mally available. Implementing regulations (see § 5.11) may provide for disclosure of records, beyond that provided for in § 5.72. In the event that any record contains both information which is disclosable and that which is not disclosable under this regulation, the nondisclosable information will be deleted and the balance of the record disclosed.

[40 FR 26513, June 24, 1975]

§ 5.71

Protection of personal privacy and proprietary information.

As set forth with more particularity below, certain types of information in whatever record or document contained shall not be disclosed where disclosure would be inconsistent with individual rights of personal privacy or would violate obligations of confidentiality.

(a) Except to the extent specifically otherwise provided by implementing regulations (see § 5.11), no disclosure will be made of information of a personal and private nature, such as information in personnel and medical files, in welfare and social security records and any other information of a private and personal nature.

(b)(1) Except as provided in paragraph (b)(2) of this section, information concerning the identity, diagnosis, prognosis or treatment of any patient, obtained from records or entries in records maintained in connection with the performance of any drug abuse prevention function authorized or assisted under the Drug Abuse Office and Treatment Act of 1972 (21 U.S.C. 1175) or any act amended by that Act, will not be disclosed except as provided in section 408 of that Act and the regulations issued pursuant thereto by the Special Action Office for Drug Abuse Prevention (21 CFR Part 1401). Those regulations are incorporated herein by reference and made a part hereof as if fully set forth herein.

(2) Information covered under paragraph (b)(1) of this section which is obtained by the Department or any person, agency or organization with whom the Social Security Administration has entered into an agreement to perform certain functions in the administration of the Social Security Act and which is in any way related to, or

is necessary to, or is used in or in connection with the administration of the Social Security Act, will not be disclosed except as provided under section 1106 of the Social Security Act (42 U.S.C. 1306) and the regulations of the Social Security Administration promulgated thereunder (20 CFR Part 401 et seq.), and under section 408 of the Drug Abuse Office and Treatment Act and the regulations of the Special Action Office for Drug Abuse Prevention. (21 CFR Part 1401)

(c) Except to the extent specifically otherwise provided by regulations of operating agencies, information having a commercial or financial value and in which the person providing the information has a proprietary interest will not be disclosed if it is in fact confidential. In determining whether such information is in fact confidential, consideration may be given to such factors as (1) the general custom or usage in the occupation or business to which the information relates that it be held confidential, (2) the number and situation of the individuals who have access to such information, (3) the type and degree of risk of financial injury to be expected if disclosure occurs, and (4) the length of time such information should be regarded as retaining the characteristics noted above.

(d) Information obtained by the Department from any individual or organization, who furnishes it in reliance upon a provision for confidentiality authorized by applicable statute or regulation, will not be disclosed. This subpart does not itself authorize the giving of any pledge of confidentiality by any officer or employee of the Department.

This section does not preclude use of nondiscloseable records or information from such records for authorized program purposes, including law enforcement purposes and litigation. Release of information of the nature described in this section to the individual or the organization to whom the information pertains or to an authorized representative of either will not be deemed a disclosure within the meaning of this part.

[32 FR 9315, June 30, 1967, as amended at 39 FR 28631, Aug. 9, 1974; 40 FR 18998, May 1, 1975; 40 FR 26513, June 24, 1975]

$5.72 Records available.

The following records of the Department shall, subject to the exceptions set forth in §§ 5.71 and 5.73, be available upon request for inspection and copying.

(a) Correspondence. Correspondence, relating to or resulting from the conduct of the official business of the Department, between the Department and individuals or organizations which are not agencies within the meaning of 5 U.S.C. 551(1) and 552(e).

(b) Records pertaining to grants. (1) Portions of funded initial research grant applications and portions of continuation, renewal or supplemental grant applications, whether funded or not, including interim progress reports and other supporting documents submitted by applicants, which are not otherwise exempted from disclosure by this subpart.

(2) Grant award documents.

(3) All State plans, amendments, and supplements thereto, including applications for the waiver of any provision thereof whether acted upon by the Department or not.

(c) Contracts. (1) Contract instruments.

(2) Portions of offers reflecting final prices submitted in negotiated procurements.

(d) Reports on grantee, contractor, or provider performance. Final reports of audits, surveys, reviews, or evaluations by, for, or on behalf of the Department, of performance by any grantee, contractor, or provider under any departmentally financed or supported program or activity, which reports have been transmitted to the grantee, contractor, or provider. However, reports subject to the provisions of 20 CFR Parts 401 and 322 will be available only after 30 days have elapsed following transmittal of the report to the provider.

(e) Research, development, and demonstration project records. The reports of a grantee or a contractor of the performance under any research, development, or demonstration project, records, other than reports, produced

in such projects, such as films, computer software, other copyrightable materials and reports of inventions, will be available, except that considerations relating to obtaining copyright and patent protection may require delay in disclosure for such period as necessary to accomplish such protection. Disclosure of records which are copyrightable or which reflect patentable inventions shall not confer upon the requester any license under any copyright or patent without regard to the holder or owner thereof.

[32 FR 9315, June 30, 1967, as amended at 39 FR 28631, Aug. 9, 1974; 40 FR 18998, May 1, 1975; 40 FR 26513, June 24, 1975]

§ 5.73 Records not available.

