Part 5 -- Freedom of Information Regulations
5.4 Relationship between the FOIA and the Privacy Act of 1974.
5.21 How to request records.
5.22 Requests not handled under the FOIA.
5.23 Referral of requests outside the Department.
5.24 Responding to your request.
5.31 Designation of authorized officials.
5.32 Release of records.
5.33 Denial of requests.
5.34 Appeal of denials.
5.35 Time limits.
5.41 Fees to be charged -- categories of requests.
5.42 Fees to be charged -- general provisions.
5.43 Fee schedule.
5.44 Procedures for assessing and collecting fees.
5.45 Waiver or reduction of fees.
5.51 Records available.
5.52 Indexes of records.
5.62 Exemption one: National defense and foreign policy.
5.63 Exemption two: Internal personnel rules and practices.
5.64 Exemption three: Records exempted by other statutes.
5.65 Exemption four: Trade secrets and confidential commercial or financial
5.66 Exemption five: Internal memoranda.
5.67 Exemption six: Clearly unwarranted invasion of personal privacy.
5.68 Exemption seven: Law enforcement.
5.69 Exemptions 8 and 9: Records on financial institutions; records on wells.
Authority: 5 U.S.C. 552, 18 U.S.C. 1905, 31 U.S.C.
9701, 42 U.S.C. 1306(c), E.O. 12600.
Source: 53 FR 47700, Nov. 25, 1988, unless otherwise
Source: 53 FR 47700, Nov. 25, 1988, unless otherwise
Sec. 5.1 Purpose.
This part contains the rules that the Department of Health and Human Services
(HHS) follows in handling requests for records under the Freedom of Information
Act (FOIA). It describes how to make a FOIA request; who can release records
and who can decide not to release; how much time it should take to make a
determination regarding release; what fees may be charged; what records are
available for public inspection; why some records are not released; and your
right to appeal and then go to court if we refuse to release records.
Sec. 5.2 Policy.
As a general policy, HHS follows a balanced approach in administering FOIA.
We not only recognize the right of public access to information in the possession
of the Department, but also protect the integrity of internal processes. In
addition, we recognize the legitimate interests of organizations or persons
who have submitted records to the Department or who would otherwise be affected
by release of records. For example, we have no discretion to release certain
records, such as trade secrets and confidential commercial information, prohibited
from release by law. This policy calls for the fullest responsible disclosure
consistent with those requirements of administrative necessity and confidentiality
which are recognized in the Freedom of Information Act.
Sec. 5.3 Scope.
These rules apply to all components of the Department. Some units may establish
additional rules because of unique program requirements, but such rules must
be consistent with these rules and must have the concurrence of the Assistant
Secretary for Public Affairs. Existing implementing rules remain in effect
to the extent that they are consistent with the new Departmental regulation.
If additional rules are issued, they will be published in the Federal Register,
and you may get copies from our Freedom of information Officers.
Sec. 5.4 Relationship between the FOIA and the Privacy Act of 1974.
Sec. 5.5 Definitions.
As used in this part,
Agency means any executive department, military department, government
corporation, government controlled corporation, or other establishment in
the executive branch of the Federal Government, or any independent regulatory
agency. Thus, HHS is an agency. A private organization is not an agency even
if it is performing work under contract with the Government or is receiving
Federal financial assistance. Grantee and contractor records are not subject
to the FOIA unless they are in the possession or under the control of HHS
or its agents, such as Medicare health insurance carriers and intermediaries.
Commercial use means, when referring to a request, that the request
is from or on behalf of one who seeks information for a use or purpose that
furthers the commercial, trade, or profit interests of the requester or of
a person on whose behalf the request is made. Whether a request is for a commercial
use depends on the purpose of the request and the use to which the records
will be put; the identity of the requester (individual, non-profit corporation,
for-profit corporation), on the nature of the records, while in some cases
indicative of that purpose or use, is not necessarily determinative. When
a request is from a representative of the news media, a purpose or use supporting
the requester's news dissemination function is not a commercial use.
Department or HHS means the Department of Health and Human
Services. It includes Medicare health insurance carriers and intermediaries
to the extent they are performing functions under agreements entered into
under sections 1816 and 1842 of the Social Security Act, 42 U.S.C. 1395h,
Duplication means the process of making a copy of a record and
sending it to the requester, to the extent necessary to respond to the request.
Such copies include paper copy, microform, audio-visual materials, and magnetic
tapes, cards, and discs.
