The Freedom of Information Act Program
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Federal Register › Vol. 69 › 69 FR 77836
Text
Part II
Department of Defense
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Department of the Army
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32 CFR Part 518
The Freedom of Information Act Program; Proposed Rule
Proposed Rules
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DEPARTMENT OF DEFENSE
Department of the Army
32 CFR Part 518
RIN 0702-AA45
The Freedom of Information Act Program
AGENCY: Department of the Army, DoD.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Department of the Army is proposing to revise our rules in
support of the Freedom of Information Act as required by public law and
updates the provisions for access and release of information from all
Army information systems (automated and manual) that further supports
the Army's Records Management Program.
DATES: Comments submitted to the address below on or before February
28, 2005 will be considered.
ADDRESSES: You may submit comments, identified by ``32 CFR Part 518 and
RIN 0702-AA45'' in the subject line, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: [email protected]. Include ``32
CFR Part 518 and RIN 0702-AA45'' in the subject line of the message.
Mail: U.S. Army Records Management and Declassification
Agency, Freedom of Information and Privacy Office, ATTN: AHRC-PDD-FP,
(Ms. Carter), Casey Bldg., Suite 144, 7701 Telegraph Road, Alexandria,
VA 22315-3905.
FOR FURTHER INFORMATION CONTACT: Brenda Carter (703) 428-6503.
SUPPLEMENTARY INFORMATION:
A. Background
de ``32
CFR Part 518 and RIN 0702-AA45'' in the subject line of the message.
Mail: U.S. Army Records Management and Declassification
Agency, Freedom of Information and Privacy Office, ATTN: AHRC-PDD-FP,
(Ms. Carter), Casey Bldg., Suite 144, 7701 Telegraph Road, Alexandria,
VA 22315-3905.
FOR FURTHER INFORMATION CONTACT: Brenda Carter (703) 428-6503.
SUPPLEMENTARY INFORMATION:
A. Background
This proposed revision prescribes procedures and responsibilities
of the Freedom of Information Act, in accordance with the Electronic
Freedom of Information Act (FOIA) Amendments of 1996. The Electronic
Freedom of Information Act Amendments of 1996 changed the response time
from 10 to 20 days, required Multitrack processing of FOIA requests,
required an Electronic FOIA Reading Room, and changed the requirements
for the Annual Report and the timetable for that report from calendar
to fiscal year.
B. Regulatory Flexibility Act
The Department of the Army has determined that the Regulatory
Flexibility Act does not apply because the proposed rule does not have
a significant economic impact on a substantial number of small entities
within the meaning to the Regulatory Flexibility Act, 5 U.S.C. 601-612.
C. Paperwork Reduction Act
The Department of the Army has determined that the Paperwork
Reduction Act does not apply because the proposed rule does not impose
recordkeeping or information collection requirements from contractors
or members of the public.
D. Executive Order 12866
The Department of the Army has determined that according to the
criteria defined in Executive Order 12866, this proposed rule is not a
significant regulatory action.
Bruno C. Leuyer,
Chief, Freedom of Information and Privacy Office.
List of Subjects in 32 CFR part 518
Freedom of Information Act, Administrative practices and
procedures.
For the reasons stated in the preamble, the Department of the Army
proposes to revise 32 CFR part 518--The Army Freedom of Information Act
Program as follows:
this proposed rule is not a
significant regulatory action.
Bruno C. Leuyer,
Chief, Freedom of Information and Privacy Office.
List of Subjects in 32 CFR part 518
Freedom of Information Act, Administrative practices and
procedures.
For the reasons stated in the preamble, the Department of the Army
proposes to revise 32 CFR part 518--The Army Freedom of Information Act
Program as follows:
PART 518--THE FREEDOM OF INFORMATION ACT PROGRAM
Subpart A--General provisions
Sec.
518.1 Purpose.
518.2 References.
518.3 Explanation of abbreviations and terms.
518.4 Responsibilities.
518.5 Authority.
518.6 Public information.
518.7 FOIA terms defined.
518.8 Freedom of Information requirements.
Subpart B--FOIA Reading Rooms
518.9 Reading room.
518.10 ``(a)(2)'' materials.
518.11 Other materials.
Subpart C--Exemptions
518.12 General.
518.13 FOIA exemptions.
Subpart D--For Official Use Only
518.14 General.
Subpart E--Release and Processing Procedures
518.15 General provisions.
518.16 Initial determinations.
518.17 Appeals.
518.18 Judicial actions.
Subpart F--Fee Schedule
518.19 General provisions.
518.20 Collection of fees and fee rates.
518.21 Collection of fees and fee rates for technical data.
Subpart G--Reports
518.22 Reports control.
518.23 Annual report content.
Appendices to Part 518
Appendix A to Part 518--References.
Appendix B to Part 518--Addressing FOIA Requests.
Authority: 5 U.S.C. 551, 552, 552a, 5101-5108, 5110-5113, 5115,
5332-5334, 5341-42, 5504-5509, 7154; 10 U.S.C. 130, 1102, 2320-2321,
2328; 18 U.S.C. 798, 3500; 31 U.S.C. 3710; 35 U.S.C. 181-188; 42
U.S.C. 2162; 44 U.S.C. 33; and Executive Order 12600.
PART 518--THE ARMY FREEDOM OF INFORMATION ACT PROGRAM
Subpart A--General provisions
Sec. 518.1 Purpose.
Part 518--Addressing FOIA Requests.
Authority: 5 U.S.C. 551, 552, 552a, 5101-5108, 5110-5113, 5115,
5332-5334, 5341-42, 5504-5509, 7154; 10 U.S.C. 130, 1102, 2320-2321,
2328; 18 U.S.C. 798, 3500; 31 U.S.C. 3710; 35 U.S.C. 181-188; 42
U.S.C. 2162; 44 U.S.C. 33; and Executive Order 12600.
PART 518--THE ARMY FREEDOM OF INFORMATION ACT PROGRAM
Subpart A--General provisions
Sec. 518.1 Purpose.
This part provides policies and procedures for implementation of
the Freedom of Information Act (5 U.S.C. 552, as amended) and
Department of Defense Directive (DoDD) 5400.7 and promotes uniformity
in the Department of Defense (DoD) Freedom of Information Act (FOIA)
Program (AR25-55). This Army regulation implements provisions for
access and release of information from all Army information systems
(automated and manual) in support of Army Information Management (AR
25-1).
Sec. 518.2 References.
Required and related publications are listed in Appendix A of this
part.
Sec. 518.3 Explanation of abbreviations and terms.
Abbreviations and special terms used in this part are explained in
the glossary of AR 25-55.
Sec. 518.4 Responsibilities.
(a) The Deputy Chief of Staff for Personnel (DCS, G-1) is
responsible for issuing policy and establishing guidance for the Army
FOIA Program. DCS, G-1 has the responsibility to approve exceptions to
this part that are consistent with controlling law and regulations.
DCS, G-1 may delegate the approval authority, in writing, to a division
chief, under its supervision, within that agency in the grade of O6 or
civilian equivalent.
(b) The U.S. Army Human Resources Command, (AHRC), The Adjutant
General (TAG), Records Management and Declassification Agency (RMDA),
is responsible for developing and recommending policy to DCS, G-1
concerning the Army FOIA program and overall execution of the program
under the policy and guidance of DCS, G-1.
er its supervision, within that agency in the grade of O6 or
civilian equivalent.
(b) The U.S. Army Human Resources Command, (AHRC), The Adjutant
General (TAG), Records Management and Declassification Agency (RMDA),
is responsible for developing and recommending policy to DCS, G-1
concerning the Army FOIA program and overall execution of the program
under the policy and guidance of DCS, G-1.
(c) The Chief of Information Officer (CIO), G6 will provide
oversight of the FOIA program as necessary in compliance with Federal
Statutes, regulations, Office of Management and Budget (OMB), and the
Office of Secretary of Defense (OSD).
(d) Heads of Army Staff agencies, field operating agencies, major
Army commands (MACOMS), and subordinate commands are responsible for
the supervision and execution of the FOIA program in functional areas
and activities under their command.
(e) Heads of Joint Service agencies or commands for which the Army
is the Executive Agent, or otherwise has responsibility for providing
fiscal, logistical, or administrative support, will adhere to the
policies and procedures in this part.
(f) Commander, Army and Air Force Exchange Service (AAFES), is
responsible for the supervision of the FOIA program within that command
pursuant to this part.
Sec. 518.5 Authority.
(a) This part governs written FOIA requests from members of the
public. It does not preclude the release of personnel or other records
to agencies or individuals in the Federal Government for use in
official work.
(b) Soldiers and civilian employees of the Department of the Army
(DA) may, as private citizens, request DA or other agencies' records
under the FOIA. They must prepare requests at their own expense and on
their own time. They may not use Government equipment, supplies, or
postage to prepare personal FOIA requests. It is not necessary for
soldiers or civilian employees to go through the chain of command to
request information under the FOIA.
nt of the Army
(DA) may, as private citizens, request DA or other agencies' records
under the FOIA. They must prepare requests at their own expense and on
their own time. They may not use Government equipment, supplies, or
postage to prepare personal FOIA requests. It is not necessary for
soldiers or civilian employees to go through the chain of command to
request information under the FOIA.
(c) Requests for DA records processed under the FOIA may be denied
only in accordance with the FOIA (5 U.S.C. 552(b)), as implemented by
this part. Guidance on the applicability of the FOIA is also found in
the Federal Acquisition Regulation (FAR).
(d) Release of some records may also be affected by the programs
that created them. They are discussed in the following regulations:
(1) AR 20-1 (Inspector General activities and procedures);
(2) AR 27-10 (military justice);
(3) AR 27-20 (claims);
(4) AR 27-40 (litigation: release of information and appearance of
witnesses);
(5) AR 27-60 (intellectual property);
(6) AR 36-2 (Government Accounting Office audits);
(7) AR 40-66, AR 40-68, and AR 40-400 (medical records);
(8) AR 70-31 (technical reports);
(9) AR 20-1, AR 385-40 and DA Pam 385-40 (aircraft accident
investigations);
(10) AR 195-2 (criminal investigation activities);
(11) AR 190-45 (Military Police records and reports);
(12) AR 360-1 (Army public affairs: public information, general
policies on release of information to the public);
(13) AR 380-5 and DoD 5200.1-R (national security classified
information);
(14) AR 380-5 paragraph 7-101e (policies and procedures for
allowing persons outside the Executive Branch to do unofficial
historical research in classified Army records);
(15) AR 380-10 (Technology Transfer for disclosure of information
and contacts with foreign representatives;
(16) AR 381-45 (U.S. Army Intelligence and Security Command
investigation files);
(17) AR 385-40 (safety reports and records);
(18) AR 600-8-104 (military personnel information management
records);
he Executive Branch to do unofficial
historical research in classified Army records);
(15) AR 380-10 (Technology Transfer for disclosure of information
and contacts with foreign representatives;
(16) AR 381-45 (U.S. Army Intelligence and Security Command
investigation files);
(17) AR 385-40 (safety reports and records);
(18) AR 600-8-104 (military personnel information management
records);
(19) AR 600-85 (alcohol and drug abuse records);
(20) AR 608-19 (family advocacy records); and
(21) AR 690 (series civilian personnel records, FAR, DoD Federal
Acquisition Regulation Supplement (DFARS) and the Army Federal
Acquisition Regulation Supplement (AFARS) procurement matters).
Sec. 518.6 Public information.
(a) Public information. The public has a right to information
concerning the activities of its Government. Army policy is to conduct
its activities in an open manner and provide the public with a maximum
amount of accurate and timely information concerning its activities,
consistent always with the legitimate public and private interests of
the American people. A record requested by a member of the public who
follows rules established by proper authority in DA shall not be
withheld in whole or in part unless the record is exempt from mandatory
partial or total disclosure under the FOIA. As a matter of policy, Army
activities shall make discretionary disclosures of exempt records or
information only after full and deliberate consideration of the
institutional, commercial, and personal privacy interests that could be
implicated by disclosure of the information. Activities must be
prepared to present a sound legal basis in support of their
determinations. In order that the public may have timely information
concerning Army activities, records requested through public
information channels by news media representatives that would not be
withheld if requested under the FOIA should be released upon request
be
implicated by disclosure of the information. Activities must be
prepared to present a sound legal basis in support of their
determinations. In order that the public may have timely information
concerning Army activities, records requested through public
information channels by news media representatives that would not be
withheld if requested under the FOIA should be released upon request.
Prompt responses to requests for information from news media
representatives should be encouraged to eliminate the need for these
requesters to invoke the provisions of the FOIA and thereby assist in
providing timely information to the public. Similarly, requests from
other members of the public for information that would not be withheld
under the FOIA should continue to be honored through appropriate means
without requiring the requester to invoke the FOIA.
(b) FOIA handbook. The Department of the Army Freedom of
Information Act/Privacy Act (DA FOIA/PA) Office shall prepare, in
addition to FOIA regulations, a handbook for the use of the public in
obtaining information from its organizations. This handbook will be a
short, simple explanation of what the FOIA is designed to do, and how a
member of the public can use it to access government records. The DA
FOIA/PA Office handbook will explain the types of records that can be
obtained through FOIA requests, why some records cannot, by law, be
made available, and how the Army activity determines whether or not the
record can be released. The handbook will also explain how to make a
FOIA request, how long the requester can expect to wait for a reply,
and appeal rights. The handbook will supplement other information
locator systems, such as the Government Information Locator Service
(GILS), and explain how a requester can obtain more information about
those systems
activity determines whether or not the
record can be released. The handbook will also explain how to make a
FOIA request, how long the requester can expect to wait for a reply,
and appeal rights. The handbook will supplement other information
locator systems, such as the Government Information Locator Service
(GILS), and explain how a requester can obtain more information about
those systems. The handbook will be available on paper and through
electronic means and contain the following additional information,
complete with electronic links to the below elements: The location of
reading room and the types and categories of information available; the
location of the World Wide Web page; a reference to the Army FOIA
regulation and how to obtain a copy; a reference to the Army FOIA
annual report and how to obtain a copy; and the location of the GILS
page. The DA FOIA handbook, ``A Citizen's Guide to Request Army Records
Under the Freedom of Information Act (FOIA),'' can be accessed on-line
at http://www.rmda.belvoir.army.mil/. ``The Major Automated Information
Systems Descriptions'' can be accessed at www.defenselink.mil/pubs/foi.
