(b) Materials that are related solely to the internal personnel rules and practices of the Commission, 5 U.S.C. 552(b)(2). (1) Materials related solely to internal management matters, including minutes of Commission actions on such matters. Such materials may be made available for inspection under §0.461, however, unless their disclosure would interfere with or prejudice the performance of the internal management functions to which they relate, or unless their disclosure would constitute a clearly unwarranted invasion of personal privacy (see paragraph (f) of this section).

(2) Materials relating to the negotiation of contracts.

(3) All materials used in conducting radio operator examinations, including test booklets, Morse Code tapes, and scoring masks.

(c) Materials that are specifically exempted from disclosure by statute (other than the Government in the Sunshine Act, 5 U.S.C. 552b): Provided, That such statute (1) requires that the materials be withheld from the public in such a manner as to leave no discretion on the issue, or (2) establishes particular criteria for withholding or refers to particular types of materials to be withheld. The Commission is authorized under the following statutory provisions to withhold materials from public inspection.

(1) Section 4(j) of the Communications Act, 47 U.S.C. 154(j), provides, in part, that, "The Commission is authorized to withhold publication of records or proceedings containing secret information affecting the national defense." Pursuant to that provision, it has been determined that the following materials should be withheld from public inspection (see also paragraph (a) of this section):

(i) Maps showing the exact location of submarine cables.

(ii) Minutes of Commission actions on classified matters.

(iii) Maps of nation-wide point-topoint microwave networks.

(2) Under section 213(f) of the Communications Act, 47 U.S.C. 213(f), the Commission is authorized to order, with the reasons therefor, that records and data pertaining to the valuation of the property of common carriers and

furnished to the Commission by the carriers pursuant to the provisions of that section, shall not be available for public inspection. If such an order has been issued, the data and records will be withheld from public inspection, except under the provisions of §0.461. Normally, however, such data and information is available for inspection. See $0.455(c) (8).

(3) Under section 412 of the Communications Act, 47 U.S.C. 412, the Commission may withhold from public inspection certain contracts, agreements and arrangements between common carriers relating to foreign wire or radio communication. Reports of negotiations regarding such foreign communication matters, filed by carriers under §43.52 of this chapter, may also be withheld from public inspection under section 412. Any person may file a petition requesting that such materials be withheld from public inspection. To support such action, the petition must show that the contract, agreement or arrangement relates to foreign wire or radio communications; that its publication would place American communication companies at a disadvantage in meeting the competition of foreign communication companies; and that the public interest would be served by keeping its terms confidential. If the Commission orders that such materials be kept confidential, they will be made available for inspection only under the provisions of $0.461.

(4) Section 605 of the Communications Act, 47 U.S.C. 605, provides, in part, that, "no person not being authorized by the sender shall intercept any communication [by wire or radio] and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communications to any person." In executing its responsibilities, the Commission regularly monitors radio transmissions (see $0.116). Except as required for the enforcement of the communications laws, treaties and the provisions of this chapter, or as authorized in section 605, the Commission is prohibited from divulging information obtained in the course of these monitoring activities; and such information, and materials

relating thereto, will not be made available for public inspection.

(5) Section 1905 of the Criminal Code, 18 U.S.C. 1905, prohibits the unauthorized disclosure of certain confidential information. See paragraph (d) of this section.

(d) Trade secrets and commercial or financial information obtained from any person and privileged or confidential, 5 U.S.C. 552(b)(4) and 18 U.S.C. 1905. Section 552(b)(4) is specifically applicable to trade secrets and commercial or financial information but is not limited to such matters. Under this provision, the Commission is authorized to withhold from public inspection materials which would be privileged as a matter of law if retained by the person who submitted them, and materials which would not customarily be released to the public by that person, whether or not such materials are protected from disclosure by a privilege. See, Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act, June 1967, at pages 32-34.

(1) The materials listed in this subparagraph have been accepted, or are being accepted, by the Commission on a confidential basis pursuant to 5 U.S.C. 552(b)(4). To the extent indicated in each case, the materials are not routinely available for public inspection. If the protection afforded is sufficient, it is unnecessary for persons submitting such materials to submit therewith a request for non-disclosure pursuant to §0.459. A persuasive showing as to the reasons for inspection will be required in requests for inspection of such materials submitted under §0.461.

