DoD Freedom of Information Act Program Regulation

SUMMARY: This final rule conforms to the requirements of the Electronic

Freedom of Information Act Amendments of 1996. This revision reflects

substantial and administrative changes since May 1997, as a result of

DoD reorganization. This revision also provides guidance to DoD on

implementation of the amends law.

EFFECTIVE DATE: September 4, 1998.

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; completion; jobs; the environment; public health

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

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

action taken or planned by another Agency;

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

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

recipients thereof; or

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

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

this Executive Order.

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

It has been certified that this rule is not subject to the

Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if

promulgated, have a significant economic impact on a substantial number

of small entities. This rule implements the Freedom of Information Act

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

records, and does no economically impact Federal Government relations

with the private sector.

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

35)

It has been certified that this rule 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 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 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\ Copy 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 Command, 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.

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,

[[Page 65421]]

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 involve 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 Assistant Secretary of Defense for

Public Affairs, 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 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) of this part; to

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 age 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 (see ``Personal Papers of Executive

Branch Officials: A Management Guide'' \2\).

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\2\ Available from the Records Administration Information

Center, Agency Service Division (NIA), Washington, DC 20408.

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(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. 286.4(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

that 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.

[[Page 65422]]

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

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

or any of the other adverse determinations outlined in definitions

``Initial denial authority (IDA)'' and ``Administrative appeal''.

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 reasonably

describes the record(s) sought, made by any person, including a member

of the public (U.S. or foreign citizen/entity), 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 indicate a willingess to pay

fees associated with the processing of their request or, in the

alternative, why a waiver of fees may be appropriate. Written requests

may be received by postal service or other commercial delivery means,

by fascimile, or electronically. Requests received by fascimile or

electronically must have a postal mailing address included since it may

be practical to provide a substantive response electrically. The

request is considered properly received, or perfected, when the above

conditions have been met and the request arrives at the FOIA office of

the Component in possession of the records.

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

authority by the head of 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) of this part; 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 officials 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 better 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) Openiness with the public. The Department of Defense shall

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

security and aherence 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. 286.4(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 ``FOIA request'',

Components shall inform the requester how to perfect or correct the

request. The statutory 20 working day time limit applies upon receipt

of a perfected or correct FOIA request which complies with the

requirements outlined in Sec. 286.3, definition ``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, as a minimum, three processing tracks

shall be established, all based on a first-in, first-out concept, and

rank ordered by the date of receipt of the request. One track shall be

a processing queue for simple requests, one track for complex requests,

and one track shall be a processing queue for expedited processing as

described in paragraph (d)(3) of this section. 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 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

[[Page 65423]]

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)) 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 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 interest 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 Component's 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

[[Page 65424]]

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

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

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

DoD Component concerning reasonableness of description must be based on

knowledge of its files. If the description enables DoD Component

personnel to locate the record with reasonable effort, the description

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

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

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

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

staff to reasonably ascertain and locate which records are being

requested.

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

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

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

originated by another DoD Component, it 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) of this part.

(4) Within the Department of Defense, a DoD Component shall

ordinarily refer a FOIA request and a copy of the records it holds, but

that was originated by other 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 by 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) of this part.

(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.

[[Page 65425]]

(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 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 5100.3; \3\ 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.

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\3\ 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, nor are all of them aware of appeal

procedures. 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. See also Sec. 286.24 regarding appeal

rights.

(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) and if the records,

or any portion thereof, are exempt under the FOIA, the requester shall

be so advised with the appropriate Privacy Act and FOIA exemption.

Appeals shall be processed under both Acts.

(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.

Appeals shall be processed under the FOIA.

(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) and if the records

or any portion thereof, are exempt under the FOIA, the requester shall

be so advised with the appropriate Privacy Act and FOIA exemption.

Appeals shall be processed under both Acts.

(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. Appeals shall be

processed under the FOIA.

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

imply the FOIA will have their requests an appeals processed under the

FOIA.

(7) Requesters shall be advised in the final response letter which

Act(s) was (were) used, inclusive of appeal rights as outlined in

paragraphs (m)(1) through (m)(6) of this section.

(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

[[Page 65426]]

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 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, 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 therefo, 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 criterial 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 simular records.

(B) Particular circumstances of the records involved, including

their nature and the type of information contained in them.

(C) The identify 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

[[Page 65427]]

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 any agency's central and

field organization, and to the extent they affect the public, rules of

procedures, descriptions of forms available, instruction as to the

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

amendment, revision, or report of the aforementioned.

Subpart C--Exemptions

Sec. 286.11 General provisions.

Records that meet the exemption criteria of the FOIA may be

withheld from public disclosure and need not be published in the

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

in response to 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. However, if the

subject of the record is the requester for the record and the record 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 \4\

and by a FOIA exemption.

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

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(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.\5\ 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:

---------------------------------------------------------------------------

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

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

itself reveal classified information. In this situation, Components

shall neither confirm nor deny the existence or nonexistence of the

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

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

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

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

deny'' when a record does exist will itself disclose national security

information.