(c) Control system. A request for records that invokes the FOIA
shall enter a formal control system designed
to ensure accountability and compliance with the FOIA. Any request for
Army records that either explicitly or implicitly cites the FOIA shall
be processed under the provisions of this part, unless otherwise
required.
Sec. 518.7 FOIA terms defined.
sed at www.defenselink.mil/pubs/foi.
(c) Control system. A request for records that invokes the FOIA
shall enter a formal control system designed
to ensure accountability and compliance with the FOIA. Any request for
Army records that either explicitly or implicitly cites the FOIA shall
be processed under the provisions of this part, unless otherwise
required.
Sec. 518.7 FOIA terms defined.
(a) FOIA request. A written request for Army records that
reasonably describes the record(s) sought, made by any person,
including a member of the public (U.S. or foreign citizen/entity), an
organization, or a business, but not including a Federal Agency or a
fugitive from the law, that either explicitly or implicitly invokes the
FOIA, DoDD 5400.7, DoD 5400.7-R, this part, or Army Activity
supplementing regulations or instructions. All requesters should also
indicate a willingness to pay fees associated with the processing of
their request. Requesters may ask for a waiver of fees, but should also
express a willingness to pay fees in the event of a waiver denial.
Written requests may be received by postal service or other commercial
delivery means, by facsimile, or electronically (such as e-mail).
Requests received by facsimile or electronically must have a postal
mailing address included since it may not be practical to provide a
substantive response electronically. The request is considered properly
received, or perfected, when the conditions in this paragraph have been
met and the request arrives at the FOIA office of the Activity in
possession of the records.
lly (such as e-mail).
Requests received by facsimile or electronically must have a postal
mailing address included since it may not be practical to provide a
substantive response electronically. The request is considered properly
received, or perfected, when the conditions in this paragraph have been
met and the request arrives at the FOIA office of the Activity in
possession of the records.
(b) Agency record. The products of data compilation, such as all
books, papers, maps, photographs, and machine readable materials,
inclusive of those in electronic form or format, or other documentary
materials, regardless of physical form or characteristics, made or
received by an agency of the United States Government under Federal law
in connection with the transaction of public business and in DA
possession and control at the time the FOIA request is made.
(1) The following are not included within the definition of the
word ``record'': Objects or articles, such as structures, furniture,
vehicles and equipment, whatever their historical value, or value as
evidence; Anything that is not a tangible or documentary record, such
as an individual's memory or oral communication; 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 in accordance with Public Law 86-36, National Security
Information Exemption.
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 in accordance with Public Law 86-36, National Security
Information Exemption.
(2) A record must exist and be in the possession and control of DA
at the time of the request to be considered subject to this part and
the FOIA. There is no obligation to create or compile a record to
satisfy a FOIA request.
(3) Hard copy or electronic records that are subject to FOIA
requests under 5 U.S.C. 552(a)(3), and that are available to the public
through an established distribution system such as the Government
Printing Office (GPO), Federal Register, National Technical Information
Service (NTIS), or the Internet, normally need not be processed under
the provisions of the FOIA. If a request is received for such
information, Army 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 the request shall be processed under the
FOIA. If there is any doubt as to whether the request must be
processed, contact DA, FOIA/PA Office.
(c) Army activity. A specific area of organizational or functional
responsibility within DA, authorized to receive and act independently
on FOIA requests.
information. However, if the requester insists that the request be
processed under the FOIA, then the request shall be processed under the
FOIA. If there is any doubt as to whether the request must be
processed, contact DA, FOIA/PA Office.
(c) Army activity. A specific area of organizational or functional
responsibility within DA, authorized to receive and act independently
on FOIA requests.
(d) Initial denial authority (IDA). An official who has been
granted authority by the Secretary of the Army to deny records
requested under the FOIA based on one or more of the nine categories of
exemptions from mandatory disclosure. An IDA also: Denies a fee
category claim by a requester; denies a request for expedited
processing due to demonstrated compelling need; denies a request for a
waiver or reduction of fees; reviews a fee estimate; and confirms that
no records were located in response to a request.
(e) Appellate authority. The Secretary of the Army or designee
having jurisdiction for this purpose over the record, or any of the
other adverse determinations. The DA appellate authority is the Office
of the Army General Counsel (OGC).
(f) Administrative appeal. A request by a member of the general
public, made under the FOIA, asking the appellate authority of the Army
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
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. Requesters also may appeal the failure to receive a response
determination within the statutory time limits, a fee estimate, and any
determination that the requester believes is adverse in nature.
to demonstrated compelling need; deny a request for
waiver or reduction of fees; deny a request to review an initial fee
estimate; and confirm that no records were located during the initial
search. Requesters also may appeal the failure to receive a response
determination within the statutory time limits, a fee estimate, and any
determination that the requester believes is adverse in nature.
(g) Public interest. The interest in obtaining official information
that sheds light on an activity's performance of its statutory duties
because the information falls within the statutory purpose of the FOIA
to inform citizens about what their Government is doing. That statutory
purpose, however, is not fostered by disclosure of information about
private citizens accumulated in various governmental files that reveals
nothing about an agency's or official's own conduct.
(h) Electronic record. Records (including e-mail) that are created,
stored, and retrievable by electronic means.
(i) Federal agency. As defined by 5 U.S.C. 552(f)(1), a Federal
agency is any executive department, military department, Government
corporation, Government controlled corporation, or other establishment
in the executive branch of the Government (including the Executive
Office of the President), or any independent regulatory agency.
(j) Law enforcement investigation. An investigation conducted by a
command or activity for law enforcement purposes relating to crime,
waste, fraud or national security. Such investigations may include
gathering evidence for criminal prosecutions and for civil or
regulatory proceedings.
Sec. 518.8 Freedom of Information requirements.
(a) Compliance with the FOIA. Army personnel are expected to comply
with the FOIA, this part, and Army FOIA policy in both letter and
spirit. This strict adherence is necessary to provide uniformity in the
implementation of the Army FOIA Program and to create conditions that
will promote public trust.
and for civil or
regulatory proceedings.
Sec. 518.8 Freedom of Information requirements.
(a) Compliance with the FOIA. Army personnel are expected to comply
with the FOIA, this part, and Army FOIA policy in both letter and
spirit. This strict adherence is necessary to provide uniformity in the
implementation of the Army FOIA Program and to create conditions that
will promote public trust.
(b) Openness with the public. The DA shall conduct its activities
in an open manner consistent with the need for security and adherence
to other requirements of law and regulation. Records not specifically
exempt from disclosure under the Act shall, upon request, be made
readily accessible to the public in accordance with rules
promulgated by competent authority, whether or not the Act is invoked.
(1) Operations Security (OPSEC). DA officials who release records
under the FOIA must also consider OPSEC. The Army implementing
directive is AR 530-1.
(2) DA Form 4948-R. This form lists references and information
frequently used for FOIA requests related to OPSEC. Persons who
routinely deal with the public (by telephone or letter) on such
requests should keep the form on their desks as a guide.
(c) Avoidance of procedural obstacles. Army Activities shall ensure
that procedural matters do not unnecessarily impede a requester from
obtaining DA records promptly. The Army shall provide assistance to
requesters to help them understand and comply with procedures
established by this part and any supplemental regulations published by
the Army Activities. Coordination of referral of requests with DA FOIA/
PA Office should be made telephonically in order to respond to the
requester in a timelier manner. Requests will not be mailed to the DA
FOIA/PA Office for disposition or coordination with other IDAs.
s to help them understand and comply with procedures
established by this part and any supplemental regulations published by
the Army Activities. Coordination of referral of requests with DA FOIA/
PA Office should be made telephonically in order to respond to the
requester in a timelier manner. Requests will not be mailed to the DA
FOIA/PA Office for disposition or coordination with other IDAs.
(d) Prompt action on requests and final response determinations.
Generally, when a member of the public complies with the procedures
established in this part or instructions for obtaining DA records, and
after the request is received by the official designated to respond,
Army Activities shall endeavor to provide a final response
determination within the statutory 20 working days. If a significant
number of requests, or the complexity of the requests prevent a final
response determination within the statutory time period, Army
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 partially released, or will be released on a
certain date, or the records are withheld under an appropriate FOIA
exemption, or the records cannot be provided for one or more of the
other reasons. Interim responses acknowledging receipt of the request,
negotiations with the requester concerning the scope of the request,
the response timeframe, and fee agreements are encouraged; however,
such actions do not constitute a final response determination pursuant
to the FOIA. If a request fails to meet minimum requirements as set
forth, Activities shall contact the requester and inform the requester
what would be required to perfect or correct the request, or to limit
the scope to allow for the most expeditious response. The statutory 20
working day time limit applies upon receipt of a perfected or correct
FOIA request
response determination pursuant
to the FOIA. If a request fails to meet minimum requirements as set
forth, Activities shall contact the requester and inform the requester
what would be required to perfect or correct the request, or to limit
the scope to allow for the most expeditious response. The statutory 20
working day time limit applies upon receipt of a perfected or correct
FOIA request. Before mailing a final response determination and those
records or portions thereof deemed releasable, records custodians will
obtain a written legal opinion from their servicing judge advocate
concerning the releasibility of the requested records. The legal
opinion must cite specific exemptions, appropriate justification, and
identify if the records were processed under the FOIA, PA (including
the applicable systems notice), or both.
(1) Multi-track processing. When an Army 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. Army Activities may
establish as many processing queues as they wish; however, as a
minimum, three processing tracks shall be established, all based on a
first-in, first-out concept, and rank ordered by the date of receipt of
the request. One track shall be a processing queue for simple requests,
one track for complex requests, and one track shall be a processing
queue for expedited processing. Determinations as to whether a request
is simple or complex shall be made by each Army Activity. Army
Activities shall provide a requester whose request does not qualify for
the fastest queue an opportunity to limit the scope of the request in
order to qualify for the fastest queue
e requests,
one track for complex requests, and one track shall be a processing
queue for expedited processing. Determinations as to whether a request
is simple or complex shall be made by each Army Activity. Army
Activities shall provide a requester whose request does not qualify for
the fastest queue an opportunity to limit the scope of the request in
order to qualify for the fastest queue. This multitrack processing
system does not obviate an Activity's responsibility to exercise due
diligence in processing requests in the most expeditious manner
possible.
(2) 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
Army Activity's office that will determine whether to grant expedited
processing. Once the Army Activity has determined to grant expedited
processing, the request shall be processed as soon as practicable.
Actions by Army Activities to initially deny or affirm the initial
denial on appeal of a request for expedited processing and a failure to
respond in a timely manner shall be subject to judicial review. Initial
determination of denials of expedited processing will be immediately
forwarded to the IDA for action. If the IDA upholds the denial, the
requester will be informed of his or her right to appeal.
Army Activities to initially deny or affirm the initial
denial on appeal of a request for expedited processing and a failure to
respond in a timely manner shall be subject to judicial review. Initial
determination of denials of expedited processing will be immediately
forwarded to the IDA for action. If the IDA upholds the denial, the
requester will be informed of his or her right to appeal.
(i) Imminent threat. 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) Alleged Federal Government activity. 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) General public interest. 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.
ormation 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) Certified statement. A demonstration of compelling need by a
requester shall be made by a statement certified by the requester to be
true and correct to the best of his or 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 for expedited processing. Another reason that
merits expedited processing by Army FOIA offices is an imminent loss of
substantial due process rights. A demonstration of imminent loss of
substantial due process rights shall be made by a statement certified
by the requester to be true and correct to the best of his or her
knowledge. The
statement mentioned in paragraph (c)(2)(iv) of this section must
accompany the request in order to be considered and responded to within
the 10 calendar days required for decisions on expedited access. Once
the decision has been made to expedite the request for this reason, the
request may be processed in the expedited processing queue behind those
requests qualifying for compelling need.
(vi) Administrative appeals. These same procedures also apply to
requests for expedited processing of administrative appeals.
ded to within
the 10 calendar days required for decisions on expedited access. Once
the decision has been made to expedite the request for this reason, the
request may be processed in the expedited processing queue behind those
requests qualifying for compelling need.
(vi) Administrative appeals. These same procedures also apply to
requests for expedited processing of administrative appeals.
(e) Use of exemptions. It is Army policy to make records publicly
available, unless the record qualifies for exemption under one or more
of the nine exemptions. Discretionary releases of information protected
under the FOIA should be made only after full and deliberate
consideration of the institutional, commercial, and personal privacy
interests that could be implicated by disclosure of the information.
When Army activities determine to withhold information using one of the
nine exemptions, the Department of Justice (DOJ) will defend the
position unless it is found to be lacking a Sound Legal Basis for
denial.
(1) Parts of a requested record may be exempt from disclosure under
the FOIA. The proper DA official may delete exempt information and
release the remainder to the requester. The proper official also has
the discretion under the FOIA to release exempt information when
appropriate; he or she must exercise this discretion in a reasonable
manner, within regulations consistent with current policy
considerations. The excised copies shall clearly reflect the denied
information by the use of brackets, indicating the removal of
information. Bracketed areas must be sufficiently removed so as to
reveal no information. The best means to ensure illegibility is to cut
out the information from a copy of the document and reproduce the
appropriate pages.
(2) If the document is declassified, all classification markings
shall be lined through with a single black line, which will allow the
markings to be read. The document shall then be stamped
``Unclassified.''
ufficiently removed so as to
reveal no information. The best means to ensure illegibility is to cut
out the information from a copy of the document and reproduce the
appropriate pages.
(2) If the document is declassified, all classification markings
shall be lined through with a single black line, which will allow the
markings to be read. The document shall then be stamped
``Unclassified.''
(f) Public domain. Nonexempt records released under the authority
of this part are considered to be in the public domain. Such records
may also be made available in the DA reading room in paper form, as
well as electronically, to facilitate public access. Exempt records
disclosed without authorization by the appropriate Army FOIA official
do not lose their exempt status. Also, while authority may exist to
disclose records to individuals in their official capacity, the
provisions of this part apply if the same individual seeks the records
in a private or personal capacity.
(g) Creating a record. A record must exist and be in the possession
and control of DA at the time of the search to be considered subject to
this part and the FOIA. There is no obligation to create or compile a
record to satisfy a FOIA request. An Army Activity, 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
that would be charged for providing the existing record. Fee
assessments shall be in accordance with Subpart F of this part.
