# DoD Freedom of Information Act (FOIA) Program

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2014-19747

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** September 3, 2014
- **Citation:** 79 FR 52500

## Text

DEPARTMENT OF DEFENSE BILLING CODE
Office of the Secretary
32 CFR Part 286
[DoD-2007-OS-0086; 0790-AI24]
DoD Freedom of Information Act (FOIA) Program

AGENCY:

Department of Defense.

ACTION:

Proposed rule.

SUMMARY:

The rule updates DoD policy and procedures that implement the Freedom of Information Act (FOIA) and incorporate the provisions of the executive order directing agencies to improve the disclosure of information. This part promotes uniformity in the DoD FOIA Program. It takes precedence over all DoD Component publications that supplement and implement the DoD FOIA Program.

DATES:

Comments must be received by November 3, 2014.

FOR FURTHER INFORMATION CONTACT:

James Hogan, 571-372-0463.

SUPPLEMENTARY INFORMATION:

This rule is part of DoD's retrospective plan, completed in August 2011, under Executive Order 13563, “Improving Regulation and Regulatory Review.” DoD's full plan and updates can be accessed at:
http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=DOD-2011-OS-0036.

Executive Summary

I. Purpose of This Regulatory Action

a. This rule revises 32 CFR part 286 in accordance with the authority in 32 CFR part 285 to implement 5 U.S.C. 552 and incorporate the provisions of Executive Order 13392. This part promotes uniformity in the DoD FOIA Program.

b. Authority: The Freedom of Information Act (FOIA) (5 U.S.C. 552), as amended, provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions. Furthermore, the FOIA requires agency to promulgate regulations to carry out some of its provisions.

II. Summary of the Major Provisions of This Regulatory Action

This rule implements changes to conform to the requirements of the Electronic Freedom of Information Act Amendments of 1996, Public Law 104-231, and the OPEN Government Act of 2007, Public Law 110-175.

III. Costs and Benefits of This Regulatory Action

This regulatory action imposes no monetary costs to the Agency or public. The benefit to the public is the accurate reflection of the Agency's FOIA Program to ensure that policies and procedures are known to the public.

Regulatory Procedures

Executive Order 12866, “Regulatory Planning and Review” and Executive Order 13563, “Improving Regulation and Regulatory Review”

We have consulted with the Office of Management and Budget (OMB) and determined this NPRM meets the criteria for a significant regulatory action under Executive Order 12866, as supplemented by
Executive Order 13563,
and was subject to OMB review.

Sec. 202, Public Law 104-4, “Unfunded Mandates Reform Act”

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. This document will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.

Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601)

It has been certified that 32 CFR part 286 is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. The rule implements the procedures for processing FOIA requests within the Department of Defense. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

This proposed rule do not create any new or affect any existing collections, and therefore, do not require OMB approval under the Paperwork Reduction Act

Executive Order 13132, “Federalism”

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This document will not have a substantial effect on State and local governments.

List of Subjects in 32 CFR Part 286

Freedom of information.

Accordingly, 32 CFR part 286 is proposed to be revised to read as follows:

PART 286—DOD FREEDOM OF INFORMATION ACT (FOIA) PROGRAM

Subpart A—General

Sec.
286.1
Purpose.
286.2
Applicability.
286.3
Definitions.
286.4
Policy.
286.5
Responsibilities.

Subpart B—General Provisions

286.6
Public access to DoD information.
286.7
FOIA requester service center.
286.8
FOIA Public Liaisons.
286.9
Unofficial release of DoD information.
286.10
Description of requested record.
286.11
Combatant Commands.
286.12
Security clearances and access.
286.13
Use of contractors in FOIA administration.
286.14
Records management.
286.15
Relationship between the FOIA and the Privacy Act.
286.16
Non-responsive information.
286.17
Honoring form or format requests.
286.18
Annual report.
286.19
Dispute resolution and the Office of Government Information Services (OGIS).

Subpart C—FOIA Libraries

286.20
Requirements.
286.21
Record availability.
286.22
Indexes.
286.23
Section (a)(1) records.

Subpart D—Exemptions

286.24
General provisions.
286.25
Applying the FOIA exemptions.
286.26
Exclusions.

Subpart E—FOIA Request Processing

286.27
General provisions.
286.28
Processing procedures.
286.29
Initial determinations.
286.30
Referrals and consultations.
286.31
Appeals.
286.32
FOIA litigation.

Subpart F—Fee Schedule

286.33
General provisions.
286.34
Fees for technical data.
286.35
Fees for research data.

Subpart G—Education and Training

286.36
Purpose.
286.37
Responsibility.
286.38
Scope and principles.
286.39
Implementation.
Appendix A to Part 286—DoD FOIA Program Components and Addresses

Authority:

5 U.S.C. 552.

Subpart A—General

§ 286.1
Purpose.

This part is in accordance with the authority in DoD Directive 5105.53, “Director of Administration and Management (DA&M)” (available from
http://www.dtic.mil/whs/directives/corres/pdf/510553p.pdf
) and the guidelines and responsibilities in 32 CFR part 285 to implement 5 U.S.C. 552 (also known and hereinafter referred to as “The Freedom of Information Act (FOIA), as amended”) and incorporate the provisions of Executive Order 13392. This part promotes uniformity in the DoD FOIA Program. It takes precedence over all DoD Component publications that supplement and implement the DoD FOIA Program.

§ 286.2
Applicability.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the Department of Defense (referred to collectively in this part as the “DoD Components”).

§ 286.3
Definitions.
Unless otherwise noted, these terms and their definitions are for this part.

Administrative appeal.
A request by a member of the public, made pursuant to the FOIA, asking the appellate authority of a DoD Component to reverse any adverse determination by an initial denial authority (IDA).

Adverse determination.
A decision by an IDA to withhold all or part of a requested record pursuant to an exemption, deny a fee category claim by a FOIA requester, deny a request for waiver or reduction of fees, deny a request to review an initial fee estimate, deny a request for expedited processing, confirm that no records were located during the initial search, or make any determination that a FOIA requester believes is adverse in nature.

Agency record.
(1) Includes all documents or records created or obtained by an agency of the Government that are in an agency's possession and control at the time a FOIA request is received. Four factors determine an agency's control:

(i) The intent of the creator of the document to retain control over the record;

(ii) The ability of the agency to use and dispose of the record as it sees fit;

(iii) The extent to which agency personnel have read or relied upon the document;

(iv) The degree to which the document was integrated into the agency's record systems or files. Information maintained by an entity pursuant to government contract for a DoD Component for records management is considered in the DoD Component's possession. Records created by an agency employee during employment, including emails, may be either agency records or personal files.

(A) Examples include:

(
1
) Research data produced during the performance of a federal grant used by the Government in developing an agency action that has the force and effect of law in accordance with OMB Circular No. A-110 (available at
http://www.whitehouse.gov/omb/circulars_a110/
).

(
2
) Books, papers, maps, photographs, machine-readable materials inclusive of those in electronic form or format, and other documentary materials, regardless of physical form or characteristics. Form or format refers to physical media type or transmission mode desired by the FOIA requester, e.g., computer disk, computer tape, file transfer protocol, photographs, videotape, and microfiche.

(B) Examples do not include:

(
1
) Objects or articles such as structures, furniture, vehicles, and equipment, whatever their historical value or value as evidence.

(
2
) Anything that is not a tangible or documentary record, such as an individual's memory or oral communication.

(
3
) Personal files.

(2) The definition of an agency record under the FOIA is more expansive than the definition of a federal record. Documents such as drafts and working files need not be official records as defined as official records, but are still agency records responsive to FOIA requests.

Appellate authority.
The DoD Component head, or designee, having jurisdiction to review and possibly reverse, remand, or amend any adverse determination made by an IDA. Every DoD Component listed in Appendix A to this part must have an appellate authority.

Critical Infrastructure Security Information (CISI).
Defined in 10 U.S.C. 130e(c).

Commercial request.
A FOIA request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interest of the FOIA requester or the person on whose behalf the FOIA request is made.

Compelling need.
A state that exists when the failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual, or when the information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged government activity and the value of the information would be lost if it is disseminated at a later time.

Consultation.
The process whereby a federal agency transfers a FOIA responsive document to another federal agency or non-government entity, in certain situations, to obtain recommendations on the releasability of the document. After review, the document is returned to the original agency for response to the FOIA requester or further review.

Deliberative information.
Internal advice, recommendations, or subjective evaluations that are reflected in records relied upon in the decision-making process of an agency, whether within or among agencies.

Demonstration of a compelling need.
A statement certified to be true and correct to the best of a FOIA requester's knowledge and belief. This statement must be with the FOIA request in order for it to be considered and responded to within the 10 calendar days required for decisions on expedited access.

Direct costs.
Those expenditures a DoD Component makes in searching for, reviewing, and duplicating documents to respond to a FOIA request. For example, direct costs may include the salary of the employee performing the work (the basic rate of pay plus 16 percent of that rate to cover benefits) and the costs of operating duplicating machinery. (These factors have been included in the fee rates prescribed in Table 1 of § 286.33.) Not included in direct costs are overhead expenses such as the cost of space, heating, or lighting the facility where the records are stored.

Duplication.
The process of making a copy of a document in response to a FOIA request. Such copies can take the form of paper, microfiche, audiovisual or machine-readable documentation (e.g., magnetic tape or CD), among others. Time spent programming or querying a computer system to output information in a particular digital form or format for a FOIA requester is considered search time.

Educational institution.
A pre-school, a public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education,

or an institution of vocational education that operates a program or programs of scholarly research.

Electronic records.
Records (including email) created, stored, and retrievable by electronic means.

Federal agency.
Defined in 5 U.S.C. 551(1) and 552(f)(1). A federal agency cannot make a FOIA request.

Fee waiver.
Defined in 5 U.S.C. 552(a)(4)(A)(iii).

Final response determination.
The response from the DoD Component, at the completion of the processing of an initial FOIA request, to the FOIA requester reflecting the final release determination made by the DoD Component.

FOIA Public Liaison.
A supervisory official to whom a FOIA requester can raise concerns about the service the FOIA requester receives from a FOIA Requester Center, and who is responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes. All DoD Components listed in Appendix A to this part must have a FOIA Public Liaison.

FOIA request.
A written request for DoD records that reasonably describes the record(s) sought, enabling a DoD Component employee familiar with the files to locate the record(s) with a reasonable amount of effort.

(1) A commercial requester asking for contract-related documents must indicate a willingness to pay fees equal to or greater than the minimum fees established by the DoD Component for commercial requesters.

(2) Written FOIA requests may be submitted by U.S. Postal Service or other commercial delivery means, by facsimile, or electronically, to an address provided for submission of FOIA requests and must include the FOIA requester's postal mailing address. Commercial delivery is acceptable; however, due to security concerns, the DoD Components may refuse to accept commercial delivery of FOIA requests.

FOIA requester.
Any person, including a partnership, corporation, association, State or State agency, foreign government, foreign national, or a lawyer or other representative acting on behalf of any person, who submits a FOIA request. This definition specifically excludes agencies within the Executive Branch of the government.