(2) Compilations of items of information 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.R-1, 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 statues, 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, and 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

[[Page 65428]]

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.\6\

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\6\ 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)(6).

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

2305(g).

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

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

or commercial or financial information that a DoD Component receives

from a person or organization outside the Government with the

understanding that the information or record will be retained on a

privileged or confidential basis in accordance with the customary

handling of such records. Records within the exemption must contain

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

which is likely to cause substantial harm to the competitive position

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

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

other legitimate Government interest. 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) of this part. Additionally, when the provisions of 10

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

source selection information may be withheld under exemption 3.

(2) Statistical data and commercial or financial information

concerning contract performance, income, profits, losses, and

expenditures, if offered and received in confidence from a contractor

or potential contractor.

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

investigations, or audits, when such statements are received in

confidence from the individual and retained in confidence because they

reveal trade secrets or commercial or financial information normally

considered confidential or privileged.

(4) Financial data provided in confidence by private employers in

connection with locality wage surveys that are used to fix and adjust

pay schedules applicable to the prevailing wage rate of employees

within the Department of Defense.

(5) Scientific and manufacturing processes or developments

concerning technical or scientific data or other information submitted

with an application for a research grant, or with a report while

research is in progress.

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

subcontractor exclusively at private expense, and technical or

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

private expense, wherein the contractor or subcontractor has retained

legitimate proprietary interests in such data in accordance with 10

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

(DFARS), Chapter 2 of 48 CFR, 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)(4) 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

[[Page 65429]]

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) Those portions of official reports of inspection, reports of

the Inspector General, 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.

(vii) 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.

(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 incorporately 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, including private e-mail addresses, are

normally not releasable without the consent of the individuals

concerned. This includes lists of home addresses and military quarters'

addresses without the occupant's name. Additionally, 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 (postal and/or e-mail) 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.

(3) 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.\7\

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

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(4) 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.

(5) 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.

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

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

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

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

deny'' when a record does exist will

[[Page 65430]]

itself disclose personally private information.

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

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

the requester a waiver of his or her privacy rights.

(B) The person initiated or directly participated in an

investigation that lead to the creation of any agency record seeks

access to that record.

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

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

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

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

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 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 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.

(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 identify 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

with 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) 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 circumstances continues, treat the records of

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

request will state that no records were found.

(h) Number 8 (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 because disclosure would

[[Page 65431]]

cause a foreseeable harm to an interest protected by one or more FOIA

exemptions 2 through 9 (see subpart C of this part) shall be considered

as being for official use only (FOUO). No other material shall be

considered 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 or by contacting the Directorate for

Security, Office of the Assistant Secretary of Defense (Command,

Control, Communications, and Intelligence).

(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 disclosure would result in a

foreseeable harm to an interest protected by one or more FOIA

exemptions 2 through 9. Even if any exemptions apply, the record shall

be released as a discretionary matter when it is determined that there

is no foreseeable harm to an interest protected by the exemptions.

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

drafts retained as historical evidence of DoD Component actions enjoy

no special apart from the exemptions under the FOIA.

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

their creation provides notice of FOUO content and facilitates review

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

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

releasable without examination for the presence of information that

requires continued protection and qualifies as exempt from public

release.

(e) Distribution statement. Information in a technical document

that requires a distribution statement pursuant to DoD Directive

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

appropriate.

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

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Sec. 286.16 Markings.

(a) 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). Each paragraph containing FOUO information shall be marked as

such.

(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, as well as each

paragraph that contains FOUO information.

(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. \9\ Release to the GAO is governed by DoD

Directive 7650.1. \10\ Records released to the Congress or GAO should

be reviewed to determine whether the information warrants FOUO status.

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

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

provided an explanation for such exemption and marking. Alternatively,

the recipient may be requested, without marking the record, to protect

against its public disclosure for reasons that are explained.

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

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

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(b) Transporting FOUO information. Records containing FOUO

information shall be transported in a manner that 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 nongovernment 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

[[Page 65432]]

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 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. 282.22 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 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 the subject's 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 interest 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

officials. (1) Records exempt from release to the public under the FOIA

may be disclosed in accordance with DoD Component regulations to

agencies of the Federal Government, whether legislative, executive, or

administrative, as follows:

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

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

Directive 5400.4.

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

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

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

shall release information along with a description of the restrictions

on its release to the public.

(2) DoD Components shall inform officials receiving records under

the provisions of this paragraph that those records are exempt from

public release under the FOIA. DoD Components also shall advise

officials of any special handling instructions. Classified information

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

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

(e) 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.

[[Page 65433]]

(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 paragraphs (e)(1) and (e)(2) of this section shall

impede the processing of the FOIA request initially received by a DoD

Component.

Sec. 286.23 Initial determinations.

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

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

balance the goals of centralization of authority to promote uniform

decisions and decentralization to facilitate responding the 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 complying with a request for a record under 5 U.S.C. 552(a)(3):

(1) No records. A reasonable 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 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 responsive 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

[[Page 65434]]

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 regulation does

not constitute a proper citation or explanation of the basis for

invoking an exemption.

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

responsible for replying shall acknowledge to the requester the date of

the receipt of the request.