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
that would be charged for providing the existing record. Fee
assessments shall be in accordance with Subpart F of this part.
(1) Concerning 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, Army Activities should apply a
standard of reasonableness.
(2) If the capability exists to respond to the request, and the
effort would be a business as usual approach, then the request should
be processed. However, the request need not be processed where the
capability to respond does not exist without a significant expenditure
of resources, thus not being a normal business as usual approach. As
used in this sense, a significant expenditure of resources in both time
and/or manpower that would cause a significant interference with the
operation of the Army Activity's automated information system would not
be a business as usual approach.
(h) Description of requested record. Identification of the record
desired is the responsibility of the requester. The requester must
provide a description of the desired record that enables the Government
to locate the record with a reasonable amount of effort. In order to
assist Army Activities in conducting more timely searches, requesters
should endeavor to provide as much identifying information as possible.
When an Army Activity receives a request that does not reasonably
describe the requested record, it shall contact the requester and
afford the requester the opportunity to perfect the request
te the record with a reasonable amount of effort. In order to
assist Army Activities in conducting more timely searches, requesters
should endeavor to provide as much identifying information as possible.
When an Army Activity receives a request that does not reasonably
describe the requested record, it shall contact the requester and
afford the requester the opportunity to perfect the request. Army
Activities are not obligated to act on the request until the requester
perfects the request. When practicable, Army Activities shall contact
the requester to aid in identifying the records sought and in
reformulating the request to reduce the burden on the agency in
complying with the Act. DA FOIA officials will reply to unclear
requests by: Describing the defects in the requests; explaining the
types of information described below, and ask the requester for such
information; and explaining that no action will be taken on the request
until the requester replies to the letter.
(1) 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: Category I is file-related and includes information such as
type of record (for example, memorandum), title, index citation,
subject area, date of record creation, and originator; 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 an
organized, non random search based on the Army Activity's filing
arrangements and existing retrieval systems, or unless the record
contains sufficient Category II information to permit an inference of
the Category I elements needed to conduct such a search.
vers.
(2) Generally, a record is not reasonably described unless the
description contains sufficient Category I information to permit an
organized, non random search based on the Army Activity's filing
arrangements and existing retrieval systems, or unless the record
contains sufficient Category II information to permit an 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 only in
connection with a request for records concerning the requester, only
records in a PA system of records that can be retrieved by personal
identifiers need be searched. However, if an Army Activity has reason
to believe that records on the requester may exist in a record system
other than a PA system, the Army Activity shall search that system
under the provisions of the FOIA. In either case, Army 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 record is required to be released under the FOIA, the Privacy
Act does not bar its disclosure.
(4) The previous guidelines notwithstanding, the decision of the
Army Activity concerning reasonableness of description must be based on
knowledge of its files. If the description enables Army 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 an Army 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 Army Activity's staff to reasonably ascertain and
locate which records are being requested.
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 an Army 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 Army Activity's staff to reasonably ascertain and
locate which records are being requested.
(i) Referrals. The Army FOIA referral policy is based upon the
concept of the originator of a record making a release determination on
its information. If an Army Activity receives a request for records
originated by another Army Activity, it will contact the Army Activity
to determine if it also received the request, and if not, obtain
concurrence from the other Army Activity to refer the request. An Army
Activity shall refer a FOIA request for a classified record that it
holds to another Army Activity, DoD Component, or agency outside the
DoD, if the record originated in another Army Activity or DoD Component
or outside agency, or if the classification is derivative. In this
situation, provide the record and a release recommendation on the
record with the referral action. In either situation, the requester
shall be advised of the action taken, unless exempt information would
be revealed. While referrals to originators of information result in
obtaining the best possible decision on release of the information, the
policy does not relieve Army 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,
Army Activities shall still coordinate with the originator of the
information prior to making a release determination. A request received
by an Army Activity having no records responsive to a request shall be
referred routinely to another Army Activity, if the other Army Activity
has reason to believe it has the requested records
ral of the request and the record. Should this situation occur,
Army Activities shall still coordinate with the originator of the
information prior to making a release determination. A request received
by an Army Activity having no records responsive to a request shall be
referred routinely to another Army Activity, if the other Army Activity
has reason to believe it has the requested records. Prior to notifying
a requester of a referral to another Army Activity, the Army Activity
receiving the initial request shall consult with the other Army
Activity to determine if that Army Activity's association with the
material is exempt. If the association is exempt, the Army Activity
receiving the initial request will protect the association and any
exempt information without revealing the identity of the protected Army
Activity. The protected Army Activity should be responsible for
submitting the justifications required in any litigation. Any Army
Activity receiving a request that has been misaddressed shall refer the
request to the proper address and advise the requester. Army Activities
making referrals of requests for records shall include with the
referral, a point of contact by name, a telephone number, and an e-mail
address. If the office receiving the FOIA request does not know where
the requested records are located, that activity will contact the DA,
FOIA/PA Office, to determine the office where the request should be
referred.
nd advise the requester. Army Activities
making referrals of requests for records shall include with the
referral, a point of contact by name, a telephone number, and an e-mail
address. If the office receiving the FOIA request does not know where
the requested records are located, that activity will contact the DA,
FOIA/PA Office, to determine the office where the request should be
referred.
(1) An Army Activity shall refer for response directly to the
requester a FOIA request for a record that it holds to another Army
Activity or agency outside the Army, if the record originated in the
other Army Activity or outside agency. Whenever a record or a portion
of a record is referred to another Army Activity or to a Government
Agency outside of the Army for a release determination and direct
response, the requester shall be informed of the referral, unless it
has been determined that notification would reveal exempt information.
Referred records shall only be identified to the extent consistent with
security requirements.
(2) An Army Activity may refer a request for a record that it
originated to another Army Activity or agency when the other Army
Activity or agency has a valid interest in the record, or the record
was created for the use of the other Army Activity or agency. In such
situations, provide the record and a release recommendation on the
record with the referral action. Include a point of contact with the
telephone number. An example of such a situation is a request for audit
reports prepared by the U.S. Army Audit Agency. These advisory reports
are prepared for the use of contracting officers and their release to
the audited contractor shall be at the discretion of the contracting
officer. A FOIA request shall be referred to the appropriate Army
Activity and the requester shall be notified of the referral, unless
exempt information would be revealed
st for audit
reports prepared by the U.S. Army Audit Agency. These advisory reports
are prepared for the use of contracting officers and their release to
the audited contractor shall be at the discretion of the contracting
officer. A FOIA request shall be referred to the appropriate Army
Activity and the requester shall be notified of the referral, unless
exempt information would be revealed. Another example is a record
originated by an Army Activity or agency that involves foreign
relations, and could affect an Army Activity or organization in a host
foreign country. Such a request and any responsive records may be
referred to the affected Army Activity or organization for consultation
prior to a final release determination within DA.
(3) Within DA, an Army Activity shall ordinarily refer a FOIA
request and a copy of the record it holds but that originated with
another Army Activity or that contains substantial information obtained
from another Army Activity, to that Activity for direct response, after
direct coordination and obtaining concurrence from the Activity. The
requester then shall be notified of such referral. Army Activities
shall not, in any case, release or deny such records without prior
consultation with the other Army Activity.
(4) Army Activities that receive referred requests shall answer
them in accordance with the time limits established by the FOIA, this
part, and their multitrack processing queues, based upon the date of
initial receipt of the request at the referring Activity or agency.
(5) Agencies outside DA that are subject to the FOIA.
such records without prior
consultation with the other Army Activity.
(4) Army Activities that receive referred requests shall answer
them in accordance with the time limits established by the FOIA, this
part, and their multitrack processing queues, based upon the date of
initial receipt of the request at the referring Activity or agency.
(5) Agencies outside DA that are subject to the FOIA.
(i) An Army Activity may refer a FOIA request for any record that
originated in an agency outside DA 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 Army Activity must respond to
the request.
(ii) An Army 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 DA 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, an Army Activity may only respond directly to the requester
after coordination with the outside agency.
(6) Army Activities that receive requests for records of the
National Security Council (NSC), the White House, or the White House
Military Office (WHMO) shall process the requests. Army records in
which the NSC or White House has a concurrent reviewing interest, and
NSC, White House, or WHMO records discovered in Army Activity's files
shall be forwarded through DA, FOIA/PA Office, to the Washington
Headquarters Services, Office For Freedom of Information and Security
Review (OFOISR). The OFOISR shall coordinate with the NSC, White House,
or WHMO and return the records to the originating agency after
coordination.
(7) To the extent referrals are consistent with the policies
expressed by this section, referrals between offices of the same Army
Activity are authorized.
to the Washington
Headquarters Services, Office For Freedom of Information and Security
Review (OFOISR). The OFOISR shall coordinate with the NSC, White House,
or WHMO and return the records to the originating agency after
coordination.
(7) To the extent referrals are consistent with the policies
expressed by this section, referrals between offices of the same Army
Activity are authorized.
(8) On occasion, the DA receives FOIA requests for General
Accounting Office (GAO) records containing Army information. Even
though the GAO is outside the Executive Branch, and not subject to the
FOIA, all FOIA requests
for GAO documents containing Army information received either from the
public or on referral from the GAO shall be processed under the
provisions of the FOIA.
(j) Authentication. Records provided under this part shall be
authenticated with an appropriate seal, whenever necessary, to fulfill
an official Government or other legal function. This service, however,
is in addition to that required under the FOIA and is not included in
the FOIA fee schedule. Army Activities may charge for the service at a
rate of $5.20 for each authentication.
(k) Records management. FOIA records shall be maintained and
disposed of in accordance with the National Archives and Records
Administration (NARA) General Records Schedule and DoD Component
records schedules.
(l) Record-keeping requirements in accordance with the Army Records
Information Management System (ARIMS). The records listed below are
required by ARIMS in the conduct of the daily business of the Army to
provide adequate and proper documentation to protect the rights and
interests of individuals and the Federal Government. The full
description of the records and their disposition is found at https://www2.arims.army.mil.
(1) FOIA requests, access, and denials;
(2) FOIA administrative files;
(3) FOIA appeals;
(4) FOIA controls;
(5) FOIA reports;
(6) Access to information files;
(7) Safeguarded nondefense information releases;
ation to protect the rights and
interests of individuals and the Federal Government. The full
description of the records and their disposition is found at https://www2.arims.army.mil.
(1) FOIA requests, access, and denials;
(2) FOIA administrative files;
(3) FOIA appeals;
(4) FOIA controls;
(5) FOIA reports;
(6) Access to information files;
(7) Safeguarded nondefense information releases;
(8) Nonsafeguarded information releases;
(9) Unauthorized disclosure reports;
(10) Acknowledgement; and
(11) Initial Denial Authority designations/appointments.
(m) Relationship between the FOIA and the Privacy Act (PA). Not all
requesters are knowledgeable of the appropriate statutory authority to
cite when requesting records, nor are all of them aware of appeal
procedures. In some instances, they may cite neither Act, but will
imply one or both Acts. For these reasons, the below guidelines are
provided to ensure that requesters receive the greatest amount of
access rights under both Acts.
(1) If the record is required to be released under the FOIA, the PA
does not bar its disclosure. Unlike the FOIA, the PA applies only to
U.S. citizens and aliens lawfully admitted for permanent residence.
(2) 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 if 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.
(3) Requesters who seek records about themselves that are not
contained in a Privacy Act 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.
e so advised with the appropriate PA and
FOIA exemption. Appeals shall be processed under both Acts.
(3) Requesters who seek records about themselves that are not
contained in a Privacy Act system of records and who cite or imply the
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.
(4) 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 if 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.
(5) Requesters who seek access to agency records that are not part
of a PA system of records, and who cite or imply the PA and FOIA, will
have their requests processed under the FOIA since the PA does not
apply to these records. Appeals shall be processed under the FOIA.
Requesters who seek access to agency records and who cite or imply the
FOIA will have their requests and appeals processed under the FOIA.
(6) Requesters shall be advised in the final response letter, which
Act(s) was (were) used, inclusive of appeal rights as outlined in
paragraphs (m)(1) through (5) of this section.
oes not
apply to these records. Appeals shall be processed under the FOIA.
Requesters who seek access to agency records and who cite or imply the
FOIA will have their requests and appeals processed under the FOIA.
(6) Requesters shall be advised in the final response letter, which
Act(s) was (were) used, inclusive of appeal rights as outlined in
paragraphs (m)(1) through (5) of this section.
(n) Non-responsive information in responsive records. Army
Activities shall interpret FOIA requests liberally when determining
which records are responsive to the requests, and may release non-
responsive information. However, should Army 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 delete the 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 that
is not exempt. For non-responsive information that is exempt, notify
the requester that even if the information were determined responsive,
it would likely be exempt under (state appropriate exemption(s)).
Advise the requester of the right to request this information under a
separate FOIA request. The separate request shall be placed in the same
location within the processing queue as the original request.
For non-responsive information that is exempt, notify
the requester that even if the information were determined responsive,
it would likely be exempt under (state appropriate exemption(s)).
Advise the requester of the right to request this information under a
separate FOIA request. The separate request shall be placed in the same
location within the processing queue as the original request.
(3) If the responsive record is classified, and the requester does
not agree to deletion of non-responsive information without a FOIA
exemption, release all unclassified responsive and non-responsive
information that is not exempt. The classified, non-responsive
information need not be reviewed for declassification at this point.
Advise the requester that even if the classified information were
determined responsive, it would likely be exempt under 5 U.S.C.
552(b)(1), and other exemptions if appropriate. Advise the requester of
the right to request this information under a separate FOIA request.
The separate request shall be placed in the same location within the
processing queue as the original request.
(o) Honoring form or format requests. Army 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. Army Activities
shall make reasonable efforts to maintain their records in forms or
formats that are reproducible. In responding to requests for records,
Army 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 Army Activities' automated
information system. Such determinations shall be made on a case-by-case
basis.
Subpart B--FOIA Reading Rooms
Sec. 518.9 Reading room.
reproducible. In responding to requests for records,
Army 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 Army Activities' automated
information system. Such determinations shall be made on a case-by-case
basis.
Subpart B--FOIA Reading Rooms
Sec. 518.9 Reading room.
