[Code of Federal Regulations]
[Title 45, Volume 3]
[Revised as of October 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 45CFR612.7]

[Page 124-127]
 
                        TITLE 45--PUBLIC WELFARE
 
                 CHAPTER VI--NATIONAL SCIENCE FOUNDATION
 
PART 612_AVAILABILITY OF RECORDS AND INFORMATION--Table of Contents
 
Sec. 612.7  Exemptions.

    (a) Exemptions from disclosure. The following types of records or 
information may be withholdable as exempt in full or in part from 
mandatory public disclosure:
    (1) Exemption 1--5 U.S.C. 552(b)(1). Records specifically authorized 
and properly classified pursuant to Executive Order to be kept secret in 
the interest of national defense or foreign policy. NSF does not have 
classifying authority and normally does not deal with classified 
materials.
    (2) Exemption 2--5 U.S.C. 552(b)(2). Records related solely to the 
internal personnel rules and practices of NSF. This exemption primarily 
protects information that if released would allow the recipient to 
circumvent a statute or agency regulation. Administrative information 
such as rules relating to the work hours, leave, and working conditions 
of NSF personnel, or similar matters, can be disclosed to the extent 
that no harm would be caused to the functions to which the information 
pertains. Examples of records normally exempt from disclosure include, 
but are not limited to:
    (i) Operating rules, guidelines, manuals on internal procedure, 
schedules and methods utilized by NSF investigators, inspectors, 
auditors and examiners.
    (ii) Negotiating positions or limits at least until the execution of 
a contract (including a grant or cooperative agreement) or the 
completion of the action to which the negotiating positions were 
applicable. They may also be exempt pursuant to other provisions of this 
section.
    (iii) Information relating to position management and manpower 
utilization, such as internal staffing plans, authorizations or 
controls, or involved in determination of the qualifications of 
candidates for employment, advancement, or promotion including 
examination questions and answers.
    (iv) Computer software, the release of which would allow 
circumvention of a statute or NSF rules, regulations, orders, manuals, 
directives, instructions, or procedures; or the integrity and security 
of data systems.
    (3) Exemption 3--5 U.S.C. 552(b)(3). Records specifically exempted 
from disclosure by another statute that either requires that the 
information be withheld in a such way that the agency has no discretion 
in the matter; or establishes particular criteria for withholding or 
refers to particular types of information to be withheld. Examples of 
records exempt from disclosure include, but are not limited to:
    (i) Records that disclose any invention in which the Federal 
Government owns or may own a right, title, or interest (including a 
nonexclusive license), 35 U.S.C. 205;
    (ii) Contractor proposals not specifically set forth or incorporated 
by reference into a contract, 41 U.S.C. 253b(m);
    (iii) Information protected by the Procurement Integrity Act, 41 
U.S.C. 423.
    (4) Exemption 4--5 U.S.C. 552(b)(4). Trade secrets and commercial or 
financial information obtained from a person, and privileged or 
confidential. Information subject to this exemption is that customarily 
held in confidence by the originator(s), including nonprofit 
organizations and their employees. Release of such information is likely 
to cause substantial harm to the competitive position of the originator 
or submitter, or impair the Foundation's ability to obtain such 
information in the future. NSF will process information potentially 
exempted from disclosure by Exemption 4 under Sec. 612.8. Examples of 
records or information normally exempt from disclosure include, but are 
not limited to:

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    (i) Information received in confidence, such as grant applications, 
fellowship applications, and research proposals prior to award;
    (ii) Confidential scientific and manufacturing processes or 
developments, and technical, scientific, statistical data or other 
information developed by a grantee.
    (iii) Technical, scientific, or statistical data, and commercial or 
financial information privileged or received in confidence from an 
existing or potential contractor or subcontractor, in connection with 
bids, proposals, or contracts, concerning contract performance, income, 
profits, losses, and expenditures, as well as trade secrets, inventions, 
discoveries, or other proprietary data. When the provisions of 41 U.S.C. 
253b(m) or 41 U.S.C. 423 are met, certain proprietary and source 
selection information may also be withheld under Exemption 3.
    (iv) Confidential proprietary information submitted on a voluntary 
basis.
    (v) Statements or information collected in the course of 
inspections, investigations, or audits, when such statements are 
received in confidence from the individual and retained in confidence 
because they reveal trade secrets or commercial or financial information 
normally considered confidential or privileged.
    (5) Exemption 5--5 U.S.C. 552(b)(5). Inter-agency or intra-agency 
memoranda or letters which would not be available by law to a private 
party in litigation with NSF. Factual material contained in such records 
will be considered for release if it can be reasonably segregated and is 
not otherwise exempt. Examples of records exempt from disclosure 
include, but are not limited to:
    (i) Those portions of reports, memoranda, correspondence, 
workpapers, minutes of meetings, and staff papers, containing 
evaluations, advice, opinions, suggestions, or other deliberative 
material that are prepared for use within NSF or within the Executive 
Branch of the Government by agency personnel and others acting in a 
consultant or advisory capacity;
    (ii) Advance information on proposed NSF plans to procure, lease, or 
otherwise acquire, or dispose of materials, real estate, facilities, 
services or functions, when such information would provide undue or 
unfair competitive advantage to private interests or impede legitimate 
government functions;
    (iii) Trade secret or other confidential research development, or 
commercial information owned by the Government, where premature release 
is likely to affect the Government's negotiating position or other 
commercial interest;
    (iv) Records prepared for use in proceedings before any Federal or 
State court or administrative body;
    (v) Evaluations of and comments on specific grant applications, 
research projects or proposals, or potential contractors and their 
products, whether made by NSF personnel or by external reviewers acting 
either individually or in panels, committees or similar groups;
    (vi) Preliminary, draft or unapproved documents, such as opinions, 
recommendations, evaluations, decisions, or studies conducted or 
supported by NSF;
    (vii) Proposed budget requests, and supporting projections used or 
arising in the preparation and/or execution of a budget; proposed annual 
and multi-year policy, priorities, program and financial plan and 
supporting papers;
    (viii) Those portions of official reports of inspection, reports of 
the Inspector General, audits, investigations, or surveys pertaining to 
safety, security, or the internal management, administration, or 
operation of NSF, when these records have traditionally been treated by 
the courts as privileged against disclosure in litigation.
    (6) Exemption 6--5 U.S.C. 552(b)(6). Personnel and medical files and 
similar files, the disclosure of which would constitute a clearly 
unwarranted invasion of personal privacy. The exemption may apply to 
protect the privacy of living persons and of living close survivors of a 
deceased person identified in a record. Information in such files which 
is not otherwise exempt from disclosure pursuant to other provisions of 
this section will be released to the subject or to his designated legal 
representative, and may be disclosed to others with the subject's 
written consent. Examples of records exempt from

