# DoD Freedom of Information Act Program Regulation

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A98-14180

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** June 8, 1998
- **Citation:** 63 FR 31161

## Text

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 286

[DoD 5400.7-R]
RIN 0790-AG58

DoD Freedom of Information Act Program Regulation

AGENCY: Office of the Secretary, Department of Defense (DoD).

ACTION: Proposed rule.

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SUMMARY: This proposed rule conforms to the requirements of the
Electronic Freedom of Information Act Amendments of 1996. This proposed
revision reflects substantial and administrative changes since May
1997, as a result of DoD reorganization. The proposal also provides
guidance to DoD on implementation of this amended law.

DATES: Comments must be received by August 7, 1998.

[[Page 31162]]

ADDRESSES: Forward comments to OSD/WHS, Room 2C757, 1155 Defense
Pentagon, Washington, DC 20301-1155

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.

Pub. L. 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 impact Federal Government relations
with the private sector.

Pub. L. 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.
286.30 Collection of fees and fee rates for technical data.

Subpart G--Reports

286.33 Reports control.

Subpart H--Education and Training

286.36 Responsibility and purpose.
Appendix A to Part 286--Combatant Commands--Processing Procedures
for FOIA Appeals
Appendix B to Part 286--Addressing FOIA Requests
Appendix C to Part 286--DD Form 2086, ``Record of Freedom of
Information (FOI) Processing Cost''
Appendix D to Part 286--DD Form 2086-1, ``Record of Freedom of
Information (FOI) Processing Cost for Technical Data''
Appendix E to Part 286--DD Form 2564, ``Annual Report Freedom of
Information Act''
Appendix F 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 DoD
implementation of the Freedom of Information Act, as amended (5 U.S.C.
552), 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 viewed via internet at http://
web7.whs.osd.mil/corres.htm.
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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 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 F to this part.

Sec. 286.2 DoD public information.

(a) Public information. (1) 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 in whole or in part unless the record is
exempt from mandatory partial or total 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.
(2) Within the OSD, the Assistant Secretary of Defense for Command,
Control, Communications, and Intelligence, as Chief Information
Officer, in conjunction with the Director, Administration and Managment
is responsible for ensuring preparation of reference material or a
guide for requesting records or information from the Department of
Defense, subject to the nine exemptions of the FOIA. This publication
shall also include an index of all major information systems, and a
description of major information and record locator systems, as defined
by the Office of the Assistant Secretary of Defense for

[[Page 31163]]

Command, Control, Communications, and Intelligence. DoD FOIA Components
shall coordinate with the appropriate office(s) to insure that this is
also accomplished within their department or organization.
(3) DoD Components shall also prepare, in addition to normal FOIA
regulations, a handbook for the use of the public in 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
Service (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 contain the following additional
information, complete with electronic links to the below elements; the
location of reading room(s) within the Component and the types and
categories of information available, the location of Component's World
Wide Web page, a reference to the Component's FOIA regulation and how
to obtain a copy, a reference to the Component's FOIA annual report and
how to obtain a copy and the location of the Component's GILS page.
Also, the DoD Components' Freedom of Information Act Annual Reports
should refer to the handbook and how to obtain it.
(b) 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; to
deny a fee category claim by a requester; to deny a request for waiver
or reduction of fees; to deny a request to review an initial fee
estimate; to deny a request for expedited processing due to
demonstrated compelling need under Sec. 286.4(d)(3); and confirm that
no records were located during the initial search. Requesters also may
appeal the failure to receive a response determination within the
statutory time limits; and any determination that the requester
believes is adverse in nature.
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 Department
of Defense possession and control at the time the FOIA request is made.
Care should be taken not to exclude records from being considered
agency records, unless they fall within one of the categories in
paragraph (2) of this definition.
(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. Personal papers fall into
three categories: those created before entering Government service;
private materials brought into, created, or received in the office that
were not created or received in the course of transacting Government
business; and work-related personal papers that are not used in the
transaction of Government business.
(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 a FOIA request. See
Sec. 286.5(g)(2) on creating a record in the electronic environment.
(4) Hard copy or electronic records, that are subject to FOIA
requests under 5 U.S.C. 552(a)(3), and that 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, DoD Components shall provide
the requester with guidance, inclusive of any written notice to the
public, on how to obtain the information. However, if the requester
insists that the request be processed under the FOIA, then the request
shall be processed under the FOIA. If there is any doubt as to whether
the request must be processed, contact the Directorate for Freedom of
Information and Security Review.
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
``Administrative appeal'' and ``initial denial authority'' .
DoD Component. An element of the Department of Defense, as defined
in Sec. 286.1(b), authorized to receive and act independently on FOIA
requests. (See appendix F of this part.) A DoD Component has its own
initial denial authority (IDA), appellate authority, and legal counsel.
Electronic record. Records (including e-mail) that are created,
stored, and retrievable by electronic means.
Federal Agency. As defined by 5 U.S.C. 552(f)(1), a Federal agency
is any executive department, military department, Government
corporation, Government controlled corporation, or other establishment
in the executive branch of the Government (including the Executive
Office of the President), or any independent regulatory agency.
FOIA request. A written request for DoD records that adequately
describes the record(s) sought, 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. Requesters should also address fees in their request.
Written requests may be received by postal service or other commercial
delivery means, by facsimile, or electronically. Requests received
electronically should have a postal mailing address included since it
may not be practical to provide a substantive response electronically.
The request is considered perfected when the above conditions have been
met and the request arrives at the FOIA