(a) Reading room location. The DA shall provide an appropriate
facility or facilities where the public may inspect and copy or have
copied the records described in paragraphs (b)(1) through (4) of this
section. In addition to the records described, DA may elect to place
other records in their reading room, and also make them electronically
available to the public. The Army may share reading room facilities
with DoD Components if the public is not unduly inconvenienced, and
also may establish decentralized reading rooms. When appropriate, the
cost of copying may be
imposed on the person requesting the material in accordance with the
provisions of Subpart F of this part. The Army FOIA Public Reading Room
is operated by the DA, FOIA/PA Office.
(b) Record availability. The FOIA requires that records described
in 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) created on or after
November 1, 1996, shall be made available electronically, 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. All
portions determined to be exempt in accordance with 5 U.S.C. 552
(reference (a)) shall be deleted from all 5 U.S.C. 552(a)(2) records
made available to the general public. In every case, justification for
the deletion must be fully explained in writing, and the extent of such
deletion shall be indicated on the record that is made publicly
available, unless such indication would harm an interest protected by
an exemption under which the deletion was made
2
(reference (a)) shall be deleted from all 5 U.S.C. 552(a)(2) records
made available to the general public. In every case, justification for
the deletion must be fully explained in writing, and the extent of such
deletion shall be indicated on the record that 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, the Army 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 Army may refer to this
description rather than write a separate justification for each
deletion. 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) records are:
(1) (a)(2)(A) records. Final opinions, including concurring and
dissenting opinions, and orders made in the adjudication of cases, as
defined in 5 U.S.C. 551, that may be cited, used, or relied upon as
precedents in future adjudications;
(2) (a)(2)(B) records. Statements of policy and interpretations
that have been adopted by the agency that are not published in the
Federal Register; and
(3) (a)(2)(C) records. Administrative staff manuals and
instructions, or portions thereof that establish Army 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 Army. Examples of
manuals and instructions not normally made available are:
instructions, or portions thereof that establish Army 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 Army. Examples of
manuals and instructions not normally made available are:
(i) Those issued for audit, investigation, and inspection purposes,
or those that prescribe operational tactics, standards of performance,
or criteria for defense, prosecution, or settlement of cases; and
(ii) Operations and maintenance manuals and technical information
concerning munitions, equipment, systems, and intelligence activities.
(4) (a)(2)(D) records. Those 5 U.S.C. 552(a)(3) records, which
because of the nature of the subject matter, have become or are likely
to become the subject of subsequent requests for substantially the same
records. These records are referred to as FOIA-processed (a)(2)
records.
(i) Army Activities shall decide on a case by case basis whether
records fall into this category, based on previous experience of the
Army Activity with similar records; particular circumstances of the
records involved, including their nature and the type of information
contained in them; or the identity and number of requesters and whether
there is widespread press, historic, or commercial interest in the
records.
(ii) This provision is intended for situations where public access
in a timely manner is important, and it is not intended to apply where
there may be a limited number of requests over a short period of time
from a few requesters. Army Activities may remove the records from this
access medium when the appropriate officials determine that access is
no longer necessary.
(iii) Should a requester submit a FOIA request for FOIA-processed
ons 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. Army Activities may remove the records from this
access medium when the appropriate officials determine that access is
no longer necessary.
(iii) Should a requester submit a FOIA request for FOIA-processed
(a)(2) records, and insist that the request be processed, Army
Activities shall process the FOIA request. However, Army Activities
have no obligation to process a FOIA request for 5 U.S.C. 552(a)(2)(A),
(B), and (C) records because these records are required to be made
public and not FOIA-processed under paragraph (a)(3) of the FOIA.
Sec. 518.10 ``(a)(2)'' materials.
(a) The DA FOIA/PA Office shall maintain in the facility an index
of materials described in paragraphs (b)(1) through (4) of Sec. 518.9,
that are issued, adopted, or promulgated after July 4, 1967. No
``(a)(2)'' materials issued, promulgated, or adopted after July 4, 1967
that are not indexed and either made available or published may be
relied upon, used or cited as precedent against any individual unless
such individual has actual and timely notice of the contents of such
materials. Such materials issued, promulgated, or adopted before July
4, 1967 need not be indexed, but must be made available upon request if
not exempted under this part.
(b) The DA FOIA/PA Office shall promptly publish quarterly or more
frequently, and distribute, by sale or otherwise, copies of each index
of ``(a)(2)'' materials or supplements thereto unless it publishes in
the Federal Register an order containing a determination that
publication is unnecessary and impracticable. A copy of each index or
supplement not published shall be provided to a requester at a cost not
to exceed the direct cost of duplication as set forth in Subpart F of
this part.
sale or otherwise, copies of each index
of ``(a)(2)'' materials or supplements thereto unless it publishes in
the Federal Register an order containing a determination that
publication is unnecessary and impracticable. A copy of each index or
supplement not published shall be provided to a requester at a cost not
to exceed the direct cost of duplication as set forth in Subpart F of
this part.
(c) Each index of ``(a)(2)'' materials or supplement thereto shall
be arranged topically or by descriptive words rather than by case name
or numbering system so that members of the public can readily locate
material. Case name and numbering arrangements, however, may also be
included for Army convenience.
(d) A general index of FOIA-processed (a)(2) records shall be made
available to the public, both in hard copy and electronically.
Sec. 518.11 Other materials.
(a) Any available index of Army material published in the Federal
Register, such as material required to be published by Section
552(a)(1) of the FOIA, shall be made available in the Army FOIA Public
Reading Room, and electronically to the public.
(b) Although not required to be made available in response to FOIA
requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials
shall, when feasible, be made available to the public in FOIA reading
rooms for inspection and copying, and by electronic means. Examples of
``(a)(1)'' materials are descriptions of an agency's central and field
organization, and to the extent they affect the public, rules of
procedures, descriptions of forms available, instruction as to the
scope and contents of papers, reports, or examinations, and any
amendment, revision, or report of the aforementioned.
Subpart C--Exemptions
Sec. 518.12 General.
Records that meet the exemption criteria of the FOIA may be
withheld from public disclosure and need not be published in the
Federal Register, made available in a library reading room, or provided
in response to a FOIA request.
Sec. 518.13 FOIA exemptions.
rs, reports, or examinations, and any
amendment, revision, or report of the aforementioned.
Subpart C--Exemptions
Sec. 518.12 General.
Records that meet the exemption criteria of the FOIA may be
withheld from public disclosure and need not be published in the
Federal Register, made available in a library reading room, or provided
in response to a FOIA request.
Sec. 518.13 FOIA exemptions.
The following types of records may be withheld in whole or in part
from public disclosure under the FOIA, unless otherwise prescribed by
law. A discretionary release of a record to one requester shall prevent
the withholding
of the same record under a FOIA exemption if the record is subsequently
requested by someone else. However, a FOIA exemption may be invoked to
withhold information that is similar or related to that which has been
the subject of a discretionary release. In applying exemptions, the
identity of the requester and the purpose for which the record is
sought are irrelevant with the exception that an exemption may not be
invoked where the particular interest to be protected is the
requester's interest. However, if the subject of the record is the
requester for the record and the record is contained in a PA system of
records, it may only be denied to the requester if withholding is both
authorized by AR 25-71 and by a FOIA exemption.
(a) Number 1 (5 U.S.C. 552 (b)(1)). Those properly and currently
classified in the interest of national defense or foreign policy, as
specifically authorized under the criteria established by Executive
Order and implemented by regulations, such as DoD 5200.1-R. Although
material is not classified at the time of the FOIA request, a
classification review may be undertaken to determine whether the
information should be classified. The procedures in DoD 5200.1-R apply.
If the information qualifies as exemption 1 information, there is no
discretion regarding its release
established by Executive
Order and implemented by regulations, such as DoD 5200.1-R. Although
material is not classified at the time of the FOIA request, a
classification review may be undertaken to determine whether the
information should be classified. The procedures in DoD 5200.1-R apply.
If the information qualifies as exemption 1 information, there is no
discretion regarding its release. In addition, this exemption shall be
invoked when the following situations are apparent:
(1) The fact of the existence or nonexistence of a record would
itself reveal classified information. In this situation, Army
Activities shall neither confirm nor deny the existence or nonexistence
of the record being requested. A ``refusal to confirm or deny''
response must be used consistently, not only when a record exists, but
also when a record does not exist. Otherwise, the pattern of using a
``no record'' response when a record does not exist, and a ``refusal to
confirm or deny'' when a record does exist will itself disclose
national security information.
(2) Compilations of items of information that are individually
unclassified may be classified if the compiled information reveals
additional association or relationship that meets the standard for
classification under an existing executive order for classification and
DoD 5200.1-R, and is not otherwise revealed in the individual items of
information.
(b) 5 U.S.C. 552(b)(2). Those related solely to the internal
personnel rules and practices of the DoD or any of its Components. This
exemption has two profiles, high (b)(2) and low (b)(2). Activities are
encouraged to consult the DA, FOIA/PA Office, and the U.S. DoJ
``Freedom of Information Act Guide & Privacy Act Overview'' for a more
in depth discussion on the legal history of the use of the low (b)(2)
exemption. When only a minimal Government interest would be affected
(administrative burden), Army Activities shall apply the sound legal
basis standard regarding disclosure of the information
ncouraged to consult the DA, FOIA/PA Office, and the U.S. DoJ
``Freedom of Information Act Guide & Privacy Act Overview'' for a more
in depth discussion on the legal history of the use of the low (b)(2)
exemption. When only a minimal Government interest would be affected
(administrative burden), Army Activities shall apply the sound legal
basis standard regarding disclosure of the information. Army Activities
shall apply the low 2 exemption as applicable.
(1) Records qualifying under high (b)(2) are those containing or
constituting statutes, rules, regulations, orders, manuals, directives,
instructions, security classification guides, and sensitive but
unclassified information related to America's homeland security and
critical infrastructure information the release of which would allow
circumvention of these records thereby substantially hindering the
effective performance or present an unwarranted risk of adverse impact
on the ability of other agencies to protect other important records of
a significant function of the DA. Examples include:
(i) Those operating rules, guidelines, and manuals for Army
investigators, inspectors, auditors, or examiners that must remain
privileged in order for the Army Activity to fulfill a legal
requirement;
(ii) Personnel and other administrative matters, such as
examination questions and answers used in training courses or in the
determination of the qualifications of candidates for employment,
entrance on duty, advancement, or promotion; and
(iii) Computer software, the release of which would allow
circumvention of a statute, DoD or Army rules, regulations, orders,
manuals, directives, or instructions. In this situation, the use of the
software must be closely examined to ensure a circumvention possibility
exists.
determination of the qualifications of candidates for employment,
entrance on duty, advancement, or promotion; and
(iii) Computer software, the release of which would allow
circumvention of a statute, DoD or Army rules, regulations, orders,
manuals, directives, or instructions. In this situation, the use of the
software must be closely examined to ensure a circumvention possibility
exists.
(2) Records qualifying under the low (b)(2) profile are those that
are trivial and housekeeping in nature for which there is no legitimate
public interest or benefit to be gained by release, and it would
constitute an administrative burden to process the request in order to
disclose the records. Examples include rules of personnel's use of
parking facilities or regulation of lunch hours, statements of policy
as to sick leave, and administrative data such as file numbers, mail
routing stamps, initials, data processing notations, brief references
to previous communications, and other like administrative markings.
Army Activities shall apply the low 2 exemption as applicable.
(c) Number 3 (5 U.S.C. 552(b)(3)). Those concerning matters that a
statute specifically exempts from disclosure by terms that permit no
discretion on the issue, or in accordance with criteria established by
that statute for withholding or referring to particular types of
matters to be withheld. The DA, FOIA/PA Office, maintains a list of
ivities shall apply the low 2 exemption as applicable.
(c) Number 3 (5 U.S.C. 552(b)(3)). Those concerning matters that a
statute specifically exempts from disclosure by terms that permit no
discretion on the issue, or in accordance with criteria established by
that statute for withholding or referring to particular types of
matters to be withheld. The DA, FOIA/PA Office, maintains a list of
(b)(3) statutes used within the DoD, and provides updated lists of
these statutes to Army Activities on a periodic basis. A few examples
of such statutes are:
(1) Personnel in Overseas, Sensitive, or Routinely Deployable
Units: nondisclosure of personally identifying information, 10 U.S.C.
130(b). Additionally, the names and duty addresses (postal and/or e-
mail) of Army military and civilian personnel who are assigned to units
that are sensitive, routinely deployable, or stationed in foreign
territories can constitute a clearly unwarranted invasion of personal
privacy and may also be withheld in accordance with FOIA Exemption 3.
Names and duty addresses (postal and/or e-mail) published in telephone
directories, organizational charts, rosters and similar materials for
personnel assigned to units that are sensitive, routinely deployable,
or stationed in foreign territories are withholdable under this
exemption, in accordance with 10 U.S.C. 130 ``Personnel in Overseas,
Sensitive, or Routinely Deployable Units;''
(2) Classification and Declassification of Restricted Data, 42
U.S.C. 2162;
(3) Disclosure of Classified Information, 18 U.S.C. 798(a);
(4) Authority to Withhold from Public Disclosure Certain Technical
Data, 10 U.S.C. 130 and DoDD 5230.25;
(5) Confidentiality of Medical Quality Assurance Records: Qualified
Immunity for Participants, 10 U.S.C. 1102(f);
(6) Physical Protection of Special Nuclear Material: Limitation on
Dissemination of Unclassified Information, 10 U.S.C. 128;
(7) Protection of Intelligence Sources and Methods, 50 U.S.C. 403-
3(c)(6);
from Public Disclosure Certain Technical
Data, 10 U.S.C. 130 and DoDD 5230.25;
(5) Confidentiality of Medical Quality Assurance Records: Qualified
Immunity for Participants, 10 U.S.C. 1102(f);
(6) Physical Protection of Special Nuclear Material: Limitation on
Dissemination of Unclassified Information, 10 U.S.C. 128;
(7) Protection of Intelligence Sources and Methods, 50 U.S.C. 403-
3(c)(6);
(8) Prohibition on Release of Contractor Submitted Proposals, 10
U.S.C. 2305(g);
(9) Restrictions on Disclosing and Obtaining Contractor Bid or
Proposal Information or Source Selection Information, 41 U.S.C. 423;
and
(10) Secrecy of Certain Inventions and Filing Applications in a
Foreign Country, 35 U.S.C. 181-188. Any records containing information
relating to inventions that are the subject of
patent applications on which Patent Secrecy Orders have been issued.
