DoD Freedom of Information Act Program Regulation

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 286

[DoD 5400.7-R]

DoD Freedom of Information Act Program Regulation

AGENCY: Department of Defense

ACTION: Proposed rule.

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SUMMARY: This proposed revision provides substantive and administrative

changes to conform to the requirements of the Electronic Freedom of

Information Act Amendments of 1996, 5 U.S.C. 552, as amended by Public

Law 104-231. It also provides guidance to the Department of Defense on

implementation of this amended law.

DATES: Comments must be received by April 21, 1997.

ADDRESSES: Forward copies to ASD(PA), Room 2C757, 1400 Defense

Pentagon, Washington, DC 20301-1400

FOR FURTHER INFORMATION CONTACT: Mr. C. Talbott, 703-697-1171.

SUPPLEMENTARY INFORMATION:

Executive Order 12866, ``Regulatory Planning and Review''

It has been determined that 32 CFR part 286 is not a significant

regulatory action. The rule does not:

(1) Have an annual effect to the economy of $100 million or more or

adversely affect in a material way the economy; a section of the

economy; productivity; competition; jobs; the environment; public

health or safety; or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another Agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs, or the rights and obligations of

recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

this Executive Order.

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

It has been certified that this rule 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. This rule implements the Freedom of Information Act

(5 U.S.C. 552), a statute concerning the release of Federal Government

records, and does not economically

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impact Federal Government relations with the private sector.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter

35)

It has been certified that this part does not impose any reporting

or recordkeeping requirements under the Paperwork Reduction Act of

1995.

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 PROGRAM REGULATION

Subpart A--General Provisions

Sec.

286.1 Purpose and applicability.

286.2 DoD public information.

286.3 Definitions.

286.4 Policy.

Subpart B--FOIA Reading Rooms

286.7 Requirements.

286.8 Indexes.

Subpart C--Exemptions

286.11 General provisions.

286.12 Exemptions.

Subpart D--For Official Use Only

286.15 General provisions.

286.16 Markings.

286.17 Dissemination and transmission.

286.18 Safeguarding FOUO information.

286.19 Termination, disposal and unauthorized disclosure.

Subpart E--Release and Processing Procedures

286.22 General provisions.

286.23 Initial determinations.

286.24 Appeals.

286.25 Judicial actions.

Subpart F--Fee Schedule

286.28 General provisions.

286.29 Collection of fees and fee rates.

289.30 Collection of fees and fee rates for technical data.

Subpart G--Reports

286.33 Reports control.

286.34 Annual report.

Subpart H--Education and Training

286.37 Responsibility and purpose.

Appendix A to Part 286--Unified Combatant Commands--Processing

Procedures for FOIA Appeals

Appendix B to Part 286--Addressing FOIA Requests

Appendix C to Part 286--Other Reason Categories

Appendix D to Part 286--''Record of Freedom of Information (FOI)

Processing Cost'' (DD Form 2086)

Appendix E to Part 286-- ``Record of Freedom of Information (FOI)

Processing Cost for Technical Data'' (DD Form 2086-1)

Appendix F to Part 286-- ``Annual Report Freedom of Information

Act'' (DD Form 2564)

Appendix G to Part 286--DoD Freedom of Information Act Program

Components

Authority: 5 U.S.C. 552.

Subpart A--General Provisions

Sec. 286.1 Purpose and applicability.

(a) Purpose. This part provides policies and procedures for the

Department of Defense (DoD) implementation of the Freedom of

Information Act (5 U.S.C. 552, as amended) and DoD Directive 5400.7

1 and promotes uniformity in the DoD Freedom of Information Act

(FOIA) Program.

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\1\ Copies may be obtained, at cost, from the National

Technical Information Service, 5285 Port Royal Road, Springfield, VA

22161.

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(b) Applicability. This part applies to the Office of the Secretary

of Defense (OSD), the Military Departments, the Chairman of the Joint

Chiefs of Staff, the Unified Combatant Commands, the Inspector General

of the Department of Defense (IG DoD), the Defense Agencies, and the

DoD Field Activities (hereafter referred to collectively as ``the DoD

Components'). This part takes precedence over all DoD Component

publications that supplement and implement the DoD FOIA Program. A list

of DoD Components is at appendix G to this part.

Sec. 286.2 DoD public information.

(a) The public has a right to information concerning the activities

of its Government. DoD policy is to conduct its activities in an open

manner and provide the public with a maximum amount of accurate and

timely information concerning its activities, consistent always with

the legitimate public and private interests of the American people. A

record requested by a member of the public who follows rules

established by proper authority in the Department of Defense shall not

be withheld unless the record is exempt from mandatory disclosure under

the FOIA. As a matter of policy, DoD Components shall make

discretionary disclosures of exempt records or information whenever

disclosure would not foreseeably harm an interest protected by a FOIA

exemption, but this policy does not create any right enforceable in

court. In order that the public may have timely information concerning

DoD activities, records requested through public information channels

by news media representatives that would not be withheld if requested

under the FOIA should be released upon request. Prompt responses to

requests for information from news media representatives should be

encouraged to eliminate the need for these requesters to invoke the

provisions of the FOIA and thereby assist in providing timely

information to the public. Similarly, requests from other members of

the public for information that would not be withheld under the FOIA

should continue to be honored through appropriate means without

requiring the requester to invoke the FOIA.

(b) Within the Office of the Secretary of Defense, the Chief

Information Officer, who is also the Assistant Secretary of Defense for

Command, Control, Communications, and Intelligence is responsible for

preparing reference material or a guide for requesting records or

information from the DoD, subject to the nine exemptions of the FOIA.

This part shall also include an index of all major information systems,

and a description of major information and record locator systems. DoD

FOIA Components shall coordinate with the appropriate office(s) to

insure that this function is also accomplished within their department

or organization.

(c) DoD Components shall also prepare, in addition to normal FOIA

regulations, a handbook for obtaining information from their

organization. This handbook should be a short, simple explanation to

the public of what the FOIA is designed to do, and how a member of the

public can use it to access government records. Each DoD Component

should explain the types of records that can be obtained through FOIA

requests, why some records cannot, by law, be made available, and how

the DoD Component determines whether the record can be released. The

handbook should also explain how to make a FOIA request, how long the

requester can expect to wait for a reply, and explain the right of

appeal. The handbook should supplement other information locator

systems, such as the Government Information Locator System (GILS), and

explain how a requester can obtain more information about those

systems. The handbook should be available on paper and through

electronic means, and identify how a requester can access DoD

Components'' Freedom of Information Act annual reports. Similarly, the

DoD Components'' Freedom of Information Act annual reports should refer

to the handbook and how to obtain it.

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(d) Control system. A request for records that invokes the FOIA

shall enter a formal control system designed to ensure accountability

and compliance with the FOIA. Any request for DoD records that either

explicitly or implicitly cites the FOIA shall be processed under the

provisions of this part, unless otherwise required by Sec. 286.4 (m)

Sec. 286.3 Definitions.

As used in this part, the following terms and meanings shall be

applicable:

Administrative appeal. A request by a member of the general public,

made under the FOIA, asking the appellate authority of a DoD Component

to reverse a decision to: Withhold all or part of a requested record;

deny a fee category claim by a requester; deny a request for expedited

processing due to demonstrated compelling need under Sec. 286.4 (d)

(3); deny a request for waiver or reduction of fees; deny a request to

review an initial fee estimate; and confirm that no records were

located during the initial search.

Agency record. (1) The products of data compilation, such as all

books, papers, maps, and photographs, machine readable materials,

inclusive of those in electronic form or format, or other documentary

materials, regardless of physical form or characteristics, made or

received by an agency of the United States Government under Federal law

in connection with the transaction of public business and in DoD's

possession and control at the time the FOIA request is made.

(2) The following are not included within the definition of the

word ``record'':

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

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

(ii) Anything that is not a tangible or documentary record, such as

an individual's memory or oral communication.

(iii) Personal records 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.

(iv) Information stored within a computer for which there is no

existing computer program for retrieval of the requested information.

(3) A record must exist and be in the possession and control of the

Department of Defense at the time of the request to be considered

subject to this part and the FOIA. There is no obligation to create,

compile, or obtain a record to satisfy an FOIA request. See Sec. 286.4

(g) (2) with respect to creating a record in the electronic

environment.

(4) Hard copy or electronic records, which are subject to FOIA

requests under 5 U.S.C. 552 (a)(3), and which are available to the

public through an established distribution system, or through the

Federal Register, the National Technical Information Service, or the

Internet, normally need not be processed under the provisions of the

FOIA. If a request is received for such information, provide the

requester with guidance on how to obtain the information. However, if

the requester insists that the request be processed under the FOIA,

then process the FOIA request. If the information sought is not an

agency record pursuant to the FOIA and this part, there is no

obligation to process the request under the FOIA, and the requester

shall be so notified.

Appellate authority. The Head of the DoD Component or the Component

head's designee having jurisdiction for this purpose over the record,

or any of the other adverse determinations outlined in definitions

``Initial denial authority and Administrative appeal.'

DoD Component. An element of the Department of Defense, as defined

in Sec. 286.1 (a) of this section authorized to receive and act

independently on FOIA requests (see appendix G to this part). A DoD

component has its own initial denial authority (IDA), appellate

authority, and legal counsel.

Electronic data. Records and information (including e-mail) which

are created, stored, and retrievable by electronic means.

FOIA request. A written request for DoD records, made by any

person, including a member of the public (U.S. or foreign citizen), an

organization, or a business, but not including a Federal agency or a

fugitive from the law, that either explicitly or implicitly invokes the

FOIA, DoD Directive 5400.7, this part, or DoD Component supplementing

regulations or instructions. Written requests may be received by postal

service or other commercial delivery means, by facsimile, or

electronically.

Honoring form or format requests. DoD Components shall provide the

record in any form or format requested by the requester if the record

is readily reproducible in that form or format. DoD Components shall

make reasonable efforts to maintain their records in forms or formats

that are reproducible. In responding to requests for records, DoD

Components shall make reasonable efforts to search for records in

electronic form or format, except when such efforts would significantly

interfere with the operation of the DoD Components'' automated

information system. Such determinations shall be made on a case by case

basis. See also Sec. 286.4 (g) (2).

Initial denial authority (IDA). An official who has been granted

authority by the head of a DoD component to: withhold records requested

under the FOIA for one or more of the nine categories of records exempt

from mandatory disclosure. IDA's may also deny a fee category claim by

a requester; deny a request for expedited processing due to

demonstrated compelling need under Sec. 286.4 (c) (3); 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 request.

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 what their government is doing. That statutory

purpose, however, is not fostered by disclosure of information about

private citizens accumulated in various governmental files that reveals

nothing about an agency's or official's own conduct.

Sec. 286.4 Policy.

(a) Compliance with the FOIA. DoD personnel are expected to comply

with the FOIA , this part, and DoD FOIA policy in both letter and

spirit. This strict adherence is necessary to provide uniformity in the

implementation of the DoD FOIA Program and to create conditions that

will promote public trust.

(b) Openness with the public. The Department of Defense shall

conduct its activities in an open manner consistent with the need for

security and adherence to other requirements of law and regulation.

Records not specifically exempt from disclosure under the Act shall,

upon request, be made readily accessible to the public in accordance

with rules promulgated by competent authority, whether or not the Act

is invoked.

(c) Avoidance of procedural obstacles. DoD Components shall ensure

that procedural matters do not unnecessarily impede a requester from

obtaining DoD records promptly. Components shall provide assistance to

requesters to help them understand and comply with procedures

established by this part and any supplemental regulations published by

the DoD Components.

(d) Prompt action on requests. (1) Generally, when a member of the

public complies with the procedures established in this part and DoD

Component regulations or instructions

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for obtaining DoD records, the request shall receive prompt attention,

and a response determination shall be dispatched within 10 working days

(20 working days effective October 2, 1997) unless a significant number

of requests precludes a determination within this time period. A

response determination is notification to the requester that the

records are released, or will be released on a certain date, or the

records are denied under the appropriate FOIA exemption, or the records

cannot be provided for one or more of the other reasons in paragraph

(c) of this section. Interim responses acknowledging receipt of the

request are encouraged; however, such responses do not constitute a

response determination pursuant to the FOIA.

(2) Multitrack processing. When a Component has a significant

number of requests which precludes a response determination being made

within 10 working days (20 working days effective October 2, 1997), the

requests shall be processed in a multitrack processing system, based on

the date of receipt, the amount of work and time involved in processing

the requests, and whether the request qualifies for expedited

processing as described in paragraph (d) (3) of this section. DoD

Components may establish as many processing queues as they wish;

however, as a minimum, three processing tracks shall be established,

all based on a first-in, first-out concept, and rank ordered by the

date of receipt of the request. One track shall be a processing queue

for simple requests, one track for complex requests, and one track

shall be a processing queue for expedited processing as described in

paragraph (d) (3) of this section. Simple and complex requests shall be

decided by each DoD Component. DoD Components shall provide a requester

whose request does not qualify for the fastest queue (except for

expedited processing as described in paragraph (d) (3) of this section,

an opportunity to limit in writing by hard copy, facsimile, or

electronically, the scope of the request in order to qualify for the

fastest queue. This multitrack processing system does not obviate

components'' responsibility to exercise due diligence in processing

requests in the most expeditious manner possible.

(3) Expedited processing. A separate queue shall be established for

requests meeting the test for expedited processing. Expedited

processing shall be granted to a requester after the requester requests

such and demonstrates a compelling need for the information. Notice of

the determination as to whether to grant expedited processing in

response to a requester's compelling need shall be provided to the

requester within 10 calendar days after receipt of the request in the

office which will determine whether to grant expedited access. Once the

determination has been made to grant expedited processing, DoD

Components shall process the request as soon as practicable. Actions by

DoD Components to initially deny or affirm the initial denial on appeal

of a request for expedited processing, and failure to respond in a

timely manner shall be subject to judicial review

(i) Compelling need. The failure to obtain the records on an

expedited basis could reasonably be expected to pose an imminent threat

to the life or physical safety of an individual.

(ii) It is also the information is urgently needed by an individual

primarily engaged in disseminating information in order to inform the

public concerning actual or alleged Federal Government activity. News

media requesters would normally qualify; however, other persons must

demonstrate that their primary activity involves publishing or

otherwise disseminating information to the public, not just a

particular segment or group.