[[Page 31164]]

office of the Component in possession of the records.
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(d)(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 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 for obtaining DoD records, and
after the request is received by the official designated to respond,
DoD Components shall endeavor to provide a final response determination
within the statutory 20 working days. If a significant number of
requests, or the complexity of the requests prevent a final response
determination within the statutory time period, DoD Components shall
advise the requester of this fact, and explain how the request will be
responded to within its multitrack processing system (see
Sec. 286.5(d)(2)). A final 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 Sec. 286.23(b). Interim responses acknowledging
receipt of the request, negotiations with the requester concerning the
scope of the request, the response timeframe, and fee agreements are
encouraged; however, such actions do not constitute a final response
determination pursuant to the FOIA. If a request fails to meet minimum
requirements as set forth in Sec. 286.3 definition of ``FOIA request'',
Components shall apprise the requester how to perfect the request. The
statutory 20 working day time limit applies upon receipt of a perfected
FOIA request as outlined in Sec. 286.3 definition of ``FOIA request''.
(2) Multitrack processing. When a Component has a significant
number of pending requests that prevents a response determination being
made within 20 working days, 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, at 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. Determinations as to
whether a request is simple or complex shall be made 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
DoD Component's office that will determine whether to grant expedited
processing. Once the DoD Component has determined to grant expedited
processing, the request shall be processed 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 means that 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) Compelling need also means that 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. An individual primarily engaged in disseminating
information means a person whose primary activity involves publishing
or otherwise disseminating information to the public. Representatives
of the news media (see Sec. 286.28(e)(7)(i)) would normally qualify as
individuals primarily engaged in disseminating information. Other
persons must demonstrate that their primary activity involves
publishing or otherwise disseminating information to the public.
(A) Urgently needed means that 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

[[Page 31165]]

