
[Code of Federal Regulations]
[Title 45, Volume 1]
[Revised as of October 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 45CFR5]

[Page 17-19]
 
                        TITLE 45--PUBLIC WELFARE
 
                    SUBTITLE A--DEPARTMENT OF HEALTH
                           AND HUMAN SERVICES
 
PART 5--FREEDOM OF INFORMATION REGULATIONS--Table of Contents
 
Subpart A--Basic Policy

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.

    (a) Coverage. The FOIA and this rule apply to all HHS records. The 
Privacy Act, 5 U.S.C. 552a, applies to records that are about 
individuals, but only if the records are in a system of records. 
``Individuals'' and ``system of records'' are defined in the Privacy Act 
and in our Privacy Act regulation, part 5b of this title.
    (b) Requesting your own records. If you are an individual and 
request records, then to the extent you are requesting your own records 
in a system of records, we will handle your request under the Privacy 
Act and part 5b. If there is any record that we need not release to you 
under those provisions, we will also consider your request under the 
FOIA and this rule, and we will release the record to you if the FOIA 
requires it.
    (c) Requesting another individual's record. Whether or not you are 
an individual, if you request records that are about an individual 
(other than yourself) and that are in a system of records, we will 
handle your request under the FOIA and this rule. (However, if our 
disclosure in response to your request would be permitted by the Privacy 
Act's disclosure provision, 5 U.S.C. 552a(b), for reasons other than the 
requirements of the FOIA, and if we decide to make the disclosure, then 
we will not handle your request under the FOIA and this rule. For 
example, when we make routine use disclosures

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pursuant to requests, we do not handle them under the FOIA and this 
rule. ``Routine use'' is defined in the Privacy Act and in Part 5b). If 
we handle your request under the FOIA and this rule and the FOIA does 
not require releasing the record to you, then the Privacy Act may 
prohibit the release and remove our discretion to release.

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, 
1395u.
    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 research.
    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

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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 exemptions.
    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 request.
