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FOIA

  • COMMODITY FUTURES TRADING COMMISSION

    FREEDOM OF INFORMATION ACT ANNUAL REPORT

    FOR FISCAL YEAR 2008

    (October 1, 2007 to September 30, 2008)

    I. Basic Information Regarding Report

    1. Name of Person to be contacted with questions about this report:

    Stacy J. Easter

    Paralegal Specialist

    Commodity Futures Trading Commission

    Three Lafayette Centre

    1155 21st Street, N.W.

    Washington, D.C. 20581

    Tel.: 202-418-5105

    2. A copy of this report can be found on our website at:

    http://www.cftc.gov/FOI/foia_annrept08.html

    3. To obtain a copy of this report in paper form, please submit the Electronic FOIA Request Form found on our website at: FOIA Request Form or send a written request to:

    Mail: FOIA Compliance Office

    Commodity Futures Trading Commission

    Three Lafayette Centre

    1155 21st Street, N.W.

    Washington, D.C. 20581

    or

    E-mail: mailto:FOIAsubmissions@cftc.gov

    II. Making a FOIA Request

      1. Requests are received by using the CFTC’s FOIA Request Form, by fax: 202-418-5124, or by submitting by mail to: FOIA Compliance Office, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW, Washington, DC 20581. Each FOIA request should include a reasonable description of the records sought and an agreement to pay fees.

      2. CFTC records are releasable unless they contain information that qualifies for withholding under one or more of the nine FOIA exemptions. Certain categories of information may be considered exempt from disclosure under the FOIA, such as registration applications, trade data, disclosure documents, employee personnel records, financial reports, and trade practice investigative files.

    III. Acronyms, Definitions, and Exemptions

    1. Agency acronyms or terms:

    a. “CFTC” or “Commission" - Commodity Futures Trading Commission

    2. Definitions:

      a. Administrative Appeal – a request to a federal agency asking that it review at a higher administrative level a FOIA determination made by the agency at the initial request level.

      b. Average number – the number obtained by dividing the sum of a group of numbers by the quantity of numbers in the group. For example, of 3, 7, and 14, the average number is 8.

      c. Backlog - the number of requests or administrative appeals that are pending at an agency at the end of the fiscal year that are beyond the statutory time period for a response.

      d. Component – for agencies that process request on a decentralized basis, a “component” is an entity, also sometime referred to as an Office, Division, Bureau, Center, or Directorate, within the agency that processes FOIA requests. The FOIA now requires that agencies include in their Annual FOIA Report data for both the agency overall and for each principal component of the agency.

      e. Consultation - the procedure whereby the agency responding to a FOIA request first forwards a record to another agency for its review because that other agency has an interest in the document. Once the agency in receipt of the consultation finishes its review of the record, it responds back to the agency that forwarded it. That agency, in turn, will then respond to the FOIA requester.

      f. Exemption 3 statute – a separate federal statute prohibiting the disclosure of a certain type of information and authorizing its withholding under FOIA subsection (b)(3).

      g. FOIA Request – a FOIA request is generally a request to a federal agency for access to records concerning another person (i.e., a “third-party” request), or concerning an organization, or a particular topic of interest. FOIA requests also include request made by requesters seeking records concerning themselves (i.e., “first-party” requests) when those requesters are not subject to the Privacy Act, such as non-U.S. citizens. Moreover, because all first-party requesters should be afforded the benefit of both the access provisions of the FOIA as well as those of the Privacy Act, FOIA requests also include any first-party requests where an agency determines that it must search beyond it Privacy Act “systems of records” or where a Privacy Act exemption applies, and the agency looks to FOIA to afford the greatest possible access. All requests which require the agency to utilize the FOIA in responding to the requester are included in this report.

