[Title 32 CFR 701.59]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter Vi - DEPARTMENT OF THE NAVY]
[Subchapter A - UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS]
[Part 701 - AVAILABILITY OF DEPARTMENT OF THE NAVY RECORDS AND PUBLICATION OF DEPARTMENT OF THE NAVY DOCUMENTS AFFECTING THE PUBLIC]
[Subpart D - FOIA Exemptions]
[Sec. 701.59 - A brief explanation of the meaning and scope of the nine FOIA exemptions.]
[From the U.S. Government Printing Office]


32NATIONAL DEFENSE52002-07-012002-07-01false701.59Sec. 701.59NATIONAL DEFENSEDepartment of Defense (Continued)DEPARTMENT OF THE NAVYUNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDSAVAILABILITY OF DEPARTMENT OF THE NAVY RECORDS AND PUBLICATION OF DEPARTMENT OF THE NAVY DOCUMENTS AFFECTING THE PUBLICFOIA Exemptions
Sec. 701.59  A brief explanation of the meaning and scope of the nine FOIA exemptions.

    (a) 5 U.S.C. 552 (b)(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.
    (1) 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 based on the Executive Order on 
classification (i.e., Executive Order 12958) and/or a security 
classification guide. The procedures for reclassification are addressed 
in the Executive Order.
    (2) If the information qualifies as exemption (b)(1) information, 
there is no discretion regarding its release. In addition, this 
exemption shall be invoked when the following situations are apparent:
    (i) Glomar response: The fact of the existence or nonexistence of a 
record would itself reveal classified information. In this situation, 
DON activities 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.
    (ii) Compilation: Compilations of items of information that are 
individually unclassified may be classified if the compiled information 
reveals additional association or relationship that meets the standard 
for classification under an existing executive order for classification 
and is not otherwise revealed in the individual items of information.
    (b) 5 U.S.C. 552 (b)(2): Those related solely to the internal 
personnel rules

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and practices of the DON and its activities. This exemption is entirely 
discretionary and has two profiles, high (b)(2) and low (b)(2):
    (1) High (b)(2) are records containing or constituting statutes, 
rules, regulations, orders, manuals, directives, instructions, and 
security classification guides, the release of which would allow 
circumvention of these records thereby substantially hindering the 
effective performance of a significant function of the DON. For example:
    (i) Those operating rules, guidelines, and manuals for DON 
investigators, inspectors, auditors, or examiners that must remain 
privileged in order for the DON activity 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 qualifications of candidates for employment, entrance on duty, 
advancement, or promotion;
    (iii) Computer software, the release of which would allow 
circumvention of a statute or DON rules, regulations, orders, manuals, 
directives, or instructions. In this situation, the use of the software 
must be closely examined to ensure a circumvention possibility exists.
    (2) Discussion of low (b)(2) is provided for information only, as 
DON activities may not invoke the low (b)(2). Low (b)(2) records are 
those matters which 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 administrative data such as 
file numbers, mail routing stamps, initials, data processing notations, 
brief references to previous communications, and other like 
administrative markings.
    (c) 5 U.S.C. 552 (b)(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. A few examples of (b)(3) statutes are:
    (1) 10 U.S.C. 128, Physical Protection of Special Nuclear Material, 
Limitation on Dissemination of Unclassified Information.
    (2) 10 U.S.C. 130, Authority to Withhold From Public Disclosure 
Certain Technical Data.
    (3) 10 U.S.C. 1102, Confidentiality of Medical Quality Assurance 
Records.
    (4) 10 U.S.C. 2305(g), Protection of Contractor Submitted Proposals.
    (5) 12 U.S.C. 3403, Confidentiality of Financial Records.
    (6) 18 U.S.C. 798, Communication Intelligence.
    (7) 35 U.S.C. 181-188, Patent Secrecy--any records containing 
information relating to inventions that are the subject of patent 
applications on which Patent Secrecy Orders have been issued.
    (8) 35 U.S.C. 205, Confidentiality of Inventions Information.
    (9) 41 U.S.C. 423, Procurement Integrity.
    (10) 42 U.S.C. 2162, Restricted Data and Formerly Restricted Data.
    (11) 50 U.S.C. 403 (d)(3), Protection of Intelligence Sources and 
Methods.
    (d) 5 U.S.C. 552 (b)(4): Those containing trade secrets or 
commercial or financial information that a DON 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 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. Commercial or financial information submitted on a 
voluntary basis, absent any exercised authority prescribing criteria for 
submission is protected without any requirement to show competitive 
harm. If the information qualifies as exemption (b)(4) information,