(7) When denying a request for records, in whole or in a 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 sitting 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 needed to respond to the initial request, the DoD

Component shall acknowledge the request in writing 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 follows:

(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. If 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 de facto

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

[[Page 65435]]

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,

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 for any of the reasons contained in paragraph (b) of

this section 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 Working Capital and non appropriated funded

activities. Components are reminded that the below account numbers must

be preceded by the appropriate disbursing office two digit prefix.

Working Capital 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 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. When

denials have been made under the provisions of the Privacy Act and the

FOIA, and the denied information is contained in a Privacy Act system

of records, appeals shall be processed under both the Privacy Act and

the FOIA. If the denied information is not maintained in a Privacy Act

system of records, the appeal shall be processed under the FOIA.

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 appeal may be considered closed. However, exceptions to the above

may be considered on a case by case basis.

[[Page 65436]]

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) of this part. 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

substantiative 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:

(i) The basis for the refusal shall be explained to the requester

in writing, both with regard to the applicable statutory exemption or

exemptions invoked under provisions of the FOIA, and with respect to

other appeal matters as set forth in paragraph (a) of this section.

(ii) When the final refusal is based in whole or in part on a

security classification, the explanation shall include a determination

that the record meets the cited criteria and rationale of the governing

Executive Order, and that this determination is based on a

declassification review, with the explanation of how that review

confirmed the continuing validity of the security classification.

(iii) The final denial shall include the name and title or position

of the official responsible for the denial.

(iv) In the case of appeals for 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 (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 upheld

the decision to withhold the information under the statute, and shall

contain a concise description of the scope of the information withheld.

(vi) The response shall advise the requester of the right to

judicial review.

(f) Consultation. (1) Final refusal involving issues not previously

resolved or that the DoD Component knows to be inconsistent with

rulings of other DoD Components ordinarily should not be made before

consultation with the DoD Office of the General Counsel.

Tentative decisions to deny records that raise new or significant

legal issues of potential significance to other Agencies of the

Government shall be provided to the DoD Office of the General Counsel.

Sec. 286.25 Judicial actions.

(a) General. (1) This section states current legal and procedural

rules for the convenience of the reader. The statemetns of rules do not

create rights or remedies not otherwise available, nor do they bind the

Department of Defense to particular judicial interpretations or

procedures.

(2) A requester may seek an order from a U.S. District Court to

compel release of a record after administrative remedies have been

exhausted; i.e., when refused a record by the head of a Component or an

appellate designee or when the DoD Component has failed to respond with

the time limits prescribed by the FOIA and in this part.

(b) Jurisdiction. The requester may bring suit in the U.S. District

Court in the district in which the requester resides or is the

requesters place of business, in the district in which the record is

located, or in the District of Columbia.

(c) Burden of proof. The burden of proof is on the DoD Component to

justify its refusal to provide a record. The court shall evaluate the

case de novo (anew) and may elect to examine any requester record in

camera (in private) to determine whether the denial was justified.

(d) Actions by the court. (1) When a DoD Component has failed to

make a determination within the statutory time limits but can

demonstrate due diligence in exceptional circumstances, to include

negotiating with the requester to modify the scope of their request,

the court may retain jurisdiction and allow the Component additional

time to complete its review of the records.

(2) If the court determines that the requester's complaint is

substantially correct, it may require the United States to pay

reasonable attorney fees and other litigation costs.

(3) When the court orders the release of denied records, it may

also issue a written finding that the circumstances surrounding the

witholding raise questions whether DoD Component personnel acted

arbitrarily and capriciously. In these cases, the special counsel of

the Merit System Protection Board shall conduct an investigation to

determine whether or not disciplinary action is warranted. The DoD

Component is obligated to take the action recommended by the special

counsel.

(4) The court may punish the responsible official for contempt when

a DoD Component fails to comply with the court order to produce records

that it determines have been withheld improperly.

(e) Non-United States government source information. A requester

may bring suit in a U.S. District Court to compel the release of

records obtained from a non-government source or records based on

information obtained from a non-government source. Such source shall be

notified promptly of the court action. When the source advises that it

is seeking court action to prevent release, the DoD Component shall

defer answering or otherwise pleading to the complainant as long as

permitted by the Court or until a decision is rendered in the court

action of the source, whichever is sooner.

(f) FOIA litigation. Personnel responsible for processing FOIA

requests at the DoD Component level shall be aware of litigation under

the FOIA. Such information will provide

[[Page 65437]]

management insights into the use of the nine exemptions by Component

personnel. Whenever a complaint under the FOIA is filed in a U.S.

District Court, the DoD Component named in the complaint shall forward

a copy of the complaint by any means to the Director, Freedom of

Information and Security Review with an information copy to the DoD

Office of the General counsel, ATTN: Office of Legal Counsel.

Subpart F--Fee Schedule

Sec. 286.28 General provisions.

