Availability of Records and Publication of Documents Affecting the Public

SUMMARY: This rule amends regulations on the Department of the Navy's

Freedom of Information Act (FOIA) Program. This rule reflects changes

in the Secretary of the Navy's procedures.

DATES: Effective September 14, 1999.

ADDRESSES: Department of the Navy PA/FOIA Policy Branch, Office of the

Chief of Naval Operations, 2000 Navy Pentagon, Washington, DC 20350-

2000.

FOR FURTHER INFORMATION CONTACT: Mrs. Doris M. Lama, Head, DON PA/FOIA

Policy Branch, Office of the Chief of Naval Operations, 2000 Navy

Pentagon, Washington, DC 20350-2000, Telephone: (202) 685-6545.

SUPPLEMENTARY INFORMATION: Pursuant to the authority cited below, the

Department of the Navy amends 32 CFR part 701, subparts A, B, C, and D

derived from the Secretary of the Navy Instruction 5720.42 series,

which implements within the Department of the Navy the provisions of

Department of Defense Directives 5400.7 and 5400.7-R series, Department

of Defense Freedom of Information Act Program (32 CFR part 286). This

rule is being published by the Department of the Navy for guidance and

interest of the public in accordance with 5 U.S.C. 552(a)(1). It has

been determined that invitation of public comment on these changes to

the Department of the Navy's implementing instruction prior to adoption

would be impracticable and unnecessary, and it is therefore not

required under the public rulemaking provisions of 32 CFR parts 286 and

701, subpart E, and 5 U.S.C. 553(b). Interested persons, however, are

invited to comment in writing on this amendment. All written comments

received will be considered in making subsequent amendments or

revisions to 32 CFR part 701, subparts A, B, C, and D, or the

instruction upon which it is based. Changes may be initiated on the

basis of comments received. Written comments should be addressed to

Mrs. Doris M. Lama, Head, DON PA/FOIA Policy Branch, Office of the

Chief of Naval Operations, 2000 Navy Pentagon, Washington, DC 20350-

2000. It has been determined that this final rule is not a

``significant regulatory action'' as defined in Executive Order 12866.

List of Subjects in 32 CFR Part 701

Administrative practice and procedure, Freedom of Information,

Privacy.

Accordingly, the Department of the Navy revises 32 CFR part 701 to

read as follows:

PART 701--AVAILABILITY OF DEPARTMENT OF THE NAVY RECORDS AND

PUBLICATION OF DEPARTMENT OF THE NAVY DOCUMENTS AFFECTING THE

PUBLIC

Subpart A--Department of the Navy Freedom of Information Act (FOIA)

Program

Sec.

701.1 Purpose.

701.2 Navy FOIA website/FOIA handbook.

701.3 Applicability.

701.4 Responsibility and authority.

701.5 Policy.

701.6 Reading rooms.

701.7 Relationship between the FOIA and PA.

701.8 Processing FOIA requests.

701.9 Referrals.

701.10 Processing requests received from governmental officials.

701.11 Processing specific kinds of records.

701.12 FOIA appeals/litigation.

Subpart B--FOIA Definitions and Terms

701.13 5 U.S.C. 552(a)(1) materials.

701.14 5 U.S.C. 552(a)(2) materials.

701.15 5 U.S.C. 552(a)(3) materials.

701.16 Administrative appeal.

701.17 Affirmative information disclosure.

701.18 Agency record.

701.19 Appellate authority.

701.20 Discretionary disclosure.

701.21 Electronic record.

701.22 Exclusions.

701.23 Executive Order 12958.

701.24 Federal agency.

701.25 5 U.S.C. 552, Freedom of Information Act (FOIA).

701.26 FOIA exemptions.

701.27 FOIA terms location.

701.28 FOIA request.

701.29 Glomar response.

701.30 Initial Denial Authority (IDA).

701.31 Mosaic or compilation response.

701.32 Perfected request.

701.33 Public domain.

701.34 Public interest.

701.35 Reading room.

701.36 Release authorities.

701.37 Reverse FOIA.

701.38 Technical data.

701.39 Vaughn index.

Subpart C--FOIA Fees

701.40 Background.

701.41 FOIA fee terms.

701.42 Categories of requesters--applicable fees.

701.43 Fee declarations.

701.44 Restrictions.

701.45 Fee assessment.

701.46 Aggregating requests.

701.47 FOIA fees must be addressed in response letters.

701.48 Fee waivers.

701.49 Payment of fees.

701.50 Effect of the Debt Collection Act of 1982.

701.51 Refunds.

701.52 Computation of fees.

701.53 FOIA fee schedule.

701.54 Collection of fees and fee rates for technical data.

701.55 Processing FOIA fee remittances.

Subpart D--FOIA Exemptions

701.56 Background.

701.57 Ground rules.

701.58 In-depth analysis of FOIA exemptions.

701.59 A brief explanation of the meaning and scope of the nine

FOIA exemptions.

Authority: 5 U.S.C. 552.

Subpart A--Department of the Navy Freedom of Information Act (FOIA)

Program

Sec. 701.1 Purpose.

Subparts A, B, C, and D of this part issue policies and procedures

for implementing the Freedom of Information Act (5 U.S.C. 552), and

Department of Defense Directives 5400.7 and 5400.7-R series \1\

,Department of Defense Freedom of Information Act Program, (See 32 CFR

part 286) and promote uniformity in the Department of the Navy Freedom

of Information Act (FOIA) Program.

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

\1\ Copies may be obtained if needed from the Navy FOIA Website

at http://www.ogc.secnav.hq.navy.mil/foia/index.html

_____________________________________-

Sec. 701.2 Navy FOIA website/FOIA handbook.

(a) The Navy FOIA website (http://www.ogc.secnav.hq.navy.mil/foia/

index.html) is an excellent resource for requesters and FOIA

coordinators. It provides connectivity to the Navy's official website,

to other FOIA and non/FOIA websites, and to the Navy's electronic

reading rooms.

(b) FOIA requesters are encouraged to visit the Navy FOIA website

prior to filing a request. It features a FOIA Handbook which provides:

guidance on how and where to submit requests; what's releasable/what's

not; addresses for frequently requested information; time limits and

addresses for filing appeals, etc. FOIA requesters may also use the

electronic FOIA request form on the website to seek access to records

originated by the Secretary of the Navy (SECNAV) or the Chief of Naval

Operations (CNO).

Sec. 701.3 Applicability.

(a) Subparts A, B, C, and D of this part apply throughout the

Department of the Navy (DON) and take precedence over

[[Page 49851]]

other DON instructions, which may serve to supplement it [i.e., Public

Affairs Regulations, Security Classification Regulations, Navy

Regulations, Marine Corps Orders, etc.]. Further, issuance of

supplementary instructions by DON activities, deemed essential to the

accommodation of perceived requirements peculiar to those activities,

may not conflict.

(b) The FOIA applies to ``records'' maintained by ``agencies''

within the Executive Branch of the Federal government, including the

Executive Office of the President and independent regulatory agencies.

It states that ``any person'' (U.S. citizen; foreigner, whether living

inside or outside the United States; partnerships; corporations;

associations; and foreign and domestic governments) has the right

enforceable by law, to access Federal agency records, except to the

extent that such records (or portions thereof) are protected from

disclosure by one or more of the nine FOIA exemptions or one of three

special law enforcement exclusions.

(c) Neither Federal agencies nor fugitives from justice may use the

FOIA to access agency records.

(d) The Department of Defense (DoD) FOIA directive states that the

FOIA programs of the U.S. Atlantic Command and the U.S. Pacific Command

fall under the jurisdiction of the Department of Defense and not the

Department of the Navy. This policy represents an exception to the

policies directed under DoD Directive 5100.3, ``Support of the

Headquarters of Unified, Specified, and Subordinate Commands.''

Sec. 701.4 Responsibility and authority.

(a) The Head, DON PA/FOIA Policy Branch [CNO (N09B30)] has been

delegated the responsibility for managing the DON's FOIA program, which

includes setting FOIA policy and administering, supervising, and

overseeing the execution of the 5 U.S.C. 552 and Department of Defense

Directives 5400.7 and 5400.7-R series, Department of Defense Freedom of

Information Act Program (see 32 CFR part 286).

(1) As principal DON FOIA policy official, CNO (N09B30) issues

SECNAV Instruction 5720.42; oversees the administration of the DON FOIA

program; issues and disseminates FOIA policy; oversees the Navy FOIA

website; represents the DON at all meetings, symposiums, and

conferences that address FOIA matters; writes the Navy's FOIA Handbook;

serves on FOIA boards and committees; serves as principal policy

advisor and oversight official on all FOIA matters; prepares the DON

Annual FOIA Report for submission to the Attorney General; reviews all

FOIA appeals to determine trends that impact on the DON; reviews all

FOIA litigation matters involving the DON and apprises the Director,

Freedom of Information and Security Review, DoD of same; responds to

depositions and litigation regarding DON FOIA policy Secretary of the

Navy Instruction 5820.8A, Release of Information for Litigation

Purposes and Testimony by DON Personnel; reviews/analyzes all proposed

FOIA legislation to determine its impact on the DON; develops a Navy-

wide FOIA training program and serves as training oversight manager;

conducts staff assistance visits/reviews within the DON to ensure

compliance with 5 U.S.C. 552 and this part; reviews all SECNAV and

Operations Navy instructions/forms that address FOIA; and oversees the

processing of FOIA requests received by SECNAV and Chief of Naval

Operations (CNO), to ensure responses are complete, timely, and

accurate. Additionally, N09B30 works closely with other DoD and DON

officials to ensure they are aware of highly visible and/or sensitive

FOIA requests being processed by the DON.

(2) SECNAV has delegated Initial Denial Authority (IDA) to N09B30

for requests at the Secretariat and OPNAV level.

(b) The Commandant of the Marine Corps is delegated responsibility

for administering and supervising the execution of this instruction

within the Marine Corps. To accomplish this task, the Director of

Administrative Resource Management (Code ARAD) serves as the FOIA

Coordinator for Headquarters, U.S. Marine Corps, and assists CNO

(N09B30) in promoting the Department of the Navy FOIA Program by

issuing a Marine Corps FOIA Handbook; utilizing the Marine Corps FOIA

website to disseminate FOIA information; consolidating its activities

Annual FOIA Reports and submitting it to CNO (N09B30); maintaining a

current list of Marine Corps FOIA coordinators, etc.

(c) The DON Chief Information Officer (DONCIO) is responsible for

preparing and making publicly available upon request an index of all

DON major information systems and a description of major information

and record locator systems maintained by the Department of the Navy as

required by 5 U.S.C. 552 and DoD 5400.7-R, ``DoD Freedom of Information

Act Program.''

(d) FOIA coordinators will:

(1) Implement and administer a local FOIA program under this

instruction; serve as principal point of contact on FOIA matters; issue

a command/activity instruction that implements SECNAVINST 5740.42F by

reference and highlights only those areas unique to the command/

activity (i.e., designate the command/activity's FOIA Coordinator and

IDA; address internal FOIA processing procedures; and address command/

activity level FOIA reporting requirements); receive and track FOIA

requests to ensure responses are made in compliance with 5 U.S.C. 552

and DoD Directives 5400.7 and 5400.7-R and this part; provide general

awareness training to command/activity personnel on the provisions of 5

U.S.C. 552 and this instruction; collect and compile FOIA statistics

and submit a consolidated Annual FOIA Report to Echelon 2 FOIA

coordinator for consolidation; provide guidance on how to process FOIA

requests; and provide guidance on the scope of FOIA exemptions.

(2) Additionally, CMC (ARAD) and Echelon 2 FOIA coordinators will:

(i) Ensure that reading room materials are placed in the activity's

electronic reading room and that the activity's website is linked to

the Navy FOIA website and the activity's reading room is linked to the

Navy's FOIA reading room lobby. Documents placed in the reading room

shall also be indexed as a Government Information Locator Service

(GILS) record, as this will serve as an index of available records.

(ii) Review proposed legislation and policy recommendations that

impact the FOIA and provide comments to CNO (N09B30).

(iii) Review SECNAVINST 5720.42F and provide recommended changes/

comments to CNO (N09B30).