(A) Urgently needed. The information has a particular value that

will be lost if not disseminated quickly. Ordinarily this means a

breaking news story of general public interest. However, information of

historical interest only, or information sought for litigation or

commercial activities would not qualify, nor would a news media

publication or broadcast deadline unrelated to the news breaking nature

of the information.

(B) Actual or alleged Federal government activity. The information

concerns some actions taken, contemplated, or alleged by or about the

government of the United States, or one of its components or agencies,

including the Congress.

(iii) A demonstration of compelling need by a requester shall be

made by a statement certified by the requester to be true and correct

to the best of their knowledge. This statement must accompany the

request in order to be considered and responded to within the 10

calendar days required for decisions on expedited access.

(iv) Other reason for expedited processing. Another reason which

merits expedited processing by DoD Components is an imminent loss of

substantial due process rights. A demonstration of imminent loss of

substantial due process rights shall be made by a statement certified

by the requester to be true and correct to the best of their knowledge.

This statement must accompany the request in order to be considered and

responded to within the 10 calendar days required for decisions on

expedited access. Once the decision has been made to expedite the

request for this reason, the request may be processed in the expedited

processing queue behind those requests qualifying for compelling need.

(v) These same procedures also apply to requests for expedited

processing of administrative appeals.

(e) Use of exemptions. It is DoD policy to make records publicly

available, unless the record qualifies for exemption under one or more

of the nine exemptions. It is DoD policy that DoD Components shall make

discretionary releases whenever possible; however, a discretionary

release is normally not appropriate for records clearly exempt under

exemptions 1, 3, 4, 6, 7 (F) and 7(C). Exemptions 2, 5, and 7(A)(B)(D)

and (E) are discretionary in nature, and DoD Components are encouraged

to exercise discretionary releases whenever possible. Exemptions 4, 6

and 7(C) cannot be claimed when the requester is the submitter of the

information.

(f) Public domain. Nonexempt records released under the authority

of this part are considered to be in the public domain. Such records

may also be made available in Components' reading rooms in paper form,

as well as electronically to facilitate public access. Exempt records

released pursuant to the FOIA may be considered to be in the public

domain only when their release constitutes a waiver of the FOIA

exemption. Disclosure to a properly constituted advisory committee, to

Congress, or to other Federal agencies does not waive the exemption.

(See Sec. 286.22 (d)). Records disclosed without authorization by the

appropriate DoD official (``leaks'') do not lose their exempt status.

Also, while 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.

(g) Creating a record. (1) A record must exist and be in the

possession and control of the Department of Defense at the time of the

search to be considered subject to this part and the FOIA. Unless the

originator or submitter of the record has imposed restrictions

controlling the dissemination of the record, a DoD Component has

control of a record when it has possession of the record and uses it in

the conduct of its business. There is no obligation to create, compile,

or obtain a record to satisfy an FOIA request. A DoD Component,

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however, may compile a new record when so doing would result in a more

useful response to the requester, or be less burdensome to the agency

than providing existing records, and the requester does not object.

Cost of creating or compiling such a record may not be charged to the

requester unless the fee for creating the record is equal to or less

than the fee which would be charged for providing the existing record.

Fee assessments shall be in accordance with subpart F of this part.

(2) With respect to electronic data, the issue of whether records

are actually created or merely extracted from an existing data base is

not always readily apparent. Consequently, when responding to FOIA

requests for electronic data where creation of a record, programming,

or particular format are questionable, Components should apply a

standard of reasonableness. In other words, if the capability exists to

respond to the request, and the effort would be a business as usual

approach, then the request should be processed. However, the request

need not be processed where the capability to respond does not exist

without a significant expenditure of resources, thus not being a normal

business as usual approach. As used in this sense, a significant

expenditure of resources in both time and manpower, which would cause a

significant interference with the operation of the components'

automated information system would not be a business as usual approach.

(h) Description of requested record. (1) Identification of the

record desired is the responsibility of the requester. The requester

must provide a description of the desired record, that enables the

Government to locate the record with a reasonable amount of effort.

When a DoD Component receives a request that does not reasonably

describe the requested record, it shall notify the requester of the

defect. The defect should be highlighted in a specificity letter,

asking the requester to provide the type of information outlined below

in paragraph (h)(2) of this section. DoD Components are not obligated

to act on the request until the requester responds to the specificity

letter. When practicable, DoD Components shall offer assistance to the

requester in identifying the records sought and in reformulating the

request to reduce the burden on the agency in complying with the Act.

(2) The following guidelines are provided to deal with generalized

requests and are based on the principle of reasonable effort.

Descriptive information about a record may be divided into two broad

categories.

(i) Category I. File-related and includes information such as type

of record (for example, memorandum), title, index citation, subject

area, date the record was created, and originator.

(ii) Category II. Event-related and includes the circumstances that

resulted in the record being created or the date and circumstances

surrounding the event the record covers.

(3) Generally, a record is not reasonably described unless the

description contains sufficient Category I information to permit the

conduct of an organized, nonrandom search based on the DoD Component's

filing arrangements and existing retrieval systems, or unless the

record contains sufficient Category II information to permit inference

of the Category I elements needed to conduct such a search.

(4) The following guidelines deal with requests for personal

records. Ordinarily, when personal identifiers are provided only in

connection with a request for records concerning the requester, only

records in a Privacy Act system of records, retrievable by personal

identifiers need be searched. However, if a DoD Component has reason to

believe that records on the requester may exist in a record system

other than a Privacy Act system, the DoD Component shall search that

system under the provisions of the FOIA. In either case, DoD Components

may request a reasonable description of the records desired before

searching for such records under the provisions of the FOIA and the

Privacy Act (5 U.S.C. 552a). If the record is releasable under the

FOIA, the Privacy Act does not bar its disclosure. See paragraph (m) of

this section for the relationship between the FOIA and the Privacy Act.

(5) The previous guidelines notwithstanding, the decision of the

DoD Component concerning reasonableness of description must be based on

knowledge of its files. If the description enables DoD Component

personnel to locate the record with reasonable effort, the description

is adequate. The fact that a FOIA request is broad or burdensome in its

magnitude does not, in and of itself, entitle a DoD Component to deny

the request on the ground that it does not reasonably describe the

records sought. The key factor is the ability of the DoD Component's

staff to reasonably ascertain and locate which records are being

requested.

(i) Referrals. (1) The DoD FOIA referral policy is based upon the

concept of the originator of a record making a release determination on

its information. If a DoD Component receives a request for records

originated by another DoD Component, it shall contact the DoD Component

to determine if it also received the request, and if not, obtain

concurrence to refer the request. In either situation, the requester

shall be advised of the action taken. While referrals to originators of

information result in obtaining the best possible decision on release

of the information, the policy does not relieve DoD Components from the

responsibility of making a release decision on a record should the

requester object to referral of the request and the record. A request

received by a DoD Component having no records responsive to a request

shall be referred routinely to another DoD Component, if the other DoD

Component confirms that it has the requested record, and this belief

can be confirmed by the other DoD Component. Prior to notifying a

requester of a referral to another DoD Component, the DoD Component

receiving the initial request shall consult with the other DoD

Component to determine if that DoD Component's association with the

material is classified. If the association is classified, the DoD

Component receiving the initial request will protect the association

and any exempt information without revealing the identity of the

protected DoD Component. The protected DoD Component shall be

responsible for submitting the justifications required in any

litigation. Any DoD Component receiving a request that has been

misaddressed shall refer the request to the proper address and advise

the requester. DoD Components making referrals of requests or records

shall include with the referral, a point of contact by name, a

telephone number, and an e-mail address.

(2) Whenever a record or a portion of a record is, after prior

consultation, referred to another DoD Component or to a Government

agency outside of the Department of Defense for a release determination

and direct response, the requester shall be informed of the referral.

Referred records shall only be identified to the extent consistent with

security requirements.

(3) A DoD Component shall refer for response directly to the

requester, a FOIA request for a classified record that it holds to

another DoD Component or agency outside the Department of Defense, if

the record originated in the other DoD Component or outside agency or

if the classification is derivative. In this situation, provide the

record and a release recommendation on the record with the referral

action.

(4) A DoD Component may refer a request for a record that it

originated to

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another DoD Component or agency when the other DoD Component or agency

has a valid interest in the record, or the record was created for the

use of the other DoD Component or agency. In such situations, provide

the record and a release recommendation on the record with the referral

action. An example of such a situation is a request for audit reports

prepared by the Defense Contract Audit Agency. These advisory reports

are prepared for the use of contracting officers and their release to

the audited contractor shall be at the discretion of the contracting

officer. Any FOIA request shall be referred to the appropriate DoD

Component and the requester shall be notified of the referral. Another

example is a record originated by a DoD Component or agency which

involves foreign relations, and could affect a DoD Component or

organization in a host foreign country. Such a request and any

responsive records, may be referred to the affected DoD Component or

organization and the Department of State for consultation prior to a

final release determination within DoD. See also Sec. 286.22(e).

(5) Within DoD, a DoD Component shall ordinarily refer a FOIA

request and a copy of the record it holds, but that was originated by

another DoD Component or that contains substantial information obtained

from another DoD Component, to that Component for direct response,

after direct coordination and obtaining concurrence from the Component.

The requester then shall be notified of such referral. DoD Components

shall not, in any case, release or deny such records without prior

consultation with the other DoD Component, except as provided in

Sec. 286.22(e).

(6) DoD Components that receive referred requests shall answer them

in accordance with the time limits established by the FOIA, this part,

and their multitrack processing queues, based upon the date of initial

receipt of the request at the referring component or agency.

(7) Agencies outside the Department of Defense that are subject to

the FOIA.

(i) A DoD Component may refer a FOIA request for any record that

originated in an agency outside the DoD or that is based on information

obtained from an outside agency to the agency for direct response to

the requester after coordination with the outside agency, if that

agency is subject to FOIA. Otherwise, the DoD Component must respond to

the request.

(ii) A DoD Component shall refer to the agency that provided the

record any FOIA request for investigative, intelligence, or any other

type of records that are on loan to the Department of Defense for a

specific purpose, if the records are restricted from further release

and so marked. However, if for investigative or intelligence purposes,

the outside agency desires anonymity, a DoD Component may only respond

directly to the requester after coordination with the outside agency.

(8) DOD Components which receive requests for records of the

National Security Council (NSC), the White House, or the White House

Military Office (WHMO) shall process the requests. DoD records in which

the NSC or White House has a concurrent reviewing interest, and NSC,

White House, or WHMO records discovered in DoD Components' files shall

be forwarded to the Office of the Assistant Secretary of Defense

(Public Affairs)(OASD(PA)), ATTN: Directorate for Freedom of

Information and Security Review (DFOISR). The DFOISR shall coordinate

with the NSC, White House, or WHMO and return the records to the

originating agency after coordination.

(9) To the extent referrals are consistent with the policies

expressed by this paragraph, referrals between offices of the same DoD

Component are authorized.

(10) On occasion, the Department of Defense receives FOIA requests

for General Accounting Office (GAO) records containing DoD information.

Even though the GAO is outside the Executive Branch, and not subject to

the FOIA, all FOIA requests for GAO documents containing DoD

information received either from the public, or on referral from the

GAO, will be processed under the provisions of the FOIA.

(j) Authentication. Records provided under this part shall be

authenticated with an appropriate seal, whenever necessary, to fulfill

an official Government or other legal function. This service, however,

is in addition to that required under the FOIA and is not included in

the FOIA fee schedule. DoD Components may charge for the service at a

rate of $5.20 for each authentication.

(k) Unified Combatant Commands. The Unified Combatant Commands are

placed under the jurisdiction of the OSD, instead of the administering

Military Department or the Joint Staff, only for the purpose of

administering the DoD FOIA Program. This policy represents an exception

to the policies directed in DoD Directive 5100.3; 2 it authorizes

and requires the Unified Combatant Commands to process Freedom of

Information Act (FOIA) requests in accordance with DoD Directive 5400.7

and this part. The Unified Combatant Commands shall forward directly to

the OASD(PA), all correspondence associated with the appeal of an

initial denial for records under the provisions of the FOIA. Procedures

to effect this administrative requirement are outlined in appendix A to

this part.

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\2\ See footnote 1 to Sec. 286.1(a).

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(l) Records management. FOIA records shall be maintained and

disposed of in accordance with the National Archives and Records

Administration General Records Schedule, and DoD Component records

schedules.

(m) Relationship between the FOIA and the Privacy Act (PA). Not all

requesters are knowledgeable of the appropriate statutory authority to

cite when requesting records. In some instances, they may cite neither

Act, but will imply one or both Acts. For these reasons, the following

guidelines are provided to ensure that requesters receive the greatest

amount of access rights under both Acts:

(1) If the record is releasable under the FOIA, the Privacy Act

does not bar its disclosure. Unlike the FOIA, the Privacy Act applies

only to U.S. citizens and aliens admitted for permanent residence.

(2) Requesters who seek records about themselves contained in a PA

system of records and who cite or imply the PA, will have their

requests processed under the provisions of both the PA and the FOIA. If

the PA system of records is exempt from the provisions of 5 U.S.C.

552a(d)(1), the requester shall be so advised with the appropriate PA

exemption, and then further advised that the information was therefore

reviewed for release under the FOIA.

(3) Requesters who seek records about themselves which are not

contained in a PA system of records and who cite or imply the PA, will

have their requests processed under the provisions of the FOIA, since

the PA does not apply to these records..

(4) Requesters who seek records about themselves which are

contained in a PA system of records and who cite or imply the FOIA or

both Acts will have their requests processed under the provisions of

both the PA and the FOIA. If the PA system of records is exempt from

the provisions of 5 U.S.C. 552a(d)(1) the requester shall be so advised

with the appropriate PA exemption, and then further advised that the

information was therefore reviewed for release under the FOIA.

(5) Requesters who seek access to agency records that are not part

of a PA system of records, and who cite or imply the PA and FOIA, will

have their

[[Page 7404]]

requests processed under the FOIA since the PA does not apply to these

records.

(6) Requesters who seek access to agency records and who cite or

imply the FOIA, will have their requests processed under the FOIA.

(7) Requesters shall be advised in final responses why their

request was processed under a particular Act.

(n) Non-responsive information in responsive records. DoD

components shall interpret FOIA requests liberally when determining

which records are responsive to the requests. DoD Components shall

respond to FOIA requests which involve non-responsive information

within a responsive record in the following manner:

(1) Negotiate with the requester, and ask if the requester views

the information as responsive, and if not, seek the requester's

concurrence to deletion of non-responsive information without a FOIA

exemption. Reflect this concurrence in the response letter.