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there is no discretion in its release. Examples include:
    (1) Commercial or financial information received in confidence in 
connection with loans, bids, contracts, or proposals set forth in or 
incorporated by reference in a contract entered into between the DON 
activity and the offeror that submitted the proposal, as well as other 
information received in confidence or privileged, such as trade secrets, 
inventions, discoveries, or other proprietary data. Additionally, when 
the provisions of 10 U.S.C. 2305(g) and 41 U.S.C. 423 are met, certain 
proprietary and source selection information may be withheld under 
exemption (b)(3).
    (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 DON.
    (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 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), chapter 2 of 48 CFR, subparts 227.71 and 227.72. 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 and DoD Directive 
5230.25 of 6 November 1984.
    (7) 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.
    (8) Proprietary information submitted strictly on a voluntary basis, 
absent any exercised authority prescribing criteria for submission. 
Examples of exercised authorities prescribing criteria for submission 
are statutes, Executive Orders, regulations, invitations for bids, 
requests for proposals, and contracts. Submission of information under 
these authorities is not voluntary.
    (e) 5 U.S.C. 552(b)(5): Those containing information considered 
privileged in litigation, primarily under the deliberative process 
privilege. For example: internal advice, recommendations, and subjective 
evaluations, as contrasted with factual matters, that are reflected in 
deliberative records pertaining to the decision-making process of an 
agency, whether within or among agencies or within or among DON 
activities. In order to meet the test of this exemption, the record must 
be both deliberative in nature, as well as part of a decision-making 
process. Merely being an internal record is insufficient basis for 
withholding under this exemption. Also potentially exempted are records 
pertaining to the attorney-client privilege and the attorney work-
product privilege. This exemption is entirely discretionary. Examples of 
the deliberative process include:
    (1) The nonfactual portions of staff papers, to include after-action 
reports, lessons learned, and situation reports containing staff 
evaluations, advice, opinions, or suggestions.
    (2) Advice, suggestions, or evaluations prepared on behalf of the 
DON 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.

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    (3) Those non-factual portions of evaluations by DON personnel of 
contractors and their products.
    (4) 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.
    (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 interest.
    (6) 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 DON activities, when these records have 
traditionally been treated by the courts as privileged against 
disclosure in litigation.
    (7) Planning, programming, and budgetary information that is 
involved in the defense planning and resource allocation process.
    (8) If any such intra- or inter-agency 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, then it should not be withheld under the FOIA. If, however, 
the information hypothetically would not be released at all, or would 
only be released in a particular case during civil discovery where a 
party's particularized showing of need might override a privilege, then 
the record may be withheld. Discovery is the formal process by which 
litigants obtain information from each other for use in the litigation. 
Consult with legal counsel to determine whether exemption 5 material 
would be routinely made available through the discovery process.
    (9) Intra- or inter-agency 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.
    (10) 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.
    (11) 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 incorporated by reference in the record containing 
the decision.
    (f) 5 U.S.C. 552(b)(6): Information in personnel and medical files, 
as well as similar personal information in other files, that, if 
disclosed to a requester, other than the person about whom the 
information is about, 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. If the information qualifies 
as exemption (b)(6) information, there is no discretion in its release. 
Examples of other files containing personal information similar to that 
contained in personnel and medical files 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

