Air Force Freedom of Information Act Program

DEPARTMENT OF DEFENSE

Department of the Air Force

32 CFR Part 806

Air Force Freedom of Information Act Program

AGENCY: Department of the Air Force, DoD.

ACTION: Final rule.

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SUMMARY: The Department of the Air Force revised its rule to update Air

Force procedures for the Air Force Freedom of Information Act (FOIA)

Program. This revision provides guidance for making records public. It

tells how to process FOIA requests and tells the public how to request

copies of Air Force records using the FOIA. It outlines requirements

for For Official Use Only (FOUO) material. The intended effect is to

provide current information on Air Force policy and procedures for the

disclosure of records to the public under the Freedom of Information

Act.

EFFECTIVE DATE: March 31, 1994.

FOR FURTHER INFORMATION CONTACT:

Mrs. Anne P. Rollins, SAF/AAIQ, 1610 Air Force Pentagon, Washington DC

20330-1610, telephone (703) 697-3492.

SUPPLEMENTARY INFORMATION: This rule implements 5 U.S.C. 552, as

amended, and DODD 5400.7 (32 CFR Part 285) and DOD 5400.7-R (32 CFR

Part 286).

Because this part implements a higher authority directive, it is

not published as a proposed rule for comment.

The Department of the Air Force has determined that this rule is

not a major rule because it will not have an annual effect on the

economy of $100 million or more. The Secretary of the Air Force has

certified that this rule is exempt from the requirements of the

Regulatory Flexibility Act, 5 U.S.C. 601-612, because this rule does

not have a significant economic impact on small entities as defined by

the Act, and does not impose any obligatory information requirements

beyond those imposed by DoD. This rule revises Air Force Regulation

(AFR) 4-33, Air Force Freedom of Information Act Program, 31 July 1992.

List of Subjects in 32 CFR Part 806

Freedom of information, Classified information, Records.

Accordingly, 32 CFR Part 806 is revised as follows:

PART 806--AIR FORCE FREEDOM OF INFORMATION ACT PROGRAM

Sec.

806.0 Purpose.

806.1 General guidance.

806.2 Responsibilities.

806.3 Material not covered by the FOIA.

806.4 FOIA requests.

806.5 Submitting FOIA requests.

806.6 Processing requests under FOIA and Privacy Act (PA).

806.7 Describing records.

806.8 Creating a record.

806.9 Special disclosure procedures.

806.10 FOIA exemptions.

806.11 FOIA exclusions.

806.12 Denials.

806.13 Freedom of Information Act annual report.

806.14 Host-tenant relationship.

806.15 Processing FOIA requests.

806.16 Referrals.

806.17 Categorizing requesters.

806.18 Fee assessment.

806.19 Aggregating requests.

806.20 Fee waivers.

806.21 Transferring fees to accounting and finance offices.

806.22 Fee rates.

806.23 Technical data.

806.24 Technical data fee rates.

806.25 Appeals.

806.26 For Official Use Only (FOUO).

Appendix A to Part 806--Glossary of Terms

Appendix B to Part 806--Requirements of 5 U.S.C. 552(b)(4)

Authority: 5 U.S.C. 552.

Sec. 806.0 Purpose.

This part implements Department of Defense (DoD) Directive 5400.7,

13 May 1988, DoD Freedom of Information Act Program; and DoD Regulation

5400.7-R, 3 October 1990, DoD Freedom of Information Act Program, 10

May 1991, with Change 1 (32 CFR Parts 285 and 286). It provides

guidance for making records public and for the Air Force Freedom of

Information Act (FOIA) Program. It tells how to process FOIA requests

and tells the public how to request copies of Air Force records using

the FOIA (Title 5, United States Code, Section 552, as amended). It

outlines the requirements for For Official Use (FOUO) material. If this

part conflicts with other Air Force publications, it takes precedence

over those that deal with making records public.

Sec. 806.1 General guidance.

The Air Force discloses its records in its possession and control

to the public, except those records exempt under the FOIA which, if

released, would cause an identifiable harm. Make discretionary

disclosures of exempt information whenever possible. (Discretionary

releases are generally not appropriate for exemptions 1, 3, 4, 6, and

7(C)). A discretionary release to one requester will prevent

withholding the same record if someone else requests it. Answer all

requests for information and records promptly. Handle requests in a

customer-friendly manner. Get misrouted FOIA requests to the FOIA

Office immediately. Do not withhold a record simply because it might

suggest administrative error or inefficiency or cause embarrassment. Do

not deny a request just because the record is stored in a computer.

Sec. 806.2 Responsibilities.

(a) The Administrative Assistant to the Secretary of the Air Force

(SAF/AA) takes overall responsibility for making sure the Air Force

complies with the FOIA.

(b) The Office of the General Counsel to the Secretary of the Air

Force (SAF/GSA) makes final decisions on appeals.

(c) The Director of Information management (SAF/AAI), through the

Access Programs Office of the Administrative Communications and Records

Management Division, SAF/AAIQ:

(1) Administers procedures described in this part.

(2) Submits required reports to the Office of the Assistant to the

Secretary of Defense (Public Affairs).

(3) Provides guidance and instructions to major commands (MAJCOM)

and field operating agencies (FOA).

(d) MAJCOM and FOA commanders implement this part in their commands

and agencies.

(e) FOIA managers:

(1) Control and process FOIA requests.

(2) Obtain recommendations from the office of primary

responsibility (OPR) for records.

(3) Provide a reading room for inspecting, copying and giving

copies of records to requesters.

(4) Provide training.

(5) Review publications to make sure they comply with this part.

(6) Conduct periodic program reviews.

(7) Approve or deny fee waivers.

(8) Assess and collect fees.

(9) Send extension notices to requesters.

(10) Submit required reports.

(11) Make final determinations on ``no records'' responses.

(f) OPRs:

(1) Coordinate the release or denial with the offices of collateral

responsibility (OCR) and with the Staff Judge Advocate (SJA) and FOIA

office on proposed denials.

(2) Provide requested records.

(3) Help the disclosure authority determine whether to release

record; and act as declassification authority when appropriate.

(g) Disclosure authorities determine whether to release records and

provide them to the FOIA office.

(h) Initial denial authorities:

(1) Make final decisions to deny records.

(2) Tell requesters the nature of records or information denied,

exemption supporting the denial with reason, and appeal procedures.

Sec. 806.3 Material not covered by the FOIA.

(a) Objects or articles, such as structures, furniture, vehicles,

and equipment, whatever their historical value or value as evidence.

(b) Administrative tools for creating, storing, and retrieving

records, if not created or used as sources of information about

organizations, policies, functions, decisions, or procedures of DoD.

Normally computer software, including source code, object code, and

listings of source and object codes, regardless of medium, are not

agency records. This does not include the supported data that is

processed and produced by such software an that in some instances may

be stored with the software.

(c) Personal notes of an individual not subject to agency creation

or retention requirements, created and maintained primarily for the

convenience of an agency employee, and not distributed to other agency

employees for their official use.

(d) Information stored in a computer for which there is no existing

computer program for retrieval of the requested information.

(e) If other procedures for processing requests for material not

covered by FOIA exist:

(1) Log the request and refer the request outside of the FOIA to

the proper office.

(2) Acknowledge the requester's letter, tell the individual where

you referred the request, and that the material is not a record under

the FOIA.

