PART 612—AVAILABILITY OF RECORDS AND INFORMATION Authority: 5 U.S.C. 552, as amended. Source: 78 FR 53278, Aug. 29, 2013, unless otherwise noted. § 612.1 General provisions. (a) This part contains the rules that the National Science Foundation (NSF) follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. Information routinely made available to the public as part of a regular Foundation activity (for example, program announcements and solicitations, summary of awarded proposals, statistical reports on U.S. science, press releases issued by the Office of Legislative and Public Affairs) may be provided to the public without reliance on this part. As a matter of policy, the Foundation also makes discretionary disclosures of records or information otherwise exempt under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption. This policy, however, does not create any right enforceable in court. When individuals seek records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, NSF processes those requests under both NSF's Privacy regulations at part 613 of this chapter, and this part. (b) As used in this part, NSF includes one component, the Office of the Inspector General (OIG) of the National Science Foundation. § 612.2 Public reading room. (a) The Foundation maintains a public reading room located in the NSF Library at 4201 Wilson Boulevard, Suite 225, Arlington, Virginia, open during regular working hours Monday through Friday. It contains the records that the FOIA requires to be made regularly available for public inspection and copying and has computers and printers available for public use in accessing records. Also available for public inspection and copying are current subject matter indexes of reading room records. (b) Information about FOIA and Privacy at NSF and copies of frequently requested FOIA releases are available online at www.nsf.gov/policies/foia/jsp. www.nsf.gov. § 612.3 Requirements for making requests. (a) Where to send a request. [email protected]. (b) Form of request. (c) Personal records. (2) If you are making a request for personal information about another individual, either a written authorization signed by that individual in accordance with § 613.2(f) of this chapter permitting disclosure of those records to you, or proof that that individual is deceased (for example, a copy of a death certificate or a published obituary) will help the agency process your request. (d) Description of records sought. (e) Agreement to pay fees. (f) Receipt date. (g) Publications excluded. Federal Register, http://www.nsf.gov/publications/. § 612.4 Processing requests. (a) Monitoring of requests. (b) Consultations and referrals. (1) If the NSF determines that it is the agency best able to process the record in response to the request, then it will do so, after consultation with the other interested agencies where appropriate. (2) If it determines that it is not the agency best able to process the record, then it will refer the request regarding that record (or portion of the record) to the agency that originated or has a substantial interest in the record in question (but only if that agency is subject to the FOIA). Ordinarily, the agency that originated a record will be presumed to be best able to determine whether to disclose it. (3) Whenever NSF refers all or any part of the responsibility for responding to a request to another agency, it ordinarily will notify the requester of the referral and inform the requester of the name of each agency to which the request has been referred and of the part of the request that has been referred, unless such notification would disclose information otherwise exempt. § 612.5 Timing of responses to requests. (a) In general. (b) Multitrack processing. (2) NSF or OIG using multitrack processing may provide requesters in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the NSF's or OIG's faster track(s). The requester may be contacted by telephone, email, or letter, whichever is more efficient in each case. (c) Time for response. (d) Unusual circumstances. (2) Where the extension is for more than ten working days, the FOIA Officer or the OIG component will provide the requester with an opportunity either to modify the request so that it may be processed within the ten day extension period or to arrange an agreed upon alternative time period with the FOIA Officer or the OIG component for processing the request or a modified request. (3) Where the NSF reasonably believes that multiple requests submitted by a requester, or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances, and the requests involve clearly related matters, they may be aggregated. Multiple requests involving unrelated matters will not be aggregated. (e) Expedited processing. (2)(i) Requests and appeals will be given expedited treatment whenever it is determined that a requester has demonstrated compelling need by presenting: (A) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (B) An urgency to inform the public about an actual or alleged Federal government activity, if made by a person primarily engaged in disseminating information. (ii) For example, a requester who is not a full-time member of the news media must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. Such requester also must establish a particular urgency to inform the public about the government activity involved in the request, beyond the public's right to know about government activity generally, and that the information sought has particular value that would be lost if not disseminated quickly. (3) Within ten calendar days of receipt of a request for expedited processing, the NSF FOIA Officer or OIG component will decide whether to grant it, and will notify the requester of the decision orally or in writing. If a request for expedited treatment is granted, the request will be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously. § 612.6 Responses to requests. (a) Acknowledgment of requests. (b) Grants of requests. (c) Denials of requests. (2) Requesters can appeal an agency determination to withhold all or part of any requested record; a determination that a requested record does not exist or cannot be located; a determination that what has been requested is not a record subject to the Act; a disapproval of a fee category claim by a requester; denial of a fee waiver or reduction; or a denial of a request for expedited treatment (see § 612.9). § 612.7 Exemptions. (a) Exemptions from disclosure. (1) Exemption 1-5 U.S.C. 552(b)(1). (2) Exemption 2-5 U.S.C. 552(b)(2). (3) Exemption 3-5 U.S.C. 552(b)(3). (i) Records that disclose any invention in which the Federal Government owns or may own a right, title, or interest (including a nonexclusive license), 35 U.S.C. 205; (ii) Contractor proposals not specifically set forth or