§ 1004.10 Exemptions. ( a ) 5 U.S.C. 552 exempts from all of its publication and disclosure requirements nine categories of records which are described in paragraph (b) of that section. These categories include such matters as national defense and foreign policy information; investigatory records; internal procedures and communications; materials exempted from disclosure by other statutes; confidential, commercial, and financial information; and matters involving personal privacy.
( b ) Specifically, the exemptions in 5 U.S.C. 552(b) will be applied consistent with § 1004.1 of these regulations to matters that are: ( 1 ) Specifically authorized under criteria established by an Executive Order to be kept secret in the interest of the national defense or foreign policy and are in fact properly classified pursuant to such Executive Order;
( 2 ) Related solely to the internal personnel rules and practices of an agency;
( 3 ) Specifically exempted from disclosure by statute (other than 5 U.S.C. 552(b)), provided that such statute- ( i ) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue;
( ii ) Establishes particular criteria for withholding or refers to particular types of matters to be withheld; for example Restricted Data and Formerly Restricted Data under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 *et seq.*) are covered by this exemption; or
( iii ) If enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to Exemption 3 of the FOIA, 5 U.S.C. 552(b)(3).
( 4 ) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;
( 5 ) Inter-agency or intra-agency memoranda or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;
( 6 ) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
( 7 ) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ( i ) could reasonably be expected to interfere with enforcement proceedings,
( ii ) would deprive a person of a right to a fair trial or an impartial adjudication,
( iii ) could reasonably be expected to constitute an unwarranted invasion of personal privacy,
( iv ) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information 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, information furnished by a confidential source,
( v ) 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
( vi ) could reasonably be expected to endanger the life or physical safety of any individual;
( 8 ) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
( 9 ) Geological and geophysical information and data, including maps, concerning wells.
( c ) DOE shall withhold information under this section only if— ( 1 ) The agency reasonably foresees that disclosure would harm an interest protected by an exemption described in paragraph (b) of this section; or
( 2 ) Disclosure is prohibited by law. DOE shall consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible and take reasonable steps necessary to segregate and release nonexempt information. Nothing in this paragraph requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure by paragraph (b)(3) of this section.
[53 FR 15661, May 3, 1988, as amended at 79 FR 22859, Apr. 25, 2014; 81 FR 94922, Dec. 27, 2016]