(iv) Routinely conduct random staff assistance visits/reviews/self-

evaluations within the command and lower echelon commands to ensure

compliance with FOIA.

(v) Collect and compile command and feeder reports for the Annual

FOIA Report and provide a consolidated report to CNO (N09B30).

(vi) Maintain a listing of their subordinate activities' FOIA

coordinators to include full name, address, and telephone (office and

fax) and place on their website.

(Note to paragraph (d)(2)(vi): Do not place names of FOIA

coordinators who are overseas, routinely deployable or in sensitive

units on the website. Instead just list ``FOIA Coordinator'')

(vii) Notify CNO (N09B30) of any change of name, address, office

code and zip code, telephone and facsimile number, and/or e-mail

address of Echelon 2 FOIA Coordinators.

(viii) Conduct overview training to ensure all personnel are

knowledgeable

[[Page 49852]]

of the FOIA and its requirements. See Sec. 701.12.

(ix) Work closely with the activity webmaster to ensure that

information placed on the activity's website does not violate

references in paragraphs (a), (c) and (f).

(e) Initial Denial Authorities (IDAs). The following officials are

delegated to serve as Initial Denial Authorities, on behalf of SECNAV

(see Sec. 701.30 for definition):

(1) Under Secretary of the Navy; Deputy Under Secretary of the

Navy; Assistant Secretaries of the Navy (ASNs) and their principal

deputy assistants; Assistant for Administration (SECNAV); Director,

Administrative Division (SECNAV); Special Assistant for Legal and

Legislative Affairs (SECNAV); Director, Office of Program Appraisal

(SECNAV); DONCIO; Director, Small and Disadvantaged Business

Utilization (SECNAV); Chief of Information (CHINFO); Director, Navy

International Programs Office; Chief of Legislative Affairs; CNO; Vice

CNO; Director, Naval Nuclear Propulsion Program (NOON); Director, Navy

Staff (N09B); Head, DON PA/FOIA Policy Branch (N09B30); Director of

Naval Intelligence (N2); Director of Space, Information Warfare,

Command and Control (N6); Director of Navy Test & Evaluation &

Technology Requirements (N091); Surgeon General of the Navy (N093);

Director of Naval Reserve (N095); Oceanographer of the Navy (N096);

Director of Religious Ministries/Chief of Chaplains of the Navy (N097);

all Deputy Chiefs of Naval Operations; Chief of Naval Personnel;

Director, Strategic Systems Programs; Chief, Bureau of Medicine and

Surgery; Director, Office of Naval Intelligence; Naval Inspector

General; Auditor General of the Navy; Commanders of the Naval Systems

Commands; Chief of Naval Education and Training; Commander, Naval

Reserve Force; Chief of Naval Research; Director, Naval Criminal

Investigative Service; Deputy Commander, Naval Legal Service Command;

Commander, Navy Personnel Command; Director, Naval Center of Cost

Analysis; Commander, Naval Meteorology and Oceanography Command;

Director, Naval Historical Center; heads of DON staff offices, boards,

and councils; Program Executive Officers; and all general officers.

(2) Within the Marine Corps: CMC and his Assistant, Chief of Staff,

Deputy Chiefs of Staff; Director, Personnel Management Division; Fiscal

Director of the Marine Corps; Counsel for the Commandant; Director of

Intelligence; Director, Command, Communications and Computer Systems

Division; Legislative Assistant to the Commandant; Director, Judge

Advocate Division; Inspector General of the Marine Corps; Director,

Manpower, Plans, and Policy Division; Head, Freedom of Information and

Privacy Acts Section, HQMC; Director of Public Affairs; Director of

Marine Corps History and Museums; Director, Personnel Procurement

Division; Director, Morale Support Division; Director, Human Resources

Division; Director of Headquarters Support; commanding generals;

directors, Marine Corps districts; commanding officers, not in the

administrative chain of command of a commanding general or district

director. For each official listed above, the deputy or principal

assistant is also authorized denial authority.

(3) JAG and his Deputy and the DON General Counsel (DONGC) and his

deputies are excluded from this grant of authorization, since SECNAV

has delegated them to serve as his appellate authorities. However, they

are authorized to designate IDA responsibilities to other senior

officers/ officials within JAG and DONGC. DONGC has delegated IDA

responsibilities to the Assistant General Counsels and the Associate

General Counsel (Litigation).

(4) For the shore establishment and operating forces: All officers

authorized by Article 22, Uniform Code of Military Justice (UCMJ) or

designated in section 0120, Manual of the Judge Advocate General

(JAGINST 5800.7C) to convene general courts-martial.

(5) IDAs must balance their decision to centralize denials for the

purpose of promoting uniform decisions against decentralizing denials

to respond to requests within the FOIA time limits. Accordingly, the

IDAs listed in paragraphs (e)(1) through (4) are authorized to delegate

initial denial authority to subordinate activities for the purpose of

streamlining FOIA processing. They may also delegate authority to a

specific staff member, assistant, or individuals acting during their

absence if this serves the purpose of streamlining and/or complying

with the time limits of FOIA.

(Note to paragraph (e)(5): Such delegations shall be limited to

comply with DoD Directive 5400.7, ``DoD Freedom of Information Act

Program''.)

(6) Delegations of IDA authority should be reflected in the

activity's supplementing FOIA instruction or by letter, with a copy to

CNO (N09B30) or CMC (ARAD), as appropriate.

(f) Release authorities. Release authorities are authorized to

grant requests on behalf of the Office of the Secretary of the Navy for

agency records under their possession and control for which no FOIA

exemption applies; to respond to requesters concerning refinement of

their requests; to provide fee estimates; and to offer appeal rights

for adequacy of search or fee estimates to the requester.

(g) Appellate authorities are addressed in Sec. 701.12.

Sec. 701.5 Policy.

(a) Compliance with the FOIA. DON policy is to comply with the FOIA

as set forth in the Department of Defense's FOIA Directives 5400.7 and

5400.7-R, and this instruction in this part in both letter and spirit;

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

security and adherence to other requirements of law and regulation; and

provide the public with the maximum amount of accurate and timely

information concerning its activities.

(b) Prompt action. DON activities shall act promptly on requests

when a member of the public complies with the procedures established in

the instruction in this part (i.e., files a ``perfected request'') and

the request is received by the official designated to respond. See

Sec. 701.11 for minimum requirements of the FOIA.

(c) Provide assistance. DON activities shall assist requesters in

understanding and complying with the procedures established by the

instruction in this part, ensuring that procedural matters do not

unnecessarily impede a requester from obtaining DON records promptly.

(d) Grant access. (1) DON activities shall grant access to agency

records when a member of the public complies with the provisions of the

instruction in this part and there is no FOIA exemption available to

withhold the requested information (see subpart D of this part).

(2) In those instances where the requester has not cited FOIA, but

the records are determined to be releasable in their entirety, the

request shall be honored without requiring the requester to invoke

FOIA.

(e) Create a record. (1) A record must exist and be in the

possession and control of the DON at the time of the request to be

considered subject to the instruction in this part and the FOIA.

Accordingly, DON activities need not process requests for records which

are not in existence at the time the request is received. In other

words, requesters may not have a ``standing FOIA request'' for release

of future records.

(2) There is no obligation to create, compile, or obtain a record

to satisfy a FOIA request. However, this is not to be confused with

honoring form or format requests (see Sec. 701.8). A DON activity,

[[Page 49853]]

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 C of this part.

(3) With respect to 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, DON activities 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 when 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

interference with the operation of the DON activity's automated

information system would not be a business as usual approach.

(f) Disclosures. (1) Discretionary Disclosures. DON activities

shall make discretionary disclosures whenever disclosure would not

foreseeably harm an interest protected by a FOIA exemption. A

discretionary disclosure is normally not appropriate for records

clearly exempt under exemptions (b)(1), (b)(3), (b)(4), (b)(6),

(b)(7)(C) and (b)(7)(F). Exemptions (b)(2), (b)(5), and (b)(7)(A),

(b)(7)(B), (b)(7)(D) and (b)(7)(E) are discretionary in nature and DON

activities are encouraged to exercise discretion whenever possible.

Exemptions (b)(4), (b)(6), and (b)(7)(C) cannot be claimed when the

requester is the ``submitter'' of the information. While discretionary

disclosures to FOIA requesters constitute a waiver of the FOIA

exemption that may otherwise apply, this policy does not create any

legally enforceable right.

(2) Public domain. Non-exempt records released under FOIA to a

member of the public are considered to be in the public domain.

Accordingly, such records may also be made available in reading rooms,

in paper form, as well as electronically to facilitate public access.

(3) Limited disclosures. Disclosure of records to a properly

constituted advisory committee, to Congress, or to other Federal

agencies does not waive a FOIA exemption.

(4) Unauthorized disclosures. Exempt records disclosed without

authorization by the appropriate DON official do not lose their exempt

status.

(5) Official versus personal disclosures. While authority may exist

to disclose records to individuals in their official capacity, the

provisions of the instruction in this part apply if the same individual

seeks the records in a private or personal capacity.

(6) Distributing information. DON activities are encouraged to

enhance access to information by distributing information on their own

initiative through the use of electronic information systems, such as

the Government Information Locator Service (GILS).

(g) Honor form or format requests. DON activities shall provide the

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

is readily reproducible in that form or format. DON activities shall

make reasonable efforts to maintain their records in forms or formats

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

activities 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 DON activities' automated

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

basis.

(h) Authenticate documents. Records provided under the instruction

in 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. DON activities may charge

for the service at a rate of $5.20 for each authentication.

Sec. 701.6. Reading rooms.

The FOIA requires that (a)(2) records created on or after 1

November 1996, be made available electronically (starting 1 November

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. DoD 5400.7-R, ``DoD Freedom of Information Act Program,''

requires that each DoD Component provide an appropriate facility or

facilities where the public may inspect and copy or have copied the

records held in their reading rooms. To comply, the Navy FOIA website

includes links that assist members of the public in locating Navy

libraries, online documents, and Navy electronic reading rooms

maintained by SECNAV/CNO, CMC, OGC, JAG and Echelon 2 commands.

Although each of these activities will maintain their own document

collections on their own servers, the Navy FOIA website provides a

common gateway for all Navy online resources. To this end, DON

activities shall:

(a) Establish their reading rooms and link them to the Navy FOIA

Reading Room Lobby which is found on the Navy FOIA website.

(b) Ensure that responsive documents held by their subordinate

activities are also placed in the reading room.

(Note to paragraph (b): SECNAV/ASN and OPNAV offices shall

ensure that responsive documents are provided to CNO (N09B30) for

placement in the reading room.)

(c) Ensure that documents placed in a reading room are properly

excised to preclude the release of personal or contractor-submitted

information prior to being made available to the 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 DON activity 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 DON activity may refer

to this description rather than write a separate justification for each

deletion. DON activities may remove (a)(2)(D) records from their

electronic reading room when the appropriate officials determine that

access is no longer necessary.

(d) Should a requester submit a FOIA request for FOIA-processed

(a)(2) records, and insist that the request be processed, DON

activities shall process the FOIA request. However, DON activities have

no obligation to process a FOIA request for 5 U.S.C. 552(a)(2)(A), (B),

and (C) [5 U.S.C. 552] records because these records are required to be

made public and not FOIA-processed under paragraph (a)(3) of the FOIA.

(e) DON activities may share reading room facilities if the public

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

be imposed on the person requesting the

[[Page 49854]]

material in accordance with FOIA fee guidelines (see subpart C of this

part).

(f) DON activities shall maintain an index of all available

documents. A general index of FOIA-processed (a)(2) records shall be

made available to the public, both in hard copy and electronically by

31 December 1999. To comply with this requirement, DON activities shall

establish a GILS record for each document it places in a reading room.

No (a)(2) materials issued or adopted after 4 July 1967, that are not

indexed and either made available or published may be relied upon, used

or cited as precedent against any individual unless such individual has

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

materials issued or adopted before 4 July 1967, need not be indexed,

but must be made available upon request if not exempted under the

instruction in this part.

