Code of Federal Regulations Title 32. National Defense § 32.2002.44 CUI and disclosure statutes

(a) General policy. The fact that an agency designates certain information as CUI does not affect an agency's or employee's determinations pursuant to any law that requires the agency or the employee to disclose that information or permits them to do so as a matter of discretion. The agency or employee must make such determinations according to the criteria set out in the governing law, not on the basis of the information's status as CUI.

(b) CUI and the Freedom of Information Act (FOIA). Agencies must not cite the FOIA as a CUI safeguarding or disseminating control authority for CUI. When an agency is determining whether to disclose information in response to a FOIA request, the agency must base its decision on the content of the information and applicability of any FOIA statutory exemptions, regardless of whether an agency designates or marks the information as CUI. There may be circumstances in which an agency may disclose CUI to an individual or entity, including through a FOIA response, but such disclosure does not always constitute public release as defined in this part. Although disclosed via a FOIA response, the agency may still need to control the CUI while the agency continues to hold the information, despite the disclosure, unless the agency otherwise decontrols it (or the agency includes in its policies that FOIA disclosure always results in public release and the CUI does not otherwise have another legal requirement for its continued control).

(c) CUI and the Whistleblower Protection Act. This part does not change or affect existing legal protections for whistleblowers. The fact that an agency designates or marks certain information as CUI does not determine whether an individual may lawfully disclose that information under a law or other authority, and does not preempt or otherwise affect whistleblower legal protections provided by law, regulation, or executive order or directive.