incorporated by reference into a contract, 41 U.S.C. 253b(m); (iii) Information protected by the Procurement Integrity Act, 41 U.S.C. 423; (iv) Statistical information protected by section 14(i) of the NSF Act of 1950, as amended, 42 U.S.C. 1873(i) and/or the Confidential Information Protection and Statistical Efficiency Act of 2002, 44 U.S.C. 3501 note. (4) Exemption 4-5 U.S.C. 552(b)(4). Examples of records or information normally exempt from disclosure include, but are not limited to: (i) Information received in confidence, such as grant applications, fellowship applications, and research proposals prior to award; (ii) Confidential scientific and manufacturing processes or developments, and technical, scientific, statistical data or other information developed by a grantee; (iii) Technical, scientific, or statistical data, and commercial or financial information privileged or received in confidence from an existing or potential contractor or subcontractor, in connection with bids, proposals, or contracts, concerning contract performance, income, profits, losses, and expenditures, as well as trade secrets, inventions, discoveries, or other proprietary data. When the provisions of 41 U.S.C. 253b(m) or 41 U.S.C. 423 are met, certain proprietary and source selection information may also be withheld under Exemption 3; (iv) Confidential proprietary information submitted on a voluntary basis; (v) Statements or information collected 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. (5) Exemption 5-5 U.S.C. 552(b)(5). (i) Those portions of reports, memoranda, correspondence, workpapers, minutes of meetings, and staff papers, containing evaluations, advice, opinions, suggestions, or other deliberative material that are prepared for use within NSF or within the Executive Branch of the Government by agency personnel and others acting in a consultant or advisory capacity; (ii) Advance information on proposed NSF plans to procure, lease, or otherwise acquire, or dispose of materials, real estate, facilities, services or functions, when such information would provide undue or unfair competitive advantage to private interests or impede legitimate government functions; (iii) Negotiating positions or limits at least until the execution of a contract (including a grant or cooperative agreement) or the completion of the action to which the negotiating positions were applicable. They may also be exempt pursuant to other provisions of this section; (iv) 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; (iv) Records prepared for use in proceedings before any Federal or State court or administrative body; (vi) Evaluations of and comments on specific grant applications, research projects or proposals, fellowship applications or nominations or other individual awards, or potential contractors and their products, whether made by NSF personnel or by external reviewers acting either individually or in panels, committees or similar groups; (vii) Preliminary, draft or unapproved documents, such as opinions, recommendations, evaluations, decisions, or studies conducted or supported by NSF; (viii) Proposed budget requests, and supporting projections used or arising in the preparation and/or execution of a budget; proposed annual and multi-year policy, priorities, program and financial plan and supporting papers; (ix) Those portions of official reports of inspection, reports of the Inspector General, audits, investigations, or surveys pertaining to safety, security, or the internal management, administration, or operation of NSF, when these records have traditionally been treated by the courts as privileged against disclosure in litigation. (6) Exemption 6-5 U.S.C. 552(b)(6). (i) Reports, records, and other materials pertaining to individual cases in which disciplinary or other administrative action has been or may be taken. Opinions and orders resulting from those administrative or disciplinary proceedings shall be disclosed without identifying details if used, cited, or relied upon as precedent; (ii) Records compiled to evaluate or adjudicate the suitability of candidates for employment, and the eligibility of individuals (civilian or contractor employees) for security clearances, or for access to classified information; (iii) Reports and evaluations which reflect upon the qualifications or competence of individuals; (iv) Personal information such as home addresses and telephone and facsimile numbers, private email addresses, social security numbers, dates of birth, marital status and the like; (v) The exemption also applies when the fact of the existence or nonexistence of a responsive record would itself reveal personal, private information, and the public interest in disclosure is not sufficient to outweigh the privacy interest. (7) Exemption 7-5 U.S.C. 552(b)(7). (i) This exemption applies only to the extent that the production of such law enforcement records or information: (A) Could reasonably be expected to interfere with enforcement proceedings; (B) Would deprive a person of the right to a fair trial or an impartial adjudication; (C) Could reasonably be expected to constitute an unwarranted invasion of personal privacy of a living person, or living close survivors of a deceased person identified in a record; (D) Could reasonably be expected to disclose the identity of a confidential source, including a source within the Federal Government, or a State, local, or foreign agency or authority, or any private institution, that furnished information on a confidential basis; and information furnished by a confidential source and obtained by a criminal law enforcement authority in a criminal investigation; (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, or (F) Could reasonably be expected to endanger the life or physical safety of any individual. (ii) Examples of records normally exempt from disclosure include, but are not limited to: (A) The identity and statements of complainants or witnesses, or other material developed during the course of an investigation and all materials prepared in connection with related government litigation or adjudicative proceedings; (B) The identity of firms or individuals investigated for alleged irregularities involving NSF grants, contracts or other matters when no indictment has been obtained, no civil action has been filed against them by the United States, or no government-wide public suspension or debarment has occurred; (C) Information obtained in confidence, expressed or implied, in the course of a criminal investigation by the NSF Office of the Inspector General. (iii) The exclusions contained in 5 U.S.C. 552(c)(1) and (2) may also apply to these records. (8) Exemption 8-5 U.S.C. 552(b)(8). (9) Exemption 9-5 U.S.C. 552(b)(9). (b) Deletion of exempt portions and identifying details. § 