(f) If no alternative release procedures exist, process the request

under FOIA by advising the requester that materials are not agency

records and give the requester appeal rights.

Sec. 806.4 FOIA requests.

(a) Under FOIA, members of the public, including foreign citizens,

military and civilian personnel acting as private citizens,

organizations and businesses, and individual members of the Congress,

for themselves or constituents, may request records in writing. Federal

agencies or fugitives from the law cannot make FOIA requests.

(b) Requesters should not use Government equipment, supplies,

stationery, postage, telephones, or official mail channels to make FOIA

requests. FOIA managers will process such requests and tell requesters

that using government resources to make FOIA requests is not an

authorized official use.

Sec. 806.5 Submitting FOIA requests.

Submit written requests that reasonably describe the desired

records and include a statement on fees. Address letters to the FOIA

office of the activity that has the record. List other addressees to

save time.

Sec. 806.6 Processing requests under FOIA and Privacy Act (PA).

Process requests under the Act that gives the most information. If

the requester cites both Acts, address each in the reply.

Sec. 806.7 Describing records.

The requester is responsible for identifying the desired record. He

or she should sufficiently describe the record to help locate it with a

reasonable amount of effort. Generally a reasonable description

contains enough information for an organized, nonrandom search. Offices

must make reasonable efforts to find the records described. This means

searching all activities and locations most likely to have the records,

including staged or retired records. If the description is unclear, ask

for more specific information. When possible, tell the requester what

information would help.

Sec. 806.8 Creating a record.

(a) The Air Force is not required to create, compile, or obtain a

record from outside the Air Force to fulfill a request. You may want to

create a new record when it would be a more useful response to the

requester or is less burdensome for the agency than providing an

existing record and the requester agrees. Do not charge the requester

more for creating a record than you would charge for the existing

record.

(b) Apply a standard of reasonableness for electronic data when

there is a question on whether you are creating, programming, or

formatting a record. If you can respond with a ``business as usual''

approach, process the request, otherwise offer the requester appeal

rights.

Sec. 806.9 Special disclosure procedures.

Some instructions have disclosure procedures for certain types of

records. Refer to those instructions for specific disclosure procedures

when you process FOIA requests. The only reason to deny a request is a

FOIA exemption.

(a) Process FOIA requests from foreign citizens, foreign

governments, their representatives, or international commands under

this part, and coordinate with your foreign disclosure office. If the

command has no foreign disclosure office, refer the request to SAF/AAIS

(FOIA) for SAF/IAD coordination through the MAJCOM FOIA office.

(b) If requests from foreign government officials do not cite the

FOIA, refer them to your foreign disclosure office and notify the

requester.

(c) If you have a non-U.S. Government record, coordinate with the

record's originator before releasing it (see Sec. 806.10(e)(1). This

includes records created by foreign governments and organizations like

the North Atlantic Treaty Organization (NATO) and North American

Aerospace Defense (NORAD). Coordinate release of foreign government

records with the U.S. Department of State through the MAJCOM FOIA

office. Coordinate release or denial of Letters of Offer and Acceptance

(LOA) and SAF/IA through SAF/AAIS (FOIA).

Sec. 806.10 FOIA exemptions.

Denial authorities may withhold records or information when an

identifiable harm would result by disclosure, and the records are

exempt under 5 U.S.C. 552(b).

(a) Exemption 1--Classified Records. Records properly and currently

classified in the interest of national defense or foreign policy, as

authorized by executive order and implementing instructions. Apply this

exemption when disclosing information by itself or in the context of

other information that could reasonably be expected to damage national

security.

(1) To make a sound decision, review the record paragraph by

paragraph for releasable information. Review all unclassified parts

before release to see if they are exempt. Before releasing a reviewed

and declassified document, draw a single black line through all the

classification markings, so they are still legible and stamp the

document ``Unclassified.'' Review material, if appropriate, to

determine if it should be classified, even though it was not classified

when requested. AFI 31-401, Information Security Program Management

(formerly AFRs 205-1 and 205-43), tells how to classify and declassify

records. Check to see if information from foreign sources is

classified. Delete exempt parts of records and disclose the rest if it

does not distort meaning and you can reasonably assume that a skillful,

knowledgeable person could not reconstruct the information deleted.

Denial letters must say that unauthorized disclosure of such

information could reasonably be expected to cause damage to national

security and cite the appropriate executive order paragraph(s) as

authority for classification. When denying a whole classified record,

release all unclassified parts that would cause no identifiable harm.

Coordinate with the local information security specialist when invoking

this exemption for consistency of classification policy and procedures.

(2) When simply knowing whether a record exists or not reveals

classified information, use the ``Glomar'' (refusal to confirm or deny)

response. Apply it consistently, not only when a record exists but also

when a record does not exist. Otherwise, the pattern of using a ``no

record'' response when a record does not exist, and a ``refusal to

confirm or deny'' when a record does exist will disclose exempt

information. Cite the FOIA exemption when you use the ``Glomar''

response.

(b) Exemption 2--Internal Personnel Rules and Practices. Exempt

information falls in two categories:

(1) ``High'' 2 protects records which, if disclosed, would

substantially hinder the effective performance of a significant

function of the DoD by risking circumvention of a statute or Air Force

instruction or policy.

(2) ``Low'' 2 is for trivial internal administrative matters of no

genuine public interest and the process of releasing such records would

constitute an unwarranted administrative burden. You can only use the

``low'' 2 exemption before fully processing the requested records.

Otherwise, you may eliminate the administrative burden justification.

(c) Exemption 3--Other Statutes. Records of matters that a statute

specifically exempts from disclosure by terms that permit no discretion

on the issue of withholding or according to defined standards for

withholding or referring to particular types of matters we must

withhold. When using this exemption, cite both exemption 3 and the

specific statute.

(d) Exemption 4--Confidential Commercial Information. Records with

trade secrets and commercial or financial information submitted by a

person or entity outside the Federal Government on a privileged or

confidential basis that, if released, is likely to cause substantial

competitive harm to the submitter of the information or impair the

government's future ability to obtain necessary information. Examples

of exempt information follow:

(1) Trade secrets that are commercially valuable plans, formulas,

processes, or devices used for making, preparing, compounding, or

processing trade commodities and are the product of innovation or

substantial effort and were given in confidence.

(2) Commercial or financial information given in confidence, in

connection with loans, bids, contracts, or proposals; or privileged

information, such as trade secrets, inventions, discoveries, or other

proprietary data.

(3) Statistical data and commercial or financial information

concerning contract performance, income, profits, losses, and

expenditures, offered and given in confidence by a contractor or

potential contractor.

(4) Personal statements made during inspections, investigations, or

audits, if such statements are given in confidence by the individual

and kept confidential, because they reveal trade secrets or commercial

or financial information normally considered confidential or

privileged.

(5) Financial data private employers provide in confidence for

local wage surveys, used to set and adjust pay schedules for prevailing

wage rate employees of the DoD.

(6) Scientific and manufacturing processes or developments

concerning technical or scientific data or other information submitted

with a research grant application or with a report during research.

(7) Computer software qualifying as a record under this part that

is copyrighted under the Copyright Act of 1976 (17 U.S.C. 106), the

disclosure of which would adversely affect its market value.