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disclosure include, but are not limited to:
    (i) Reports, records, and other materials pertaining to individual 
cases in which disciplinary or other administrative action has been or 
may be taken. Opinions and orders resulting from those administrative or 
disciplinary proceedings shall be disclosed without identifying details 
if used, cited, or relied upon as precedent.
    (ii) Records compiled to evaluate or adjudicate the suitability of 
candidates for employment, and the eligibility of individuals (civilian 
or contractor employees) for security clearances, or for access to 
classified information.
    (iii) Reports and evaluations which reflect upon the qualifications 
or competence of individuals.
    (iv) Personal information such as home addresses and telephone and 
facsimiles numbers, private e-mail addresses, social security numbers, 
dates of birth, marital status and the like.
    (v) The exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest.
    (7) Exemption 7--5 U.S.C. 552(b)(7). Records or information compiled 
for civil or criminal law enforcement purposes, including the 
implementation of Executive Orders or regulations issued pursuant to 
law. This exemption may exempt from mandatory disclosure records not 
originally created, but later gathered, for law enforcement purposes.
    (i) This exemption applies only to the extent that the production of 
such law enforcement records or information:
    (A) Could reasonably be expected to interfere with enforcement 
proceedings;
    (B) Would deprive a person of the right to a fair trial or an 
impartial adjudication;
    (C) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy of a living person, or living close 
survivors of a deceased person identified in a record;
    (D) Could reasonably be expected to disclose the identity of a 
confidential source, including a source within the Federal Government, 
or a State, local, or foreign agency or authority, or any private 
institution, that furnished information on a confidential basis; and 
information furnished by a confidential source and obtained by a 
criminal law enforcement authority in a criminal investigation;
    (E) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law, or
    (F) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (ii) Examples of records normally exempt from disclosure include, 
but are not limited to:
    (A) The identity and statements of complainants or witnesses, or 
other material developed during the course of an investigation and all 
materials prepared in connection with related government litigation or 
adjudicative proceedings;
    (B) The identity of firms or individuals investigated for alleged 
irregularities involving NSF grants, contracts or other matters when no 
indictment has been obtained, no civil action has been filed against 
them by the United States, or no government-wide public suspension or 
debarment has occurred.
    (C) Information obtained in confidence, expressed or implied, in the 
course of a criminal investigation by the NSF Officer of the Inspector 
General.
    (iii) The exclusions contained in 5 U.S.C. 552(c)(1) and (2) may 
also apply to these records.
    (8) Exemption 8--5 U.S.C. 552(b)(8). Records contained in or related 
to examination, operating, or condition reports prepared by, on behalf 
of, or for the use of any agency responsible for the regulation or 
supervision of financial institutions.
    (9) Exemption 9--5 U.S.C. 552(b)(9). Records containing geological 
and geophysical information and data, including maps, concerning wells.

[[Page 127]]

    (b) Deletion of exempt portions and identifying details. Any 
reasonably segregable portion of a record will be provided to requesters 
after deletion of the portions which are exempt. Whenever any final 
opinion, order, or other materials required to be made available relates 
to a private party or parties and the release of the name(s) or other 
identifying details will constitute a clearly unwarranted invasion of 
personal privacy, the record shall be published or made available with 
such identifying details left blank, or shall be published or made 
available with obviously fictitious substitutes and with a notification 
such as the following: Names of parties and certain other identifying 
details have been removed (and fictitious names substituted) in order to 
prevent a clearly unwarranted invasion of the personal privacy of the 
individuals involved.