(2) Should negotiation fail, if the responsive record is

unclassified, release all non-responsive and responsive information.

For non-responsive information that is exempt, notify the requester

that even if the information were determined responsive, it would

likely be exempt under (state appropriate exemption (s)). Advise the

requester of the right to request this information under a separate

FOIA request. The separate request shall be placed in the same location

within the processing queue as the original request.

(3) Should negotiation fail, if the responsive record is

classified, release all unclassified responsive and non-responsive

information which is not otherwise exempt. If the non-responsive

information is exempt, follow the procedures in (m) (2) of this

section. The classified, non-responsive information need not be

reviewed for declassification at this point. Advise the requester that

even if the classified information were determined responsive, it would

likely be exempt under 5 U.S.C. 552 (b)(1), and other exemptions if

appropriate. Advise the requester of the right to request this

information under a separate FOIA request. The separate request shall

be placed in the same location within the processing queue as the

original request.

Subpart B--FOIA Reading Rooms

Sec. 286.7 Requirements.

(a) Reading room. (1) Implementation of 5 U.S.C. 552 (a)(1) and

(a)(2) within the Office of the Secretary of Defense is a records

management responsibility within Washington Headquarters Services,

Directives and Records Division. Each DoD Component shall provide an

appropriate facility or facilities where the public may inspect and

copy or have copied the materials described in paragraph (b) of this

section. In addition to the materials described in paragraph (b) of

this section, DoD Components may elect to place other records in their

reading room, and also make them electronically available to the

public. DoD Components may share reading room facilities if the public

is not unduly inconvenienced. When appropriate, the cost of copying may

be imposed on the person requesting the material in accordance with the

provisions of subpart F of this part.

(2) The FOIA requires that copies of all records, regardless of

form or format, which have been released pursuant to a FOIA request

under 5 U.S.C. 552 (a)(3), and which because of the nature of the

subject matter, have become or are likely to become the subject of

subsequent requests for substantially the same records be made publicly

available.

(i) DoD Components shall decide on a case by case basis whether

records fall into this category, based on the following factors:

(A) Previous experience of the DoD Component with similar records.

(B) Particular circumstances of the records involved, including

their nature and the type of information contained in them.

(C) The identity and number of requesters and whether there is

widespread press, historic, or commercial interest in the records.

(ii) This provision is intended for situations where public access

in a timely manner is important, and it is not intended to apply where

there may be a limited number of requests over a short period of time

from a few requesters. DoD Components may remove the records from this

access medium when the appropriate officials determine that access is

no longer necessary.

(b) Material availability. The FOIA requires that ``(a) (2)''

materials shall be made available in the FOIA reading room for

inspection and copying, unless such materials are published and copies

are offered for sale. Identifying details that, if revealed, would

create a clearly unwarranted invasion of personal privacy may be

deleted from ``(a) (2)'' materials made available for inspection and

copying. In every case, justification for the deletion must be fully

explained in writing, and the extent of such deletion shall be

indicated on the record which is made publicly available, unless such

indication would harm an interest protected by an exemption under which

the deletion was made. If technically feasible, the extent of the

deletion in electronic records or any other form of record shall be

indicated at the place in the record where the deletion was made.

However, a DoD Component may publish in the Federal Register a

description of the basis upon which it will delete identifying details

of particular types of documents to avoid clearly unwarranted invasions

of privacy. In appropriate cases, the DoD Component may refer to this

description rather than write a separate justification for each

deletion. For ``(a)(2)'' records created after November 1, 1996, such

records shall be made available to the public in hard copy and by

computer telecommunications or by other electronic means by November 1,

1997. `` (a) (2)'' materials are:

(1) Final opinions, including concurring and dissenting opinions,

and orders made in the adjudication of cases, as defined in 5 U.S.C.

551, that may be cited, used, or relied upon as precedents in future

adjudications.

(2) Statements of policy and interpretations that have been adopted

by the agency and are not published in the Federal Register.

(3) Administrative staff manuals and instructions, or portions

thereof, that establish DoD policy or interpretations of policy that

affect a member of the public. This provision does not apply to

instructions for employees on tactics and techniques to be used in

performing their duties, or to instructions relating only to the

internal management of the DoD Component. Examples of manuals and

instructions not normally made available are:

(i) Those issued for audit, investigation, and inspection purposes,

or those that prescribe operational tactics, standards of performance,

or criteria for defense, prosecution, or settlement of cases.

(ii) Operations and maintenance manuals and technical information

concerning munitions, equipment, systems, and foreign intelligence

operations.

Sec. 286.8 Indexes.

(a) ``(a) (2)'' materials. (1) Each DoD Component shall maintain in

each facility prescribed in Sec. 286.7 (a), an index of materials

described in Sec. 286.7 (b), that are issued, adopted, or promulgated,

after July 4, 1967. No ``(a) (2)'' materials issued, promulgated, or

adopted after July 4, 1967, that are not indexed and either made

available or published may be relied upon, used or

[[Page 7405]]

cited as precedent against any individual unless such individual has

actual and timely notice of the contents of such materials. Such

materials issued, promulgated, or adopted before July 4, 1967, need not

be indexed, but must be made available upon request if not exempted

under this part.

(2) Each DoD Component shall promptly publish quarterly or more

frequently, and distribute, by sale or otherwise, copies of each index

of ``(a) (2)'' materials or supplements thereto unless it publishes in

the Federal Register an order containing a determination that

publication is unnecessary and impracticable. A copy of each index or

supplement not published shall be provided to a requester at a cost not

to exceed the direct cost of duplication as set forth in subpart F of

this part.

(3) Each index of ``(a)(2)'' materials or supplement thereto shall

be arranged topically or by descriptive words rather than by case name

or numbering system so that members of the public can readily locate

material. Case name and numbering arrangements, however, may also be

included for DoD Component convenience.

(4) A general index of records referred to in Sec. 286.7(b)(4)

shall be made available to the public, both in hard copy and

electronically by December 31, 1999.

(b) Other materials. (1) Any available index of DoD Component

material published in the Federal Register, such as material required

to be published by section 552(a)(1) of the FOIA, shall be made

available in DoD Component FOIA reading rooms, and electronically to

the public.

(2) Although not required to be made available in response to FOIA

requests or made available in FOIA reading rooms, ``(a)(1)'' materials

shall, when feasible, be made available to the public in FOIA reading

rooms for inspection and copying, and by electronic means. Examples of

``(a)(1)'' materials 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, instruction as to the

scope and contents of papers, reports, or examinations, and any

amendment, revision, or report of the aforementioned.

Subpart C--Exemptions

Sec. 286.11 General provisions.

Records that meet the exemption criteria of the FOIA may be

withheld from public disclosure and need not be published in the

Federal Register, made available in a library reading room, or provided

in response to an FOIA request.

Sec. 286.12 Exemptions.

The following types of records may be withheld in whole or in part

from public disclosure under the FOIA, unless otherwise prescribed by

law. A discretionary release (see also Sec. 286.4(e)) to one requester

may preclude the withholding of the same record under a FOIA exemption

if the record is subsequently requested by someone else. In applying

exemptions, the identity of the requester and the purpose for which the

record is sought are irrelevant with the exception that an exemption

may not be invoked where the particular interest to be protected is the

requester's interest.

(a) Number 1 (5 U.S.C. 552(b)(1)). Those properly and currently

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

specifically authorized under the criteria established by executive

order and implemented by regulations, such as DoD 5200.1-R 3.

Although material is not classified at the time of the FOIA request, a

classification review may be undertaken to determine whether the

information should be classified. The procedures in DoD 5200.1-R apply.

If the information qualifies as exemption 1 information, there is no

discretion regarding its release. In addition, this exemption shall be

invoked when the following situations are apparent:

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\3\ See footnote 1 to Sec. 286.1 (a).

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(1) The fact of the existence or nonexistence of a record would

itself reveal classified information. In this situation, Components

shall neither confirm nor deny the existence or nonexistence of the

record being requested. A ``refusal to confirm or deny'' response must

be used 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 itself disclose national security

information.

(2) Compilations of items of information which are individually

unclassified may be classified if the compiled information reveals

additional association or relationship that meets the standard for

classification under an existing executive order for classification and

DoD 5200.1-R, and is not otherwise revealed in the individual items of

information.

(b) Number 2 (5 U.S.C. 552(b)(2)). Those related solely to the

internal personnel rules and practices of DoD or any of its Components.

This exemption is entirely discretionary. This exemption has two

profiles, high b2 and low b2. Paragraph (b)(2) of this section,

contains a brief discussion on the low b2 profile; however, that

discussion is for information purposes only. When only a minimum

government interest would be affected (administrative burden), there is

a great potential for discretionary disclosure of the information.

Consequently, DoD Components shall not invoke the low b2 profile.

(1) Records qualifying under high b2 are those containing or

constituting statutes, rules, regulations, orders, manuals, directives,

and instructions the release of which would allow circumvention of

these records thereby substantially hindering the effective performance

of a significant function of the DoD. Examples include:

(i) Those operating rules, guidelines, and manuals for DoD

investigators, inspectors, auditors, or examiners that must remain

privileged in order for the DoD Component to fulfill a legal

requirement.

(ii) Personnel and other administrative matters, such as

examination questions and answers used in training courses or in the

determination of the qualifications of candidates for employment,

entrance on duty, advancement, or promotion.

(iii) Computer software, the release of which would allow

circumvention of a statute or DoD rules, regulations, orders, manuals,

directives, or instructions. In this situation, the use of the software

must be closely examined to ensure a circumvention possibility exists.

(2) Records qualifying under the low b2 profile are those that are

trivial and housekeeping in nature for which there is no legitimate

public interest or benefit to be gained by release, and it would

constitute an administrative burden to process the request in order to

disclose the records. Examples include; rules of personnel's use of

parking facilities or regulation of lunch hours, statements of policy

as to sick leave, and trivial administrative data such as file numbers,

mail routing stamps, initials, data processing notations, brief

references to previous communications, and other like administrative

markings. DoD Components shall not invoke the low b2 profile.

(c) Number 3 (5 U.S.C. 552(b)(3)). Those concerning matters that a

statute specifically exempts from disclosure by terms that permit no

discretion on the issue, or in accordance with criteria established by

that statute for withholding or referring to particular types of

matters to be withheld. The

[[Page 7406]]

Directorate for Freedom of Information and Security Review, Office of

the Assistant Secretary of Defense for Public Affairs maintains a list

of ``(b)(3)'' statutes used within DoD, and provides updated lists of

these statutes to DoD Components on a periodic basis. A few examples of

such statutes are:

(1) Patent Secrecy, 35 U.S.C. 181-188. Any records containing

information relating to inventions that are the subject of patent

applications on which Patent Secrecy Orders have been issued.

(2) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162.

(3) Communication Intelligence, 18 U.S.C. 798.

(4) Authority to withhold from public disclosure certain technical

data, 10 U.S.C. 130 and DoD Directive 5230.25. 4

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\4\ See footnote 1 to Sec. 286.1 (a).

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(5) Confidentiality of medical quality assurance records: Qualified

Immunity for Participants, 10 U.S.C. 1102 f.

(6) Physical protection of special nuclear material: Limitation on

Dissemination of Unclassified Information, 10 U.S.C. 128.

(7) Protection of intelligence sources and methods, 50 U.S.C. 403-

3(c)(5).

(8) Protection of Contractor Submitted Proposals, 10 U.S.C.

2305(g).

(9) Procurement Integrity, 41 U.S.C. 423.

(d) Number 4 (5 U.S.C. 552 (b)(4)). Those containing trade secrets

or commercial or financial information that a DoD Component receives

from a person or organization outside the Government with the

understanding that the information or record will be retained on a

privileged or confidential basis in accordance with the customary

handling of such records. Records within the exemption must contain

trade secrets, or commercial or financial records, the disclosure of

which is likely to cause substantial harm to the competitive position

of the source providing the information; impair the Government's

ability to obtain necessary information in the future; or impair some

other legitimate government interest. If the information qualifies as

exemption 4 information, there is no discretion in its release.

Examples include:

(1) Commercial or financial information received in confidence in

connection with loans, bids, contracts, or proposals set forth in or

incorporated by reference in a contract entered into between the DoD

Component and the offeror that submitted the proposal, as well as other

information received in confidence or privileged, such as trade

secrets, inventions, discoveries, or other proprietary data. See also

Sec. 286.23(h)(2). Additionally, when the provisions of 10 U.S.C.

2305(g), and 41 U.S.C. 423 are met, certain proprietary and source

selection information may be withheld under exemption 3.

(2) Statistical data and commercial or financial information

concerning contract performance, income, profits, losses, and

expenditures, if offered and received in confidence from a contractor

or potential contractor.

(3) Personal statements given in the course of inspections,

investigations, or audits, when such statements are received in

confidence from the individual and retained in confidence because they

reveal trade secrets or commercial or financial information normally

considered confidential or privileged.

(4) Financial data provided in confidence 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.

(5) 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.

(6) Technical or scientific data developed by a contractor or

subcontractor exclusively at private expense, and technical or

scientific data developed in part with Federal funds and in part at

private expense, wherein the contractor or subcontractor has retained

legitimate proprietary interests in such data in accordance with 10

U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement

(DFARS), Chapter 2 of 48 CFR, part 227, subpart 227.71-227.72.

Technical data developed exclusively with Federal funds may be withheld

under Exemption Number 3 if it meets the criteria of 10 U.S.C. 130 and

DoD Directive 5230.25 (see Sec. 286.12(b)(3)(v)).

(7) Computer software which is copyrighted under the Copyright Act

of 1976 (17 U.S.C. 106), the disclosure of which would have an adverse

impact on the potential market value of a copyrighted work.

(8) Proprietary information submitted strictly on a voluntary

basis, absent any exercised authority prescribing criteria for

submission. Examples of exercised authorities prescribing criteria for

submission are statutes, executive orders, regulations, invitations for

bids, requests for proposals, and contracts. Submission of information

under these authorities is not voluntary (see also Sec. 286.23(h)(3)).

