$ 5.52 Copies of records.

Copies of available records shall be produced as promptly as possible upon receipt of the fee therefor. Copying service shall be limited to not more than two copies of any single page, except that additional copies may be made where administrative considerations permit. Records which are published or available for sale need not be copied.

§ 5.53 Denial of requests for records.

Written requests for inspection or copying of records shall be denied only by the Department's Information Center Officer, the appropriate Information Center Officer of the region or the operating agency, or other duly authorized officer of the operating agency. Denials of written requests shall be in writing. Oral requests may be dealt with orally, but if the requester is dissatisfied with the disposition of such a request he shall be asked to put the request in writing.

$5.60 Policy on fees.

Subpart E-Fees

It is the policy of the Department to provide routine information to the general public without charge. Special information services involving a benefit that does not accrue to the general public shall be subject to the payment of fees, which shall be fixed in such amounts as to recover the cost to the Government of providing such services. Fees will be charged for the following special services: (a) Reproduction, duplication, or copying of records;

(b) Certification or authentication of records;

(c) Searches of or for records.

$5.61 Fee schedules.

Since the cost of such services may vary between operating agencies of the Department due to variations in the way in which records are organized and maintained, in copying equipment, or for other reasons, each operating unit of the Department providing such services shall establish and publish schedules of fees for the above services and on the basis described below. New or modified fee schedules may be published from time to time in recognition of changes in costs to the Government or changing circumstances. No fee shall be charged for searching for records which are contained in the Department Information Centers designated in or in accordance with § 5.31.

§ 5.62 Publication of fee schedules.

Fee schedules shall be published in the FEDERAL REGISTER by the Assistant Secretary for Administration for the Office of the Secretary and by the agency head for his operating agency. Schedules shall also be prominently posted at the Information Centers and made available to the public when information is requested in writing.

$5.63 Searching records.

Fees for searching shall be computed as follows:

(a) A predetermined standard hourly rate for labor and personal services of employees of the Department. Such hourly rates shall be published in advance. (b) Actual cost to the Government of materials postage and other direct costs, plus indirect costs to the Government. Such costs shall be determined for each request, at the time of the request allowing a reasonable period for the development of the estimate.

$5.64 Copying.

Fees for copy or duplicating services shall be set on a per page basis. The fee shall be maintained as a predetermined standard rate.

$5.65 Certification or authentication.

A fee for certification or authentication of records shall be set on a per document basis. The fee shall be on the basis of a predetermined standard rate. Where the request includes making a copy of the record to be certified, the applicable fee for copying will also be charged. Where the requester furnishes a copy of the document to be authenticated or certified which requires comparison with the record on file, a comparing fee based upon predetermined hourly rates will be applicable.

$5.70 Exemptions.

Subpart F-Exemptions

No record duly requested shall be withheld from the disclosure unless it comes within one of the following classes of records exempted by the Act. Appendix A to this part contains some examples of the kinds of materials which fall within one or more classes exempt from all requirements of the Act. Disclosure of particular items of such kinds will nevertheless be made when this can be done consistently with obligations of confidentiality and administrative necessity. $5.71 Records specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy.

No record shall be withheld from availability for disclosure on the ground that the national defense or foreign policy so requires, unless it has been classified pursuant to the criteria and procedures prescribed by Executive order, such as Executive Order 10501, as amended, and has not been declassified in accordance with applicable procedures.

§ 5.72 Records relating solely to the internal personnel rules and practices of the Department.

This exemption covers only those internal rules or instructions to personnel relating to how employees carry out their assigned functions and activities for which the Department has responsibility. Thus, materials which provide guidelines or instructions to employees relating to tolerances, selection of cases, quantums of proof, and the like, are within this exemption. However, materials having only management significance, such as rules relating to work hours, leave, promotion plans, while relating to personnel, will be disclosed.

§ 5.73 Record specifically exempted from disclosure by statute.

This exemption preserves the full force and effect of statutes which restrict public access to specific Government records. Several such statutes apply to records and information of the Department.

§ 5.74 Trade secrets and commercial or financial information obtained from any person and privileged or confidential.

This exemption protects generally against disclosure of information which the person furnishing it customarily would not release to the public or which is submitted by him in reliance upon the Department's assurance that it will not be disclosed. It includes records which fall in any one of such categories as: Trade secrets; technical, commercial, or financial information which is priviledged through general custom and usage in the same line of endeavor; information which is obtained from any person under explicit or implicit pledge of confidentiality; and information which is privileged under any of the following privileges: Doctor-patient, lender-borrower, attorney-client, or Government-informer privileges. It also includes data and views of scientists, scholars, or consultants submitting or making judgments on research designs in applications for grant or other suport.