(8) Technical or scientific data a contractor or subcontractor

developed entirely with private funds and technical or scientific data

developed with both Federal and private funds, which the contractor or

subcontractor legally owns per 10 U.S.C. 2320-2321 and DoD Federal

Acquisition Regulation Supplement (DFARS), chapter 2 of 48 CFR 227.4.

You may withhold technical data developed entirely with Federal funds

under Exemption 3 if the data meets the criteria of 10 U.S.C. 130.

(e) Before releasing information submitted from outside the Air

Force:

(1) Write to the submitter of the data for views on releasability

and include appendix b with your letter.

(2) Tell the requester that we must give the submitter of the data

the opportunity to comment before the Air Force decides whether to

release the information.

(3) Give the submitter a reasonable period of time (no more than 30

calendar days) to object to release and provide justification.

(4) If the submitter does not respond, write that you have not

received a reply, tell the submitter of the decision to release with

the reason and give the expected release date (at least 2 weeks from

the date of your letter).

(5) If the submitter objects, but the Air Force disclosure

authority considers the records releasable, tell the submitter before

releasing the data. Include in the letter a brief explanation and a

release date at least 2 weeks from the date of the letter.

(f) Exemption 5--Inter- or Intra-Agency Records. Intra-agency or

inter-agency memoranda or letters that, according to recognized legal

privileges are not routinely released to a party in litigation with the

Air Force or DoD. If such a record or part of such a record would be

made available routinely through the discovery process in the course of

litigation with the agency, release it. In the discovery process,

litigants get from each other information relevant to issues in a trial

or hearing. if the information is only made available through the

discovery process by special court order, then it is exempt. Release

factual records or parts unless the information is privileged or

otherwise exempt. Generally, release a direction or order from a

superior to a subordinate, though contained in an internal

communication, if it forms policy guidance or a decision, but is not a

discussion of preliminary or other matters that would compromise

decision making. Consult your SJA about whether Exemption 5 material

would be routinely available through the discovery process. Here are

examples of exempt information.

(1) The deliberative process privilege--those parts of records with

internal advice, opinions, evaluations, or recommendations that reveal

Air Force or DoD deliberations.

(2) Those nonfactual parts of Air Force personnel evaluations of

contractors and their products.

(3) Advance information of a speculative, tentative, or evaluative

nature on such matters as proposals to buy, lease, or otherwise acquire

and dispose of materials, real estate, facilities, or functions, if

such information gives private personal interests an unfair competitive

advantage or impedes legitimate governmental functions. Generally, you

cannot use this privilege to withhold factual information. However, you

may withhold facts when they are so interconnected with deliberative

information that disclosing facts necessarily discloses the Air Force's

deliberative process or when facts and deliberative information are so

interconnected that separating them would be uninformative or

redundant.

(4) Official reports of inspection, audits, investigations, or

surveys on safety, security, or internal management, administration, or

operation of the Air Force.

(5) The attorney work product privilege--records an attorney

prepares, or supervises the preparation of, in contemplating or

preparing for administrative proceedings or litigation.

(6) The attorney-client privilege--confidential communication

between an attorney and client. For example, a commander expresses

concerns in confidence to his or her judge advocate and asks for a

legal opinion. The legal opinion and everything the commander tells the

judge advocate in confidence qualify.

(7) Unlike deliberative process privilege, you may withhold both

facts and opinions in attorney work product or privileged

communications.

(8) Trade secrets or other confidential research, development, or

commercial information the Air Force or DoD owns, whose premature

release probably would affect the Air Force's or DoD's negotiating

position or other commercial interests.

(9) Computer software qualifying as a record under this part which

is deliberative in nature, if its release would inhibit decisionmaking.

In this case, closely examine the use of the software to ensure its

deliberative nature.

(10) Planning, programming, and budget information involving

defense planning and resource allocation.

(g) Exemption 6--Invasion of Personal Privacy. Personnel, medical,

and similar personal information in other files whose release to the

public clearly invades personal privacy. To decide whether to release

personal information, balance the privacy interest against what its

release would tell the public about how the Air Force functions or

about the conduct of an Air Force functions or about the conduct of any

Air force employee (the public interest). Withhold records only when

the privacy interest exceeds the public interest. Do not use this

exemption to protect a deceased person's privacy, but you may use it to

protect the privacy of the deceased person's family in rare instances.

Generally let a person (or their representative) see their own

personnel, medical, or similar files and withhold information from the

subject only using 5 U.S.C. 552a, The Privacy Act of 1974 (see part

806b of this chapter).

(1) Withhold names and duty addresses of personnel serving overseas

or in sensitive or routinely deployable units. Routinely deployable

units normally leave their permanent home stations on a periodic or

rotating basis for peacetime operations or for scheduled training

exercises conducted outside the United States or U.S. territories on a

routine basis. Units based in the United States for a long time, such

as those in extensive training or maintenance activities, do not

quality during that period. Units designated for deployment or

contingency plans not yet executed and units that seldom leave the

United States or U.S. territories (e.g., annually or semiannually) are

not routinely deployable units. However, units alerted for deployment

outside the United States or U.S. territories during actual execution

of a contingency plan or in support of a crisis operation qualify. The

way the Air Force deploys units makes it difficult to determine when a

unit that has part of its personnel deployed becomes eligible for

denial. The Air Force any consider a unit deployed on a routine basis

or deployed fully overseas when 30 percent of its personnel has been

either alerted or actually deployed. In this context, alerted means

that a unit has received an official written warning of an impending

operational mission outside the United States or U.S. territories.

(2) Sensitive units are primarily involved in training for special

activities or classified missions, including, for example,

intelligence-gathering units that collect, handle, dispose of, or store

classified information and materials, as well as units that train or

advise foreign personnel.

(3) Each MAJCOM and FOA will establish a system and OPR(s) to

identify units in their command qualifying for this exemption.

Appropriate OPRs could include Directors of Operations, Plans, and

Programs, and Personnel. The resulting list of nonreleasable units will

be reviewed and updated in January and July and provided to the MAJCOM

or FOA FOIA office. This listing will be in ASCII format on a 3\1/2\ or

5\1/4\ inch floppy disk (double sided, high density), which contains

the unit's eight-position personnel accounting symbol (PAS) code, with

1 pas code per line (record) (8-byte record). The MAJCOM or FOA FOIA

manager will forward an electronic copy of the list of nonreleasonable

units to AFMPC/RMI to be included in the personnel data system. The

MAJCOM and AFMPC FOIA offices will use it to determine releasable lists

of names and duty addresses.

(h) Exemption 7--Investigative Records. Records or information

gathered for law enforcement purposes but only when releasing these

records would probably:

(1) Interfere with enforcement proceedings.

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

judgment.

(3) Invade personal privacy unnecessarily.

(4) Identify a confidential source, including a state, local, or

foreign agency or authority or any private institution that gives

confidential information.

(5) Disclose information 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.

(6) Disclose methods for law enforcement investigation or

prosecutions.

(7) Disclose guidelines for law enforcement investigations or

prosecutions if the release would probably encourage circumvention of

the law.

(8) Endanger an individual's life or physical safety.

(i) You may use this exemption to prevent disclosure of documents

not originally created for, but later gathered for law enforcement

purposes.

(j) Exemption 8--Financial Institutions. Those records contained in

or related to examination, operation, or condition reports prepared by,

on the behalf of, or for the use of, an agency that regulates or

supervises financial institutions.