FOIA Requester Service Center.
A DoD Component office that receives FOIA requests from and responds directly to the public. It also is the first place a FOIA requester can contact to seek information concerning the status of that person's FOIA request and appropriate information about the agency's FOIA response.

Form.
The storage media that hold content in digital form on which responsive information is provided to FOIA requesters. Examples are electronic documents, audiovisual material on tape, and all storage media that hold content in digital form and that are written and read by a laser; these media include all the various CD and DVD variations. Paper documents are typically an example of non-digital storage media.

Format.
A pre-established layout for data. A computer program accepts data as input in a certain format, processes it, and provides it as output in the same or another format. All digital data is stored in some format with the expectation that it will be processed by a program that knows how to handle that format. Usually, data formats tend to fall into bitmaps (strings of 0s and 1s) that describe images or sound patterns (or both), text formats (where each byte value usually is mapped to a character), and numeric data formats (used by spreadsheet and other database programs). Examples include a pre-established arrangement of data for computer input or output, such as the number and size of data fields in a record or the spacing and punctuation of information in a report.

Glomar.
The term applied to a type of response to a FOIA request where the DoD Component neither confirms nor denies the existence or nonexistence of records responsive to the FOIA request.

IDA.
An official who has been granted authority by the DoD Component head to withhold records requested pursuant to the FOIA for one or more of the nine categories of records exempt from mandatory disclosure. An IDA may also deny a fee category claim by a FOIA requester, deny a request for expedited processing, deny a request for a waiver or reduction of fees, review a fee estimate, and confirm that no records were located in response to a FOIA request.

Individual primarily engaged in disseminating information.
A person or entity whose primary activity involves publishing or otherwise disseminating information to the public. To qualify, a person or entity must establish that information dissemination is their principal professional activity or occupation, and not an incidental or secondary activity

Military Flight Operations Quality Assurance (MFOQA) system data file.
Defined in 10 U.S.C. 2254(a)(2).

Misdirected FOIA request.
A FOIA request that is mistakenly addressed to a FOIA Requester Service Center of a DoD Component that is not the proper DoD Component to process the request.

News.
Information that is about current events or that would be of current interest to the public.

Non-commercial scientific institution.
An institution that is not operated on a commercial basis and that is operated solely for conducting scientific research, the results of which are not intended to promote any particular product or industry.

Perfected FOIA request.
A request that meets the definition of a FOIA request and that arrives at the FOIA Requester Service Center of the DoD Component in possession of the records. The statutory time limit for responding to a FOIA request does not begin until it is perfected.

Personal file.
Documents unrelated to the conduct of agency business, or indirectly related to agency business but outside the scope of agency records. A personal file is not subject to the FOIA. FOIA case law predominantly refers to personal files as personal records. Examples include:

(1) Business or professional files created before entering government service; files created during or relating to previously held positions, political materials, and reference files.

(2) Private files brought into, created, or received in the office; family and personal correspondence and materials documenting professional activities and outside business or political pursuits, including manuscripts and drafts for articles and books and volunteer and community service records that are considered personal, even if created or received while in office, because they do not relate to agency business.

(3) Work-related personal files including emails, diaries, journals, notes, and personal calendars and appointment schedules. Though work-related, these files may be personal if they are used only as reminders and personal observations on work-related topics, not for the transaction of government business.

Pre-decisional information.
Information created before the decision maker reached a final decision.

Privacy Act request.
As defined in 32 CFR part 310.

Public interest.
The interest in obtaining official information that sheds light on an agency's performance of its statutory duties because the information falls within the statutory purpose of the FOIA to inform citizens about government activities.

Referral.
The process whereby a DoD Component receiving the FOIA request locates documents originating with another DoD Component or federal

agency. Accordingly, the FOIA request and documents are transferred to the originating DoD Component or federal agency for response directly to the FOIA requester.

Representative of the news media.
A person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.

Review.
The time taken to conduct the initial examination of responsive documents located to determine whether one or more of the statutory exemptions permit withholding. Additionally, the time taken to redact, either manually or electronically, the documents to prepare them for release would be considered review time, as is the time to prepare and provide submitter notification and review submitter responses in accordance with E.O. 12600. Review does not include the time spent resolving general legal or policy issues regarding the application of exemptions.

Search time.
Includes all time spent looking, both manually and electronically, for records responsive to a FOIA request. Electronic searches would include searching for responsive email or electronic documents whether they are located on personal computers, network servers, databases, or easily accessible storage media. The time taken by a programmer to create a program to run a requested report from a database is search time. The term “search” also includes a page-by-page or line-by-line identification (if necessary) of material in the record to determine if it, or portions of it, are responsive to the FOIA request.

Submitter.
A person or entity outside of the government providing commercial or financial information or trade secrets to the government.

Technical data.
Recorded information related to experimental, developmental, or engineering works that can be used to define an engineering or manufacturing process or to design, procure, produce, support, maintain, operate, repair, or overhaul material.

Toll.
To delay, suspend, or hold off the effects of a statute.

Urgently needed.
Information requested has a particular value that will be lost if not disseminated quickly, such as a breaking story of general public interest. Information of historical interest only, or information sought for litigation or commercial activities, would not qualify as “urgently needed,” nor would a news media publication or broadcast deadline unrelated to the news-breaking nature of the information.

§ 286.4
Policy.
It is DoD policy, pursuant to 32 CFR part 285, to promote government transparency and accountability by adopting a presumption in favor of disclosure in all decisions involving the FOIA and responding promptly to FOIA requests in a spirit of cooperation.

§ 286.5
Responsibilities.
The OSD and DoD Component heads implement the procedures prescribed in this part and ensure that supplemental guidance and procedures are in accordance with 32 CFR part 285 and this part.

Subpart B—General Provisions

§ 286.6
Public access to DoD information.
(a) The public has a right to information concerning U.S. Government activities.

(1) A DoD record (referred to in this part as “record”) requested by a member of the public who follows rules established by this part must not be withheld in whole or in part unless the record is exempt from partial or total disclosure by the FOIA.

(2) The applicability of a FOIA exemption to withhold information does not preclude the DoD Component from making a discretionary release in accordance with § 286.24(b).

(b) Executive Order 13392 directs agencies to emphasize a new citizen-centered approach to the FOIA with a results-oriented focus. Because FOIA requesters are seeking a service from the government, the DoD Components must respond courteously and appropriately to FOIA requesters. Additionally, the DoD Components must provide the public with citizen-centered ways to learn about the FOIA process, information about agency records that are publicly available, and information about the status of a person's FOIA request and appropriate information about the agency's response.

(c) The Defense Freedom of Information Policy Office (DFOIPO) maintains a handbook for the public to use in obtaining information from the Department of Defense as required by section (g)(3) of the FOIA and section 2(b)(v) of Executive Order 13392. This handbook is a short, simple explanation of what the FOIA is designed to do and how the public can use it to access DoD records. This handbook will be posted on the DFOIPO Web site and the FOIA Web site of each DoD FOIA Component listed in Appendix A to this part must have a link to it.

(d) Individuals seeking DoD information should address their FOIA requests to one of the FOIA Requester Service Center addresses listed in Appendix A to this part. If a FOIA requester is uncertain where to send a FOIA request for DoD information, the FOIA requester can call 1-866-574-4970 (toll-free) for assistance.

§ 286.7
FOIA requester service center.
(a) Each DoD FOIA Program Component listed in Appendix A to this part must establish one or more FOIA Requester Service Centers.

(b) Each FOIA Requester Service Center will have a Web site that serves to educate the public on the FOIA process. These Web sites will comply with DoD Instruction 8550.01. At a minimum, each Web site will have:

(1) The address, telephone number, facsimile number, and organizational email address to which FOIA requests can be sent.

(2) A link to the DoD FOIA handbook.

(3) A description of the types of records that can be requested.

(4) The name and contact information of the DoD Component's FOIA public liaison.

(5) Information on how a FOIA requester can obtain the status of a FOIA request (either by telephone or through the FOIA Requester Service Center Web site).

(6) A FOIA library as described in § 286.20(b) or a link to the DoD Component's FOIA library if the library is centralized.

(c) The Web sites of DoD Component Headquarters FOIA Requester Service Centers will link to the Web sites of the other FOIA Requester Service Centers within their Components.

(d) The Internet home page of every DoD Component will link to the FOIA Requester Service Center for that DoD Component.

§ 286.8
FOIA Public Liaisons.
The DoD Components listed in Appendix A to the part will submit to the Director of Administration and Management (DA&M) the names of personnel to serve as DoD Component FOIA Public Liaisons. Each DoD Component will have at least one FOIA Public Liaison. Intermediate level public liaisons may be named by those DoD Components that have a large number of FOIA Requester Service Centers.

(a) The FOIA Public Liaisons are responsible for:

(1) Ensuring that the FOIA Requester Service Centers' Web sites comply with the requirements in § 286.7(b) through (d).

(2) Assisting in the reduction of any delays in responding to FOIA requests.

(3) Increasing transparency and understanding of request's statuses.

(4) Assisting in dispute resolution.

(b) The FOIA Public Liaison for the DoD Components listed in Appendix A to this part will be appointed from DFOIPO.

§ 286.9
Unofficial release of DoD information.
Records released by the authority of this part or under circumstances in which a DoD official with the appropriate authority has authorized the release of the information to the public are considered to be in the public domain. The disclosure of exempt records, without authorization by the appropriate DoD official, is not an official release of information; accordingly, it is not a FOIA release. Such a release does not waive the authority of the Department of Defense to assert FOIA exemptions to withhold the same records in response to a FOIA request. Also, while the authority may exist to disclose records to individuals in their official capacity, the provisions of this part apply if the same individual seeks the records in a private or personal capacity.

§ 286.10
Description of requested record.
The requester is responsible for providing a description of the desired record that enables the DoD Component to locate the record with a reasonable amount of effort. A reasonable description contains sufficient information to permit an organized, non-random search for the record based on the DoD Component's filing arrangements and existing retrieval systems. The DoD Component's decision on the reasonableness of the description must be based on knowledge of its files, and not on the potential volume of records that may be located and the concurrent review effort to determine releasability. The fact that a FOIA request appears broad or burdensome (e.g. a large volume of potentially responsive information) does not necessarily entitle the DoD Component to deny the FOIA request on the grounds that it does not reasonably describe the record sought.

§ 286.11
Combatant Commands.

The Combatant Commands FOIA programs are placed under OSD jurisdiction instead of the administering Military Department or the Chairman of the Joint Chiefs of Staff. This is an exception to DoD Directive 5100.03 (available at
http://www.dtic.mil/whs/directives/corres/pdf/510003p.pdf
) in that it authorizes and requires the Combatant Commands to process FOIA requests in accordance with 32 CFR part 285 and this part.

(a) The appellate authority for the Combatant Commands is the DA&M in accordance with 32 CFR part 285. When requested, the Combatant Commands will forward directly to DFOIPO the administrative record associated with the appeal of an initial denial for records pursuant to the FOIA. The Combatant Commands will advise FOIA requesters that they have the right to appeal any adverse determinations to the DA&M.

(b) Documents originated by the Military Service components of the Combatant Commands, while performing joint exercises or operations under Combatant Command authority, are joint in nature and are under the cognizance of the Combatant Commands.