    Additionally, a FOIA request includes records referred to the agency for processing and direct response to the requester. It doe not, however, include records for which the agency has received a consultation from another agency. Consultations are reported separately in Section XII of this report.

      h. Full Grant – an agency decision to disclose all records in full in response to a FOIA request.

      i. Full Denial – an agency decision not to release any records in response to a FOIA request because the records are exempt in their entireties under one or more of the FOIA exemptions, or because of a procedural reason, such as when no records could be located.

      j. Median number – the middle, not average, number. For example, of 3, 7, and 14, the median number is 7.

      k. Multi-Tracking Processing – a system in which simple requests requiring relatively minimal review are placed in one processing track and more voluminous and complex requests are placed in one ore more other tracks. Requests granted expedited processing are placed in yet another track. Requests in each track are processed on a first in/first out basis.

      i. Expedited Processing – an agency will process a FOIA request on an expedited basis when a requester satisfies the requirements for expedited processing as set forth in the statue and in agency regulations.

      ii. Simple Request – a FOIA request that an agency using multi-track processing places in its fastest (non-expedited) track based on the low volume and/or simplicity of the records requested.

      iii. Complex Request – a FOIA request that an agency using multi-track processing places in a slower track based on the high volume and/or complexity of the records requested.

      l. Partial Grant/ Partial Denial – an agency decision to disclose portions of the record and to withhold other portions that are exempt under the FOIA, or to otherwise deny a portion of the request for a procedural reason.

      m. Pending Request or Pending Administrative Appeal – a request or administrative appeal for which an agency has not taken final action in all respects.

      n. Perfected Request – a request for records which reasonably describes such records and is made in accordance with published rules stating the time, place, fees (if any) and procedures to be followed.

      o. Processed Request or Processed Administrative Appeal – a request or administrative appeal for which an agency has taken final action in all respects.

      p. Range in Number of Days – the lowest and highest number of days to process requests or administrative appeals.

      q. Time Limits - the time period in the Freedom of Information Act for an agency to respond to a FOIA request (ordinarily 20 working days from proper receipt of a “perfected” FOIA request).

    3. FOIA Exemptions:

      a. Exemption 1: classified national defense and foreign relations information

      b. Exemption 2: internal agency rules and practices

      c. Exemption 3: information that is prohibited from disclosure by another federal law

      d. Exemption 4: trade secrets and other confidential business information

      e. Exemption 5: inter-agency or intra-agency communications that are protected by legal privileges

      f. Exemption 6: information involving matters of person privacy

      g. Exemption 7: records or information compiled for law enforcement purposes, to the extent that the production of those records (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) cold reasonably be expected to constitute an unwarranted invasion of person privacy, (D) could reasonably be expected to disclose the identity of a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions, or (F) could reasonably be expected to endanger the life or physical safety of any individual.

      h. Exemption 8: information relating to the supervision of financial institutions

      i. Exemption 9: geological information on wells

    IV. EXEMPTION 3 STATUTES

    A. Exemption 3 Statutes Relied upon to Withhold Information

    Statute

    Type of Information Withheld

    Case Citation

    Number of Times Relied upon per Component

    Total Number of Times Relied upon by agency

    Section 8(a) of the Commodity Exchange Act, 7 U.S.C. § 12(a)

    Business transactions or market positions of any person and trade secrets or names of customers, and any data or information concerning or obtained in connection with any pending investigation of any person.

    The use of Section 8(a) has not been challenged in court.

    17

    17

    V. FOIA REQUEST

    A. Received, Processed and Pending FOIA Requests:

     

    Number of requests pending as of end of preceding fiscal year:

    Number of requests received during current fiscal year:

    Number of requests processed during current fiscal year:

    Number of requests pending as of end of current fiscal year:

    CFTC Total

    19

    147

    151

    15

    B.(1) Disposition of FOIA Requests – All Processed Requests:

     

      # of Full Grants

      # of Partial Grants/ Denials

      # of Full Denials Based on Exemptions

    # of Full Denials Based on Reasons Other than Exemptions

    Total

      No Records

      All Records Referred to Another Agency

      Withdrawn

      Fee-Related Reason

      Records not Reasonably Describe

      Improper FOIA Request for Other Reasons

      Not Agency Records

      Duplicate

      Other: *Explain in chart below

    CFTC Total

    63

    28

    12

    31

    0

    9

    0

    0

    0

    8

    0

    0

    151

    B.(2) Disposition of FOIA Requests – “Other” Reasons for “Full Denials Based on Reasons Other Than Exemptions” from Sections V, B(1) Chart:

     

    Description of “Other” Reasons for Denials from Chart B(1) & Number of Times Those Reasons Were Relied Upon

    TOTAL

    CFTC Total

    0

    0

    B.(3) Disposition of FOIA Requests – Number of Times Exemptions Applied

     