(d) Number 4 (5 U.S.C. 552 (b)(4)). Those containing trade secrets
or commercial or financial information that an Army Activity receives
from a person or organization outside the Government with the
understanding that the information or record will be retained on a
privileged or confidential basis in accordance with the customary
handling of such records. Records within the exemption must contain
trade secrets, or commercial or financial records, the disclosure of
which is likely to cause substantial harm to the competitive position
of the source providing the information, impair the Government's
ability to obtain necessary information in the future, or impair some
other legitimate Government interest. Commercial or financial
information submitted on a voluntary basis, absent any exercised
authority prescribing criteria for submission is protected without any
requirement to show competitive harm. If the information qualifies as
exemption 4 information, there is no discretion in its release.
Examples include:
ry information in the future, or impair some
other legitimate Government interest. Commercial or financial
information submitted on a voluntary basis, absent any exercised
authority prescribing criteria for submission is protected without any
requirement to show competitive harm. If the information qualifies as
exemption 4 information, there is no discretion in its release.
Examples include:
(1) Commercial or financial information received in confidence in
connection with loans, bids, contracts, or proposals set forth in or
incorporated by reference in a contract entered into between the Army
Activity and the offeror that submitted the proposal, as well as other
information received in confidence or privileged, such as trade
secrets, inventions, discoveries, or other proprietary data.
Additionally, when the provisions of 10 U.S.C. 2305(g) and 41 U.S.C.
423 are met, certain proprietary and source selection information may
be withheld under exemption 3;
(2) Statistical data and commercial or financial information
concerning contract performance, income, profits, losses, and
expenditures, if offered and received in confidence from a contractor
or potential contractor;
(3) Personal statements given in the course of inspections,
investigations, or audits, when such statements are received in
confidence from the individual and retained in confidence because they
reveal trade secrets or commercial or financial information normally
considered confidential or privileged;
(4) Financial data provided in confidence by private employers in
connection with locality wage surveys that are used to fix and adjust
pay schedules applicable to the prevailing wage rate of employees
within the DA;
(5) Scientific and manufacturing processes or developments
concerning technical or scientific data or other information submitted
with an application for a research grant, or with a report while
research is in progress;
y private employers in
connection with locality wage surveys that are used to fix and adjust
pay schedules applicable to the prevailing wage rate of employees
within the DA;
(5) Scientific and manufacturing processes or developments
concerning technical or scientific data or other information submitted
with an application for a research grant, or with a report while
research is in progress;
(6) Technical or scientific data developed by a contractor or
subcontractor exclusively at private expense, and technical or
scientific data developed in part with Federal funds and in part at
private expense, wherein the contractor or subcontractor has retained
legitimate proprietary interests in such data in accordance with 10
U.S.C. 2320-2311 and DoD Federal Acquisition Regulation Supplement
(DFARS), Subpart 27.4. Technical data developed exclusively with
Federal funds may be withheld under Exemption Number 3 if it meets the
criteria of 10 U.S.C. 130 and DoDD 5230.25;
(7) Computer software, which is copyrighted in accordance with 17
U.S.C. 106, `Exclusive rights in Copyrighted Works, the disclosure of
which would have an adverse impact on the potential market value of a
copyrighted work; and
(8) Proprietary information submitted strictly on a voluntary
basis, absent any exercised authority prescribing criteria for
submission. Examples of exercised authorities prescribing criteria for
submission are statutes, Executive Orders, regulations, invitations for
bids, requests for proposals, and contracts. Submission of information
under these authorities is not voluntary.
ted work; and
(8) Proprietary information submitted strictly on a voluntary
basis, absent any exercised authority prescribing criteria for
submission. Examples of exercised authorities prescribing criteria for
submission are statutes, Executive Orders, regulations, invitations for
bids, requests for proposals, and contracts. Submission of information
under these authorities is not voluntary.
(e) Number 5 (5 U.S.C. 552 (b)(5)). Those containing information
considered privileged in litigation, primarily under the deliberative
process privilege. Except as provided in paragraphs (e) (1) through (5)
of this section, internal advice, recommendations, and subjective
evaluations, as contrasted with factual matters that are reflected in
deliberative records pertaining to the decision-making process of an
agency, whether within or among agencies (as defined in 5 U.S.C.
552(e)), or within or among Army Activities. In order to meet the test
of this exemption, the record must be both deliberative in nature, as
well as part of a decision-making process. Merely being an internal
record is insufficient basis for withholding under this exemption. Also
potentially exempted are records pertaining to the attorney-client
privilege and the attorney work-product privilege. Discretionary
disclosure decisions should be made only after full and deliberate
consideration of the institutional, commercial, and personal privacy
interests that could be implicated by disclosure of the information.
(1) Examples of the deliberative process include:
n. Also
potentially exempted are records pertaining to the attorney-client
privilege and the attorney work-product privilege. Discretionary
disclosure decisions should be made only after full and deliberate
consideration of the institutional, commercial, and personal privacy
interests that could be implicated by disclosure of the information.
(1) Examples of the deliberative process include:
(i)The non-factual portions of staff papers, to include after-
action reports, lessons learned, and situation reports containing staff
evaluations, advice, opinions, or suggestions;
(ii) Advice, suggestions, or evaluations prepared on behalf of the
DA by individual consultants or by boards, committees, councils,
groups, panels, conferences, commissions, task forces, or other similar
groups that are formed for the purpose of obtaining advice and
recommendations.;
(iii) Those non-factual portions of evaluations by DoD Component
personnel of contractors and their products;
(iv) Information of a speculative, tentative, or evaluative nature
or such matters as proposed plans to procure, lease or otherwise
acquire and dispose of materials, real estate, facilities or functions,
when such information would provide undue or unfair competitive
advantage to private personal interests or would impede legitimate
government functions;
(v) Trade secret or other confidential research development, or
commercial information owned by the Government, where premature release
is likely to affect the Government's negotiating position or other
commercial interest;
(vi) Those portions of official reports of inspection, reports of
the Inspector Generals, audits, investigations, or surveys pertaining
to safety, security, or the internal management, administration, or
operation of one or more Army Activities, when these records have
traditionally been treated by the courts as privileged against
disclosure in litigation; and
or other
commercial interest;
(vi) Those portions of official reports of inspection, reports of
the Inspector Generals, audits, investigations, or surveys pertaining
to safety, security, or the internal management, administration, or
operation of one or more Army Activities, when these records have
traditionally been treated by the courts as privileged against
disclosure in litigation; and
(vii) Planning, programming, and budgetary information that is
involved in the defense planning and resource allocation process.
(2) If any such intra-or inter-agency record or reasonably
segregable portion of such record hypothetically would be made
available routinely through the discovery process in the course of
litigation with the Army, then it should not be withheld under the
FOIA. If, however, the information hypothetically would not be released
at all, or would only be released in a particular case during civil
discovery where a party's particularized showing of need might override
a privilege, then the record may be withheld. Discovery is the formal
process by which litigants obtain information from each other for use
in the litigation. Consult with legal counsel to determine whether
exemption 5 material would be routinely made available through the
discovery process.
(3) Intra- or inter-agency memoranda or letters that are factual,
or those reasonably segregable portions that are factual, are routinely
made available through discovery, and shall be made available to a
requester, unless the factual material is otherwise exempt from
release, inextricably intertwined with the exempt information, so
fragmented as to be uninformative, or so redundant of information
already available to the requester as to provide no new substantive
information.
egregable portions that are factual, are routinely
made available through discovery, and shall be made available to a
requester, unless the factual material is otherwise exempt from
release, inextricably intertwined with the exempt information, so
fragmented as to be uninformative, or so redundant of information
already available to the requester as to provide no new substantive
information.
(4) A direction or order from a superior to a subordinate, though
contained in an internal communication, generally cannot be withheld
from a requester if it constitutes policy guidance or a decision, as
distinguished from a discussion of preliminary matters or a request for
information or advice that would compromise the decision-making
process.
(5) An internal communication concerning a decision that
subsequently has been made a matter of public record must be made
available to a requester when the rationale for the decision is
expressly adopted or incorporated by reference in the record containing
the decision.
(f) Number 6 (5 U.S.C. 552 (b)(6)). Information in personnel and
medical files, as well as similar personal information in other files,
and lists of personally identifying information of Army personnel,
that, if disclosed to a requester, other than the person about whom the
information is about, would result in a clearly unwarranted invasion of
personal privacy. Release of information about an individual contained
in a Privacy Act System of Records that would constitute a clearly
unwarranted invasion of privacy is prohibited, and could subject the
releaser to civil and criminal penalties. If the information qualifies
as exemption 6 information, there is no discretion regarding its
release.
(1) Examples of other files containing personal information similar
to that contained in personnel and medical files include:
Act System of Records that would constitute a clearly
unwarranted invasion of privacy is prohibited, and could subject the
releaser to civil and criminal penalties. If the information qualifies
as exemption 6 information, there is no discretion regarding its
release.
(1) Examples of other files containing personal information similar
to that contained in personnel and medical files include:
(i) Those compiled to evaluate or adjudicate the suitability of
candidates for civilian employment or membership in the Armed Forces,
and the eligibility of individuals (civilian, military, or contractor
employees) for security clearances, or for access to particularly
sensitive classified information; and
(ii) Files containing reports, records, and other material
pertaining to personnel matters in which administrative action,
including disciplinary action, may be taken.
(2) Army components shall ordinarily withhold lists of names
(including active duty military, civilian employees, contractors,
members of the National Guard and Reserves, and military dependents)
and other personally identifying information, including lists of e-mail
addresses of personnel currently or recently assigned within a
particular component, unit, organization, or office within the Army.
Home addresses, including private e-mail addresses, are normally not
releasable without the consent of the individuals concerned. This
includes lists of home addresses and military quarters' addressees
without the occupant's name.
tion, including lists of e-mail
addresses of personnel currently or recently assigned within a
particular component, unit, organization, or office within the Army.
Home addresses, including private e-mail addresses, are normally not
releasable without the consent of the individuals concerned. This
includes lists of home addresses and military quarters' addressees
without the occupant's name.
(i) Privacy interest. A privacy interest may exist in personal
information even though the information has been disclosed at some
place and time. If personal information is not freely available from
sources other than the Federal Government, a privacy interest exists in
its nondisclosure. The fact that the Federal Government expended funds
to prepare, index and maintain records on personal information, and the
fact that a requester invokes FOIA to obtain these records indicates
the information is not freely available.
(ii) The right to privacy of deceased persons is not entirely
settled, but the majority rule is that death extinguishes their privacy
rights. However, particularly sensitive, graphic, personal details
about the circumstances surrounding an individual's death may be
withheld when necessary to protect the privacy interests of surviving
family members. Even information that is not particularly sensitive in
and of itself may be withheld to protect the privacy interests of
surviving family members if disclosure would rekindle grief, anguish,
pain, embarrassment, or cause a disruption of their peace of minds.
Additionally, the deceased's social security number should be withheld
since it is used by the next of kin to receive benefits. Disclosures of
the deceased's social security number may be made to the immediate next
of kin.
protect the privacy interests of
surviving family members if disclosure would rekindle grief, anguish,
pain, embarrassment, or cause a disruption of their peace of minds.
Additionally, the deceased's social security number should be withheld
since it is used by the next of kin to receive benefits. Disclosures of
the deceased's social security number may be made to the immediate next
of kin.
(iii) A clearly unwarranted invasion of the privacy of third
parties identified in a personnel, medical or similar record
constitutes a basis for deleting those reasonably segregable portions
of that record. When withholding third party personal information from
the subject of the record and the record is contained in a Privacy Act
system of records, consult with legal counsel.
(iv) This exemption also applies when the fact of the existence or
nonexistence of a responsive record would itself reveal personally
private information, and the public interest in disclosure is not
sufficient to outweigh the privacy interest. In this situation, Army
Activities shall neither confirm nor deny the existence or nonexistence
of the record being requested. This is a ``Glomar'' response, and
exemption 6 must be cited in the response. Additionally, in order to
ensure personal privacy is not violated during referrals, Army
Activities shall coordinate telephonically or in person with other Army
Activities or DoD Components or Federal Agencies before referring a
record that is exempt under the ``Glomar'' concept. See Phillippi v.
CIA, 546 F.2d 1009 (D.C. Cir. 1976).
'' response, and
exemption 6 must be cited in the response. Additionally, in order to
ensure personal privacy is not violated during referrals, Army
Activities shall coordinate telephonically or in person with other Army
Activities or DoD Components or Federal Agencies before referring a
record that is exempt under the ``Glomar'' concept. See Phillippi v.
CIA, 546 F.2d 1009 (D.C. Cir. 1976).
(v) A ``refusal to confirm or deny'' response must be used
consistently, not only when a record exists, but also when a record
does not exist. Otherwise, the pattern of using a ``no records''
response when a record does not exist and a ``refusal to confirm or
deny'' when a record does exist will itself disclose personally private
information. Refusal to confirm or deny should not be used when:
(A) The person whose personal privacy is in jeopardy has provided
the requester a waiver of his or her privacy rights;
(B) The person initiated or directly participated in an
investigation that lead to the creation of an agency record seeks
access to that record; or
(C) The person whose personal privacy is in jeopardy is deceased,
the Agency is aware of that fact, and disclosure would not invade the
privacy of the deceased's family.
(g) Number 7 (5 U.S.C. 552 (b)(7)). Records or information compiled
for law enforcement purposes, i.e., civil, criminal, or military,
including the implementation of Executive Orders or regulations issued
pursuant to law. This exemption may be invoked to prevent disclosure of
documents not originally created for, but later gathered for law
enforcement purposes. With the exception of parts (C) and (F), this
exemption is discretionary. If information qualifies as exemption
(7)(C) or (7)(F) information, there is no discretion in its release.
(1) This exemption applies, however, only to the extent that
production of such law enforcement records or information could result
in the following:
y created for, but later gathered for law
enforcement purposes. With the exception of parts (C) and (F), this
exemption is discretionary. If information qualifies as exemption
(7)(C) or (7)(F) information, there is no discretion in its release.