unrelated to the news breaking nature of the information.
(B) [Reserved]
(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 reasons for expedited processing. Other reasons that
merit expedited processing by DoD Components are an imminent loss of
substantial due process rights and humanitarian need. 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 his or her knowledge. Humanitarian need means that disclosing the
information will promote the welfare and interests of mankind. A
demonstration of humanitarian need shall be also made by a statement
certified by the requester to be true and correct to the best of his or
her knowledge. Both statements mentioned above 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 either of these
reasons, 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 (C) and 7(F) (see subpart C of this part).
Exemptions 2, 5, and 7(A)(B)(D) and (E) (see subpart C of this part)
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. Discretionary
releases to FOIA requesters constitute a waiver of the FOIA exemption
that may otherwise apply. Disclosure to a properly constituted advisory
committee, to Congress, or to other Federal Agencies does not waive the
exemption. (See Sec. 286.22 (d)) Exempt records disclosed without
authorization by the appropriate DoD official 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. There is no
obligation to create, compile, or obtain a record to satisfy a FOIA
request. A DoD Component, 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) About electronic data, the issue of whether records are
actually created or merely extracted from an existing database 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, that 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. In
order to assist DoD Components in conducting more timely searches,
requesters should endeavor to provide as much identifying information
as possible. When a DoD Component receives a request that does not
reasonably describe the requested record, it shall notify the requester
of the defect in writing. The requester should be asked to provide the
type of information outlined 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 is 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 is 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, non random 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 that can be retrieved 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. If the record is required to be released under the
FOIA, does not bar its disclosure. See

[[Page 31166]]

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 should contact the DoD
Component to determine if it also received the request, and if not,
obtain concurrence from the other DoD Component to refer the request.
In either situation, the requester shall be advised of the action
taken, unless exempt information would be revealed. 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. Should this situation occur, DoD Components should coordinate
with the originator of the information prior to making a release
determination. 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 has reason to believe it has the
requested record. 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 exempt. If the association
is exempt, 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) A DoD Component shall refer for response directly to the
requester, a FOIA request for a record that it holds to another DoD
Component or agency outside the DoD, if the record originated in the
other DoD Component or outside agency. Whenever a record or a portion
of a record is referred to another DoD Component or to a Government
Agency outside of the DoD for a release determination and direct
response, the requester shall be informed of the referral, unless it
has been determined that notification would reveal exempt information.
Referred records shall only be identified to the extent consistent with
security requirements.
(3) A DoD Component may refer a request for a record that it
originated to 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. Ensure you include a point of contact
with the telephone number. 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. A FOIA request shall be referred to the
appropriate DoD Component and the requester shall be notified of the
referral, unless exempt information would be revealed. Another example
is a record originated by a DoD Component or agency that 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 for
consultation prior to a final release determination within the
Department of Defense. See also Sec. 286.22(e).
(4) Within the Department of Defense, 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).
(5) 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.
(6) 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 Department of Defense 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.
(7) DoD Components that 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 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.
(8) To the extent referrals are consistent with the policies
expressed by this section, referrals between offices of the same DoD
Component are authorized.
(9) 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

[[Page 31167]]

referral from the GAO, shall 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) Combatant Commands. (1) The Combatant Commands are placed under
the jurisdiction of the OSD, instead of the administering Military
Department or the Chairman of the Joint Chiefs of Staff, only for the
purpose of administering the DoD FOIA Program. This policy represents
an exception to the policies directed in DoD Directive
5100.32; it authorizes and requires the Combatant Commands
to process FOIA requests in accordance with DoD Directive 5400.7 and
this part. The Combatant Commands shall forward directly to the
Director, Freedom of Information and Security Review 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 of this part.
---------------------------------------------------------------------------

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

(2) Combatant Commands shall maintain an electronic reading room
for FOIA-processed 5 U.S.C. 552(a)(2)(D) records in accordance with
subpart B of this part. Records qualifying for this means of public
access also shall be maintained in hard copy for public access at
Combatant Commands' respective locations.
(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 required to be released 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
Privacy Act system of records and who cite or imply only the Privacy
Act, will have their requests processed under the provisions of both
the Privacy Act and the FOIA. If the Privacy Act 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 Privacy Act exemption, and then
further advised that the information was therefore reviewed for release
under the FOIA.
(3) Requesters who seek records about themselves that are not
contained in a Privacy Act system of records and who cite or imply the
Privacy Act will have their requests processed under the provisions of
the FOIA, since the Privacy Act does not apply to these records.
(4) Requesters who seek records about themselves that are contained
in a Privacy Act system of records and who cite or imply the FOIA or
both Acts will have their requests processed under the provisions of
both the Privacy Act and the FOIA. If the Privacy Act 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 Privacy Act 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 Privacy Act system of records, and who cite or imply the Privacy
Act and FOIA, will have their requests processed under the FOIA since
the Privacy Act 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 which Act was
used.
(n) Non-responsive information in responsive records. DoD
Components shall interpret FOIA requests liberally when determining
which records are responsive to the requests, and may release non-
responsive information. However, should DoD Components desire to
withhold non-responsive information, the following steps shall be
accomplished:
(1) Consult 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) If the responsive record is unclassified, and the requester
does not agree to deletion of non-responsive information without a FOIA
exemption, release all non-responsive and responsive information which
is not exempt. 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) If the responsive record is classified, and the requester does
not agree to deletion of non-responsive information without a FOIA
exemption, release all unclassified responsive and non-responsive
information which is not exempt. If the non-responsive information is
exempt, follow the procedures in paragraph (n)(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.
(o) 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 paragraph (g)(2) of this section.