(i) Financial reports submitted by licensees of broadcast stations pursuant to §1.611 of this chapter or by radio and television networks are not routinely available for public inspection. (Fees paid upon consummation of the assignment or transfer of a broadcast station license, pursuant to §1.1111 of this chapter, are computed from information contained in financial reports submitted pursuant to §1.611. Information and correspondence concerning such computations are not routinely available for public inspection.)

(ii) Applications for equipment authorizations (type acceptance, type ap

proval, certification, or advance approval of subscription television systems), and materials relating to such applications, are not routinely available for public inspection prior to the effective date of the authorization. The effective date of the authorization will, upon request, be deferred to a date no earlier than that specified by the applicant. Following the effective date of the authorization, the application and related materials (including technical specifications and test measurements) will be made available for inspection upon request (see §0.460).

(iii) Schedules 2, 3, and 4 of financial reports submitted for cable television systems pursuant to §76.403 of this chapter.

(iv) Annual fee computation forms submitted for cable television systems pursuant to §76.406 of this chapter.

(2) Prior to July 4, 1967, the rules and regulations provided that certain materials submitted to the Commission would not be made available for public inspection or provided assurance, in varying degrees, that requests for nondisclosure of certain materials would be honored. See, e.g., 47 CFR (1966 ed.) 0.417, 2.557, 5.204, 5.255, 15.70, 21.406, 80.33, 87.153, 89.215, 91.208, 91.605 and 93.208. Materials submitted under these provisions are not routinely available for public inspection. To the extent that such materials were accepted on a confidential basis under the then existing rules, they are not routinely available for public inspection. The rules cited in this subdivision were superseded by the provisions of this paragraph, effective July 4, 1967. Equipment authorization information accepted on a confidential basis between July 4, 1967 and March 25, 1974, will not be routinely available for inspection and a persuasive showing as to the reasons for inspection of such information will be required in requests for inspection of such materials submitted under §0.461.

(i) Unless the materials to be submitted are listed in paragraph (d)(1) of this section and the protection thereby afforded is adequate, it is important for any person who submits materials which he wishes withheld from public inspection under 5 U.S.C. 552(b)(4) to submit therewith a request for non-dis

closure pursuant to §0.459. If it is shown in the request that the materials contain trade secrets or commercial, financial or technical data which would customarily be guarded from competitors, the materials will not be I made routinely available for inspection; and a persuasive showing as to the reasons for inspection will be required in requests for inspection subImitted under §0.461. In the absence of a I request for non-disclosure, the Com1 mission may, in the unusual instance, determine on its own motion that the materials should not be routinely I available for public inspection. OrdiInarily, however, in the absence of such a request, materials which are submitted will be made available for inspection upon request pursuant to §0.461, even though some question may be present as to whether they contain trade secrets or like matter.

(e) Interagency and intra-agency memorandums or letters, 5 U.S.C. 552(b)(5). Interagency and intra-agency memorandums or letters and the work papers of members of the Commission or its staff will not be made available for public inspection, except in accordance with the procedures set forth in §0.461. Only if it is shown in a request under $0.461 that such a communication would be routinely available to a private party through the discovery process in litigation with the Commission will the communication be made available for public inspection. Normally such papers are privileged and not available to private parties through the discovery process, since their disclosure would tend to restrain the commitment of ideas to writing, would tend to inhibit communication among Government personnel, and would, in some cases, involve premature disclosure of their contents.

(1) Personnel, medical and other files whose disclosure would constitute a clearly unwarranted invasion of personal privacy, 5 U.S.C. 552(b)(6). (1) Under Executive Order 10561, 19 FR 5963, September 13, 1954, 3 CFR 1954-1958 Comp., page 205, the Commission maintains an Official Personnel Folder for each of its employees. Such folders are under the jurisdiction and control, and are a part of the records, of the U.S. Office of Personnel Management. Except as pro

vided in the rules of the Office of Personnel Management (5 CFR 294.701294.703), such folders will not be made available for public inspection by the Commission. In addition, other records of the Commission containing private, personal or financial information concerning particular employees will be withheld from public inspection.

