§ 1703.111 — Privileged Or Confidential Information

(a) Scope. Any person submitting a document to the Board may request privileged treatment by claiming that some or all of the information contained in the document is exempt from the mandatory public disclosure requirements of FOIA and should otherwise be withheld from public disclosure.

(b) Procedures. A person claiming that information is privileged or confidential under paragraph (a) of this section must file:

(1) An application, accompanied by an affidavit, requesting privileged or confidential treatment for some or all of the information in a document, and stating the justification for nondisclosure of the information;

(2) The original document, boldly indicating on the front page “Contains Privileged or Confidential Information—Do Not Release” and identifying within the document the information for which the privileged or confidential treatment is sought;

(3) Three copies of the redacted document (i.e., without the information for which privileged or confidential treatment is sought) and with a statement indicating that information has been removed for privileged or confidential treatment; and

(4) The name, title, address, telephone number, and email address of the person or persons to be contacted regarding the request for privileged or confidential treatment of documents submitted to the Board.

(c) Effect of privilege claim. (1) The Designated FOIA Officer shall place documents for which privileged or confidential treatment is sought in accordance with paragraph (b) of this section in a nonpublic file, while the request for privileged or confidential treatment is pending. By placing documents in a nonpublic file, the Board is not making a determination on any claim for privilege or confidentiality. The Board retains the right to make determinations with regard to any claim of privilege or confidentiality, and the discretion to release information as necessary to carry out its responsibilities.

(2) The Designated FOIA Officer shall place the request for privileged or confidential treatment described in paragraph (b)(1) of this section and a copy of the redacted document described in paragraph (b)(3) of this section in a public file while the request for privileged treatment is pending.

(d) Notification of request and opportunity to comment. When a FOIA requester seeks a document for which privilege or confidentiality is claimed, the Designated FOIA Officer shall so notify the person who submitted the document and give that person an opportunity (at least five days) in which to comment in writing on the request. A copy of this notice shall be sent to the FOIA requester.

(e) Notification before release. Notice of a decision by the Designated FOIA Officer to deny a claim of privilege or confidentiality, in whole or in part, shall be given to any person claiming that information is privileged or confidential no less than five days before public disclosure. The decision shall be made only after consultation with the General Counsel's Office. The notice shall briefly explain why the person's objections to disclosure were not sustained. A copy of this notice shall be sent to the FOIA requester.

(f) Notification of suit in Federal courts. When a FOIA requester brings suit to compel disclosure of privileged or confidential information, the Board shall notify the person who submitted documents containing such confidential information of the suit.