Office of the General Counsel, Federal Trade 
Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580; by 
facsimile transmission to (202) 326-2477; by email message to the FOIA 
email account at foia@ftc.gov; or by the form located at the FTC's FOIA 
Web site, https://www.ftc.gov/ftc/foia.htm.
    (B) Failure to mark the envelope and the request in accordance with 
paragraph (a)(1)(i)(A) of this section, or the filing of a request for 
expedited treatment under paragraph (a)(1)(i)(G) of this section, will 
result in the request (or requests, if expedited treatment has been 
requested) as received on the date that the processing unit in the 
Office of General Counsel actually receives the request(s).
    (C) Acknowledgment of requests. Once a FOIA request is properly 
received by the processing unit in the Office of the General Counsel, a 
letter acknowledging the receipt of the request shall be mailed to the 
requester if processing the request will likely take more than 5 
business days.
    (D) Identifiability. (1) A properly filed FOIA request shall 
reasonably describe the records sought with enough detail to enable the 
Commission to locate them with a reasonable amount of effort. Whenever 
possible, the request should include specific information about each 
record sought such as date, title, name, author, recipient, subject 
matter of the record, provide information regarding fees pursuant to 
Sec.  4.8(c), and provide sufficient contact information for a response 
to be sent.
    (2) A denial of a request may state that the description required 
by paragraph (a)(2)(ii)(A) of this section is insufficient to allow 
identification and location of the records.
    (E) Costs; agreement to pay costs. Requesters will be charged 
search, review, duplication and other chargeable direct costs as 
prescribed by Sec.  4.8 for requests under this section. All requests 
shall include a statement of the information needed to determine fees, 
as provided by Sec.  4.8(c), and an agreement to pay fees (or a 
statement that the requester will not pay fees if a fee waiver is 
denied), as provided by Sec.  4.8(d). Requests may also include an 
application for a fee waiver, as provided by Sec.  4.8(e). An advance 
payment may be required in appropriate cases as provided by Sec.  
4.8(h).
    (F) Failure to agree to pay fees. If a request does not include an 
agreement to pay fees, and if the requester is notified of the 
estimated costs pursuant to Sec.  4.8(d)(3), the request will be deemed 
not to have been received until the requester agrees to pay such fees. 
If a requester declines to pay fees within ten calendar days and is not 
granted a fee waiver, the request will be denied.
    (G) Expedited treatment. Requests may include an application for 
expedited treatment. Where such an application is not included with an 
initial request for access to records under paragraph (a)(1) of this 
section, the application may be included in any appeal of that request 
filed under paragraph (a)(3) of this section. Such application, which 
shall be certified by the requester to be true and correct to the best 
of such person's knowledge and belief, shall describe the compelling 
need for expedited treatment, including an explanation as to why a 
failure to obtain the 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, with respect to a request made by 
a person primarily engaged in

[[Page 13475]]