(e) Number 5 (5 U.S.C. 552(b)(5)). Those containing information

considered privileged in litigation, primarily under the deliberative

process privilege. Except as provided in paragraphs (e)(2) through

(e)(5) of this section, internal advice, recommendations, and

subjective evaluations, as contrasted with factual matters, that are

reflected in deliberative records pertaining to the decision-making

process of an agency, whether within or among agencies (as defined in 5

U.S.C. 552(e)), or within or among DoD Components. In order to meet the

test of this exemption, the record must be both deliberative in nature,

as well as part of a decision-making process. Merely being an internal

record is insufficient basis for withholding under this exemption. Also

potentially exempted are records pertaining to the attorney-client

privilege and the attorney work-product privilege. This exemption is

entirely discretionary.

(1) Examples of the deliberative process include:

(i) The non factual portions of staff papers, to include after-

action reports, lessons learned, and situation reports containing staff

evaluations, advice, opinions, or suggestions.

(ii) Advice, suggestions, or evaluations prepared on behalf of the

Department of Defense by individual consultants or by boards,

committees, councils, groups, panels, conferences, commissions, task

forces, or other similar groups that are formed for the purpose of

obtaining advice and recommendations.

(iii) Those non factual portions of evaluations by DoD Component

personnel of contractors and their products.

(iv) 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

government functions.

(v) Trade secret or other confidential research development, or

commercial information owned by the Government, where premature release

is likely to affect the Government's negotiating position or other

commercial interest.

(vi) Records that are exchanged among agency personnel and within

and among DoD Components or agencies as part of the preparation for

anticipated administrative proceeding by an agency or litigation before

any Federal, state, or military court, as well as records that qualify

for the attorney-client privilege.

[[Page 7407]]

(vii) Those portions of official reports of inspection, reports of

the Inspector Generals, audits, investigations, or surveys pertaining

to safety, security, or the internal management, administration, or

operation of one or more DoD Components, when these records have

traditionally been treated by the courts as privileged against

disclosure in litigation.

(viii) Planning, programming, and budgetary information which is

involved in the defense planning and resource allocation process.

(2) If any such intra or inter-agency record or reasonably

segregable portion of such record hypothetically would be made

available routinely through the discovery process in the course of

litigation with the agency, then it should not be withheld under the

FOIA. If, however, the information hypothetically would not be released

at all, or would only be made through the discovery process by special

order of the court based on agency maintaining its confidentiality,

then the record may be withheld. Discovery is the formal process by

which litigants obtain information from each other for use in the

litigation. Consult with legal counsel to determine whether exemption 5

material would be routinely made available through the discovery

process.

(3) Intra or inter-agency memoranda or letters that are factual, or

those reasonably segregable portions that are factual, are routinely

made available through discovery, and shall be made available to a

requester, unless the factual material is otherwise exempt from

release, inextricably intertwined with the exempt information, so

fragmented as to be uninformative, or so redundant of information

already available to the requester as to provide no new substantive

information.

(4) A direction or order from a superior to a subordinate, though

contained in an internal communication, generally cannot be withheld

from a requester if it constitutes policy guidance or a decision, as

distinguished from a discussion of preliminary matters or a request for

information or advice that would compromise the decision-making

process.

(5) An internal communication concerning a decision that

subsequently has been made a matter of public record must be made

available to a requester when the rationale for the decision is

expressly adopted or incorporated by reference in the record containing

the decision.

(f) Number 6 (5 U.S.C. 552 (b)(6)). Information in personnel and

medical files, as well as similar personal information in other files,

that, if disclosed to the requester would result in a clearly

unwarranted invasion of personal privacy. Release of information about

an individual contained in a Privacy Act System of records that would

constitute a clearly unwarranted invasion of privacy is prohibited, and

could subject the releaser to civil and criminal penalties. If the

information qualifies as exemption 6 information, there is no

discretion in its release.

(1) Examples of other files containing personal information similar

to that contained in personnel and medical files include:

(i) Those compiled to evaluate or adjudicate the suitability of

candidates for civilian employment or membership in the Armed Forces,

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 in which administrative action,

including disciplinary action, may be taken.

(2) Home addresses are normally not releasable without the consent

of the individuals concerned. In addition, DoD military and civilian

personnel's names and duty addresses who are assigned to units that are

sensitive, routinely deployable, or stationed in foreign territories

can constitute a clearly unwarranted invasion of personal privacy.

(i) Privacy interest. A privacy interest may exist in personal

information even though the information has been disclosed at some

place and time. If personal information is not freely available from

sources other than the Federal Government, a privacy interest exists in

its nondisclosure. The fact that the Federal Government expended funds

to prepare, index and maintain records on personal information, and the

fact that a requester invokes FOIA to obtain these records indicates

the information is not freely available.

(ii) Names and duty addresses published in telephone directories,

organizational charts, rosters and similar materials for personnel

assigned to units that are sensitive, routinely deployable, or

stationed in foreign territories are withholdable under this exemption.

(iii) This exemption shall not be used in an attempt to protect the

privacy of a deceased person, but it may be used to protect the privacy

of the deceased person's family if disclosure would rekindle grief,

anguish, pain, embarrassment, or even disruption of peace of mind of

surviving family members. In such situations, balance the surviving

family members' privacy against the public's right to know to determine

if disclosure is in the public interest. Additionally, the deceased's

social security number should be withheld as it used by the next of kin

to receive benefits. Disclosures may be made to the immediate next of

kin as defined in DoD Directive 5154.24.5

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\5\ See footnote 1 to Sec. 286.1 (a).

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(4) Individuals' personnel, medical, or similar file may be

withheld from them or their designated legal representative only to the

extent consistent with DoD Directive 5400.11.6

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\6\ See footnote 1 to Sec. 286.1 (a).

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(5) A clearly unwarranted invasion of the privacy of the persons

identified in a personnel, medical or similar record may constitute a

basis for deleting those reasonably segregable portions of that record,

even when providing it to the subject of the record. When withholding

personal information from the subject of the record, first review the

Privacy Act and then consult with legal counsel.

(6) This exemption also applies when the fact of the existence or

nonexistence of a responsive record would itself reveal personally

private information, and the public interest in disclosure is not

sufficient to outweigh the privacy interest. In this situation, DoD

Components shall neither confirm nor deny the existence or nonexistence

of the record being requested. This is a Glomar response, and exemption

6 must be cited in the response. Additionally, in order to insure

personal privacy is not violated during referrals, DoD Components shall

coordinate with other DoD Components or Federal agencies before

referring a record which is exempt under the Glomar concept.

(i) A ``refusal to confirm or deny'' response must be used

consistently, not only when a record exists, but also when a record

does not exist. Otherwise, the pattern of using a ``no records''

response when a record does not exist and a ``refusal to confirm or

deny'' when a record does exist will itself disclose personally private

information.

(ii) Refusal to confirm or deny should not be used when:

(A) The person whose personal privacy is in jeopardy has provided

the requester a waiver of his or her privacy rights; or

(B) The person whose personal privacy is in jeopardy is deceased,

the agency is aware of that fact, and disclosure would not invade the

privacy of the deceased's family. See paragraph (f) (3) of this

section.

[[Page 7408]]

(g) Number 7 (5 U.S.C. 552 (b)(7)). Records or information compiled

for law enforcement purposes; i.e., civil, criminal, or military law,

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. With the exception of parts (C) and (F) of this

exemption, this exemption is discretionary. If information qualifies as

exemption (7)(C) or (7)(F) information, there is no discretion in its

release. This exemption applies, however, only to the extent that

production of such law enforcement records or information could result

in the following:

(1) Could reasonably be expected to interfere with enforcement

proceedings.

(2) Would deprive a person of the right to a fair trial or to an

impartial adjudication.

(3) Could reasonably be expected to constitute an unwarranted

invasion of personal privacy of a living person, including surviving

family members of an individual identified in such a record.

(i) This exemption also applies when the fact of the existence or

nonexistence of a responsive record would itself reveal personally

private information, and the public interest in disclosure is not

sufficient to outweigh the privacy interest. In this situation,

Components shall neither confirm nor deny the existence or nonexistence

of the record being requested. This is a Glomar response, and exemption

7C must be cited in the response. Additionally, in order to insure

personal privacy is not violated during referrals, DoD Components shall

coordinate with other DoD Components or Federal agencies before

referring a record which is exempt under the Glomar concept.

(ii) A ``refusal to confirm or deny'' response must be used

consistently, not only when a record exists, but also when a record

does not exist. Otherwise, the pattern of using a ``no records''

response when a record does not exist and a ``refusal to confirm or

deny'' when a record does exist will itself disclose personally private

information.

(iii) Refusal to confirm or deny should not be used when:

(A) The person whose personal privacy is in jeopardy has provided

the requester with a waiver of his or her privacy rights; or

(B) The person whose personal privacy is in jeopardy is deceased,

and the agency is aware of that fact.

(iv) 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 which furnishes the information on a confidential basis.

(v) 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.

(vi) 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.

(vii) Could reasonably be expected to endanger the life or physical

safety of any individual.

(4) Examples include:

(i) Statements of witnesses and other material developed during the

course of the investigation and all materials prepared in connection

with related government litigation or adjudicative proceedings.

(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.

(iii) Information obtained in confidence, expressed or implied, in

the course of a criminal investigation by a criminal law enforcement

agency or office within a DoD Component, or a lawful national security

intelligence investigation conducted by an authorized agency or office

within a DoD Component. National security intelligence investigations

include background security investigations and those investigations

conducted for the purpose of obtaining affirmative or

counterintelligence information.

(5) The right of individual litigants to investigative records

currently available by law (such as, the Jencks Act, 18 U.S.C. 3500) is

not diminished.

(6) When the subject of an investigative report is the requester of

the record and the report is contained in a Privacy Act system of

records, it may only be denied to the requester if withholding is both

authorized by DoD 5400.11-R 7, and by exemption seven of the FOIA.

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\7\ See footnote 1 to Sec. 286.1 (a).

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(7) Exclusions. Excluded from the previously identified exemption,

are the below two situations applicable to the Department of Defense.

Components considering invoking an exclusion should first consult with

the Department of Justice, Office of Information and Privacy.

(i) Whenever a request is made which involves access to records or

information compiled for law enforcement purposes, and the

investigation or proceeding involves a possible violation of criminal

law where there is reason to believe that the subject of the

investigation or proceeding is unaware of its pendency, and the

disclosure of the existence of the records could reasonably be expected

to interfere with enforcement proceedings, Components may, during only

such times as that circumstance continues, treat the records or

information as not subject to the FOIA. In such situation, the response

to the requester will state that no records were found.

(ii) Whenever informant records maintained by a criminal law

enforcement organization within a DoD Component under the informant's

name or personal identifier are requested by a third party using the

informant's name or personal identifier, the Component may treat the

records as not subject to the FOIA, unless the informant's status as an

informant has been officially confirmed. If it is determined that the

records are not subject to exemption 7, the response to the requester

will state that no records were found.

(h) Number 8 (5 U.S.C. 552 (b)(8)). Those contained 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.

(i) Number 9 (5 U.S.C. 552 (b)(9)). Those containing geological and

geophysical information and data (including maps) concerning wells.

Subpart D--For Official Use Only

Sec. 286.15 General provisions.

(a) General. Information that has not been given a security

classification pursuant to the criteria of an Executive Order, but

which may be withheld from the public for one or more of the reasons

cited in FOIA exemptions 2 through 9 shall be considered as being for

official use only. No other material shall be considered or marked

``For Official Use Only'' (FOUO) and FOUO is not authorized as an

anemic form of classification to protect national security interests.

(b) Prior FOUO application. The prior application of FOUO markings

is not a conclusive basis for withholding a record that is requested

under the FOIA. When such a record is requested, the information in it

shall be evaluated to

[[Page 7409]]

determine whether, under current circumstances, FOIA exemptions apply

in withholding the record or portions of it. If any exemptions apply,

it may nonetheless be released when it is determined that no

governmental interest will be jeopardized by its release.

(c) Historical papers. Records such as notes, working papers, and

drafts retained as historical evidence of DoD Component actions enjoy

no special status apart from the exemptions under the FOIA.

(d) Time to mark records. The marking of records at the time of

their creation provides notice of FOUO content and facilitates review

when a record is requested under the FOIA. Records requested under the

FOIA that do not bear such markings, shall not be assumed to be

releasable without examination for the presence of information that

requires continued protection and qualifies as exempt from public

release.

(e) Distribution statement. Information in a technical document

that requires a distribution statement pursuant to DoD Directive

5230.24 8 shall bear that statement and may be marked FOUO, as

appropriate.

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\8\ See footnote 1 to Sec. 286.1 (a).

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Sec. 286.16 Markings.

(a) An unclassified document containing FOUO information shall be

marked ``For Official Use Only'' at the bottom on the outside of the

front cover (if any), on each page containing FOUO information, and on

the outside of the back cover (if any).

(b) Within a classified document, an individual page that contains

both FOUO and classified information shall be marked at the top and

bottom with the highest security classification of information

appearing on the page. Individual paragraphs shall be marked at the

appropriate classification level, as well as unclassified or FOUO, as

appropriate.

(c) Within a classified document, an individual page that contains

FOUO information but no classified information shall be marked ``For

Official Use Only'' at the bottom of the page.

(d) Other records, such as, photographs, films, tapes, or slides,

shall be marked ``For Official Use Only'' or ``FOUO'' in a manner that

ensures that a recipient or viewer is aware of the status of the

information therein.

(e) FOUO material transmitted outside the Department of Defense

requires application of an expanded marking to explain the significance

of the FOUO marking. This may be accomplished by typing or stamping the

following statement on the record prior to transfer:

This document contains information EXEMPT FROM MANDATORY DISCLOSURE

under the FOIA. Exemptions, apply.

Sec. 286.17 Dissemination and transmission.

(a) Release and transmission procedures. Until FOUO status is

terminated, the release and transmission instructions that follow

apply:

(1) FOUO information may be disseminated within DoD Components and

between officials of DoD Components and DoD contractors, consultants,

and grantees to conduct official business for the Department of

Defense. Recipients shall be made aware of the status of such

information, and transmission shall be by means that preclude

unauthorized public disclosure. Transmittal documents shall call

attention to the presence of FOUO attachments.

(2) DoD holders of FOUO information are authorized to convey such

information to officials in other departments and agencies of the

executive and judicial branches to fulfill a government function,

except to the extent prohibited by the Privacy Act. Records thus

transmitted shall be marked ``For Official Use Only'', and the

recipient shall be advised that the information has been exempted from

public disclosure, pursuant to the FOIA, and that special handling

instructions do or do not apply.