(g) An index and copies of unclassified Navy instructions, forms,

and addresses for DON activities (i.e., the Standard Navy Distribution

List (SNDL) are located on the Navy Electronics Directives System

(http://neds.nebt.daps.mil/).

(h) DON 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 by JAG in their FOIA reading room and

electronically to the public.

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

requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials

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

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

``(a)(1)'' materials are: descriptions of an agency's central and field

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

procedures, descriptions of forms available, instruction as to the

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

amendment, revision, or report of the aforementioned.

Sec. 701.7 Relationship between the FOIA and PA.

Not all requesters are knowledgeable of the appropriate statutory

authority to cite when requesting records. In some instances, they may

cite neither Act, but will imply one or both Acts. For these reasons,

the following guidelines are provided to ensure requesters receive the

greatest amount of access rights under both Acts:

(a) If the record is required to be released under the FOIA, the PA

does not bar its disclosure. Unlike the FOIA, the PA applies only to

U.S. citizens and aliens admitted for permanent residence. Subpart F of

this part implements the DON's Privacy Act Program.

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

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

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

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

552a(d)(1) and the records, or any portion thereof are exempt under the

FOIA, the requester shall be so advised with the appropriate PA and

FOIA exemption. Appeals shall be processed under both Acts.

(c) Requesters who seek records about themselves that are not

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

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

the PA does not apply to these records. Appeals shall be processed

under the FOIA.

(d) Requesters who seek records about themselves that are contained

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

will have their requests processed under the provisions of both the PA

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

of 5 U.S.C. 552a(d)(1), and the records, or any portion thereof are

exempt under the FOIA, the requester shall be so advised with the

appropriate PA and FOIA exemption. Appeals shall be processed under

both Acts.

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

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

have their requests processed under FOIA, since the PA does not apply

to these records. Appeals shall be processed under the FOIA.

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

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

FOIA.

(g) Requesters shall be advised in final responses which Act(s) was

(were) used, inclusive of appeal rights.

(h) The time limits for responding to the request will be

determined based on the Act cited. For example, if a requester seeks

access under the FOIA for his or her personal records which are

contained in a PA system of records, the time limits of the FOIA apply.

(i) Fees will be charged based on the kind of records being

requested (i.e., FOIA fees if agency records are requested; PA fees for

requesters who are seeking access to information contained in a PA

system of record which is retrieved by their name and/or personal

identifier).

Sec. 701.8 Processing FOIA requests.

Upon receipt of a FOIA request, DON activities shall:

(a) Review the request to ensure it meets the minimum requirements

of the FOIA to be processed.

(1) Minimum requirements of a FOIA request. A request must be in

writing; cite or imply FOIA; reasonably describe the records being

sought so that a knowledgeable official of the agency can conduct a

search with reasonable effort; and if fees are applicable, the

requester should include a statement regarding willingness to pay all

fees or those up to a specified amount or request a waiver or reduction

of fees.

(2) If a request does not meet the minimum requirements of the

FOIA, DON activities shall apprise the requester of the defect and

assist him/her in perfecting the request.

(Note to paragraph (a)(2): The statutory 20 working day time

limit applies upon receipt of a ``perfected'' FOIA request.)

(b) When a requester or his/her attorney requests personally

identifiable information in a record, the request may require a

notarized signature or a statement certifying under the penalty of

perjury that their identity is true and correct. 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.

(c) Review description of requested record(s). (1) The FOIA

requester is responsible for describing the record he/she seeks so that

a knowledgeable official of the activity can locate the record with a

reasonable amount of effort. In order to assist DON activities in

conducting more timely searches, a requester should endeavor to provide

as much identifying information as possible. When a DON activity

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 this paragraph. DON activities are not obligated to act on the

request until the requester responds to the specificity letter. When

practicable, DON activities 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 FOIA. 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

[[Page 49855]]

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.

(2) 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 DON activity'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.

(3) The following guidelines deal with requests for personal

records: Ordinarily, when personal identifiers are provided solely in

connection with a request for records concerning the requester, only

records in Privacy Act system of records that can be retrieved by

personal identifiers need be searched. However, if a DON activity has

reason to believe that records on the requester may exist in a record

system other than a PA system, the DON activity shall search the system

under the provisions of the FOIA. In either case, DON activities may

request a reasonable description of the records desired before

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

If the records are required to be released under the FOIA, the PA does

not bar its disclosure.

(4) The guidelines in paragraph (c)(3) notwithstanding, the

decision of the DON activity concerning reasonableness of description

must be based on the knowledge of its files. If the description enables

the DON activity 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 DON

activity to deny the request on the ground that it does not reasonably

describe the records sought. The key factor is the ability of the staff

to reasonably ascertain and locate which records are being requested.

(d) Review request to determine if FOIA fees may be applicable. (1)

FOIA fee issues shall be resolved before a DON activity begins

processing a FOIA request.

(2) FOIA fees shall be at the rates prescribed at subpart C of this

part.

(3) If fees are applicable, a requester shall be apprised of what

category of requester he/she has been placed and provided a complete

breakout of fees to include any and all information provided before

fees are assessed (e.g., first two hours of search and first 100 pages

of reproduction have been provided without charge.)

(4) Forms DD 2086 (for FOIA requests) and 2086-1 (for FOIA requests

for technical data) serve as an administrative record of all costs

incurred to process a request; actual costs charged to a requester

(i.e., search, review, and/or duplication and at what salary level and

the actual time expended); and as input to the Annual FOIA Report.

Requesters may request a copy of the applicable form to review the time

and costs associated with the processing of a request.

(5) Final response letters shall address whether or not fees are

applicable or have been waived. A detailed explanation of FOIA fees is

provided at subpart C of this part.

(e) Control FOIA Request. Each FOIA request should be date stamped

upon receipt; given a case number; and entered into a formal control

system to track the request from receipt to response. Coordinators may

wish to conspicuously stamp, label, and/or place the request into a

brightly colored folder/cover sheet to ensure it receives immediate

attention by the action officer.

(f) Enter request into multitrack processing system. When a DON

activity 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.

(1) DON activities may establish as many queues as they wish,

however, at a minimum three processing tracks shall be established, all

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

receipt of the request: one track for simple requests, one track for

complex requests, and one track for expedited processing.

Determinations as to whether a request is simple or complex shall be

made by each DON activity.

(2) DON activities shall provide a requester whose request does not

qualify for the fastest queue (except for expedited processing), an

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

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

fastest queue.

(3) This multitrack processing system does not obviate the

activity's responsibility to exercise due diligence in processing

requests in the most expeditious manner possible.

(4) Referred requests shall be processed according to the original

date received by the initial activity and then placed in the

appropriate queue.

(5) Establish a separate queue for expedited processing. A separate

queue shall be established for requests meeting the test for expedited

processing. Expedited processing shall be granted to a requester after

the requester requests such and demonstrates a compelling need for the

information. Notice of the determination as to whether to grant

expedited processing in response to a requester's compelling need shall

be provided to the requester within 10 calendar days after receipt of

the request in the office which will determine whether to grant

expedited access. Once the determination has been made to grant

expedited processing, DON activities shall process the request as soon

as practicable. Actions by DON activities 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 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.

(iii) 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.

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

made by a statement certified by the requester to be

[[Page 49856]]

true and correct to the best of his/her 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.

(v) Other reasons that merit expedited processing by DON activities

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/her knowledge. Humanitarian need

means that disclosing the information will promote the welfare and

interests of mankind. A demonstration of humanitarian need shall also

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

correct to the best of his/her knowledge. Both of these statements 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.

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

processing of administrative appeals.

(g) Respond to request within FOIA time limits. Once an activity

receives a ``perfected'' FOIA request, it shall inform the requester of

its decision to grant or deny access to the requested records within 20

working days. Activities are not necessarily required to release

records within the 20 working days, but access to releasable records

should be granted promptly thereafter and the requester apprised of

when he/she may expect to receive a final response to his/her request.

Naturally, interim releases of documents are encouraged if appropriate.

Sample response letters are provided on the Navy FOIA website.

(1) If a significant number of requests, or the complexity of the

requests prevents a final response determination within the statutory

time period, DON activities shall advise the requester of this fact,

and explain how the request will be responded to within its multitrack

processing system. A final response determination is notification to

the requester that the records are released, or will be released by a

certain date, or the records are denied under the appropriate FOIA

exemption(s) or the records cannot be provided for one or more of the

``other reasons'' (see Sec. 701.8(n)). 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 under FOIA.

(2) Formal extension. In those instances where a DON activity

cannot respond within the 20 working day time limit, the FOIA provides

for extension of initial time limits for an additional 10 working days

for three specific situations: the need to search for and collect

records from separate offices; the need to examine a voluminous amount

of records required by the request; and the need to consult with

another agency or agency component. In such instances, naval activities

shall apprise requesters in writing of their inability to respond

within 20 working days and advise them of their right to appeal to the

appellate authority.

(Note to paragraph (g)(2): Formal extension letters require IDA

signature.)

(3) Informal extension. A recommended alternative to taking a

formal extension is to call the requester and negotiate an informal

extension of time with the requester. The advantages include the

ability to agree on a mutually acceptable date to respond that exceeds

a formal extension of an additional 10 working days, and the letter of

confirmation does not require the signature of an IDA. Additionally, it

does not impact on the additional days the appellate authority may take

when responding to a FOIA appeal.

(h) Conduct a search for responsive records. (1) Conduct a search

for responsive records, keeping in mind a test for reasonableness

(i.e., file disposition requirements set forth in SECNAVINST 5212.5D,

``Navy and Marine Corps Records Disposal Manual''). This includes

making a manual search for records as well as an electronic search for

records. Do not assume that because a document is old, it does not

exist. Rather, ensure that all possible avenues are considered before

making a determination that no record could be found (i.e., such as

determining if the record was transferred to a federal records center

for holding).

(2) Requesters can appeal ``adequacy of search.'' To preclude

unnecessary appeals, you are encouraged to detail your response letter

to reflect the search undertaken so the requester understands the

process. It is particularly helpful to address the records disposal

requirements set forth in SECNAVINST 5212.5D, ``Navy and Marine Corps

Records Disposal Manual'' for the records being sought.

(i) Review documents for release. Once documents have been located,

the originator or activity having possession and control is responsible

for reviewing them for release and coordinating with other activities/

agencies having an interest. The following procedures should be

followed:

(1) Sort documents by originator and make necessary referrals (see

Sec. 701.9).

(2) Documents for which the activity has possession and control

should be reviewed for release. If the review official determines that

all or part of the documents requested require denial, and the head of

the activity is an IDA, he/she shall respond directly to the requester.

If, however, the activity head is not an IDA, then the request, a copy

of the responsive documents (unexcised), proposed redacted copy of the

documents, and a detailed explanation regarding their release must be

referred to the IDA for a final release determination and the requester

shall be notified in writing of the transfer.

(3) Documents for which the activity does not have possession and

control, but has an interest, should be referred to the originator

along with any recommendations regarding release (see Sec. 701.9).

(j) Process non-responsive information in responsive documents. DON

activities shall interpret FOIA requests liberally when determining

which records are responsive to the requests, and may release non-

responsive information. However, should DON activities desire to

withhold non-responsive information, the following steps shall be

accomplished:

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

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

to deletion of non-responsive information without a FOIA exemption.

Reflect this concurrence in the response letter.

(2) If the responsive record is unclassified and the requester does

not agree to deletion of non-responsive information without a FOIA

exemption, release all non-responsive and responsive information which

is not exempt. For non-responsive information that is exempt, notify

the requester that even if the information were determined responsive,

it would likely be exempted (state the 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

[[Page 49857]]

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 provided.

The classified, non-responsive information need not be reviewed for

declassification at this point. Advise the requester than 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.

(k) Withholding/excising information. (1) DON records may only be

withheld if they qualify for exemption under one or more of the nine

FOIA exemptions/three exclusions and it is determined that a

foreseeable harm to an interest protected by those exemptions would

result if the information is released. There are nine FOIA exemptions.

See subpart D of this part for the scope of each exemption.

(2) Although a FOIA exemption may apply, DON activities are

encouraged to consider discretionary disclosures of information when an

exemption permits such disclosure (see Sec. 701.5(f).)