(1) Each Combatant Command will establish processing procedures that address coordinating FOIA requests for these joint documents between the Combatant Command and the Military Service component.

(2) These procedures should include the determination as to whether the IDA responsibility would be at the Combatant Command or decentralized to the Military Service component; however, appellate authority remains with the DA&M for these documents.

(3) As an exception, if the responsive documents are located within a Defense Criminal Investigative Organization (such as the Air Force Office of Special Investigations) or accident investigation file at the Military Service component, then the release, initial denial, and appellate authorities may remain with the Service or the appropriate Defense Criminal Investigative Organization. However, the Military Service Component will consult with the responsible Combatant Command during the review process before release.

(c) The FOIA Public Liaison for the Combatant Commands will be assigned from DFOIPO.

§ 286.12
Security clearances and access.
FOIA personnel require access to all records requested through their respective activities, regardless of the sensitivity or classification of the information due to the nature of their duties and responsibilities. The DoD Components must ensure that FOIA personnel have the appropriate clearances and accesses to perform their duties.

§ 286.13
Use of contractors in FOIA administration.

Pursuant to DoD Instruction 1100.22 (Available at
http://www.dtic.mil/whs/directives/corres/pdf/110022p.pdf
) and Office of Management and Budget (OMB) Circular No. A-76 (available at
http://www.whitehouse.gov/omb/circulars_a076_a76_incl_tech_correction
), certain functions known as inherently governmental activities must not be outsourced to a contractor. The DoD Components will not outsource inherently governmental FOIA functions. Primarily, activities that require the exercise of substantial discretion in applying government authority or in making decisions for the government are inherently governmental.

(a) Inherently governmental FOIA functions include:

(1) Formulating or approving FOIA policies and procedures.

(2) Making final determinations regarding whether to treat incoming correspondence as a FOIA or Privacy Act request.

(3) Making denial or release determinations of information requested pursuant to the FOIA.

(4) Deciding any issues regarding the scope or interpretation of a FOIA request.

(5) Determining the appropriateness of claimed exemptions.

(6) Approving the approach taken in negotiations or discussions with the FOIA requester.

(7) Deciding administrative appeals.

(8) Conducting final review of all outgoing correspondence, memorandums, and release packages.

(9) Making final determinations of requests for expedited processing, fee category, and fee waivers.

(10) Executing documents for filing in litigation pursuant to the FOIA if the documents assert an official position of the Department of Defense, any DoD Components, or any other federal agencies. Contractors may prepare and execute documents describing their own actions while processing FOIA requests.

(b) Examples of FOIA functions and duties that contractors may perform (this list is not all inclusive):

(1) Redact documents.

(2) Prepare correspondence for signature by a government official.

(3) Communicate with a FOIA requester concerning the status of the FOIA request.

(4) Make recommended redactions.

(5) Enter relevant information into the DoD Component's FOIA tracking system.

§ 286.14
Records management.
FOIA records, including all correspondence and responsive records, must be maintained and disposed of in accordance with the National Archives and Records Administration, General Records Schedule 14 and DoD Component records schedules.

§ 286.15
Relationship between the FOIA and the Privacy Act.
(a) Requesters seeking records about themselves contained only in a Privacy Act system of records will have their requests processed pursuant to the 5 U.S.C. 552a (also known as the “Privacy Act of 1974,” as amended, and referred to in this part as the “Privacy Act” implemented within the DoD by 32 CFR part 310).

(1) If the Privacy Act system of records is exempt from the provisions of section (d)(1) of the Privacy Act, and if the records, or any portion thereof, are exempt pursuant to FOIA, the requester will be so advised with the appropriate Privacy Act and FOIA exemption(s). Appeals must be processed pursuant to both the FOIA and the Privacy Act.

(2) If the Privacy Act system of records is not an exempt system, a FOIA exemption cannot be claimed on the information and all information will be released to the requester. However, privacy-related information about a third party within the requester's Privacy Act file may be withheld from the requester. Case law supports the DoD Components advising the requester that information was withheld that is “not about you.”

(b) Requesters seeking records about themselves not in a Privacy Act system of records and who cite or imply the Privacy Act will have their requests processed pursuant to the FOIA, since the Privacy Act does not apply to these records. Appeals must be processed pursuant to the FOIA.

(c) Requesters who seek both records about themselves in a Privacy Act system of records and records contained outside a Privacy Act system of records will have their requests processed pursuant to both the Privacy Act and the FOIA.

(d) Requesters will be advised in the final response letter which statutory authorities were used, inclusive of appeal rights.

§ 286.16
Non-responsive information.
(a) The DoD Components will interpret FOIA requests liberally when determining which records are responsive, and may release non-responsive information. Responsive multiple-subject documents may contain a significant amount of non-responsive information, the review of which may cause delays in responding to the FOIA requester. A determination that information is non-responsive should be made only when the DoD Component has a firm basis for concluding that the information is clearly beyond the scope of the requester's evident interest in the request. In cases where it appears highly likely that the non-responsive information may be exempt from release (e.g. the document is classified), these procedures apply.

(1) The DoD Component must contact the FOIA requester, explain that the responsive documents are multi-subject and contain a significant amount of non-responsive information, and seek the FOIA requester's concurrence to the deletion of the non-responsive information without a FOIA exemption. If the FOIA requester concurs, these redactions will be annotated on the provided document as non-responsive, and the concurrence will be reflected in the response letter.

(2) If the FOIA requester does not agree to deletion of non-responsive information without a FOIA exemption, the DoD Component will process all non-responsive and responsive information for release.

(b) The DoD Components will not apply the procedures in paragraph (a)(1) of this section to documents that have a relatively small percentage of non-responsive information. Additionally, non-responsive information will not be redacted on less than a page-by-page basis. That is, a non-responsive paragraph within an otherwise responsive page will not be redacted as non-responsive.

§ 286.17
Honoring form or format requests.
(a) The DoD Components will make reasonable efforts to:

(1) Provide the record in any form or format requested if the record is readily reproducible in that form or format in the Component's automated system.

(2) Provide records in a form that is reasonably usable.

(3) Maintain records in forms and formats that are reproducible.

(4) Use available office equipment to digitally reproduce hard copy records onto digital media.

(b) The readily reproducible criterion is not met if a DoD Component must outsource or expend significant resources to reproduce a record into the requested format. In responding to FOIA requests for records, the DoD Components will make reasonable efforts to search for records in electronic form or format if maintained in automated systems, except when such efforts would significantly interfere with the operation of the automated systems. Such determinations will be made on a case-by-case basis.

§ 286.18
Annual report.

The DoD Annual FOIA Report to the Attorney General is mandated by section (e)(1) of the FOIA and completed on a fiscal-year basis. Because of the magnitude of the requested statistics and the need for accuracy, the DoD Components will track the annual report data as FOIA requests are processed. This facilitates accurate compilation of the statistics in completing the report. Each September, DFOIPO provides instructions to the DoD Components concerning Component input for the Annual FOIA Report. Using the current edition of DD Form 2564, “Annual Freedom of Information Act Report” (available at
http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd2564.pdf
), the DoD Components will forward their report to DFOIPO no later than October 31. In turn, the DA&M submits a consolidated report to the Attorney General, and places a copy of this report on the Internet for public access.

§ 286.19
Dispute resolution and the Office of Government Information Services (OGIS).
DoD FOIA Public Liaisons will work to resolve disputes with FOIA requesters. When a FOIA requester seeks OGIS assistance in resolving any disputes, DoD FOIA Public Liaisons will work with OGIS to resolve the dispute. If during this informal dispute resolution process it is determined that the disputed issue is a candidate for mediation, this process will proceed as follows:

(a) OGIS will advise DFOIPO of the possibility of mediation.

(b) The applicable DoD Component will accept or reject the offer of mediation services in accordance with the component's Alternate Dispute Resolution (ADR) policy and issuances after consulting with DFOIPO.

(c) DFOIPO will contact the DoD ADR Liaison to identify a shared neutral for the mediation process.

Subpart C—FOIA Libraries

§ 286.20
Requirements.

(a)
General.
The FOIA requires records described in section 552(a)(2) of the FOIA and created on or after November 1, 1996, to be available electronically to the public. This is known as the FOIA library. In addition to these records, the DoD Components may elect to place other records in their libraries.

(b)
DoD Component FOIA libraries.
Each DoD Component will establish one or more FOIA libraries. The DoD Components that have only one FOIA Requester Service Center will meet this requirement by having a FOIA library on its FOIA Web site. The DoD Components with more than one FOIA Requester Service Center will meet this requirement by either having one FOIA library on its primary FOIA Web site or having a FOIA library on each FOIA Requester Service Center Web site. All DoD FOIA libraries and the documents posted in the DoD FOIA libraries will meet the requirements DoD Instruction 8550.01.

(1)
Final opinions.
Section (a)(2)(A) of the FOIA requires agencies to make final opinions available to the public. This requirement is met by the Defense Office of Hearings and Appeals Web site. DoD Components are not required to post or link to these documents in their FOIA libraries.

(2)
Statements of policy.
Section (a)(2)(B) of the FOIA requires agencies to make statements of policy and interpretations available to the public that have been adopted by the agencies and are not published in the
Federal Register
. This requirement is met by the publication of DoD issuances on the DoD Issuances Web site. DoD Components are not required to post or link to these documents in their FOIA libraries.

(3)
Administrative staff manuals or instructions.
Section (a)(2)(C) of the FOIA requires agencies to make administrative staff manuals and instructions that establish policy or interpretations that affect the public available to the public. Each DoD Component FOIA library will link to its respective Component's publicly available issuance publication Web page. For example, the Air Force FOIA Web site will link to the Air Force e-Publishing Web site, and the OSD/Joint Staff FOIA Requester Service Center will link to the DoD Issuances Web site.

(4)
Frequently requested documents.
Section (a)(2)(D) of the FOIA requires agencies to make available to the public records that are or are likely to become the subject of frequent (three or more) FOIA requests. Each DoD Component FOIA library will post documents meeting this requirement.

(5)
Index.
Section (a)(2)(E) of the FOIA requires an index of the documents posted in accordance with Section (a)(2)(D). This requirement is met by the DoD Components arranging these documents in its FOIA library by topical or descriptive words, rather than by case name or numbering system, so that the public can readily locate material. Case name and numbering arrangements may also be included for DoD Component convenience.

(6)
Proactive releases.
DoD Components will post other documents in this section of their FOIA library, such as proactive releases, documents released in accordance with the Mandatory Declassification Review program, and other documents released in accordance with the FOIA. This section may also contain links to other component offices proactively releasing documents.

(c)
Exemptions.
All information that qualifies for withholding pursuant to one or more of the FOIA exemptions described in subpart D of this part will be redacted from all records in FOIA libraries.

§ 286.21
Record availability.
The DoD Components should consider enhancing their FOIA libraries with search engines and document categories to provide the public easier access.

§ 286.22
Indexes.
Sections 552(g)(1) and (2) of the FOIA require agencies to make publicly available an index of all major information systems and a description of major information and record locator systems.

(a)
Major information systems.
The DFOIPO Web site satisfies this requirement for the DoD. The DoD Components are not required to post or link to this index in their FOIA libraries.