(2) [Reserved]

(3) Information submitted to the Commission by applicants for commercial radio operator licenses concerning the character and mental or physical health of the applicant is available for inspection only under procedures set forth in §0.461. Except in this respect, or where other aspects of a similar private nature warrant nondisclosure, commercial radio operator application files are available for inspection.

(g) Investigatory records compiled for law enforcement purposes, to the extent that production of such records would:

(1) Interfere with enforcement proceedings;

(2) Deprive a person of a right to fair trial or an impartial adjudication;

(3) Constitute an unwarranted invasion of personal privacy;

(4) Disclose the identity of a confidential source;

(5) Disclose investigative techniques or procedures; or

(6) Endanger the life or physical safety of law enforcement personnel, 5 U.S.C. 552(b)(7).

[32 FR 10573, July 19, 1967, as amended at 32 FR 12180, Aug. 24, 1967; 39 FR 5918, Feb. 14, 1974; 39 FR 27802, Aug. 1, 1974; 40 FR 7313, Feb. 19, 1975; 40 FR 17255, Apr. 18, 1975; 40 FR 34116, Aug. 14, 1975; 40 FR 39507, Aug. 28, 1975; 42 FR 12867, Mar. 7, 1977; 43 FR 51794, Nov. 7, 1978; 45 FR 39850, June 12, 1980; 51 FR 31304, Sept. 2, 1986]

$0.459 Requests that materials or information submitted to the Commission be withheld from public inspection.

(a) Any person submitting information or materials to the Commission may submit therewith a request that such information not be made routinely available for public inspection. (If the materials are specifically listed in §0.457, such a request is unnecessary.) A copy of the request shall be attached to and shall cover all of the materials to which it applies and all cop

341-180 0-93-3

ies of those materials. If feasible, the materials to which the request applies shall be physically separated from any materials to which the request does not apply; if this is not feasible, the portion of the materials to which the request applies shall be identified.

(b) Each such request shall contain a statement of the reasons for withholding the materials from inspection (see $0.457) and of the facts upon which those reasons are based. If the request is that the materials be withheld from inspection for a limited period of time, that period shall be specified.

(c) Casual requests which do not comply with the requirements of paragraphs (a) and (b) of this section will not be considered.

(d) Requests which comply with the requirements of paragraphs (a) and (b) of this section will be acted on by the appropriate Bureau or Office Chief, who is directed to grant the request if it presents by a preponderance of the evidence a case for non-disclosure consistent with the provisions of the Freedom of Information Act, 5 U.S.C. 552. If the request is granted, the ruling will be placed in a public file in lieu of the materials withheld from public inspection. A copy of the ruling shall be forwarded to the General Counsel.

(e) If the materials are submitted voluntarily (i.e., absent any direction by the Commission), the person submitting them may request the Commission to return the materials without consideration if the request for confidentiality should be denied. In that event, the materials will ordinarily be returned (e.g., an application will be returned if it cannot be considered on a confidential basis); only in the unusual instance where the public interest so requires will the materials be made available for public inspection. If submission of the materials is required by the Commission and the request for confidentiality is denied, the materials will be made available for public inspection.

(f) If no request for confidentiality is submitted, the Commission assumes no obligation to consider the need for nondisclosure but, in the unusual instance, may determine on its own motion that the materials should be withheld from public inspection. See §0.457(g).

(g) If a request for confidentiality is denied, the person who submitted the request may, within 5 working days, file an application for review by the Commission. If the application for review is denied, the person who submitted the request will be afforded 5 working days in which to seek a judicial stay of the ruling. If these periods expire without action by the person who submitted the request, the materials will be returned to the person who submitted them or will be placed in a public file. Notice of denial and of the time for seeking review or a judicial stay will be given by telephone, with followup notice in writing. The first day to be counted in computing the time periods established in this subsection is the day after the date of oral notice.

