[Title 32 CFR 518.37]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Chapter V - DEPARTMENT OF THE ARMY]
[Subchapter A - AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS]
[Part 518 - THE ARMY FREEDOM OF INFORMATION ACT PROGRAM]
[Subpart C - Exemptions]
[Sec. 518.37 - FOIA exemptions.]
[From the U.S. Government Printing Office]


32NATIONAL DEFENSE32002-07-012002-07-01false518.37Sec. 518.37NATIONAL DEFENSEDEPARTMENT OF THE ARMYAID OF CIVIL AUTHORITIES AND PUBLIC RELATIONSTHE ARMY FREEDOM OF INFORMATION ACT PROGRAMExemptions
Sec. 518.37  FOIA exemptions.

    The following types of records may be withheld by the IDA in whole 
or in part from public disclosure under the FOIA, unless otherwise 
prescribed by law. A discretionary release (also see Sec. 518.23) to one 
requester may preclude the withholding of the same record under a FOIA 
exemption if the record is subsequently requested by someone else. In 
applying exemptions, the identity of the requester and the purpose for 
which the record is sought are irrelevant with the exception that an 
exemption may not be invoked where the particular interest to be 
protected is the requester's privacy interest.
    (a) Number 1. Those properly and currently classified in the 
interest of national defense or foreign policy, as specifically 
authorized under the criteria established by executive order and 
implemented by regulations, such as DoD 5200.1-R (reference h). Although 
material is not classified at the time of the FOIA request, a 
classification review may be undertaken to determine whether the 
information should be classified. The procedures in Sec. 518.53(c)(4) 
apply. In addition, this exemption shall be invoked when the following 
situations are apparent:
    (1) The fact of the existence or nonexistence of a record would 
itself reveal classified information. In this situation, Components 
shall neither confirm nor deny the existence or nonexistence of the 
record being requested. A ``refusal to confirm or 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 record'' 
response when a record does not exist, and a ``refusal to confirm or 
deny'' when a record does exist will itself disclose national security 
information.
    (2) Information that concerns one or more of the classification 
categories established by executive order and DoD 5200.1-R (reference 
(h)) shall be classified if its unauthorized disclosure, either by 
itself or in the context of other information, reasonably could be 
expected to cause damage to the national security.
    (b) Number 2. Those related solely to the internal personnel rules 
and practices of DoD or any of its Components. This exemption has two 
profiles, high b2 and low b2.
    (1) Records qualifying under high b2 are those containing or 
constituting statitutes, rules, regulations, orders, manuals, 
directives, and instructions the release of which would allow 
circumvention of these records thereby substantially hindering the 
effective performance of a significant function of the DoD. Examples 
include:
    (i) Those operating rules, guidelines, and manuals for DoD 
investigators, inspectors, auditors, or examiners that must remain 
privileged in order for the DoD Component to fulfill a legal 
requirement.
    (ii) Personnel and other administrative matters, such as examination 
questions and answers used in training courses or in the determination 
of the qualification of candidates for employment, entrance on duty, 
advancement, or promotion.
    (iii) Computer software meeting the standards of Sec. 518.10(c), the 
release of which would allow circumvention of statute or DoD rules, 
regulations, orders, directives, or instructions. In this situation, the 
use of the software must

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be closely examined to ensure a circumvention possibility exists.
    (2) Records qualifying under the low b2 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 these 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 communications, and other like administrative 
markings.
    (3) Negotiation and bargaining techniques, practices, and 
limitations.
    (c) Number 3. Those concerning matters that a statute specifically 
exempts from disclosure by terms that permit no discretion on the issue, 
or in accordance with criteria established by that statute for 
withholding or referring to particular types of matters to be withheld. 
Examples of statutes are:
    (1) National Security Agency Information Exemption, Pub. L. 86-36, 
Section 6 (reference (c)).
    (2) Patent Secrecy, 35 U.S.C. 181-188 (reference (i)). Any records 
containing information relating to inventions that are the subject of 
patent applications on which Patent Secrecy Orders have been issued.
    (3) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162 
(reference (j)).
    (4) Communication Intelligence, 18 U.S.C. 798 (reference (k)).
    (5) Authority to Withhold From Public Disclosure Certain Technical 
Data, 10 U.S.C. 130 and DoD Directive 5230.25 (reference (w) and (aa)).
    (6) Confidentiality of Medical Quality Records: Qualified Immunity 
Participants, 10 U.S.C. 1102 (reference (cc)).
    (7) Physical Protection of Special Nuclear Material: Limitation on 
Dissemination of Unclassified Information, 10 U.S.C. 128 (reference ii).
    (8) Protection of Intelligence Sources and Methods, 50 U.S.C. 
403(d)(3).
    (d) Number 4. Those containing trade secrets or commercial or 
financial information that a DoD Component 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 in accordance with the customary handling of such records. 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 records that contain:
    (1) 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, discoveries, or other proprietary data. See Public Law 101-
189, National Defense Authorization Act, November 1989, 103 Stat. 1352 
(Sec. 518.1(k)).
    (2) 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.
    (3) 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.
    (4) Financial data provided in confidence by private employers in 
connection with locality wage surveys that are used to fix and adjust 
pay schedules applicable to the prevailing wage rate of employees within 
the Department of Defense.
    (5) 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.
    (6) Technical or scientific data developed by a contractor or 
subcontractor exclusively at private expense, and technical or 
scientific data developed

