Sec.  0.457   Records not routinely available for public inspection.

   The records listed in this section are not routinely available for public
   inspection. The records are listed in this section by category, according to
   the statutory basis for withholding those records from inspection; and under
   each category, if appropriate, the underlying policy considerations
   affecting the withholding and disclosure of records in that category are
   briefly outlined. Except where the records are not the property of the
   Commission or where the disclosure of those records is prohibited by law,
   the Commission will entertain requests from members of the public under
    Sec. 0.461 for permission to inspect particular records withheld from inspection
   under the provisions of this section, and will weigh the policy
   considerations favoring non-disclosure against the reasons cited for
   permitting inspection in the light of the facts of the particular case. In
   making such requests, it is important to appreciate that there may be more
   than one basis for withholding particular records from inspection. The
   listing of records by category is not intended to imply the contrary but is
   solely for the information and assistance of persons making such requests.
   Requests to inspect or copy the transcripts, recordings or minutes of agency
   or advisory committee meetings will be considered under  Sec. 0.603 rather than
   under the provisions of this section.

   (a) Materials that are specifically authorized under criteria established by
   Executive Order to be kept secret in the interest of national defense or
   foreign policy and are in fact properly classified pursuant to such
   Executive Order, 5 U.S.C. 552(b)(1). (1) E.O. 10450, “Security Requirements
   for Government Employees,”  18 FR 2489 , April 27, 1953, 3 CFR, 1949–1953
   Comp., p. 936. Pursuant to the provisions of E.O. 10450, reports and other
   material and information developed in security investigations are the
   property of the investigative agency. If they are retained by the
   Commission, it is required that they be maintained in confidence and that no
   access be given to them without the consent of the investigative agency.
   Such materials and information will not be made available for public
   inspection. See also paragraphs (f) and (g) of this section.

   (2) E.O. 10501, “Safeguarding Official Information in the Interests of the
   Defense of the United States,”  18 FR 7049 , November 10, 1953, as amended, 3
   CFR, 1965 ed., p. 450. E.O. 10501, as amended, provides for the
   classification of official information which requires protection in the
   interests of national defense, and prohibits the disclosure of classified
   information except as provided therein. Classified materials and information
   will not be made available for public inspection. See also, E.O. 10033,
   February 8, 1949,  14 FR 561 , 3 CFR, 1949–1953 Comp., p. 226, and 47 U.S.C.
   154(j).

   (b) Materials that are related solely to the internal personnel rules and
   practices of the Commission, 5 U.S.C. 552(b)(2). (1) Materials related
   solely to internal management matters, including minutes of Commission
   actions on such matters. Such materials may be made available for inspection
   under  Sec. 0.461, however, unless their disclosure would interfere with or
   prejudice the performance of the internal management functions to which they
   relate, or unless their disclosure would constitute a clearly unwarranted
   invasion of personal privacy (see paragraph (f) of this section).

   (2) Materials relating to the negotiation of contracts.

   (3) All materials used in conducting radio operator examinations, including
   test booklets, Morse Code tapes, and scoring masks.

   (c) Materials that are specifically exempted from disclosure by statute
   (other than the Government in the Sunshine Act, 5 U.S.C. 552b): Provided,
   That such statute (1) requires that the materials be withheld from the
   public in such a manner as to leave no discretion on the issue, or (2)
   establishes particular criteria for withholding or refers to particular
   types of materials to be withheld. The Commission is authorized under the
   following statutory provisions to withhold materials from public inspection.

   (1) Section 4(j) of the Communications Act, 47 U.S.C. 154(j), provides, in
   part, that, “The Commission is authorized to withhold publication of records
   or proceedings containing secret information affecting the national
   defense.” Pursuant to that provision, it has been determined that the
   following materials should be withheld from public inspection (see also
   paragraph (a) of this section):

   (i) Maps showing the exact location of submarine cables.

   (ii) Minutes of Commission actions on classified matters.

   (iii) Maps of nation-wide point-to-point microwave networks.

   (2) Under section 213(f) of the Communications Act, 47 U.S.C. 213(f), the
   Commission is authorized to order, with the reasons therefor, that records
   and data pertaining to the valuation of the property of common carriers and
   furnished to the Commission by the carriers pursuant to the provisions of
   that section, shall not be available for public inspection. If such an order
   has been issued, the data and records will be withheld from public
   inspection, except under the provisions of  Sec. 0.461. Normally, however, such
   data and information is available for inspection. See  Sec. 0.455(c) (8).

