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4201 Wilson Boulevard, Arlington, VA 8612.5 Creation of records. 22230 or to the Office of the Inspector

A record will not be created by comGeneral, National Science Foundation,

piling selected items from other docu4201 Wilson Boulevard, Arlington, VA

ments at the request of a member of 22230. A request which meets the re

the public nor will a record be created quirements of paragraph (b) of this sec

by analysis, computation or other tion and is properly addressed will be

processing specifically for the requestdeemed received on the date of arrival

ing party. If such analysis or computain the Office of Legislative and Public

tion is available in the form of a Affairs or the Office of the Inspector record, copies shall be made available General.

as provided in this regulation. (d) Time for appeal. A person whose

(40 FR 12793, Mar. 21, 1975) request has been denied or partially denied may initiate an appeal by filing a 8612.6 Confidential commercial inforrequest for review within ten days of mation-notice. the receipt of the denial, Saturdays,

(a) In general. Commercial informaSundays, legal public holidays, and the

tion provided to the NSF by a submitdate of receipt excluded.

ter shall not be disclosed pursuant to a (e) Form of appeal. The appeal shall

Freedom of Information Act request include a copy of the written request except in accordance with this section. and the denial together with any writ (b) Definitions. The following definiten argument the requester wishes to tions are used in reference to this secsubmit, and shall be signed by the re tion: quester.

Commercial information means infor(1) To whom appeal is made. An appeal mation provided to the NSF by a subshall be addressed to the Deputy Direc mitter that arguably is protected from tor, National Science Foundation, 4201 disclosure under section b(4) of the Wilson Boulevard, Arlington, VA 22230. Freedom of Information Act, 5 U.S.C. (8) Decisions on appeal. Decisions on

552(b)(4) and 8612.8(a)(4) of this part. appeal shall be made by the Deputy Di

Submitter means any person, organirector in writing within 20 days (ex

zation, or entity who provides commercepting the date of receipt, Saturdays,

cial information, directly or indirectly, Sundays, and legal public holidays)

to the NSF. The term includes, but is from receipt of the appeal. If the deci

not limited to, corporations, state govsion is in favor of the requester it shall

ernments and foreign governments. order the record made available

(c) Designation of commercial informapromptly to the requester. If adverse to

tion. Submitters of commercial inforthe requester in whole or in part it

mation shall use good-faith efforts to

designate, by appropriate markings, eishall briefly state the reasons and no

ther at the time of submission or withtify the requester that he may seek ju

in a reasonable time thereafter, those dicial review of the decision pursuant

portions of their submissions which to paragraph (4) of section 552(a), title

they deem to be protected from disclo5, United States Code.

sure under 5 U.S.C. 552(b)(4) and (40 FR 12793, Mar. 21, 1975, as amended at 49 $612.8(a)(4) of this part. Such designaFR 23049, June 4, 1984; 56 FR 47416, Sept. 19, tions shall be deemed to have expired 1991; 59 FR 37438, July 22, 1994)

ten years after the date of the submis

sion unless the submitter requests, and 3612.4 Copies of records.

provides reasonable justification for, a If a requested record is to be dis designation period of greater duration. closed, a copy will be furnished the re

(d) Notice to submitters. The NSF quester as promptly as possible pro

shall, to the extent permitted by law, vided payment of fees has been ar

provide a submitter with written noranged, or has been waived pursuant to

tice of a Freedom of Information Act $ 612.13 of this part. Records will not be

request or administrative appeal enreleased for copying.

