NIOSH Procedures for Providing Public Access to Records or 

Documents of the Advisory Board on Radiation and Worker Health (the 

Board)

Background

As discussed by the General Services Administration (GSA) memorandum dated March 

14, 2000 (Addendum 1), Section 10(b) of the Federal Advisory Committee Act (FACA) 

provides that, subject to section 552 of title 5, U.S.C. (the Freedom of Information Act or 

FOIA), documents made available to or prepared for or by an advisory committee shall 

be made available for public inspection at a single location in the offices of the Advisory 

Committee or the agency to which it reports. The memorandum further explains that 

advisory committee records “may generally be withheld” if there is a reasonable 

expectation that the records sought fall within one of the exemptions of section 552(b) of 

FOIA1

; that agencies may not require members of the public to file requests for nonexempt committee records under the request and review process established by FOIA 

section 552(a)(3); and it recommends that agencies consider procedures for “segregating 

information and materials [among advisory committee records] that must be released 

under FACA section 10(b) from those that must be processed under FOIA.” Additional 

guidance concerning the implementation of FOIA generally, which is also germane under 

FACA as outlined above, is provided in a memorandum on FOIA dated March 19, 2009 

from the Attorney General (Addendum 2). This memorandum elaborates on an earlier 

Presidential Memorandum requiring that FOIA be administered with “a presumption of 

openness” in the face of doubt. The Attorney General’s memorandum also recognizes 

that “the disclosure obligation is not absolute” and references the major exemptions of 

FOIA. With respect to these exemptions, it notes that FOIA requires that agencies take 

reasonable steps to segregate and release nonexempt information, consistent with the 

GSA Memorandum’s recommendation quoted above. 

Section 10(b) of FACA mandates the public provision of a wide spectrum of Board 

records when they are not covered by FOIA exemptions. After careful consideration, 

 

1 Relevant FOIA exemptions are specified as follows: 

“(b) This section does not apply to matters that are-- 

(1)(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; 

(2) related solely to the internal personnel rules and practices of an agency; 

(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that 

such statute (A) requires that the matters be withheld from the public in such a manner as to leave no 

discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of 

matters to be withheld; 

(4) trade secrets and commercial or financial information obtained from a person and privileged or 

confidential; 

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party 

other than an agency in litigation with the agency; 

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly 

unwarranted invasion of personal privacy; ....” 

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NIOSH has determined that the following procedures are consistent with the mandates 

and provisions of FACA and FOIA and the guidelines of GSA and the Attorney General 

referenced above. In doing so, NIOSH also specifically accounts for the unusual 

situation of the Board among FACA committees; whereas FACA committees are 

customarily supplied documents that they are asked by the Agency to directly consider to 

provide specific advice to the agency, the Board has extensive, self-governed access to 

agency records, with the exception of certain pre-decisional policy and procedural 

documents generated by the agency. Otherwise, the Board has access to all NIOSH 

documents obtained or generated by NIOSH related to the Energy Employees 

Occupational Illness Compensation Act (EEOICPA) activities, including non-classified 

records on nuclear weapons facilities, materials and processes; extensive records of 

claimants and petitioners; and scientific, technical, and procedural documents and data 

resources. The scope of this information accessible by the Board comprises millions of 

pages of information and data, much of it including personally identifiable information. 

As noted above, FACA specifies a wide spectrum of document types that either must or 

could be defined as Board documents, subject to the exemptions of FOIA. These include: 

“records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, 

agenda, or other documents which were made available to or prepared for or by” the 

Board (5 U.S.C. § 10(b)). Therefore, NIOSH must establish a practical working 

definition of Board documents, consistent with FACA, to make publicly available the 

informational basis upon which the Board deliberates and provides its advice to the 

Secretary of HHS, as well as the records of such deliberation and advice. This practical 

definition will enable NIOSH to respond to public requests for nonexempt Board 

documents without involving the formal FOIA request process. Should NIOSH 

determine that a requested record does not fall within section 10(b) of FACA or is 

covered under section 552(b) of FOIA, it will instruct the requester to file a formal FOIA 

request. 