(3) Excising documents. The excision of information within a

document should be made so that the requester can readily identify the

amount of information being withheld and the reason for the

withholding. Accordingly, ensure that any deletion of information is

bracketed and all applicable exemptions listed. In those instances,

where multiple pages of documents are determined to be exempt from

disclosure in their entirety, indicate the number of pages being denied

and the basis for the denial.

(l) Reasonably segregable information. DON activities must release

all ``reasonably segregable information'' when the meaning of these

portions is not distorted by deletion of the denied portions, and when

it reasonably can be assumed that a skillful and knowledgeable person

could not reasonably reconstruct excised information. When a record is

denied in whole, the response to the requester will specifically state

that it is not reasonable to segregate portions of the record for

release.

(m) Making a discretionary disclosure. A discretionary disclosure

to one requester may preclude the withholding of similar information

under a FOIA exemption if subsequently requested by the same individual

or someone else. The following suggested language should be included

with the discretionary disclosure of any record that could be subject

to withholding: ``The information you requested is subject to being

withheld under section (b)(__) of the FOIA. The disclosure of this

material to you by the DON is discretionary and does not constitute a

waiver of our right to claim this exemption for similar records in the

future.''

(n) Other reasons. There are 10 reasons for not complying with a

request for a record under FOIA:

(1) No record. The DON activity conducts a reasonable search of

files and fails to identify records responsive to the request.

(Note to paragraph (n)(1): Requester must be advised that he/she

may appeal the adequacy of search and provided appeal rights.

Response letter does not require signature by IDA.)

(2) Referral. The request is referred to another DoD/DON activity

or to another executive branch agency for their action.

(Note to paragraph (n)(2): Referral does not need to be signed

by IDA.)

(3) Request withdrawn. The requester withdraws request.

(Note to paragraph (n)(3): Response letter does not require

signature by IDA.)

(4) Fee-related reason. Requester is unwilling to pay fees

associated with the request; is past due in payment of fees from a

previous request; or disagrees with the fee estimate.

(Note to paragraph (n)(4): Requester must be advised that he/she

may appeal the fee estimate. Response letter does not require

signature by IDA.)

(5) Records not reasonably described. A record has not been

described with sufficient particularity to enable the DON activity to

locate it by conducting a reasonable search.

(Note to paragraph (n)(5): Response letter does not require

signature by IDA.)

(6) Not a proper FOIA request for some other reason. When the

requester fails unreasonably to comply with procedural requirements,

other than those fee-related issues described in paragraph (n)(4),

imposed by the instruction in this part and/or other published rules or

directives.

(Note to paragraph (n)(6): Response letter does not require

signature by IDA.)

(7) Not an agency record. When the requester is provided a response

indicating that the requested information was ``not an agency record''

within the meaning of the FOIA and the instruction in this part.

(Note to paragraph (n)(7): Response letter does not require

signature by IDA.)

(8) Duplicate request. When a request is duplicative of another

request which has already been completed or currently in process from

the same requester.

(Note to paragraph (n)(8): Response letter does not require

signature by IDA.

(9) Other (specify). When a FOIA request cannot be processed

because the requester does not comply with published rules, other than

for those reasons described in paragraphs (n) (1) through (8). DON

activities must document the specific discrepancy.

(Note to paragraph (n)(9): Response letter does not require

signature by IDA.)

(10) Denial of request. The record is denied in whole or in part in

accordance with procedures set forth in 5 U.S.C. 552, DoD 5400.7-R, and

the instruction in this part.

(Note to paragraph (n)(10): The requester is advised that he/she

may appeal the determination and response letter must be signed by

IDA.)

(o) Writing a response letter. FOIA response letters should contain

the following information:

(1) The date of the request; when it was received; if records were

not located, where the search was conducted and what the records

disposal requirements are for those records.

(2) Cut-off dates. Normally, DON activities shall consider the date

of receipt of a FOIA request as the cut-off date for a records search.

Where a DON activity employs a particular cut-off date, however, it

should give notice of that date in the response letter to the

requester.

(3) If a request is denied in whole or in part, the denial response

letter should cite the exemption(s) claimed; if possible, delineate the

kinds of information withheld (i.e., social security numbers, date of

birth, home addresses, etc.) as this may satisfy the requester and thus

eliminate an appeal; provide appeal rights, and be signed by an IDA.

However, there is no requirement that the response contain the same

documentation necessary for litigation (i.e., FOIA requesters are not

entitled to a Vaughn index (see definition in Sec. 701.39 during the

administrative process).

(4) The fees charged or waived; if fees were charged, what category

was the requester placed in and provide a breakout of the fees charged

(i.e., the first 2 hours of search were waived and so you are being

charged for the remaining 4 hours of search at $25 per hour, or $100;

the first 100 pages of reproduction were waived and the remaining 400

pages being provided

[[Page 49858]]

were charged at $.15 per page, resulting in $60 in reproduction fees,

for a total of $160). These figures are derived from Form DD 2086 (FOIA

Fees) or Form DD 2086-1 (Technical Data Fees).

(5) Sample response letters are provided on the Navy FOIA website.

(p) Press responses. Ensure responses being made to the press are

cleared through public affairs channels.

(q) Special mail services. DON activities 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.

Sec. 701.9 Referrals.

(a) The DoD/DON FOIA referral policy is based upon the concept of

the originator of a record making a release determination on its

information. If a DON activity receives a request for records

originated by another DoD/DON activity, it should contact the activity

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

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

shall be advised of the action taken, unless exempt information would

be revealed.

(b) While referrals to originators of information result in

obtaining the best possible decision on release of the information, the

policy does not relieve DON activities 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,

DON activities should coordinate with the originator of the information

prior to making a release determination.

(c) A request received by a DON activity having no records

responsive to a request shall be referred routinely to another DoD/DON

activity, if the other activity has reason to believe it has the

requested record. Prior to notifying a requester of a referral to

another DoD/DON activity, the DON activity receiving the initial

request shall consult with the other DoD/DON activity to determine if

that activity's association with the material is exempt. If the

association is exempt, the activity receiving the initial request will

protect the association and any exempt information without revealing

the identity of the protected activity. The protected activity shall be

responsible for submitting the justifications required in any

litigation.

(d) Any DON activity receiving a request that has been misaddressed

shall refer the request to the proper address and advise the requester.

DON activities making referrals of requests or records shall include

with the referral, a point of contact by name, a telephone number

(commercial and DSN), and an e-mail address (if available).

(e) A DON activity shall refer a FOIA request for a record that it

holds but was originated by another Executive Branch agency, to them

for a release determination and direct response to the requester. 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.

(f) A DON activity may refer a request for a record that it

originated to another activity or agency when the activity or agency

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

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

record and a release recommendation on the record with the referral

action. DON activities should include a point of contact and telephone

number in the referral letter. If that organization is to respond

directly to the requester, apprise the requester of the referral.

(g) Within the DON/DoD, a DON activity shall ordinarily refer a

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

by another DON/DoD activity or that contains substantial information

obtained from that activity, to that activity for direct response,

after direct coordination and obtaining concurrence from the activity.

The requester shall be notified of such referral. In any case, DON

activities shall not release or deny such records without prior

consultation with the activity, except as provided in paragraph (c) of

this section.

(h) Activities receiving a referred request shall place it in the

appropriate processing queue based on the date it was initially

received by the referring activity/agency.

(i) Agencies outside the DON that are subject to the FOIA. (1) A

DON activity may refer a FOIA request for any record that originated in

an agency outside the DON 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 DON activity must respond to the request.

(Note: DON activities shall not refer documents originated by

entities outside the Executive Branch of Government (e.g., Congress,

State and local government agencies, police departments, private

citizen correspondence, etc.), to them for action and direct

response to the requester, since they are not subject to the FOIA).

(2) A DON activity 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 DON 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 DON activity may only respond directly to the

requester after coordination with the outside agency.

Sec. 701.10 Processing requests received from governmental officials.

(a) Members of Congress. Many constituents seek access to

information through their Member of Congress. Members of Congress who

seek access to records on behalf of their constituent are provided the

same information that the constituent would be entitled to receive.

There is no need to verify that the individual has authorized the

release of his/her record to the Congressional member, since the

Privacy Act's ``blanket routine use'' for Congressional inquiries

applies.

(b) Privileged release to U.S. Government officials. DON records

may be authenticated and released to U.S. Government officials if they

are requesting them in their official capacity on behalf of Federal

governmental bodies, whether legislative, executive, administrative, or

judicial. To ensure adequate protection of these documents, DON

activities shall inform officials receiving records under the

provisions of this paragraph that those records are exempt from public

release under FOIA. DON activities shall also mark the records as

``Privileged'' and ``Exempt from Public Disclosure'' and annotate any

special handling instructions on the records. Because such releases are

not made under the provisions of the FOIA, they do not impact on future

decisions to release/deny requests for the same records to other

requesters. Examples of privileged releases are:

(1) In response to a request from a Committee or Subcommittee of

Congress, or to either House sitting as a whole.

(2) To the Federal Courts, whenever ordered by officers of the

court as necessary for the proper administration of justice.

(3) To other Federal agencies, both executive and administrative,

as determined by the head of a DON activity or designee.

(c) State or local government officials. Requests from State or

local government

[[Page 49859]]

officials for DON records are treated the same as any other requester.

(d) Non-FOIA requests from foreign governments. Requests from

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

the appropriate foreign disclosure channels and the requester so

notified. See Sec. 701.11(c) regarding processing FOIA requests from

foreign governments and/or their officials.

Sec. 701.11 Processing specific kinds of records.

DON activities that possess copies or receive requests for the

following kinds of records shall promptly forward the requests to the

officials named in this section and if appropriate apprise the

requester of the referral:

(a) Classified records. Executive Order 12958 governs the

classification of records.

(1) Glomar response. In the instance where a DON activity receives

a request for records whose existence or nonexistence is itself

classifiable, the DON activity shall refuse to confirm or deny the

existence or non-existence of the records. This response is only

effective as long as it is given consistently. If it were to be known

that an agency gave a ``Glomar'' response only when records do exist

and gave a ``no records'' response otherwise, then the purpose of this

approach would be defeated. A Glomar response is a denial and exemption

(b)(1) is cited and appeal rights are provided to the requester.

(2) Processing classified documents originated by another activity.

DON activities shall refer the request and copies of the classified

documents to the originating activity for processing. If the

originating activity simply compiled the classified portions of the

document from other sources, it shall refer, as necessary, those

portions to the original classifying authority for their review and

release determination and apprise that authority of any recommendations

they have regarding release. If the classification authority for the

information cannot be determined, then the originator of the compiled

document has the responsibility for making the final determination.

Records shall be identified consistent with security requirements. Only

after consultation and approval from the originating activity, shall

the requester be apprised of the referral. In most cases, the

originating activity will make a determination and respond directly to

the requester. In those instances where the originating activity

determines a Glomar response is appropriate, the referring agency shall

deny the request.

(b) Courts-martial records of trial. The release/denial authority

for these records is the Office of the Judge Advocate General (Code

20), Washington Navy Yard, Building 111, Washington, DC 20374-1111.

Promptly refer the request and/or documents to this activity and

apprise the requester of the referral.

(c) Foreign requests/information. (1) FOIA requests received from

foreign governments/foreign government officials should be processed as

follows:

(i) When a DON activity receives a FOIA request for a record in

which an affected DoD/DON activity has a substantial interest in the

subject matter, or the DON activity receives a FOIA request from a

foreign government, a foreign citizen, or an individual or entity with

a foreign address, the DON activity receiving the request shall provide

a copy of the request to the affected DON activity.

(ii) Upon receiving the request, the affected activity shall review

the request for host nation relations, coordinate with Department of

State as appropriate, and if necessary, provide a copy of the request

to the appropriate foreign disclosure office for review. Upon request

by the affected activity, the DON activity receiving the initial

request shall provide a copy of releasable records to the affected

activity. The affected activity may further release the records to its

host nation after coordination with Department of State if release is

in the best interest of the United States Government. If the record is

released to the host nation government, the affected DON activity shall

notify the DON activity which initially received the request of the

release to the host nation.