compassing its commercial informa

tion wherever required under para(56 FR 47416, Sept. 19, 1991)

graph (e) of this section, except as provided for in paragraph (f) of this sec- Information Act and, in the case of 5 tion. Such written notice, given in U.S.C. 552(b)(4) and $612.8(a)(4) of this order to afford the submitter an oppor- part, shall provide a detailed descriptunity to object to disclosure pursuant tion of why the information is a trade to paragraph (g) of this section, shall secret or commercial or financial inforbe given within a reasonable time after mation that is privileged or confidenNSF's receipt of the Freedom of Infor- tial. This description shall explain why mation Act request or administrative release of commercial or financial inappeal, consistent with statutory re formation would cause substantial quirements, and shall either describe harm to the competitive position of the the exact nature of the commercial in- submitter. Whenever possible, the subformation requested or provide copies mitter's claim of confidentiality of the records or portions thereof con- should be supported by a statement or taining the information. The requester certification by an officer or authoralso shall be notified that notice and ized representative of the submitter. an opportunity to object are being pro Information provided by a submitter vided to a submitter.

pursuant to this paragraph may itself (e) When notice is required. Notice be subject to disclosure under the shall be given to a submitter whenever: FOIA. When the submitter fails to ob

(1) The information has been des ject within the specified time or the ignated in good faith by the submitter objection appears obviously frivolous, as information deemed protected from

the NSF shall provide the submitter disclosure under 5 U.S.C. 552(b)(4) and

with written notice pursuant to para8612.8(a)(4) of this part, or

graph (f)(4) of this section. (2) The NSF has reason to believe

(h) Notice of intent to disclose. The that the information may be protected

NSF shall consider a submitter's objecfrom disclosure under 5 U.S.C. 552(b)(4)

tions and specific grounds for non-disand 8612.8(a)(4) of this part.

closure prior to determining whether (f) Exceptions to notice requirements.

to disclose confidential information. The notice requirements of paragraph

Whenever the Foundation decides to (d) of this section shall not apply if:

disclose confidential information over (1) The NSF determines that the in

the objection of a submitter, the NSF formation should not be disclosed;

shall forward to the submitter a writ(2) The information lawfully has been

ten notice which shall include: published or has been officially made

(1) A statement of the reasons for available to the public;

which the submitter's disclosure objec(3) Disclosure of the information is

tions wee not sustained; required by law (other than 5 U.S.C.

(2) A description of the confidential 552); or

information to be disclosed; and (4) The designation made by the sub

(3) A specified disclosure date. mitter in accordance with paragraph

Such notice of intent to disclose shall (c) of this section appears obviously

be forwarded to the submitter at least frivolous, except that, in such case, the ten days prior to the specified discloNSF shall send to the submitter writ sure date and the requester shall be noten notice of any final administrative

tified likewise. decision to disclose commercial infor

(i) Notice of FOIA lawsuit. Whenever a mation at least ten days prior to a

requester brings suit seeking to compel specified disclosure date.

disclosure of confidential information, (g) Opportunity to object to disclosure.

the NSF shall promptly notify the subThrough the notice described in para

mitter. h (d) of this section, the NSF shall (56 FR 47416, Sept. 19, 1991) afford a submitter a reasonable time, consistent with statutory require- $612.7 Agency actions on receipt of a ments, within which to provide the properly presented request for NSF with a detailed written statement

record. of any objection to disclosure. Such (a) Monitoring of requests. The NSF statement shall specify all grounds for Office of Legislative and Public Affairs, withholding any of the information or such other office as may be desunder any exemption of the Freedom of ignated by the Director, will serve as

the central office for internal administration of these regulations. For records maintained by the Office of Inspector General, that Office will control incoming requests made directly to it, dispatch response letters, and maintain administrative records. For all other records maintained by NSF, the Office of Legislative and Public Affairs, or such other office as may be designated by the Director, will control incoming requests, assign them to appropriate action offices, monitor compliance, consult with action offices on disclosure, approve unavoidable extensions, dispatch denial and other letters, and maintain administrative records.