(b)
Record locator system.
The DFOIPO Web site satisfies this requirement for the DoD. The DoD Components are not required to post or link to this index in their FOIA libraries.

§ 286.23
Section (a)(1) records.
(a) Although (a)(1) records are not required to be made available in response to FOIA requests or in FOIA libraries, they must be made available when feasible. Examples of (a)(1) records are descriptions of an agency's central and field organization and, to the extent they affect the public, rules of procedures; descriptions of forms available; instructions as to the scope and contents of papers, reports, or examinations; and any amendments, revisions, or reports of the aforementioned records.

(b) In accordance with section (a)(1) of the FOIA, each DoD Component will disclose, through publication in the
Federal Register
, information describing its organization, functions, procedures, substantive rules, and statements of general policy.

Subpart D—Exemptions

§ 286.24
General provisions.

(a) This section is not a thorough or exhaustive explanation of the applicability of the FOIA exemptions. The DoD Components may consult the Department of Justice Guide to the Freedom of Information Act (Available at
http://www.usdoj.gov/oip/foia-guide.html
) for more detailed explanations.

(b) The DoD Components will make discretionary disclosures of exempt information, if appropriate. A discretionary release is not appropriate for information determined to be exempt pursuant to Exemptions 1, 3, 4, 6, 7(C), and 7(F) of the FOIA as set out in § 286.25(a), (c), (d), (f), and (g)(1)(iii) and (vi). As for the other exemptions, which primarily protect governmental interests, a discretionary release is appropriate unless the DoD Component can reasonably identify a foreseeable harm that would result from release of the information. In making this determination, the DoD Components will consider the sensitivity of the document's content and its age.

(c) As described in this section, nine types of exempt information in records may be withheld, in whole or in part, from public disclosure unless otherwise prescribed by law. In general, a discretionary release of a record to one FOIA requester prevents the withholding of the same record pursuant to a FOIA exemption if the record is later requested by someone else. However, a FOIA exemption may be invoked to withhold information that is similar or related to information that has been the subject of a discretionary release.

(d) In applying exemptions, the identity of the FOIA requester and the purpose for the FOIA request are irrelevant; however, an exemption may not be invoked when the particular interest to be protected is the FOIA requester's interest.

(e) If a FOIA requester requests information that is about that FOIA requester, Exemption 6 as set out in § 286.25(f) should not be used to deny the information. However, if another FOIA requester requests the same information, it should be denied under Exemption 6.

(f) If admitting the fact of the existence or nonexistence of a record responsive to a FOIA request would itself reveal information protected from release by one of the nine exemptions, the DoD Components must neither confirm nor deny the existence or nonexistence of the requested record.

(1) This is commonly called a “Glomar” response (for detailed guidance on using this type of response, see Volume VII, Number I of the U.S. Department of Justice, “FOIA Update,” (available at:
http://www.justice.gov/oip/foia_updates/Vol_VII_1/page5.htm
), and the appropriate exemption must be cited by the DoD Component in the response. This situation most commonly arises with Exemptions 1, 6, and 7 as set out in § 286.25(a), (f), and (g); however, it could arise with other exemptions.

(2) A “refusal to confirm or deny” response must be used consistently by the DoD Components, not only when a record exists, but also when a record does not exist. If not used consistently, the pattern of a “no record” response when a record does not exist, and a “refusal to confirm or deny” when a record does exist, risks disclosing exempt information.

§ 286.25
Applying the FOIA exemptions.
This section describes the nine types of exempt information in records and procedures for applying them.

(a)
Exemption 1.
Pursuant to section (b)(1) of the FOIA, records properly and currently classified in the interest of national defense or foreign policy, as specifically authorized pursuant to the criteria established by an existing Executive order establishing classification criteria and implemented by regulation, such as DoD Manual 5200.01 Volume 1 (available at
http://www.dtic.mil/whs/directives/corres/pdf/520001_vol1.pdf
), are exempt from disclosure. If the responsive information is not classified when the FOIA request is submitted, a classification review may be undertaken by the DoD Component to determine whether the information should be classified. The procedures in DoD Manual 5200.01 Volume 1 apply in this situation. If the information qualifies as Exemption 1 information under this paragraph (a), there is no discretion regarding its release. The FOIA requester will be advised which sections of the Executive order apply in determining that the information is classified. Exemption 1 also is invoked when:

(1) Individual items of unclassified information, when compiled, reveal additional associations or relationships that meet the standard for classification pursuant to an existing Executive Order and DoD Manual 5200.01 Volume 1, and are not otherwise revealed in the individual items of information. This is known as the “mosaic” or “compilation” approach.

(2) The fact of the existence or nonexistence of a record would itself reveal classified information.

(b)
Exemption 2.
Pursuant to section (b)(2) of the FOIA, records related solely to the internal personnel rules and practices of the Department of Defense or any of the DoD Components are exempt from disclosure. DoD Components should be aware that the U.S. Supreme Court effectively eliminated the formulation of this exemption that was previously referred to as Exemption 2 (High).

(c)
Exemption 3.
Pursuant to section (b)(3) of the FOIA, records concerning matters that another statute specifically exempts are exempt from disclosure. This exemption allows for the withholding of information because its release is prohibited by another statute only if one of two disjunctive requirements is met. The statute requires that the information be withheld from the public in such a manner as to leave no discretion on the issue, or the statute establishes particular criteria for withholding or refers to particular types of matters to be withheld. For any statute enacted after October 28, 2009, in order to qualify as an Exemption 3 statute under this paragraph (c) it must cite to section (b)(3) of the FOIA. DFOIPO maintains on its Web site a list of Exemption 3 statutes used within the Department of Defense.

(1)
Personally identifying information of DoD personnel.
Title 10 U.S.C. 130b authorizes the withholding of names, ranks, duty addresses, official titles, and pay information of DoD personnel (civilian and military) in overseas, sensitive, or routinely deployable units when this information is requested pursuant to the FOIA. The United States Special Operations Command and its components qualify as sensitive units pursuant to 10 U.S.C. 130b. Initial denial authorities (IDAs) within the Department of Defense should withhold this information pursuant to Exemption 3 under this paragraph (c) subject to the exceptions listed in paragraphs (c)(1)(i) and (ii) of this section. Information withheld pursuant to Exemption 3 and this statute also should be withheld pursuant to Exemption 6 as set out in paragraph (f) of this section, and, depending on the type of records where the information is located, Exemption 7(C) as set out in paragraph (g)(1)(iii) of this section.

(i)
Civilian and military officials whose duties make them known to the public.
The DoD Components may make a discretionary release of names and duty information of personnel in overseas, sensitive, or routinely deployable units who, by the nature of their position and duties, frequently interact with the public. Officials whose identities may be released include general and flag officers, public affairs officers (PAOs), other personnel designated as official command spokespersons, and other senior officials whose identities are known to the public through the performance of their duties.

(ii)
Release of information by DoD PAOs.
This provision does not change DoD instructions for PAOs and the rules used by public affairs offices to release information to the general public and the media. Public affairs offices should continue to release information in accordance with current DoD issuances, Privacy Act restrictions, and security classifications.

(2)
Sensitive information of foreign governments and international organizations.
Title 10 U.S.C. 130c authorizes the withholding of unclassified sensitive information of a foreign government or international organization. IDAs within the Department of Defense must withhold this information pursuant to Exemption 3 under this paragraph (c) as specified in this paragraph (c)(2) (for procedural instructions, see § 286.28(e)(2)) when they make all three of these determinations concerning the requested information:

(i) The information was provided to the Department of Defense by (or produced in cooperation with) a foreign government or international organization.

(ii) The information is withheld from public disclosure by the foreign government or international organization (the foreign government or international organization should make this representation in writing).

(iii) Any of these three conditions are met:

(A) The foreign government or international organization requests in writing that the information be withheld.

(B) The foreign government or international organization provides the information to the Department of Defense on the condition that it is not released to the public.

(C) DoD regulations specify the release of the requested information would have an adverse effect on the ability of the Department of Defense to obtain the same or similar information in the future.

(3)
CISI.
In accordance with 10 U.S.C. 130e, the Secretary of Defense and the DA&M may exempt CISI from release under the FOIA. IDAs must obtain this written determination in accordance with the procedures in § 286.28(k) before withholding CISI from a FOIA requester.

(4)
Military Flight Operations Quality Assurance (MFOQA) system data file.
In accordance with 10 U.S.C. 2254a, the Secretary of Defense and the DA&M may exempt MFOQA system data files from release under the FOIA. IDAs must obtain this written determination in accordance with the procedures in subpart E of this part before withholding MFOQA system data file information from a FOIA requester.

(d)
Exemption 4.
Pursuant to section (b)(4) of the FOIA, certain non-government financial information exempt from disclosure.

(1) This exemption protects:

(i) Trade secrets; or

(ii) Information that is:

(A) Commercial or financial.

(B) Obtained from a person or entity outside of the Federal Government.

(C) Privileged or confidential.

(2) Commercial or financial information that is voluntarily submitted to the U.S. government, absent any exercised authority prescribing criteria for submission, may be categorically protected provided it is not customarily disclosed to the public by the submitter. Examples of exercised authorities prescribing criteria for submission are statutes, Executive orders, regulations, invitations for bids, requests for proposals, and contracts. Submission of information pursuant to these authorities should be analyzed in accordance with paragraph (d)(3) of this section and § 286.28(f)(1).

(3) Commercial or financial information that is not voluntarily provided to the government is considered “confidential” for Exemption 4 under this paragraph (d) if its disclosure is likely to:

(i) Impair the government's ability to obtain necessary information in the future (known as the “impairment prong”);

(ii) Harm an identifiable private or governmental interest; or

(iii) Cause substantial harm to the competitive position of the person providing the information.

(4) Examples of information that may be protected by Exemption 4 under this paragraph (d) include:

(i) Commercial or financial information received in connection with loans, bids, contracts, or proposals.

(ii) Statistical data and commercial or financial information concerning contract performance, income, profits, losses, and expenditures.

(iii) Personal statements given during inspections, investigations, or audits.

(iv) Financial data provided by private employers in connection with locality wage surveys that are used to fix and adjust pay schedules applicable to the prevailing wage rate of employees within the Department of Defense.

(v) Scientific and manufacturing processes or developments concerning technical or scientific data or other information submitted with an application for a research grant, or with a report while research is in progress.

(vi) Technical or scientific data developed by a contractor or subcontractor exclusively at private expense, or developed in part with federal funds and in part at private expense. The contractor or subcontractor must retain legitimate proprietary interests in such data in accordance with 10 U.S.C. 2320-2321 and 48 CFR 227.71 and 227.72. Technical data developed exclusively with federal funds may be withheld pursuant to Exemption 3 as set out in paragraph (c) of this section if it meets the criteria of 10 U.S.C. 130 and 48 CFR 227.71 and 227.72.

(vii) Information copyrighted pursuant to 17 U.S.C. 106 if release of copyrighted material otherwise meets the standards of Exemption 4 under this paragraph (d).

(5) When the DoD Components receive FOIA requests for information that could be protected by this exemption, they will notify the submitter of the information (see § 286.28(f)(1) for notification procedures). Submitters having any objections to disclosure must submit a detailed written statement that specifies all grounds for withholding any portion of the information pursuant to Exemption 4 under this paragraph (d). This statement must explain why the information is a trade secret or commercial or financial information that is privileged or confidential (e.g., how release would cause substantial competitive harm).