612.8 Business information. (a) In general. (b) Definitions. (1) Business Information (2) Submitter (c) Designation of business information. (d) Notice to submitters. (e) Where notice is required. (1) The information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or (2) The Foundation has reason to believe that the information may be protected from disclosure under Exemption 4. (f) Opportunity to object to disclosure. (g) Notice of intent to disclose. (1) A statement of the reason(s) why the submitter's disclosure objections were not sustained; (2) A description of the business information to be disclosed; and (3) A specified disclosure date, which will be a reasonable time subsequent to the notice. (h) Exceptions to notice requirements. (1) The Foundation determines that the information should not be disclosed (the Foundation protects from disclosure to third parties information about specific unfunded applications, including pending, withdrawn, or declined proposals); (2) The information lawfully has been published or has been officially made available to the public; (3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or (4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous, in which case the Foundation will, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information. (i) Notice of FOIA lawsuit. § 612.9 Appeals. (a) Appeals of denials. (b) Responses to appeals. (c) When appeal is required. § 612.10 Fees (a) In general. (b) Definitions. (1) Commercial use request (2) Direct costs (3) Duplication (4) Educational institution (5) Noncommercial scientific institution (6) Representative of the news media or news media requester news (7) Review (8) Search (c) Fees. (1) Search. (ii) Manual searches for records. i.e., (iii) Computer searches of records. i.e., (iv) Archived records. (2) Duplication. (3) Review. (d) Limitations on charging fees. (i) The first 100 pages of duplication (or the cost equivalent); and (ii) The first two hours of search (or the cost equivalent). (3) Whenever a total fee calculated under paragraph (c) of this section is $25.00 or less for any request, no fee will be charged. (4) The provisions of paragraphs (d)(2) and (3) of this section work together. This means that noncommercial requesters will be charged no fees unless the cost of search in excess of two hours plus the cost of duplication in excess of 100 pages totals more than $25.00. Commercial requesters will not be charged unless the costs of search, review, and duplication total more than $25.00. (e) Notice of anticipated fees in excess of $25.00. (f) Charges for other services. (g) Charging interest. (h) Aggregating requests. (i) Advance payments. ., (2) Where NSF determines or estimates that a total fee to be charged under this section will be more than $250.00, it may require the requester to make an advance payment of an amount up to the amount of the entire anticipated fee before beginning to process the request, except where it receives a satisfactory assurance of full payment from a requester that has a history of prompt payment. (3) Where a requester has previously failed to pay a properly charged fee to any agency within 30 days of the date of billing, NSF may require the requester to pay the full amount due, plus any applicable interest, and to make an advance payment of the full amount of any anticipated fee, before NSF begins to process a new request or continues to process a pending request from that requester. (4) In cases in which NSF requires advance payment or payment due under paragraph (i)(2) or (3) of this section, the request will not be considered perfected and further work will not be done on it until the required payment is received. (j) Other statutes specifically providing for fees. (k) Waiver or reduction of fees. (2) To determine whether the first fee waiver requirement is met, NSF will consider the following factors: (i) The subject of the request: Whether the subject of the requested records concerns “the operations or activities of the government.” The subject of the requested records must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated. (ii) The informative value of the information to be disclosed: Whether disclosure is “likely to contribute” to an understanding of government operations or activities. The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. Disclosure of information already in the public domain, in either duplicative or substantially identical form, is unlikely to contribute to such understanding where nothing new would be added to the public's understanding. (iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to “public understanding.” The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject as opposed to the individual understanding of the requester. A requester's expertise in the subject area and ability and intention to effectively convey information to the public will be considered. A representative of the news media as defined in paragraph (b)(6) of this section will normally be presumed to satisfy this consideration. (iv) The significance of the contribution to public understanding: Whether disclosure is likely to contribute “significantly” to public understanding of government operations or activities. The public's understanding of the subject in question must be enhanced by the disclosure to a significant extent as compared to the level of public understanding existing prior to the disclosure. NSF will make no value judgments about whether information that would contribute significantly to public understanding of the operations or activities of the government is “important” enough to be made public. (3) To determine whether the second fee waiver requirement is met, NSF will consider the following factors: (i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure. NSF will consider any commercial interest of the requester (with reference to the definition of “commercial use” in paragraph (b)(1) of this section), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters will be given an opportunity in the administrative process to provide explanatory information regarding this consideration. (ii) The primary interest in disclosure: Whether any identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.” A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. NSF ordinarily will presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest. (4) Where only some of the requested records satisfy the requirements for a waiver of fees, a waiver will be granted for those records. (5) Requests for the waiver or reduction of fees should address the factors listed in paragraphs (k)(2) and (3) of this section, insofar as they apply to each request. § 612.11 Other rights and services. Nothing in this part will be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.