courses or in the determination of the qualifications of candidates for employment, entrance on duty, advancement, or promotion.

(3) Computer software, the release of which would allow circumvention of a statute or Department of the Navy rules, regulations, orders, manuals, directives, or instructions. In this situation, the use of the software must be closely examined to ensure the possibility of circumvention exists.

(4) Security classification guides. (b) Records qualifying under the low (b)(2) profile are those that are trivial and housekeeping in nature for which there is no legitimate public interest or benefit to be gained by release, and it would constitute an administrative burden to process the request in order to disclose the records. Examples include, rules of personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave, and trivial administrative data such as file numbers, mail routing stamps, initials, data processing notations, brief references to previous communication, and other like administrative markings.

§ 701.25 Exemption (b)(3).

Those concerning matters that a statute specifically exempts from disclosure by terms that permit no discretion on the issue, or under criteria established by that statute for withholding or referring to particular types of matters to be withheld. Authorization or requirement may be found in the statute itself or in Executive orders or regulations authorized by, or in implementation of a statute. Examples include:

(a) National Security Agency Information Exemption, Pub. L. 86-36, Section 6.

(b) Confidentiality of identity of employee who complains to the IG (5 U.S.C. App., Inspector General Act of 1978, section 7).

(c) Ethics in Government Act of 1978-Protecting Financial Disclosure Reports of Special Government Employees (5 U.S.C. App., Ethics in Government Act of 1978, section 207(a) (1) and (2)).

(d) Civil Service Reform Act-Representation Rights and Duties, Labor Unions, 5 U.S.C. 7114(b)(4).

(e) Authority to Withhold Unclassified Special Nuclear Weapons Information, 10 U.S.C. 128. This statute prohibits the unauthorized dissemination of unclassified information pertaining to security measures, including security plans, procedures, and equipment for the physical protection of special nuclear material.

(f) Authority to Withhold Unclassified Technical Data with Military or Space Application, 10 U.S.C. 130.

(g) Action on Reports of Selection Boards, 10 U.S.C. 618.

(h) Confidentiality of Medical Quality Records: Qualified Immunity Participants, 10 U.S.C. 1102.

(i) Confidentiality Records, 12 U.S.C. 3403.

of Financial

(j) Communication Intelligence, 18 U.S.C. 798.

(k) Confidential Status of Patent Applications, 35 U.S.C. 122.

(1) Secrecy of Certain Inventions and Withholding of Patents (specific applicable section(s) must be involved, 35 U.S.C. 181 through 188.

(m) Confidentiality of Inventions Information, 35 U.S.C. 205.

(n) Procurement Integrity, 41 U.S.C. 423.

(0)

Confidentiality of Patient Records, 42 U.S.C. 290dd-2.

(p) Information regarding Atomic Energy: Restricted and Formerly Restricted Data (Atomic Energy Act of 1954), specific applicable exemptions must be invoked (e.g., 42 U.S.C. 2161 through 2168).

(q) Protection of Intelligence Sources and Methods, 50 U.S.C. 403(d)(3).

(r) Protection of identities of US undercover intelligence officers, agents, informants and sources, 50 U.S.C. 421.

(s) Examples of statutes which DO NOT qualify under exemption (b)(3) include: 5 U.S.C. 552a, Privacy Act; 17 U.S.C. 101 et seq., Copyright Act; 18 U.S.C. 793, Gathering, Transmitting or Losing Defense Information to Aid Foreign Governments; 18 U.S.C. 1905, Trade Secrets Act; and 28 U.S.C. 1498, Patent and Copyright Cases.

[56 FR 66574, Dec. 24, 1991, as amended at 59 FR 29722, June 9, 1994]

§ 701.26 Exemption (b)(4).

Those containing trade secrets or commercial or financial information that a naval activity receives from a person or organization outside the Government with the understanding that the information or record will be retained on a privileged or confidential basis. Records within the exemption must contain trade secrets, or commercial or financial records, the disclosure of which is likely to cause substantial harm to the competitive position of the source providing the information, impair the government's ability to obtain necessary information in the future, or impair some other legitimate government interest. Examples include:

(a) Commercial or financial information received in confidence in connection with loans, bids, contracts, or proposals, as well as other information received in confidence or privileged such as trade secrets, inventions and discoveries, or other proprietary data.

(b) Statistical data and commercial or financial information concerning contract performance, income, profits, losses, and expenditures, if offered and received in confidence from a contractor or potential contractor.

(c) Personal statements given 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.

(d) Financial data provided in confidence by private employers in connection with local wage surveys used to fix and adjust pay schedules applicable to the prevailing wage rate for employees within the Department of the Navy.

(e) Scientific and manufacturing processes or developments concerning technical or scientific data or other information submitted with an application for a research grant, or with a report while research is in progress.

(f) Technical or scientific data developed by a contractor or subcontractor exclusively at private expense, or developed in part with federal funds and in part at private expense, where the contractor or subcontractor retains a legitimate proprietary interest in the

data under 10 U.S.C. 2320-2321 and DOD Federal Acquisition Regulation Supplement (DFARS), subpart 27.4. Technical data developed exclusively with federal funds may be withheld under exemption (b)(3) if it meets the criteria of 10 U.S.C. 130.