(e)
Exemption 5.
Pursuant to section (b)(5) of the FOIA, inter- or intra-agency memorandums or letters containing information considered privileged in civil litigation are exempt from disclosure. Information that has been considered privileged in civil litigation is information that is usually privileged in the civil discovery context. Merely being an internal record is an insufficient basis for withholding pursuant to this exemption. Records that are not available routinely through the discovery process during litigation with the agency because they are privileged can be withheld pursuant to this exemption. The most common discovery privileges incorporated into Exemption 5 under this paragraph (e) are the deliberative process, the attorney work product, and the attorney-client privilege.

(1)
Threshold.
A document must meet the threshold requirement of being an inter- or intra-agency document before the proper privilege can be identified in any given case. Because in many instances the U.S. government must seek expert advice from external entities (or consultants), the courts developed an “outside consultant” test that helps in determining whether such an external entity qualifies as an “agency” for this exemption. If an entity meets the test, then documents that it originates may be protected by Exemption 5 under this paragraph (e). If the outside consultant is an interested party in the decision-making process, then this threshold is not met.

(2)
Privileges.
The privileges and types of information protected by Exemption 5 under this paragraph (e) include, but are not limited to:

(i)
Deliberative process privilege.
(A) To qualify for this privilege, the information must be both deliberative and pre-decisional (see § 286.3), and be part of the decision-making process. Information that is factual cannot be withheld from a FOIA requester pursuant to this privilege except when:

(
1
) The author of a document selects specific facts out of a larger group of facts and this very act is deliberative in nature. This information qualifies for withholding because its release would reveal the author's internal thought processes; or

(
2
) The factual information is so inextricably connected to the deliberative material that its disclosure would expose or cause harm to the agency's deliberations.

(B) A direction or order from a superior to a subordinate usually does not qualify as a deliberative process document if it constitutes policy guidance or a decision. However, correspondence from a superior to a subordinate may qualify if it discusses preliminary matters or requests information or advice relied upon in the decision-making process.

(C) An agency's final decision and post-decisional documents related to the decision cannot be withheld pursuant to the deliberative process privilege.

(D) Examples of deliberative process documents include:

(
1
) Staff papers, including after-action reports, inspection reports, lessons learned, and situation reports containing staff evaluations, advice, opinions, or suggestions.

(
2
) Advice, suggestions, or evaluations prepared on behalf of the Department of Defense by individual consultants or by internal boards, committees, councils, groups, panels, conferences, commissions, task forces, or other

similar groups that are formed for obtaining advice and recommendations.

(
3
) Drafts of final records.

(
4
) Information of a speculative, tentative, or evaluative nature, or such matters as proposed plans to procure, lease, or otherwise acquire and dispose of materials, real estate, facilities, or functions, when such information would provide undue or unfair competitive advantage to private personal interests or would impede legitimate U.S. government functions.

(
5
) Agency materials underlying the President's budget decisions as described in OMB Circular No. A-11 (available at
http://www.whitehouse.gov/omb/circulars_a11_current_year_a11_toc/
). This includes planning, programming, and budgetary information that is involved in the defense planning and resource allocation process and out-year discretionary data.

(ii)
Attorney-client privilege.
This privilege protects confidential communications between an attorney and a client (or multiple clients that share a common interest) relating to legal matters for which the client has sought professional advice. The information that the client supplies to the attorney, the advice that the attorney gives to the client in return, and communications between attorneys that reflect client-supplied information are protected by this privilege. Unlike the deliberative process privilege, with the attorney-client privilege all the information should be withheld, including the facts, unless the client waives the privilege.

(iii)
Attorney work product privilege.
This privilege protects documents prepared by an attorney or at an attorney's direction in reasonable anticipation of litigation. Unlike the deliberative process privilege, with the attorney work product privilege all the information can be withheld, including the facts. This privilege still can be used after the litigation is complete.

(iv)
Government trade secret privilege.
This privilege protects trade secrets or other confidential research, development, or commercial information owned by the government, premature release of which is likely to affect the government negotiating position or other commercial interest.

(v)
Safety investigation privilege.
This privilege protects privileged safety information as defined in DoD Instruction 6055.07 (available at
http://www.dtic.mil/whs/directives/corres/pdf/605507p.pdf
).

(vi)
Presidential communications privilege.
This privilege protects communications among the President and Presidential advisors created to assist the President in the exercise of non-delegable constitutional duties.

(f)
Exemption 6.
Pursuant to section (b)(6) of the FOIA, information in personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personnel privacy, is exempt from disclosure. If the information qualifies as Exemption 6 under this paragraph (f) information, there is no discretion in its release.

(1) When considering applying this exemption, an agency must balance the public interest in disclosure and the individual's privacy interest. When there is no public interest in the requested information, the information can be withheld even if there is only a negligible privacy interest. The public interest to be considered when applying this exemption is whether the information sheds light on the operations or activities of the government. The FOIA requester has the burden to show that there is a public interest in disclosure.

(2) A privacy interest may exist in personal information even though the information has been disclosed at some place and time. This is known as the concept of practical obscurity. For example, information that was once publicly known (e.g. a court-martial trial 40 years ago) may no longer be in the public's eye and has faded from memory. In this case, the privacy interest in this type of situation may have increased over time, the public interest may have decreased over time, and therefore an agency should now withhold the once-public information, since the balance of interests has now shifted in favor of privacy.

(3) Examples of other files containing personal information similar to that in personnel and medical files include:

(i) Files compiled to evaluate or adjudicate the suitability of candidates for civilian employment or membership in the Military Services, and the eligibility of individuals (civilian, military, or contractor employees) for security clearances or for access to particularly sensitive classified information.

(ii) Files containing reports, records, and other material pertaining to personnel matters where administrative action, including disciplinary action, may be taken.

(4) Because of the national emergency declared by the President on September 14, 2001, the DoD Components are authorized to withhold lists of personally identifying information of DoD personnel, including active duty military personnel, civilian employees, contractors, members of the Reserve Components, and military dependents under Exemption 6 under this paragraph (f). Additionally, personally identifying information of DoD military and civilian personnel who are assigned to overseas, sensitive, or routinely deployable units is exempt from release pursuant to Exemption 3 as set out in paragraph (c) of this section, with 10 U.S.C. 130b as the withholding statute. Names and duty addresses (postal and email) published in telephone directories, organizational charts, rosters, and similar materials for personnel are considered “lists of personally identifying information,” and therefore qualify for withholding pursuant to Exemption 6 (and Exemption 3 as set out in paragraph (c) of this section if applicable).

(5) Home addresses, telephone numbers, and private email addresses are usually protected by this exemption. This includes home addresses and military quarters addresses not associated with the occupants' names.

(6) This exemption must not be used in an attempt to protect the privacy of a deceased person. It may be used to protect the privacy of the deceased person's surviving family members if disclosure would rekindle grief, anguish, pain, embarrassment, or result in a disruption of their peace of mind. In such situations, the DoD Components must balance the surviving family members' privacy interests and the public's interest to determine its releasability.

(7) This exemption also applies when the fact of the existence or nonexistence of a responsive record would itself reveal information containing a privacy interest, and the public interest in disclosure does not outweigh the privacy interest. In this situation, the DoD Components must neither confirm nor deny the existence or nonexistence of the record being requested (Glomar response) and Exemption 6 under this paragraph (f) must be cited.

(g)
Exemption 7.
Pursuant to section (b)(7) of the FOIA, records or information compiled for law enforcement purposes are exempt from disclosure upon the identification of one of the six conditions delineated in paragraphs (g)(1)(i) through (vi) of this section. Law enforcement purposes include civil, criminal, military, and regulatory, including the implementation of Executive orders or regulations issued pursuant to law. This exemption may be invoked to prevent disclosure of documents not originally created for, but later gathered for, law enforcement purposes.

(1)
Conditions where Exemption 7 applies
—(i)
Exemption 7(A).
This exemption applies to records compiled for law enforcement purposes when disclosure could reasonably be expected to interfere with enforcement proceedings (section (b)(7)(A) of the FOIA). The DoD Components can use Exemption 7(A) under this paragraph (g)(1)(i) during the course of law enforcement proceedings, when there is a prospective law enforcement proceeding and during any subsequent or pending proceedings resulting from the original proceeding.

(ii)
Exemption 7(B).
This exemption applies to records compiled for law enforcement purposes when disclosure would deprive a person of the right to a fair trial or to an impartial adjudication (section (b)(7)(B) of the FOIA).

(iii)
Exemption 7(C).
This exemption applies to records compiled for law enforcement purposes when disclosure could reasonably be expected to constitute an unwarranted invasion of the personal privacy of a living person, including surviving family members of an individual identified in such a record (section (b)(7)(C) of the FOIA).

(iv)
Exemption 7(D).
This exemption applies to records compiled for law enforcement purposes when disclosure could reasonably be expected to disclose the identity of a confidential source, including a source within the Department of Defense; a State, local, or foreign agency or authority; or any private institution that furnishes the information on a confidential basis, and could disclose information furnished from a confidential source and obtained by a criminal law enforcement authority in a criminal investigation or by an agency conducting a lawful national security intelligence investigation (section (b)(7)(D) of the FOIA).

(v)
Exemption 7(E).
This exemption applies to records compiled for law enforcement purposes when disclosure 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 (section (b)(7)(E) of the FOIA).

(vi)
Exemption 7(F).
This exemption applies to records compiled for law enforcement purposes when disclosure could reasonably be expected to endanger the life or physical safety of any individual (section (b)(7)(F) of the FOIA).

(2)
Examples of Exemption 7 applications.
(i) Statements of witnesses and other material developed during the course of an investigation and all materials prepared in connection with related government litigation or adjudicative proceedings may be exempt from disclosure pursuant to Exemptions 7(A), 7(C), and 7(D) as set out in paragraphs (g)(1)(i), (iii), and (iv) of this section.

(ii) The identity of firms or individuals being investigated for alleged irregularities involving contracting with the Department of Defense when no indictment has been obtained nor any civil action filed against them by the United States may be exempt from disclosure pursuant to Exemptions 7(A) and 7(C) as set out in paragraphs (g)(1)(i) and (iii) of this section.

(iii) Information obtained in confidence, expressed or implied, during a criminal investigation by a criminal law enforcement agency or a lawful national security intelligence investigation may be exempt from disclosure pursuant to Exemptions 7(A), 7(C), and 7(D) as set out in paragraphs (g)(1)(i), (iii), and (iv) of this section. National security intelligence investigations include background security investigations and those investigations conducted to obtain affirmative or counterintelligence information.

(iv) Emergency action plans, guidelines for response to terrorist attacks, analyses of security procedures, and other sensitive information that could prove deadly if obtained by those seeking to do harm to the public on a large scale may be exempt from disclosure pursuant to Exemptions 7(E) and 7(F) as set out in paragraphs (g)(1)(v) and (vi) of this section.

(h)
Exemption 8.
Pursuant to section (b)(8) of the FOIA, records in or related to examination, operation, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions are exempt from disclosure.