(b) Time for response. The Foundation will seek to take appropriate agency action on a request within 10 days of its receipt (excepting the date of receipt, Saturdays, Sundays, and legal public holidays). If the record may exist only in a retired file which has been placed in storage or there is otherwise a need to search for and collect the requested records from field facilities or other establishments that are separate from the Foundation, NSF shall immediately notify the requester by letter that the record has been ordered from storage (or is otherwise being sought) and that the time limit for acting on the request is extended by the length of time required to obtain the record. The letter will also give the date on which a determination is expected to be dispatched. If the request seeks a voluminous amount of separate and distinct records requiring an unusual length of time for search, collection, and appropriate examination, and determination on the request cannot be made within 10 working days after agency receipt, NSF shall within such ten-day period furnish to the requester written notice extending the period for not more than ten working days. This notice shall set forth the reasons for such extension and the date on which a determination is expected to be dispatched. If the record has not been obtained and examined and notice of the determination whether to comply with the request has not been given by the last day of the period as extended, the requester shall be notified on that last day that the request is denied because the record has not yet been found and

examined. Such denial shall state that NSF will reconsider the denial as soon as the search and examination is complete, which should be within a specifically stated number of days, but that the requester may, if he wishes, file an administrative appeal as provided in $612.3 of this regulation. This same procedure for extending the period shall be followed if the nature of the record requires consultation with another agency having a substantial interest in the determination of the request or requires consultation among two or more components of NSF having substantial subject-matter interest therein.

(c) Records containing commercial information. When the requested record contains confidential commercial information such as a successful proposal that was submitted to NSF, the NSF will normally contact, in accordance with 8612.6 of this part, the organization that submitted the record in order to ask whether the submitter wished portions of the records withheld under any applicable exemptions. (The Foundation protects from disclosure pending proposals or unsuccessful proposals in any case.)

(d) Denial of request No written request for records shall be denied except by the Director of the Office of Legislative and Public Affairs, the Office of Inspector General or such other office as may be designated by the Director. Notice of the denial of a request shall briefly set forth the reasons therefor which shall be based solely upon one or more of the exemptions specified in 8612.8 of this part. Each notice of denial shall set forth the names and title or positions of each person responsible for the denial and shall inform the requester of the right to appeal as provided in $612.3 of this part.

(e) Oral requests. Nothing in these regulations shall be deemed to preclude NSF from honoring oral requests for information where feasible, but if the requester is dissatisfied with the disposition of such a request, he shall be asked to put the request in writing. (40 FR 12793, Mar. 21, 1975, as amended at 49 FR 23050, June 4, 1984; 56 FR 47417, Sept. 19, 1991)

8612.8 Records not available.

(4) Trade secrets and commercial or

financial information obtained from a (a) Exemptions. The following types of

person and privileged or confidential. records are not normally available for

Matter subject to this exemption is inspection and copying:

that which is customarily held in con(1) Records specifically authorized

fidence by the originator without reand in fact properly classified pursuant

gard to whether or not the originator to Executive Order to be kept secret in

is, or is not employed by, a nonprofit the interest of national defense or for

organization. It includes, but is not eign policy

limited to: (2) Records related solely to the in

(i) Information received in conternal personnel rules and practices of

fidence, such as grant applications, felNSF. This exemption does not apply to lowship applications and research prorules relating to the work hours, leave,

posals prior to award; and working conditions of NSF person

(ii) Statistical data or information if nel, or similar matters, to the extent

received in confidence from a contracthat they can be disclosed without

tor or potential contractor concerning harm to the functions to which they

contract performance, income, profits, pertain. Examples of exempt records of

losses, and expenditures. the type specified in the first sentence

(5) Inter-agency or intra-agency of this paragraph include, but are not

memoranda or letters which would not limited to:

be available by law to a private party (1) Operating rules, guidelines, manu in litigation with NSF. To the extent als on internal procedure, schedules

not so available by law, examples inand methods utilized by NSF auditors

clude, but are not limited to: and examiners;

(i) Reports, memoranda, correspond(ii) Negotiating positions and limita- ence, work papers, minutes of meetings tions involved in a negotiation prior to (other than those governed by the Fedthe execution of a contract or the com- eral Advisory Committee Act), and pletion of the action to which the nego staff papers prepared for use within tiating positions or limitations were NSF or within the Executive Branch of applicable. They may also be exempt the Government by personnel and conpursuant to other provisions of this sultants of NSF, or any Government section.

