At the time of submission, a submitter of business information is expected to designate, by appropriate markings, any portions of its submission that it considers to be protected from disclosure under FOIA Exemption 4. Although these portions may be designated, this does not preclude NARA from conducting a full FOIA review of all such documents if a FOIA request for those records has been received. These designations will expire 10 years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period, or NARA extends the designation period at its discretion.
If NARA receives a FOIA request for records containing confidential commercial information or for records that we believe may contain confidential commercial information, we follow these procedures:
(a) If the records are less than 10 years old or are still covered under an extended FOIA Exemption 4 designation period, we review the records in response to a FOIA request. If we then believe that we should release the records under FOIA, we make reasonable efforts to inform the submitter. The notice to the submitter describes the business information requested or includes copies of the requested records. NARA does not notify the submitter when we determine that:
(1) We must withhold the information under FOIA's exemptions;
(2) The information has been lawfully published or made available to the public; or
(3) We are required by a statute (other than the FOIA), or by a regulation issued in accordance with the requirements of Executive Order 12600, to disclose the information.
(b) If the records are 10 or more years old, we review the records in response to a FOIA request as we would any other records, and at our discretion, inform the submitter. NARA releases the records if we determine that neither Exemption 4 nor any other exemption applies.
(c) When the request is for information from a single or small number of submitters, we send a notice via registered mail to the submitter's last known address. NARA's notice to the submitter includes a copy of the FOIA request and tells the submitter the time limits and procedures for objecting to the release of the requested material.
(d) When the request involves information from a voluminous number of submitters, we may post or publish the notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending letters.
(e) We provide the submitter with 20 working days from the date of NARA's notice to object to the release and to explain a basis for the objection, including justification and support for the claim. The NARA FOIA Officer may extend this period as appropriate.
(f) We review and consider all objections to release that we receive within the time limit. Any information provided by a submitter under this provision may itself be subject to disclosure under FOIA. NARA considers a submitter who fails to respond within the time period specified in the notice to have no objection to disclosure of the information. If we decide to release the records, we inform the submitter in writing, along with NARA's reasons for the decision to release. We include with the notice copies of the records as we intend to release them. We also inform the submitter that we intend to release the records within a reasonable time after the date of the notice unless a U.S. District Court forbids disclosure. NARA will not consider any information we receive after the date of a disclosure decision.
(g) If the requester files a lawsuit under the FOIA for access to any withheld records, we promptly notify the submitter.
(h) NARA notifies the requester in three circumstances:
(1) When we notify the submitter of the opportunity to object to disclosure, or to extend the time for objecting;
(2) When we notify the submitter of our intent to disclose the requested information; and
(3) When a submitter files a lawsuit to prevent the disclosure of the information.