(3) Release of FOUO information to Members of Congress is governed

by DoD Directive 5400.4 9. Release to the GAO is governed by DoD

Directive 7650.1 10. Records released to the Congress or GAO

should be reviewed to determine whether the information warrants FOUO

status. If not, prior FOUO markings shall be removed or effaced. If

withholding criteria are met, the records shall be marked FOUO and the

recipient provided an explanation for such exemption and marking.

Alternatively, the recipient may be requested, without marking the

record, to protect against its public disclosure for reasons that are

explained.

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\9\ See footnote 1 to Sec. 286.1 (a).

\10\ See footnote 1 to Sec. 286.1 (a).

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(b) Transporting FOUO information. Records containing FOUO

information shall be transported in a manner that precludes disclosure

of the contents. When not commingled with classified information, FOUO

information may be sent via first-class mail or parcel post. Bulky

shipments, such as distributions of FOUO Directives or testing

materials, that otherwise qualify under postal regulations may be sent

by fourth-class mail.

(c) Electronically and facsimile transmitted messages. Each part of

electrically and facsimile transmitted messages containing FOUO

information shall be marked appropriately. Unclassified messages

containing FOUO information shall contain the abbreviation ``FOUO''

before the beginning of the text. Such messages and facsimiles shall be

transmitted in accordance with communications security procedures in

Allied Communications Publication (ACP-121 11) for FOUO

information.

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\11\ Not for general public distribution. Available to Military

Components only. Components contact MCEB.

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Sec. 286.18 Safeguarding FOUO information.

(a) During duty hours. During normal working hours, records

determined to be FOUO shall be placed in an out-of-sight location if

the work area is accessible to non-government personnel.

(b) During nonduty hours. At the close of business, FOUO records

shall be stored so as to preclude unauthorized access. Filing such

material with other unclassified records in unlocked files or desks,

etc., is adequate when normal U.S. Government or government-contractor

internal building security is provided during nonduty hours. When such

internal security control is not exercised, locked buildings or rooms

normally provide adequate after-hours protection. If such protection is

not considered adequate, FOUO material shall be stored in locked

receptacles such as file cabinets, desks, or bookcases. FOUO records

that are subject to the provisions of 50 U.S.C. 402 note shall meet the

safeguards outlined for that group of records.

Sec. 286.19 Termination, disposal and unauthorized disclosure.

(a) Termination. The originator or other competent authority, e.g.,

initial denial and appellate authorities, shall terminate ``For

Official Use Only'' markings or status when circumstances indicate that

the information no longer requires protection from public disclosure.

When FOUO status is terminated, all known holders shall be notified, to

the extent practical. Upon notification, holders shall efface or remove

the ``For Official Use Only'' markings, but records in file or storage

need not be retrieved solely for that purpose.

(b) Disposal. (1) Nonrecord copies of FOUO materials may be

destroyed by tearing each copy into pieces to preclude reconstructing,

and placing

[[Page 7410]]

them in regular trash containers. When local circumstances or

experience indicates that this destruction method is not sufficiently

protective of FOUO information, local authorities may direct other

methods but must give due consideration to the additional expense

balanced against the degree of sensitivity of the type of FOUO

information contained in the records.

(2) Record copies of FOUO documents shall be disposed of in

accordance with the disposal standards established under 44 U.S.C.

Chapter 33, as implemented by DoD Component instructions concerning

records disposal.

(c) Unauthorized disclosure. The unauthorized disclosure of FOUO

records does not constitute an unauthorized disclosure of DoD

information classified for security purposes. Appropriate

administrative action shall be taken, however, to fix responsibility

for unauthorized disclosure whenever feasible, and appropriate

disciplinary action shall be taken against those responsible.

Unauthorized disclosure of FOUO information that is protected by the

Privacy Act may also result in civil and criminal sanctions against

responsible persons. The DoD Component that originated the FOUO

information shall be informed of its unauthorized disclosure.

Subpart E--Release and Processing Procedures

Sec. 286.22 General provisions.

(a) Public information. (1) Since the policy of the Department of

Defense is to make the maximum amount of information available to the

public consistent with its other responsibilities, written requests for

a DoD record made under the provisions of 5 U.S.C. 552 (a)(3) of the

FOIA may be denied only when:

(i) The record is subject to one or more of the exemptions of the

FOIA.

(ii) The record has not been described well enough to enable the

DoD Component to locate it with a reasonable amount of effort by an

employee familiar with the files.

(iii) The requester has failed to comply with the procedural

requirements, including the written agreement to pay or payment of any

required fee imposed by the instructions of the DoD Component

concerned. When personally identifiable information in a record is

requested by the subject of the record or his attorney, notarization of

the request, or a statement certifying under the penalty of perjury

that their identity is true and correct may be required. Additionally,

written consent of the subject of the record is required for disclosure

from a Privacy Act System of records, even to the subject's attorney.

(2) Individuals seeking DoD information should address their FOIA

requests to one of the addresses listed in Appendix B to this part.

(b) Requests from private parties. The provisions of the FOIA are

reserved for persons with private interests as opposed to U.S. federal

agencies seeking official information. Requests from private persons

will be made in writing, and will clearly show all other addressees

within the Federal Government to whom the request was also sent. This

procedure will reduce processing time requirements, and ensure better

inter and intra-agency coordination. DoD Components are under no

obligation to establish procedures to receive hand delivered requests;

and they should encourage requesters to send requests by mail,

facsimile, or by electronic means. Disclosure of records to individuals

under the FOIA is considered public release of information, except as

provided for in Secs. 286.4(f) and 286.12.

(c) Requests from Government officials. Requests from officials of

State, or local Governments for DoD Component records shall be

considered the same as any other requester. Requests from members of

Congress not seeking records on behalf of a Congressional Committee,

Subcommittee, either House sitting as a whole, or made on behalf of

their constituents shall be considered the same as any other requester

(See also Sec. 286.4 (f) and paragraph (d) of this section). Requests

from officials of foreign governments shall be considered the same as

any other requester. Requests from officials of foreign governments

that do not invoke the FOIA shall be referred to appropriate foreign

disclosure channels and the requester so notified.

(d) Privileged release to U.S. Government officials. (1) Records

exempt from release to the public under the FOIA may be disclosed in

accordance with DoD Component regulations to agencies of the Federal

government, whether legislative, executive, or administrative, as

follows:

(i) In response to a request of a Committee or Subcommittee of

Congress, or to either House sitting as a whole in accordance with DoD

Directive 5400.4;

(ii) To other Federal Agencies, both executive and administrative,

as determined by the head of a DoD Component or designee;

(iii) In response to an order of a Federal court, DoD Components

shall release information along with a description of the restrictions

on its release to the public.

(2) DoD Components shall inform officials receiving records under

the provisions of this paragraph that those records are exempt from

public release under the FOIA. DoD Components also shall advise

officials of any special handling instructions. Classified information

is subject to the provisions of DoD 5200.1-R, and information contained

in Privacy Act systems of records is subject to DoD 5400.11-R.

(e) Coordination with affected DoD component. (1) When a DoD

Component receives a FOIA request for a record in which an affected DoD

organization (including a Unified or Subunified Combatant Command) has

a substantial interest in the subject matter, or the DoD Component

receives a FOIA request from a foreign government, a foreign citizen,

or an individual or entity with a foreign address, the DoD component

receiving the request shall provide the request to the affected DoD

component.

(2) Upon receiving the request, the affected DoD Component shall

review the request for host nation relations, coordinate with

Department of State as appropriate, and if necessary, provide a copy of

the request to the appropriate foreign disclosure office for review.

Upon request by the affected DoD component, the DoD component receiving

the initial request shall provide a copy of releasable records to the

affected DoD component. The affected DoD component may further release

the records to its host nation after coordination with Department of

State if release is in the best interest of the United States

Government. If the record is released to the host nation government,

the affected DoD Component shall notify the DoD Component which

initially received the request of the release to the host nation.

(3) Nothing in the previous paragraphs of this section shall impede

the processing of the FOIA request initially received by a DoD

component.

Sec. 286.23 Initial determinations.

(a) Initial denial authority. (1) Components shall limit the number

of IDAs appointed. In designating its IDAs, a DoD Component shall

balance the goals of centralization of authority to promote uniform

decisions and decentralization to facilitate responding to each request

within the time limitations of the FOIA.

(2) The initial determination whether to make a record available

upon request may be made by any suitable official

[[Page 7411]]

designated by the DoD Component in published regulations. The presence

of the marking ``For Official Use Only'' does not relieve the

designated official of the responsibility to review the requested

record for the purpose of determining whether an exemption under the

FOIA is applicable.

(3) The officials designated by DoD Components to make initial

determinations should consult with public affairs officers (PAOs) to

become familiar with subject matter that is considered to be

newsworthy, and advise PAOs of all requests from news media

representatives. In addition, the officials should inform PAOs in

advance when they intend to withhold or partially withhold a record, if

it appears that the withholding action may be challenged in the media.

(b) Reasons for not releasing a record. There are seven reasons for

not complying with a request for a record under 5 U.S.C. 552(a)(3) of

the FOIA:

(1) The request is transferred to another DoD Component, or to

another federal agency.

(2) The DoD Component determines through knowledge of its files and

reasonable search efforts that it neither controls nor otherwise

possesses the requested record.

(3) A record has not been described with sufficient particularity

to enable the DoD Component to locate it by conducting a reasonable

search.

(4) The requester has failed unreasonably to comply with procedural

requirements, including payment of fees, imposed by this part or DoD

Component supplementing regulations.

(5) The request is withdrawn by the requester.

(6) The information requested is not a record within the meaning of

the FOIA and this part.

(7) The record is denied in whole or in part in accordance with

procedures set forth in the FOIA and this part.

(c) Denial tests. To deny a requested record that is in the

possession and control of a DoD Component, it must be determined that

the record is exempt under one or more of the exemptions of the FOIA.

An outline of the FOIA's exemptions is contained in subpart C of this

part.

(d) Reasonably segregable portions. Although portions of some

records may be denied, the remaining reasonably segregable portions

must be released to the requester when it reasonably can be assumed

that a skillful and knowledgeable person could not reconstruct the

excised information. The amount of deleted information shall be

indicated on the released portion of paper records by use of brackets

or darkened areas indicating removal of information. In no case shall

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 shall be indicated at the

place in the record such deletion was made. This may be done by use of

brackets, shaded areas, or some other identifiable technique which will

clearly show the limits of the deleted information. When a record is

denied in whole, the response advising the requester of that

determination will specifically state that it is not reasonable to

segregate portions of the record for release.

(e) Response to requester. (1) Whenever possible, initial

determinations to release or deny a record normally shall be made and

the decision reported to the requester within 10 working days (20

working days effective October 2, 1997) after receipt of the request by

the official designated to respond. When a DoD Component has a

significant number of requests which preclude a response determination

within the 10 working day period (20 working days effective October 2,

1997), the requester shall be so notified in an interim response, and

advised whether their request qualifies for the fast track or slow

track within the DoD Components'' multitrack processing system.

Requesters who do not meet the criteria for fast track processing shall

be given the opportunity to limit the scope of their request in order

to qualify for fast track processing. See also Sec. 286.4(d) for

greater detail on multitrack processing and compelling need meriting

expedited processing.

(2) When a decision is made to release a record, a copy should be

made available promptly to the requester once he has complied with

preliminary procedural requirements.

(3) When a request for a record is denied in whole or in part, the

official designated to respond shall inform the requester in writing of

the name and title or position of the official who made the

determination, and shall explain to the requester the basis for the

determination in sufficient detail to permit the requester to make a

decision concerning appeal. The requester specifically shall be

informed of the exemptions on which the denial is based, inclusive of a

brief statement describing what the exemption(s) cover. When the

initial denial is based in whole or in part on a security

classification, the explanation should include a summary of the

applicable Executive Order criteria for classification, as well as an

explanation, to the extent reasonably feasible, of how those criteria

apply to the particular record in question. The requester shall also be

advised of the opportunity and procedures for appealing an unfavorable

determination to a higher final authority within the DoD Component.

(4) The final response to the requester should contain information

concerning the fee status of the request, consistent with the

provisions of subpart F, this part.

(5) The explanation of the substantive basis for a denial shall

include specific citation of the statutory exemption applied under

provisions of this part, e.g., 5 U.S.C. 552 (b)(1). Merely referring to

a classification; to a ``For Official Use Only'' marking on the

requested record; or to this part or a DoD component's regulation does

not constitute a proper citation or explanation of the basis for

invoking an exemption.

(6) When the time for response becomes an issue, the official

responsible for replying shall acknowledge to the requester the date of

the receipt of the request.

(7) In denying a request for records, in whole or in part, a DoD

Component shall make a reasonable effort to estimate the volume of the

records denied and provide this estimate to the requester, unless

providing such an estimate would harm an interest protected by an

exemption of the FOIA.

(f) Extension of time. (1) In unusual circumstances, when

additional time is needed to respond to the initial request, the DoD

Component shall acknowledge the request in writing within the 10 day

period (20 days effective October 2, 1997), describe the circumstances

requiring the delay, and indicate the anticipated date for a

substantive response that may not exceed 10 additional working days,

except as provided in the following:

(2) With respect to a request for which a written notice has

extended the time limits by 10 additional working days, and the

component determines that it cannot make a response determination

within that additional 10 working day period, the requester shall be

notified and provided an opportunity to limit the scope of the request

so that it may be processed within the extended time limit, or an

opportunity to arrange an alternative time frame for processing the

request or a modified request. Refusal by the requester to reasonably

modify the request or arrange for an alternative time frame shall be

considered a factor in determining whether exceptional

[[Page 7412]]

circumstances exist with respect to DoD Components' request backlogs.

Exceptional circumstances do not include a delay that results from

predictable component backlogs, unless the DoD Component demonstrates

reasonable progress in reducing its backlog.

(3) Unusual circumstances that may justify delay are:

(i) The need to search for and collect the requested records from

other facilities that are separate from the office determined

responsible for a release or denial decision on the requested

information.

(ii) The need to search for, collect, and examine a voluminous

amount of separate and distinct records which are requested in a single

request.

(iii) The need for consultation, which shall be conducted with all

practicable speed, with other agencies having a substantial interest in

the determination of the request, or among two or more DoD Components

having a substantial subject-matter interest in the request.

(4) DoD Components may aggregate certain requests by the same

requester, or by a group of requesters acting in concert, if the DoD

Component reasonably believes that such requests actually constitute a

single request, which would otherwise satisfy the unusual circumstances

set forth above, and the requests involve clearly related matters.