(iii) Such processing must be done expeditiously so as not to

impede the processing of the FOIA request by the DON activity that

initially received the request.

(2) Non-U.S. Government Records (i.e., records originated by

multinational organizations such as the North Atlantic Treaty

Organization (NATO), the North American Air Defense (NORAD) and foreign

governments) which are under the possession and control of DON shall be

coordinated prior to a final release determination being made.

Coordination with foreign governments shall be made through the

Department of State.

(d) Government Accounting Office (GAO) documents. (1) On occasion,

the DON receives FOIA requests for GAO documents containing DON

information, either directly from requesters or as referrals from GAO.

Since the GAO is outside of the Executive Branch and therefore not

subject to FOIA, all FOIA requests for GAO documents containing DON

information will be processed by the DON under the provisions of the

FOIA.

(2) In those instances when a requester seeks a copy of an

unclassified GAO report, DON activities may apprise the requester of

its availability from the Director, GAO Distribution Center, ATTN:

DHISF, P.O. Box 6015, Gaithersburg, MD 20877-1450 under the cash sales

program.

(e) Judge Advocate General Manual (JAGMAN) investigative records.

These records are no longer centrally processed. Accordingly, requests

for investigations should be directed to the following officials:

(1) JAGMAN Investigations conducted prior to 1 Jul 95--to the Judge

Advocate General (Code 35), Washington Navy Yard, Suite 3000, 1322

Patterson Avenue, SE, Washington, DC 20374-5066.

(2) Command Investigation--to the command that conducted the

investigation.

(3) Litigation-Report Investigation--to the Judge Advocate General

(Code 35), Washington Navy Yard, Suite 3000, 1322 Patterson Avenue, SE,

Washington, DC 20374-5066.

(4) Court or Board of Inquiry--to the Echelon 2 commander over the

command that convened the investigation.

(f) Mailing lists. Numerous FOIA requests are received for mailing

lists of home addresses or duty addresses of DON personnel. Processing

of such requests is as follows:

(1) Home 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 (i.e.,

exemption (b)(6) applies).

(2) Disclosure of lists of names and duty addresses or duty

telephone numbers of persons assigned to units that are stationed in

foreign territories, routinely deployable, or sensitive, has also been

held by the courts to constitute a clearly unwarranted invasion of

personal privacy and must be withheld from disclosure under 5 U.S.C.

552(b)(6). General officers and public affairs officers information is

releasable. Specifically, disclosure of such information poses a

security threat to those service members because it reveals information

about their degree of involvement in military actions in support of

national policy, the type of Navy and/or Marine Corps units to which

they are attached, and their presence or absence from households.

Release of such information aids in the

[[Page 49860]]

targeting of service members and their families by terrorists or other

persons opposed to implementation of national policy. Only an

extraordinary public interest in disclosure of this information can

outweigh the need and responsibility of the DON to protect the

tranquility and safety of service members and their families who

repeatedly have been subjected to harassment, threats, and physical

injury. Units covered by this policy are:

(i) Those located outside of the 50 States, District of Columbia,

Commonwealth of Puerto Rico, Guam, U.S. Virgin Islands, and American

Samoa.

(ii) Routinely deployable units--Those units that normally deploy

from homeport or permanent station on a periodic or rotating basis to

meet operational requirements or participate in scheduled exercises.

This includes routinely deployable ships, aviation squadrons,

operational staffs, and all units of the Fleet Marine Force (FMF).

Routinely deployable units do not include ships undergoing extensive

yard work or those whose primary mission is support of training, e.g.,

yard craft and auxiliary aircraft landing training ships.

(iii) Units engaged in sensitive operations. Those primarily

involved in training for or conduct of covert, clandestine, or

classified missions, including units primarily involved in collecting,

handling, disposing, or storing of classified information and

materials. This also includes units engaged in training or advising

foreign personnel. Examples of units covered by this exemption are

nuclear power training facilities, SEAL Teams, Security Group Commands,

Weapons Stations, and Communications Stations.

(3) Except as otherwise provided, lists containing names and duty

addresses of DON personnel, both military and civilian, who are

assigned to units in the Continental United States (CONUS) and U.S.

territories shall be released regardless of who has initiated the

request.

(4) Exceptions to this policy must be coordinated with CNO (N09B30)

or CMC (ARAD) prior to responding to requests, including those from

Members of Congress. The policy in paragraphs (f) (1) through (3)

should be considered when weighing the releasability of the address or

telephone number of a specifically named individual.

(5) DON activities are reminded that e-mail addresses that identify

an individual who is routinely deployable, overseas, or assigned to a

sensitive unit should not be made available. Additionally,

organizational charts for these kinds of units and activities that

identify specific members should not be placed on the Internet.

(g) Medical quality assurance documents. The Chief, Bureau of

Medicine and Surgery (BUMED) is the release/denial authority for all

naval medical quality assurance documents as defined by Title 10,

United States Code, Section 1102. Requests for medical quality

assurance documents shall be promptly referred to BUMED and the

requester notified of the referral.

(h) Mishap investigation reports (MIRs). The Commander, Naval

Safety Center (NAVSAFECEN) is the release/denial authority for all

requests for mishap investigations or documents which contain mishap

information. All requests or documents located which apply shall be

promptly referred to the Commander, Naval Safety Center, Code 503, 375

A Street, Norfolk, VA 23511-4399 for action. Telephonic liaison with

NAVSAFECEN is encouraged. The requester shall be notified of the

referral.

(i) National Security Council (NSC)/White House. (1) DON activities

that receive requests for records of NSC, the White House, or the White

House/Military Office (WHMO) shall process the requests.

(2) DON records in which the NSC or the White House has a

concurrent reviewing interest, and NSC, White House, or WHMO records

discovered in DON activity files, shall be forwarded to CNO (N09B30),

2000 Navy Pentagon, Washington, DC 20350-2000. N09B30, in turn, will

coordinate the request directly with DFOISR, so DFOISR can coordinate

the request with NSC, White House, or WHMO. After coordination, the

records will be returned to the DON activity for their direct response

to the requester. During the interim, DON activities should notify the

requester that they are coordinating their request and a response will

therefore be delayed.

(j) Naval attache documents/information. The Director, Defense

Intelligence Agency (DIA) has the responsibility for reviewing for

release/denial any naval attache-originated documents/information.

Accordingly, FOIA requests for naval attache documents or copies of the

documents located in DON files or referred in error to a DON activity

shall be promptly referred to the Chief, Freedom of Information Act

Staff, Defense Intelligence Agency (SVI-1), Washington, DC 20340-5100

for action and direct response to the requester. Ensure that the

requester is notified in writing of the transfer to DIA.

(k) Naval Audit Service reports. The Director, Naval Audit Service

is the release/denial authority for their reports. All requests or

documents located which apply shall be promptly referred to the

Director, Naval Audit Service, 5611 Columbia Pike, NASSIF Building,

Falls Church, VA 22041-5080 for action. The requester shall be notified

of the referral.

(l) Naval Criminal Investigative Service (NCIS) reports. The

Director, NCIS is the release/denial authority for all NCIS reports/

information. All requests for and copies of NCIS reports located in DON

activity files shall be promptly referred to the Director, NCIS (Code

OOJF), Washington Navy Yard, Building 111, 716 Sicard Street, SE,

Washington, DC 20388-5380 for action and, if appropriate, the requester

so notified. Telephonic liaison with NCIS Headquarters is strongly

encouraged.

(m) Naval Inspector General (NAVINSGEN) reports. (1) NAVINSGEN is

the release/denial authority for all investigations and inspections

conducted by or at the direction of NAVINSGEN and for any records held

by any command that relate to Navy hotline complaints that have been

referred to the NAVINSGEN. Accordingly, such actions shall be promptly

referred to the Naval Inspector General (Code OOL), Building 200, Room

100, Washington Navy Yard, 901 M Street, SE, Washington, DC 20374-5006

for action and, if appropriate, the requester so notified.

(2) Requests for local command inspector general reports which have

not been referred to NAVINSGEN should be processed by the command that

conducted the investigation and NAVINSGEN advised as necessary.

(3) The Deputy Naval Inspector General for Marine Corps Matters

(DNIGMC) is the release/denial authority for all investigations

conducted by the DNIGMC. Requests for local Marine Corps command

Inspector General reports shall be coordinated with the DNIGMC.

(n) Naval Nuclear Propulsion Information (NNPI). The Director,

Naval Nuclear Propulsion Program (CNO (NOONB)/NAVSEA (08)) is the

release/denial authority for all information and requests concerning

NNPI. Naval activities receiving such requests are responsible for

searching their files for responsive records. If no documents are

located, the naval activity shall respond to the requester and provide

CNO (NOONB) with a copy of the request and response. If documents are

located, the naval activity shall refer the request, responsive

documents, and a recommendation regarding release to the Director,

Naval Nuclear Propulsion Program (NOONB), 2000 Navy

[[Page 49861]]

Pentagon, Washington, DC 20350-2000, who will make the final release

determination to the requester, after coordinating the release through

DoD activities.

(o) Naval Telecommunications Procedures (NTP) publications. The

Commander, Naval Computer and Telecommunications Command is the

release/denial authority for NTP publications. All requests or

documents located which apply shall be promptly referred to the

Commander, Naval Computer and Telecommunications Command (Code NOOJ),

4401 Massachusetts Avenue, NW, Washington, DC 20394-5460 for action and

direct response to the requester.

(p) News media requests. (1) Respond promptly to requests received

from news media representatives through public information channels, if

the information is releasable under FOIA. This eliminates the

requirement to invoke FOIA and may result in timely information being

made available to the public.

(2) In those instances where records/information are not

releasable, either in whole or in part, or are not currently available

for a release consideration, Public Affairs Officers shall promptly

advise the requester of where and how to submit a FOIA request.

(3) DON activities receiving and processing requests from members

of the press shall ensure that responses are cleared through their

public affairs channels.

(q) Records originated by other government agencies. (1) A DON

activity may refer a FOIA request for any record that originated in an

agency outside the DON or that is based on information obtained from an

outside agency to the cognizant agency for direct response to the

requester after coordination with the outside agency, if that agency is

subject to FOIA. Otherwise, the DON activity must respond to the

request.

(2) A DON activity 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 DON 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 DON activity may only respond directly to the

requester after coordination with the outside agency.

(r) Submitter documents. (1) When a request is received for a

record containing confidential commercial information that was

submitted to the Government, the requirements of Executive Order 12600

shall apply. Specifically, the submitter shall be notified of the

request (telephonically, by letter, or by facsimile) and afforded a

reasonable amount of time (anywhere from 2 weeks to a month depending

on the circumstances) to present any objections concerning release,

unless it is clear there can be no valid basis for objection. For

example, the record was provided with actual or presumptive knowledge

of the submitter that it would be made available to the public upon

request.

(2) The DON activity will evaluate any objections and negotiate

with the submitter as necessary. When a substantial issue has been

raised, the DON activity may seek additional information from the

submitter and afford the submitter and requester reasonable

opportunities to present their arguments in legal and substantive

issues prior to making an agency determination.

(3) The final decision to disclose information claimed to be exempt

under exemption (b)(4) shall be made by an official at least equivalent

in rank to the IDA and the submitter advised that he or she may seek a

restraining order or take court action to prevent the release. The

submitter is given 10 days to take action.

(4) Should the submitter take such action, the requester will be

notified and no action will be taken on the request until the outcome

of the court action is known.

(s) Technical Documents Controlled by Distribution Statements B, C,

D, E, F, or X shall be referred to the controlling DoD office for

review and release determination.

Sec. 701.12. FOIA appeals/litigation.

(a) Appellate authorities. SECNAV has delegated his appellate

authority to the JAG and the DONGC to act on matters under their

cognizance. Their responsibilities include adjudicating appeals made to

SECNAV on: denials of requests for copies of DON records or portions

thereof; disapproval of a fee category claim by a requester;

disapproval of a request to waive or reduce fees; disputes regarding

fee estimates; reviewing determinations not to grant expedited access

to agency records, and reviewing ``no record'' determinations when the

requester considers such responses adverse in nature. They have the

authority to release or withhold records, or portions thereof; to waive

or reduce fees; and to act as required by SECNAV for appeals under 5

U.S.C. 552 and this instruction. The JAG has further delegated this

appellate authority to the Assistant Judge Advocate General (Civil

Law). The DONGC has further delegated this appellate authority to the

Principal Deputy General Counsel, the Deputy General Counsel, and the

Associate General Counsel (Management).