(i)
Exemption 9.
Pursuant to section (b)(9) of the FOIA, records containing geological and geophysical information and data (including maps) concerning wells are exempt from disclosure.

§ 286.26
Exclusions.
Section (c) of the FOIA contains three special protection provisions referred to as record exclusions. Of these exclusions, only two are applicable to the Department of Defense. These exclusions expressly authorize DoD law enforcement components to treat especially sensitive records under certain specified circumstances as not subject to the requirements of the FOIA. The DoD Component considering invoking one of these exclusions must first consult with legal counsel and with DFOIPO. In turn, DFOIPO will consult with the Office of Information Policy, Department of Justice. Because of the possibility of the existence of excluded records, DoD law enforcement components will respond to all FOIA requests when no records are located or when located records fall within an exclusion by stating that no records responsive to the FOIA were found. The instances where a FOIA request involves excluded records are:

(a) The records or information are described in section (b)(7)(A) of the FOIA and the following two conditions are met:

(1) The investigation or proceeding involves a possible violation of criminal law, and

(2) There is reason to believe that the subject of the investigation or proceeding is unaware of the pending investigation or proceeding and the disclosure of the existence of the records could reasonably be expected to interfere with law enforcement proceedings.

(b) Informant records maintained by a DoD law enforcement component under an informant's name or personal identifier are requested by a third party using the informant's name or personal identifier unless the informant's status as an informant has been officially confirmed.

Subpart E—FOIA Request Processing

§ 286.27
General provisions.

(a)
Requests from private parties.
(1) The provisions of the FOIA are reserved for members of the public and are not to be used by government agencies seeking official information.

(2) When personally identifying information in a record is requested by the subject of the record or the subject's representative, and the information is contained within a Privacy Act system of records, it is processed pursuant to the Privacy Act. If a Privacy Act exemption applies to the system of records, then the request is processed pursuant to the FOIA. The DoD Components must comply with 32 CFR part 310 to confirm the identity of the requester.

(b)
Requests from local or State government officials, Congress, and foreign governments.
(1) Local or State government officials, foreign officials requesting on behalf of their government, foreign individuals, or foreign organizations requesting DoD Component records pursuant to the FOIA are considered the same as any other FOIA requester.

(2) The FOIA does not apply to the records of a DoD Component that is an element of the Intelligence Community as defined in 50 U.S.C. 401a(4) if the FOIA request is from a non-U.S. government entity or representative.

(3) Requests from members of Congress who are not seeking records on behalf of a congressional committee or subcommittee, or on behalf of the House of Representatives or the Senate sitting as a whole, should not be processed through FOIA channels; however, any release of information will be consistent with a release to any individual pursuant to the FOIA and its withholding exemptions. In these cases, the member will not be provided with FOIA appeal rights.

(4) Requests submitted by members of Congress on behalf of a congressional committee or subcommittee or on behalf of the House of Representatives or the Senate sitting as a whole that are received by the DoD Component's FOIA Requester Service Center are referred to the appropriate office that handles legislative inquiries for processing pursuant to DoD Instruction 5400.04 (available at
http://www.dtic.mil/whs/directives/corres/pdf/540004p.pdf
) or supplementing DoD Component directives. Such requests are not processed pursuant to the FOIA.

(5) If a member of Congress chooses to request DoD records pursuant to the FOIA, then the provisions of this part apply.

(6) Constituent requests for DoD records that are forwarded by members of Congress are processed as FOIA or Privacy Act requests, as applicable. The member forwarding the request will be advised of these circumstances.

(7) The Office of the Assistant Secretary of Defense for Legislative Affairs will be notified of every instance when a member of Congress objects that the DoD has not responded to a congressional request for information in the form it was originally requested, whether that request is made by an individual member or a congressional committee.

(8) Requests from officials of foreign governments that do not invoke the FOIA are referred to the appropriate office authorized to disclose official DoD information to foreign governments, and the requester is so notified.

(c)
Privileged release outside of the FOIA to U.S. Government officials.
(1) Records exempt from release to the public pursuant to the FOIA may be disclosed in accordance with DoD Component regulations to another federal agency in response to an official request from the other federal agency in accordance with applicable law and regulations, as determined by the DoD Component head or designee. Such disclosures are not official releases to the public under the FOIA.

(2) The DoD Components will inform officials receiving records in accordance with the provisions of this paragraph that those records are exempt from public release pursuant to the FOIA. The DoD Components also will advise officials of any special handling instructions. Classified information is subject to the provisions of Volumes 2 and 3 of DoD Manual 5200.01. Information contained in a Privacy Act system of records is subject to 32 CFR part 310.

§ 286.28
Processing procedures.

(a)
Receipt and control.
When it receives a FOIA request, a FOIA Requester Service Center must open a file in a formal control system designed for accountability and compliance with the FOIA. The control system should include the data elements needed to compile the statistics required in the Annual FOIA Report and other reports required by another authority. Each request is assigned a unique tracking number which is included in all correspondence with the requester.

(b)
Prompt action on FOIA requests.
(1) When unusual or exceptional circumstances prevent a FOIA Requester Service Centers from making a final response determination within the statutory time period, it will advise the FOIA requester in writing and provide the FOIA requester an opportunity to narrow the scope of the FOIA request or arrange for an alternative timeframe. FOIA Requesters Service Centers will, as a matter of good practice, be available to assist requesters in the formulating of requests.

(i) Unusual circumstances are:

(A) The responsive documents are located at a facility geographically separated from the FOIA Requester Service Center processing the FOIA request.

(B) The responsive documents are voluminous.

(C) One or more other agencies or DoD Components have a substantial interest in either the determination or the subject matter of the FOIA request, requiring the FOIA Requester Service Center processing the FOIA request to consult with the other agencies or DoD Components.

(ii) Exceptional circumstances are not affirmatively defined in the FOIA; however, a predictable agency workload of requests may be considered an exceptional circumstance if the DoD Component can demonstrate reasonable progress in reducing its backlog of pending requests.

(2) DoD Components receiving a misdirected FOIA request for records originating with another DoD Component will refer the FOIA request to the correct DoD Component and inform the receiving DoD Component of the date the FOIA request was originally received. Additionally, it will advise the FOIA requester of this transfer. This routing requirement only applies to those FOIA requests directed to a DoD Component that seek documents for which the DoD is responsible. If responsibility for the requested records rests with a non-DoD agency (e.g., Department of State), then the DoD Component need only advise the FOIA requester to submit the FOIA request to the proper agency. Misdirected FOIA requests will not be transferred to a law enforcement or Intelligence Community agency or DoD Component. Instead, the FOIA Requester Service Center receiving the request will contact the for guidance if there is reason to believe that the law enforcement or Intelligence Community agency or DoD Component would have responsive records.

(3) DoD Components will provide interim responses when they are unable to make a final determination within 20 working days and are encouraged to further communicate with the FOIA requester before the final response, if appropriate. These communications may include acknowledging receipt of the FOIA request and negotiating with the FOIA requester concerning the scope of the FOIA request, the response timeframe, and fee agreement. However, such communications do not constitute a final response determination. The initial interim response will include as a minimum:

(i) The date the 20-day statutory time period started for the FOIA request.

(ii) The tracking number for the FOIA request.

(iii) Contact information on how the FOIA requester can obtain information about the processing of the FOIA request.

(4) The statutory time period to make a release determination on a FOIA request usually begins on the date when the FOIA Requester Service Center responsible for the requested records receives the FOIA request. However, if the FOIA request was originally misdirected to another FOIA Requester Service Center within the same Component, the statutory time period begins on the day the appropriate DoD Component FOIA Requester Service Center receives the FOIA request, or 10 working days after it was received by the FOIA Requester Service Center

originally receiving the FOIA request, whichever date is earlier. When a FOIA request is sent directly to a DoD Component office not designated to receive FOIA requests, the statutory time period does not begin until it is received by a FOIA Requester Service Center.

(5) The 20-working-day statutory period for responding to a FOIA request begins only when a perfected FOIA request (see § 286.3) is received. After this time, a DoD Component FOIA Requester Service Center may toll the statutory time period for only two reasons. In both situations, the FOIA requester's response to the agency's request ends the tolling period.

(i) The time period may be tolled one time when the FOIA Requester Service Center goes back to the FOIA requester and reasonably asks for additional information (not connected to the assessment of fees).

(ii) The time period may be tolled if it is necessary for the FOIA Requester Service Center to clarify issues regarding fee assessment with the FOIA requester. There is no limit given for the number of times an agency may go back to a FOIA requester to clarify fee assessment issues, which sometimes may need to be done in stages as the records are located and processed.

(c)
Estimated completion date.
When a FOIA Requester Service Center receives an inquiry regarding the status of a request, it will provide the requester an estimated date when the FOIA request is expected to be completed.

(d)
Multi-track processing.
(1) FOIA Requester Service Centers will establish a minimum of three processing tracks, all based on a first-in and first-out concept and with FOIA requests ranked by date of receipt. One track is for simple FOIA requests, one for complex FOIA requests, and one for expedited FOIA requests. Additional tracks may be established by FOIA Requester Service Centers. Each FOIA Requester Service Center determines which processing track a FOIA request is placed. FOIA requesters whose FOIA requests do not qualify for the simple processing track should be given an opportunity to limit the scope of the FOIA request in writing in order to qualify for it.

(2) FOIA Requester Service Centers will place received referrals and consultations in processing tracks based on the date that the FOIA request was received by the agency that received the initial FOIA request. Separate processing queues dedicated only to consultations may be established FOIA Requester Service Centers.

(e)
Expedited processing.
Section (a)(6)(E) of the FOIA establishes two circumstances that merit expedited processing of FOIA requests: Compelling need and other cases determined by the agency. The same criteria apply to FOIA requests for expedited processing of administrative appeals. The DoD Components must make expedited processing determinations within 10 calendar days after receipt of the FOIA request. Once the DoD Component decides to grant expedited processing, the FOIA request is processed as soon as practicable. Actions by the DoD Components to initially deny or affirm the initial denial on appeal of a FOIA request for expedited processing, and failure to respond in a timely manner, are subject to judicial review.

(1)
Compelling need.
Expedited processing is granted to a FOIA requester upon a specific request for such and demonstrations of a compelling need (see § 286.3) for the information.

(i) It is the responsibility of the FOIA requester to demonstrate that the requested information is urgently needed.

(ii) The requester must include with the request a demonstration of a compelling need that the FOIA requester must certify as true and correct to the best of the FOIA requester's knowledge and belief.

(2)
Imminent loss of due process rights.
Expedited processing is granted to a FOIA requester if loss of substantial due process rights is imminent. A demonstration of imminent loss of substantial due process rights by the FOIA requester includes a description of the due process rights that would be lost and a statement certified to be true and correct to the best of the FOIA requester's knowledge. This statement must be with the FOIA request for it to be considered and responded to within the 10 calendar days required for decisions on expedited access. If the DoD Component decides to expedite the FOIA request for this reason, it may be processed in the expedited track behind those requests qualifying for compelling need.

(3)
Humanitarian need.
Expedited processing is granted when the failure to obtain the requested information on an expedited basis could reasonably be expected to harm substantial humanitarian interests.