Educational institution means a preschool, elementary or secondary
school, institution of undergraduate or graduate higher education, or institution
of professional or vocational education, which operates a program of scholarly
Freedom of Information Act or FOIA means section 552 of
Title 5, United States Code, as amended.
Freedom of Information Officer means an HHS official who has been
delegated the authority to release or withhold records and assess, waive,
or reduce fees in response to FOIA requests.
Non-commercial scientific institution means an institution that
is not operated substantially for purposes of furthering its own or someone
else's business, trade, or profit interests, and that is operated for purposes
of conducting scientific research whose results are not intended to promote
any particular product or industry.
Records means any handwritten, typed, or printed documents (such
as memoranda, books, brochures, studies, writings, drafts, letters, transcripts,
and minutes) and documentary material in other forms (such as punchcards;
magnetic tapes, cards, or discs; paper tapes; audio or video recordings; maps;
photographs; slides; microfilm; and motion pictures). It does not include
objects or articles such as exhibits, models, equipment, and duplication machines
or audiovisual processing materials. Nor does it include books, magazines,
pamphlets, or other reference material in formally organized and officially
designated HHS libraries, where such materials are available under the rules
of the particular library.
Representative of the news media means a person actively gathering
information for an entity organized and operated to publish or broadcast news
to the public. News media entities include television and radio broadcasters,
publishers of periodicals who distribute their products to the general public
or who make their products available for purchase or subscription by the general
public, and entities that may disseminate news through other media (e.g.,
electronic dissemination of text). We will treat freelance journalists as
representatives of a new media entity if they can show a likelihood of publication
through such an entity. A publication contract is such a basis, and the requester's
past publication record may show such a basis.
Request means asking for records, whether or not you refer specifically
to the Freedom of Information Act. Requests from Federal agencies and court
orders for documents are not included within this definition. Subpoenas are
requests only to the extent provided by Part 2 of this title.
Review means, when used in connection with processing records for
a commercial use request, examining the records to determine what portions,
if any, may be withheld, and any other processing that is necessary to prepare
the records for release. It includes only the examining and processing that
are done the first time we analyze whether a specific exemption applies to
a particular record or portion of a record. It does not include examination
done in the appeal stage with respect to an exemption that was applied at
the initial request stage. However, if we initially withhold a record under
one exemption, and on appeal we determine that that exemption does not apply,
then examining the record in the appeal stage for the purpose of determining
whether a different exemption applies is included in review. It does not include
the process of researching or resolving general legal or policy issues regarding
Search means looking for records or portions of records responsive
to a request. It includes reading and interpreting a request, and also page-by-page
and line-by-line examination to identify responsive portions of a document.
However, it does not include line-by-line examination where merely duplicating
the entire page would be a less expensive and quicker way to comply with the
Sec. 5.21 How to request records.
Sec. 5.22 Requests not handled under the FOIA.
Sec. 5.23 Referral of requests outside the Department.
If you request records that were created by, or provided to us by, another
Federal agency, and if that agency asserts control over the records, we may
refer the records and your request to that agency. We may likewise refer requests
for classified records to the agency that classified them. In these cases,
the other agency will process and respond to your request, to the extent it
concerns those records, under that agency's regulation, and you need not make
a separate request to that agency. We will notify you when we refer your request
to another agency.
Sec. 5.24 Responding to your request.
Sec. 5.31 Designation of authorized officials.
HHS Freedom of Information Officer, Room 645-F,
Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201,
Tel: (202) 472-7453
SSA Freedom of Information Officer, Room 4-H-8, Annex Building,
6401 Security Boulevard, Baltimore, Maryland 21235, Tel: (301) 965-3962
HCFA Freedom of Information Officer, Room 100, Professional
Building, Office of Public Affairs, 6660 Security Boulevard, Baltimore, Maryland
21207, Tel: (301) 966-5352
PHS Freedom of Information Officer, Room 13-C-24, Parklawn
Building, 5600 Fishers Lane, Rockville, Maryland 20857, Tel: (301) 443-5252
FDA Freedom of Information Officer, HFW-35, Room 12A16,
Parklawn Building, 5600 Fishers Land, Rockville, Maryland 20857, Tel: (301)
NIH Freedom of Information Officer, National Institutes of
Health, Building 31, Room 2B39, 9000 Rockville Pike, Bethesda, Maryland 20892,
Tel: (301) 496-5633
CDC Freedom of Information Officer, Centers for Disease Control,
1600 Clifton Road, NE., Atlanta, Georgia 30333, Tel: (404) 329-3286
HRSA Freedom of Information Officer, Room 14-43, Parklawn
Building, 5600 Fishers Lane, Rockville, Maryland 20857, Tel: (301) 443-2086
ADAMHA Freedom of Information Officer, Room 12-C-15, Parklawn
Building, 5600 Fishers Lane, Rockville, Maryland 20857, Tel: (301) 443-3783
IHS Freedom of Information Officer, Room 5-A-39, Parklawn
Building, 5600 Fishers Land, Rockville, Maryland 20857, Tel: (301) 443-1397.