disseminating information, an explanation of the urgency to inform the 
public concerning actual or alleged Federal Government activity. The 
deciding official (as designated by the General Counsel) will, within 
10 calendar days of receipt of a request for expedited treatment, 
notify the requester, in writing, of the decision to either grant or 
deny the request for expedited treatment, and, if the request is 
denied, advise the requester that this determination may be appealed to 
the General Counsel.
    (H) Records for sale at another government agency. If requested 
materials are available for sale at another government agency, the 
requester will not be provided with copies of the materials but will be 
advised to obtain them from the selling agency. The U.S. Government 
Printing Office (``GPO''), the official bookstore for most U.S. 
Government publications, can be contacted at (202) 512-1800 (for those 
in the Washington, DC area), toll-free at (866) 512-1800 and at 
ContactCenter@gpo.gov. The GPO's online store can be accessed at https://bookstore.gpo.gov and mail orders should be directed to U.S. 
Government Printing Office, P.O. Box 979050, St. Louis, MO 63197-9000.
    (ii) Time limit for initial determination. (A) The deciding 
official (as designated by the General Counsel) will, within 20 working 
days of the receipt of a request, or if applicable, the date that a 
request is properly filed, either grant or deny, in whole or in part, 
such request, unless the request has been granted expedited treatment 
in accordance with this section, in which case the request will be 
processed as soon as practicable. The date that a request is properly 
filed is the date on which the requester agrees to pay fees necessary 
for a response, reasonably describes the records sought, and provides 
sufficient contact information for a response to be sent. Any tolling 
of the 20-working day period will be done in compliance with the FOIA 
statute, as amended.
    (B) Except in exceptional circumstances as provided in paragraph 
(a)(1)(ii)(C) of this section, the deciding official (as designated by 
the General Counsel) may extend the time limit by not more than 10 
working days if such extension is:
    (1) Necessary for locating records or transferring them from 
physically separate facilities; or
    (2) Necessary to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are sought in 
a single or series of closely related requests; or
    (3) Necessary for consultation with another agency having a 
substantial interest in the determination, or for consultation among 
two or more components of the Commission having substantial subject 
matter interest therein.
    (C) If the deciding official (as designated by the General Counsel) 
extends the time limit for initial determination pursuant to paragraph 
(a)(1)(ii)(B) of this section, the requester will be notified in 
accordance with 5 U.S.C. 552(a)(6)(B). In exceptional circumstances, 
when the request cannot be processed within the extended time limit, 
the requester will be so notified and provided an opportunity to limit 
the scope of the request so that it may be processed within such time 
limit, or to arrange an alternative time frame for processing the 
request or a modified request. ``Exceptional'' circumstances will not 
include delays resulting from a predictable workload of requests under 
this section. Unwillingness to make reasonable modifications in the 
scope of the request or to agree to an alternative time frame may be 
considered as factors in determining whether exceptional circumstances 
exist and whether the agency has exercised due diligence in responding 
to the request.
    (D) If the deciding official (as designated by the General Counsel) 
reasonably believes that requests made by a requester, or a group of 
requesters acting in concert, actually constitute a single request that 
would otherwise involve unusual circumstances, as specified in 
paragraph (a)(1)(ii)(B) of this section, and the requests involve 
clearly related matters, those multiple requests may be aggregated.
    (E) If a request is not granted within the time limits set forth in 
paragraphs (a)(1)(ii)(A) and (B) of this section, the request shall be 
deemed to be denied and the requesting party may appeal such denial to 
the General Counsel in accordance with paragraph (a)(3) of this 
section.
    (iii) Initial determination. (A) The deciding official (as 
designated by the General Counsel) will make reasonable efforts to 
search, using either manual or electronic means, for documents that 
exist as of the date of the receipt of a request for the requested 
records in electronic form or format, except when such efforts would 
significantly interfere with the operation of the Commission's 
automated information systems. Access will be granted to requested 
records, or any portions thereof, that must be made available under the 
Freedom of Information Act. The deciding official will determine 
whether access will be denied to records that are exempt under the 
Freedom of Information Act, 5 U.S.C. 552(b), unless the deciding 
official (as designated by the General Counsel) determines that such 
records fall within a category the Commission or the General Counsel 
has previously authorized to be made available to the public as a 
matter of policy and are otherwise not required to be undisclosed by 
law. Denials will set forth the reasons therefor and advise the 
requester that this determination may be appealed to the General 
Counsel if the requester believes either that the records are not 
exempt, or that the General Counsel should exercise discretion to 
release such records notwithstanding their exempt status. The deciding 
official (as designated by the General Counsel) will also provide a 
reasonable, good-faith estimate of the volume of any materials to which 
access is denied, unless providing such an estimate would harm an 
interest protected by an exemption in 5 U.S.C. 552(b) that was cited as 
a basis for withholding materials.
    (B) The deciding official (as designated by the General Counsel) is 
deemed to be the sole official responsible for all denials of initial 
requests, except denials of access to materials contained in active 
investigatory files, in which case the Director or Deputy Director of 
the Bureau or the Director of the Regional Office responsible for the 
investigation will be the responsible official.
    (C) Records to which access has been granted will be made available 
to the requester in any form or format specified by the requester, if 
the records are readily reproducible in that form or format, or can be 
converted to that form or format with a reasonable amount of effort. 
Certain records which are not easily copied or duplicated, such as 
tangible exhibits, will be made be available for inspection for a 
period not to exceed 30 days from date of notification to the requester 
unless the requester asks for and receives the consent of the deciding 
official (as designated by the General Counsel) to a longer period. 
Records assembled pursuant to a request will remain available only 
during this period and thereafter will be refiled. Appropriate fees may 
be imposed for any new or renewed request for the same records.
    (D) If a requested record cannot be located from the information 
supplied, or is known to have been destroyed or otherwise disposed of, 
the requester shall be so notified. The requester will also be notified 
if a record that is part of an official agency file is lost or