    Ex. 1

    Ex. 2

    Ex. 3

    Ex. 4

    Ex. 5

    Ex. 6

    Ex. 7(A)

    Ex. 7(B)

    Ex. 7(C)

    Ex. 7(D)

    Ex. 7(E)

    Ex. 7(F)

    Ex. 8

    Ex. 9

    CFTC Total

    0

    0

    17

    28

    8

    11

    7

    0

    4

    1

    5

    1

    11

    0

    VI. ADMINISTRATIVE APPEALS OF INITIAL DETERMINATIONS OF FOIA REQUESTS

    A. Received, Processed and Pending Administrative Appeals:

    Number of Appeals Pending as of Start of Fiscal Year

    Number of Appeals Received in Fiscal Year

    Number of Appeals Processed in Fiscal Year

    Number of Appeals Pending as of End of Fiscal Year

    0

    5

    4

    1

    B. Disposition of Administrative Appeals – All Processed Appeals:

    Number Affirmed on Appeal

    Number Partially Affirmed & Partially Reversed/Remanded on Appeal

    Number Completely Reversed/Remanded on Appeal

    Number of Appeals Closed for Other Reasons

    TOTAL

    4

    0

    0

    0

    4

    C.(1) Reasons for Denial on Appeal – Number of Times Exemptions Applied:

    Ex. 1

    Ex. 2

    Ex. 3

    Ex. 4

    Ex. 5

    Ex. 6

    Ex. 7(A)

    Ex. 7(B)

    Ex. 7(C)

    Ex. 7(D)

    Ex. 7(E)

    Ex. 7(F)

    Ex. 8

    Ex. 9

    0

    0

    3

    2

    2

    0

    3

    0

    0

    0

    0

    0

    0

    0

    C.(2) Reasons for Denial on Appeal – Reasons Other than Exemptions:

      No Records

      All Records Referred at Initial Request Level

      Withdrawn

      Fee-Related Reason

      Records not Reasonably Described

      Improper FOIA Request for Other Reasons

      Not Agency Records

      Duplicate Request or Appeal

      Request in Litigation

      Appeal Based Solely on Denial of Request for Expedited Processing

      Other *Explain in Chart Below

    0

    0

    0

    0

    0

    0

    0

    0

    0

    0

    0

    C.(3) Reasons for Denial on Appeal – “Other” Request from Section VI, C.(2) Chart:

    Description of “Other” Reasons for Denial on Appeal from Chart C.(2) & Number of Times Those Reasons Were Relied Upon

    TOTAL

    0

    0

    C.(4) Response Time for Administrative Appeals:

    Median Number of Days

    Average Number of Days

    Lowest Number of Days

    Highest Number of Days

    19.5

    19.75

    19

    20

    C.(5) Ten Oldest Pending Administrative Appeals:

     

    10th Oldest Appeal

    9th

    8th

    7th

    6th

    5th

    4th

    3rd

    2nd

    Oldest Appeal

    Date of Receipt of Ten Oldest Appeals

                     

    9/18/08

    # of Days Pending

                     

    8

    VII. FOIA REQUESTS: RESPONSE TIME FOR PROCESSED AND PENDING REQUESTS*

    A. Processed Requests – Response Time for all Processed Perfected Requests

     

    Median Number of Days

    Average Number of Days

    Lowest Number of Days

    Highest Number of Days

    CFTC Total

    14

    23.7

    1

    315

    B. Processed Requests – Response Time for Perfected Request in Which Information Was Granted:

     

    Median Number of Days

    Average Number of Days

    Lowest Number of Days

    Highest Number of Days

    CFTC Total

    15

    18.16

    1

    179

    C. Processed Requests – Response Time in Day Increments:

    Days

    1-20

    21-40

    41-60

    61-80

    81-100

    101-120

    121-140

    141-160

    161-180

    181-200

    201-300

    301-400

    401+

    TOTAL

    CFTC Total

    105

    34

    6

    0

    0

    0

    0

    1

    1

    0

    3

    1

    0

    151

    D. Pending Request – All Pending Perfected Requests:

     

    Median Number of Days

    Average Number of Days

    Lowest Number of Days

    Highest Number of Days

    CFTC Total

    17

    22.73

    1

    70

    E. Pending Request – Ten Oldest Pending Perfected Requests:

     

    10th Oldest Request and Number of Days Pending

    9th

    8th

    7th

    6th

    5th

    4th

    3rd

    2nd

    Oldest Request and Number of Days Pending

    CFTC Total

    Date rec’d :

    9/19/08

    9/17/08

    9/12/08

    9/5/08

    8/27/08

    8/26/08

    8/14/08

    8/1/08

    7/9/08

    6/20/08

    # of days:

    8

    9

    12

    17

    23

    24

    32

    41

    58

    70

    *The CFTC did not process nor have any pending expedited requests.