(1) This exemption applies, however, only to the extent that
production of such law enforcement records or information could result
in the following:
(i) Could reasonably be expected to interfere with law enforcement
proceedings (5 U.S.C. 552(b)(7)(A));
(ii) Would deprive a person of the right to a fair trial or to an
impartial adjudication (5 U.S.C. 552(b)(7)(B));
(iii) Could reasonably be expected to constitute an unwarranted
invasion of the personal privacy of a living person,
or to surviving family members of an individual identified in such a
record (5 U.S.C. 552(b)(7)(C));
(iv) This exemption also applies when the fact of the existence or
nonexistence of a responsive record would itself reveal personally
private information, and the public interest in disclosure is not
sufficient to outweigh the privacy interest. In this situation,
Activities shall neither confirm nor deny the existence or nonexistence
of the record being requested. This is a ``Glomar'' response, and
exemption (7)(C) must be cited in the response. Additionally, in order
to ensure personal privacy is not violated during referrals, Army
Activities shall coordinate with other Army Activities or DoD
Components or Federal Agencies before referring a record that is exempt
under the ``Glomar'' concept;
e existence or nonexistence
of the record being requested. This is a ``Glomar'' response, and
exemption (7)(C) must be cited in the response. Additionally, in order
to ensure personal privacy is not violated during referrals, Army
Activities shall coordinate with other Army Activities or DoD
Components or Federal Agencies before referring a record that is exempt
under the ``Glomar'' concept;
(v) A ``refusal to confirm or deny'' response must be used
consistently, not only when a record exists, but also when a record
does not exist. Otherwise, the pattern of using a ``no records''
response when a record does not exist and a ``refusal to confirm or
deny'' when a record does exist will itself disclose personally private
information;
(vi) Refusal to confirm or deny should not be used when the person
whose personal privacy is in jeopardy has provided the requester with a
waiver of his or her privacy rights; or the person whose personal
privacy is in jeopardy is deceased, and the Agency is aware of that
fact and disclosure would not invade the privacy of the deceased's
family;
(vii) Could reasonably be expected to disclose the identity of a
confidential source, including a source within DoD, a State, local, or
foreign agency or authority, or any private institution that furnishes
the information on a confidential basis; and could disclose information
furnished from a confidential source and obtained by a criminal law
enforcement authority in a criminal investigation or by an agency
conducting a lawful national security intelligence investigation (5
U.S.C. 552(b)(7)(D));
(viii) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law (5 U.S.C.
552(b)(7)(E)); or
(ix) Could reasonably be expected to endanger the life or physical
safety of any individual (5 U.S.C. 552(b)(7)(F)).
d disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law (5 U.S.C.
552(b)(7)(E)); or
(ix) Could reasonably be expected to endanger the life or physical
safety of any individual (5 U.S.C. 552(b)(7)(F)).
(2) Some examples of exemption 7 are:
(i) Statements of witnesses and other material developed during the
course of the investigation and all materials prepared in connection
with related Government litigation or adjudicative proceedings;
(ii) The identity of firms or individuals being investigated for
alleged irregularities involving contracting with the DoD when no
indictment has been obtained or any civil action filed against them by
the United States; and
(iii) Information obtained in confidence, expressed or implied, in
the course of a criminal investigation by a criminal law enforcement
agency or office within an Army Activity or a DoD Component, or a
lawful national security intelligence investigation conducted by an
authorized agency or office within an Army Activity or a DoD Component.
National security intelligence investigations include background
security investigations and those investigations conducted for the
purpose of obtaining affirmative or counterintelligence information.
(3) The right of individual litigants to investigative records
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500),
is not diminished.
(4) Excluded from exemption 7 are two situations applicable to DoD.
(Activities considering invoking an exclusion based on the following
scenarios should first consult through legal counsel, to the DoJ,
Office of Information and Privacy (DoJ OIP).
he right of individual litigants to investigative records
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500),
is not diminished.
(4) Excluded from exemption 7 are two situations applicable to DoD.
(Activities considering invoking an exclusion based on the following
scenarios should first consult through legal counsel, to the DoJ,
Office of Information and Privacy (DoJ OIP).
(i) Whenever a request is made that involves access to records or
information compiled for law enforcement purposes, and the
investigation or proceeding involves a possible violation of criminal
law where there is reason to believe that the subject of the
investigation or proceeding is unaware of its pendency, and the
disclosure of the existence of the records could reasonably be expected
to interfere with enforcement proceedings, Activities may, during only
such times as that circumstance continues, treat the records or
information as not subject to the FOIA. In such a situation, the
response to the requester will state that no records were found.
(ii) Whenever informant records maintained by a criminal law
enforcement organization within an Army Activity or a DoD Component
under the informant's name or personal identifier are requested by a
third party using the informant's name or personal identifier, the
Activity may treat the records as not subject to the FOIA, unless the
informant's status as an informant has been officially confirmed. If it
is determined that the records are not subject to 5 U.S.C. 552(b)(7),
the response to the requester will state that no records were found.
(h) Number 8 (5 U.S.C. 552(b)(8)). Those contained in or related to
examination, operation or condition reports prepared by, on behalf of,
or for the use of any agency responsible for the regulation or
supervision of financial institutions.
nfirmed. If it
is determined that the records are not subject to 5 U.S.C. 552(b)(7),
the response to the requester will state that no records were found.
(h) Number 8 (5 U.S.C. 552(b)(8)). Those contained in or related to
examination, operation or condition reports prepared by, on behalf of,
or for the use of any agency responsible for the regulation or
supervision of financial institutions.
(i) Number 9 (5 U.S.C. 552(b)(9)). Those containing geological and
geophysical information and data (including maps) concerning wells.
Subpart D--For Official Use Only
Sec. 518.14 General.
Information that has not been given a security classification
pursuant to the criteria of an Executive Order, but which may be
withheld from the public because disclosure would cause harm to an
interest protected by one or more FOIA exemptions 2 through 9 (see
Subpart C of this part) shall be considered as being for official use
only (FOUO). No other material shall be considered FOUO and FOUO is not
authorized as an additional form of classification to protect national
security interests. Additional information on FOUO and other
controlled, unclassified information may be found in DoD 5200.1-R,
``Information Security Program'' or by contacting the DA FOIA/PA
Office.
Subpart E--Release and Processing Procedures
Sec. 518.15 General provisions.
(a) Since the policy of the DoD is to make the maximum amount of
information available to the public consistent with its other
responsibilities, written requests for an Army record made under the
provisions of 5 U.S.C. 552(a)(3) of the FOIA may be denied only when:
(1) The record is subject to one or more of the exemptions of the
FOIA;
(2) The record has not been described well enough to enable the
Army Activity to locate it with a reasonable amount of effort by an
employee familiar with the files; or
ith its other
responsibilities, written requests for an Army record made under the
provisions of 5 U.S.C. 552(a)(3) of the FOIA may be denied only when:
(1) The record is subject to one or more of the exemptions of the
FOIA;
(2) The record has not been described well enough to enable the
Army Activity to locate it with a reasonable amount of effort by an
employee familiar with the files; or
(3) The requester has failed to comply with the procedural
requirements, including the written agreement to pay or payment of any
required fee imposed by the instructions of the Army Activity
concerned. When personally identifiable information in a record is
requested by the subject of the record or his attorney, notarization of
the request, or a statement certifying under the penalty of perjury
that their identity is true and correct may be required.
Additionally, written consent of the subject of the record is required
for disclosure from a PA system of records, to include the subject's
attorney.
(4) Release of information under the FOIA can have an adverse
impact on OPSEC. The Army implementing directive for OPSEC is AR 530-1.
It requires that OPSEC points of contact be named for all HQDA staff
agencies and for all commands down to battalion level. The FOIA
official for the staff agency or command will use DA Form 4948-R to
announce the OPSEC/FOIA advisor for the command. Persons named as OPSEC
points of contact will be OPSEC/FOIA advisors. Command OPSEC/FOIA
advisors should implement the policies and procedures in AR 530-1,
consistent with this part and with the following considerations:
es and for all commands down to battalion level. The FOIA
official for the staff agency or command will use DA Form 4948-R to
announce the OPSEC/FOIA advisor for the command. Persons named as OPSEC
points of contact will be OPSEC/FOIA advisors. Command OPSEC/FOIA
advisors should implement the policies and procedures in AR 530-1,
consistent with this part and with the following considerations:
(i) Documents or parts of documents properly classified in the
interest of national security must be protected. Classified documents
may be released in response to a FOIA request only under AR 380-5,
Chapter III. AR 380-5 provides that if parts of a document are not
classified and can be segregated with reasonable ease, they may be
released, but parts requiring continued protection must be clearly
identified.
(ii) The release of unclassified documents could violate national
security. When this appears possible, OPSEC/FOIA advisors should
request a classification evaluation of the document by its proponent
under AR 380-5, paragraphs 2-204, 2-600, 2-800, and 2-801. In such
cases, other FOIA exemptions may also apply.
(iii) A combination of unclassified documents, or parts of them,
could combine to supply information that might violate national
security if released. When this appears possible, OPSEC/FOIA advisors
should consider classifying the combined information per AR 380-5,
paragraph 2-211.
(iv) A document or information may not be properly or currently
classified when a FOIA request for it is received. In this case, the
request may not be denied on the grounds that the document or
information is classified except in accordance with Executive Order
12958 as amended, Section 1.6(d), and AR 380-5, paragraph 2-204, and
with approval of the Army OGC.
per AR 380-5,
paragraph 2-211.
(iv) A document or information may not be properly or currently
classified when a FOIA request for it is received. In this case, the
request may not be denied on the grounds that the document or
information is classified except in accordance with Executive Order
12958 as amended, Section 1.6(d), and AR 380-5, paragraph 2-204, and
with approval of the Army OGC.
(5) OPSEC/FOIA advisors will; advise persons processing FOIA
requests on related OPSEC requirements; help custodians of requested
documents prepare requests for classification evaluations; and help
custodians of requested documents identify the parts of documents that
must remain classified under this section and AR 380-5.
(6) OPSEC/FOIA advisors do not, by their actions, relieve FOIA
personnel and custodians processing FOIA requests of their
responsibility to protect classified or exempted information.
(b) The provisions of the FOIA are reserved for persons with
private interests as opposed to U.S. Federal Agencies seeking official
information. Requests from private persons will be made in writing, and
should clearly show all other addressees within the Federal Government
to which the request was also sent. This procedure will reduce
processing time requirements, and ensure better inter- and intra-agency
coordination. However, if the requester does not show all other
addressees to which the request was also sent, Army Activities shall
still process the request. Army Activities should encourage requesters
to send requests by mail, facsimile, or by electronic means. Disclosure
of records to individuals under the FOIA is considered public release
of information, except as provided in this paragraph. DA officials will
release the following records, upon request, to the persons specified
below, even though these records are exempt from release to the general
public. The statutory 20 working day limit applies.
ests by mail, facsimile, or by electronic means. Disclosure
of records to individuals under the FOIA is considered public release
of information, except as provided in this paragraph. DA officials will
release the following records, upon request, to the persons specified
below, even though these records are exempt from release to the general
public. The statutory 20 working day limit applies.
(1) Medical records. Commanders or chiefs of medical treatment
facilities will release information--
(i) On the condition of sick or injured patients to the patient's
relatives to the extent permitted by law and regulation.
(ii) That a patient's condition has become critical to the nearest
known relative or to the person the patient has named to be informed in
an emergency.
(iii) That a diagnosis of psychosis has been made to the nearest
known relative or to the person named by the patient.
(iv) On births, deaths, and cases of communicable diseases to local
officials (if required by local laws).
(v) Copies of records of present or former soldiers, dependents,
civilian employees, or patients in DA medical facilities will be
released to the patient or to the patient's representative on written
request. The attending physician can withhold records if he or she
thinks that release may injure the patient's mental or physical health;
in that case, copies of records will be released to the patient's next
of kin or legal representative or to the doctor or dentist chosen by
the patient. If the patient is adjudged insane, or dies, the copies
will be released, on written request, to the patient's next of kin or
legal representative.
(vi) Copies of records may be given to a Federal or State hospital
or penal institution if the person concerned is an inmate or patient
there.
to the patient's next
of kin or legal representative or to the doctor or dentist chosen by
the patient. If the patient is adjudged insane, or dies, the copies
will be released, on written request, to the patient's next of kin or
legal representative.
(vi) Copies of records may be given to a Federal or State hospital
or penal institution if the person concerned is an inmate or patient
there.
(vii) Copies of records or information from them may be given to
authorized representatives of certain agencies. The National Academy of
Sciences, the National Research Council, and other accredited agencies
are eligible to receive such information when they are engaged in
cooperative studies, with the approval of The Surgeon General of the
Army. However, certain information on drug and alcohol use cannot be
released. AR 600-85 covers the Army's substance abuse program.
(viii) Copies of pertinent parts of a patient's records can be
furnished to the staff judge advocate or legal officer of the command
in connection with the Government's collection of a claim. If proper,
the legal officer can release this information to the tortfeasor's
insurer without the patient's consent.
Note: Information released to third parties must be accompanied
by a statement of the conditions of release. The statement will
specify that the information not be disclosed to other persons
except as privileged communication between doctor and patient.
(2) Military personnel records. Military personnel records will be
released under these conditions:
insurer without the patient's consent.
Note: Information released to third parties must be accompanied
by a statement of the conditions of release. The statement will
specify that the information not be disclosed to other persons
except as privileged communication between doctor and patient.
(2) Military personnel records. Military personnel records will be
released under these conditions:
(i) DA must provide specific information about a person's military
service (statement of military service) in response to a request by
that person or with that person's written consent to his or her legal
representative;
(ii) Papers relating to applications for, designation of
beneficiaries under, and allotments to pay premiums for, National
Service Life Insurance or Serviceman's Group Life Insurance will be
released to the applicant or to the insured. If the insured is adjudged
insane (evidence of an insanity judgment must be included) or dies, the
records will be released, on request, to designated beneficiaries or to
the next of kin;
(iii) Copies of DA documents that record the death of a soldier, a
dependent, or a civilian employee will be released, on request, to that
person's next of kin, life insurance carrier, and legal representative.
A person acting on behalf of someone else concerned with the death
(e.g., the executor of a will) may also obtain copies by submitting a
written request that includes evidence of his or her representative
capacity. That representative may give written consent for release to
others; or
(iv) Papers relating to the pay and allowances or allotments of a
present or former soldier will be released to the soldier or his or her
authorized representative. If the soldier is deceased,
these papers will be released to the next of kin or legal
representatives.
cludes evidence of his or her representative
capacity. That representative may give written consent for release to
others; or
(iv) Papers relating to the pay and allowances or allotments of a
present or former soldier will be released to the soldier or his or her
authorized representative. If the soldier is deceased,
these papers will be released to the next of kin or legal
representatives.