(1) In their capacity, appellate authorities will serve as

principal points of contact on DON FOIA appeals and litigation; receive

and track FOIA appeals and ensure responses are made in compliance with

5 U.S.C. 552, DoD 5400.7 and 5400.7-R, and the instruction in this

part; complete responsive portions of the Annual FOIA Report that

addresses actions on appeals and litigation costs during the fiscal

year and submit to CNO (N09B30); provide CNO (N09B30) with a copy of

all appeal determinations as they are issued; and keep CNO (N09B30)

informed in writing of all FOIA lawsuits as they are filed against the

DON. Appellate authorities shall facsimile a copy of the complaint to

CNO (N09B30) for review and provide updates to CNO (N09B30) to review

and disseminate to DFOISR.

(2) OGC's cognizance: Legal advice and services to SECNAV and the

Civilian Executive Assistants on all matters affecting DON; legal

services in subordinate commands, organizations, and activities in the

areas of business and commercial law, real and personal property law,

intellectual property law, fiscal law, civilian personnel and labor

law, environmental law, and in coordination with the JAG, such other

legal services as may be required to support the mission of the Navy

and the Marine Corps, or the discharge of the General Counsel's

responsibilities; and conducting litigation involving the areas

enumerated above and oversight of all litigation affecting the DON.

(3) JAG's cognizance: In addition to military law, all matters

except those falling under the cognizance of the DONGC.

(b) Appellants may file an appeal if they have been denied

information in whole or in part; have been denied a waiver or reduction

of fees; have been denied/have not received a response within 20

working days; or received a ``no record'' response or wish to challenge

the ``adequacy of a search'' that was made. Appeal procedures also

apply to the disapproval of a fee category claim by a requester,

disputes regarding fee estimates, review of an expedited basis

determination not to grant expedited access to agency records, or any

determination found to be adverse in nature by the requester.

(c) Action by the appellate authority. (1) Upon receipt, JAG (34)

or Assistant to the General Counsel (FOIA) will

[[Page 49862]]

promptly notify the IDA of the appeal. In turn, the IDA will provide

the appellate authority with the following documents so that a

determination can be made: a copy of the request, responsive documents

both excised and unexcised, a copy of the denial letter, and supporting

rationale for continued withholding. IDAs shall respond to the

appellate authority within 10 working days.

(2) Final determinations on appeals normally shall be made within

20 working days after receipt. When the appellate authority 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.

(3) If the appeal is received by the wrong appellate authority, the

time limits do not take effect until it is received by the right one.

If, however, the time limit for responding cannot be met, the appellate

authority shall advise the appellant that he/she may consider his/her

administrative remedies exhausted. However, he/she may await a

substantive response without prejudicing his/her right of judicial

remedy. Nonetheless, the appellate authority will continue to process

the case expeditiously, whether or not the appellant seeks a court

order for release of records. In such cases, a copy of the response

will be provided to the Department of Justice (DOJ).

(d) Addresses for filing appeals. (1) General Counsel of the Navy,

720 Kennon Street, SE, Room 214, Washington Navy Yard, Washington, DC

20374-5012, or

(2) Judge Advocate General, Washington Navy Yard, 1322 Patterson

Avenue, SE, Suite 3000, Washington, DC 20374-5066.

(e) Appeal letter requirements. The appellant shall file a written

appeal with the cognizant appellate authority (i.e., DONGC or JAG). The

appeal should include a copy of the DON response letter and supporting

rationale on why the appeal should be granted.

(f) Consultation/coordination. (1) The Special Assistant for Naval

Investigative Matters and Security (CNO (N09N)) may be consulted to

resolve inconsistencies or disputes involving classified records.

(2) Direct liaison with officials within DON and other interested

Federal agencies is authorized at the discretion of the appellate

authority, who also coordinates with appropriate DoD and DOJ officials.

(3) SECNAV, appropriate Assistant or Deputy Assistant Secretaries,

and CNO (N09B30) shall be consulted and kept advised of cases with

unusual implications. CHINFO shall be consulted and kept advised on

cases involving public affairs implications.

(4) Final refusal involving issues not previously resolved or that

the DON appellate authority knows to be inconsistent with rulings of

other DoD components ordinarily should not be made before consultation

with the DoD Office of General Counsel (OGC).

(5) Tentative decisions to deny records that raise new and

significant legal issues of potential significance to other agencies of

the Government shall be provided to the DoD OGC.

(g) Copies of final appeal determinations. Appellate authorities

shall provide copies of final appeal determinations to the activity

affected and to CNO (N09B30) as appeals are decided.

(h) Denying an appeal. The appellate authority must render his/her

decision in writing with a full explanation as to why the appeal is

being denied along with a detailed explanation of the basis for refusal

with regard to the applicable statutory exemption(s) invoked. With

regard to denials involving classified information, the final refusal

should explain that a declassification review was undertaken and based

on the governing Executive Order and implementing security

classification guides (identify the guides), the information cannot be

released and that information being denied does not contain meaningful

portions that are reasonably segregable. In all instances, the final

denial letter shall contain the name and position title of the official

responsible for the denial and advise the requester of the right to

seek judicial review.

(i) Granting an appeal. The appellate authority must render his/her

decision in writing. When an appellate authority makes a determination

to release all or a portion of records withheld by an IDA, a copy of

the releasable records should be promptly forwarded to the requester

after compliance with any procedural requirements, such as payment of

fees.

(j) Processing appeals made under PA and FOIA. When denials have

been made under the provisions of PA and FOIA, and the denied

information is contained in a PA system of records, the appeal shall be

processed under both PA and FOIA. If the denied information is not

maintained in a PA system of records, the appeal shall be processed

under FOIA.

(k) Response letters. (1) When an appellate authority makes a final

determination to release all or 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 the provisions of the FOIA, and with respect

to other issues appealed for which an adverse determination was made.

(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 (b)(3) statute, 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.

(l) Time limits/requirements. (1) A FOIA appeal has been received

by a DON activity when it reaches the appellate authority having

jurisdiction. Misdirected appeals should be referred expeditiously to

the proper appellate authority.

(2) 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 the 60 day period, the case may be considered

closed. However, exceptions may be considered on a case-by-case basis.

(3) In cases where the requester is provided several incremental

determinations for a single request, the

[[Page 49863]]

time for the appeal shall not begin until the date of the final

response. Requests and responsive records that are denied shall be

retained for a period of 6 years to meet the statute of limitations

requirement.

(4) Final determinations on appeals normally shall be made within

20 working days after receipt. When a DON appellate authority 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. 701.8(f)).

(5) If additional time is needed due to unusual circumstances, 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.

(6) 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, they may consider their administrative

remedies exhausted. They may, however, without prejudicing their right

of judicial remedy, await a substantive response. The appellate

authority shall continue to process the case expeditiously.

(m) FOIA litigation. The appellate authority is responsible for

providing CNO (N09B30) with a copy of any FOIA litigation filed against

the DON and any subsequent status of the case. CNO (N09B30) will, in

turn, forward a copy of the complaint to DFOISR for their review.

Subpart B--FOIA Definitions and Terms

Sec. 701.13 5 U.S.C. 552(a)(1) materials.

Section (a)(1) of the FOIA requires publication in the Federal

Register of descriptions of agency organizations, functions,

substantive rules, and statements of general policy.

Sec. 701.14 5 U.S.C. 552(a)(2) materials.

Section (a)(2) of the FOIA requires that certain materials

routinely be made available for public inspection and copying. The

(a)(2) materials are commonly referred to as ``reading room'' materials

and are required to be indexed to facilitate public inspection. (a)(2)

materials consist of:

(a) 5 U.S.C. 552(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.

(b) 5 U.S.C. 552(a)(2)(B) records. Statements of policy and

interpretations that have been adopted by the agency and are not

published in the Federal Register.

(c) 5 U.S.C. 552(a)(2)(C) records. Administrative staff manuals and

instructions, or portions thereof, that establish DON 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 DON activity. Examples

of manuals and instructions not normally made available are:

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

or those that prescribe operational tactics, standards of performance,

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

(2) Operations and maintenance manuals and technical information

concerning munitions, equipment, systems, and foreign intelligence

operations.

(d) 5 U.S.C. 552(a)(2)(D) records. Those (a)(2) 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. DON activities shall decide on a case-by-case basis whether

records fall into this category based on the following factors:

previous experience of the DON activity with similar records;

particular circumstances of the records involved, including their

nature and the type of information contained in them; and/or the

identity and number of requesters and whether there is widespread

press, historic, or commercial interest in the records.

(1) 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. DON activities may remove the records from this

access medium when the appropriate officials determine that access is

no longer necessary.

(2) Should a requester submit a FOIA request for FOIA-processed

(a)(2) records and insist that the request be processed under FOIA, DON

activities shall process the FOIA request. However, DON activities have

no obligation to process a FOIA request for (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.

(e) However, agency records that are withheld under FOIA from

public disclosure, based on one or more of the FOIA exemptions, do not

qualify as (a)(2) materials and need not be published in the Federal

Register or made available in a library reading room.

Sec. 701.15 5 U.S.C. 552(a)(3) materials.

Agency records which are processed for release under the provisions

of the FOIA.

Sec. 701.16 Administrative appeal.

A request made by a FOIA requester asking the appellate authority

(JAG or OGC) to reverse a decision to: withhold all or part of a

requested record; deny a fee category claim by a requester; deny a

request for expedited processing due to demonstrated compelling need;

deny a request for a waiver or reduction of fees; deny a request to

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

located during the initial search. FOIA requesters may also appeal a

non-response to a FOIA request within the statutory time limits.

Sec. 701.17 Affirmative information disclosure.

This is where a DON activity makes records available to the public

on its own initiative. In such instance, the DON activity has

determined in advance that a certain type of records or information is

likely to be of such interest to members of the public, and that it can

be disclosed without concern for any FOIA exemption sensitivity.

Affirmative disclosures can be of mutual benefit to both the DON and

the members of the public who are interested in obtaining access to

such information.

Sec. 701.18 Agency record.

Agency records are either created or obtained by an agency and

under agency control at the time of the FOIA request. Agency records

are stored as various kinds of media, such as:

(a) Products of data compilation (all books, maps, 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

[[Page 49864]]

connection with the transaction of public business and in Department of

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

(b) Care should be taken not to exclude records from being

considered agency records, unless they fall within one of the following

categories:

(1) Objects or articles, such as structures, furniture, paintings,

three-dimensional models, vehicles, equipment, parts of aircraft,

ships, etc., whatever their historical value or value as evidence.

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

an individual's memory or oral communication.

(3) Personal 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.

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

DON at the time of the request to be considered subject to this

instruction and the FOIA. There is no obligation to create, compile, or

obtain a record to satisfy a FOIA request.

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

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

public through an established distribution system, or through the

Federal Register, the National Technical Information Service, or the

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

FOIA. If a request is received for such information, DON activities

shall provide the requester with guidance, inclusive of any written

notice to the public, on how to obtain the information. However, if the

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

process the request under FOIA.

Sec. 701.19 Appellate authority.

SECNAV has delegated the OGC and JAG to review administrative

appeals of denials of FOIA requests on his behalf and prepare agency

paperwork for use by the DOJ in defending a FOIA lawsuit. JAG is

further authorized to delegate this authority to a designated Assistant

JAG. The authority of OGC is further delegated to the Principal Deputy

General Counsel, the Deputy General Counsel, and the Associate General

Counsel (Management).

Sec. 701.20 Discretionary disclosure.

The decision to release information that could qualify for

withholding under a FOIA exemption, but upon review the determination

has been made that there is no foreseeable harm to the Government for

releasing such information. Discretionary disclosures do not apply to

exemptions (b)(1), (b)(3), (b)(4), (b)(6) and (b)(7)(C).