agency. (iii) Personnel policies, procedures (ii) Advance information on proposed and instructions, internal staffing NSF plans to procure, lease, or otherplans, requirements, authorizations, wise acquire, or dispose of materials, controls, and supporting data relating real estate, facilities, services or functo position management and manpower tions, when such information would utilization and information involved in provide undue or unfair competitive the determination of the qualifications advantage to any person; of candidates for employment or ad (iii) Records prepared for use in provancement.

ceedings before any Federal or State (3) Records specifically exempted court or administrative body; from disclosure by statute such as 18 (iv) Evaluations of and comments on U.S.C. 1905 which prohibits disclosure specific grant applications, research of information which concerns or re- proposals, or potential contractors, lates to the trade secrets, processes, whether made by NSF personnel or by operations, style of work, or apparatus external reviewers acting either indior to the identity, confidential statis- vidually or in committees; tical data, amount or source of any in- (v) Preliminary, draft unapproved come, profits, losses, or expenditures of recommendations, evaluations, and any person, firm, partnership, corpora opinions, such as evaluations of invention or association. This also includes tion disclosures, of research projects, records that disclose any invention in and of incomplete studies conducted or which the Federal Government owns or supported by NSF; may own a right, title, or interest (in (vi) Proposed budget requests and cluding a nonexclusive license) as pro- supporting projections used or arising vided in 35 U.S.C. 205.

in the preparation and/or execution of

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a budget; proposed annual and multimis year policy, priorities, program and fi

nancial plan and supporting papers.

(6) Personnel and medical files and is the similar files, the disclosure of which Er would constitute a clearly unwarranted bej invasion of personal privacy. Informa5.as tion in such files which is not otherSet wise exempt from disclosure pursuant

to other provisions of this section will ed: be released to the subject or to his dessignated legal representative, and it

may be disclosed to others with his

written consent. Examples of personnel -1 files exempt from disclosure include, Jos but are not limited to, file containing

reports, records and other materials di pertaining to individual cases in which

disciplinary or other administrative action has been or may be taken. Simi

lar files include reports and evalua- tions which reflect upon the qualifica

tions or competence of individuals. Opinions and orders resulting from those proceedings shall be disclosed

without identifying details if used, gold cited, or relied upon as precedent.

(7) Records or information compiled

for law enforcement purposes, but only ar to the extent that the production of 5$ such law enforcement records or inforen mation:

(1) Could reasonably be expected to interfere with enforcement proceedThings,

(11) Would deprive a person or a right to a fair trial or an impartial adjudication,

(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy,

(iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis,

(v) 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 pected to risk circumvention of the law, or

(vi) Could reasonably be expected to endanger the life or physical safety of any individual.

(8) Matters contained in or related to examination, operating, or condition reports prepared by, or on behalf of, or for the use of any government agency responsible for the regulation or supervision of financial institutions.

(9) Geological and geophysical information and data (including maps) concerning wells.

(10) Records belonging to another government agency or dealing with subject matter as to which government agency, other than NSF, has exclusive or primary responsibility. Requests for such records shall be promptly forwarded to the appropriate government agency for disposition or for guidance with respect to disposition.

(b) Deletion of erempt portion and identifying details. Any reasonably segregable portion of a record shall be provided to any person requesting such record 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 or names 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 as a preamble:

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. (40 FR 12793, Mar. 21, 1975, as amended at 47 FR 54943, Dec. 7, 1982. Redesignated at 49 FR 23050, June 4, 1984, and amended at 52 FR 43073, Nov. 9, 1987; 56 FR 47417, Sept. 19, 1991)

8 612.9 Fees to be charged-defini.

tions. For the purpose of these Guidelines:

(a) All the terms defined in the Freedom of Information Act apply.

(b) A statute specifically providing for setting the level of fees for particular types of records (5 U.S.C. 552(a)(4)(A)(vi)) means any statute that specifically requires a government agency, such as the Government Printing Office (GPO) or the National Technical Information

ex

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