[[Page 13476]]

missing. If the person so requests, he will also be notified if the 
record should subsequently be located.
    (2) FOIA Requester Service Center--If a requester has questions or 
comments about the FOIA process, please call the FOIA Requester Service 
Center at (202) 326-2430 to either speak directly to a FOIA Case 
Officer or leave a voice message. A requester may ask the FOIA Case 
Officer to speak with the FOIA Public Liaison if there are concerns 
about the quality of the service received to an initial response, 
appeal or otherwise, during the process.
    (3) Appeals to the General Counsel from initial denials. (i) Form 
and contents; time of receipt. (A)(1) If an initial request for 
expedited treatment is denied, the requester, at any time before the 
initial determination of the underlying request for records by the 
deciding official (as designated by the General Counsel) (or, if the 
request for expedited treatment was filed with any appeal filed under 
paragraph (a)(3)(i)(A)(2) of this section, at any time before the 
General Counsel's determination on such an appeal), may appeal the 
denial of expedited treatment to the General Counsel.
    (2) If an initial request for records is denied in its entirety, 
the requester may, within 30 days of the date of the letter notifying 
the requester of that decision, appeal such denial to the General 
Counsel. If an initial request is denied in part, the time for appeal 
will not expire until 30 days after the date of the final letter 
notifying the requester that all records to which access has been 
granted have been made available. In unusual circumstances, the time to 
appeal may be extended by the General Counsel or his or her designee.
    (3) [Reserved]
    (4) The appeal shall be in writing and shall clearly refer to the 
adverse decision, or portions of the decision, being appealed; the 
appeal should include a copy of the initial request and a copy of the 
response to that initial request, if any. The appeal may be: mailed to 
Freedom of Information Act Appeal, Office of the General Counsel, 
Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 
20580; submitted by facsimile to (202) 326-3198; or emailed to 
FOIAAppeal@ftc.gov.
    (B) If the appeal is mailed, failure to mark the envelope and the 
appeal in accordance with paragraph (a)(3)(i)(A)(4) of this section 
will result in the appeal (and any request for expedited treatment 
filed with that appeal) being treated as received on the actual date of 
receipt by the Office of General Counsel.
    (C) Each appeal to the General Counsel that requests him or her to 
exercise his discretion to release exempt records shall set forth the 
interest of the requester in the subject matter and the purpose for 
which the records will be used if the request is granted.
    (ii) Time limit for appeal. (A)(1) Regarding appeals from initial 
denials of a request for expedited treatment, the General Counsel will 
either grant or deny the appeal expeditiously;
    (2) Regarding appeals from initial denials of a request for 
records, the General Counsel will, within 20 working days of the Office 
of General Counsel's receipt of such an appeal, either grant or deny 
it, in whole or in part, unless expedited treatment has been granted in 
accordance with this section, in which case the appeal will be 
processed expeditiously.
    (B) The General Counsel may, by written notice to the requester in 
accordance with 5 U.S.C. 552(a)(6)(B), extend the time limit for 
deciding an appeal by not more than 10 working days pursuant to 
paragraph (a)(1)(ii)(B) of this section, provided that the amount of 
any extension utilized during the initial consideration of the request 
under that paragraph will be subtracted from the amount of additional 
time otherwise available. Where exceptional circumstances do not permit 
the processing of the appeal within the extended time limit, the notice 
and procedures set forth in paragraph (a)(1)(ii)(C) of this section 
shall apply.
    (iii) Determination of appeal. (A) The General Counsel has the 
authority to grant or deny all appeals and to release as an exercise of 
discretion records exempt from mandatory disclosure under 5 U.S.C. 
552(b). In unusual or difficult cases, the General Counsel may, in his 
or her sole discretion, refer an appeal to the Commission for 
determination. A denial of an appeal in whole or in part will set forth 
the basis for the denial; will include a reasonable, good-faith 
estimate of the volume of any materials to which access is denied, 
unless providing such an estimate would harm an interest protected by 
an exemption in 5 U.S.C. 552(b) that was cited as a basis for 
withholding materials; and will advise the requester that judicial 
review of the decision is available by civil suit in the district in 
which the requester resides, or has his principal place of business, or 
in which the agency records are situated, or in the District of 
Columbia.
    (B) The General Counsel shall be deemed solely responsible for all 
denials of appeals, except where an appeal is denied by the Commission. 
In such instances, the Commission shall be deemed solely responsible 
for the denial.
* * * * *

    By direction of the Commission, Chairman Leibowitz not 
participating.
Donald S. Clark,
Secretary.
[FR Doc. 2013-04479 Filed 2-27-13; 8:45 am]
BILLING CODE 6750-01-P