$5.75 Interagency or intraagency memorandums or letters which would not be available by law to a private party in litigation with the agency. This exemption preserves the existing freedom of Government officials and employees to engage in full and frank communication with each other; whether such expression relates, for example, to a recommendation for legislation, to the evaluation of a grant application, or to the recommendation to select one or another case for the enforcement of a law or regulation. Thus, proposed budgets which have not been transmitted to the Congress, the recommendations of an expert or consultant or advisory committee whose advice was sought by the agency, an opinion relating to liability of the Department in a medical malpractice lawsuit are not, except to the same extent routinely available to a party in litigation with the agency, available for inspection and copying. This exemption includes internal memorandums, opinions and recommendations, correspondence and documents, as well as notations, route slips, and working papers; materials received or generated by the Department before the transaction to which they relate has been completed.

$5.76 Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

This exemption covers all personal, private, financial, or business information contained in any files which, if disclosed to the public, would constitute a clearly

unwarranted invasion of the privacy of any person. This exemption includes such matters as names of unsuccessful applicants as well as other data which invades personal privacy.

§ 5.77 Investigatory files compiled for law enforcement purposes except to the extent available by law to a private party.

This exemption covers all matters, including sources of information or complaints, in investigative files and reports compiled for law enforcement or regulatory activities of the Department, or relating to matters in litigation.

$5.78 Records contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of the Department or any operating agency responsible for the regulation or supervision of financial institutions.

$5.79 Geological and geophysical information and data (including maps) concerning wells. 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 30 days of the date of the denial of the request.

$5.82 By whom review is made.

Review shall be made by the Assistant Secretary for Administration, or his designee, in respect to records of the Office of the Secretary, or by the head of an operating agency, or his designee, in respect to records of that operating agency. Requests for review by the Assistant Secretary shall be addressed to him at 330 Independence Avenue SW., Washington, D.C. 20201. Requests for review by an operating agency head shall be addressed to the head of the agency. § 5.83 Content 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 Devision on review.

(a) Decisions on review shall be in writing. If the decision is in favor of the requester, the decision shall order records made available to the requester as provided in the decision.

(b) The decision, if adverse to the requester, shall briefly state the reasons for the decision, and shall be promptly communicated to the requester, and shall constitute final action of the Department.

(c) All such decisions constituting precedents shall be indexed and available for inspection and copying in the same manner as final orders and opinions subject to subsection (a) (2) of the Act.

(d) Adverse decisions pursuant to this subpart may be reviewed by the courts as provided in subsection (a) (3) of the Act.

Effective date. These regulations are effective July 4, 1967.
Dated: June 27, 1967.

[SEAL]

JOHN W. GARDNER,

Secretary.

APPENDIX A-EXAMPLES OF KINDS OF EXEMPT RECORDS

This appendix sets forth examples of kinds of materials which are exempt from mandatory disclosure pursuant to one or more of the exemptions in subsection (b) of the Act and Subpart F of this part.

1. Grant applications or research proposals which reveal research investigators' protocols or research designs.

2. Records of interim progress or incomplete development of Departmentsupported or Department-conducted studies or research projects, including notes, notebooks, and recordings compiled in the course of unfinished research. 3. Records containing information which is privileged through custom and usage in the same line of endeavor, or which is appropriately given to an agency in confidence and has been obtained from members of the public through questionnaires, surveys, and other inquiries.

4. Records of deliberations, discussions, comments, evaluations, and notes of members of advisory committees, study or review panels, task forces, or work

groups.

5. Grant or loan applications which contain information exempt (e.g., under $5.74 or § 5.76) from mandatory disclosure.

NOTE: Any of the records or materials in the examples noted in paragraphs 1-5 above may, however, be available for disclosure if the person requesting the record obtains the consent of the person who submitted the material or whose right of personal privacy is involved in its disclosure.

6. Manuals, guidelines, instructions, and other materials which are for guidance of employees in evaluating applications, in establishing or carrying out audit or inspection procedures, allowable tolerances, or quantums of proof, or in selection or handling of cases in litigation, and materials of similar kinds which cannot be disclosed to the public without defeating their purpose.

7. Patients' hospital, clinical, and medical records including related correspondence; medical histories, and supporting material; financial and property records and reports pertaining to patients in hospitals or clinics.

8. Records of pharmaceutical and related information concerning investigational drugs, revealed to the Department by private sources.

9. Procurement and disposal plans which if prematurely released would give aid to speculators.

10. Records of correspondence between Federal and State or local officials, privileged through custom and usage or where disclosure might prejudice negotiations in progress.

11. Respecting Food and Drug Administration regulatory activities: Trade secrets or commercial or confidential information voluntarily revealed in requests for opinions and opinions and related records indicating that a person, firm, or product is or is not in compliance with the law; records relating to factory inspections, sample collections, seafood inspection, and other examinations and investigations by the Food and Drug Administration; Investigational New Drug files; New Drug Applications and master files, other than final printed labeling; reports and records relating to individual adverse drug reaction(s); data in support of petitions relating to pesticide chemicals, food standards, food additives, and color additives, and master files relating thereto; files relating to certification of insulin, antibiotics, and color additives, and master files relating thereto; notices of hearing issued to individuals and firms under 21 U.S.C. 335 and records relating thereto; records relating to research in support of actions to further the law enforcement or regulatory activities of the Food and Drug Administration. NOTE: Certain documents in some of the above files may be available upon request identifying the particular documents.