The following types of records or information contained in any record, in addition to those prohibited by law from disclosure, are not available for inspection or copying, any provision of § 5.72 notwithstanding:

(a) Intra-agency and inter-agency Communications

communications. within the Department other than those described in § 5.72(d) or between the Department or any other agency within the meaning of 5 U.S.C. 551(1) and 552(e), to the extent they reflect the views or judgment of the writer or of other individuals. If disclosure of any factual portion of the communication would indicate the views or judgment being withheld from disclosure, then such factual portions will also be withheld.

(b) Investigatory files. Investigatory files 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 a fair trail or an impartial adjudication, (3) constitute an unwarranted invasion of personal privacy, (4) disclose the identity of a confidential source, and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (5) disclose investigative techniques and procedures or (6) endanger the

life or physical safety of law enforcement personnel. For the purpose of this section "enforcement action" means any authorized action intended to abate, prevent, counteract, deter, or terminate violations of law and includes action involving possible civil, criminal, or administrative sanctions whether such sanctions involve adversary proceedings or other procedures, such as termination of benefits, protective measures, etc.

[40 FR 26513, June 24, 1975]

§ 5.74 Further disclosure.

(a) Any official listed in § 5.4 and in the case of the Office of the Secretary, the Assistant Secretary for Administration and Management or their designees may in particular instances, except where prohibited by law, disclose documents or portions of documents described in § 5.73 if he determines that disclosure is in the public interest and is consistent with obligations of confidentiality and administrative necessity.

(b) In making such a determination, consideration may be given to the Department's responsibilities under law for dissemination to the public of information relating to public health, safety of products or services, education, and welfare.

(c) When such determination has been made, the particular document or portion of document to which it relates shall thereafter be available upon request for inspection and copying: Provided however, That use of nondiscloseable records or information from such records for authorized program purposes, including law enforcement purposes and litigation is not a disclosure within the meaning of this section.

[38 FR 22232, Aug. 17, 1973, as amended at 40 FR 26513, June 24, 1975]

Subpart G-Administrative Review

§ 5.80 Review of denial of a record.

This subpart provides for the review of a denial, pursuant to § 5.53, of a written request for inspection or copying of a record.

§ 5.81 Time for initiation of request for review.

A person whose request has been denied may initiate a review by filing a request for review within (a) 30 days of receipt of the determination to deny or (b) within 30 days of receipt of records which are in partial response to his request if a portion of a request is granted and a portion denied, whatever is later.

[40 FR 26513, June 24, 1975]

$5.82 By whom review is made.

(a) The following officials will represent the Secretary in considering appeals of denials of records and refusals to waive or reduce fees:

(1) Assistant Secretary for Human Development Services or his or her designee-appeals of decisions of the OHDS Freedom of Information Offi

cer.

(2) Assistant Secretary for Health or his or her designee-appeals of decisions of the PHS Freedom of Information Officer, the CDC Freedom of Information Officer, the FDA Freedom of Information Officer, or the NIH Freedom of Information Officer.

(3) Commissioner of Social Security or his or her designee-appeals of decisions of the SSA Freedom of Information Officer.

(4) Administrator, Health Care Financing Administration or his or her designee-appeals of decisions of the HCFA Freedom of Information Offi

cer.

(5) Assistant Secretary for Management and Budget or his or her designee-appeals concerning all other records of the Department.

(b) Officials designated to decide appeals may not be the same officials to whom authority under § 5.32 of this part to release or deny records is delegated. The Assistant Secretary for Public Affairs must concur in designations of authority to decide appeals.

(c) All decisions concerning appeals may be made only after consultation with the Office of General Counsel. Decisions on appeal also require the concurrence of the Assistant Secretary for Public Affairs or his or her desig

nee.

(d) When one of the designated officials responds to an appeal, that decision will constitute final agency action on the Freedom of Information Act request.

[47 FR 20310, May 12, 1982]

$5.83 Contents of request for review.

The request for review shall include a copy of the written request and the denial.

$5.84 Consideration on review.

Review shall be considered on the basis of the written record including any written argument submitted by the requester.

$5.85 Decisions on review.

(a) Decisions on review shall be in writing within 20 working days from

receipt of the request for review. Extension of the time limit may be granted to the extent that the maximum 10-day limit on extensions has not been exhausted on the initial determination. Such extension may only be granted for the reasons enumerated in § 5.51(d).

(b) The decision, which constitutes final action of the Department, if adverse to the requester shall be in writing, stating the reasons for the decision, and advising the requester of the right to judicial review of such decision.

(c) Failure to comply with time limits set forth in § 5.51 or in this section constitutes an exhaustion of the requester's administrative remedies.

[40 FR 26513, June 24, 1975]

Generally available

Generally not available

Reports of grantee

Final report of any review or evaluation of grantee performance conducted or caused to be conducted by the Department.

Applications for continuation, renewal, or supplemental grants, subject to provisions of § 5.71.

State plan material...

Approved action plan, including analysis, proposed remedial or affirmative steps to be taken with goals and timetables, policies on recruitment, hiring, and promotion, and description of grievance procedures.

§ 5b.1

Definitions.

As used in this part:

(a) "Access" means availability of a record to a subject individual.

(b) "Agency" means the Department of Health and Human Services.

(c) "Department" means the Department of Health and Human Services.

(d) "Disclosure" means the availability or release of a record to anyone other than the subject individual.

(e) "Individual" means a living person who is a citizen of the United States or an alien lawfully admitted for permanent residence. It does not