Accordingly, NIOSH has developed the procedures outlined below to maintain the 

public’s right to access records under FOIA and FACA while also allowing the Board 

and the CDC contractor supporting the Board to obtain and consider documents and data 

managed by the Office of Compensation Analysis and Support (OCAS) that are needed 

to carry out their duties under EEOICPA. Such information includes documents and data 

obtained by OCAS, the CDC contractor supporting the Board, and OCAS contractors 

under EEOICPA. The Designated Federal Official (DFO) of the Board will cooperate 

with the Director of OCAS and the CDC contractor supporting the Board to oversee 

implementation of these procedures. Responses to questions regarding the procedures 

and their implementation shall be coordinated by the DFO. 

PROCEDURES

1.0 Documents Prepared for or by the Board 

1.1 Definition. “Documents Prepared for or by the Board” are documents created by 

the Board as part of its duties under EEOICPA or for the Board that are used as 

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part of the Board’s work and its decision making process. These documents may 

include the following: 

(a) reports and working papers prepared by the Board, a subcommittee of the 

Board, or a working group of the Board, including such reports and working 

papers as are issued to the Board by the CDC contractor supporting the Board or 

by OCAS specifically in response to a request by the Board or a subcommittee or 

workgroup thereof; 

(b) transcripts of meetings of the Board or a subcommittee or workgroup thereof; 

(c) letters written and transmitted by a consensus decision of the Board 

Note: Documents under this section 1.1 do not include drafts of reports or 

working papers prepared by OCAS or by the CDC contractor supporting the 

Board until such documents are transmitted to the Board for its consideration. 

Any documents (or select content thereof) determined to be Board documents 

under this section may still be withheld from the public if they fall within one of 

the exemptions set forth in section 552(b) of FOIA or if they include content 

covered by the Privacy Act. 

1.2 Procedure. 

(a) All Board transcripts shall be posted on the OCAS Web Page upon clearance 

from a Privacy Act Review. Hard copy transcripts or excerpts thereof shall be 

made available, upon request, in the NIOSH OCAS reading room. 

(b) All final reports prepared by the Board and received by the Board from the 

CDC contractor supporting the Board or from OCAS that do not fall within one of 

the exemptions set forth in section 552(b) of FOIA, shall be posted on the OCAS 

Web Page upon clearance from a Privacy Act Review and any review that may be 

required under provisions of the Department of Energy (DOE) Security Plan 

covering NIOSH and Board EEOICPA activities. These Board reports to be 

posted on the OCAS Web Page include: 

 Final reports prepared by Board members that are approved by the Board 

for submission to the Secretary, HHS; 

 Any final report submitted by OCAS for consideration by the Board; 

 The most current version of site profile reviews, SEC petition reviews, 

dose reconstruction review summary reports, and procedure reviews 

submitted to the Board by the CDC contractor supporting the Board. 

(c) Board working papers prepared and issued by the CDC contractor supporting 

the Board or OCAS for a subcommittee or working group meeting that do not fall 

within one of the exemptions set forth in section 552(b) of FOIA shall be 

transmitted by e-mail or made available by other means to related SEC Petitioners 

and, upon request, to other parties, upon clearance from a Privacy Act and DOE 

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Board working papers may include resolution matrices and technical papers on 

specific SEC petitions, site profiles, or dose reconstruction procedures. Board 

working papers do not include e-mail dialogue between individual Board 

Members, OCAS staff, and/or staff of the CDC contractor supporting the Board 

when such represent the views of the individuals involved rather than the final 

official views of the respective organization. 

(d) All final Board technical papers discussed under 1.2(c) of these procedures 

shall be posted on the OCAS Web page upon clearance from a Privacy Act review 

and DOE Security review, when such DOE review is necessary. 