(k) Exemption 9--Wells. Records with geological and geophysical

information and data, including maps, concerning wells.

Sec. 806.11 FOIA exclusions.

(a) Under two limited situations, requests for law enforcement

records are not subject to disclosure under FOIA:

(1) Requests for law enforcement records when the investigation

involves a possible criminal violation, the subject is unaware of the

investigation, and disclosing the record's existence could interfere

with enforcement.

(2) Requests for informant records a criminal law enforcement

agency keeps under the informant's name or personal identifier made by

a third party using the informant's name or personal identifier, but

only when the informant's status as an informant has not been

officially confirmed.

(b) In these cases, do not use denial procedures; instead, say you

found no records. Coordinate with the SJA on these cases. When you

write to the requester, do not give the statutory citation for the

exclusion nor state your reliance on an exclusion.

Sec. 806.12 Denials.

Only denial authorities may withhold information. Denial authority

level is at the deputy chiefs of staff and chiefs of comparable offices

or higher at HQ USAF, and MAJCOM and FOA commanders. These officials

may name an additional official as a denial authority. Send SAF/AAIQ a

letter with the position titles only. Only the Administrative Assistant

to the Secretary of the Air Force can approve a request for more than

one additional denial authority. Send those requests, with

justification, to SAF/AAIQ.

(a) When denying information, delete only the exempt parts of a

record, release what remains, and let the requester know that you are

providing all reasonably segregable, releasable parts of the record.

Clearly show the requester where you deleted information.

(b) Denial letters must include the reason for the denial and cite

the statutory exemption. Only authorized denial authorities sign denial

letters. FOIA managers may sign ``no records'' responses. Denial

letters and ``no records'' responses must also include an appeal

paragraph that:

(1) Tells the requester to address appeals to the Secretary of the

Air Force, through the FOIA office of the activity that issued the

denial or ``no records'' response.

(2) Tells the requester to appeal within 60 calendar days from the

date of the letter and to include reasons for reconsideration.

(3) Asks the requester to attach a copy of the response.

Sec. 806.13 Freedom of Information Act annual report

(a) MAJCOM and FOA FOIA managers submit a calendar-year report on

3\1/2\- or 5\1/4\-inch disk using the FOIA System. Send the report by

10 January to SAF/AAIQ. The report control symbol (RCS) is DD-

PA(A)1365.

(b) SAF/AAIQ submits the report to the Office of the Assistant to

the Secretary of Defense (Public Affairs) Directorate for Freedom of

Information and Security Review on DD Form 2564, Annual Report--Freedom

of Information Act.

Sec. 806.14 Host-tenant relationship.

(a) The host base FOIA manager logs, processes, and reports FOIA

requests for tenant units. The host base FOIA office refers all

recommended denials and ``no records'' appeals to the tenant MAJCOM

FOIA manager.

(b) This host-tenant relationship does not apply to disclosure

authorities for specialized records, such as the Air Force Audit Agency

and the Air Force Office of Special Investigations.

Sec. 806.15 Processing FOIA requests.

All FOIA offices use the FOIA system to track and manage FOIA

requests. AFM 4-196 is the FOIA System End Users Manual.

(a) After receiving a FOIA request, the FOIA manager:

(1) Records the date and time of receiving the request, logs the

request in the FOIA system and sets a suspense date. For more than 10

FOIA requests, sets up a first-in, first-out system to process the

requests in the order received.

(2) Considers a request received when the FOIA office responsible

for processing the request receives it; and when the requester states a

willingness to pay fees set for his or her category (see Sec. 806.17),

has paid past FOIA debts, and has reasonably described the requested

records.

(3) Determines the fee according to the requester's category,

writes to requesters who have not made arrangements to pay for the

information and whose fees are more than $15, telling them the category

and cost of the request.

(4) Answers fee waiver requests before processing. Asks for more

justification, if needed to make a good decision. Do not consider this

notice a denial.

(5) Attaches DD Form 2086, Record of Freedom of Information (FOI)

Processing Cost, or DD 2086-1, Record of Freedom of Information (FOI)

Processing Cost for Technical Data, to each request. The OPR must

complete and return this form to the FOIA office. These forms give the

fees for charging, if any, and processing costs you use to prepare the

FOIA annual report.

(6) Writes the requester to acknowledge receipt of the request if

the date or postmark (whichever is later) is more than 10 workdays ago

and informs the requester of any unusual problems.

(7) Tells the requester if the record is not sufficiently described

and asks for more information. If possible, offers to help the

requester identify the requested records and tells what kind of

information makes searching for a record easier.

(8) Sends the request to the OPR who searches for the record and

decides whether to release it.

(9) Sends classified records with no OPR or functional equivalent

to SAF/AAIS, through the MAJCOM or FOA FOIA office, for HQ USAF/SP

review. Telephones SAF/AAIS before sending the records.

(10) Tells the requester in a letter sent within 10 workdays after

receiving the request of the final decision to release or deny the

records.

(11) When answering requests for lists of names and duty addresses,

tells requesters as early as possible about the mass mailing

restrictions outlined in AFI 37-125, Official Mail, Small Parcel and

Distribution Management (formerly AFR 4-50).

(12) Grants 10 additional workdays for one or more of three

reasons:

(i) All or part of the requested records are not at the

installation processing the request.

(ii) Fulfilling the request means collecting and reviewing an

enormous number of records.

(iii) Other Air Fore activities or other agencies need to be

involved in deciding whether to release the records.

(13) Sends the requester a letter within 10 workdays, giving the

reason for the delay and a date (within 20 workdays after receiving the

request) when the requester can expect a final decision.

(14) Records extensions and reasons for them in the FOIA system.

(15) Coordinates with the public affairs office if the requested

records are potentially newsworthy or if the news media sent the

request.

(16) Sends releasable records to requesters with a bill (if

appropriate).

(17) Sends a request the OPR wants to deny through the MAJCOM or

FOA FOIA office to the denial authority for a decision. The package

must include:

(i) The request.

(ii) A copy of the requested records.

(iii) The OPR's and SJA's written recommendations.

(iv) The exemption cited.

(v) The reason for denial.

(b) The OPR locates the information and recommends its release. In

cases where several OPRs have functional responsibility for the

information, the primary OPR is the one responsible for most of the

information in the document. The OPR:

(1) Works with the offices of collateral responsibility (OCR)

inside and outside the Air Force, considers the opinions and

information they provide, and makes the final release decision.

(2) Forwards records that need coordination with other Air Force

functional areas and outside agencies to the MAJCOM or FOA FOIA office,

which sends them to the appropriate FOI office for review and return

for final decision.

(3) Answers each functional request and follows FOIA denial

procedures for records withheld.

Sec. 806.16 Referrals.

A FOIA manager refers requests to another FOIA office after

consulting with them when the request asks for records or information

originated by someone other than the activity receiving the request or

when an OPR finds records in a search that belong to another activity.

(a) Refer FOIA requesters to sources that can provide unaltered

publications and processed documents, such as maps, charts,

regulations, and manuals to the public, with or without charge. For

example, people can obtain documents published in the Federal Register

without using the FOIA. The National Technical Information Service

(NTIS), 5285 Port Royal Road, Springfield, VA 22161, sells current Air

Force standard numbered (departmental) publications, but does not stock

superseded, obsolete, rescinded, classified, FOUO, limited (L), or

``X'' distribution Air Force publications. FOIA requests for these

publications go through normal FOIA channels to the OPR for a release

recommendation.