(a) Authorities. The Freedom of Information Act, as amended; the

Paperwork Reduction Act (44 U.S.C. Chapter 35), as amended; the Privacy

Act of 1974, as amended; the Budget and Accounting Act of 1921 and the

Budget and Accounting Procedures Act, as amended (see 31 U.S.C.); and

10 U.S.C. 2328.

(b) Application. (1) The fees described in this subpart apply to

FOIA requests, and conform to the Office of Management and Budget

Uniform Freedom of Information Act Fee Schedule and Guidelines. They

reflect direct costs for search, review (in the case of commercial

requesters); and duplication of documents, collection of which is

permitted by the FOIA. They are neither intended to imply that fees

must be charged in connection with providing information to the public

in the routine course of business, nor are they meant as a substitute

for any other schedule of fees, such as DoD 7000.14-R,\11\ which does

not supersede the collection of fees under the FOIA. Nothing in this

subpart shall supersede fees chargeable under a statute specifically

providing for setting the level of fees for particular types of

records. A ``statute specifically providing for setting the level of

fees for particular types of records'' (5 U.S.C. 552(a)(4)(a)(vi))

means any statute that enables a Government Agency such as the

Government Printing Office (GPO) or the National Technical Information

Service (NTIS), to set and collect fees. Components should ensure that

when documents that would be responsive to a request are maintained for

distribution by agencies operating statutory-based fee schedule

programs such as the GPO or NTIS, they inform requesters of the steps

necessary to obtain records from those sources.

---------------------------------------------------------------------------

\11\ See footnote 1 to Sec. 286.1(a).

---------------------------------------------------------------------------

(2) The term ``direct costs'' means those expenditures a Component

actually makes in searching for, reviewing (in the case of commercial

requesters), and duplicating documents to respond to a FOIA request.

Direct costs include, for example, the salary of the employee

performing the work (the basic rate of pay for the employee plus 16

percent of that rate to cover benefits), and the costs of operating

duplicating machinery. These factors have been included in the fee

rates prescribed at Sec. 286.29 of this subpart. Not included in direct

costs are overhead expenses such as costs of space, heating or lighting

the facility in which the records are stored.

(3) The term ``search'' includes all time spent looking, both

manually and electronically, for material that is responsive to a

request. Search also includes a page-by-page or line-by-line

identification (if necessary) of material in the record to determine if

it, or portions thereof are responsive to the request. Components

should ensure that searches are done in the most efficient and least

expensive manner so as to minimize costs for both the Component and the

requester. For example, Components should not engage in line-by-line

searches when duplicating an entire document known to contain

responsive information would prove to be the less expensive and quicker

method of complying with the request. Time spent reviewing documents in

order to determine whether to apply one or more of the statutory

exemptions is not search time, but review time. See paragraph (b)(5) of

this section, for the definition of review, and paragraph (c)(5) of

this section and Sec. 286.29(b)(2), for information pertaining to

computer searches.

(4) The term ``duplication'' refers to the process of making a copy

of a document in response to a FOIA request. Such copies can take the

form of paper copy, microfiche, audiovisual, or machine readable

documentation (e.g., magnetic tape or disc), among others. Every effort

will be made to ensure that the copy provided is in a form that is

reasonably usable, the requester shall be notified that the copy

provided is the best available and that the Agency's master copy shall

be made available for review upon appointment. For duplication of

computer tapes and audiovisual, the actual cost, including the

operator's time, shall be charged. In practice, if a Component

estimates that assessable duplication charges are likely to exceed

$25.00, it shall notify the requester of the estimate, unless the

requester has indicated in advance his or her willingness to pay fees

as high as those anticipated. Such a notice shall offer a requester the

opportunity to confer with Component personnel with the object of

reformulating the request to meet his or her needs at a lower cost.

(5) The term ``review'' refers to the process of examining

documents located in response to a FOIA request to determine whether

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

includes processing the documents for disclosure, such as excising them

for release. Review does not include the time spent resolving general

legal or policy issues regarding the application of exemptions. It

should be noted that charges for commercial requesters may be assessed

only for the initial review. Components may not charge for reviews

required at the administrative appeal level of an exemption already

applied. However, records or portions of records withheld in full under

an exemption that is subsequently determined not to apply may be

reviewed again to determine the applicability of other exemptions not

previously considered. The costs for such a subsequent review would be

properly assessable.

(c) Fee restrictions. (1) No fees may be charged by any DoD

Component if the costs of routine collection and processing of the fee

are likely to equal or exceed the amount of the fee. With the exception

of requesters seeking documents for a commercial use, Components shall

provide the first two hours of search time, and the first one hundred

pages of duplication without charge. For example, for a request (other

than one from a commercial requester) that involved two hours and ten

minutes of search time, and resulted in one hundred and five pages of

documents, a Component would determine the cost of only ten minutes of

search time, and only five pages of reproduction. If this processing

cost was equal to, or less than, the cost to the Component for billing

the requester and processing the fee collected, no charges would

result.

(2) Requesters receiving the first two hours of search and the

first one hundred pages of duplication without charge are entitled to

such only once per request. Consequently, if a Component, after

completing its portion of a request, finds it necessary to refer the

request to a subordinate office, another DoD Component, or another

Federal Agency to action their portion of the request, the referring

Component shall inform the recipient of the referral of the expended

amount of search time and duplication cost to date.