Subpart B--FOIA Reading Rooms

Sec. 286.7 Requirements.

(a) Reading room. Each DoD Component shall provide an appropriate
facility or facilities where the public may inspect and copy or have
copied the records described in paragraph (b) of this section and
Sec. 286.8(a). In addition to the records described in paragraph (b) of
this section and Sec. 286.8(a), DoD Components may elect to place other
records in their reading room, and also

[[Page 31168]]

make them electronically available to the public. DoD Components may
share reading room facilities if the public is not unduly
inconvenienced, and also may establish decentralized reading rooms.
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.
(b) Record availability. The FOIA requires that records described
in 5 U.S.C. 552(a)(2) (A), (B), (C), and (D) created on or after
November 1, 1996, shall be made available electronically by November 1,
1997, as well as in hard copy in the FOIA reading room for inspection
and copying, unless such records are published and copies are offered
for sale. Personal privacy information, that if disclosed to a third
party requester, would result in an invasion of the first party's
personal privacy, and contractor submitted information, that if
disclosed to a competing contractor, would result in competitive harm
to the submitting contractor shall be deleted from all 5 U.S.C.
552(a)(2) records made available to the general public. 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 records to
avoid clearly unwarranted invasions of privacy, or competitive harm to
business submitters. In appropriate cases, the DoD Component may refer
to this description rather than write a separate justification for each
deletion. 5 U.S.C. 552(a)(2) (A), (B), (C), and (D) records are:
(1) (a)(2)(A) records. Final opinions, including concurring and
dissenting opinions, and orders made in the adjudication of cases, as
defined in 5 U.S.C. 551 (reference (f)), that may be cited, used, or
relied upon as precedents in future adjudications.
(2) (a)(2)(B) records. Statements of policy and interpretations
that have been adopted by the agency and are not published in the
Federal Register.
(3) (a)(2)(C) records. 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 intelligence activities.
(4) (a)(2)(D) records. Those 5 U.S.C. 552(a)(3) records, 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. These records are referred to as FOIA-processed (a)(2)
records.
(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.
(iii) Should a requester submit a FOIA request for FOIA-processed
(a)(2) records, and insist that the request be processed, DoD
Components shall process the FOIA request. However, DoD Components have
no obligation to process a FOIA request for 5 U.S.C. 552(a)(2)(A), (B),
and (C) records because these records are required to be made public
and not FOIA-processed under paragraph (a)(3) of the FOIA.

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 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 topical 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 FOIA-processed (a)(2) 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.