   (3) Under section 412 of the Communications Act, 47 U.S.C. 412, the
   Commission may withhold from public inspection certain contracts, agreements
   and arrangements between common carriers relating to foreign wire or radio
   communication. Reports of negotiations regarding such foreign communication
   matters, filed by carriers under  Sec. 43.52 of this chapter, may also be
   withheld from public inspection under section 412. Any person may file a
   petition requesting that such materials be withheld from public inspection.
   To support such action, the petition must show that the contract, agreement
   or arrangement relates to foreign wire or radio communications; that its
   publication would place American communication companies at a disadvantage
   in meeting the competition of foreign communication companies; and that the
   public interest would be served by keeping its terms confidential. If the
   Commission orders that such materials be kept confidential, they will be
   made available for inspection only under the provisions of  Sec. 0.461.

   (4) Section 605 of the Communications Act, 47 U.S.C. 605, provides, in part,
   that, “no person not being authorized by the sender shall intercept any
   communication [by wire or radio] and divulge or publish the existence,
   contents, substance, purport, effect, or meaning of such intercepted
   communications to any person.” In executing its responsibilities, the
   Commission regularly monitors radio transmissions (see  Sec. 0.116). Except as
   required for the enforcement of the communications laws, treaties and the
   provisions of this chapter, or as authorized in section 605, the Commission
   is prohibited from divulging information obtained in the course of these
   monitoring activities; and such information, and materials relating thereto,
   will not be made available for public inspection.

   (5) Section 1905 of the Criminal Code, 18 U.S.C. 1905, prohibits the
   unauthorized disclosure of certain confidential information. See paragraph
   (d) of this section.

   (d) Trade secrets and commercial or financial information obtained from any
   person and privileged or confidential—categories of materials not routinely
   available for public inspection, 5 U.S.C. 552(b)(4) and 18 U.S.C. 1905. (1)
   The materials listed in this subparagraph have been accepted, or are being
   accepted, by the Commission on a confidential basis pursuant to 5 U.S.C.
   552(b)(4). To the extent indicated in each case, the materials are not
   routinely available for public inspection. If the protection afforded is
   sufficient, it is unnecessary for persons submitting such materials to
   submit therewith a request for non-disclosure pursuant to  Sec. 0.459. A
   persuasive showing as to the reasons for inspection will be required in
   requests for inspection of such materials submitted under  Sec. 0.461.

   (i) Financial reports submitted by licensees of broadcast stations pursuant
   to former  Sec. 1.611 or by radio or television networks are not routinely
   available for inspection.

   (ii) Applications for equipment authorizations (type acceptance, type
   approval, certification, or advance approval of subscription television
   systems), and materials relating to such applications, are not routinely
   available for public inspection prior to the effective date of the
   authorization. The effective date of the authorization will, upon request,
   be deferred to a date no earlier than that specified by the applicant.
   Following the effective date of the authorization, the application and
   related materials (including technical specifications and test measurements)
   will be made available for inspection upon request (See  Sec. 0.460). Portions of
   applications for equipment certification of scanning receivers and related
   materials will not be made available for inspection. This information
   includes that necessary to prevent modification of scanning receivers to
   receive Cellular Service frequencies, such as schematic diagrams, technical
   narratives describing equipment operation, and relevant design details.
   Portions of applications for equipment certification of software defined
   radios that describe the operation of the device's software and security
   features will not be made available for inspection.

   (iii) Information submitted in connection with audits, investigations and
   examination of records pursuant to 47 U.S.C. 220.

   (iv) Programming contracts between programmers and multichannel video
   programming distributors.