(3) Civilian personnel records. Civilian Personnel Officers (CPO)
with custody of papers relating to the pay and allowances or allotments
of current or former civilian employees will release them to the
employee or his or her authorized representative. If the employee is
deceased, these records will be released to the next of kin or legal
representative. However, a CPO cannot release statements of witnesses,
medical records, or other reports or documents pertaining to
compensation for injuries or death of a DA civilian employee.
(4) Accused persons. Release of information to the public
concerning accused persons before determination of the case. Such
release may prejudice the accused's opportunity for a fair and
impartial determination of the case. The following procedures apply:
(i) The following information concerning persons accused of an
offense may be released by the convening authority to public news
agencies or media. The accused's name, grade or rank, unit, regular
assigned duties, and other information as allowed by AR 25-71,
paragraph 3-3a. The substance or text of the offense of which the
person is accused. The identity of the apprehending or investigating
agency and the length or scope of the investigation before
apprehension. The factual circumstances immediately surrounding the
apprehension, including the time and place of apprehension, resistance,
or pursuit. The type and place of custody, if any;
AR 25-71,
paragraph 3-3a. The substance or text of the offense of which the
person is accused. The identity of the apprehending or investigating
agency and the length or scope of the investigation before
apprehension. The factual circumstances immediately surrounding the
apprehension, including the time and place of apprehension, resistance,
or pursuit. The type and place of custody, if any;
(ii) Information that will not be released. Before evidence has
been presented in open court, subjective observations or any
information not incontrovertibly factual will not be released.
Background information or information relating to the circumstances of
an apprehension may be prejudicial to the best interests of the
accused, and will not be released unless it serves a law enforcement
function. The following kinds of information will not be released:
Observations or comments on an accused's character and demeanor,
including those at the time of apprehension and arrest or during
pretrial custody. Statements, admissions, confessions, or alibis
attributable to an accused, or the fact of refusal or failure of the
accused to make a statement. Reference to confidential sources,
investigative techniques and procedures, investigator notes, and
activity files. This includes reference to fingerprint tests, polygraph
examinations, blood tests, firearms identification tests, or similar
laboratory tests or examinations. Statements as to the identity,
credibility, or testimony of prospective witnesses. Statements
concerning evidence or argument in the case, whether or not that
evidence or argument may be used at the trial. Any opinion on the
accused's guilt. Any opinion on the possibility of a plea of guilty to
the offense charged, or of a plea to a lesser offense;
r similar
laboratory tests or examinations. Statements as to the identity,
credibility, or testimony of prospective witnesses. Statements
concerning evidence or argument in the case, whether or not that
evidence or argument may be used at the trial. Any opinion on the
accused's guilt. Any opinion on the possibility of a plea of guilty to
the offense charged, or of a plea to a lesser offense;
(iii) Other considerations. Photographing or televising the
accused. DA personnel should not encourage or volunteer assistance to
news media in photographing or televising an accused or suspected
person being held or transported in military custody. DA
representatives should not make photographs of an accused or suspect
available unless a law enforcement function is served. Requests from
news media to take photographs during courts-martial are governed by AR
360-1;
(iv) Fugitives from justice. This section does not restrict the
release of information to enlist public aid in apprehending a fugitive
from justice; or
(v) Exceptional cases. Permission to release information from
military personnel records to public news agencies or media may be
requested from The Judge Advocate General (TJAG). Requests for
information from military personnel records will be processed according
to this part.
(5) Litigation, tort claims, and contract disputes. Release of
information or records under this section are subject to the time
limitations prescribed by the FOIA. The requester must be advised of
the reasons for nonrelease or referral.
may be
requested from The Judge Advocate General (TJAG). Requests for
information from military personnel records will be processed according
to this part.
(5) Litigation, tort claims, and contract disputes. Release of
information or records under this section are subject to the time
limitations prescribed by the FOIA. The requester must be advised of
the reasons for nonrelease or referral.
(i) Litigation. Each request for a record related to pending
litigation involving the United States will be referred to the staff
judge advocate or legal officer of the command. He or she will promptly
inform the Litigation Division, U.S. Army Legal Services Agency
(USALSA), of the substance of the request and the content of the record
requested. (Mailing address: U.S. Army Litigation Center, 901 N. Stuart
Street, Arlington, VA 22203-1837. If information is released for use in
litigation involving the United States, the Chief, Army Litigation
Division (AR 27-40, para 1-4d) must be advised of the release. He or
she will note the release in such investigative reports. Information or
records normally exempted from release (i.e., personnel and medical
records) may be releasable to the judge or court concerned, for use in
litigation to which the United States is not a party. Refer such
requests to the local staff judge advocate or legal officer, who will
coordinate it with the Litigation Center, USALSA.
(ii) Tort claims. A claimant or a claimant's attorney may request a
record that relates to a pending administrative tort claim filed
against the DA. Refer such requests promptly to the claims approving or
settlement authority that has monetary jurisdiction over the pending
claim. These authorities will follow AR 27-20. The request may concern
an incident in which the pending claim is not as large as a potential
claim; in such a case, refer the request to the authority that has
monetary jurisdiction over the potential claim
against the DA. Refer such requests promptly to the claims approving or
settlement authority that has monetary jurisdiction over the pending
claim. These authorities will follow AR 27-20. The request may concern
an incident in which the pending claim is not as large as a potential
claim; in such a case, refer the request to the authority that has
monetary jurisdiction over the potential claim. A potential claimant or
his or her attorney may request information under circumstances clearly
indicating that it will be used to file a tort claim, though none has
yet been filed. Refer such requests to the staff judge advocate or
legal officer of the command. That authority, when subordinate, will
promptly inform the Chief, U.S. Army Claims Service (USACS), of the
substance of the request and the content of the record. (Mailing
address: U.S. Army Claims Service, ATTN: JACS-TCC, Fort George G.
Meade, MD 20755-5360. IDA officials who receive requests will refer
them directly to the Chief, USACS. They will also advise the requesters
of the referral and the basis for it. The Chief, USACS, will process
requests according to this part and AR 27-20, paragraph 1-10.
(iii) Contract disputes. Each request for a record that relates to
a potential contract dispute or a dispute that has not reached final
decision by the contracting officer will be treated as a request for
procurement records and not as litigation. However, the officials will
consider the effect of release on the potential dispute. Those
officials may consult with the USALSA, Contract Appeals Division.
(Mailing address: U.S. Army Legal Services Agency, ATTN: JALS-CA, 901
North Stuart Street, Arlington, VA 22203
reached final
decision by the contracting officer will be treated as a request for
procurement records and not as litigation. However, the officials will
consider the effect of release on the potential dispute. Those
officials may consult with the USALSA, Contract Appeals Division.
(Mailing address: U.S. Army Legal Services Agency, ATTN: JALS-CA, 901
North Stuart Street, Arlington, VA 22203. If the request is for a
record that relates to a pending contract appeal to the Armed Services
Board of Contract Appeals, or to a final decision that is still subject
to appeal (i.e., 90 days have not lapsed after receipt of the final
decision by the contractor) then the request will be: Treated as
involving a contract dispute; and referred to the USALSA, Contract
Appeals Division.
(6) Special nuclear material. Dissemination of unclassified
information concerning physical protection of special nuclear material.
(i) Unauthorized dissemination of unclassified information
pertaining to security measures, including security plans, procedures,
and equipment for the physical protection of special
nuclear material, is prohibited under 10 U.S.C. 128.
(ii) This prohibition shall be applied by the Deputy Chief of
Staff, G-3 as the IDA, to prohibit the dissemination of any such
information only if and to the extent that it is determined that the
unauthorized dissemination of such information could reasonably be
expected to have a significant adverse effect on the health and safety
of the public or the common defense and security by significantly
increasing the likelihood of illegal production of nuclear weapons,
theft, diversion, or sabotage of special nuclear materials, equipment,
or facilities.
(iii) In making such a determination, Army personnel may consider
what the likelihood of an illegal production, theft, diversion, or
sabotage would be if the information proposed to be prohibited from
dissemination were at no time available for dissemination.
lihood of illegal production of nuclear weapons,
theft, diversion, or sabotage of special nuclear materials, equipment,
or facilities.
(iii) In making such a determination, Army personnel may consider
what the likelihood of an illegal production, theft, diversion, or
sabotage would be if the information proposed to be prohibited from
dissemination were at no time available for dissemination.
(iv) Army personnel shall exercise the foregoing authority to
prohibit the dissemination of any information described so as to apply
the minimum restrictions needed to protect the health and safety of the
public or the common defense and security, and upon a determination
that the unauthorized dissemination of such information could
reasonably be expected to result in a significant adverse effect on the
health and safety of the public or the common defense and security by
significantly increasing the likelihood of illegal production of
nuclear weapons, theft, diversion, or sabotage of special nuclear
materials, equipment, or facilities.
(v) Army employees shall not use this authority to withhold
information from the appropriate committees of Congress.
(7) Names and duty addresses. Lists of names, including telephone
directories, organizational charts, and/or staff directories published
by installations or activities, and other personally identifying
information will ordinarily be withheld when requested under the FOIA.
This does not preclude a discretionary release of names and duty
information of personnel who, by the nature of their position and
duties, frequently interact with the public, such as general officers,
public affairs officers, and other personnel designated as official
command spokespersons. The IDA for telephone directories is delegated
to the DA, FOIA/PA Office
en requested under the FOIA.
This does not preclude a discretionary release of names and duty
information of personnel who, by the nature of their position and
duties, frequently interact with the public, such as general officers,
public affairs officers, and other personnel designated as official
command spokespersons. The IDA for telephone directories is delegated
to the DA, FOIA/PA Office. Public Affairs Offices may, after careful
analysis, release information determined to have legitimate news value,
such as notices of personnel reassignments to new units or
installations within the continental United States, results of
selection/promotion boards, school graduations/completions, and awards
and similar personal achievements. They may release the names and duty
addresses of key officials, if such release is determined to be in the
interests of advancing official community relation's functions.
(c) Requests from government officials. Requests from officials of
State or local Governments for Army Activity records shall be
considered the same as any other requester. Requests from members of
Congress not seeking records on behalf of a Congressional Committee,
Subcommittee, either House sitting as a whole, or made on behalf of
their constituents shall be considered the same as any other requester.
Requests from officials of foreign governments shall be considered the
same as any other requester; however, Army Intelligence elements are
statutorily prohibited from releasing records responsive to requests
made by any foreign government or a representative of a foreign
government. Requests from officials of foreign governments that do not
invoke the FOIA shall be referred to appropriate foreign disclosure
channels and the requester so notified.
onsidered the
same as any other requester; however, Army Intelligence elements are
statutorily prohibited from releasing records responsive to requests
made by any foreign government or a representative of a foreign
government. Requests from officials of foreign governments that do not
invoke the FOIA shall be referred to appropriate foreign disclosure
channels and the requester so notified.
(d) Privileged release outside of the FOIA to U.S. government
officials. Records exempt from release to the public under the FOIA may
be disclosed in accordance with Army regulations to agencies of the
Federal Government, whether legislative, executive, or administrative,
as follows:
(1) In response to a request of a Committee or Subcommittee of
Congress, or to either House sitting as a whole in accordance with DoDD
5400.4. The Army implementing directive is AR 1-20. Commanders or
chiefs will notify the Chief of Legislative Liaison of all releases of
information to members of Congress or staffs of congressional
committees. Organizations that in the normal course of business are
required to provide information to Congress may be excepted. Handle
requests by members of Congress (or staffs of congressional committees)
for inspection of copies of official records as follows:
(i) National security classified records, follow AR 380-5;
(ii) Civilian personnel records, members of Congressional
Committees, Subcommittees, or Joint Committees may examine official
personnel folders to the extent that the subject matter falls within
their established jurisdictions, as permitted by 5 CFR 297.401(i);
onal committees)
for inspection of copies of official records as follows:
(i) National security classified records, follow AR 380-5;
(ii) Civilian personnel records, members of Congressional
Committees, Subcommittees, or Joint Committees may examine official
personnel folders to the extent that the subject matter falls within
their established jurisdictions, as permitted by 5 CFR 297.401(i);
(iii) Information related to disciplinary action. This paragraph
refers to records of trial by courts-martial; nonjudicial punishment of
military personnel under the Uniform Code of Military Justice, Article
15; nonpunitive measures such as administrative reprimands and
admonitions; suspensions of civilian employees; and similar documents.
If DA has specific instructions on the request, the following will
apply. Subordinate commanders will not release any information without
securing the consent of the proper installation commander. The
installation commander may release the information unless the request
is for a classified or ``FOUO'' document. In that case the commander
will refer the request promptly to the Chief of Legislative Liaison for
action, including the recommendations of the transmitting agency and
copies of the requested records with the referral.
(iv) Military personnel records. Only HQDA can release information
from these records. Custodians will refer all requests from Congress
directly and promptly to the Chief of Legislative Liaison, HQDA,
Washington, DC 20310-1600.
omptly to the Chief of Legislative Liaison for
action, including the recommendations of the transmitting agency and
copies of the requested records with the referral.
(iv) Military personnel records. Only HQDA can release information
from these records. Custodians will refer all requests from Congress
directly and promptly to the Chief of Legislative Liaison, HQDA,
Washington, DC 20310-1600.
(v) Criminal investigation records. Only the Commanding General,
U.S. Army Criminal Investigation Command (USACIDC), can release any
USACIDC-originated criminal investigation file. For further
information, see AR 195-2.
(vi) Other exempt records. Commanders or chiefs will refer requests
for all other categories of exempt information directly to the Chief of
Legislative Liaison. They will include a copy of the material requested
and, as appropriate, recommendations concerning release or denial.