[[Page 31169]]

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 a 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 of a record (see also Sec. 286.4(e)) to
one requester shall prevent the withholding of the same record under a
FOIA exemption if the record is subsequently requested by someone else.
However, a FOIA exemption may be invoked to withhold information that
is similar or related that has been the subject of a discretionary
release. 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\ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

(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 that 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 the Department of Defense or
any of its Components. This exemption is entirely discretionary. This
exemption has two profiles, high (b)(2) and low (b)(2). Paragraph
(b)(2) of this section contains a brief discussion on the low (b)(2)
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 (b)(2) profile.
(1) Records qualifying under high (b)(2) are those containing or
constituting statutes, rules, regulations, orders, manuals, directives,
instructions, and security classification guides, the release of which
would allow circumvention of these records thereby substantially
hindering the effective performance of a significant function of the
Department of Defense. 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 (b)(2) 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 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 (b)(2) 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 Directorate for Freedom of Information and
Security Review maintains a list of (b)(3) statutes used within the
Department of Defense, 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. 1102f.
(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

[[Page 31170]]

interest. Commercial or financial information submitted on a voluntary
basis, absent any exercised authority prescribing criteria for
submission is protected without any requirement to show competitive
harm (see paragraph (d)(8) of this section). 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.
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 paragraph (c)(7) of this section).
(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.
(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 that 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 released in a particular case during civil
discovery where a party's particularized showing of need might override
a privilege, 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.

[[Page 31171]]

(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 a requester, other than the person about whom the
information is about, 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. This includes lists of home addressees
and military quarters' addressees without the occupant's name. In
addition, the names and duty addresses (postal and/or e-mail) of DoD
military and civilian personnel 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 since it is 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).
---------------------------------------------------------------------------

(iv) 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,\6\ and by exemption 6 of the FOIA.
---------------------------------------------------------------------------

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

(v) A clearly unwarranted invasion of the privacy of third parties
identified in a personnel, medical or similar record constitutes a
basis for deleting those reasonably segregable portions of that record.
When withholding third party personal information from the subject of
the record and the record is contained in a Privacy Act system of
records, consult with legal counsel.
(vi) 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 that is exempt under the Glomar concept.
(A) 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.
(B) Refusal to confirm or deny should not be used when:
(1) The person whose personal privacy is in jeopardy has provided
the requester a waiver of his or her privacy rights;
(2) The person initiated or directly participated in an
investigation that lead to the creation of an agency record seeks
access to that record; or
(3) 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 (e)(2)(iii) of this
section.
(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) (see
paragraph (g)(1)(iii) of this section) of this exemption, this
exemption is discretionary. If information qualifies as exemption
(7)(C) or (7)(F) (see paragraph (g)(1)(iii) of this section)
information, there is no discretion in its release.
(1) This exemption applies, however, only to the extent that
production of such law enforcement records or information could result
in the following:
(i) Could reasonably be expected to interfere with enforcement
proceedings (5 U.S.C. 552(b)(7)(A)).
(ii) Would deprive a person of the right to a fair trial or to an
impartial adjudication (5 U.S.C. 552(b)(7)(B)).
(iii) 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 (5 U.S.C.
552(b)(7)(C)).
(A) This exemption also applies when the fact of the existence or
nonexistence

[[Page 31172]]

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 (7)(C) 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 that is exempt under the Glomar concept.
(B) 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.
(C) Refusal to confirm or deny should not be used when:
(1) The person whose personal privacy is in jeopardy has provided
the requester with a waiver of his or her privacy rights; or
(2) The person whose personal privacy is in jeopardy is deceased,
and the Agency is aware of that fact.
(D) Could reasonably be expected to disclose the identity of a
confidential source, including a source within the Department of
Defense; a State, local, or foreign agency or authority; or any private
institution that furnishes the information on a confidential basis; and
could disclose information furnished from a confidential source and
obtained by a criminal law enforcement authority in a criminal
investigation or by an agency conducting a lawful national security
intelligence investigation (5 U.S.C. 552(b)(7)(D)).
(E) 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 (5 U.S.C.
552(b)(7)(E)).
(F) Could reasonably be expected to endanger the life or physical
safety of any individual (5 U.S.C. 552(b)(7)(F)).
(2) Some examples of exemption 7 are:
(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.
(3) 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.
(4) 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, and by exemption seven of the FOIA.
(5) Exclusions. Excluded from exemption 7 are the following 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 that 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 5 U.S.C. 552(b)(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 (see subpart C of this part) 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. Additional information on FOUO and other
controlled, unclassified information may be found in DoD 5200.1-R.
(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 determine whether, under current circumstances,
FOIA exemptions apply in withholding the record or portions of it. If
any exemptions apply, the record may nonetheless be released as a
discretionary matter 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.