(b) Usually, tell the requester about the referral, identify the

record referred as security permits, and tell the requester to expect

an answer from the agency or activity receiving the referral.

(c) If a request would involve many referrals, tell the requester

where to address the request; don't refer it yourself.

(d) Before releasing records or information originated with the

National Security Council (NSC) or the White House, refer them through

the Office of the Assistant to the Secretary of Defense (Public

Affairs) Directorate for Freedom of Information (OATSD[PA]DFOISR),

Washington DC 20301. The OATSD(PA) will consult with them and reply

back to you.

(e) The General Accounting Office (GAO) is outside the Executive

Branch and not subject to the FOIA. However, if the FOIA manager

receives a FOIA request directly from the public or referred from GAO

for GAO documents that contain Air Force or DoD information, process

the request under FOIA.

Sec. 806.17 Categorizing requesters.

(a) Requesters' fees depend on which group they belong to:

(1) Category 1: Commercial. Requesters pay all search, review, and

duplication. To decide who belongs in this category find out how these

requesters will use the requested documents. If you are unsure how the

requester plans to use the records or the request itself does not

clearly state plans, seek additional information before you categorize

the request.

(2) Category 2: Educational or Noncommercial Scientific Institution

or News Media. Requesters get the first 100 copies free and pay for

additional copies. These requesters do not pay search or review

charges. Requesters who use requested records to write and spread news

are not considered commercial requesters.

(3) Category 3: Others. Requesters get the first 2 hours of search

and the first 100 copies free. These requesters do not pay review

charges.

(b) Analyze each request to categorize the requester. If you think

the requester's category differs from what the requester claims, ask

the individual for more justification and say you cannot begin

searching for records until you have agreed on the category. If the

requester does not send the FOIA manager more justification in

reasonable time (normally, 30 calendar days), the manager makes a final

decision and notifies the requester of the decision and of the right to

appeal it.

(c) Tell requesters that you cannot begin to answer their requests

until they state they will pay the costs set for their category.

Sec. 806.18 Fee assessment.

The FOIA limits charges to search, review, and duplication based on

the requester's category.

(a) Estimate fees if the requester asks. Do not charge an amount

more than the estimate or the amount the requester agrees to unless the

requester first agrees to pay more.

(b) Search time includes all time spent looking for records to

respond to a request. Personnel must search efficiently to minimize

both the Air Force's and the requester's costs. Search efforts must be

thorough and include all locations and activities most likely to have

the requested records. Searches may include retired or staged records.

Time spent reviewing documents to decide whether statutory exemptions

apply counts as review time, not search time. For computer searches,

determine the first 2 free hours against the salary scale of the person

operating the computer.

(1) FOIA managers may charge for search time for the appropriate

category (and review time for commercial requesters only), if the

requester agreed in advance to pay, even if:

(i) A search does not uncover the requested records.

(ii) The records found are entirely exempt from disclosure.

(2) When estimated search charges exceed $25, tell the requester

the estimated fees, unless the requester has already indicated a

willingness to pay fees as high as the estimate. When feasible, offer

the requester the opportunity to restate the request so that the search

costs less.

(c) Review is the process of examining documents to determine if

one or more of the statutory exemptions allows withholding. It also

includes the time it takes to excise information. Review does not

include time spent resolving general legal or policy issues on

exemptions. FOIA managers may only assess commercial requesters for

initial review. This does not include reviews at the appeal stage for

exemptions already applied, but it may include review to apply an

exemption not previously cited.

(d) Requesters pay only for copies of the records they actually

receive. Copies may be on paper, microfiche, audiovisual, or machine-

readable magnetic tape or disk, among other media. FOIA managers must

try hard to ensure copies are clear. If you cannot possibly provide a

clear copy, tell the requester that the copy is the best available and

that he or she can make an appointment to review the master copy. For

copies of computer tapes and audiovisual material, charge the actual

copying cost, including the operator's time.

(e) Before beginning or continuing work on a request, FOIA managers

may require advance payment from requesters:

(1) Who have not paid fees on time (usually within 30 calendar

days) in the past.

(2) Whose estimated fees are over $250, unless the requester always

pays promptly. In that case, give the requester an estimate and ask the

requester to ensure full payment.

(f) If the requester has always paid promptly, the FOIA manager

sends the records and requests payment at the same time.

(g) If a requester has not paid on time in the past, FOIA managers

may ask the requester to:

(1) Pay (or show proof of payment of) outstanding bills, plus

interest, for past FOIA requests. Consult 31 U.S.C. 3717 for interest

rates and coordinate with your accounting and finance office.

(2) Pay estimated fees in advance.

(h) If a requester has no payment history, or has not paid on time

in the past, FOIA managers may ask the requester to pay after

processing the request but before sending the records.

(i) When employees with different hourly rates search for

information for an ``Other'' (Category 3) requester, waive the cost of

the most expensive 2 hours of search. Requesters receive the first 2

hours search (Category 3 requesters only) and the first 100 pages of

duplication (Categories 2 and 3) free only once per request. If you

complete your work and refer the request to another FOI office for

action, tell that FOI office how much time you spent searching and how

many pages you copied for the requester.

Sec. 806.19 Aggregating requests.

A requester may make many requests at once, each seeking parts of a

document or documents, just to avoid paying fees. When a requester or a

group of requesters breaks a request into many requests to avoid

paying, the FOIA manager may combine the requests and charge

accordingly. Before combining requests, be sure you have solid evidence

that the requesters are trying to avoid fees. Do not combine one

requester's multiple requests on unrelated subjects. Contact SAF/AAIQ

before taking action.

Sec. 806.20 Fee waivers.

(a) Waive fees for requesters of all categories when:

(1) FOIA costs total $15 or less.

(2) A record is created voluntarily to save the cost of supplying

many records.

(3) A record previously withheld is released at small cost (e.g.,

$15 to $30).

(4) Releasing the information is likely to contribute significantly

to public understanding of the operations or activities of the DoD and

is not primarily in the commercial interest of the requester.

(b) A waiver in the public interest establishes the two basic

requirements below. Both must be met before you waive or reduce fees.

Use the following six factors. Begin with the first four factors to

determine ``public interest'' and then use the two remaining factors to

decide if release ``is not primarily in the commercial interest of the

requester.''

(1) Requirement 1. Is releasing the information in the public

interest business it will probably contribute significantly to public

understanding of the government's operations or activities?

(i) Factor 1--Subject of the Request. Analyze whether the subject

matter will significantly contribute to the public understanding of DoD

operations or activities. Requests made for records in DoD's possession

originated by nongovernment organizations for their intrinsic content

rather than informative value will likely not contribute to public

understanding of DoD operations or activities. Press clippings,

magazine articles, or records expressing an opinion or concern from a

member of the public regarding a DoD activity are such records.

Releasing older records may be relevant to current DoD activities, so

do not discount it under this factor simply because it is old. For

example, a requester might want historical records to study how a

certain current DoD policy evolved. Review these requests closely,

comparing the requester's stated purpose for the records and the

potential for public understanding of DoD operations and activities.