(3) The elements to be considered in determining the ``cost of

collecting a fee'' are the administrative costs to the Component of

receiving and recording a remittance, and processing the fee for

deposit in the Department of Treasury's special account. The cost to

the

[[Page 65438]]

Department of Treasury to handle such remittance is negligible and

shall not be considered in Components' determinations.

(4) For the purposes of these restrictions, the word ``pages''

refers to paper copies of a standard size, which will normally be 8\1/

2\'' x 11'' or 11'' x 14''. Thus, requesters would not be entitled to

100 microfiche or 100 computer disks, for example. A microfiche

containing the equivalent of 100 pages or 100 pages of computer

printout however, might meet the terms of the restriction.

(5) In the case of computer searches, the first two free hours will

be determined against the salary scale of the individual operating the

computer for the purposes of the search. As an example, when the direct

costs of the computer central processing unit, input-output devices,

and memory capacity equal $24.00 (two hours of equivalent search at the

clerical level), amounts of computer costs in excess of that amount are

chargeable as computer search time. In the event the direct operating

cost of the hardware configuration cannot be determined, computer

search shall be based on the salary scale of the operator executing the

computer search. See Sec. 286.29, this subpart, for further details

regarding fees for computer searches.

(d) Fee waivers. (1) Documents shall be furnished without charge,

or at a charge reduced below fees assessed to the categories of

requesters in paragraph (e) of this section when the Component

determines that waiver or reduction of the fees is in the public

interest because furnishing the information is likely to contribute

significantly to public understanding of the operations or activities

of the Department of Defense and is not primarily in the commercial

interest of the requester.

(2) When assessable costs for a FOIA request total $15.00 or less,

fees shall be waived automatically for all requesters, regardless of

category.

(3) Decisions to waive or reduce fees that exceed the automatic

waiver threshold shall be made on a case-by-case basis, consistent with

the following factors:

(i) Disclosure of the information ``is in the public interest

because it is likely to contribute significantly to public

understanding of the operations or activities of the Government.''

(A) The subject of the request. Components should analyze whether

the subject matter of the request involves issues that will

significantly contribute to the public understanding of the operations

or activities of the Department of Defense. Requests for records in the

possession of the Department of Defense which were originated by non-

government organizations and are sought for their intrinsic content,

rather than informative value, will likely not contribute to public

understanding of the operations or activities of the Department of

Defense. An example of such records might be press clippings, magazine

articles, or records forwarding a particular opinion or concern from a

member of the public regarding a DoD activity. Similarly, disclosures

of records of considerable age may or may not bear directly on the

current activities of the Department of Defense; however, the age of a

particular record shall not be the sole criteria for denying relative

significance under this factor. It is possible to envisage an

informative issue concerning the current activities of the Department

of Defense, based upon historical documentation. Requests of this

nature must be closely reviewed consistent with the requester's stated

purpose for desiring the records and the potential for public

understanding of the operations and activities of the Department of

Defense.

(B) The informative value of the information to be disclosed. This

factor requires a close analysis of the substantive contents of a

record, or portion of the record, to determinate whether disclosure is

meaningful, and shall inform the public on the operations or activities

of the Department of Defense. While the subject of a request may

contain information that concerns operations or activities of the

Department of Defense, it may not always hold great potential for

contributing to a meaningful understanding of these operations or

activities. An example of such would be a previously released record

that has been heavily redacted, the balance of which may contain only

random words, fragmented sentences, or paragraph headings. A

determination as to whether a record in this situation will contribute

to the public understanding of the operations or activities of the

Department of Defense must be approached with caution, and carefully

weighed against the arguments offered by the requester. Another example

is information already known to be in the public domain. Disclosure of

duplicative, or nearly identical information already existing in the

public domain may add no meaningful new information concerning the

operations and activities of the Department of Defense.

(C) The contribution to an understanding of the subject by the

general public likely to result from disclosure. The key element in

determining the applicability of this factor is whether disclosure will

inform, or have the potential to inform the public, rather than simply

the individual requester or small segment of interested persons. The

identity of the requester is essential in this situation in order to

determine whether such requester has the capability and intention to

disseminate the information to the public. Mere assertions of plans to

author a book, researching a particular subject, doing doctoral

dissertation work, or indigence are insufficient without demonstrating

the capacity to further disclose the information in a manner that will

be informative to the general public. Requesters should be asked to

describe their qualifications, the nature of their research, the

purpose of the requested information, and their intended means of

dissemination to the public.

(D) The significance of the contribution to public understanding.

In applying this factor, Components must differentiate the relative

significance or impact of the disclosure against the current level of

public knowledge, or understanding which exists before the disclosure.

In other words, will disclosure on a current subject of wide public

interest be unique in contributing unknown facts, thereby enhancing

public knowledge, or will it basically duplicate what is already known

by the general public? A decision regarding significance requires

objective judgment, rather than subjective determination, and must be

applied carefully to determine whether disclosure will likely lead to a

significant understanding of the issue. Components shall not make value

judgments as to whether the information is important enough to be made

public.