(h) If the request is granted, the status of the materials is the same as that of materials listed in §0.457. Any person wishing to inspect them may submit a request for inspection under $0.461.

[40 FR 7313, Feb. 19, 1975, as amended at 49 FR 21719, May 23, 1984; 55 FR 8951, Mar. 9, 1990]

rou

(a) Sections 0.453 and 0.455 list those Commission records which are tinely available for public inspection and the places at which those records may be inspected. Subject to the limitations set out in this section and to the provisions of $0.466 and paragraph (k) of this section, a person who wants to inspect such records need only appear at the specified location and ask to see the records.

(b) A person who does not want a copy of the records must appear at the specified location during the office hours of the Commission and must inspect the records at that location. (Procedures governing requests for copies are set out in §0.465.) However, arrangements may be made in advance, by telephone or by correspondence, to make the records available for inspection on a particular date, and there are many circumstances in which such advance arrangements will save inconvenience. If the request is for a large number of documents, for example, a

delay in collecting them is predictable. Current records may be in use by the staff when the request is made. Older records may have been forwarded to another location for storage.

(c) The records in question must be reasonably described by the person requesting them so as to permit their location by staff personnel. The information needed to locate the records will vary, depending on the records requested. Advice concerning the kind of information needed to locate particular records will be furnished in advance upon request. Members of the public will not be given access to the area in which records are kept and will not be permitted to search the files.

(d) If it appears that there will be an appreciable delay in locating or producing the records (as where a large number of documents is the subject of a single request or where an extended search for a document appears to be necessary), the request shall be submitted in writing, either in person or by mail.

(e) Written requests shall be captioned "REQUEST FOR INSPECTION OF RECORDS", shall be dated, shall list the telephone number (if any) of the person making the request and for each document requested, shall set out all information known to the person making the request which would be helpful in identifying and locating the document. Written requests shall, in addition, specify the maximum search fee the person making the request is prepared to pay. (see §0.467)

(f) Written requests shall be delivered or mailed directly to the chief of the organizational unit having custody of the records, as listed in §§0.453 and 0.455. If the request is enclosed in an envelope, the envelope shall be marked, "REQUEST FOR INSPECTION OF RECORDS."

(g) When a written request is received by the custodian of the records, it will be date-stamped.

(h) All requests limited to records listed in §§0.453 and 0.455 will be granted, subject to paragraph (k) of this section. Requests for records listed in those sections shall not be combined with requests for other records.

(i) The records will be produced for inspection at the earliest possible

time.

(j) Records shall be inspected within 7 days after notice is given that they have been located and are available for inspection. After that period, they will be returned to storage and additional charges may be imposed for again producing them.

(k) In addition to the other requirements of this section, the following provisions apply to the reports filed with the Commission pursuant to Subpart E of Part 19 of this chapter.

(1) Such reports shall not be obtained or used: (i) For any unlawful purpose; (ii) for any commercial purpose, other than by news and communications media for dissemination to the general public; (iii) for determining or establishing the credit rating of any individual; or (iv) for use, directly or indirectly, in the solicitation of money for any political, charitable, or other purpose.

(2) Such reports may not be made available to any person nor may any copy thereof be provided to any person except upon a written application by such person stating: (i) That person's name, occupation and address; (ii) the name and address of any other person or organization on whose behalf the inspection or copying is requested; and (iii) that such person is aware of the prohibitions on the obtaining or use of the report. Further, any such application for inspection shall be made available to the public throughout the period during which the report itself is made available to the public.

(Secs. 4, 303, 307, 48 Stat., as amended, 1066, 1082, 1083; 47 U.S.C. 154, 303, 397; 18 U.S.C. 207(j))

[40 FR 7314, Feb. 19, 1975, as amended at 45 FR 85027, Dec. 24, 1980; 48 FR 44800, Sept. 30, 1983; 53 FR 39093, Oct. 5, 1988]

$0.461 Requests for inspection of materials not routinely available for public inspection.

Any person desiring to inspect Commission records which are not listed in $0.453 or $0.455 shall file a request for inspection meeting the requirements of this section.

(a) The records in question must be reasonably described by the person re