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action, including disciplinary action, may be taken.
    (3) Home addresses, including private e-mail addresses, are normally 
not releasable without the consent of the individuals concerned. This 
includes lists of home addressees and military quarters' addressees 
without the occupant's name. Additionally, the names and duty addresses 
(postal and/or e-mail) of DON/DoD military and civilian personnel who 
are assigned to units that are sensitive, routinely deployable, or 
stationed in foreign territories can constitute a clearly unwarranted 
invasion of personal privacy.
    (4) 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.
    (5) Names and duty addresses (postal and/or e-mail) published in 
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.
    (6) 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 if disclosure would rekindle grief, 
anguish, pain, embarrassment, or even disruption of peace of mind of 
surviving family members. In such situations, balance the surviving 
family members' privacy against the public's right to know to determine 
if disclosure is in the public interest. Additionally, the deceased's 
social security number should be withheld since it is used by the next 
of kin to receive benefits. Disclosures may be made to the immediate 
next of kin as defined in DoD Directive 5154.24 of 28 October 1996 
(NOTAL).
    (7) A clearly unwarranted invasion of the privacy of third parties 
identified in a personnel, medical or similar record constitutes a basis 
for deleting those reasonably segregable portions of that record. When 
withholding third party personal information from the subject of the 
record and the record is contained in a Privacy Act system of records, 
consult with legal counsel.
    (8) 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, DON 
activities shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This is a Glomar response, and exemption 
(b)(6) must be cited in the response. Additionally, in order to insure 
personal privacy is not violated during referrals, DON activities shall 
coordinate with other DON activities or Federal agencies before 
referring a record that is exempt under the Glomar concept.
    (i) 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.
    (ii) Refusal to confirm or deny should not be used when the person 
whose personal privacy is in jeopardy has provided the requester a 
waiver of his or her privacy rights; the person initiated or directly 
participated in an investigation that led to the creation of an agency 
record seeks access to that record; or the person whose personal privacy 
is in jeopardy is deceased, the Agency is aware of that fact, and 
disclosure would not invade the privacy of the deceased's family.
    (g) 5 U.S.C. 552(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 under law. 
This exemption may be invoked to prevent disclosure of documents not 
originally created for, but later gathered for law enforcement purposes. 
With the exception of

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(b)(7)(C) and (b)(7)(F), this exemption is discretionary. This exemption 
applies, however, only to the extent that production of such law 
enforcement records or information could result in the following:
    (1) 5 U.S.C. 552(b)(7)(A): Could reasonably be expected to interfere 
with enforcement proceedings.
    (2) 5 U.S.C. 552(b)(7)(B): Would deprive a person of the right to a 
fair trial or to an impartial adjudication.
    (3) 5 U.S.C. 552(b)(7)(C): 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.
    (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, 
Components shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This is a Glomar response, and exemption 
(b)(7)(C) must be cited in the response. Additionally, in order to 
insure personal privacy is not violated during referrals, DON activities 
shall coordinate with other DON/DoD activities or Federal Agencies 
before referring a record that is exempt under the Glomar concept. 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.
    (ii) Refusal to confirm or 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 activity is aware of that 
fact.
    (4) 5 U.S.C. 552(b)(7)(D): 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 that furnishes the information on a confidential basis; and 
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) 5 U.S.C. 552(b)(7)(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.
    (6) 5 U.S.C. 552(b)(7)(F): Could reasonably be expected to endanger 
the life or physical safety of any individual.
    (7) Some examples of exemption 7 are: 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; the identity of firms or individuals being 
investigated for alleged irregularities involving contracting with the 
DoD when no indictment has been obtained nor any civil action filed 
against them by the United States; information obtained in confidence, 
expressed or implied, in the course of a criminal investigation by a 
criminal law enforcement agency or office within a DON activity or a 
lawful national security intelligence investigation conducted by an 
authorized agency or office within the DON; national security 
intelligence investigations include background security investigations 
and those investigations conducted for the purpose of obtaining 
affirmative or counterintelligence information.
    (8) The right of individual litigants to investigative records 
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500), is 
not diminished.
    (9) Exclusions. Excluded from the exemption in paragraph (g)(8) are 
the following two situations applicable to the DON:
    (i) Whenever a request is made that 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

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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, 
DON activities 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 DON activities under the informant's 
name or personal identifier are requested by a third party using the 
informant's name or personal identifier, the DON activity 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 5 U.S.C. 552(b)(7), the response to the 
requester will state that no records were found.
    (iii) DON activities considering invoking an exclusion should first 
consult with the DOJ's Office of Information and Privacy.
    (h) 5 U.S.C. 552(b)(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) 5 U.S.C. 552(b)(9): Those containing geological and geophysical 
information and data (including maps) concerning wells.