[[Page 31173]]

(e) Distribution statement. Information in a technical document
that requires a distribution statement pursuant to DoD Directive
5230.24 \7\ shall bear that statement and may be marked FOUO, as
appropriate.
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\7\ See footnote 1 to Sec. 286.1(a).
---------------------------------------------------------------------------

Sec. 286.16 Markings.

(a) Location of markings. (1) 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).
(2) 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.
(3) Within a classified document, an individual page that contains
FOUO information but no classified information shall be marked ``For
Official Use Only'' at the top and bottom of the page.
(4) 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.
(5) 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. Exemption(s) ____________ applies/apply.

(b) [Reserved]

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 may qualify for
exemption 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.\8\ Release to the GAO is governed by DoD
Directive 7650.1.\9\ 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.
---------------------------------------------------------------------------

\8\ See footnote 1 to Sec. 286.1(a).
\9\ See footnote 1 to Sec. 286.1(a).
---------------------------------------------------------------------------

(b) Transporting FOUO information. Records containing FOUO
information shall be transported in a manner that prevents 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
electronically 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
whenever practicable.

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 prevent 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 the National Security Act of 1959
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 prevent reconstructing,
and placing 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.
3301-3314, 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

[[Page 31174]]

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) Disclosure would result in a foreseeable harm to an interest
protected by a FOIA exemption, and 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 of 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 should clearly show all other addressees
within the Federal Government to which the request was also sent. This
procedure will reduce processing time requirements, and ensure better
inter-and intra-agency coordination. However, if the requester does not
show all other addressees to which the request was also sent, DoD
Components shall still process the request. DoD Components 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
Sec. 286.4(f) and Sec. 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 outside of the FOIA to U.S. government
official. (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) Consultation with affected DoD Component. (1) When a DoD
Component receives a FOIA request for a record in which an affected DoD
organization (including a Combatant Command) has a clear and
substantial interest in the subject matter, consultation with that
affected DoD organization is required. As an example, where a DoD
Component receives a request for records related to DoD operations in a
foreign country, the cognizant Combatant Command for the area involved
in the request shall be consulted before a release is made.
Consultations may be telephonic, electronic, or in hard copy.
(2) The affected DoD Component shall review the circumstances of
the request for host-nation relations, and provide, where appropriate,
FOIA processing assistance to the responding DoD Component regarding
release of information. Responding DoD Components shall provide copies
of responsive records to the affected DoD Component when requested by
the affected DoD Component. The affected DoD Component shall receive a
courtesy copy of all releases in such circumstances.
(3) Nothing in the above paragraphs 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 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. The following are reasons
for not

[[Page 31175]]