(vii) All other records. The commander or chief with custody of the
records will furnish all other information promptly; to other Federal
Agencies, both executive and administrative, as determined by the head
of an Army Activity or designee; or in response to an order of a
Federal court, Army Activities shall release information along with a
description of the restrictions on its release to the public;
(viii) Disciplinary actions and criminal investigations. Requests
for access to, or information from, the records of disciplinary actions
or criminal investigations will be honored if proper credentials are
presented. Representatives of the Office of Personnel Management may be
given information from personnel files of employees actually employed
at organizations or activities. Each such request will be considered on
its merits. The information released will be the
minimum required in connection with the investigation being conducted.
inal investigations will be honored if proper credentials are
presented. Representatives of the Office of Personnel Management may be
given information from personnel files of employees actually employed
at organizations or activities. Each such request will be considered on
its merits. The information released will be the
minimum required in connection with the investigation being conducted.
(ix) Other types of requests. All other official requests received
by DA elements from agencies of the executive branch (including other
military departments) will be honored, if there are no compelling
reasons to the contrary. If there are reasons to withhold the records,
the requests will be submitted for determination of the propriety of
release to the appropriate addresses shown in Appendix B of this part.
(2) Army Activities shall inform officials receiving records under
the provisions of this section that those records are exempt from
public release under the FOIA. Army Activities also shall advise
officials of any special handling instructions. Classified information
is subject to the provisions of DoD 5200.1-R, and information contained
in Privacy Act systems of records is subject to DoD 5400.11-R.
(e) Consultation with affected DoD component. (1) When an Army
Activity receives a FOIA request for a record in which an affected Army
or DoD organization (including a Combatant Command) has a clear and
substantial interest in the subject matter, consultation with that
affected Army or DoD organization is required. As an example, where an
Army Activity receives a request for records related to DoD operations
in a foreign country, the cognizant Combatant Command for the area
involved in the request shall be consulted before a release is made.
Consultations may be telephonic, electronic, or in hard copy.
interest in the subject matter, consultation with that
affected Army or DoD organization is required. As an example, where an
Army Activity receives a request for records related to DoD operations
in a foreign country, the cognizant Combatant Command for the area
involved in the request shall be consulted before a release is made.
Consultations may be telephonic, electronic, or in hard copy.
(2) The affected Activity shall review the circumstances of the
request for host-nation relations, and provide, where appropriate, FOIA
processing assistance to the responding DoD Component regarding release
of information. Responding Army Activities shall provide copies of
responsive records to the affected DoD Component when requested. The
affected DoD Component shall receive a courtesy copy of all releases in
such circumstances.
(3) Nothing in Sec. 518.19 shall impede the processing of the FOIA
request initially received by an Army Activity.
Sec. 518.16 Initial determinations.
(a) Initial denial authority. The DA officials are designated as
the Army's only IDAs. Only an IDA, his or her delegate, or the
Secretary of the Army can deny FOIA requests for DA records. Each IDA
will act on direct and referred requests for records within his or her
area of functional responsibility. (See the proper AR in the 10 series
for full discussions of these areas. Included are records created or
kept within the IDA's area of responsibility; records retired by, or
referred to, the IDA's headquarters or office; and records of
predecessor organizations. If a request involves the areas of more than
one IDA, the IDA to whom the request was originally addressed will
normally respond to it; however, the affected IDAs may consult on such
requests and agree on responsibility for them. IDAs will complete all
required coordination at initial denial level. This includes classified
records retired to the NARA when a mandatory declassification review is
necessary
involves the areas of more than
one IDA, the IDA to whom the request was originally addressed will
normally respond to it; however, the affected IDAs may consult on such
requests and agree on responsibility for them. IDAs will complete all
required coordination at initial denial level. This includes classified
records retired to the NARA when a mandatory declassification review is
necessary. Requests and/or responsive documents should not be sent to
the DA FOIA/PA Office for initial denial authority or to forward to
other offices within the DA.
(b) FOIA requesters may ultimately appeal if they are dissatisfied
with adverse determinations. It is crucial to forward complete packets
to the IDAs. Ensure cover letters list all attachments and describe
from where the records were obtained, i.e., a PA system of records
(including the applicable systems notice), or other. If a FOIA action
is complicated, include a chronology of events to assist the IDA in
understanding what happened in the course of processing the FOIA
request. If a file does not include documentation described below,
include the tab, and insert a page marked ``not applicable'' or ``not
used.'' The order and contents of FOIA file attachments follow: (Tab A
or 1) The original FOIA request and envelope (if applicable); (Tab B or
2) The response letter; (Tab C or 3) Copies of all records entirely
released, single-sided; (Tab D or 4) Copies of administrative
processing documents, including extension letters and ``no records''
certificates, in chronological order; (Tab E or 5) Copies of all
records partially released or entirely denied, single-sided. For
partially released records, mark in yellow highlighter (or other
readable highlighter) those portions withheld; and (Tab F or 6) Legal
opinions(s).
le-sided; (Tab D or 4) Copies of administrative
processing documents, including extension letters and ``no records''
certificates, in chronological order; (Tab E or 5) Copies of all
records partially released or entirely denied, single-sided. For
partially released records, mark in yellow highlighter (or other
readable highlighter) those portions withheld; and (Tab F or 6) Legal
opinions(s).
(c) The initial determination of whether to make a record available
or grant a fee waiver upon request may be made by any suitable official
designated by the Army Activity in published regulations. The presence
of the marking ``FOUO'' does not relieve the designated official of the
responsibility to review the requested record for the purpose of
determining whether an exemption under this part is applicable and
should be invoked. IDAs may delegate all or part of their authority to
a division chief under its supervision within the Agency in the grade
of 05/civilian equivalent. Requests for delegation authority below this
level must be submitted, after coordination, to the DA FOIA/PA Office,
with detailed justification, for approval. Such delegations must not
slow FOIA actions. If an IDA's delegate denies a FOIA or fee waiver
request, the delegate must clearly state that he or she is acting for
the IDA and identify the IDA by name and position in the written
response to the requester. IDAs will send only the names, offices, and
telephone numbers of their delegates to the DA, FOIA/PA Office. IDAs
will keep this information current.
ations must not
slow FOIA actions. If an IDA's delegate denies a FOIA or fee waiver
request, the delegate must clearly state that he or she is acting for
the IDA and identify the IDA by name and position in the written
response to the requester. IDAs will send only the names, offices, and
telephone numbers of their delegates to the DA, FOIA/PA Office. IDAs
will keep this information current.
(d) The officials designated by Army Activities to make initial
determinations should consult with public affairs officers (PAOs) to
become familiar with subject matters that are considered to be
newsworthy, and advise PAOs of all requests from news media
representatives. In addition, the officials should inform PAOs in
advance when they intend to withhold or partially withhold a record, if
it appears that the withholding action may be challenged in the media.
A FOIA release or denial action, appeal, or court review may generate
public or press interest. In such case, the IDA (or delegate) should
consult the Chief of Public Affairs or the command or organization PAO.
The IDA should inform the PAO contacted of the issue and obtain advice
and recommendations on handling its public affairs aspect. Any advice
or recommendations requested or obtained should be limited to this
aspect. Coordination must be completed within the statutory 20 working
day FOIA response limit. (The point of contact for the Army Chief of
Public Affairs is HQDA (SAPA-OSR), Washington D.C. 20310-1500). If the
request involves actual or potential litigation against the United
States, release must be coordinated with The Judge Advocate General
(TJAG).
ed or obtained should be limited to this
aspect. Coordination must be completed within the statutory 20 working
day FOIA response limit. (The point of contact for the Army Chief of
Public Affairs is HQDA (SAPA-OSR), Washington D.C. 20310-1500). If the
request involves actual or potential litigation against the United
States, release must be coordinated with The Judge Advocate General
(TJAG).
(e) The following officials are designated IDAs for the areas of
responsibility outlined below:
(1) The Administrative Assistant to the Secretary of the Army is
authorized to act for the Secretary of the Army on requests for all
records maintained by the Office of the Secretary of the Army and its
serviced activities as well as requests requiring the personal
attention of the Secretary of the Army. This also includes civilian
Equal Employment Opportunity (EEO) actions. (See DCS, G-1 for military
Equal Opportunity (EO) actions). The Administrative Assistant to the
Secretary of the Army has delegated its authority to the Chief Attorney
and Legal Services Directorate, U.S. Army Resources & Programs
Agency. (See DCS, G1 for military Equal Opportunity (EO) actions)
(2) The Assistant Secretary of the Army (Financial Management and
Comptroller) is authorized to act on requests for finance and
accounting records. Requests for CONUS finance and accounting records
should be referred to the Defense Finance and Accounting Service
(DFAS). The Chief Attorney and Legal Services Directorate, acts on
requests for non-finance and accounting records of the Assistant
Secretary of the Army (Financial Management and Comptroller).
and
Comptroller) is authorized to act on requests for finance and
accounting records. Requests for CONUS finance and accounting records
should be referred to the Defense Finance and Accounting Service
(DFAS). The Chief Attorney and Legal Services Directorate, acts on
requests for non-finance and accounting records of the Assistant
Secretary of the Army (Financial Management and Comptroller).
(3) The Assistant Secretary of the Army (Acquisition, Logistics, &
Technology) is authorized to act on requests for procurement records
other than those under the purview of the Chief of Engineers and the
Commander, U.S. Army Materiel Command. The Chief Attorney and Legal
Services Directorate, acts on requests for non-procurement records of
the Assistant Secretary of the Army (Acquisition, Logistics and
Technology).
(4) The Deputy Assistant Secretary of the Army (Civilian Personnel
Policy)/Director of Civilian Personnel, Office of the Assistant
Secretary of the Army (Manpower and Reserve Affairs) is authorized to
act on requests for civilian personnel records, personnel
administration and other civilian personnel matters, except for EEO
(civilian) matters which will be acted on by the Administrative
Assistant to the Secretary of the Army. The Deputy Assistant Secretary
of the Army (Civilian Personnel Policy)/Director of Civilian Personnel
has delegated this authority to the Chief, Policy and Program
Development Division.
(5) The Chief Information Officer, G-6 is authorized to act on
requests for records pertaining to Army Information Technology,
command, control communications and computer systems and the
Information Resources Management Program (automation,
telecommunications, visual information, records management,
publications and printing).
(6) The Inspector General is authorized to act on requests for all
Inspector General Records.
cer, G-6 is authorized to act on
requests for records pertaining to Army Information Technology,
command, control communications and computer systems and the
Information Resources Management Program (automation,
telecommunications, visual information, records management,
publications and printing).
(6) The Inspector General is authorized to act on requests for all
Inspector General Records.
(7) The Auditor General is authorized to act on requests for
records relating to audits done by the U.S. Army Audit Agency under AR
10-2. This includes requests for related records developed by the Audit
Agency.
(8) The Director of the Army Staff is authorized to act on requests
for all records of the Chief of Staff and its Field Operating Agencies.
The Director of the Army Staff has delegated its authority to the Chief
Attorney and Legal Services Directorate, U.S. Army Resources & Programs
Agency. The Chief Attorney and Legal Services Director, U.S. Army
Resources & Programs Agency acts on requests for records of the Chief
of Staff and its Field Operating Agencies. (See TJAG for the (GOMO)
actions).
(9) The Deputy Chief of Staff, G-3 is authorized to act on requests
for records relating to International Affairs policy, planning,
integration and assessments, strategy formulation, force development,
individual and unit training policy, strategic and tactical command and
control systems, nuclear and chemical matters, use of DA forces.
(10) The Deputy Chief of Staff, G-8 is authorized to act on
requests for records relating to programming, material integration and
externally directed reviews.
l Affairs policy, planning,
integration and assessments, strategy formulation, force development,
individual and unit training policy, strategic and tactical command and
control systems, nuclear and chemical matters, use of DA forces.
(10) The Deputy Chief of Staff, G-8 is authorized to act on
requests for records relating to programming, material integration and
externally directed reviews.
(11) The Office of the Deputy Chief of Staff, G-1 is authorized to
act on the following records: Personnel board actions, Equal
Opportunity (military) and sexual harassment, health promotions,
physical fitness and well being, command and leadership policy records,
HIV and suicide policy, substance abuse programs except for individual
treatment records which are the responsibility of the Surgeon General,
retiree benefits, services, and programs, (excluded are individual
personnel records of retired military personnel, which are the
responsibility of the U.S. Army Human Resources Command-St. Louis
(AHRC-STL), DA dealings with Veterans Affairs, U.S. Soldier's and
Airmen's Home, retention, promotion, and separation; recruiting and MOS
policy issues, personnel travel and transportation entitlements,
military strength and statistics, The Army Librarian, demographics, and
Manprint.
(12) The Deputy Chief of Staff, G-4 is authorized to act on
requests for records relating to DA logistical requirements and
determinations, policy concerning materiel maintenance and use,
equipment standards, and logistical readiness.
(13) The Chief of Engineers is authorized to act on requests for
records involving civil works, military construction, engineer
procurement, and ecology; and the records of the U.S. Army Engineer
divisions, districts, laboratories, and field operating agencies.
ical requirements and
determinations, policy concerning materiel maintenance and use,
equipment standards, and logistical readiness.
(13) The Chief of Engineers is authorized to act on requests for
records involving civil works, military construction, engineer
procurement, and ecology; and the records of the U.S. Army Engineer
divisions, districts, laboratories, and field operating agencies.
(14) The Surgeon General, Commander, U.S. Army Medical Command, is
authorized to act on requests for medical research and development
records, and the medical records of active duty military personnel,
dependents, and persons given physical examination or treatment at DA
medical facilities, to include alcohol and drug treatment/test records.
(15) The Chief of Chaplains is authorized to act on requests for
records involving ecclesiastical relationships, rites performed by DA
chaplains, and nonprivileged communications relating to clergy and
active duty chaplains' military personnel files.
(16) The Judge Advocate General is authorized to act on requests
for records relating to claims, courts-martial, legal services,
administrative investigations, and similar legal records. TJAG is also
authorized to act on requests for the GOMO actions and records
described elsewhere in this regulation, especially if those records
relate to litigation in which the United States has an interest. In
addition, TJAG is authorized to act on requests for records that are
not within the functional areas of responsibility of any other IDA,
including, but not limited to requests for records for Commands, and
activities.
equests for the GOMO actions and records
described elsewhere in this regulation, especially if those records
relate to litigation in which the United States has an interest. In
addition, TJAG is authorized to act on requests for records that are
not within the functional areas of responsibility of any other IDA,
including, but not limited to requests for records for Commands, and
activities.
(17) The Chief, National Guard Bureau, is authorized to act on
requests for all personnel and medical records of retired, separated,
discharged, deceased, and active Army National Guard military
personnel, incl
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