   (v) Prior to July 4, 1967, the rules and regulations provided that certain
   materials submitted to the Commission would not be made available for public
   inspection or provided assurance, in varying degrees, that requests for
   nondisclosure of certain materials would be honored. See, e.g., 47 CFR
   chapter I revised as of October 1, 1966,  Sec.  Sec. 0.417, 2.557, 5.204, 5.255,
   15.70, 21.406, 80.33, 87.153, 89.215, 91.208, 91.605 and 93.208. Materials
   submitted under these provisions are not routinely available for public
   inspection. To the extent that such materials were accepted on a
   confidential basis under the then existing rules, they are not routinely
   available for public inspection. The rules cited in this paragraph (d)(1)(v)
   were superseded by the provisions of this paragraph (d), effective July 4,
   1967. Equipment authorization information accepted on a confidential basis
   between July 4, 1967 and March 25, 1974, will not be routinely available for
   inspection and a persuasive showing as to the reasons for inspection of such
   information will be required in requests for inspection of such materials
   submitted under  Sec. 0.461.

   (vi) Information on the users and locations of radio frequency
   identification systems submitted to the Commission pursuant to  Sec. 15.240 will
   be made available to other Federal Government agencies but will not
   otherwise be made available for inspection.

   (2) Unless the materials to be submitted are listed in paragraph (d)(1) of
   this section and the protection thereby afforded is adequate, it is
   important for any person who submits materials which he wishes withheld from
   public inspection under 5 U.S.C. 552(b)(4) to submit therewith a request for
   non-disclosure pursuant to  Sec. 0.459. If it is shown in the request that the
   materials contain trade secrets or commercial, financial or technical data
   which would customarily be guarded from competitors, the materials will not
   be made routinely available for inspection; and a persuasive showing as to
   the reasons for inspection will be required in requests for inspection
   submitted under  Sec. 0.461. In the absence of a request for non-disclosure, the
   Commission may, in the unusual instance, determine on its own motion that
   the materials should not be routinely available for public inspection.
   Ordinarily, however, in the absence of such a request, materials which are
   submitted will be made available for inspection upon request pursuant to
    Sec. 0.461, even though some question may be present as to whether they contain
   trade secrets or like matter.

   (e) Interagency and intra-agency memorandums or letters, 5 U.S.C. 552(b)(5).
   Interagency and intra-agency memorandums or letters and the work papers of
   members of the Commission or its staff will not be made available for public
   inspection, except in accordance with the procedures set forth in  Sec. 0.461.
   Only if it is shown in a request under  Sec. 0.461 that such a communication
   would be routinely available to a private party through the discovery
   process in litigation with the Commission will the communication be made
   available for public inspection. Normally such papers are privileged and not
   available to private parties through the discovery process, since their
   disclosure would tend to restrain the commitment of ideas to writing, would
   tend to inhibit communication among Government personnel, and would, in some
   cases, involve premature disclosure of their contents.

   (f) Personnel, medical and other files whose disclosure would constitute a
   clearly unwarranted invasion of personal privacy, 5 U.S.C. 552(b)(6). (1)
   Under Executive Order 10561,  19 FR 5963 , September 13, 1954, 3 CFR,
   1954–1958 Comp., page 205, the Commission maintains an Official Personnel
   Folder for each of its employees. Such folders are under the jurisdiction
   and control, and are a part of the records, of the U.S. Office of Personnel
   Management. Except as provided in the rules of the Office of Personnel
   Management (5 CFR 294.701–294.703), such folders will not be made available
   for public inspection by the Commission. In addition, other records of the
   Commission containing private, personal or financial information concerning
   particular employees will be withheld from public inspection.

   (2) [Reserved]

   (3) Information submitted to the Commission by applicants for commercial
   radio operator licenses concerning the character and mental or physical
   health of the applicant is available for inspection only under procedures
   set forth in  Sec. 0.461. Except in this respect, or where other aspects of a
   similar private nature warrant nondisclosure, commercial radio operator
   application files are available for inspection.

   (g) Investigatory records compiled for law enforcement purposes, to the
   extent that production of such records would:

   (1) Interfere with enforcement proceedings;

   (2) Deprive a person of a right to fair trial or an impartial adjudication;

   (3) Constitute an unwarranted invasion of personal privacy;

   (4) Disclose the identity of a confidential source;

   (5) Disclose investigative techniques or procedures; or

   (6) Endanger the life or physical safety of law enforcement personnel, 5
   U.S.C. 552(b)(7).

   [ 32 FR 10573 , July 19, 1967]

   Editorial Note:   For Federal Register citations affecting  Sec. 0.457, see the
   List of CFR Sections Affected, which appears in the Finding Aids section of
   the printed volume and on GPO Access.