Sec. 701.21 Electronic record.

Records (including e-mail) which are created, stored, and retrieved

by electronic means.

Sec. 701.22 Exclusions.

The FOIA contains three exclusions (c)(1), (c)(2) and (c)(3) which

expressly authorize Federal law enforcement agencies for especially

sensitive records under certain specified circumstances to treat the

records as not subject to the requirements of the FOIA.

Sec. 701.23 Executive Order 12958.

Revoked Executive Order 12356 on October 14, 1995 and is the basis

for claiming that information is currently and properly classified

under (b)(1) exemption of the FOIA. It sets forth new requirements for

classifying and declassifying documents. It recognizes both the right

of the public to be informed about the activities of its government and

the need to protect national security information from unauthorized or

untimely disclosure.

Sec. 701.24 Federal agency.

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.

Sec. 701.25 5 U.S.C. 552, Freedom of Information Act (FOIA).

An access statute that pertains to agency records of the Executive

Branch of the Federal Government, including the Executive Office of the

President and independent regulatory agencies.

(Note to Sec. 701.25: Records maintained by State governments,

municipal corporations, by the courts, by Congress, or by companies

and private citizens do not fall under this Federal statute)

Sec. 701.26 FOIA exemptions.

There are nine exemptions that identify certain kinds of records/

information that qualify for withholding under FOIA. See subpart D of

this part for a detailed explanation of each exemption.

Sec. 701.27 FOIA fee terms location.

The FOIA fee terms can be found in subpart C of this part.

Sec. 701.28 FOIA request.

A written request for DON records, 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 by citing DoD FOIA regulations or the instruction in this part.

FOIA requests can be made for any purpose whatsoever, with no showing

of relevancy required. Because the purpose for which records are sought

has no bearing on the merits of the request, FOIA requesters do not

have to explain or justify their requests. Written requests may be

received by postal service or other commercial delivery means, by

facsimile or electronically.

Sec. 701.29 Glomar response.

Refusal by the agency to either confirm or deny the existence or

non-existence of records responsive to a FOIA request. See exemptions

(b)(1), (b)(6), and (b)(7)(C) at subpart D of this part.

Sec. 701.30 Initial Denial Authority (IDA).

SECNAV has delegated authority to a limited number of officials to

act on his behalf to withhold records under their cognizance that are

requested under the FOIA for one or more of the nine categories of

records exempt from mandatory disclosure; to deny a fee category claim

by a requester; to deny a request for expedited processing due to

demonstrated compelling need; to deny or grant a request for waiver or

reduction of fees when the information sought relates to matters within

their respective geographical areas of responsibility or chain of

command; fees; to review a fee estimate; and to confirm that no records

were located in response to a request. IDAs may also grant access to

requests.

Sec. 701.31 Mosaic or compilation response.

The concept that apparently harmless pieces of information when

assembled together could reveal a damaging picture. See exemption

(b)(1) at subpart D of this part.

Sec. 701.32 Perfected request.

A request which meets the minimum requirements of the FOIA to be

processed and is received by the DON

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activity having possession and control over the documents/information.

Sec. 701.33 Public domain.

Agency records released under the provisions of FOIA and the

instruction in this part to a member of the public.

Sec. 701.34 Public interest.

The interest in obtaining official information that sheds light on

a DON activity's performance of its statutory duties because the

information falls within the statutory purpose of the FOIA to inform

citizens what their government is doing. That statutory purpose,

however, is not fostered by disclosure of information about private

citizens accumulated in various governmental files that reveals nothing

about an agency's or official's own conduct.

Sec. 701.35 Reading room.

Location where (a)(2) materials are made available for public

inspection and copying.

Sec. 701.36 Release authorities.

Commanding officers and heads of Navy and Marine Corps shore

activities or their designees are authorized to grant requests on

behalf of SECNAV for agency records under their possession and control

for which no FOIA exemption applies. As necessary, they will coordinate

releases with other officials who may have an interest in the

releasability of the record.

Sec. 701.37 Reverse FOIA.

When the ``submitter'' of information, usually a corporation or

other business entity, that has supplied the agency with data on its

policies, operations and products, seeks to prevent the agency that

collected the information from revealing the data to a third party in

response to the latter's FOIA request.

Sec. 701.38 Technical data.

Recorded information, regardless of form or method of the

recording, of a scientific or technical nature (including computer

software documentation).

Sec. 701.39 Vaughn index.

Itemized index, correlating each withheld document (or portion)

with a specific FOIA exemption(s) and the relevant part of the agency's

nondisclosure justification. The index may contain such information as:

date of document; originator; subject/title of document; total number

of pages reviewed; number of pages of reasonably segregable information

released; number of pages denied; exemption(s) claimed; justification

for withholding; etc. FOIA requesters are not entitled to a Vaughn

index during the administrative process.

Subpart C--FOIA Fees

Sec. 701.40 Background.

(a) The DON follows the uniform fee schedule developed by DoD and

established to conform with the Office of Management and Budget's

(OMB's) Uniform Freedom of Information Act Fee Schedule and Guidelines.

(b) Fees 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, which does not supersede the

collection of fees under the FOIA.

(c) FOIA fees do not supersede fees chargeable under a statute

specifically providing for setting the level of fees for particular

types of records. For example, 5 U.S.C. 552 (a)(4)(A)(vi) enables a

Government agency such as the Government Printing Office (GPO) or the

National Technical Information Service (NTIS), to set and collect fees.

DON activities 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 GPO or NTIS,

they inform requesters of the steps necessary to obtain records from

those sources.

Sec. 701.41 FOIA fee terms.

(a) Direct costs means those expenditures a DON activity 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 in 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.

(b) 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 activity'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 DON activity

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 activity personnel with the object of

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

(c) 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. DON activities 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.

(d) Search refers to 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. DON activities should ensure

that searches are done in the most efficient and least expensive manner

so as to minimize costs for both the activity and the requester. For

example, activities 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.

(1) DON activities may charge for time spent searching for records,

even if that

[[Page 49866]]

search fails to locate records responsive to the request.

(2) DON activities may also charge search and review (in the case

of commercial requesters) time if records located are determined to be

exempt from disclosure.

(3) In practice, if the DON activity 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

activity personnel with the object of reformulating the request to meet

his or her needs at a lower cost.

Sec. 701.42 Categories of requesters--applicable fees.

(a) Commercial requesters 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, DON activities must determine the

use to which a requester will put the documents requested. More over,

where an activity 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, it should seek additional clarification before

assigning the request to a specific category.

(1) Fees shall be limited to reasonable standard charges for

document search, review and duplication when records are requested for

commercial use. Requesters must reasonably describe the records sought.

(2) When DON activities receive a request for documents for

commercial use, they should assess charges which recover the full

direct costs of searching for, reviewing for release, and duplicating

the records sought. Commercial requesters (unlike other requesters) are

not entitled to 2 hours of free search time, nor 100 free pages of

reproduction of documents. Moreover, commercial requesters are not

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

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

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

envision a commercial enterprise making a request that is not for

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

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

be addressed on a case-by-case basis.

(b) 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.

(1) 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.

(2) 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 research.

(3) Fees shall be waived or reduced in the public interest if

criteria of Sec. 701.58 have been met.

(c) Non-commercial Scientific Institution refers to an institution

that is not operated on a ``commercial'' basis 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.

(1) Fees shall be limited to only reasonable standard charges for

document duplication (excluding the first 100 pages) when the request

is made by a non-commercial scientific institution whose purpose is

scientific research. Requesters must reasonably describe the records

sought.

(2) 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 or scientific

research.

(d) Representative of the news media. (1) 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 DON activities may also look to the past

publication record of a requester in making this determination.

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

meet the criteria established in paragraph (d)(1), 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).

(3) 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.

(4) 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. Fees shall be waived or

reduced if the fee waiver criteria have been met.

(e) All other requesters. DON activities shall charge requesters

who do not fit into any of the categories described in paragraph (a)

through (d) fees which recover the full direct cost of searching for

and duplicating records, except that the first 2 hours of search time

and the first 100 pages of duplication shall be furnished without

charge. Requesters must reasonably describe the records sought.

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. DON activities 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.

[[Page 49867]]

Sec. 701.43 Fee declarations.

Requesters should submit a fee declaration appropriate for the

categories in paragraphs (a) through (c) of this section, if fees are

expected to exceed the minimum fee threshold of $15.00.

(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 2 hours of search

effort or 100 pages of records are desired.

(d) If the conditions in paragraphs (a) through (c) are not met,

then the request need not be processed and the requester shall be so

informed.

Sec. 701.44 Restrictions.

(a) No fees may be charged by any DON activity 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, activities shall provide the first 2

hours of search time, and the first 100 pages of duplication without

charge. For example, for a request (other than one from a commercial

requester) that involved 2 hours and 10 minutes of search time, and

resulted in 105 pages of documents, an activity would determine the

cost of only 10 minutes of search time, and only five pages of

reproduction. If this processing cost was equal to, or less than, the

cost to the activity for billing the requester and processing the fee

collected, no charges would result.

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

100 pages of duplication without charge are entitled to such only once

per request. Consequently, if a DON activity, after completing its

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

subordinate office, another DON activity, or another Federal agency to

action their portion of the request, the referring activity shall

inform the recipient of the referral of the expended amount of search

time and duplication cost to date.

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

collecting a fee'' are the administrative costs to the DON activity of

receiving and recording a remittance, and processing the fee for

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

the Department of Treasury to handle such remittance is negligible and

shall not be considered in activity determinations.

(d) For the purposes of the restrictions in this section, 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.

(e) In the case of computer searches, the first 2 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 (2 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.

Sec. 701.45 Fee assessment.

(a) 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.

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

minimizing unwarranted costs to the taxpayer, DON activities shall

analyze each request to determine the category of the requester. If the

activity's determination regarding the category of the requester is

different than that claimed by the requester, the activity shall:

(1) 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 DON activity shall render a final category

determination, and notify the requester of such determination, to

include normal administrative appeal rights of the determination.

(2) 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 activity.

(c) Estimate of fees. DON activities 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 activities, 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 the activity's 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.

(d) Advance payment of fees. DON activities may not require advance

payment of any fee (i.e., before work is commenced or continued on a

request) unless the requester has failed to pay fees in a timely

fashion (i.e., 30 calendar days from the date of the assessed billing

in writing), or the activity has determined that the fee will exceed

$250.00.

(e) When a DON activity estimates or determines that allowable

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

$250.00, the activity 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

payment history.

(f) 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 DON activity 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 DON activity begins to process a new or

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

prescribed by 31 U.S.C. 3737 and confirmed with respective finance and

accounting offices.

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

are ready for release, DON activities may require payment before

forwarding the documents, particularly for those requesters who have no

payment history, or for those requesters who have failed to previously

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

date of the billing).

(h) DON activities may charge for time spent searching for records,

even if that search fails to locate records responsive

[[Page 49868]]

to the request. DON activities may also charge search and review (in

the case of commercial requesters) time if records located are

determined to be exempt from disclosure. In practice, if the DON

activity 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 activity personnel with the object of

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

Sec. 701.46 Aggregating requests.

Except for requests that are for a commercial use, a DON activity

may not charge for the first 2 hours of search time or for the first

100 pages of reproduction. However, a requester may not file multiple

requests at the same time, each seeking portions of a document or

documents, solely in order to avoid payment of fees. When an activity

reasonably believes that a requester or, on rare occasions, a group of

requesters acting in concert, is attempting to break a request down

into a series of requests for the purpose of avoiding the assessment of

fees, the activity 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 activities should have

a solid basis for determining that aggregation is warranted in such

cases. DON activities 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 an activity

aggregate multiple requests on unrelated subjects.

Sec. 701.47 FOIA fees must be addressed in response letters.

DON activities shall ensure that requesters receive a complete

breakout of all fees which are charged and apprised of the ``Category''

in which they have been placed. For example: ``We are treating you as

an 'All Other Requester.' As such, you are entitled to 2 free hours of

search and 100 pages of reproduction, prior to any fees being assessed.

We have expended an additional 2 hours of search at $25.00 per hour and

an additional 100 pages of reproduction, for a total fee of $65.00.''