(ii) Disclosure of the information ``is not primarily in the

commercial interest of the requester.''

(A) The existence and magnitude of a commercial interest. If the

request is determined to be of a commercial interest, Components should

address the magnitude of that interest to determine if the requester's

commercial interest is primary, as opposed to any secondary personal or

non-commercial interest. In addition to profitmaking organizations,

individual persons or other organizations may have a commercial

interest in obtaining certain records. Where it is difficult to

determine whether the requester is of a commercial nature, Components

may draw inference from the requester's identity and circumstances of

the request. In such situations, the provisions of paragraph (e) of

this section apply. Components are

[[Page 65439]]

reminded that in order to apply the commercial standards of the FOIA,

the requester's commercial benefit must clearly override any personal

or non-profit interest.

(B) The primary interest in disclosure. Once a requester's

commercial interest has been determined, Components should then

determine if the disclosure would be primarily in that interest. This

requires a balancing test between the commercial interest of the

request against any public benefit to be derived as a result of that

disclosure. Where the public interest is served above and beyond that

of the requester's commercial interest, a waiver or reduction of fees

would be appropriate. Conversely, even if a significant public interest

exists, and the relative commercial interest of the requester is

determined to be greater than the public interest, then a waiver or

reduction of fees would be inappropriate. As examples, news media

organizations have a commercial interest as business organizations;

however, their inherent role of disseminating news to the general

public can ordinarily be presumed to be of a primary interest.

Therefore, any commercial interest becomes secondary to the primary

interest in serving the public. Similarly, scholars writing books or

engaged in other forms of academic research, may recognize a commercial

benefit, either directly, or indirectly (through the institution they

represent); however, normally such pursuits are primarily undertaken

for educational purposes, and the application of a fee charge would be

inappropriate. Conversely, data brokers or others who merely compile

government information for marketing can normally be presumed to have

an interest primarily of a commercial nature.

(4) Components are reminded that the factors and examples used in

this subsection are not all inclusive. Each fee decision must be

considered on a case-by-case basis and upon the merits of the

information provided in each request. When the element of doubt as to

whether to charge or waive the fee cannot be clearly resolved,

Components should rule in favor of the requester.

(5) In addition, the following circumstances describe situations

where waiver or reduction of fees are most likely to be warranted:

(i) A record is voluntarily created to prevent an otherwise

burdensome effort to provide voluminous amounts of available records,

including additional information not requested.

(ii) A previous denial of records is reversed in total, or in part,

and the assessable costs are not substantial (e.g. $15.00-$30.00).

(e) Fee assessment. (1) Fees may not be used to discourage

requesters, and to this end, FOIA fees are limited to standard charges

for direct document search, review (in the case of commercial

requesters) and duplication.

(2) In order to be as responsive as possible to FOIA requests while

minimizing unwarranted costs to the taxpayer, Components shall adhere

to the following procedures:

(i) Analyze each request to determine the category of the

requester. If the Component determination regarding the category of the

requester is different than that claimed by the requester, the

Component shall:

(A) Notify the requester to provide additional justification to

warrant the category claimed, and that a search for responsive records

will not be initiated until agreement has been attained relative to the

category of the requester. Absent further category justification from

the requester, and within a reasonable period of time (i.e., 30

calendar days), the Component shall render a final category

determination, and notify the requester of such determination, to

include normal administrative appeal rights of the determination.

(B) Advise the requester that, notwithstanding any appeal, a search

for responsive records will not be initiated until the requester

indicates a willingness to pay assessable costs appropriate for the

category determined by the Component.

(ii) Requesters should submit a fee declaration appropriate for the

following categories.

(A) Commercial. Requesters should indicate a willingness to pay all

search, review and duplication costs.

(B) Educational or noncommercial scientific institution or news

media. Requesters should indicate a willingness to pay duplication

charges in excess of 100 pages if more than 100 pages of records are

desired.

(C) All others. Requesters should indicate a willingness to pay

assessable search and duplication costs if more than two hours of

search effort or 100 pages of records are desired.

(iii) If the above conditions are not met, then the request need

not be processed and the requester shall be so informed.

(iv) In the situations described by paragraphs (e)(2)(i) and

(e)(2)(ii) of this section, Components must be prepared to provide an

estimate of assessable fees if desired by the requester. While it is

recognized that search situations will vary among Components, and that

an estimate is often difficult to obtain prior to an actual search,

requesters who desire estimates are entitled to such before committing

to a willingness to pay. Should Components' actual costs exceed the

amount of the estimate or the amount agreed to by the requester, the

amount in excess of the estimate or the requester's agreed amount shall

not be charged without the requester's agreement.

(v) No DoD Component may require advance payment of any fee; i.e.,

payment before work is commenced or continued on a request, unless the

requester has previously failed to pay fees in a timely fashion, or the

agency has determined that the fee will exceed $250.00. As used in this

sense, a timely fashion is 30 calendar days from the date of billing

(the fees have been assessed in writing) by the Component.