12. Budget and legislative proposals and all materials related thereto, other than those presented to Congress.

13. Opinions of the Office of General Counsel.

14. Records revealing names of persons considered but not appointed to public advisory committees, unsuccessful job applicants; records reflecting the identity of experts, consultants, or other persons from whom opinions, judgments, evaluations, or other data were obtained.

15. Records to the extent they reveal names of complainants, drugs abusers, or informers; audit, civil rights, disciplinary, grievance, security, and other investigation files, including reports of interviews, signed or sworn statements or other reports and related material.

16. Official personnel folders and related files including grievance and disciplinary files; confidential statements of employment and financial interests; performance evaluations and test scores; internal mailing keys.

17. Earnings records and claim files maintained by Social Security Administration.

[F.R. Doc. 67-7426; Filed, June 29, 1967; 8:46 a.m.]

(Reprinted by the U.S. Department of Health, Education, and Welfare from Federal Register, vol. 32, No. 126, Friday, June 30, 1967, pp. 9315-9319. )

VI. NATIONAL LABOR RELATIONS BOARD

BENNY L. KASS, Esq.,

NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., February 23, 1968.

Assistant Counsel, Senate Committee on the Judiciary, Subcommittee on Administrative Practice and Procedure, Washington, D.C.

DEAR MR. KASS: In his letter of January 26, Senator Long requested that certain information concerning this Agency's experience under the Freedom of Information Act be submitted to you. This reply to that letter also reflects the action of Arnold Ordman, the General Counsel of the National Labor Relations Board, who has separate responsibilities under the National Labor Relations Act. The answers are in the sequence of the inquiries in the letter.

1. The information, records, and other documents which the Board and the General Counsel make available, and applicable procedures, are described in Section 102.117 of the Board's Rules and Regulations. Two copies of the section are enclosed. (Enclosure 1).

A new description of Agency organization was published. (32 F.R. 9588, July 1, 1967) Moreover, the N.L.R.B. Field Manual, containing procedural and operational instructions for the guidance of Agency staff, was published and may be obtained by the public as a subscription service from the Superintendent of Documents. There are currently over 3000 subscriptions to this service. Newly issued instructions of the same nature are made available and compiled as periodic revisions to the Field Manual.

2. Since enactment of the Freedom of Information Act, the Agency has continued to deny requests for production of investigatory files and of employee pre-trial statements sought in advance of the employee's testimony as a witness at a Board hearings. This action has been predicated upon the exemption for investigatory files provided by Section (e) (7), and the exemption for confidential materials provided by Section (e) (4). The confidential nature of this information is well established by court decisions, such as Texas Industries v. N.L.R.B., 336 F.2d 128 (C.A. 5). In two cases where court action was initiated in an effort to obtain the files or employee statements, the courts have sustained the Board's position that the materials are exempt under the Information Act. Copies of those decisions are enclosed. (Enclosures 2 and 3). A third court suit seeking an employee statement, currently pending before the United States District Court for the District of New Jersey, is being defended upon similar grounds. The name of that case is Local Union 560, Teamsters v. N.L.R.B.

In some instances, a request has been made for a copy of an appeal taken to the General Counsel by a charging party from the Regional Director's administrative dismissal of a charge and refusal to issue a complaint. When the appeal, which is taken during the investigatory stage of the proceeding, sets forth the names or identification of potential witnesses and the matters as to which they would testify, or otherwise reveals matters of a confidential nature relevant to the investigation, the request for a copy has been denied in reliance upon the exemptions of Section (e) (4) and (7). However, the request for a copy has been granted if the appeal has not disclosed the identification of potential witnesses or confidential matter.

In addition to the N.L.R.B. Field Manual, mentioned above, the Agency has materials entitled N.L.R.B. Internal Instructions and Guidelines which it has not made available to the public. The reasons for the Agency's action are that these materials do not affect the public, or are not "administrative" in nature within the meaning of Section (3) (b) (c), or fall within one or more of the exemptions of the Act.

The only other instance in which a request for information was denied involved the request of a business consultant "to examine daily docket files" in the Board's Los Angeles regional offices. The consultant frankly conceded that he wanted the daily information in order promptly to solicit business from the employers involved. The General Counsel denied the request because at that time neither region prepared or maintained a docket sheet listing the daily case filings in the region and the request, therefore, was for a record not in existence. Thereafter. and during the pendency of a court action the consultant instituted, the General Counsel established a procedure for all regional offices throughout the country whereby each office maintains a daily case filing docket available for inspection and copying by members of the public. The court action was dismissed upon the unopposed motion of the defendant Regional Directors.