Sec. 5.33 Denial of requests.
Sec. 5.34 Appeal of denials.
Sec. 5.35 Time limits.
Sec. 5.41 Fees to be charged -- categories
The paragraphs below state, for each category of request, the type of fees
that we will generally charge. However, for each of these categories, the
fees may be limited, waived, or reduced for the reasons given in Secs. 5.42
through 5.45 or for other reasons.
Sec. 5.42 Fees to be charged -- general provisions.
Sec. 5.43 Fee schedule.
HHS charges the following fees:
Sec. 5.44 Procedures for assessing and collecting fees.
Sec. 5.45 Waiver or reduction of fees.
Sec. 5.51 Records available.
Sec. 5.52 Indexes of records.
Sec. 5.61 General.
Section 552(b) of the Freedom of Information Act contains nine exemptions
to the mandatory disclosure of records. We describe these exemptions below
and explain how this Department applies them to disclosure determinations.
(In some cases more than one exemption may apply to the same document.) Information
obtained by the Department from any individual or organization, furnished
in reliance on a provision for confidentiality authorized by applicable statute
or regulation, will not be disclosed, to the extent it can be withheld under
one of these exemptions. This section does not itself authorize the giving
of any pledge of confidentiality by any officer or employee of the Department.
Sec. 5.62 Exemption one: National defense and foreign policy.
We are not required to release records that, as provided by FOIA, are "(a)
specifically authorized under criteria established by an Executive Order to
be kept secret in the interest of national defense or foreign policy and (b)
are in fact properly classified pursuant to such Executive Order.'' Executive
Order No. 12356 (1982) provides for such classification. When the release
of certain records may adversely affect U.S. relations with foreign countries,
we usually consult with officials of those countries or officials of the Department
of State. Also, we may on occasion have in our possession records classified
by some other agency. We may refer your request for such records to the agency
that classified them and notify you that we have done so, as explained in
Sec. 5.63 Exemption two: Internal personnel rules and practices.
We are not required to release records that are "related solely to the internal
personnel rules and practices of an agency.'' Under this exemption, we may
withhold routine internal agency practices and procedures. For example, we
may withhold guard schedules and rules governing parking facilities or lunch
periods. Also under this exemption, we may withhold internal records whose
release would help some persons circumvent the law or agency regulations.
For example, we ordinarily do not disclose manuals that instruct our investigators
or auditors how to investigate possible violations of law, to the extent that
this release would help some persons circumvent the law.
Sec. 5.64 Exemption three: Records exempted by other statutes.
We are not required to release records if another statute specifically allows
us to withhold them. We may use another statute to justify withholding only
if it absolutely prohibits disclosure or if it sets forth criteria to guide
our decision on releasing or identifies particular types of material to be
Sec. 5.65 Exemption four: Trade secrets and confidential commercial
or financial information.
We will withhold trade secrets and commercial or financial information that
is obtained from a person and is privileged or confidential.
Sec. 5.66 Exemption five: Internal memoranda.
This exemption covers internal government communications and notes that
fall within a generally recognized evidentiary privilege. Internal government
communications include an agency's communications with an outside consultant
or other outside person, with a court, or with Congress, when those communications
are for a purpose similar to the purpose of privileged intra-agency communications.
Some of the most- commonly applicable privileges are described in the following
Sec. 5.67 Exemption six: Clearly unwarranted invasion of personal
Sec. 5.68 Exemption seven: Law enforcement.
We are not required to disclose information or records that the government
has compiled for law enforcement purposes. The records may apply to actual
or potential violations of either criminal or civil laws or regulations. We
can withhold these records only to the extent that releasing them would cause
harm in at least one of the following situations:
Sec. 5.69 Exemptions 8 and 9: Records on financial institutions;
records on wells.
Exemption eight permits us to withhold records about regulation or supervision
of financial institutions. Exemption nine permits the withholding of geological
and geophysical information and data, including maps, concerning wells.