(vi) Where a Component estimates or determines that allowable

charges that a requester may be required to pay are likely to exceed

$250.00, the Component shall notify the requester of the likely cost

and obtain satisfactory assurance of full payment where the requester

has a history of prompt payments, or require an advance payment of an

amount up to the full estimated charges in the case of requesters with

no history of payment.

(vii) Where a requester has previously failed to pay a fee charged

in a timely fashion (i.e., within 30 calendar days from the date of the

billing), the Component may require the requester to pay the full

amount owed, plus any applicable interest, or demonstrate that he or

she has paid the fee, and to make an advance payment of the full amount

of the estimated fee before the Component begins to process a new or

pending request from the requester. Interest will be at the rate

prescribed in 31 U.S.C. 3717, and confirmed with respective Finance and

Accounting Offices.

(viii) After all work is completed on a request, and the documents

are ready for release, Components may request payment before forwarding

the documents, particularly for those requesters who have no payment

history, or for those requesters who have failed previously to pay a

fee in a timely fashion (i.e., within 30 calendar days from the date of

the billing). In the case of the latter, the previsions of paragraph

(e)(2)(vii) of this section, apply.

(ix) When Components act under paragraphs (e)(2)(i) through

(e)(2)(vii) of this section, the administrative time limits of the FOIA

will begin only after the Component has received a willingness to pay

fees and satisfaction

[[Page 65440]]

as to category determination, or fee payments (if appropriate).

(x) Components may charge for time spent searching for records,

even if that search fails to locate records responsive to the request.

Components may also charge search and review (in the case of commercial

requesters) time in records located are determined to be exempt from

disclosure. In practice, if the Components estimates that search

charges are likely to exceed $25.00, it shall notify the requester of

the estimated amount of fees, unless the requester has indicated in

advance his or her willingness to pay fees as high as those

anticipated. Such a notice shall offer the requester the opportunity to

confer with Component personnel with the object or reformulating the

request to meet his or her needs at a lower cost.

(3) Commercial requesters. Fees shall be limited to reasonable

standard charges for document search, review and duplication when

records are requested for commerical use. Requesters must reasonably

describe the records sought. (See Sec. 286.4(h)).

(i) The term ``commercial use'' request refers to a request from,

or on behalf of one who seeks information for a use or purpose that

furthers the commercial, trade, or profit interest of the requester or

the person on whose behalf the request is made. In determining whether

a requester properly belongs in this category. Components must

determine the use to which a requester will put the documents

requested. Moreover, where a Component has reasonable cause to doubt

the use to which a requester will put the records sought, or where that

use is not clear from the request itself, Components should seek

additional clarification before assigning the request to a specific

category.

(ii) When Components receive a request for documents for commercial

use, they should assess charges which recover the full direct costs of

searching for, reviewing for release, and duplicating the records

sought. Commerical requesters (unlike other requesters) are not

entitled to two hours of free search time, nor 100 free pages of

reproduction of documents. Moreover, commerical requesters are not

normally entitled to a waiver or reduction of fees based upon an

assertion that disclosure would be in the public interest. However,

because use is the exclusive determining criteria, it is possible to

envision a commerical enterprise making a request that is not for

commercial use. It is also possible that a non-profit organization

could make a request that is for commerical use. Such situations must

be addressed on a case-by-case basis.

(4) Educational institution requesters. Fees shall be limited to

only reasonable standard charges for document duplication (excluding

charges for the first 100 pages) when the request is made by an

educational institution whose purpose is scholarly research. Requesters

must reasonably describe the records sought (see Sec. 286.4(h).). The

term ``educational institution'' refers to a pre-school, a public or

private elementary or secondary school, an institution of graduate high

education, an institution of undergraduate higher education, an

institution of professional education, and an institution of vocational

education, which operates a program or programs of scholarly research.

Fees shall be waived or reduced in the public interest if the criteria

of paragraph (d) of this section, have been met.

(5) Non-commercial scientific institution requesters. Fees shall be

limited to only reasonable standard charges for document duplication

(excluding charges for the first 100 pages) when the request is made by

a non-commerical scientific institution whose purpose is scientific

research. Requesters must reasonbly describe the records sought (see

Sec. 286.4(h)). The term ``non-commercial scientific institution''

refers to an institution that is not operated on a ``commercial'' basis

as defined in paragraph (e)(3) of this section, and that is operated

solely for the purpose of conducting scientific research, the results

of which are not intended to promote any particular product or

industry. Fees shall be waived or reduced in the public interest if the

criteria of paragraph (d) of this section, have beem met.

(6) Components shall provide documents to requesters in paragraphs

(e)(4) and (e)(5) of this section for the cost of duplication alone,

excluding charges for the first 100 pages. To be eligible for inclusion

in these categories, requesters must show that the request is being

made under the auspices of a qualifying institution and that the

records are not sought for commercial use, but in furtherance of

scholarly (from an educational institution) or scientific (from a non-

commercial scientific institution) research.

(7) Representatives of the news media. Fees shall be limited to

only reasonable standard charges for document duplication (excluding

charges for the first 100 pages) when the request is made by a

representative of the news media. Requesters must reasonably describe

the records sought (see Sec. 286.4(h)). Fees shall be waived or reduced

if the criteria of paragraph (d) of this section, have been met.