Sec. 701.48 Fee waivers.

Documents shall be furnished without charge, or at a charge reduced

below fees assessed to the categories of requesters, when the DON

activity 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 DON/DoD and is not primarily in the commercial

interest of the requester. When assessable costs for a FOIA request

total $15.00 or less, fees shall be waived automatically for all

requesters, regardless of category. 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:

(a) 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.''

(b) The subject of the request. DON activities 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 DON/DoD. Requests for records in the possession of

the DON 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 DON/DoD. 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 DON/DoD

activity. Similarly, disclosures of records of considerable age may or

may not bear directly on the current activities of the DON/DoD,

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

DON/DoD, 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 DON/DoD.

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

factor requires a close analysis of the substantive contents of a

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

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

of the DON. While the subject of a request may contain information that

concerns operations or activities of the DON, 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 DON 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 DON.

(d) 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.

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

In applying this factor, DON activities must differentiate the relative

significance or impact of the disclosure against the current level of

public knowledge, or understanding which exists before the disclosure.

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

interest be unique in contributing previously unknown facts, thereby

enhancing public knowledge, or will it basically duplicate what is

already known by the

[[Page 49869]]

general public? A decision regarding significance requires objective

judgment, rather than subjective determination, and must be applied

carefully to determine whether disclosure will likely lead to a

significant public understanding of the issue. DON activities shall not

make value judgments as to whether the information is important enough

to be made public.

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

commercial interest of the requester.''

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

request is determined to be of a commercial interest, DON activities

should address the magnitude of that interest to determine if the

requester's commercial interest is primary, as opposed to any secondary

personal or non-commercial interest. In addition to profit-making

organizations, individual persons or other organizations may have a

commercial interest in obtaining certain records. Where it is difficult

to determine whether the requester is of a commercial nature, DON

activities may draw inference from the requester's identity and

circumstances of the request. Activities are reminded that in order to

apply the commercial standards of the FOIA, the requester's commercial

benefit must clearly override any personal or non-profit interest.

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

commercial interest has been determined, DON activities 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.

(g) The factors and examples used in this section 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, DON activities should rule in favor of the requester.

(h) The following additional circumstances describe situations

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

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

burdensome effort to provide voluminous amounts of available records,

including additional information not requested.

(2) 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).

Sec. 701.49 Payment of fees.

(a) Normally, fees will be collected at the time of providing the

documents to the requester when the requester specifically states that

the costs involved shall be acceptable or acceptable up to a specified

limit that covers the anticipated costs, and the fees do not exceed

$250.00.

(b) However, after all work is completed on a request, and the

documents are ready for release, DON activities 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).

(c) When a DON activity estimates or determines that allowable

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

$250.00, the activity 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.

(d) Advance payment of a fee is also applicable when a requester

has previously failed to pay fees in a timely fashion (i.e., 30

calendar days) after being assessed in writing by the activity.

Further, 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 DON activity 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 activity 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.

Sec. 701.50 Effect of the Debt Collection Act of 1982.

The Debt Collection Act of 1982 (Pub. L. 97-365) provides for a

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

Federal Government. DON activities 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. DON

activities 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, DON activities may

submit the debt to respective finance and accounting offices for

collection.

Sec. 701.51 Refunds.

In the event that a DON activity discovers that it has overcharged

a requester or a requester has overpaid, the DON activity shall

promptly refund the charge to the requester by reimbursement methods

that are agreeable to the requester and the activity.

Sec. 701.52 Computation of fees.

(a) It is imperative that DON activities compute all fees to ensure

accurate reporting in the Annual FOIA Report, but ensure that only

applicable fees be charged to the requester. For example, although we

calculate correspondence and preparation costs, these fees are not

recoupable from the requester.

(b) DD 2086, Record of Freedom of Information (FOI) Processing

Cost, should be filled out accurately to reflect all processing costs,

as requesters may solicit a copy of that document to ensure accurate

computation of fees. Costs shall be computed on time actually spent.

Neither time-based nor dollar-based minimum charges for search, review

and duplication are authorized.

[[Page 49870]]

Sec. 701.53 FOIA fee schedule.

The following fee schedule shall be used to compute the search,

review (in the case of commercial requesters) and duplication costs

associated with processing a given FOIA request. The appropriate fee

category of the requester shall be applied before computing fees.

(a) Manual search.

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

Hourly

Type Grade rate

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

Clerical......................... E9/GS8 and below............ $12.00

Professional..................... O1-O6/GS9-GS15.............. 25.00

Executive........................ O7/GS16/ES1 and above....... 45.00

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

(b) Computer search. Fee assessments for computer search consist of

two parts; individual time (hereafter referred to as human time) and

machine time.

(1) Human time. Human time is all the time spent by humans

performing the necessary tasks to prepare the job for a machine to

execute the run command. If execution of a run requires monitoring by a

human, that human time may be also assessed as computer search. The

terms ``programmer/operator'' shall not be limited to the traditional

programmers or operators. Rather, the terms shall be interpreted in

their broadest sense to incorporate any human involved in performing

the computer job (e.g. technician, administrative support, operator,

programmer, database administrator, or action officer).

(2) Machine time. Machine time involves only direct costs of the

central processing unit (CPU), input/output devices, and memory

capacity used in the actual computer configuration. Only this CPU rate

shall be charged. No other machine-related costs shall be charged. In

situations where the capability does not exist to calculate CPU time,

no machine costs can be passed on to the requester. When CPU

calculations are not available, only human time costs shall be assessed

to requesters. Should DON activities lease computers, the services

charged by the lessor shall not be passed to the requester under the

FOIA.

(c) Duplication.

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

Type Cost per page

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

Pre-Printed material...................... $.02

Office copy............................... .15

Microfiche................................ .25

Computer copies (tapes, discs or Actual cost of duplicating

printouts). the tape, disc or printout

(includes operator's time

and cost of the medium).

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

(d) Review time (in the case of commercial requesters, only).

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

Hourly

Type Grade rate

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

Clerical......................... E9/GS8 and below............ $12.00

Professional..................... O1-O6/GS9-GS15.............. 25.00

Executive........................ O7/GS16/ES1 and above....... 45.00

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

(e) Audiovisual documentary materials. Search costs are computed as

for any other record. Duplication cost is the actual direct cost of

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

work. Audiovisual materials provided to a requester need not be in

reproducible format or quality.

(f) Other records. Direct search and duplication cost for any

record not described in this section shall be computed in the manner

described for audiovisual documentary material.

(g) Costs for special services. Complying with requests for special

services is at the discretion of the DON activity. Neither the FOIA nor

its fee structure cover these kinds of services. Therefore, DON

activities may recover the costs of special services requested by the

requester after agreement has been obtained in writing from the

requester to pay for such fees as certifying that records are true

copies, sending records by special methods such as express mail, etc.

Sec. 701.54 Collection of fees and fee rates for technical data.

(a) Technical data, other than technical data that discloses

critical technology with military or space application, if required to

be released under the FOIA, shall be released after the person

requesting such technical data pays all reasonable costs attributed to

search, duplication and review of the records to be released. Technical

data, as used in this section, means recorded information, regardless

of the form or method of the recording of a scientific or technical

nature (including computer software documentation). This term does not

include computer software, or data incidental to contract

administration, such as financial and/or management information.

(b) DON activities shall retain the amounts received by such a

release, and it shall be merged with and available for the same purpose

and the same time period as the appropriation from which the costs were

incurred in complying with request. All reasonable costs as used in

this sense are the full costs to the Federal Government of rendering

the service, or fair market value of the service, whichever is higher.

Fair market value shall be determined in accordance with commercial

rates in the local geographical area. In the absence of a known market

value, charges shall be based on recovery of full costs to the Federal

Government. The full costs shall include all direct and indirect costs

to conduct the search and to duplicate the records responsive to the

request. This cost is to be differentiated from the direct costs

allowable under information released under FOIA.

(c) Waiver. DON activities shall waive the payment of costs

required in paragraph (a) of this section which are greater than the

costs that would be required for release of this same information under

the FOIA if:

(1) The request is made by a citizen of the United States or a

United States corporation and such citizen or corporation certifies

that the technical data requested is required to enable it to submit an

offer or determine whether it is capable of submitting an offer to

provide the product to which the technical data relates to the United

States or a contractor with the United States. However, DON activities

may require the citizen or corporation to pay a deposit in an amount

equal to not more than the cost of complying with the request, which

will be refunded upon submission of an offer by the citizen or

corporation;

(2) The release of technical data is requested in order to comply

with the terms of an international agreement; or,

(3) The DON activity determines in accordance with Sec. 701.48 that

such a waiver is in the interest of the United States.

(d) Fee rates. (1) Manual search.

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

Hourly

Type Grade rate

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

Clerical......................... E9/GS8 and below............ $13.25

Clerical (Minimum Charge)........ ............................ 8.30

Professional..................... 01 to 06/GS9 to GS15........ (**)

Executive........................ 07/GS16/ES-1 and above...... (**)

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

** Rate to be established at actual hourly rate prior to search. A

minimum charge will be established at \1/2\ Minimum Charge)

(2) Computer search is based on the total cost of the central

processing unit,

[[Page 49871]]

input-output devices, and memory capacity of the actual computer

configuration. The wage (based upon the scale for manual search) for

the computer operator and/or programmer determining how to conduct, and

subsequently executing the search will be recorded as part of the

computer search.

(3) Duplication.

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

Type Cost

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

Aerial photograph, maps, specifications, permits, charts, $2.50

blueprints, and other technical engineering documents.....

Engineering data (microfilm):

Aperture cards:

Silver duplicate negative, per card.................... .75

When key punched and verified, per card................ .85

Diazo duplicate negative, per card .65

When key punched and verified, per card .75

35mm roll film, per frame.............................. .50

16mm roll film, per frame.............................. .45

Paper prints (engineering drawings), each.............. 1.50

Paper reprints of microfilm indices, each.............. .10

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

(4) Review Time.

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

Hourly

Type Grade rate

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

Clerical......................... E9/GS8 and below............ $13.25

Clerical Minimum Charge.......... E9/GS8 and below............ 8.30

Professional..................... 01 to 06/GS9 to GS15........ (**)

Executive........................ 07/GS16/ES1 or higher....... (**)

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

** Rate to be established at actual hourly rate prior to search. (A

minimum charge will be established at \1/2\ Minimum Charge)

(5) Other technical data records. Charges for any additional

services not specifically provided in paragraph (d) of this section,

consistent with Volume 11A of DoD 7000.14-R (NOTAL) shall be made by

DON activities at the following rates:

Minimum charge for office copy up to six images)--$3.50

Each additional image--$ .10

Each typewritten page--$3.50

Certification and validation with seal, each--$5.20

Hand-drawn plots and sketches, each hour or fraction Thereof--$12.00

Sec. 701.55 Processing FOIA fee remittances.

(a) Payments for FOIA charges, less fees assessed for technical

data or by a Working Capital Fund or a Non-Appropriated Fund (NAF)

activity, shall be made payable to the U.S. Treasurer and deposited in

Receipt Account Number 172419.1203.

(b) Payments for fees assessed for technical data shall be made

payable to the DON activity that incurred the costs and will be

deposited directly into the accounting line item from which the costs

were incurred.

(c) Payments for fees assessed by Working Capital Fund or Non-

Appropriated Fund (NAF) activities shall be made payable to the DON

activity and deposited directly into their account.

Subpart D--FOIA Exemptions

Sec. 701.56 Background.

The FOIA is a disclosure statute whose goal is an informed

citizenry. Accordingly, records are considered to be releasable, unless

they contain information that qualifies for withholding under one or

more of the nine FOIA exemptions. The exemptions are identified as 5

U.S.C. 552 (b)(1) through (b)(9).

Sec. 701.57 Ground rules.

(a) Identity of requester. 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 in systems notice and by a FOIA exemption.

(b) Reasonably segregable. Even though a document may contain

information which qualifies for withholding under one or more FOIA

exemptions, FOIA requires that all ``reasonably segregable''

information be provided to the requester, unless the segregated

information would have no meaning. In other words, redaction is not

required when it would reduce the balance of the text to unintel

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