(ii) Factor 2--Informative Value. Closely analyze a record's

substantive contents to determine whether disclosure is meaningful, and

will inform the public on DoD operations or activities. While the

subject of a request may contain information concerning DoD operations

or activities it may not always help people understand these operations

or activities. One example is a heavily edited record, containing only

random words, fragmented sentences, or paragraph headings. Another

example is information already in the public domain.

(iii) Factor 3--General Public Will Understand the Subject Better.

Will the records' release inform, or have the potential to inform, the

public or just the requester or a few interested persons? Knowing the

requester's identity is essential to determine whether he or she plans

to, and knows how to, communicate information to the public. Plans to

write a book, research a subject, work on a doctoral dissertation, or

indigency are not reason enough to waive fees. The requester must tell

how he or she plans to disclose the information to the general public.

You may ask requesters for their qualifications, the nature of their

research, the purpose of requesting information, and their plans for

making information public.

(iv) Factor 4--Significance of Public Understanding. Balance the

relative significance or impact of the disclosure against the level of

public knowledge or understanding that exists before disclosure.

Records released on a subject of wide public interest should contain

previously unknown facts that increase public knowledge. They should

not duplicate what the general public already knows. Determining the

significance of information requires objective judgment. Take care to

determine whether disclosure will probably lead to significant public

understanding of the issue. Do not judge whether the information is

important enough to be public.

(2) Requirement 2. Does disclosure of the information primarily

mean profit for the requester?

(i) Factor 5--Commercial Interest. If you determine the requester

will use the records to make a profit, then decide if it's primary, as

opposed to a personal or noncommercial interest. In addition to profit-

making organizations, individuals, and other organizations may have a

commercial interest in certain records. When you have difficulty

deciding whether a request is commercial in nature, the requester's

identity and the circumstances of the request may help. You may write

to the requester and ask for more details.

(ii) Factor 6--Primary Interest. After you have determined the

requester's commercial interest, decide if it is primary. Commercial

interests are primary only if the requester's profit clearly overrides

a personal or nonprofit interest. You must decide whether the

commercial interest outweighs any benefit to the public as a result of

disclosure. Waive or reduce fees when the public gains more than the

requester. If the requester's commercial interest is greater than the

public interest, do not waive or reduce fees even if public interest is

significant. As business organizations, news organizations have a

commercial interest; however, you can assume that their primary

interest is giving the general public news. Scholars writing books or

engaging in other academic research, may profit, either directly or

indirectly (through the institution they represent); however, such work

is primarily done for educational purposes. Usually you would not

assess scholars fees. Assume that brokers or others who compile

government information for marketing use the information for profit.

(iii) Decide each fee waiver case by case. When you have doubts

about waiving or charging a fee, favor the requester.

Sec. 806.21 Transferring fees to accounting and finance offices.

The Treasurer of the United States has two accounts for FOIA

receipts. Use account 3210, Sales of Publications and Reproductions,

Freedom of Information Act, for depositing fees for publications and

forms described in Federal Account Symbols and titles. Use receipt

account 3210, Fees and Other Charges for Services, Freedom of

Information Act, to deposit fees for searching for, copying, and

reviewing records to provide information not in existing publications

or forms. Add your disbursing office's prefix to the account numbers.

Deposit all FOIA receipts in these accounts except those from

industrially funded and nonappropriated funded activities. Deposit

these receipts in the applicable fund.

Sec. 806.22 Fee rates.

(a) These fees apply only to FOIA requests. Part 813 of this

chapter, Schedule of Fees for Copying, Certifying and Searching Records

and Other Documentary Material, contains the fee schedule for non-FOIA

services. Refer to Part 806B of this chapter for guidance on fees for

PA requests.

(b) Search and review:

(1) Clerical (E9 and GS-8 and below)--$12 an hour.

(2) Professional (01-06 and GS-9-GS/GM-15)--$25 an hour.

(3) Executive (07 and GS-16/ES1 and above)--$45 an hour.

(c) Computer search fees are based on direct costs of the central

processing unit, input-output devices, and memory capacity of the

actual computer configuration. Also include the salary scale (equal to

hourly rates above) for the computer operator or programmer who planned

and carried out the search.

(d) Duplication:

(1) Preprinted material--$.02 per page.

(2) Office copies--$.15 per page.

(3) Microfiche--$.25 per page.

(4) Computer copies (tapes or printouts)--actual cost of

duplicating the tape or printout, including operator's time and tape

cost.

(e) Copying cost for audiovisual documents is the actual cost of

reproducing the material, including the wage of the person doing the

work. Audiovisual materials given to a requester need not be

reproducible.

(f) Special Services. Includes certifying that records are true

copies and sending records by express mail. You may recover their costs

if the requester clearly asks for and agrees to pay for them.

Sec. 806.23 Technical data.

Technical data does not include computer software or data used for

contract administration, such as financial and management information.

If the FOIA requires, release technical data (not including critical

technology with military or space application) after the requester pays

all reasonable costs for search, duplication, and review.

Sec. 806.24 Technical data fee rates.

(a) Clerical search and review--$13.25 an hour. Minimum charge--

$8.30. Professionals and executives--set rate before beginning at

actual hourly rate. Minimum charge is \1/2\ of hourly rate.

(b) Copying rates depend on the type of record. If this list does

include the product, use the fair market value.

(1) Aerial photographs, specifications, permits, charts,

blueprints, and other technical documents--$2.50 each.

(2) Microfilmed engineering data aperture cards (silver duplicate

negatives)--$.75 per card.

(3) Silver duplicate negatives, keypunched and verified--$.85 per

card.

(4) Diazo duplicate negatives--$.65 per card.

(5) Diazo duplicate negatives keypunched and verified--$.75 per

card.

(6) Engineering data on 35mm roll film--$.50 per frame.

(7) Engineering data 16mm roll film--$.45 per frame.

(8) Engineering paper prints and drawings--$1.50 each.

(9) Reprints of microfilm indices--$.10 each.

(10) Office copies--$3.50 for up to six images. Each additional

image--$.10.

(11) Typewritten pages--$3.50 each.

(12) Certification and validation with seal--$5.20.

(13) Hand-drawn plots and sketches--$12 an hour or less.

(14) Fee Waivers for Technical Data. Waive the fees if they are

more than regular FOIA fee rates if a citizen or a US corporation asks

and certifies the need for technical data to submit (or assess its

ability to submit) an offer to supply the United States or its

contractor with a product related to the technical data. You may ask

the citizen or corporation for a deposit of not more than what

fulfilling the request costs. When the citizen or coporation submits

the offer, refund the deposit. Also waive charges:

(15) If a requester needs technical data to meet the terms of an

international agreement.

(16) If you decide, using regular FOIA fee waiver guidance, that a

waiver is in the interest of the United States.

Sec. 806.25 Appeals.

Requesters may appeal denials of records, category determinations,

fee waiver requests, and ``no records'' determinations by writing to

the Office of the Secretary of the Air Force, within 60 calendar days

after the date of the denial letter. A requester who sends the appeal

after 60 calendar days, should explain the reason for the delay.

(a) Requesters who appeal have exhausted all administrative

remedies within the Department of the Air Force and The Office of the

General Counsel to the Secretary of the Air Force (SAF/GC) makes a

final decision. Requesters must address all appeals to the Office of

the Secretary of the Air Force, through the MAJCOM or FOA FOIA office

that denied the request. Requesters should attach a copy of the denial

letter to their appeal and give their reasons for appealing.