(i) The term ``representative of the news media'' refers to any

person actively gathering news for an entity that is organized and

operated to publish or broadcast news to the public. The term ``news''

means information that is about current events or that would be of

current interest to the public. Examples of news media entities include

television or radio stations broadcasting to the public at large, and

publishers of periodicals (but only in those instances when they can

qualify as disseminators of ``news'') who make their products available

for purchase or subscription by the general public. These examples are

not meant to be all-inclusive. Moreover, as traditional methods of news

delivery evolve (e.g., electronic dissemination of newspapers through

telecommunications services), such alternative media would be included

in this category. In the case of ``freelance'' journalists they may be

regarded as working for a news organization if they can demonstrate a

solid basis for expecting publication through that organization, even

though not actually employed by it. A publication contract would be the

clearest proof, but Components may also look to the past publication

record of a requester in making this determination.

(ii) To be eligible for inclusion in this category, a requester

must meet the criteria in paragraph (e)(7)(i) of this section, and his

or her request must not be made for commercial use. A request for

records supporting the news dissemination function of the requester

shall not be considered to be a request that is for a commercial use.

For example, a document request by a newspaper for records relating to

the investigation of a defendant in a current criminal trial of public

interest could be presumed to be a request from an entity eligible for

inclusion in this category, and entitled to records at the cost of

reproduction alone (excluding charges for the first 100 pages).

(iii) ``Representative of the news media'' does not include private

libraries, private repositories of Government records, information

vendors, data brokers or similar marketers of information whether to

industries and businesses, or other entities.

(8) All other requesters. Components shall charge requesters who do

not fit into any of the categories described in paragraphs (e)(3),

(e)(4), (e)(5), or (e)(7) of this section, fees which recover the full

direct cost of searching for and duplicating records, except that the

first two hours of search time and the first 100 pages of duplication

shall be furnished without charge. Requesters

[[Page 65441]]

must reasonably describe the records sought (see Sec. 286.4(h)).

Requests from subjects about themselves will continue to be treated

under the fee provisions of the Privacy Act of 1974, which permit fees

only for duplication. Components are reminded that this category of

requester may also be eligible for a waiver or reduction of fees if

disclosure of the information is in the public interest as defined

under paragraph (d)(1) of this section. (See also paragraph (e)(3)(ii)

of this section.)

(f) Aggregating requests. Except for requests that are for a

commercial use, a Component may not charge for the first two hours of

search time or for the first 100 pages of reproduction. However, a

requester may not file multiple requests at the same time, each seeking

portions of a document of documents, solely in order to avoid payment

of fees. When a Component reasonably believes that a requester or, on

rare occasions, a group of requesters acting on concert, is attempting

to break a request down into a series of requests for the purpose of

avoiding the assessment of fees, the Agency may aggregate any such

requests and charge accordingly. One element to be considered in

determining whether a belief would be reasonable is the time period in

which the requests have occurred. For example, it would be reasonable

to presume that multiple requests of this type made within a 30 day

period had been made to avoid fees. For requests made over a longer

period however, such a presumption becomes harder to sustain and

Components should have a solid basis for determining that aggregation

is warranted in such cases. Components are cautioned that before

aggregating requests from more than one requester, they must have a

concrete basis on which to conclude that the requesters are acting in

concert and are acting specifically to avoid payment of fees. In no

case may Components aggregate multiple requests on unrelated subjects

from one requester.

(g) Effect of the Debt Collection Act of 1982 (5 U.S.C. 5515 note).

The Debt Collection Act of 1982 (5 U.S.C. 5515 note) provides for a

minimum annual rate of interest to be charged on overdue debts owed the

Federal Government. Components may levy this interest penalty for any

fees that remain outstanding 30 calendar days from the date of billing

(the first demand notice) to the requester of the amount owed. The

interest rate shall be as prescribed in 31 U.S.C. 3717. Components

should verify the current interest rate with respective Finance and

Accounting Offices. After one demand letter has been sent, and 30

calendar days have lapsed with no payment, Components may submit the

debt to respective Finance and Accounting Offices for collection

pursuant to 5 U.S.C. 5515 note.

(h) Computation of fees. The fee schedule in this subpart shall be

used to compute the search, review (in the case of commercial

requesters) and duplication costs associated with processing a given

FOIA request. Costs shall be computed on time actually spent. Neither

time-based nor dollar-based minimum charges for search, review and

duplication are authorized. The appropriate fee category of the

requester shall be applied before computing fees.

(i) Refunds. In the event that a Component discovers that it has

overcharged a requester or a requester has overpaid, the Component

shall promptly refund the charge to the requester by reimbursement

methods that are agreeable to the requester and the Component.

Sec. 286.29 Collection of fees and fee rates.

(a) Collection of fees. Collection of fees will be made at the time

of providing the documents to the requester or recipient when the

requester specifically states that the costs involved shall be

acceptable or acceptable up to a specified limit that covers

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