    VIII. REQUEST FOR EXPEDITED PROCESSING AND REQUESTS FOR FEE

    WAIVER

    A. Requests for Expedited Processing:

     

    Number Granted

    Number Denied

    Median Number of Days to Adjudicate

    Average Number of Days to Adjudicate

    Number Adjudicated Within Ten Calendar Days

    CFTC Total

    0

    0

    0

    0

    0

    B. Requests for Fee Waiver:

     

    Granted

    Denied

    Median Number of Days to Adjudicate

    Average Number of Days to Adjudicate

    CFTC Total

    0

    1

    18

    18

    IX. FOIA PERSONNEL AND COSTS

    A. PERSONNEL

    B. COSTS

    Number of “Full-Time FOIA Staff”

    Number of “Equivalent Full-Time FOIA Staff”

    Total Number of “Full-Time FOIA Staff”

    Processing Cost

    Litigation-Related Cost

    Total Cost

    CFTC Total

    1

    .621%

    1.621%

    $175,326.08

    0

    $175,326.08

    X. FEES COLLECTED FOR PROCESSING REQUESTS

     

    Total amount of fees collected by agency for processing requests:

    Percentage of total costs:

    CFTC Total

    $2,444.95

    .865%

    XI. FOIA REGULATIONS (Including Fee Schedule)

    The Commission’s FOIA regulations, 17 C.F.R. § 145, can be found on the Commission’s web site at: http://www.cftc.gov/FOI/cftcfoiaguide.html

    XII. BACKLOGS, CONSULTATIONS, AND COMPARISONS

    A. Backlogs of FOIA Requests and Administrative Appeals:

     

    Number of Backlogged Requests as of End of Fiscal Year

    Number of Backlogged Appeals as of End of Fiscal Year

    CFTC Total

    6

    0

    B. Consultations on FOIA Requests – Received, Processed, and Pending Consultations:

     

    Number of Consultations Received from Other Agencies that Were Pending at Your Agency as of Start of the Fiscal Year

    Number of Consultations Received from Other Agencies During the Fiscal Year

    Number of Consultations Received from Other Agencies that Were Processed by Your Agency During the Fiscal Year

    Number of Consultations Received from Other Agencies that Were Pending at Your Agency as of End of the Fiscal Year

    CFTC Total

    0

    1

    0

    1

    C. Consultations on FOIA Requests – Ten Oldest Consultations Received from Other Agencies and Pending at Your Agency:

     

    10th Oldest Consultation and Number of Days Pending

    9th

    8th

    7th

    6th

    5th

    4th

    3rd

    2nd

    Oldest Consultation and Number of Days Pending

    CFTC Total

                     

    Rec’d: 8/1/08

    # of Days: 41

    D. Comparison of Number of Request from Previous and Current Annual Report – Reports Received, Processed, and Backlogged:

     

    NUMBER OF REQUEST RECEIVED

    NUMBER OF REQUEST PROCESSED

    Number Received During Fiscal Year from Last Year’s Annual Report

    Number Received During Fiscal Year from Current Annual Report

    Number Processed During Fiscal Year from Last Year’s Annual Report

    Number Processed During Fiscal Year from Current Annual Report

    CFTC Total

    185

    147

    177

    151

    E. Comparison of Numbers of Administrative Appeals from Previous and Current Annual Report – Appeals Received, Processed, and Backlogged:

     

    NUMBER OF APPEALS RECEIVED

    NUMBER OF APPEALS PROCESSED

    Number Received During Fiscal Year from Last Year’s Annual Report

    Number Received During Fiscal Year from Current Annual Report

    Number Processed During Fiscal Year from Last Year’s Annual Report

    Number Processed During Fiscal Year from Current Annual Report

    CFTC Total

    0

    5

    1

    4