(f)
Responsive documents originated by a non-government source
—(1)
Commercial or financial information.
The provisions of E.O. 12600 apply when a FOIA request is received for a record that arguably contains information exempt from release pursuant to Exemption 4 of the FOIA as set out in § 286.25(d). A government contract is an example of this type of record.

(i) The submitter of the confidential commercial information must be notified promptly of a FOIA request for this information and afforded reasonable time to present any objections concerning release. If the submitter does not respond by the specified time, he or she will be considered to have no objection to the disclosure of the information. The submitter notice letter should include, as an attachment, a copy of the requested information. If notification of a voluminous number of submitters is required, such notification may be done by posting or publishing the notice in a place that would reasonably fulfill the notification requirement.

(ii) If the submitter objects to disclosure, he or she must submit a detailed written statement that specifies all grounds for withholding any portion of the information pursuant to Exemption 4 of the FOIA as set out in § 286.25(d). This statement must show why the information is a trade secret or commercial or financial information that is privileged or confidential (i.e., release would cause substantial competitive harm). Submitter objections are evaluated by the DoD Component and the final decision to disclose information claimed to be exempt pursuant to Exemption 4 will be made by an appropriate official.

(iii) When a substantial issue has been raised by the submitter, the DoD Component may seek additional information and afford the submitter a reasonable opportunity to present arguments on the legal and substantive issues involved prior to making an agency determination.

(iv) If a DoD Component decides to disclose commercial business information over the objection of a submitter, the Component must provide the submitter written notice, which includes:

(A) A statement of the reasons why each of the submitter's disclosure objections were not sustained;

(B) A copy of the information to be disclosed;

(C) A specified disclosure date, which must be a reasonable time after the notice.

(v) The FOIA requester is notified when:

(A) The DoD Component notifies the submitter of the FOIA request and asks for comments.

(B) The DoD Component advises the submitter that the requested information will be released over the submitter's objections.

(vi) The submitter is notified immediately if the FOIA requester brings suit seeking to compel disclosure of the submitter's information.

(vii) If the submitted information is a proposal provided in response to a solicitation for a competitive proposal, and the proposal is in DoD possession and control and meets the requirements of 10 U.S.C. 2305(g), the proposal will not be disclosed, and no submitter notification or analysis are required. The proposal must be withheld from public disclosure pursuant to 10 U.S.C. 2305(g) and Exemption 3 of the FOIA as set out in § 286.25(c). This statute does not apply to bids, unsolicited proposals, or any proposal that is set forth or incorporated by reference in a contract between the DoD Component and the submitter of the proposal. In these situations, paragraphs (f)(1)(i) through (vi) of this section are followed except for sealed bids that are opened and read to the public.

(viii) If the record or information was submitted on a strictly voluntary basis, absent any exercised authority that prescribes criteria for submission, and the record or information would customarily not be released to the public, the submitter need not be notified. The DoD Component withholds this information pursuant to Exemption 4 of the FOIA as set out in § 286.25(d).

(ix) In anticipation of future FOIA requests, the DoD Components may establish procedures whereby submitters are asked to provide their written comments on the releasability of the submitted information at the time the information is submitted. However, this procedure does not alleviate the DoD Components of the responsibility of evaluating the submitter's response before the information is released or denied pursuant to the FOIA.

(2)
Foreign government or international organization information.
The coordination provisions of this paragraph (f)(2) apply to the release of responsive information received from foreign governments or international organizations, such as the North Atlantic Treaty Organization, United Nations Commands, the North American Aerospace Defense Command (NORAD), the Inter-American Defense Board, or the International Committee of the Red Cross.

(i) DoD Components should coordinate directly with their foreign government counterparts when processing foreign government information responsive to a FOIA request. Coordination also may be made through the Department of State or the specific foreign embassy.

(ii) The Office of Freedom of Information (OFOI), which is also the OSD/Joint Staff FOIA Requester Service Center, has a coordination channel with the United Kingdom Ministry of Defence (UK MOD). (See the Appendix A to this part for the OSD/Joint Staff FOIA Requester Service Center address.) When a DoD Component locates UK MOD-originated information responsive to a FOIA request and it is unable to coordinate with a UK MOD counterpart it may forward the information to OFOI for consultation, which will coordinate with the UK MOD for release. The UK MOD release recommendation will be forwarded by OFOI back to the DoD Component for direct response to the FOIA requester.

(iii) When the DoD Components locate NORAD documents in their files responsive to a FOIA request, they will refer the documents to the United States Northern Command FOIA Requester Service Center, which will consult with NORAD.

(iv) Coordination with most international organizations may be made directly with those organizations.

(v) When a foreign government or international organization asks the Department of Defense to withhold classified information originated by that foreign government or international organization, it is withheld pursuant to Exemption 1 of the FOIA as set out in § 286.25(a).

(vi) If the DoD Component is asked to withhold sensitive unclassified information originated by a multinational organization or foreign government, then the DoD Component withholds it pursuant to Exemption 3 of the FOIA as set out in § 286.25(c) and references the relevant statute as 10 U.S.C. 130c. To qualify for withholding, the information must meet these limitations.

(A) If the information came into possession or control of the Department of Defense prior to October 30, 2000, and more than 25 years prior to receipt of the FOIA request, the DoD Component notifies the foreign government or international organization of the request for disclosure. The information then qualifies for withholding only if the foreign government or international organization requests in writing that the information not be disclosed for a specific period of time. This date can be extended with a later request by the foreign government or international organization.

(B) If the information came into possession or control of the Department of Defense on or after October 30, 2000, the information cannot be withheld after the release date specified by the foreign government or international organization. When one or more foreign governments or international organizations provided the information, the latest date specified by any of them will be used. If no release date was specified, and the information came into the possession of the DoD Component more than 10 years prior to receipt of the FOIA request, the procedures set forth in paragraph (f)(2)(vi)(A) of this section apply.

(g)
File of initial denials.
Copies of all initial denials are maintained by each DoD Component in a form suitable for rapid retrieval, periodic statistical compilation, and management evaluation. Records denied for any of the reasons contained in § 286.25 must be maintained for a period of 6 years to meet the statute of limitations requirement.

(h)
Processing the receipt of FOIA fees.
The Treasurer of the United States has established an account for FOIA receipts, Receipt Account 3210. When depositing the receipts, the account number must be preceded by the appropriate disbursing office 2-digit prefix. This account will be used for depositing all FOIA receipts except for those of working capital and non-appropriated funded activities. Those activities must establish their own procedures for depositing FOIA receipts to the applicable fund. All checks or money orders remitting FOIA fees should be made payable to the U.S. Treasurer. For more information on technical data fees, see § 286.34.

(i)
Creating a record.
A record must exist and be in DoD possession and control at the time of the search to be subject to this part and the FOIA. The DoD Components are not obligated to create, compile, or answer questions to satisfy a FOIA request. However, the DoD Components may compile a new record when so doing would result in a more useful response to the FOIA requester or would be less burdensome to the DoD Component than providing existing records. This could be the case when a FOIA requester wants, for example, a list of all travel locations for a single senior official. Instead of processing the large number travel documents, the DoD Component may wish to compile a list of travel locations extracted from the documents. Any such compilation should be coordinated with and approved by the FOIA requester. The cost of creating or compiling such a record may not be charged to the FOIA requester unless the fee for creating the record is equal to or less than the fee that would be charged for providing the existing record. Fee assessments must

be in accordance with subpart F of this part.

(j)
Electronic records and searches
—(1)
Significant interference.
Section (a)(3)(C) of the FOIA allows DoD Components to not conduct a search for responsive documents if the search would cause significant interference with the operation of the DoD Component's automated information system.

(2)
Business as usual approach.
A “business as usual” approach exists when the DoD Component has the capability to process a FOIA request for electronic records without a significant expenditure of monetary or personnel resources. DoD Components are not required to conduct a search that does not meet this business as usual criterion.

(i) Creating computer programs or purchasing additional hardware to extract email that has been archived for emergency retrieval usually are not considered business as usual if extensive monetary or personnel resources are needed to complete the project.

(ii) Creating a computer program that produces specific requested fields or records contained within a well-defined database structure usually is considered business as usual. The time to create this program is considered as programmer or operator search time for fee assessment purposes and the FOIA requester may be assessed fees in accordance with subpart F of this part. However, creating a computer program to merge files with disparate data formats and extract specific elements from the resultant file is not considered business as usual, but a special service.

(3)
Data links.
The DoD Components are not required to expend DoD funds to establish data links that provide real-time or near-real-time data to a FOIA requester.

(k)
CISI and MFOQA data files.
IDAs may deny CISI and MFOQA system data files from release under Exemption 3 of the FOIA as set out in § 286.25(c) after the DA&M has made a written determination that the information is exempt.

(1) When DoD Components have reason to believe that information responsive to a FOIA request is CISI or MFOQA system data file information, they will submit a package to the DA&M, through DFOIPO, recommending exemption of the requested information. The package will contain, at a minimum:

(i) A copy of the initial FOIA request.

(ii) A copy of the documents in electronic format, with only the CISI or MFOQA system data file information marked. Do not indicate information that will be denied under any other exemption.

(iii) Details on how the information recommended for exemption meets the threshold of qualifying as CISI or as MFOQA system data file.

(iv) A thorough explanation of the harm that could reasonably be expected to result if the information is released. This explanation must be as specific as possible to allow the DA&M to make a fully informed determination; however, it should contain only publicly releasable information since the DA&M's determination, accompanied by a statement of the basis for determination, will be made available on the DFOIPO Web site. An explanation could be an attachment from a subject matter expert;

(v) Any documentation of the public interest in the release of the information. This could be provided to the DoD Component by the FOIA requester or other interested parties supporting the FOIA request.

(2) Upon receipt of the package, DFOIPO will:

(i) Review it to determine whether the DoD Component's recommendations meet the requirements of the FOIA and the applicable Exemption 3 of the FOIA as set out in § 286.25(c) statute(s).

(ii) Contact the FOIA requester advising him or her that the Component is asking the DA&M to exempt information responsive to his or her FOIA request. The FOIA requester will be provided with an opportunity to provide a statement to the DA&M detailing the public interest in the release of the information. The FOIA requester also will be advised that this statement will be made available to the public (without personally identifying information such as a home mailing address) as part of the requirement to make publicly available the statement of the basis for the determination.

(iii) Prepare all documentation for review by selected OSD Components and the Office of the General Counsel of the Department of Defense (OGC, DoD). The package will be returned to the Component for further processing and resubmission should any deficiencies be identified.

(iv) Upon complete review, forward the package to the DA&M for determination.

(3) After the DA&M determination is made, DFOIPO will provide it to the DoD Component and post it, along with a statement of the basis for determination, on its Web site. The DoD Component will then deny the information determined to be exempt by the DA&M by providing a copy of the determination to the FOIA requester, advising the FOIA requester of the DoD Component's IDA (the DA&M should not be indicated as the IDA), and advising the FOIA requester of the right to appeal to the DoD Component's appellate authority.

§ 286.29
Initial determinations.