complying with a request for a record under 5 U.S.C. 552(a)(3):
(1) No records. A search of files failed to identify responsive
records.
(2) Referrals. The request is transferred to another DoD Component,
or to another Federal Agency.
(3) Request withdrawn. The request is withdrawn by the requester.
(4) Fee-related reason. The requester is unwilling to pay fees
associated with a request; the requester is past due in the payment of
fees from a previous FOIA request; or the requester disagrees with the
fee estimate.
(5) Records not reasonably described. A record has not been
described with sufficient particularity to enable the DoD Component to
locate it by conducting a reasonable search.
(6) Not a proper FOIA request for some other reason. The requester
has failed unreasonably to comply with procedural requirements, other
than fee-related, imposed by this part or DoD Component supplementing
regulations.
(7) Not an agency record. The information requested is not a record
within the meaning of the FOIA and this part.
(8) Duplicate request. The request is a duplicate request (e.g., a
requester asks for the same information more than once). This includes
identical requests received via different means (e.g., electronic mail,
facsimile, mail, courier) at the same or different times.
(9) Other (specify). Any other reason a requester does not comply
with published rules other than those outlined in paragraphs (b)(1)
through (b)(8) of this section.
(10) Partial or total denial. The record is denied in whole or in
part in accordance with procedures set forth in the FOIA.
(c) Denial tests. To deny a requested record that is in the
possession and control of a DoD Component, it must be determined that
disclosure of the record would result in a foreseeable harm to an
interest protected by a FOIA exemption, and 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. Unless indicating the extent of the deletion would
harm an interest protected by an exemption, 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, unless
including the indication would harm an interest protected by the
exemption under which the deletion is made. This may be done by use of
brackets, shaded areas, or some other identifiable technique that 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 20 working days after
receipt of the request by the official designated to respond. When a
DoD Component has a significant number of pending requests which
prevent a response determination within the 20 working day period, 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)(2), 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 of this part. When a requester is assessed fees
for processing a request, the requester's fee category shall be
specified in the response letter. Components also shall provide the
requester with a complete cost breakdown (e.g., 15 pages of office
reproduction at $0.15 per page; 5 minutes of computer search time at
$43.50 per minute, 2 hours of professional level search at $25 per
hour, etc.) in the response letter.
(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 part 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) When 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. This estimate should be in number of pages or in
some other reasonable form of estimation, unless the volume is
otherwise indicated through deletions on records disclosed in part.
(8) When denying a request for records in accordance with a statute
qualifying as a FOIA exemption 3 statute, DoD Components shall, in
addition to stating the particular statute relied upon to deny the
information, also state whether a court has upheld the decision to
withhold the information under the particular statute, and a concise
description of the scope of the information being withheld.
(f) Extension of time. (1) In unusual circumstances, when
additional time is

[[Page 31176]]

needed to respond to the initial request, the DoD Component shall
acknowledge the request in writing within the 20 day period, 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 paragraphs (f)(2) through (f)(6) of
this section.
(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 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 appropriately 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 in paragraph (f)(3) of this section, 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 in Sec. 286.23(f), 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 (see Sec. 286.12
(d)), 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(d),
this part and E. O. 12600 (3 CFR, 1987 Comp., p.235)) 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) of 5 U.S.C. 552.
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 5 U.S.C. 552. 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 that are opened and read to the
public. The term proposal means information contained in or originating
from any proposal, including a technical, management, or cost proposal
submitted by an offeror in response to solicitation for a competitive
proposal, but does not include an offeror's name or total price or unit
prices when set forth in a record other than the proposal itself.
Submitter notice, and analysis as appropriate, are required for
exemption (b)(4) matters that 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 that prescribes
criteria for submission, and after consultation with the submitter, 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,

[[Page 31177]]

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 also apply to any
non-U.S. Government record in the possession and control of the DoD
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 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 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. The requester shall be notified that they are
responsible for the full costs of special services.
(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 paragraphs (k)(1) and
(k)(2) of this section, 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, for no record determinations when the requester
considers such responses adverse in nature, not providing a response
determination to a FOIA request within the statutory time limits, or
any determination found to be adverse in nature by the requester.
Appeals of Office of the Secretary of Defense and Chairman of the Joint
Chiefs of Staff determinations may be sent to the address in appendix B
of 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. A 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 is postmarked no later than 60 calendar days after
the date of the initial denial letter. If no appeal is received, or if
the appeal is postmarked after the conclusion of this 60-day period,
the case may be considered closed. In cases where the requester is
provided several incremental determinations for a single request, the
time for the appeal shall not begin until the date of the final
response. Records that 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 preventing 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(d). All of the provisions of
Sec. 286.4(d) 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 Sec. 286.23(f),
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. 286.23(f), 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.
(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:

[[Page 31178]]

(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 Sec. 286.24(a).
(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 total denial of records, the
response shall advise the requester that the information being denied
does not contain meaningful portions that are reasonably segregable.
(v) When the denial is based upon an exemption 3 statute (see
subpart C of this part), the response, in addition to citing the
statute relied upon to deny the information, shall state whether a
court has

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A98-14180. Public record. Not legal advice.