[Code of Federal Regulations]

[Title 45, Volume 3]

[Revised as of October 1, 2005]

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



[[Page 126]]



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.