(a)
Denials of information.
(1) The determination whether to withhold information responsive to a FOIA request must be made by an IDA. In designating IDAs, the DoD Component will balance the goals of centralization of authority to promote uniform decisions, and of decentralization to facilitate responding to each FOIA request within the time limitations of the FOIA. The IDA will review all withheld information to determine whether it meets the criteria for withholding pursuant to one or more of the FOIA exemptions. This determination may be made upon the recommendation of a review official.

(2) IDAs and review officials will not use the existence of classification markings or distribution limiting statements, such as “For Official Use Only” markings, as justification to withhold information. Information so marked must be reviewed after the receipt of a FOIA request to determine if a FOIA exemption allows the withholding of the information.

(3) To deny information in a requested record that is in the possession and control of the DoD Component, the IDA must determine that one or more of the FOIA exemptions justify withholding all or part of the record.

(4) The IDA should consult with PAOs to become familiar with subject matter that is considered to be newsworthy, and advise PAOs of FOIA requests from news media representatives. The IDA also should inform PAOs in advance when they intend to withhold or partially withhold a record if it appears the withholding action may be a media issue.

(b)
Reasons for denying a FOIA request other than exemptions.
The following are reasons, other than using one or more exemptions, for denying a FOIA request. The DoD Components will track each reason in its control system database for ease of retrieval and reporting in the Annual FOIA Report.

(1)
Partial or total denial.
The record is denied in whole or in part in accordance with procedures set forth in the FOIA. A Glomar response (see § 286.12(e)) is a total denial.

(2)
No records.
A reasonable search of files failed to identify responsive records or where no search is

undertaken because the DoD Component determines that no records responsive to the request would be located.

(3)
Referrals.
All responsive records have been transferred to another DoD Component or federal agency.

(4)
Request withdrawn.
The FOIA request is withdrawn by the FOIA requester.

(5)
Fee-related reason.
The FOIA requester is unwilling to pay fees associated with a FOIA request; the FOIA requester is past due in the payment of fees from a previous FOIA request; or the FOIA requester disagrees with the fee estimate.

(6)
Records not reasonably described.
A record has not been described with sufficient particularity to enable the DoD Component to locate it by conducting a reasonable search.

(7)
Not a proper FOIA request for some other reason.
The FOIA requester has failed unreasonably to comply with procedural requirements, other than fee-related requirements, imposed by this part or by DoD Component supplementing regulations. This would include not having a return mailing address.

(8)
Not an agency record.
The information requested is not a record within the meaning of the FOIA and this part.

(9)
Duplicate request.
The FOIA request is a duplicate request (e.g., a FOIA requester asks for the same information more than once). This includes identical requests received from the same requester for the same information through different means (e.g., email, facsimile, mail, courier) at the same or different times.

(10)
Other.
Any other reason why requested records are not provided other than those outlined in paragraphs (b)(1) through (9) of this section. The reasons the DoD Components will use are:

(i) Misdirected request.

(ii)
Records publicly available.
Records are available on a U.S. government Internet Web site (for FOIA requesters with Internet access) or at some other government agency (e.g., the Government Printing Office or the National Technical Information Service).

(iii)
Litigation.
The FOIA request is administratively closed because the FOIA requester has filed a complaint in federal court. If this is the case, the DoD Component FOIA Requester Service Center should consult legal counsel to determine whether they should continue processing the FOIA request.

(iv)
Administrative.
The FOIA request is closed for any reason not covered by this subsection (e.g. the FOIA requester moves and leave no forwarding address). The DoD Components should use this reason in very few cases.

(c)
Responding to FOIA requesters.
All correspondence with FOIA requesters must include the FOIA request tracking number.

(1) When a decision is made to release a record, a copy should be made available promptly to the FOIA requester.

(2) When a FOIA request for a record is denied in whole or in part, the official designated to respond will provide the FOIA requester in writing an explanation of the substantive basis for denial, including specific citation of the statutory exemption applied (e.g., section (b)(1) of the FOIA), a brief explanation of the exemption, why it is being used to withhold information, and the address where the appeal should be mailed. The basis for the determination will be in sufficient detail to permit the FOIA requester to make a decision concerning an appeal. If the IDA does not sign the response letter, the name and duty title of the IDA must be specified in the letter. The official also will advise the FOIA requester that any appeal to the adverse determination must be postmarked no later than 30 calendar days after the date of the initial denial letter.

(3) The DoD Component will make a reasonable effort to estimate the volume of the records denied in their entirety and provide this estimate to the FOIA requester, unless providing such an estimate would harm an interest protected by a FOIA exemption. This estimate should be in number of pages or in some other reasonable form of estimation.

(4) When a denial is based on a statute qualifying as a FOIA Exemption 3 of the FOIA as set out in § 286.25(c) statute, the DoD Components must state the particular statute relied upon to deny the information along with a short description of the statute.

(5) When a FOIA requester is assessed fees for processing a FOIA request, the FOIA requester's fee category will be specified in the final response letter. The DoD Components also will provide the FOIA requester with a complete cost breakdown (e.g., 15 pages of office reproduction at $0.15 per page; 3 hours of professional level search at $56.00 per hour) in the response letter.

(d)
Providing documents to FOIA requesters.
This paragraph (d) applies when a FOIA requester is provided with documents in which some information is withheld.

(1) Although portions of some records may be denied, the remaining reasonably segregable non-exempt portions must be released to the FOIA requester. The DoD Components are encouraged to use onscreen electronic redaction capabilities when redacting documents. If a DoD Component does not have this capability, it must not use black magic markers for document redaction because their use does not adequately block the exempt information. Acceptable manual methods of redaction include black or white tape that completely blocks out the information below it or manually cutting the exempt information out of a copy of the responsive document. The last step when using a manual redaction method is making a photocopy of the final product to verify that all exempt information is deleted.

(2) The amount of deleted information must be indicated on the released portion of paper records, or electronic copies of paper records, by use of brackets or darkened areas. In no case will the deleted areas be left “white” without the use of brackets to show the bounds of deleted information. In the case of electronic deletion or deletion in audiovisual or microfiche records, if technically feasible, the amount of redacted information will be indicated at the place in the record such deletion was made.

(3) When a DoD Component withholds information within a partially releasable document, the exemption pursuant to which a withholding is made must be indicated on the document. This marking of the exemption will be located within the redacted portion or next to it. Figures 1, 2, and 3 of this section demonstrate several possible approaches to marking documents to specify the exemption being asserted.

(4) An exception to this requirement to indicate the amount and location of redacted information pertains to those instances when revealing the amount and location of the redacted information would harm an interest protected by the asserted exemption(s). This exception includes the situation in which revealing the exemption itself on the face of the released-in-part document would harm an interest protected by the exemption. In such rare circumstances, the DoD Components need not indicate the exemption used on the released document.

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(e)
Commercial delivery services.
A commercial delivery service may be used if FOIA requester asks for the service to receive the requested information in a timelier manner and the FOIA requester pays directly for the service.

§ 286.30
Referrals and consultations.
Referral and consultation procedures are based upon the concept that the originators of information within a record must make release determinations on that information.

(a)
Referrals.
(1) DoD Components locating responsive documents originating with another DoD Component or agency outside the DoD will refer the documents, along with a copy of the FOIA request, to the originator for response directly to the FOIA requester. The DoD Components referring FOIA requests will include point of contact's name, telephone number, and an email address in the cover memorandum.

(2) If the DoD Component locating the record has an equity interest in the document, it will provide an opinion on its releasability with the referral. The name and duty title of the IDA responsible for the decision to withhold the information will be provided.

(3) Referrals of records will not be made to non-federal agency entities (e.g., a city government). In these cases, the non-federal agency entity may be consulted for a release recommendation (e.g., a foreign government or international organization (see paragraph § 286.28 (e)(2)); however, response to the FOIA requester remains the responsibility of the DoD Component locating the record.

(4) The standard referral procedure is not appropriate where disclosure of the identity of the DoD Component or agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy and national security interests. For example, if a non-law enforcement DoD Component responding to a request for records on a living third party locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if a DoD Component locates material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In all instances when records originating with a law enforcement or Intelligence Community agency are located, in order to avoid harm to an interest protected by an applicable exemption, the DoD Component locating the records should contact the originating DoD component or agency to seek its views on the disclosability of the records. The originating DoD Component or agency will then direct the DoD Component locating the records on the procedures that should be followed. These procedures may involve referring the records or conveying the release determination of the originating entity without attribution.

(5) DoD Components will inform FOIA requesters of all referrals except in the instances described in § 286.30(a)(3). DoD Components receiving referrals will advise FOIA requesters of the date of receipt, the tracking number for the FOIA request, and contact information on how the FOIA requester can obtain information about the processing of the FOIA request.

(6) An exception to this process is when a DoD Component locates responsive records that it created solely for the use of another DoD Component or agency, and it has no objections to their release. The originating DoD Component will refer the record to the other DoD Component or agency for a release determination and direct response to the FOIA requester, who will be notified of the referral. An common example of this exception is contract audits created by the Defense Contract Audit Agency for another DoD Component.

(b)
Consultations.
When a DoD Component locates a responsive record that it originated and determines that another DoD Component or an agency outside the Department of Defense has an interest or equity in the record, the DoD Component must consult with the other entity and obtain its release recommendation. The consulted entity will provide its release recommendation back to the originating DoD Component, which will then respond to the FOIA requester. The FOIA requester should not be advised of this consultation unless information is withheld by the consulted agency. DoD Components seeking a release determination by consulting with another agency will keep the FOIA request open until it responds to the FOIA requester.

(c)
Processing tracks.
The DoD Components that receive referrals or consultations must process them in their multi-track processing systems, based upon the date of initial receipt of the perfected FOIA request by the government.

(d)
White House information.
DoD Components locating records originating with the National Security Staff (NSS), the White House, or the White House Military Office (WHMO), or containing information that these agencies would have an equity interest, will forward the records to OFOI, which serves as the OSD/Joint Staff FOIA Requester Service Center. (See Appendix A to this part for the OSD/Joint Staff FOIA Requester Service Center address.) OFOI will coordinate with NSS, the White House, or WHMO and return the records to the originating agency after coordination for response to the FOIA requester.

(e)
Government Accountability Office (GAO) information.
The GAO is outside the Executive Branch and not subject to the FOIA. FOIA requests for GAO documents within DoD files will be processed pursuant to the FOIA. If necessary, the DoD Components will consult with the GAO on the releasability of the requested information. The final response will be made by the DoD Component.

§ 286.31
Appeals.

(a)
General.
When an IDA makes an adverse determination, the DoD Components must advise the FOIA requester that the decision may be appealed in writing to a designated appellate authority. The DoD Components will further advise the FOIA requester that copies of the initial FOIA request and the denial letter should be submitted with the appeal.

(b)
FOIA and Privacy Act appeals.
When denials have been made pursuant to the Privacy Act and the FOIA, and the denied information is in a Privacy Act system of records, appeals will be processed pursuant to the Privacy Act and the FOIA. If the denied information is not maintained in a Privacy Act system of records, the appeal will be processed pursuant to the FOIA.

(c)
Time of receipt.
A FOIA appeal has been received by the DoD Component when it reaches the office of the appellate authority having jurisdiction. Misdirected appeals should be referred to the proper appellate authority.

(d)
Time Limits.
(1) If the FOIA req

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2014-19747. Public record. Not legal advice.