(b) After coordinating with the local SJA (and the OPR, if

appropriate), MAJCOM and FOA FOIA offices send all appeals, including

late submissions, to Air Force Legal Services Agency (AFLSA/JACL) for

determination, unless they have reconsidered and approved the request.

MAJCOM and FOA FOIA offices give appeals priority. They do not have 20

workdays to process an appeal.

(c) Requesters must appeal denials involving Office of Personnel

Management's controlled civilian personnel records to the Office of the

General Counsel, Office of Personnel Management, 1900 E Street NW,

Washington DC 20415.

(d) When sending appeals to AFLSA/JACL, attach:

(1) The original appeal letter and envelope.

(2) The initial request and any attachments.

(3) The denial letter, with an index of the denied material, if

applicable.

(4) Copies of all records you have already provided; or if the

records are massive (Several cubic feet) and AFLSA/JACL agrees, an

index or description of released records.

(5) Copies of all administrative processing documents, including

extension letters and opinions and recommendations about the request.

(6) Copy of the denied record or denied portions of it marked to

show what you withheld. If the records are massive and AFLSA/JACL

agrees, you may substitute a detailed description of the documents.

(7) A point-by-point discussion of factual and legal arguments the

requester's appeal contains and, proof that the denial authority

considered and rejected these arguments and why.

(8) An explanation of the decisionmaking process for intraagency

documents denied under the deliberative process privilege and how the

denied material fits into that process.

(e) Assemble appeal packages:

(1) Arrange attachments in the order listed in paragraph (d) of

this section. Use tabbed dividers to separate attachments.

(2) List all attachments in your cover letter.

(3) Include the name of the person to contact and a phone number.

(f) AFLSA/JACL sends the appeal of the Office of the General

Counsel, who makes a final determination. The law requires a final

decision within 20 workdays after receipt of the appeal letter. The 20

days begins when the denial authority's FOIA office receives the

appeal. The time limit includes processing actions by all levels. If a

final determination cannot be made within 20 days, AFLSA/JACL writes to

the requester to acknowledge the appeals' receipt and to explain the

delay. If SAF/GC upholds the denial, in whole or in part, SAF/GC tells

the requester, explains reasons for the denial, and tells the requester

about judicial review rights. If SAF/GC grants the appeal, that office

tells the requester in writing and releases, or directs the release of,

the record.

(g) For ``no records'' determinations, search again, if warranted,

or verify the first search. Include in the package you send to AFLSAS/

JACL any letters that show you systematically tried to find records.

Tell, for example, what areas or offices you search for how you

conducted the search--manually, by computer, by telephone, etc.

(h) For appeals to denials of fee waiver requests, fully account

for actual and estimated costs with a copy of the DD 2086 or DD Form

2086-1.

Sec. 806.26 For Official Use Only (FOUO).

FOUO is not a classification. Information marked FOUO must meet the

criteria for exemptions 2 through 9, or you cannot withhold it. Do not

consider or mark any other records FOUO.

(a) Originators mark records when they create them to call

attention to FOUO content. An FOUO marking does not mean you must

withhold a record under the FOIA. You still need to review a requested

record. Examine records with and without markings to identify

information that needs protection and is exempt from public release or

to decide whether discretionary release is appropriate.

(1) Information in a technical document that requires a

distribution statement per AFI 61-204, Controlling the Distribution of

Classified and Unclassified Scientific and Technical Information

(formerly AFR 80-30), must show that statement. The originator may also

mark the information FOUO, if appropriate.

(2) Mark an unclassified document containing FOUO information ``For

Official Use Only'' at the bottom, on the outside of the front cover

(if any), on each page containing FOUO information, on the back page,

and on the outside of the back cover (if any).

(3) In unclassified documents, the originator may also mark

individual paragraphs that contain FOUO information to alert users and

assist in review.

(4) In a classified document, mark:

(i) An individual paragraph that contains FOUO, but not classified

information, by placing ``(FOUO)'' at the beginning of the paragraph.

(ii) The top and bottom of each page that has both FOUO and

classified information, with the highest security classification of

information on that page.

(iii) ``FOUO'' at the bottom of each page that has FOUO but not

classified information.

(5) If a classified document also contains FOUO information or if

the classified material becomes FOUO when declassified, place the

following statement on the bottom of the cover or the first page, under

the classification marking: If declassified, review the document to

make sure material is not FOUO and not exempt under this part before

public release.

(6) Mark other records, such as computer printouts, photographs,

films, tapes, or slides,``For Official Use Only'' or ``FOUO'' so the

receiver or viewer knows the record contains FOUO information.

(7) Mark FOUO material sent to authorized persons outside the DoD

with an explanation typed or stamped on the document:

This document contains information EXEMPT FROM MANDATORY

DISCLOSURE UNDER THE FOIA. Exemption(s) . . . . . . applies (apply).

(Further distribution is prohibited without the approval of (enter

OPR)).

(b) DoD components, officials of DoD components, and authorized DoD

contractors, consultants, and grantees send FOUO information to each

other to conduct official DoD business. Tell recipients the status of

such information, and send the material in a way that prevents

unauthorized public disclosure. Make sure documents that transmit FOUO

material call attention to any FOUO attachments. Normally, you may send

FOUO records over facsimile equipment. To prevent unauthorized

disclosure, consider attaching special cover sheets (i.e., AF Form

3227, Privacy Act Cover Sheet, for Privacy Act information), the

location of sending and receiving machines, and whether authorized

personnel are around to receive FOUO information. FOUO information may

be passed to officials in other departments and agencies of the

executive and judicial branches to fulfill a government function. Mark

the records ``For Official Use Only,'' and tell the recipient the

information is exempt from public disclosure under the FOIA and whether

it needs special handling. If the records are subject to the PA, refer

to Part 806b of this chapter for PA disclosure policies.

(c) AFI 90-401, Air Force Relations With Congress (formerly AFR 11-

7), governs the release of FOUO information to members of the Congress

and AFI 65-401, Air Force Relations With the General Accounting Office

(formerly AFR 11-8), governs its release to the General Accounting

Office (GAO). Review records before releasing to see if the information

warrants FOUO status. If not, remove FOUO markings. If the material

still warrants FOUO status, mark the records FOUO and explain the

appropriate exemption and marking to the recipient.

(d) When you use the US Postal Service, package records with FOUO

information so their contents are safe. If FOUO information is not

combined with classified information, individuals may send FOUO

information by First Class Mail or Parcel Post. Bulky shipments, such

as FOUO directives or testing materials, that qualify under postal

regulations may be sent by Fourth Class Mail.

(e) Mark each part of a message that contains FOUO information.

Unclassified messages containing FOUO information must show the

abbreviation ``FOUO'' before the text begins.

(f) To safeguard FOUO records during normal duty hours, place them

in an out-of-sight location if people who do not work for the

government come into the work area. After normal duty hours, store FOUO

records to prevent unauthorized access. File them with other

unclassified records in unlocked files or desks, etc., if the

Government or a Government contractor provides normal internal building

security. When there is no internal security, locked buildings or rooms

usually provide adequate after-hours protection. For additional

protection, store FOUO material in locked containers such as file

cabinets, desks, or bookcases.

(g) When a record is no longer FOUO, remove the markings or

indicate on the document the markings no longer apply. Try to tell

everyone who has the records that their status has changed.