Multiple requests involving unrelated matters shall not be aggregated.

If the requests are aggregated under these conditions, the requester or

requesters shall be so notified.

(5) In cases where the statutory time limits cannot be met and no

informal extension of time has been agreed to, the inability to process

any part of the request within the specified time should be explained

to the requester with a request that he agree to await a substantive

response by an anticipated date. It should be made clear that any such

agreement does not prejudice the right of the requester to appeal the

initial decision after it is made. DoD Components are reminded that the

requester still retains the right to treat this delay as a defacto

denial with full administrative remedies.

(6) As an alternative to the taking of formal extensions of time as

described previously, the negotiation by the cognizant FOIA

coordinating office of informal extensions in time with requesters is

encouraged where appropriate.

(g) Misdirected requests. Misdirected requests shall be forwarded

promptly to the DoD Component or other Federal agency with the

responsibility for the records requested. The period allowed for

responding to the request misdirected by the requester shall not begin

until the request is received by the DoD Component that manages the

records requested.

(h) Records of Non-U.S. Government source. (1) When a request is

received for a record that falls under exemption 4, that was obtained

from a non-U.S. Government source, or for a record containing

information clearly identified as having been provided by a non-U.S.

Government source, the source of the record or information [also known

as ``the submitter'' for matters pertaining to proprietary data under 5

U.S.C. 552) Exemption (b)(4)] [Sec. 286.12] shall be notified promptly

of that request and afforded reasonable time (e.g., 30 calendar days)

to present any objections concerning the release, unless it is clear

that there can be no valid basis for objection. This practice is

required for those FOIA requests for data not deemed clearly exempt

from disclosure under Exemption (b)(4). If, for example, the record or

information was provided with actual or presumptive knowledge of the

non-U.S. Government source and established that it would be made

available to the public upon request, there is no obligation to notify

the source. Any objections shall be evaluated. The final decision to

disclose information claimed to be exempt under Exemption (b)(4) shall

be made by an official equivalent in rank to the official who would

make the decision to withhold that information under the FOIA. When a

substantial issue has been raised, the DoD Component may seek

additional information from the source of the information and afford

the source and requester reasonable opportunities to present their

arguments on the legal and substantive issues involved prior to making

an agency determination. When the source advises it will seek a

restraining order or take court action to prevent release of the record

or information, the requester shall be notified, and action on the

request normally shall not be taken until after the outcome of that

court action is known. When the requester brings court action to compel

disclosure, the submitter shall be promptly notified of this action.

(2) If the submitted information is a proposal in response to a

solicitation for a competitive proposal, and the proposal is in the

possession and control of DoD, and meets the requirements of 10 U.S.C.

2305(g), the proposal shall not be disclosed, and no submitter

notification and subsequent analysis is required. The proposal shall be

withheld from public disclosure pursuant to 10 U.S.C. 2305(g) and

exemption ``(b)(3)'' of the FOIA. This statute does not apply to bids,

unsolicited proposals, or any proposal that is set forth or

incorporated by reference in a contract between a DoD Component and the

offeror that submitted the proposal. In such situations, normal

submitter notice shall be conducted in accordance with paragraph (h)(1)

of this section, except for sealed bids which are opened and read to

the public. The term proposal means any proposal, including a

technical, management, or cost proposal submitted by an offeror in

response to solicitation for a competitive proposal. Submitter notice,

and analysis as appropriate, are required for exemption ``(b)(4)''

matters which are not specifically incorporated in 10 U.S.C. 2305(g).

(3) If the record or information was submitted on a strictly

voluntary basis, absent any exercised authority which prescribes

criteria for submission, and it is absolutely clear that the record or

information would customarily not be released to the public, the

submitter need not be notified. Examples of exercised authorities

prescribing criteria for submission are statutes, executive orders,

regulations, invitations for bids, requests for proposals, and

contracts. Records or information submitted under these authorities are

not voluntary in nature. When it is not clear whether the information

was submitted on a voluntary basis, absent any exercised authority, and

whether it would customarily be released to the public by the

submitter, notify the submitter and ask that it describe its treatment

of the information, and render an objective evaluation. If the decision

is made to release the information over the objection of the submitter,

notify the submitter and afford the necessary time to allow the

submitter to seek a restraining order, or take court action to prevent

release of the record or information.

(4) The coordination provisions of this paragraph (h) also apply to

any non-U.S. Government record in the possession and control of the

Department of Defense from multi-national organizations, such as the

North Atlantic Treaty Organization (NATO), United Nations Commands, the

North American Aerospace Defense Command (NORAD), the Inter-American

Defense Board, or foreign governments. Coordination with foreign

governments under the provisions of this paragraph (h) may be made

through Department of State, or the specific foreign embassy.

(i) File of initial denials. Copies of all initial denials shall be

maintained by

[[Page 7413]]

each DoD Component in a form suitable for rapid retrieval, periodic

statistical compilation, and management evaluation. Records denied at

the initial stage shall be maintained for a period of six years to meet

the statute of limitations requirement.

(j) Special mail services. Components are authorized to use

registered mail, certified mail, certificates of mailing and return

receipts. However, their use should be limited to instances where it

appears advisable to establish proof of dispatch or receipt of FOIA

correspondence.

(k) Receipt accounts. The Treasurer of the United States has

established two accounts for FOIA receipts, and all money orders or

checks remitting FOIA fees should be made payable to the U.S.

Treasurer. These accounts, which are described in the following

paragraphs, shall be used for depositing all FOIA receipts, except

receipts for industrially funded and non appropriated funded

activities. Components are reminded that the below account numbers must

be preceded by the appropriate disbursing office two digit prefix.

Industrially funded and non appropriated funded activity FOIA receipts

shall be deposited to the applicable fund.

(1) Receipt account 3210 sale of publications and reproductions,

Freedom of Information Act. This account shall be used when depositing

funds received from providing existing publications and forms that meet

the receipt account series description found in Federal account symbols

and titles.

(2) Receipt account 3210 fees and other charges for services,

freedom of information act. This account is used to deposit search

fees, fees for duplicating and reviewing (in the case of commercial

requesters) records to satisfy requests that could not be filled with

existing publications or forms.

Sec. 286.24 Appeals

(a) General. If the official designated by the DoD Component to

make initial determinations on requests for records declines to provide

a record because the official considers it exempt under one or more of

the exemptions of the FOIA, that decision may be appealed by the

requester, in writing, to a designated appellate authority. The appeal

should be accompanied by a copy of the letter denying the initial

request. Such appeals should contain the basis for disagreement with

the initial refusal. Appeal procedures also apply to the disapproval of

a fee category claim by a requester, disapproval of a request for

waiver or reduction of fees, disputes regarding fee estimates, review

on an expedited basis a determination not to grant expedited access to

agency records, and for no record determinations when the requester

considers such responses adverse in nature. Appeals of Office of the

Secretary of Defense and Joint Staff determinations may be sent to the

address in paragraph 2.a. of Appendix B to this part. If a request is

merely misaddressed, and the receiving DoD Component simply advises the

requester of such and refers the request to the appropriate DoD

Component, this shall not be considered a no record determination.

(b) Time of receipt. An FOIA appeal has been received by a DoD

Component when it reaches the office of an appellate authority having

jurisdiction. Misdirected appeals should be referred expeditiously to

the proper appellate authority.

(c) Time limits. (1) The requester shall be advised to file an

appeal so that it reaches the appellate authority no later than 60

calendar days after the date of the initial denial letter. At the

conclusion of this period, the case may be considered closed; however,

such closure does not preclude the requester from filing litigation. In

cases where the requester is provided several incremental

determinations for a single request, the time for the appeal shall not

begin until the requester receives the last such notification. Records

which are denied shall be retained for a period of six years to meet

the statute of limitations requirement.

(2) Final determinations on appeals normally shall be made within

20 working days after receipt. When a DoD Component has a significant

number of appeals precluding a response determination within 20 working

days, the appeals shall be processed in a multitrack processing system,

based at a minimum, on the three processing tracks established for

initial requests. See Sec. 286.4(c). All of the provisions of

Sec. 286.4(c) apply also to appeals of initial determinations, to

include establishing additional processing queues as needed.

(d) Delay in responding to an appeal. (1) If additional time is

needed due to the unusual circumstances described in paragraph

Sec. 286.24(g), the final decision may be delayed for the number of

working days (not to exceed 10), that were not used as additional time

for responding to the initial request.

(2) If a determination cannot be made and the requester notified

within 20 working days, the appellate authority shall acknowledge to

the requester, in writing, the date of receipt of the appeal, the

circumstances surrounding the delay, and the anticipated date for

substantive response. Requesters shall be advised that, if the delay

exceeds the statutory extension provision or is for reasons other than

the unusual circumstances identified in Sec. 286.24(g), they may

consider their administrative remedies exhausted. They may, however,

without prejudicing their right of judicial remedy, await a substantive

response. The DoD Component shall continue to process the case

expeditiously, whether or not the requester seeks a court order for

release of the records, but a copy of any response provided subsequent

to filing of a complaint shall be forwarded to the Department of

Justice.

(e) Response to the requester. (1) When an appellate authority

makes a final determination to release all or a portion of records

withheld by an IDA, a written response and a copy of the records so

released should be forwarded promptly to the requester after compliance

with any preliminary procedural requirements, such as payment of fees.

(2) Final refusal of an appeal must be made in writing by the

appellate authority or by a designated representative. The response, at

a minimum, shall include the following:

(i) The basis for the refusal shall be explained to the requester

in writing, both with regard to the applicable statutory exemption or

exemptions invoked under provisions of the FOIA, and with respect to

other appeal matters as set forth in paragraph (a) of this section.

(ii) When the final refusal is based in whole or in part on a

security classification, the explanation shall include a determination

that the record meets the cited criteria and rationale of the governing

Executive Order, and that this determination is based on a

declassification review, with the explanation of how that review

confirmed the continuing validity of the security classification.

(iii) The final denial shall include the name and title or position

of the official responsible for the denial.

(iv) In the case of appeals for denial of records, the response

shall advise the requester that the information being denied does not

contain meaningful portions that are reasonably segregable.

(v) The response shall advise the requester of the right to

judicial review.

(f) Consultation. (1) Final refusal involving issues not previously

resolved or that the DoD Component knows to be inconsistent with

rulings of other DoD Components ordinarily should not be made before

consultation with the Office of the General Counsel of the Department

of Defense.

[[Page 7414]]

(2) Tentative decisions to deny records that raise new or

significant legal issues of potential significance to other agencies of

the Government shall be provided to the Department of Defense Office of

General Counsel (Office of Legal Counsel).

Sec. 286.25 Judicial actions.

(a) General. (1) This section states current legal and procedural

rules for the convenience of the reader. The statements of rules do not

create rights or remedies not otherwise available, nor do they bind the

Department of Defense to particular judicial interpretations or

procedures.

(2) A requester may seek an order from a United States District

Court to compel release of a record after administrative remedies have

been exhausted; i.e., when refused a record by the head of a Component

or an appellate designee or when the DoD Component has failed to

respond within the time limits prescribed by the FOIA and in this part.

(b) Jurisdiction. The requester may bring suit in the United States

District Court in the district in which the requester resides or is the

requesters place of business, in the district in which the record is

located, or in the District of Columbia.

(c) Burden of proof. The burden of proof is on the DoD Component to

justify its refusal to provide a record. The court shall evaluate the

case de novo (anew) and may elect to examine any requested record in

camera (in private) to determine whether the denial was justified.

(d) Actions by the court. (1) When a DoD Component has failed to

make a determination within the statutory time limits but can

demonstrate due diligence in exceptional circumstances, the court may

retain jurisdiction and allow the Component additional time to complete

its review of the records.

(2) If the court determines that the requester's complaint is

substantially correct, it may require the United States to pay

reasonable attorney fees and other litigation costs.

(3) When the court orders the release of denied records, it may

also issue a written finding that the circumstances surrounding the

withholding raise questions whether DoD Component personnel acted

arbitrarily and capriciously. In these cases, the special counsel of

the Merit System Protection Board shall conduct an investigation to

determine whether or not disciplinary action is warranted. The DoD

Component is obligated to take the action recommended by the special

counsel.

(4) The court may punish the responsible official for contempt when

a DoD Component fails to comply with the court order to produce records

that it determines have been withheld improperly.

(e) Non-United States Government source information. A requester

may bring suit in a U.S. District Court to compel the release of

records obtained from a non government source or records based on

information obtained from a non government source. Such source shall be

notified promptly of the court action. When the source advises that it

is seeking court action to prevent release, the DoD Component shall

defer answering or otherwise pleading to the complainant as long as

permitted by the Court or until a decision is rendered in the court

action of the source, whichever is sooner.

(f) FOIA litigation. Personnel responsible for processing FOIA

requests at the DoD Component level shall be aware of litigation under

the FOIA. Such information will provide management insights into the

use of the nine exemptions by Component personnel. Whenever a complaint

under the FOIA is filed in a U.S. District Court, the DoD Component

named in the complaint shall forward a copy of the complaint by any

means to the OASD(PA), ATTN: DFOISR, with an information copy to the

General Counsel, Department of Defense, ATTN: Office of Legal Counsel.

Subpart F--Fee Schedule

Sec. 286.28 General provisions.

(a) Authorities. The Freedom of Information Act (5 U.S.C. 552), as

amended; by the Freedom of Information Reform Act of 1986; the

Paperwork Reduction Act (44 U.S.C. 35); the Privacy Act of 1974 (5

U.S.C. 552a); the Budget and Accounting Act of 1921 (31 U.S.C. 1 et.

seq.); the Budget and Accounting Procedures Act (31 U.S.C. 67 et.

seq.); the Defense Authorization Act for FY 87, Section 954, (10 U.S.C.

2328), as amended by the Defense Technical Corrections Act of 1987 (10

U.S.C. 101 note).