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in part with Federal funds and in part at private expense, wherein the 
contractor or subcontractor has retained legitimate proprietary 
interests in such data in accordance with 10 U.S.C. 2320-2321 and DoD 
Federal Acquisition Regulation Supplement (DFARS), subpart 227.4 
(references (aa) and (cc)). Technical data developed exclusively with 
Federal funds may be withheld under Exemption Number 3 if it meets the 
criteria of 10 U.S.C. 130 and DoD Directive 5230.25 (reference (v)) (see 
Sec. 518.37(e)).
    (7) Computer software meeting the conditions of section 518.10(c), 
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.
    (e) Number 5. Except as provided in paragraphs (e)(2) through (5) of 
this section, 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 
within or among agencies (as defined in 5 U.S.C. 552(e) (reference (a)), 
or within or among DoD Components. Also exempted are records pertaining 
to the attorney-client privilege and the attorney work-product 
privilege.
    (1) Examples include:
    (i) The nonfactual portions of staff papers, to include after-action 
reports and situation reports containing staff evaluations, advice, 
opinions or suggestions.
    (ii) Advice, suggestions, or evaluations prepared on behalf of the 
Department of Defense by individual consultants or by boards, 
committees, councils, groups, panels, conferences, commissions, task 
forces, or other similar groups that are formed for the purpose of 
obtaining advice and recommendations.
    (iii) Those nonfactual portions of evaluations by DoD Component 
personnel of contractors and their products.
    (iv) Information of a speculative, tentative, or evaluative nature 
or such matters as 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.
    (v) 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.
    (vi) Records that are exchanged among agency personnel and within 
and among DoD Components or agencies as part of the 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.
    (vii) Those portions of official reports of inspection, reports of 
the Inspector Generals, audits, investigations, or surveys pertaining to 
safety, security, or the internal management, administration, or 
operation of one or more DoD Components, when these records have 
traditionally been treated by the courts as privileged against 
disclosure in litigation.
    (viii) Computer software meeting the standards of Sec. 518.10(c), 
which is deliberative in nature, the disclosure of which would inhibit 
or chill the decision making process. In this situation, the use of 
software must be closely examined to ensure its deliberative nature.
    (ix) Planning, programming, and budgetary information which is 
involved in the defense planning and resource allocation process (see 
reference (kk)).
    (2) If any such intra or interagency record or reasonably segregable 
portion of such record hypothetically would be made available routinely 
through the ``discovery process'' in the course of litigation with the 
agency, i.e., the process by which litigants obtain information from 
each other that is relevant to the issues in a trial or hearing, then it 
should not be withheld from the general public even though discovery has 
not been sought in actual litigation. If, however, the information 
hypothetically would only be made available through the discovery 
process by special order of the court based on