(h) Destroy FOUO materials by tearing them up so no one can put

them back together and throwing them into trash containers. When the

information needs more protection, local authorities may use other

methods. However, balance the expense of extra protection against the

degree of sensitivity of the FOUO information in the records. You may

recycle FOUO material. Safeguard the FOUO documents or information

until recycling to prevent unauthorized disclosure. Recycling contracts

must include agreements on how to protect and destroy FOUO and PA

materials.

(i) Unauthorized disclosure of FOUO records is not an unauthorized

disclosure of classified information. Air Force personnel must act to

protect FOUO records under their control from unauthorized disclosure.

When unauthorized persons gain access to these records, administrators

find out who is responsible and take disciplinary action where

appropriate. Unauthorized disclosure of FOUO information containing PA

information may also result in civil or criminal sanctions against

individuals or the Air Force. Tell the originating organization when

its records are improperly disclosed.

Appendix A to Part 806--Glossary of Terms

Appellate Authority--The Office of the General Counsel to the

Secretary of the Air Force, who decides FOIA appeals.

Commercial Request--A category 1 request from, or on behalf of,

one who seeks information that furthers the commercial, trade, or

profit interest of the requester or the person represented.

Denial--A determination by a denial authority not to disclose

requested records in its possession and control.

Determination--The decision to grant or deny all or part of a

request from the public for records.

Disclosure--Providing access to, or one copy of, a record.

Disclosure Authority--Official authorized to release records.

Education Institution Request--A category 2 request from a

preschool, 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 one or more

scholarly research programs.

Electronic Data--Records or information created, stored, and

retrieved by electronic means. Electronic records do not include

computer software used as a tool to create, store, or retrieve

electronic data.

FOIA Manager--The person who manages the FOIA Program at each

organizational level.

FOIA Request--A written request for records from the public that

cites or implies the FOIA.

Functional Request--A request for records that does not

specifically cite or imply the FOIA.

Glomar Response--A reply that neither confirms nor denies the

existence or nonexistence of the requested record. A ``Glomar''

response may be used with FOIA exemptions 1, 6, and 7(C).

Initial Denial Authority (IDA)--Persons in authority positions

who may withhold records under the FOIA.

News Media Request--A category 2 request from a person whose job

is gathering news for a publishing or broadcasting organization that

supplies news to the public. News media also includes free lance

journalists who can prove they have good reason for expecting a news

organization to publish their work.

Noncommercial Scientific Institution Request--A category 2

request from a noncommercial institution that operates solely to

conduct scientific research not intended to promote a particular

product or industry.

Other Request--A category 3 request from anyone who does not fit

into the Commercial category or the Noncommercial Scientific or

Educational Institutions or News Media category.

Partial Denial--Decision to withhold part of a requested agency

record.

Public Interest--When releasing official information sheds light

on how an agency performs its statutory duties and informs citizens

about what their government is doing or reveals an Air Force

official's conduct. Normally there is no public interest in personal

information if it does not reveal a person's conduct in their job.

Records--The products of data compilation, such as all books,

papers, maps, and photographs, machine readable materials or other

documentary materials, regardless of physical form or

characteristics, made or received by an agency of the U.S.

Government in connection with the transaction of public business and

in the agency's possession and control at the time it receives the

request. Records such as notes, working papers, and drafts kept as

historical evidence of actions are subject to the FOIA, and may be

exempt from release under 5 U.S.C. 552(b)(5) if an identifiable harm

exists by their release. Computer software rarely qualifies as an

agency record. Evaluate each case. Two examples of software as a

record are:

a. Data embedded in the software cannot be extracted without the

software.

b. Software that reveals information about DoD organization,

policies, functions, decisions, or procedures, such as computer

models used to forecast budget outlays, to calculate retirement

system costs, or to optimize models on travel costs.

Search--To look for a requested record or a specific section of

a record. You can search over the telephone, manually, or with

computer searches.

Statutory Time Limits--The 10 workdays after receiving the

request to tell the requester whether the records are released or

denied. This term also covers the additional 10-workday extension

allowed for reasons in Sec. 806.15(a)(12). The 10 days begin when

the FOIA manager receives a properly filed request with a reasonable

description of the requested records and with the requester's stated

willingness to pay fees or fees paid. If the requester disagrees

with his or her category or wants fees reduced or waived, the 10

days begin after resolving these issues.

Technical Data--Information (including computer software

documentation) that is scientific or technical in nature and

recorded on any medium.

Appendix B to Part 806--Requirements of 5 U.S.C. 552(b)(4) (Send With

Letter to Submitters)

(a) The Freedom of Information Act (FOIA) requires Federal

agencies to provide their records, except those specifically

exempted, for the public to inspect and copy.

(b) Section (b) of the Act lists nine exemptions that are the

only basis for withholding records from the public.

(c) In this case, the fourth exemption, 5 U.S.C. 552(b)(4), may

apply to records or information the Air Force maintains. Under this

exemption, agencies may withhold trade secrets and commercial or

financial information they obtained from a person or organization

outside the government which is privileged or confidential.

(d) This generally includes information provided and received

with the understanding that it will be kept privileged or

confidential.

(e) Commercial or financial matter is ``confidential'' and

exempt if its release will probably:

(1) Impair the Government's ability to obtain necessary

information in the future.

(2) Substantially harm the source's competitive position or

impair some other legitimate Government interest.

(f) The exemption may be used to help the source when public

disclosure will probably cause substantial harm to its competitive

position. Examples of information that may qualify for this

exemption include:

(1) Commercial or financial information received in confidence

with loans, bids, contracts, or proposals, as well as other

information received in confidence or privileged, such as trade

secrets, inventions, discoveries, or other proprietary data.

(2) Statistical data and commercial or financial information

concerning contract performance, income, profits, losses, and

expenditures, offered and received in confidence from a contractor

or potential contractor.

(3) Personal statements given during inspections,

investigations, or audits, received and kept in confidence because

they reveal trade secrets or commercial or financial information,

normally considered confidential or privileged.

(4) Financial data that private employers give in confidence for

local wage surveys used to set and adjust pay schedules for the

prevailing wage rate of DoD employees.

(5) Information about scientific and manufacturing processes or

developments that is technical or scientific or other information

submitted with a research grant application, or with a report while

research is in progress.

(6) Technical or scientific data a contractor or subcontractor

develops entirely at private expense, and technical or scientific

data developed partly with Federal funds and partly with private

funds, in which the contractor or subcontractor retains legitimate

proprietary interests per 10 U.S.C. 2320-2321 and 48 CFR 227.4.

(7) Computer software copyrighted under the Copyright Act of

1976 (17 U.S.C. 106), the disclosure of which would adversely impact

its potential market value.

(g) If release of the subject material would prejudice your

commercial interests, give detailed written reasons that identify

the specific information and the competitive harm it will cause to

you, your organization, or your business. The Act requires we

provide any reasonably segregable part of a record after deleting

exempt parts. So, tell us if deleting key words or phrases would

adequately protect your interests.

(h) If you do not prove the probability of substantial harm to

your competitive position or other commercial interests, we may be

required to release the information. Records qualify for protections

case by case.

Patsy J. Conner,

Air Force Federal Register Liaison Officer.

[FR Doc. 94-24663 Filed 10-5-94; 8:45 am]

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