(b) Application. (1) The fees described in this subpart apply to

FOIA requests, and conform to the Office of Management and Budget

Uniform Freedom of Information Act Fee Schedule and Guidelines. They

reflect direct costs for search, review (in the case of commercial

requesters); and duplication of documents, collection of which is

permitted by the FOIA. They are neither intended to imply that fees

must be charged in connection with providing information to the public

in the routine course of business, nor are they meant as a substitute

for any other schedule of fees, such as DoD Instruction 7230.7 12,

which does not supersede the collection of fees under the FOIA. Nothing

in this subpart shall supersede fees chargeable under a statute

specifically providing for setting the level of fees for particular

types of records. A ``statute specifically providing for setting the

level of fees for particular types of records'' (5 U.S.C. 552

(a)(4)(a)(vi)) means any statute that enables a Government Agency such

as the Government Printing Office (GPO) or the National Technical

Information Service (NTIS), to set and collect fees. Components should

ensure that when documents that would be responsive to a request are

maintained for distribution by agencies operating statutory-based fee

schedule programs such as the GPO or NTIS, they inform requesters of

the steps necessary to obtain records from those sources.

---------------------------------------------------------------------------

\12\ See footnote 1 to Sec. 286.1 (a).

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(2) The term ``direct costs'' means those expenditures a Component

actually makes in searching for, reviewing (in the case of commercial

requesters), and duplicating documents to respond to an FOIA request.

Direct costs include, for example, the salary of the employee

performing the work (the basic rate of pay for the employee 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 at Sec. 286.29. Not included in direct costs are

overhead expenses such as costs of space, heating or lighting the

facility in which the records are stored.

(3) The term ``search'' includes all time spent looking, both

manually and electronically for material that is responsive to a

request. 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 thereof are responsive to the request. Components

should ensure that searches are done in the most efficient and least

expensive manner so as to minimize costs for both the Component and the

requester. For example, Components should not engage in line-by-line

searches when duplicating an entire document known to contain

responsive information would prove to be the less expensive and quicker

method of complying with the request. Time spent reviewing documents in

order to determine whether to apply one or more of the statutory

exemptions is not search time, but review time. See paragraph (b) (5)

of this section for the definition of review, and paragraph (c)

[[Page 7415]]

(5) of this section and Sec. 286.29 (b) (2) for information pertaining

to computer searches.

(4) The term ``duplication'' refers to the process of making a copy

of a document in response to an FOIA request. Such copies can take the

form of paper copy, microfiche, audiovisual, or machine readable

documentation (e.g., magnetic tape or disc), among others. Every effort

will be made to ensure that the copy provided is in a form that is

reasonably useable, the requester shall be notified that the copy

provided is the best available and that the agency's master copy shall

be made available for review upon appointment. For duplication of

computer tapes and audiovisual, the actual cost, including the

operator's time, shall be charged. In practice, if a Component

estimates that assessable duplication charges are likely to exceed

$25.00, it shall notify the requester of the estimate, unless the

requester has indicated in advance his or her willingness to pay fees

as high as those anticipated. Such a notice shall offer a requester the

opportunity to confer with Component personnel with the object of

reformulating the request to meet his or her needs at a lower cost.

(5) The term ``review'' refers to the process of examining

documents located in response to an FOIA request to determine whether

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

includes processing the documents for disclosure, such as excising them

for release. Review does not include the time spent resolving general

legal or policy issues regarding the application of exemptions. It

should be noted that charges for commercial requesters may be assessed

only for the initial review. Components may not charge for reviews

required at the administrative appeal level of an exemption already

applied. However, records or portions of records withheld in full under

an exemption which is subsequently determined not to apply may be

reviewed again to determine the applicability of other exemptions not

previously considered. The costs for such a subsequent review would be

properly assessable.

(c) Fee restrictions. (1) No fees may be charged by any DoD

Component if the costs of routine collection and processing of the fee

are likely to equal or exceed the amount of the fee. With the exception

of requesters seeking documents for a commercial use, Components shall

provide the first two hours of search time, and the first one hundred

pages of duplication without charge. For example, for a request (other

than one from a commercial requester) that involved two hours and ten

minutes of search time, and resulted in one hundred and five pages of

documents, a Component would determine the cost of only ten minutes of

search time, and only five pages of reproduction. If this processing

cost was equal to, or less than the cost to the Component for billing

the requester and processing the fee collected, no charges would

result.

(2) Requesters receiving the first two hours of search and the

first one hundred pages of duplication without charge are entitled to

such only once per request. Consequently, if a Component, after

completing its portion of a request, finds it necessary to refer the

request to a subordinate office, another DoD Component, or another

Federal Agency to action their portion of the request, the referring

Component shall inform the recipient of the referral of the expended

amount of search time and duplication cost to date.

(3) The elements to be considered in determining the ``cost of

collecting a fee'' are the administrative costs to the Component of

receiving and recording a remittance, and processing the fee for

deposit in the Department of Treasury's special account. The cost to

the Department of Treasury to handle such remittance is negligible and

shall not be considered in Components' determinations.

(4) For the purposes of these restrictions, the word ``pages''

refers to paper copies of a standard size, which will normally be

``8\1/2\ x 11'' or ``11 x 14''. Thus, requesters would not be entitled

to 100 microfiche or 100 computer disks, for example. A microfiche

containing the equivalent of 100 pages or 100 pages of computer

printout; however, might meet the terms of the restriction.

(5) In the case of computer searches, the first two free hours will

be determined against the salary scale of the individual operating the

computer for the purposes of the search. As an example, when the direct

costs of the computer central processing unit, input-output devices,

and memory capacity equal $24.00 (two hours of equivalent search at the

clerical level), amounts of computer costs in excess of that amount are

chargeable as computer search time. In the event the direct operating

cost of the hardware configuration cannot be determined, computer

search shall be based on the salary scale of the operator executing the

computer search. See Sec. 286.29 for further details regarding fees for

computer searches.

(d) Fee waivers. (1) Documents shall be furnished without charge,

or at a charge reduced below fees assessed to the categories of

requesters in paragraph (e) of this section when the Component

determines that waiver or reduction of the fees is in the public

interest because furnishing the information is likely to contribute

significantly to public understanding of the operations or activities

of the Department of Defense and is not primarily in the commercial

interest of the requester.

(2) When assessable costs for an FOIA request total $15.00 or less,

fees shall be waived automatically for all requesters, regardless of

category.

(3) Decisions to waive or reduce fees that exceed the automatic

waiver threshold shall be made on a case-by-case basis, consistent with

the following factors:

(i) Disclosure of the information ``is in the public interest

because it is likely to contribute significantly to public

understanding of the operations or activities of the Government.''

(A) The subject of the request. Components should analyze whether

the subject matter of the request involves issues which will

significantly contribute to the public understanding of the operations

or activities of the Department of Defense. Requests for records in the

possession of the Department of Defense which were originated by non-

government organizations and are sought for their intrinsic content,

rather than informative value will likely not contribute to public

understanding of the operations or activities of the Department of

Defense. An example of such records might be press clippings, magazine

articles, or records forwarding a particular opinion or concern from a

member of the public regarding a DoD activity. Similarly, disclosures

of records of considerable age may or may not bear directly on the

current activities of the Department of Defense; however, the age of a

particular record shall not be the sole criteria for denying relative

significance under this factor. It is possible to envisage an

informative issue concerning the current activities of the Department

of Defense, based upon historical documentation. Requests of this

nature must be closely reviewed consistent with the requester's stated

purpose for desiring the records and the potential for public

understanding of the operations and activities of the Department of

Defense.

(B) The informative value of the information to be disclosed. This

factor requires a close analysis of the substantive contents of a

record, or portion of the record, to determine whether disclosure is

meaningful, and shall inform the public on the operations or activities

of the Department of Defense. While the

[[Page 7416]]

subject of a request may contain information which concerns operations

or activities of the Department of Defense, it may not always hold

great potential for contributing to a meaningful understanding of these

operations or activities. An example of such would be a heavily

redacted record, the balance of which may contain only random words,

fragmented sentences, or paragraph headings. A determination as to

whether a record in this situation will contribute to the public

understanding of the operations or activities of the Department of

Defense must be approached with caution, and carefully weighed against

the arguments offered by the requester. Another example is information

already known to be in the public domain. Disclosure of duplicative, or

nearly identical information already existing in the public domain may

add no meaningful new information concerning the operations and

activities of the Department of Defense.

(C) The contribution to an understanding of the subject by the

general public likely to result from disclosure. The key element in

determining the applicability of this factor is whether disclosure will

inform, or have the potential to inform the public, rather than simply

the individual requester or small segment of interested persons. The

identity of the requester is essential in this situation in order to

determine whether such requester has the capability and intention to

disseminate the information to the public. Mere assertions of plans to

author a book, researching a particular subject, doing doctoral

dissertation work, or indigence are insufficient without demonstrating

the capacity to further disclose the information in a manner which will

be informative to the general public. Requesters should be asked to

describe their qualifications, the nature of their research, the

purpose of the requested information, and their intended means of

dissemination to the public.

(D) The significance of the contribution to public understanding.

In applying this factor, Components must differentiate the relative

significance or impact of the disclosure against the current level of

public knowledge, or understanding which exists before the disclosure.

In other words, will disclosure on a current subject of wide public

interest be unique in contributing previously unknown facts, thereby

enhancing public knowledge, or will it basically duplicate what is

already known by the general public. A decision regarding significance

requires objective judgment, rather than subjective determination, and

must be applied carefully to determine whether disclosure will likely

lead to a significant public understanding of the issue. Components

shall not make value judgments as to whether the information is

important enough to be made public.

(ii) Disclosure of the information ``is not primarily in the

commercial interest of the requester.''

(A) The existence and magnitude of a commercial interest. If the

request is determined to be of a commercial interest, Components should

address the magnitude of that interest to determine if the requester's

commercial interest is primary, as opposed to any secondary personal or

non-commercial interest. In addition to profit-making organizations,

individual persons or other organizations may have a commercial

interest in obtaining certain records. Where it is difficult to

determine whether the requester is of a commercial nature, Components

may draw inference from the requester's identity and circumstances of

the request. In such situations, the provisions of paragraph (e) of

this section apply. Components are reminded that in order to apply the

commercial standards of the FOIA, the requester's commercial benefit

must clearly override any personal or non-profit interest.

(B) The primary interest in disclosure. Once a requester's

commercial interest has been determined, Components should then

determine if the disclosure would be primarily in that interest. This

requires a balancing test between the commercial interest of the

request against any public benefit to be derived as a result of that

disclosure. Where the public interest is served above and beyond that

of the requester's commercial interest, a waiver or reduction of fees

would be appropriate. Conversely, even if a significant public interest

exists, and the relative commercial interest of the requester is

determined to be greater than the public interest, then a waiver or

reduction of fees would be inappropriate. As examples, news media

organizations have a commercial interest as business organizations;

however, their inherent role of disseminating news to the general

public can ordinarily be presumed to be of a primary interest.

Therefore, any commercial interest becomes secondary to the primary

interest in serving the public. Similarly, scholars writing books or

engaged in other forms of academic research, may recognize a commercial

benefit, either directly, or indirectly (through the institution they

represent); however, normally such pursuits are primarily undertaken

for educational purposes, and the application of a fee charge would be

inappropriate. Conversely, data brokers or others who merely compile

government information for marketing can normally be presumed to have

an interest primarily of a commercial nature.

(iii) Components are reminded that the previously mentioned factors

and examples are not all inclusive. Each fee decision must be

considered on a case-by-case basis and upon the merits of the

information provided in each request. When the element of doubt as to

whether to charge or waive the fee cannot be clearly resolved,

Components should rule in favor of the requester.

(4) In addition, the following additional circumstances describe

situations where waiver or reduction of fees are most likely to be

warranted:

(i) A record is voluntarily created to preclude an otherwise

burdensome effort to provide voluminous amounts of available records,

including additional information not requested.

(ii) A previous denial of records is reversed in total, or in part,

and the assessable costs are not substantial (e.g. $15.00--$30.00).

(e) Fee assessment. (1) Fees may not be used to discourage

requesters, and to this end, FOIA fees are limited to standard charges

for direct document search, review (in the case of commercial

requesters) and duplication.

(2) In order to be as responsive as possible to FOIA requests while

minimizing unwarranted costs to the taxpayer, Components shall adhere

to the following procedures:

(i) Analyze each request to determine the category of the

requester. If the Component determination regarding the category of the

requester is different than that claimed by the requester, the

Component shall:

(A) Notify the requester to provide additional justification to

warrant the category claimed, and that a search for responsive records

will not be initiated until agreement has been attained relative to the

category of the requester. Absent further category justification from

the requester, and within a reasonable period of time (i.e., 30

calendar days), the Component shall render a final category

determination, and notify the requester of such determination, to

include normal administrative appeal rights of the determination.

(B) Advise the requester that, notwithstanding any appeal, a search

for responsive records will not be initiated until the requester

indicates a willingness to pay assessable costs

[[Page 7417]]

appropriate for the category determined by the Component.

(ii) Requesters should submit a fee declaration appropriate for the

below categories.

(A) Commercial. Requesters should indicate a willingness to pay all

search, review and duplication costs.

(B) Educational or noncommercial scientific institution or news

media. Requesters should indicate a willingness to pay duplication

charges in excess of 100 pages if more than 100 pages of records are

desired.

(C) All others. Requesters should indicate a willingness to pay

assessable search and duplication costs if more than two hours of

search effort or 100 pages of records are desired.

(iii) If the previous conditions are not met, then the request need

not be processed and the requester shall be so informed.

(iv) In the situations described by paragraphs (e)(2)(i) and

(e)(2)(ii) of this section, Components must be prepared to provide an

estimate of assessable fees if desired by the requester. While it is

recognized that search situations will vary among Components, and that

an estimate is often difficult to obtain prior to an actual search,

requesters who desire estimates are entitled to such before committing

to a willingness to pay. Should Component estimates exceed the actual

amount of the estimate or the amount agreed to by the requester, the

amount in excess of the estimate or the requester's agreed amount shall

not be charged without the requester's agreement.

(v) No DoD Component may require advance payment of any fee; i.e.,

payment before work is commenced or continued on a request, unless the

requester has previously failed to pay fees in a timely fashion, or the

agency has determined that the fee will exceed $250.00. As used in this

sense, a timely fashion is 30 calendar days from the date of billing

(the fees have been assessed in writing) by the Component.

(vi) Where a Component estimates or determines that allowable

charges that a requester may be required to pay are likely to exceed

$250.00, the Component shall notify the requester of the likely cost

and obtain satisfactory assurance of full payment where the requester

has a history of prompt payments, or require an advance payment of an

amount up to the full estimated charges in the case of requesters with

no history of payment.