(g) Computer software which is copyrighted under the Copyright Act of 1976 (17 U.S.C. 106), the disclosure of which would have an adverse impact on the potential market value of a copyrighted work.

Note: The status of unit prices in awarded in government contracts, once a controversial issue, has become more settled with recent court decisions. The courts have held that disclosure of unit prices would not directly reveal confidential proprietary information, such as a company's overhead, profit rates, or multiplier, and that the possibility of competitive harm was thus too speculative.

§ 701.27 Exemption (b)(5).

Those records containing internal advice, recommendations, and subjective evaluations, as contrasted with factual matters, that are reflected in records pertaining to the decision-making process of an agency, whether between agencies or between Department of Defense and Department of the Navy components, except as provided in §701.27 number (b) through (e). Also exempted are records pertaining to the attorneyclient privilege and the attorney workproduct privilege.

(a) Examples include:

(1) Nonfactual portions of staff papers, to include after-action reports and situation reports containing staff evaluations, advice, opinions, or suggestions.

(2) Advice, suggestions, or evaluations prepared on behalf of Department of the Navy individual consultants or by boards, committees, councils, groups, panels, conferences, commissions, task forces, or other similar groups formed for the purpose of obtaining advice and recommendations.

(3) Nonfactual portions of evaluations by Department of the Navy personnel of contractors and their products.

(4) Information of a speculative, tentative, or evaluative nature on proposed plans to procure, lease, or otherwise acquire and dispose of materials, real estate, facilities, or functions, when such information would provide undue or unfair competitive advantage to private personal interests or would impede legitimate government functions.

(5) 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 interests.

(6) Records that are exchanged among agency personnel and between Department of the Navy, Department of Defense, or other agencies in preparation for anticipated administrative proceeding by an agency or litigation before any federal, state, or military court, as well as records that qualify for the attorney-client privilege.

(7) Portions of official reports of inspection, reports of the Inspector Generals, audits, investigations, or surveys pertaining to safety, security, of the internal management, administration, or operation of one or more naval activities, when these records have traditionally been treated by courts as privileged against disclosure in litigation.

(8) Computer software meeting the standards of §701.3(b)(3) which is deliberative in nature, the disclosure of which would inhibit or chill the decision making process. In that situation, the use of software must be closely examined to ensure its deliberative nature.

(9) Planning, programming, and budgetary information which is involved in the defense planning and resource allocation process.

(b) If any such intra- or interagency record or reasonably segregable portion of such record would be made available routinely through the "discovery process" (the legal process by which litigants obtain information from each other relevant to the issues in a trial or hearing) in the course of litigation with Department of the Navy, such record, should not be withheld even though discovery has not been sought in actual litigation. If, the information could only be made available through

the discovery process by special order of the court based on the needs of a litigant balanced against the interests of the Department of the Navy in maintaining its confidentiality, the record or document need not be made available under this instruction. Consult with legal counsel to determine whether exemption (b)(5) material would be routinely made available through the discovery process.

(c) Intra- or interagency memoranda or letters that are factual, or those reasonably segregable portions that are factual, are routinely available through "discovery" and shall be made available to a requester, unless the factual material is otherwise exempt from release, inextricably intertwined with the exempt information, so fragmented as to be uninformative, or so redundant of information already available to the requester as to provide no new substantive information.

(d) A direction or order from a superior to a subordinate contained in internal communication cannot be withheld from a requester if it constitutes policy guidance or a decision, as distinguished from a discussion of preliminary matters or a request for information or advice that would compromise the decision-making process.

(e) An internal communication on a decision subsequently made a matter of public record must be made available to a requester when the rationale for the decision is expressly adopted or incorporated by reference in the record containing the decision.

§ 701.28 Exemption (b)(6).

Information in personnel and medical files, and similar files, that if disclosed to the requester would result in a clearly unwarranted invasion of personal privacy. Release of information about an individual contained in a Privacy Act (PA) system of records that would constitute a clearly unwarranted invasion of privacy is prohibited, and could subject the releaser to civil and criminal penalties.

(a) Examples of files other than personnel and medical files containing similar personal information include:

(1) Those compiled to evaluate or adjudicate the suitability of candidates

for civilian employment or membership in the Armed Forces, and the eligibility of individuals (civilian, military, or contractor employees) for security clearances, or for access to particularly sensitive classified information.

(2) Files containing reports, records, and other material pertaining to personnel matters in which administrative action, including disciplinary action, may be taken.

(b) Home addresses are normally not releasable without the consent of the individuals concerned. In addition, lists of Department of the Navy military and civilian personnel's names and duty addresses who are assigned to units that are sensitive, routinely deployable, or stationed in foreign territories can constitute a clearly unwarranted invasion of personal privacy.