(e) Draft reports prepared by Board members or Board Working Groups or 

Subcommittees and submitted for consideration by the Board shall be provided to 

members of the public upon request, after a Privacy Act review (provided that the 

request does not fall within one of the exemptions set forth in section 552(b) of 

FOIA). 

(f) Members of the public requesting a Board document, as defined under section 

1.1 of these procedures, shall make such a request in writing to the Board DFO. 

Provided that the request does not fall within one of the exemptions set forth in 

section 552(b) of FOIA, the individual shall not be required to file a FOIA 

request. 

(g) A review of a document covered under section 1.1 of these procedures may 

determine that some or all of its content is subject to one or more FOIA 

exemptions or to requirements of the Privacy Act. Determinations regarding 

FOIA exemptions shall be made by a CDC FOIA Officer. Content protected by 

the Privacy Act or FOIA exemptions shall not be released to the requestor. 

2.0 Records Obtained by the Board 

2.1 Definition. “Records obtained by the Board” include NIOSH records (documents 

and data) that the Board has obtained and reviewed from the NIOSH System of 

Records associated with EEOICPA and has considered during a meeting of the 

Board or of its subcommittees or working groups. Such records have been 

“considered” when their content has been substantively discussed by the Board 

during a Board meeting to conduct work covered by the Board’s Charter. 

“Records obtained by the Board” also include records that the Board or a 

subcommittee or working group thereof has accepted directly from a source other 

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than NIOSH, such as documents and data submitted to the Board by private sector 

organizations, governmental agencies other than NIOSH, and members of the 

public. Such records from sources other than NIOSH are considered Board 

records once they have been shared with Board members at a Board meeting, 

subcommittee meeting, or working group meeting or have been provided to the 

Board through correspondence. 

2.2 Procedure. 

(a) Records obtained by the Board, as defined under 2.1 of these procedures, 

shall be provided to members of the public upon request, provided that the record 

does not fall within one of the exemptions set forth in section 552(b) of FOIA, 

after a Privacy Act review and, when necessary, after clearance by a DOE 

security review under the DOE Security Plan covering NIOSH and Board 

EEOICPA activities. Records in media that cannot be readily transmitted 

electronically or in print to the requestor (e.g., videos) will be made available for 

viewing in the NIOSH OCAS Reading Room. 

(b) As noted in 2.2(a), a review of the document or data may determine that some 

or all of its content is subject to one or more FOIA exemptions or to the 

requirements of the Privacy Act. Determinations regarding FOIA exemptions 

shall be made by a CDC FOIA Officer. Such content shall not be released to the 

requestor. 

(c) Members of the public requesting a Board document, as defined under section 

2.1 of these procedures, shall make such a request in writing to the Board DFO. 

Provided that the request does not fall within one of the exemptions set forth in 

section 552(b) of FOIA, the individual shall not be required to file a FOIA 

request. 

3.0 Records Accessible to the Board 

3.1 Definition. “Records accessible to the Board” include all NIOSH records 

contained in the NIOSH System of Records associated with EEOICPA that are 

accessible to the Board but that have not been obtained and reviewed by the 

Board and considered by the Board during a meeting of the Board, as defined 

under section 2.1 of these procedures. 

3.2 Procedure. 

(a) NIOSH records accessible to the Board, as defined under section 3.1 of these 

procedures, are not considered Board documents. Such records may be provided 

to members of the public through a FOIA request and, when necessary, upon 

clearance by a DOE security review under the DOE Security Plan covering 

NIOSH and Board EEOICPA activities. 

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(b) A FOIA and Privacy Act review of the document or data may determine that 

some or all of its content is subject to one or more FOIA exemptions or to the 

requirements of the Privacy Act. Such content shall not be released to the 

requestor. 

(c) Members of the public requesting a NIOSH record, as defined under 3.1 of 

these procedures, must submit a FOIA request to the CDC/ATSDR FOIA Office. 

CDC shall require a FOIA request before providing such records and such records 

shall be processed under the CDC FOIA policies and procedures.