(vii) Where a requester has previously failed to pay a fee charged

in a timely fashion (i. e., within 30 calendar days from the date of

the billing), the Component may require the requester to pay the full

amount owed, plus any applicable interest, or demonstrate that he or

she has paid the fee, and to make an advance payment of the full amount

of the estimated fee before the Component begins to process a new or

pending request from the requester. Interest will be at the rate

prescribed in 31 U.S.C. 3717, and confirmed with respective Finance and

Accounting Offices.

(viii) After all work is completed on a request, and the documents

are ready for release, Components may request payment before forwarding

the documents if there is no payment history on the requester, or if

the requester has previously failed to pay a fee in a timely fashion

(i. e., within 30 calendar days from the date of the billing). In the

case of the latter, the provisions of paragraph (e) (2) (vii) of this

section. Components may not hold documents ready for release pending

payment from requesters with a history of prompt payment.

(ix) When Components act under paragraphs (e) (2) (i) through (vii)

of this section, the administrative time limits of the FOIA will begin

only after the Component has received a willingness to pay fees and

satisfaction as to category determination, or fee payments (if

appropriate).

(x) Components may charge for time spent searching for records,

even if that search fails to locate records responsive to the request.

Components may also charge search and review (in the case of commercial

requesters) time if records located are determined to be exempt from

disclosure. In practice, if the Component estimates that search charges

are likely to exceed $25.00 it shall notify the requester of the

estimated amount of fees, unless the requester has indicated in advance

his or her willingness to pay fees as high as those anticipated. Such a

notice shall offer the requester the opportunity to confer with

Component personnel with the object of reformulating the request to

meet his or her needs at a lower cost.

(3) Commercial requesters. Fees shall be limited to reasonable

standard charges for document search, review and duplication when

records are requested for commercial use. Requesters must reasonably

describe the records sought (see Sec. 286.4 (h)).

(i) The term ``commercial use'' request refers to a 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 requester or

the person on whose behalf the request is made. In determining whether

a requester properly belongs in this category, Components must

determine the use to which a requester will put the documents

requested. Moreover, where a Component has reasonable cause to doubt

the use to which a requester will put the records sought, or where that

use is not clear from the request itself, Components should seek

additional clarification before assigning the request to a specific

category.

(ii) When Components receive a request for documents for commercial

use, they should assess charges which recover the full direct costs of

searching for, reviewing for release, and duplicating the records

sought. Commercial requesters (unlike other requesters) are not

entitled to two hours of free search time, nor 100 free pages of

reproduction of documents. Moreover, commercial requesters are not

normally entitled to a waiver or reduction of fees based upon an

assertion that disclosure would be in the public interest. However,

because use is the exclusive determining criteria, it is possible to

envision a commercial enterprise making a request that is not for

commercial use. It is also possible that a non-profit organization

could make a request that is for commercial use. Such situations must

be addressed on a case-by-case basis.

(4) Educational Institution requesters. Fees shall be limited to

only reasonable standard charges for document duplication (excluding

charges for the first 100 pages) when the request is made by an

educational institution whose purpose is scholarly research. Requesters

must reasonably describe the records sought (see Sec. 286.4 (h)). The

term ``educational institution'' refers to a pre-school, a public or

private elementary or secondary school, an institution of graduate high

education, an institution of undergraduate higher education, an

institution of professional education, and an institution of vocational

education, which operates a program or programs of scholarly research.

Fees shall be waived or reduced in the public interest if the criteria

of Sec. 286.28 (d).

(5) Non-commercial scientific institution requesters. Fees shall be

limited to only reasonable standard charges for document duplication

(excluding charges for the first 100 pages) when the request is made by

a non-commercial scientific institution whose purpose is scientific

research. Requesters must reasonably describe the records sought. The

term ``non-commercial scientific institution'' refers to an institution

that is not operated on a ``commercial'' basis as defined in

Sec. 286.28(e)(3) and which is operated solely for the purpose of

conducting scientific research, the results of which

[[Page 7418]]

are not intended to promote any particular product or industry. Fees

shall be waived or reduced in the public interest if the criteria of

Sec. 286.28 (d) have been met.

(6) Components shall provide documents to requesters in

Sec. 286.28(e)(2) and (e)(5) for the cost of duplication alone,

excluding charges for the first 100 pages. To be eligible for inclusion

in these categories, requesters must show that the request is being

made under the auspices of a qualifying institution and that the

records are not sought for commercial use, but in furtherance of

scholarly (from an educational institution) or scientific (from a non-

commercial scientific institution) research.

(7) Representatives of the news media. Fees shall be limited to

only reasonable standard charges for document duplication (excluding

charges for the first 100 pages) when the request is made by a

representative of the news media. Requesters must reasonably describe

the records sought (see Sec. 286.4 (h)). Fees shall be waived or

reduced if the criteria of Sec. 286.28(d) have been met.

(i) The term ``representative of the news media'' refers to any

person actively gathering news for an entity that is organized and

operated to publish or broadcast news to the public. The term ``news''

means information that is about current events or that would be of

current interest to the public. Examples of news media entities include

television or radio stations broadcasting to the public at large, and

publishers of periodicals (but only in those instances when they can

qualify as disseminators of ``news'') who make their products available

for purchase or subscription by the general public. These examples are

not meant to be all-inclusive. Moreover, as traditional methods of news

delivery evolve (e.g., electronic dissemination of newspapers through

telecommunications services), such alternative media would be included

in this category. In the case of ``freelance'' journalists, they may be

regarded as working for a news organization if they can demonstrate a

solid basis for expecting publication though that organization, even

through not actually employed by it. A publication contract would be

the clearest proof, but Components may also look to the past

publication record of a requester in making this determination.

(ii) To be eligible for inclusion in this category, a requester

must meet the criteria in Sec. 286.28(e)(7)(i) and his or her request

must not be made for commercial use. A request for records supporting

the news dissemination function of the requester shall not be

considered to be a request that is for a commercial use. For example, a

document request by a newspaper for records relating to the

investigation of a defendant in a current criminal trial of public

interest could be presumed to be a request from an entity eligible for

inclusion in this category, and entitled to records at the cost of

reproduction alone (excluding charges for the first 100 pages).

(iii) ``Representative of the news media'' does not include private

libraries, private repositories of Government records, or middlemen,

such as information vendors or data brokers.

(8) All other requesters. Components shall charge requesters who do

not fit into any of the previous categories, fees which recover the

full direct cost of searching for and duplicating records, except that

the first two hours of search time and the first 100 pages of

duplication shall be furnished without charge. Requesters must

reasonably describe the records sought (see Sec. 286.4 (h)). Requests

from subjects about themselves will continue to be treated under the

fee provisions of the Privacy Act of 1974, which permit fees only for

duplication. Components are reminded that this category of requester

may also be eligible for a waiver or reduction of fees if disclosure of

the information is in the public interest as defined under

Sec. 286.28(d)(1). (See also Sec. 286.28(e)(2)).

(f) Aggregating requests. Except for requests that are for a

commercial use, a Component may not charge for the first two hours of

search time or for the first 100 pages of reproduction. However, a

requester may not file multiple requests at the same time, each seeking

portions of a document or documents, solely in order to avoid payment

of fees. When a Component reasonably believes that a requester or, on

rare occasions, a group of requesters acting in concert, is attempting

to break a request down into a series of requests for the purpose of

avoiding the assessment of fees, the agency may aggregate any such

requests and charge accordingly. One element to be considered in

determining whether a belief would be reasonable is the time period in

which the requests have occurred. For example, it would be reasonable

to presume that multiple requests of this type made within a 30 day

period had been made to avoid fees. For requests made over a longer

period; however, such a presumption becomes harder to sustain and

Components should have a solid basis for determining that aggregation

is warranted in such cases. Components are cautioned that before

aggregating requests from more than one requester, they must have a

concrete basis on which to conclude that the requesters are acting in

concert and are acting specifically to avoid payment of fees. In no

case may Components aggregate multiple requests on unrelated subjects

from one requester.

(g) Effect of the Debt Collection Act of 1982 (5 U.S.C. 5514 note).

The Debt Collection Act of 1982 (5 U.S.C. 5514 note) provides for a

minimum annual rate of interest to be charged on overdue debts owed the

Federal Government. Components may levy this interest penalty for any

fees that remain outstanding 30 calendar days from the date of billing

(the first demand notice) to the requester of the amount owed. The

interest rate shall be as prescribed in 31 U.S.C. 3717. Components

should verify the current interest rate with respective Finance and

Accounting Offices. After one demand letter has been sent, and 30

calendar days have lapsed with no payment, Components may submit the

debt to respective Finance and Accounting Offices for collection

pursuant to the Debt Collection Act of 1982.

(h) Computation of fees. The fee schedule in this subpart shall be

used to compute the search, review (in the case of commercial

requesters) and duplication costs associated with processing a given

FOIA request. Costs shall be computed on time actually spent. Neither

time-based nor dollar-based minimum charges for search, review and

duplication are authorized.

Sec. 286.29 Collection of fees and fee rates.

(a) Collection of fees. Collection of fees will be made at the time

of providing the documents to the requester or recipient when the

requester specifically states that the costs involved shall be

acceptable or acceptable up to a specified limit that covers the

anticipated costs. Collection of fees may not be made in advance unless

the requester has failed to pay previously assessed fees within 30

calendar days from the date of the billing by the DOD Component, or the

Component has determined that the fee will be in excess of $250 (see

Sec. 286.28 (e)).

(b) Search time--(1) Manual search.

------------------------------------------------------------------------

Hourly

Type Grade rate

(dollars)

------------------------------------------------------------------------

Clerical............................ E9/GS8 and below....... 12

Professional........................ 01-06/GS9-GS15......... 25

Executive........................... 07/GS16/ES1 and above.. 45

------------------------------------------------------------------------

[[Page 7419]]

(2) Computer search. Fee assessments for computer search consists

of two parts; individual time (hereafter referred to as human time),

and machine time.

(i) Human time. Human time is all the time spent by humans

performing the necessary tasks to prepare the job for a machine to

execute the run command. If execution of a run requires monitoring by a

human, that human time may be also assessed as computer search. The

terms ``programmer/operator'' shall not be limited to the traditional

programmers or operators. Rather, the terms shall be interpreted in

their broadest sense to incorporate any human involved in performing

the computer job (e.g. technician, administrative support, operator,

programmer, database administrator, or action officer).

(ii) Machine time. Machine time involves only direct costs of the

Central Processing Unit (CPU), input/output devices, and memory

capacity used in the actual computer configuration. Only this CPU rate

shall be charged. No other machine related costs shall be charged. In

situations were the capability does not exist to calculate CPU time, no

machine costs can be passed on to the requester. When CPU calculations

are not available, only human time costs shall be assessed to

requesters. Should DoD Components lease computers, the services charged

by the lessor shall not be passed to the requester under the FOIA.

(c) Duplication.

------------------------------------------------------------------------

Type Cost per page (cents)

------------------------------------------------------------------------

Pre-Printed material...................... 02.

Office copy............................... 15.

Microfiche................................ 25.

Computer copies (tapes, discs or Actual cost of duplicating

printouts). the tape, disc or printout

(includes operator's time

and cost of the medium).

------------------------------------------------------------------------

(d) Review time (in the case of commercial requesters).

------------------------------------------------------------------------

Hourly

Type Grade rate

(dollars)

------------------------------------------------------------------------

Clerical............................ E9/GS8 and below....... 12

Professional........................ 01-06/GS9-GS15......... 25

Executive........................... 07/GS16/ES1 and above.. 45

------------------------------------------------------------------------

(e) Audiovisual documentary materials. Search costs are computed as

for any other record. Duplication cost is the actual direct cost of

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

work. Audiovisual materials provided to a requester need not be in

reproducible format or quality.

(f) Other records. Direct search and duplication cost for any

record not described above shall be computed in the manner described

for audiovisual documentary material.

(g) Costs for special services. Complying with requests for special

services is at the discretion of the Components. Neither the FOIA, nor

its fee structure cover these kinds of services. Therefore, Components

may recover the costs of special services requested by the requester

after agreement has been obtained in writing from the requester to pay

for one or more of the following services:

(1) Certifying that records are true copies.

(2) Sending records by special methods such as express mail, etc.

Sec. 286.30 Collection of fees and fee rates for technical data.

(a) Fees for technical data. (1) Technical data, other than

technical data that discloses critical technology with military or

space application, if required to be released under the FOIA, shall be

released after the person requesting such technical data pays all

reasonable costs attributed to search, duplication and review of the

records to be released. Technical data, as used in this section, means

recorded information, regardless of the form or method of the recording

of a scientific or technical nature (including computer software

documentation). This term does not include computer software, or data

incidental to contract administration, such as financial and/or

management information. DoD Components shall retain the amounts

received by such a release, and it shall be merged with and available

for the same purpose and the same time period as the appropriation from

which the costs were incurred in complying with request. All reasonable

costs as used in this sense are the full costs to the Federal

Government of rendering the service, or fair market value of the

service, whichever is higher. Fair market value shall be determined in

accordance with commercial rates in the local geographical area. In the

absence of a known market value, charges shall be based on recovery of

full costs to the Federal Government. The full costs shall include all

direct and indirect costs to conduct the search and to duplicate the

records responsive to the request. This cost is to be differentiated

from the direct costs allowable under Sec. 286.29 for other types of

information released under the FOIA.

(2) Waiver. Components shall waive the payment of costs required in

paragraph (a)(1) of this section which are greater than the costs that

would be required for release of this same information under

Sec. 286.29 if:

(i) The request is made by a citizen of the United States or a

United States corporation, and such citizen or corporation certifies

that the technical data requested is required to enable it to submit an

offer, or determine whether it is capable of submitting an offer to

provide the product to which the technical data relates to the United

States or a contractor with the United States. However, Components may

require the citizen or corporation to pay a deposit in an amount equal

to not more than the cost of complying with the request, which will be

refunded upon submission of an offer by the citizen or corporation;

(ii) The release of technical data is requested in order to comply

with the terms of an international agreement; or

(iii) The Component determines in accordance with Sec. 286.28(d)(1)

that such a waiver is in the interest of the United States.

(b) Fee rates.

(1) Search time.--(i) Manual search.

------------------------------------------------------------------------

Hourly

Type Grade rate

(dollars)

------------------------------------------------------------------------

Clerical............................ E9/GS8 and below....... 13.25

(Minimum charge)....... 8.30

------------------------------------------------------------------------

(ii) Professional and executive (To be established at actual hourly

rate prior to search. A minimum charge will be established at 1/2

ho

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