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the particular needs of a litigant, balanced against the interest of the 
agency in maintaining its confidentiality, then the record or document 
need not be made available under this Regulation. Consult with legal 
counsel to determine whether exemption 5 material would be routinely 
made available through the discovery process.
    (3) Intra or interagency memoranda or letters that are factual, or 
those reasonably segregable portions that are factual, are routinely 
made 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.
    (4) A direction or order from a superior to a subordinate, though 
contained in an internal communication, generally 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.
    (5) An internal communication concerning a decision that 
subsequently has been made a matter of public record must be made 
available to a requester when the rationale for the decision is 
expressly adopted or referenced in the record containing the decision.
    (f) Number 6. Information in personnel and medical files, as well as 
similar personal information in other 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 System of records that would constitute a clearly 
unwarranted invasion of privacy is prohibited, and could subject the 
releaser to civil and criminal penalties.
    (1) Examples of other files containing personal information similar 
to that contained in personnel and medical files include:
    (i) 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.
    (ii) Files containing reports, records, and other material 
pertaining to personnel matters in which administratve action, including 
disciplinary action, may be taken.
    (2) Home addresses are normally not releasable without the consent 
of the individuals concerned. In addition, the release of lists of DoD 
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.
    (i) 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 Government expended funds to prepare, index and maintain records on 
personal information, and the fact that a requester invokes FOIA to 
obtain these records indicated the information is not freely available.
    (ii) 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 this exemption.
    (3) This exemption shall not be used in an attempt to protect the 
privacy of a deceased person, but it may be used to protect the privacy 
of the deceased person's family.
    (4) Individuals' personnel, medical, or similar file may be withheld 
from them or their designated legal representative only to the extent 
consistent with DoD Directive 5400.11 (reference (d)).
    (5) A clearly unwarranted invasion of the privacy of the persons 
indentified 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.

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When withholding personal information from the subject record, legal 
counsel should first be consulted.
    (6) Requests for access to or release of records, before appellate 
review, of courts-martial or special courts-martial involving a bad 
conduct discharge should be addressed as in appendix B, paragraph 5. 
This guidance does not preclude furnishing records of a trial to an 
accused.
    (g) Number 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 also applies to law enforcement investigations such 
as Inspector General investigations. This exemption may be invoked to 
prevent disclosure of documents not originally created for, but later 
gathered for law enforcement purposes.
    (1) This exemption applies, however, only to the extent that 
production of such law enforcement records or information could result 
in the following:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings.
    (ii) Would deprive a person of the right to a fair trial or to an 
impartial adjudication.
    (iii) 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.
    (A) 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, 
Components shall neither confirm nor deny the existence or nonexistence 
of the record being requested.
    (B) A ``refusal to confirm or 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 confirm or deny'' when a 
record does exist will itself disclose personally private information.
    (C) Refusal to confirm or deny should not be used when (1) the 
person whose personal privacy is in jeopardy has provided the requester 
with a waiver of his or her privacy rights; or (2) the person whose 
personal privacy is in jeopardy is decreased, and the agency is aware of 
the fact.
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a source within the Department of 
Defense, a State, local, or foreign agency or authority, or any private 
institution which furnishes the information on a confidential basis.
    (v) 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.
    (vi) 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.
    (vii) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (2) Examples include:
    (i) 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.
    (ii) The identity of firms or individuals being investigated for 
alleged irregularities involving contracting with the Department of 
Defense (Army) when no indictment has been obtained nor any civil action 
filed against them by the United States.
    (iii) Information obtained in confidence, expressed or implied, in 
the course of a criminal investigation by a criminal law enforcement 
agency or office within a DoD Component, or a lawful national security 
intelligence investigation conducted by an authorized

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agency or office within a DoD Component. National security intelligence 
investigations include background security investigations and those 
investigations conducted for the purpose of obtaining affirmative or 
counterintelligence information.
    (3) The right of individual litigants to investigative records 
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500, 
reference (l)) is not diminished.
    (4) When the subject of an investigative record is the requester of 
the record, it may be withheld only as authorized by DoD Directive 
5400.11 (reference (d)). The Army implementing directive is AR 340-21.
    (5) Exclusions. Excluded from the above exemption are the following 
two situations applicable to the Department of Defense:
    (i) Whenever a request is made which involves access to records or 
information compiled for law enforcement purposes, and the investigation 
or proceeding involves a possible violation of criminal law where there 
is reason to believe that the subject of the investigation or proceeding 
is unaware of its pendency, and the disclosure of the existence of the 
records could reasonably be expected to interfere with enforcement 
proceedings, Components may, during only such times as that circumstance 
continues, treat the records or information as not subject to the FOIA. 
In such situation, the response to the requester will state that no 
records were found.
    (ii) Whenever informant records maintained by a criminal law 
enforcement organization within a DoD Component under the informant's 
name or personal identifier are requested by a third party using the 
informant's name or personal identifier, the Component may treat the 
records as not subject to the FOIA, unless the informant's status as an 
informant has been officially confirmed. If it is determined that the 
records are not subject to the FOIA, the response to the requester will 
state that no records were found.
    (h) Number 8. Those contained in or related to examination, 
operation or condition reports prepared by, on behalf of, or for the use 
of any agency responsible for the regulation or supervision of financial 
institutions.
    (i) Number 9. Those containing geological and geophysical 
information and data (including maps) concerning wells.

[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]