(1) Privacy interest. A privacy interest may exist in personal information even though the information has been disclosed at some place and time. If personal information is not freely available from sources other than the Federal Government, a privacy interest exists in its nondisclosure. The fact that the Federal Government expended funds to prepare, index and maintain records on personal information, and the fact that a requester invokes FOIA to obtain these records indicates the information is not freely available.

(2) Published telephone directories, organizational charts, rosters and similar materials for personnel assigned to units that are sensitive, routinely deployable, or stationed in foreign territories are withholdable under exemption (b)(6).

(c) This exemption is relevant to a request for information that is intimate to an individual or that possibly could have adverse effects upon that individual or his or her family if disclosed. Subpart F of this Part 701 lists several examples of non-derogatory information about the official character of a naval member or employee that can routinely be disclosed to a member of the public without constituting a clearly unwarranted invasion of personal privacy of the individual concerned.

(d) Individuals' personnel, medical, or similar files may be withheld from

them or their designated legal representative only to the extent consistent with PA.

(e) When determining whether a release is "clearly unwarranted," the public interest in release must be balanced against the sensitivity of the privacy interest threatened. For example, lists of names and duty addresses of Department of the Navy personnel (civilian and military) assigned to units that are sensitive, routinely deployable, or stationed in foreign territories must be withheld because release could aid in the targeting of Department of the Navy employees and their families by terrorists. See paragraph (p) of $701.8 regarding requests for mailing lists.

(f) When withholding information solely to protect the personal privacy of the subject of the record, information should not be withheld from that individual or from his or her designated representative. The personal privacy of others discussed in that record may constitute a basis for deleting reasonably segregable portions of the record even when providing it to the subject of the record. This exemption shall not be exercised in an attempt to protect the privacy of a deceased person but may be used to protect the privacy of the deceased person's family.

(g) Individual's personnel, medical, or similar file may be withheld from them or their designated legal representative only as consistent with SECNAVINST 5211.5C, "Personal Privacy and Rights of Individuals Regarding Records Pertaining to Themselves."

(h) A clearly unwarranted invasion of the privacy of the persons identified in a personnel, medical, or similar record may constitute a basis for deleting those reasonably segregable portions of that record, even when providing it to the subject of the record. When withholding personal information from the subject of the record, legal counsel should first be consulted.

§ 701.29 Exemption (b)(7).

Records or information compiled for law enforcement purposes, (i.e., civil, criminal, or military law, including

the implementation of Executive orders or regulations issued pursuant to law). This exemption may be invoked to prevent disclosure of documents not originally created for, but later gathered for law enforcement purposes.

(a) This exemption applies, however, only to the extent that production of such law enforcement records or information:

(1) Could reasonably be expected to interfere with enforcement proceedings (5 U.S.C. 552(b)(7)(A));

(2) Would deprive a person of the right to a fair trial or an impartial adjudication (5 U.S.C. 552(b)(7)(B));

(3) Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a living person, including surviving family members of an individual identified in such a record (5 U.S.C. 552(b)(7)(C));

(i) This 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. In this situation, naval activities shall neither confirm nor deny the existence or non-existence of the record being requested.

(ii) A refusal to "neither confirm nor deny" response must be used consistently, not only when a record exists, but also when a record does not exist. Otherwise, the pattern of using a "no records" response when a record does not exist and a "refusal to neither confirm nor deny" when a record does exist will itself disclose personally private information.

(iii) Refusal to "neither confirm nor deny" should not be used when the person whose personal privacy is in jeopardy has provided the requester with a waiver of his or her privacy rights; or, the person whose personal privacy is in jeopardy is deceased, and the agency is aware of that fact.

(4) could reasonably be expected to disclose the identity of a confidential source, including a source within the DON, a state, local, or foreign agency or authority, or any private institution which furnishes information on a confidential basis; could disclose information furnished from a confidential source and obtained by a criminal law

enforcement authority in a criminal investigation or by an agency conducting a lawful national security intelligence investigation (5 U.S.C. 552 (b)(7)(D));

(5) 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 (5 U.S.C. 552(b)(7)(E)); or,

(6) Could reasonably be expected to endanger the life or physical safety of any individual (5 U.S.C. 552(b)(7)(F)). (b) Examples include:

(1) Statements of witnesses and other material developed during the course of the investigation and all materials prepared in connection with related government litigation or adjudicative proceedings.

(2) The identity of firms or individuals investigated for alleged irregularities involving contracting with Department of Defense or Department of the Navy when no indictment has been obtained nor any civil action filed against them by the United States.

(3) Information obtained in confidence, expressed or implied, in the course of a criminal investigation by a criminal law enforcement agency or office within Department of Defense, or a lawful national security intelligence investigation conducted by an authorized agency or office within Department of Defense. National security intelligence investigations include background security investigations conducted for the purpose of obtaining affirmative or counterintelligence information.

(c) The right of individual litigants to investigate records currently available by law.

(d) When the subject of an investigative record is the requester of the record, it may be withheld only as authorized by SECNAVINST 5211.5C, "Personal Privacy and Rights of Individuals Regarding Records Pertaining to Themselves."

(e) Exclusions. Excluded from this exemption are the following two situations: