[Federal Register: December 19, 2007 (Volume 72, Number 243)]
[Proposed Rules]
[Page 71847-71868]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de07-40]
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DEPARTMENT OF DEFENSE
Office of the Secretary
[DoD-2007-OS-0086; 0790-AI24]
32 CFR Part 286
DoD Freedom of Information Act (FOIA) Program Regulation
AGENCY: Department of Defense.
ACTION: Proposed rule.
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SUMMARY: The Department of Defense is proposing to update current
policies and procedures to reflect the DoD FOIA Program as prescribed
by Executive Order 13392. The proposed changes will ensure appropriate
agency disclosure of information, and offer consistency with the goals
of section 552 of title 5, United States Code.
DATES: Comments must be received by February 19, 2008.
ADDRESSES: You may submit comments, identified by docket number and/or
RIN number and title, by any of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, 1160
Defense Pentagon, Washington, DC 20301-1160.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
Federal Register document. The general policy for comments and other
submissions from members of the public is to make these submissions
available for public viewing on the Internet at http://regulations.gov
as they are received without change, including any personal identifiers
or contact information.
FOR FURTHER INFORMATION CONTACT: James Hogan (703) 696-4495.
SUPPLEMENTARY INFORMATION:
Executive Order 13132, ``Federalism''
It has been certified that 32 CFR part 286 does not have federalism
implications, as set forth in Executive Order 13132. This rule does not
have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the
States; or
(3) The distribution of power and responsibilities among the
various levels of Government.
Executive Order 12866, ``Regulatory Planning and Review''
It has been certified that 32 CFR part 286 does not:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been certified that 32 CFR part 286 does not contain a
Federal mandate that may result in expenditure by State, local and
tribal governments, in aggregate, or by the private sector, of $100
million or more in any one year.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that 32 CFR part 286 is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
Public Law 96-511, ``Paperwork Reduction Act '' (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part 286 does not impose
reporting or recordkeeping requirements under the Paperwork Reduction
Act of 1995.
List of Subjects in 32 CFR Part 286
Freedom of information.
Accordingly, 32 CFR part 286 is proposed to be revised to read as
follows:
PART 286-DOD FREEDOM OF INFORMATION ACT (FOIA) PROGRAM REGULATION
Subpart A--General Provisions
Sec.
286.1 Purpose.
286.2 Definitions.
286.3 Public access to DoD information.
286.4 Procedures.
Subpart B--FOIA Reading Rooms
286.7 Requirements.
286.8 Record availability.
286.9 Indexes.
286.10 ``(a)(1)'' records.
Subpart C--Exemptions
286.13 General provisions.
286.14 Applying the FOIA exemptions.
Subpart D--FOIA Request Processing
286.17 General provisions.
286.18 Processing procedures.
286.19 Initial determinations.
286.20 Appeals.
286.21 Judicial actions.
Subpart E--Fee Schedule
286.24 General provisions.
286.25 Collection of fees and fee rates.
286.26 Fees for technical data.
286.27 Fees for research data.
Subpart F--Education and Training
286.30 Purpose and responsibility.
286.31 Implementation.
[[Page 71848]]
Appendix A to Part 286--DoD FOIA Program Components
Appendix B to Part 286--Addressing FOIA Requests
Authority: 5 U.S.C. 552.
Subpart A--General Provisions
Sec. 286.1 Purpose.
This part promotes uniformity in the DoD FOIA Program. It shall
take precedence over all DoD Component publications that supplement and
implement the DoD FOIA Program. A list of the DoD FOIA Program
Components is at Appendix A to this part.
Sec. 286.2 Definitions.
The following terms and meanings shall apply for the purposes of
this part:
Administrative appeal. A request by a member of the public, made
under the FOIA, asking the appellate authority of the DoD Component to
reverse any adverse determination by an Initial Denial Authority (IDA).
A requester may also appeal the failure of an agency to respond within
the statutory time limits.
Adverse determination. A decision by an IDA to withhold all or part
of a requested record, deny a fee category claim by a requester, deny a
request for waiver or reduction of fees, deny a request to review an
initial fee estimate, deny a request for expedited processing, confirm
that no records were located during the initial search, or any
determination that a requester believes is adverse in nature.
Agency record. (1) Includes: (i) All products of data compilation
made or received by an agency of the U.S. Government under Federal law
in connection with the transaction of public business and in DoD
possession and control at the time the search in response to a FOIA
request is made. Examples include books, papers, maps, photographs,
machine-readable materials inclusive of those in electronic form or
format, and other documentary materials, regardless of physical form or
characteristics.
(ii) Research data produced under a Federal grant used by the
Federal Government in developing an agency action that has the force
and effect of law (Office of Management and Budget Circular (OMB) A-
110).
(2) Does not include:
(i) Objects or articles, such as structures, furniture, vehicles,
and equipment, whatever their historical or evidentiary value.
(ii) Anything that is not a tangible or documentary record, such as
an individual's memory or an oral communication.
(iii) Personal records of an individual not subject to agency
creation or retention requirements, created and maintained primarily
for the convenience of an agency employee and not distributed to other
agency employees for their official use. Personal papers fall into
three categories:
(A) Those created before entering Government service.
(B) Private materials brought into, created, or received in the
office that were not created or received in the course of transacting
Government business.
(C) Work-related personal papers that are not used in the
transaction of Government business.
(iv) A record that is not in the possession and control of the
Department of Defense when the search is conducted in response to a
FOIA request. (There is no obligation to create, compile, or obtain a
record to satisfy a FOIA request.)
Appellate authority. The Head of the DoD Component, or designee,
having jurisdiction to review and possibly reverse or amend any adverse
determination by an IDA.
Direct costs. Those expenditures the DoD Component makes in
searching for, reviewing, and duplicating documents to respond to a
FOIA request. Direct costs include, for example, the salary of the
employee performing the work (the basic rate of pay plus 16 percent of
that rate to cover benefits) and the costs of operating duplicating
machinery. (These factors have been included in the fee rates
prescribed at Sec. 286.25. Not included in direct costs are overhead
expenses such as the cost of space, heating, or lighting the facility
in which the records are stored.
Electronic records. Records (including e-mail) created, stored, and
retrievable by electronic means.
Federal agency. Defined in 5 U.S.C. 551(1) and 552(f)(1). (A
Federal agency cannot make FOIA requests.)
FOIA office. The DoD Component office that receives FOIA requests
from and responds directly to the public.
FOIA public liaison. Defined in E.O. 13392.
FOIA request. A written request for DoD records that reasonably
describes the record(s) sought. The request should also indicate a
willingness to pay processing fees even if it contains a request for a
fee waiver. Written requests may be received by postal service or other
commercial delivery means, by facsimile, or electronically. All
requests must have a postal mailing address included, even if they are
received by facsimile or electronically.
FOIA requester. Any person, including a partnership, corporation,
association, State or State agency, foreign government, foreign
national, or a lawyer or other representative acting on behalf of any
person, who submits a FOIA request. This definition specifically
excludes agencies within the Executive Branch of the Federal
Government.
FOIA requester service center. Defined in E.O. 13392.
IDA. An official who has been granted authority by the Head of the
DoD Component to withhold information requested under the FOIA for one
or more of the 9 categories of records exempt from mandatory
disclosure. An IDA may also deny a fee category claim by a requester,
deny a request for expedited processing, deny a request for a waiver or
reduction of fees, review a fee estimate, and confirm that no records
were located in response to a request.
Perfected FOIA request. A FOIA request that meets the conditions
identified in definition ``FOIA request'' and arrives at the FOIA
office of the DoD Component in possession of the records. Also referred
to as a ``correct'' request.
Privacy Act system of records. Defined in DoD 5400.11-R \1\.
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\1\ Copies of unclassified DoD issuances may be obtained at
http://www.dtic.mil/whs/directives/.
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Public interest. The interest in obtaining official information
that sheds light on an agency's performance of its statutory duties
because the information falls within the statutory purpose of the FOIA
to inform citizens about their Government's activities.
Search. Includes all time spent looking, both manually and
electronically, for records that are responsive to a FOIA request. The
term ``search'' also includes a page-by-page or line-by-line
identification (if necessary) of material in the record to determine if
it, or portions of it, are responsive to the request. Time spent
reviewing documents to determine whether to apply one or more of the
statutory exemptions is not search time; it is review time.
(1) Duplication. The process of making a copy of a document in
response to a FOIA request. Such copies can take the form of paper,
microfiche, or audiovisual or machine-readable documentation (e.g.,
magnetic tape or disc), among others.
(2) Review. The examination of documents located in response to a
FOIA request to determine whether one
[[Page 71849]]
or more of the statutory exemptions permit withholding. Review also
includes processing the documents for disclosure, such as excising them
for release. Review does not include the time spent resolving general,
legal or policy issues regarding the application of exemptions.
Submitter. A person or persons outside of the Government providing
commercial or financial information or trade secrets to the Government.
Submitter notice. The process required by E.O. 12600 whereby when a
Component receives a FOIA request for confidential commercial
information, it asks the submitter of the information to advise the
Component as to the information it considers exempt from release.
Sec. 286.3 Public access to DoD information.
(a) The public has a right to information concerning the activities
of its Government. DoD policy (32 CFR part 285) is to conduct DoD
activities in an open manner and to provide the public a maximum of
accurate and timely information concerning DoD activities, consistent
with the need for security, public and private interests of the
American people, and adherence to other requirements of law and
regulation. A record requested by a member of the public who follows
rules established by proper authority in the Department of Defense
shall not be withheld in whole or in part unless the record is exempt
from mandatory, partial or total disclosure under the FOIA. The
existence of a sound legal basis to withhold information does not
preclude the DoD Component from making a discretionary release if
release of that information would serve the public interest. Records
requested through public affairs channels by news media representatives
that would not be withheld if requested under the FOIA should be
released promptly upon request. 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) The DoD FOIA Program Components shall prepare, in addition to
normal FOIA regulations, a guide, or handbook for the use of the public
in obtaining information from their Components as required by 5 U.S.C.
552(g) and section 2(b)(v) of E.O. 13392. This guide should be a short,
simple explanation of what the FOIA is designed to do and how the
public can use it to access Government records. Within OSD, DFOIPO is
responsible for preparing this guide. Each guide shall be available on
paper and electronically and shall include:
(1) An index of all major information systems and a description of
major information and record locator systems.
(2) The types and categories of records that can be obtained
through FOIA requests.
(3) A concise description of the FOIA exemptions and how the
Component determines whether the record can be released.
(4) An explanation of how to make a FOIA request, how long the
requester can expect to wait for a reply, and the right of appeal.
(5) The location of the FOIA reading rooms(s) within the Component.
(6) The location of the Component's Web site.
(7) A reference to the Component's FOIA regulation and how to
obtain a copy.
Sec. 286.4 Procedures.
(a) Compliance with the FOIA. DoD personnel shall comply with the
FOIA, this part, and DoD FOIA policy (32 CFR part 285) in both letter
and spirit. This strict adherence is necessary to assure uniformity in
implementation of the DoD FOIA Program and to create conditions that
promote public trust.
(b) Customer service. (1) In signing E.O. 13392, the President
ordered agencies to emphasize a new citizen-centered approach to the
FOIA with a results-oriented focus. Because FOIA requesters are seeking
a service from the Federal Government, the DoD Components shall respond
courteously and appropriately to FOIA requesters. Additionally, the
Components shall provide the public with citizen-centered ways to learn
about the FOIA process, information about agency records that are
publicly available, and information about the status of a person's FOIA
request and appropriate information about the agency's response.
(2) To meet the objectives of E.O. 13392, the DoD Components shall:
(i) Establish one or more FOIA Requester Service Centers. Normally,
every DoD Component FOIA office that responds directly to the public is
a FOIA Requester Service Center; however, the Components have the
discretion to assign more than one FOIA Office under a FOIA Requester
Service Center.
(A) Each FOIA Requester Service Center shall have an internet Web
site that serves to educate the public on the FOIA process. At a
minimum, each Web site shall have the address, telephone number,
facsimile number, and electronic mail address to which FOIA requests
can be sent; a link to the Component's FOIA handbook or guide; a
description of the types of records that can be requested; the name and
contact information of the Component's FOIA Public Liaison; and
information on how a requester can obtain the status of a request.
Additionally, each FOIA Requester Service Center Web site will have an
electronic FOIA reading room as described in Subpart B to this part.
(B) The Web sites of DoD Component Headquarters FOIA Requester
Service Centers shall link to the Web sites of the other Requester
Service Centers within their Components.
(C) The Internet home page of every DoD Component shall link to the
FOIA Requester Service Center for that activity.
(ii) Submit to the Director of Administration and Management
(DA&M), OSD, the names of personnel to serve as DoD Component FOIA
Public Liaisons. Each Component shall have at least one FOIA Public
Liaison. Intermediate level Public Liaisons may be named within those
Components that have a large number of FOIA Requester Service Centers.
The FOIA Public Liaisons are responsible to ensure that the FOIA
Requester Service Centers' Web sites comply with Sec. 286.4
(b)(2)(i)(A). Additionally, the FOIA Public Liaisons are responsible
for the Component's compliance with the objectives of E.O. 13392, to
include the reduction or elimination of FOIA backlogs.
(c) Prompt action on requests. (1) When a member of the public
complies with the procedures in this part and DoD Component
supplementing regulations for obtaining DoD records, and the request is
received by the official designated to respond, the DoD Component shall
endeavor to provide a final response determination within the statutory
20 working days (5 U.S.C. 552(a)(6)(A)(i)). If unusual circumstances
prevent a final response determination within the statutory time
period, the Component shall advise the requester of this in writing,
and provide a new completion date, which shall be not later than an
additional 10 working days. If the Component needs more than this 10-
day extension, it will provide the requester an opportunity to narrow
the scope of the request, or arrange for an alternative timeframe.
(i) Unusual circumstances are:
(A) The responsive documents are located at a facility
geographically separated from the office processing the FOIA request.
(B) The responsive documents are voluminous.
[[Page 71850]]
(C) One or more other outside agencies have a substantial interest
in either the determination or the subject matter of the request,
requiring the DoD Component processing the request to consult with the
other agencies. This would include the submitter notice process (Sec.
286.18(d)(1)(i)(A)).
(ii) A final response determination is notification to the
requester that the records are released, or that the records cannot be
provided for one or more of the reasons in Sec. 286.13. Interim
responses acknowledging receipt of the request are encouraged, as are
negotiations with the requester concerning the scope of the request,
the response timeframe, and the fee agreement. Such communications do
not, however, constitute a final response determination.
(2) If a request fails to meet the minimum requirements of this
part, the DoD Component shall inform the requester how to perfect or
correct the request. The statutory 20-working day time limit applies
upon receipt of a perfected or correct FOIA.
(d) Use of exemptions. It is DoD policy (32 CFR part 285) to make
records publicly available, unless the record or portions thereof
qualify for withholding under one or more of the 9 exemptions.
(e) Waiver of exemptions. Records released under the authority of
this part are considered to be in the public domain. The disclosure of
exempt records without authorization by the appropriate DoD official is
not considered a FOIA release. Such a release does not waive the
Department of Defense's authority to assert FOIA exemptions to withhold
the same records in response to a FOIA request. 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.
(f) Creating a record. (1) A record must exist and be in DoD
possession and control at the time of the search to be subject to this
part and the FOIA. The DoD Components are not obligated to create,
compile, or obtain a record to satisfy a FOIA request. The DoD
Components, however, may compile a new record when so doing would
result in a more useful response to the requester or would be less
burdensome to the agency than providing existing records. Any such
compilation should be coordinated with and approved by the requester.
The 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 Sec. 286.25.
(2) With regards to electronic data, the issue of whether records
are actually created or merely extracted from an existing database is
not always readily apparent. Consequently, when processing FOIA
requests for electronic data where creation of a record, programming,
or organizing in a particular format is questionable, if the Component
has the capability to respond to the request, and the effort would be a
business-as-usual approach then the request should be processed.
(i) A business as usual approach exists when the Component has the
capability to process the request without a significant expenditure of
resources. If processing a request would cause a significant
interference with the operation of the Component's automated
information system, then it has a significant expenditure of resources.
(ii) Creating computer programs and/or purchasing additional
hardware to extract electronic mail that has been archived for the
purpose of emergency retrieval normally are not viewed as business as
usual. This is especially true if extensive resources are needed to
complete the project.
(iii) Creating a computer program that produces specific requested
fields or records contained within a database normally is viewed as
business as usual. The time to create this program shall be considered
as ``computer operator'' [clarify] search time for fee assessment
purposes and the requester may be assessed fees in accordance with
Sec. 286.25.
(3) The DoD Components are not required to expend DoD funds to
establish data links that provide real-time or near-real-time data to a
FOIA requester. The Components are responsible to provide existing data
downloaded to electronic media or printed in hard copy at the time the
FOIA request is received or processed. If the information would serve
the public interest or need, and is economically feasible, the
Component may consider posting the information on the Internet.
(g) Description of a requested record. The requester is responsible
to provide a description of the desired record that enables the
Government to locate the record with a reasonable amount of effort.
Generally, a reasonable description contains sufficient information to
permit the conduct of an organized, non-random search for the record
based on the DoD Component's filing arrangements and existing retrieval
systems. The DoD Component's decision on the reasonableness of the
description must be based on a knowledge of its files, and not on the
potential volume of records that may be located and the concurrent
review effort to determine releasability. The fact that a FOIA request
appears broad or burdensome does not, in itself, entitle the DoD
Component to deny the request on the grounds that it does not
reasonably describe the record sought.
(h) Consultations and referrals. The DoD FOIA referral procedures
are based on the concept that the originator of information contained
within a record shall make a release determination on that information.
(1) If the DoD Component receives a request for records originated
by another DoD Component, it should contact that Component to determine
if it also received the request, and if not, obtain concurrence to
transfer the request or to advise the requester to send the request to
the correct Component. If the request is to be transferred, the
requester shall be advised of the action taken, unless exempt
information would be revealed by the fact of the referral. Any DoD
Component receiving a request that has been misaddressed shall transfer
the request to the proper address and advise the requester. DoD
Components transferring requests shall include point of contact name,
telephone number, and e-mail address in the cover memorandum.
(2) The DoD Component holding a record originated by another DoD
Component or agency outside the Department of Defense shall refer a
FOIA request for that record, as well as the record, to the originating
agency for response directly to the requester. If the DoD Component
holding the record has an equity in the document, it shall provide an
opinion on the releasability of the record with the referral. If
appropriate, the name of the IDA responsible for the decision to
withhold all or parts of the record should be provided. Whenever a
record is referred to another DoD Component or to an agency outside of
the Department of Defense 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. DoD Components referring requests shall include
point of contact name, telephone number, and e-mail address in the
cover memorandum.
(3) At times, a DoD Component may locate a responsive record that
it
[[Page 71851]]
originated and determine another DoD Component or agency outside the
Department of Defense to have a valid interest or equity in the record.
In such situations, the DoD Component shall consult with the other DoD
Component or agency and obtain its release recommendation. The
consulted agency will provide its release recommendation back to the
originating Component, which will then respond to the requester.
Normally, the requester will not be advised of this consultation unless
information is withheld by the consulted agency. However, if the record
was created for the use of the other DoD Component or agency by the
originating DoD Component (e.g., Defense Contract Audit Agency audit
reports), then the procedures of Sec. 286.18(a) apply.
(4) DoD Components receiving transferred or referred requests shall
answer them in accordance with the time limits established by the FOIA,
this part, and their multi-track processing systems, based upon the
date of initial receipt of the request at the referring component or
agency.
(5) Prior to notifying a requester of a transfer or referral to
another DoD Component or agency outside the Department of Defense, the
DoD Component possessing the initial request shall, as appropriate,
consult with the other agency to determine if that agency's association
with the subject of the request is exempt. If the association is
exempt, the DoD Component possessing the initial request will protect
the association and any exempt information without revealing the
identity of the protected agency. The protected agency shall be
responsible for submitting the justifications required in any
litigation.
(6) DoD Components locating records originating with the National
Security Council (NSC), the White House, or the White House Military
Office (WHMO) or containing information in which these agencies would
have a concurrent reviewing interest, shall forward the records to the
Executive Services Directorate, Office of Freedom of Information
(OFOI). OFOI is also the FOIA Requester Service Center for the OSD/
Joint Staff. Its address is at Appendix B to this part. The OFOI shall
coordinate with the NSC, White House, or WHMO and return the records to
the originating agency after coordination for response to the
requester.
(7) On occasion, the Department of Defense receives FOIA requests
for U.S. Government Accountability Office (GAO) records containing DoD
information. Even though the GAO is outside the Executive Branch and
not subject to the FOIA, all FOIA requests for GAO documents containing
DoD information received either from the public, or on referral from
the GAO, shall be processed under the provisions of the FOIA.
(i) Authentication. At the request of a FOIA requester, 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 is in addition to that required under the
FOIA and is not included in the FOIA fee schedule. The DoD Components
may charge a fee of $5.20 for each authentication.
(j) Combatant commands. (1) The Combatant Commands are placed under
the jurisdiction of the OSD, instead of the administering Military
Department or the Chairman of the Joint Chiefs of Staff, for the
purpose of administering the DoD FOIA Program. This policy represents
an exception to the policies directed in DoD Directive 5100.3; it
authorizes and requires the Combatant Commands to process FOIA requests
in accordance with 32 CFR part 285 and this part. When requested, the
Combatant Commands shall forward directly to the DFOIPO all
correspondence associated with the appeal of an initial denial for
records under the provisions of the FOIA. The Combatant Commands will
advise requesters that they have the right to appeal any adverse
determinations to the DFOIPO.
(2) The Combatant Commands shall comply with all provisions of this
part that apply to the DoD Components except the appointments of an
appellate authority and a FOIA Public Liaison.
(k) Security clearances and access for FOIA personnel. Due to the
nature of their duties and responsibilities, FOIA personnel need access
to all records requested through their respective offices, regardless
of the sensitivity or classification of the information. The DoD
Components shall ensure FOIA personnel have the appropriate clearances
and accesses to perform their duties.
(l) Use of Contractors in FOIA Administration. According to DoD
Instruction 1100.22 and OMB Circular A-76, there are certain functions,
known as inherently governmental activities that cannot be outsourced
to a contractor. Since some of the functions of the FOIA Officer are
inherently governmental, the DoD Components shall be careful not to
outsource those FOIA functions that are inherently governmental.
Primarily, activities which require the exercise of substantial
discretion in applying government authority or in making decisions for
the government are inherently governmental. Inherently governmental
FOIA functions include:
(1) Formulating and/or approving FOIA policies and procedures.
(2) Making final determinations regarding whether to treat incoming
correspondence as a FOIA or Privacy Act request.
(3) Deciding any issues regarding the scope or interpretation of
the request.
(4) Determining the appropriateness of claimed exemptions.
(5) Approving the approach taken in negotiations/discussions with
the requester.
(6) Deciding administrative appeals.
(7) Conducting final review of all outgoing correspondence,
memoranda, and release packages.
(8) Drafting court documents for filing in FOIA lawsuit in which
the government's legal strategy and affirmative defense are determined.
(9) Conducting FOIA training if it involves issues of DoD policy.
(10) Making final determination of requests for expedited
processing, fee category, and fee waivers.
(m) Records management. FOIA records shall be maintained and
disposed of in accordance with the National Archives and Records
Administration General Records Schedule and DoD Component records
schedules.
(n) Relationship between the FOIA and the Privacy Act. 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, requesters may cite either the FOIA or 5
U.S.C. 552a, commonly known as the Privacy Act, or they may cite
neither the FOIA nor the Privacy Act but will imply one or both. For
these reasons, the below guidelines are provided to ensure requesters
receive the greatest access rights under both statutes. Privacy Act
requests can be made only by requesters asking for information on
themselves contained within a Privacy Act system of records. If the
requested information is on another person, the Privacy Act does not
apply. These requests shall be processed under the FOIA.
(1) Requesters who seek records about themselves contained in a
Privacy Act system of records, and who cite or imply the FOIA and/or
the Privacy Act, will have their requests processed under the
provisions of both the Privacy Act and the FOIA. If the Privacy Act
system of records is exempt from the provisions of 5 U.S.C. 552a(d)(1),
and if the records, or any portion thereof, are
[[Page 71852]]
exempt under the FOIA, the requester shall be so advised with the
appropriate Privacy Act and FOIA exemption(s). Appeals shall be
processed under both the FOIA and the Privacy Act.
(2) Requesters who seek records about themselves that are not
contained in a Privacy Act system of records and who cite or imply the
Privacy Act will have their requests processed under the provisions of
the FOIA, since the Privacy Act does not apply to these records.
Appeals shall be processed under the FOIA.
(3) Requesters who seek access to agency records and who cite or
imply the FOIA will have their requests and appeals processed under the
FOIA.
(4) If the record is required to be released under the FOIA, the
Privacy Act does not bar its disclosure. Unlike the FOIA, the Privacy
Act applies only to U.S. citizens and aliens admitted for permanent
residence.
(5) Requesters shall be advised in the final response letter which
statutory authorities were used, inclusive of appeal rights.
(o) Non-responsive information in responsive records. The DoD
Components shall interpret FOIA requests liberally when determining
which records are responsive, and may release non-responsive
information. Responsive documents may contain large amounts of non-
responsive information, the review of which may cause delays in
responding to the requester. In these cases, the DoD Components should
identify the information which is non-responsive, redact it, and
annotate it as non-responsive. The Components shall not apply these
procedures to documents that have a relatively small percentage of non-
responsive information. Additionally, redactions of non-responsive
information shall not be made in sections smaller than the paragraph
level. That is, a non-responsive sentence within an otherwise
responsive paragraph shall not be redacted as non-responsive.
(p) Honoring form or format requests. The DoD Components shall
provide the record in any form or format requested if the record is
readily reproducible in that form or format in the Component's
automated system. Every effort will be made to ensure the copy provided
is in a reasonably usable form. The DoD Components shall make
reasonable efforts to use available office equipment to digitally
reproduce hard copy records onto digital media. If a Component must
outsource to reproduce a record into the requested format, the readily-
reproducible criterion is not met. In responding to requests for
records, the DoD Components shall make reasonable efforts to search for
records in electronic form or format if maintained in automated
systems, except when such efforts would significantly interfere with
the operation of the automated systems. Such determinations shall be
made on a case by case basis.
(q) Annual report. The Annual FOIA Report is mandated by 5 U.S.C.
552(e)(1) and completed on a fiscal year basis. Additionally, E.O.
13392 requires additional reporting in the annual report through fiscal
year 2007. Due to the magnitude of the requested statistics and the
need to ensure accuracy, the DoD Components shall track this data as
requests are processed. This will also facilitate quick compilation of
the statistics in completing the report.
(1) Each September, DFOIPO shall post on its Web site instructions
to the Components concerning Component input for the annual report. The
DoD Components shall forward their report to DFOIPO no later than
November 30. In turn, the DA&M shall produce a consolidated report for
submission to the Attorney General, and will place a copy of this
report on the Internet for public access. The DoD Components shall use
the current edition of DD Form 2564, ``Annual Report: Freedom of
Information Act.''
(2) This reporting requirement is assigned Report Control Symbol
DD-DA&M(A)1365, Freedom of Information Act Report to Congress.
Subpart B--FOIA Reading Rooms
Sec. 286.7 Requirements.
(a) Reading room. The FOIA requires records described in 5 U.S.C.
552(a)(2)(A), (B), (C), and (D) be made available in an appropriate
facility where the public may inspect or copy them. This facility is
known as the ``FOIA reading room''. In addition to these records, the
DoD Components may elect to place other records in their reading rooms.
The DoD Components shall comply with this provision of the FOIA by
providing a location accessible to the public for viewing these
documents. In lieu of paper copies, the Component may digitize the
documents and have them available on a personal computer in the reading
room. The DoD Components may share reading room facilities if the
public is not unduly inconvenienced, and also may establish
decentralized reading rooms.
(b) Electronic reading room. The FOIA requires records described in
5 U.S.C. 552(a)(2)(A), (B), (C), and (D) and created on or after
November 1, 1996, be made available electronically. The DoD Components
will meet the electronically available requirement by posting the
records in an electronic reading room on their FOIA Requester Service
Center Web sites.
(1) These electronic reading rooms will have four designated
sections, each one corresponding to one of the four sections described
in paragraph (b) of this section. If a Component does not have relevant
documents to post in any of the four sections of the FOIA Requester
Service Center electronic reading room, that section of the reading
room will contain the annotation that no documents apply.
(2) If a DoD Component has documents that meet the qualifications
of 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) posted on a separate Web
site, the Component's FOIA Requester Service Center is not required to
post these same documents. Instead, the electronic reading room shall
link to the other Web site. For example, if a Component maintains
electronic copies of its issuances on a separate Web site, then the
(a)(2)(C) section of the electronic reading room shall have a link to
that site.
(3) Exemptions. All information that qualifies for withholding
under one or more of the FOIA exemptions described in Sec. 286.14 of
this part shall be deleted from all 5 U.S.C. 552(a)(2) records that are
made available to the public.
Sec. 286.8 Record availability.
5 U.S.C. 552(a)(2)(A), (B), (C), and (D) records are:
(a) ``(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 on as
precedents in future adjudications.
(b) ``(a)(2)(B)'' records. Statements of policy and interpretations
that have been adopted by the agency and are not published in the
Federal Register.
(c) ``(a)(2)(C)'' records. Administrative staff manuals and
instructions, or portions thereof, that establish DoD policy or
interpretations of policy that affect the public. This provision does
not apply to instructions for employees on tactics and techniques to be
used in performing their duties, or to instructions relating only to
the internal management of the DoD Component. Examples of manuals and
instructions not normally made available are:
(1) Those issued for audit, investigation, and inspection purposes,
or those that prescribe operational tactics, standards of performance,
or criteria for defense, prosecution, or settlement of cases.
[[Page 71853]]
(2) Operations and maintenance manuals and technical information
concerning munitions, equipment, systems, and intelligence activities.
(d) ``(a)(2)(D)'' records. Records released to the public pursuant
to 5 U.S.C. 552(a)(3) 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. Two additional requests satisfy the
criterion of subsequent requests. These records are referred to as
``FOIA-processed (a)(2) records.''
(1) The DoD Components shall decide on a case by case basis whether
records fall into this category, based on the following factors:
(i) The previous experience of the DoD Component with similar
records.
(ii) The particular circumstances of the records involved,
including their nature and the type of information they contain.
(iii) The identity and number of requesters and whether there is
widespread press, historic, or commercial interest in the records.
(2) This provision of Sec. 286.8 is intended for situations where
public access in a timely manner is important. 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. The DoD Components may remove the
(a)(2)(D) records from their Web site when the appropriate officials
determine that access is no longer necessary according to the factors
of Sec. 286.8(d)(1).
(3) Should a requester submit a FOIA request for FOIA-processed
``(a)(2)'' records and insist that it be processed, the DoD Components
shall process the request. However, the DoD Components have no
obligation to process a FOIA request for 552(a)(2)(A), (B), and (C)
records because these records are required to be made available to the
public.
Sec. 286.9 Indexes.
(a) ``(a)(2)'' records. (1) Each DoD Component shall maintain in
each FOIA reading room an index of records described in Sec. 286.7
that are issued, adopted, or promulgated, after July 4, 1967.
(2) Any ``(a)(2)'' record relied on, used, or cited as precedent by
an agency against a party that is issued, promulgated, or adopted after
July 4, 1967, must be indexed and either made available or published,
or the individual must have actual and timely notice of the contents of
such records. Such records issued, promulgated, or adopted before July
4, 1967, need not be indexed, but must be made available upon request
if not exempted under Sec. 286.13.
(3) Each DoD Component shall promptly publish quarterly or more
frequently, and distribute by sale or otherwise, copies of each index
of ``(a)(2)'' records 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 Sec. 286.24
of this part.
(4) Each index of ``(a)(2)'' records or supplement thereto shall be
arranged by topical or descriptive words, rather than by case name or
numbering system, so that the public can readily locate material. Case
name and numbering arrangements may also be included for DoD Component
convenience.
(5) Listing of electronically available ``(a)(2)'' documents in a
Component's electronic reading room satisfies this requirement.
(b) Major information systems. 5 U.S.C. 552(g)(1) and (2) require
agencies to make publicly available an index of all major information
systems and a description of major information and record locator
systems. This requirement will be met for the entire Department of
Defense by DFOIPO on its Web site.
Sec. 286.10 ``(a)(1)''records.
(a) Although (a)(1) records are not required to be made available
in response to FOIA requests or in FOIA reading rooms, they shall be
made available when feasible. Examples of ``(a)(1)'' records 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; instructions as to the scope and contents of papers,
reports, or examinations; and any amendments, revisions, or reports of
the aforementioned records.
(b) In accordance with 5 U.S.C. 552(a)(1), each DoD Component shall
disclose, through publication in the Federal Register, information
describing its organization, functions, procedures, substantive rules,
and statements of general policy. Any available index of DoD Component
records published in the Federal Register, in addition to ``(a)(1)''
records, shall be made available to the public in DoD Component FOIA
reading rooms and electronically.
Subpart C--Exemptions
Sec. 286.13 General provisions.
(a) Records that meet FOIA exemption criteria may be withheld from
public disclosure and need not be published in the Federal Register,
made available in a reading room, or provided in response to a FOIA
request.
(b) Nine types of records may be withheld in whole or in part from
public disclosure unless otherwise prescribed by law. In addition, 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 that has
been the subject of a discretionary release.
(c) 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.
(d) The DoD Components may have a situation where, in responding to
a FOIA request, admitting the existence or nonexistence of a record
would itself reveal information protected from release by one of the 9
Exemptions. In this situation, the DoD Component shall neither confirm
nor deny the existence or nonexistence of the requested record. This is
commonly called a ``Glomar'' response (U.S. Attorney General
Memorandum), and the appropriate exemption must be cited in the
response. This situation most commonly arises with Exemptions 1, 6, and
7; however, it could arise with other exemptions. 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. If not used
consistently, the pattern of 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 exempt information.
Sec. 286.14 Applying the FOIA exemptions.
The 9 types of exempted records and procedures for applying them
are as follows:
(a) Exemption 1. Pursuant to 5 U.S.C. 552(b)(1), records properly
and currently classified in the interest of national defense or foreign
policy, as specifically authorized under the criteria established by an
existing Executive Order establishing classification criteria and
implemented by regulation, such as DoD 5200.1-R,
[[Page 71854]]
are exempt from disclosure. If the responsive information 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 in this situation. If
the information qualifies as Exemption 1 information, there is no
discretion regarding its release. The requester will be advised as to
which sections of the Executive Order apply in determining the
information classified. In addition, Exemption 1 shall be invoked when
the following situations are apparent:
(1) Individual items of unclassified information, when compiled,
reveal additional associations or relationships that meet the standard
for classification under an existing Executive Order and DoD 5200.1-R,
and are not otherwise revealed in the individual items of information.
This is known as the ``mosaic,'' or ``compilation'' approach.
(2) The existence or nonexistence of a record would itself reveal
classified information.
(b) Exemption 2. Pursuant to 5 U.S.C. 552(b)(2), records related
solely to the internal personnel rules and practices of the Department
of Defense or any of the DoD Components are exempt from disclosure.
This exemption has two profiles, high ``(b)(2)'' and low ``(b)(2).''
(1) High ``(b)(2).'' Records qualifying under high ``(b)(2)'' are
those containing or constituting rules, regulations, orders, manuals,
directives, instructions, and unclassified portions of security
classification guides, the release of which would allow circumvention
of these rules, regulations, and policies, thereby substantially
hindering the effective performance of the mission of the Department of
Defense. Examples include:
(i) Critical infrastructure information that reasonably could be
expected to enable someone to succeed in causing the harms described in
Homeland Security Presidential Directive 7.\2\ This exempt information
could include agency vulnerability assessments or evaluations of items
of critical infrastructure that are internal to the Government.
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\2\ Copies of Homeland Security Presidential Directive can be
viewed at http://www.whitehouse.gov/news/releases/2003/12/20031217-5.html
.
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(ii) Those operating rules, guidelines, and manuals for DoD
investigators, inspectors, auditors, or examiners that must be
protected in order for the DoD Component to fulfill a legal
requirement.
(iii) 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.
(iv) Computer software (Government-owned), the release of which
would allow circumvention of a statute or of DoD rules, regulations,
orders, manuals, directives, or instructions. In this situation, the
use of the software must be closely examined to ensure a circumvention
possibility exists.
(2) Low ``(b)(2).'' Records qualifying under low ``(b)(2)'' 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 for
which processing the request would constitute an administrative burden.
Examples include rules for personnel 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.
(c) Exemption 3. Pursuant to 5 U.S.C. 552(b)(3), records concerning
matters that another statute specifically exempts from disclosure are
exempt under this exemption. This exemption allows for the withholding
of information because its release is prohibited by another statute
only if one of two disjunctive requirements is met: The statute
requires that the information be withheld from the public in such a
manner as to leave no discretion on the issue, or the statute
establishes particular criteria for withholding or refers to particular
types of matters to be withheld. The DFOIPO maintains on its Web site a
list of Exemption 3 statutes used within the Department of Defense.
(d) Exemption 4. Pursuant to 5 U.S.C. 552(b)(4), records containing
trade secrets or commercial or financial information received by the
DoD Component from a person or organization outside the Government are
exempt from release. Information protected by this exemption must be
trade secrets or commercial or financial records, the disclosure of
which is likely to cause substantial harm to the competitive position
of the submitter providing the information; impair the Government's
ability to obtain necessary information in the future; or impair some
other legitimate Government interest. If the information qualifies as
Exemption 4 information, there is no discretion in its release.
(1) Examples of information protected by Exemption 4 include:
(i) Commercial or financial information received in confidence in
connection with loans, bids, contracts, or proposals.
(ii) Statistical data and commercial or financial information
concerning contract performance, income, profits, losses, and
expenditures.
(iii) Personal statements given in the course of inspections,
investigations, or audits.
(iv) Financial data provided by private employers in connection
with locality wage surveys that are used to fix and adjust pay
schedules applicable to the prevailing wage rate of employees within
the Department of Defense.
(v) 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.
(vi) Technical or scientific data developed by a contractor or
subcontractor exclusively at private expense, or developed in part with
Federal funds and in part at private expense. The contractor or
subcontractor must retain legitimate proprietary interests in such data
in accordance with 10 U.S.C. 2320-2321 and DoD Federal Acquisition
Regulation Supplement, Chapter 2 of title 48 Code of Federal
Regulations, Subpart 227.71-227.72. Technical data developed
exclusively with Federal funds may be withheld under Exemption 3, if it
meets the criteria of 10 U.S.C. 130 and 48 CFR. See Sec. 286.14.
(vii) Copyrighted information under 17 U.S.C. 106.
(viii) 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.
(2) When the Components receive FOIA requests for information that
could be protected by this Exemption, submitter notice shall be
provided. See Sec. 286.2.
(e) Exemption 5. Pursuant to 5 U.S.C. 552(b)(5), inter-agency or
intra-agency memorandums or letters containing information considered
privileged in litigation are exempt from disclosure. The courts have
construed ``privileged in litigation'' to mean information that is
normally privileged in the civil discovery context (U.S. Department of
[[Page 71855]]
Justice (DOJ) Guide).\3\ Merely being an internal record is an
insufficient basis for withholding under this exemption. Records that
are not available routinely through the discovery process in the course
of litigation with the agency because they are privileged should not be
withheld under this exemption. The most common discovery privileges
have been incorporated into Exemption 5. These privileges are the
deliberative process, the attorney work product, and the attorney
client privilege.
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\3\ Copies of U.S. Department of Justice (DOJ) Guide can be
viewed at http://www.usdoj.gov/oip/.
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(1) Threshold. (i) A document must meet the threshold requirement
of being an inter- or intra-agency document before the proper privilege
can be identified in any given case. Because in many instances the
Government must seek expert advice from external entities (or
consultants), the courts developed an ``outside consultant'' test which
helps in determining whether such an external entity qualifies as an
``agency'' for the purposes of this exemption. If an entity meets the
test, then documents it originates may be protected by Exemption 5.
(ii) The Components should be careful to ensure that the outside
consultant is not an interested party in the agency decision-making
process. In 2001, the U.S. Supreme Court ruled that the threshold of
Exemption 5 does not encompass communications between an outside
consultant (in this case, several Indian tribes) and the Government
(the U.S. Department of the Interior (DOI)). In this case, the outside
consultants offered an expert opinion on an issue under consideration
by DOI. The Supreme Court found that the tribes had an interest in the
outcome of the DOI final decision; therefore, the DOI communications
did not meet the threshold of Exemption 5. (DOJ FOIA Post Web site)
(2) The privileges and types of information protected by Exemption
5 include:
(i) Deliberative process privilege. To withhold information under
this privilege, the information must be both deliberative and
predecisional, and part of the decision-making process. Deliberative
means the information is internal advice, recommendations, or
subjective evaluations, as contrasted with factual matters, that are
reflected in records relied upon in the decision-making process of an
agency, whether within or among agencies. Predecisional means the
information was created before the decision maker reached a final
decision. Factual information cannot be withheld from a requester under
Exemption 5 except under one of two circumstances. The first
circumstance is when the author of a document selects specific facts
out of a larger group of facts and this very act is deliberative in
nature. This information qualifies for withholding because its release
would reveal the author's internal thought processes. The second
circumstance exists when the factual information is so inextricably
connected to the deliberative material that its disclosure would expose
or cause harm to the agency's deliberations. A direction or order from
a superior to a subordinate generally does not qualify as a
deliberative process document if it constitutes policy guidance or a
decision. However, correspondence from a superior to a subordinate may
qualify if it constitutes a discussion of preliminary matters or a
request for information or advice that would be relied upon in the
decision-making process. An agency's final decision cannot be withheld
under the privilege unless it becomes part of another, higher-level
decision-making process (such as the agency budgetary process). The
deliberative process privilege is temporal in nature because once the
final agency decision is made the privilege cannot be used to withhold
the final decision or any post-decisional documents related to the
decision. Examples of deliberative process documents include:
(A) Staff papers, to include after-action reports, inspection
reports, lessons learned, and situation reports containing staff
evaluations, advice, opinions, or suggestions.
(B) Advice, suggestions, or evaluations prepared on behalf of the
Department of Defense by individual consultants or by boards,
committees, councils, groups, panels, conferences, commissions, task
forces, or other similar groups that are formed for the purpose of
obtaining advice and recommendations.
(C) Evaluations by DoD Component personnel of contractors and their
products.
(D) 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.
(E) Agency materials underlying the President's budget decisions as
described in OMB Circular No. A-11. This includes planning,
programming, and budgetary information that is involved in the defense
planning and resource allocation process and outyear discretionary
data.
(ii) Attorney client privilege. This privilege protects
confidential communications between an attorney and a client relating
to legal matters for which the client has sought professional advice.
The information the client supplies to the attorney and the advice the
attorney gives to the client in return are protected under this
privilege. Courts extend the ``confidential'' element of this privilege
to lower echelon Government employees because it is recognized when the
Government is seeking legal advice it usually involves more than one
client and one attorney. This privilege cannot be used if
confidentiallity is compromised.
(iii) Attorney work product privilege. This privilege protects
documents prepared by an attorney or at an attorney's direction in
reasonable anticipation of litigation. Unlike the deliberative process
privilege, under the attorney work product privilege all of the
information can be withheld, including the facts. Similarly, this
privilege has no time limit. This privilege can be used after the
litigation is complete.
(iv) Government trade secret privilege. This privilege protects
trade secrets 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.
(v) Aircraft accident witness statements privilege. This privilege
protects witness statements generated during military aircraft accident
investigations.
(vi) Presidential communications privilege. This privilege protects
communications among the President and his advisors created within an
agency to assist the President in the exercise of his nondelegable
constitutional duties.
(f) Exemption 6. Pursuant to 5 U.S.C. 552(b)(6), information in
personnel and medical files, as well as similar in other files, that if
disclosed to a requester other than the person whom the information is
about, would result in a clearly unwarranted invasion of personal
privacy is exempt from disclosure. If the information qualifies as
Exemption 6 information, there is no discretion in its release.
(1) When applying this exemption, an agency must balance the public
interest in disclosure and the individual's privacy interest. When
there is no public interest in the requested
[[Page 71856]]
information, the information can be withheld even if there is only a
negligible privacy interest. The public interest to be considered when
applying this exemption is whether the information sheds light on the
operations or activities of the Federal government. The requester has
the burden to show there is a public interest in disclosure.
(2) A privacy interest may exist in personal information even
though the information has been disclosed at some place and time. This
is known as the concept of practical obscurity. For example,
information that was once publicly known (a court-martial trial 40
years ago) may no longer be in the public's eye and has faded from
memory. In this case, the privacy interest in this type of situation
may have increased over time, the public interest may have decreased
over time, and therefore an agency can now withhold the once public
information.
(3) Examples of other files containing personal information similar
to that contained in personnel and medical files include:
(i) Those files compiled to evaluate or adjudicate the suitability
of candidates for civilian employment or membership in the Armed
Forces, and the eligibility of individuals (civilian, military, or
contractor employees) for security clearances or for access to
particularly sensitive classified information.
(ii) Files containing reports, records, and other material
pertaining to personnel matters in which administrative action,
including disciplinary action may be taken.
(4) On November 9, 2001, subsequent to the President declaring a
national emergency, the DA&M issued a memorandum authorizing the DoD
Components to withhold lists of personally identifying information of
DoD personnel, to include active duty military personnel, civilian
employees, contractors, members of the National Guard and Reserves, and
military dependents. Additionally, personally identifying information
of DoD military and civilian personnel who are assigned to overseas,
sensitive, or routinely deployable, units is exempt from release under
Exemption 3, with section 130b of 10 U.S.C. as the withholding statute.
Names and duty addresses (postal and/or e-mail) published in telephone
directories, organizational charts, rosters, and similar materials for
personnel are considered ``lists of personally identifying
information;'' and therefore qualify for withholding under Exemption 6
(and Exemption 3 if applicable).
(5) Home addresses, telephone numbers, and private e-mail addresses
are normally protected by this exemption. This includes lists of home
addressees and military quarters' addressees that do not include the
occupants' names.
(6) This exemption shall not be used in an attempt to protect the
privacy of a deceased person. It may be used to protect the privacy of
the deceased person's surviving family members if disclosure would
rekindle grief, anguish, pain, embarrassment, or even disruption of
peace of mind of surviving family members. In such situations, the DoD
Components shall balance the surviving family members' privacy
interests and the public's interest to determine its releasability.
(7) This exemption also applies when the fact of the existence or
nonexistence of a responsive record would itself reveal information in
which a privacy interest exists, and the public interest in disclosure
is not sufficient to outweigh the privacy interest. In this situation,
the DoD Components shall neither confirm nor deny the existence or
nonexistence of the record being requested. This is known as a ``Glomar
response'', and Exemption 6 must be cited in the response. Refusal to
confirm or deny should not be used when:
(i) The person whose personal privacy is in jeopardy has provided
the requester with a privacy waiver.
(ii) The person seeking access to an agency record initiated or
directly participated in an investigation that leads to the creation of
that record.
(iii) 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) Exemption 7. Pursuant to 5 U.S.C. 552(b)(7), records or
information compiled for law enforcement purposes are exempt from
disclosure upon the identification of one of the six harms delineated
in the 6 subparts of Exemption 7. Law enforcement purposes include
civil, criminal, military, regulatory, and administrative law,
including the implementation of Executive Orders or regulations issued
pursuant to law. This exemption may be invoked to prevent disclosure of
documents not originally created for, but later gathered for, law
enforcement purposes.
(1) Conditions under which exception 7 applies. Exemption 7 applies
only when production of such law enforcement records or information:
(i) Exemption 7A. This applies when the disclosure of law
enforcement records could reasonably be expected to interfere with
enforcement proceedings (5 U.S.C. 552(b)(7)(A)).
(ii) Exemption 7B. This applies when the disclosure of law
enforcement records 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) Exemption 7C. This applies when the disclosure of law
enforcement records could reasonably be expected to constitute an
unwarranted invasion of the personal privacy of a living person,
including surviving family members of an individual identified in such
a record (5 U.S.C 552(b)(7)(C)).
(iv) Exemption 7D. This applies when the disclosure of law
enforcement records could reasonably be expected to disclose the
identity of a confidential source, including a source within the
Department of Defense; a state, local, or foreign agency or authority;
or any private institution that furnishes the information on a
confidential basis; and could disclose information furnished from a
confidential source and obtained by a criminal law enforcement
authority in a criminal investigation or by an agency conducting a
lawful national security intelligence investigation (section 5 U.S.C.
552(b)(7)(D)).
(v) Exemption 7E. This applies when the disclosure of law
enforcement records 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)).
(vi) Exemption 7F. This applies when the disclosure of law
enforcement records could reasonably be expected to endanger the life
or physical safety of any individual (5 U.S.C. 552(b)(7)(F)).
(2) Examples of Exemption 7 applications. (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 may be exempt from
disclosure pursuant to Exemptions 7A, 7C, and/or 7D.
(ii) The identity of firms or individuals being investigated for
alleged irregularities involving contracting with the Department of
Defense when no indictment has been obtained nor any civil action filed
against them by the United States may be exempt from disclosure
pursuant to Exemptions 7A and/or 7C.
(iii) Information obtained in confidence, expressed or implied, in
the course of a criminal investigation by a criminal law enforcement
agency or a lawful national security intelligence
[[Page 71857]]
investigation, may be exempt from disclosure pursuant to Exemptions 7A,
7C and/or 7D. National security intelligence investigations include
background security investigations and those investigations conducted
for the purpose of obtaining affirmative or counterintelligence
information.
(iv) Emergency action plans, guidelines for response to terrorist
attacks, analyses of security procedures, and other sensitive
information that could prove deadly if obtained by those seeking to do
harm to the public on a large scale may be exempt from disclosure
pursuant to Exemptions 7E and/or 7F. The Components should also assert
Exemption 2 in conjunction with Exemption 7E to withhold this type of
law enforcement information.
(3) Exclusions. The FOIA contains 3 special protection provisions
referred to as record ``exclusions.'' Of these exclusions, only 2 are
used by the Department of Defense. These exclusions expressly authorize
Department of Defense law enforcement agencies to treat especially
sensitive records under certain specified circumstances as not subject
to the requirements of the FOIA. The DoD Component considering invoking
one of these exclusions shall first consult with legal counsel and with
DFOIPO. In turn, DFOIPO will consult with the Office of Information and
Privacy, Department of Justice. If the records are determined to be
excluded, the response to the requester will state that no records were
found.
(i) Exclusion 1. The DoD Components may treat records requested as
not subject to the FOIA when the following circumstance applies:
(A) The request involves access to records or information compiled
for law enforcement purposes.
(B) 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 the pending investigation
or proceeding.
(C) The disclosure of the existence of the records could reasonably
be expected to interfere with enforcement proceedings.
(ii) Exclusion 2. The DoD Components may treat records requested as
not subject to the FOIA when a third party uses an informant's name or
personal identifier to request informant records maintained by a
criminal law enforcement organization within the DoD Component, and the
informant's status as an informant has not been officially confirmed.
(h) Exemption 8. Pursuant to 5 U.S.C. 552(b)(8) of Reference (b),
records 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
are exempt from disclosure.
(i) Exemption 9. Pursuant to 5 U.S.C. 552(b)(9), records containing
geological and geophysical information and data (including maps)
concerning wells are exempt from disclosure.
Subpart D--FOIA Request Processing
Sec. 286.17 General provisions.
(a) Release of agency records. 5 U.S.C. 552(a) mandates release of
agency records in response to a written request, unless:
(1) The record is subject to one or more FOIA exemptions.
(2) The record has not been described well enough to enable the DoD
Component to locate it with a reasonable amount of effort by an
employee familiar with the files.
(3) The requester has failed to comply with procedural
requirements, including failure to comply with a written agreement to
pay any required fee incurred in processing previous requests.
(b) Requests from private parties. (1) The provisions of the FOIA
are reserved for members of the public as opposed to U.S. Federal
agencies seeking official information. Requests may be submitted in
person, by mail, facsimile, or electronically. Commercial delivery is
acceptable; however, due to security concerns, the DoD Components may
refuse to accept commercial delivery of requests.
(2) Individuals seeking DoD information should address their FOIA
requests to one of the FOIA Requester Service Center addresses listed
in Appendix B to this part. If a requester is not sure where to send a
FOIA for DoD information, the request can be sent to the OSD/Joint
Staff FOIA Requester Service Center.
(3) The subject of a FOIA request may involve documents located at
multiple Federal Government agencies. When this is the case, the DoD
Components should try to determine whether the requester sent the
request to the other relevant agencies. The requester should be
contacted by the Component if the request does not mention any other
agencies to which the request was sent.
(4) When personally-identifying information in a record is
requested by the subject of the record or the subject's representative
and the information is contained within a Privacy Act system of
records, it will be processed under both the FOIA and the Privacy Act.
The Components shall comply with the provisions of DoD 5400.11-R to
confirm the identity of the requester.
(c) Requests from government officials, Congress, and foreign
governments. (1) State or local Government officials, foreign officials
requesting on behalf of their government, foreign individuals, or
foreign organizations requesting DoD Component records under the FOIA
shall be considered the same as any other FOIA requester. The
provisions of the FOIA do not apply to requests from a non-U.S.
government entity or representative for records of the DoD Component
that is an element of the intelligence community as defined in 50
U.S.C. 401a(4).
(2) Requests from members of Congress who are not seeking records
on behalf of a Congressional committee or subcommittee, or on behalf of
the House of Representatives or the Senate sitting as a whole, shall be
processed as FOIA requests.
(3) Requests submitted by members of Congress for Congressional
business that are received by the DoD Component's FOIA office shall be
referred to the appropriate office that handles legislative inquiries
for processing under DoD Directive 5400.4 or supplementing component
directives. Such requests will not be processed under the FOIA.
(4) Requests from officials of foreign governments that do not
invoke the FOIA shall be referred to the appropriate office authorized
to disclose official DoD information to foreign governments, and the
requester shall be so notified.
(5) Because it is a Component of the Department of Defense,
requests from Stars and Stripes should not be processed under the FOIA.
A Federal Agency cannot make a FOIA request.
(d) Privileged release outside of the FOIA to U.S. government
officials. (1) Records exempt from release to the public under the FOIA
may be disclosed in accordance with DoD Component regulations to
agencies of the Federal Government, whether legislative, executive, or
administrative, as follows:
(i) To other Federal agencies, both executive and administrative,
as determined by the Head of the DoD Component or designee.
(ii) In response to a State or Federal court order. The DoD
Components shall release this information along with a description of
the restrictions on its release to the public.
(2) The DoD Components shall inform officials receiving records
under the provisions of this paragraph that those records are exempt
from public release
[[Page 71858]]
under the FOIA. The DoD Components also shall advise officials of any
special handling instructions. Classified information is subject to the
provisions of DoD 5200.1-R. Information contained in a Privacy Act
system of records is subject to DoD 5400.11-R.
Sec. 286.18 Processing procedures.
(a) Receipt and control. When a request for records is received,
DoD FOIA Offices shall open a file in a formal control system designed
to ensure accountability and compliance with the FOIA. The control
system should include the data elements needed to compile the
statistics required in the annual FOIA report or other reports required
by another authority. Each request shall be assigned a unique tracking
number.
(b) Multi-track processing. (1) When a FOIA Office has a
significant number of pending requests, the requests shall be processed
in a multi-track system.
(2) DoD FOIA Offices shall establish a minimum of three processing
tracks, all based on a first-in/first-out concept and with requests
ranked by date of receipt. One track shall be for simple requests, one
for complex requests, and one for expedited requests. Each FOIA Office
shall determine whether a request is simple or complex. Requesters
whose requests are categorized as ``complex'' shall be given an
opportunity to limit in writing the scope of the request in order to
qualify for the simple track.
(c) Expedited processing. Two circumstances merit expedited
processing according to the procedures that follow. These same
procedures apply to requests for expedited processing of administrative
appeals.
(1) Compelling need. Expedited processing shall be granted to a
requester upon a specific request for such and demonstration of a
compelling need for the information. The DoD Component shall respond to
the requester with the determination whether to grant or deny expedited
processing within 10 calendar days after receipt of the request. Once
the DoD Component decides to grant expedited processing, the request
shall be processed as soon as practicable. Actions by the DoD
Components to initially deny or affirm the initial denial on appeal of
a request for expedited processing, and failure to respond in a timely
manner shall be subject to judicial review if the requester seeks
relief in United States District Court.
(i) ``Compelling need'' is 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, or 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.
(A) ``An individual primarily engaged in disseminating
information'' is a person whose primary activity involves publishing or
otherwise disseminating information to the public. To meet this
criterion, an organization or person must establish that information
dissemination is their principal professional activity or occupation,
and not an incidental or secondary activity.
(B) ``Urgently needed'' means the information has a particular
value that will be lost if not disseminated quickly, such as a breaking
story of general public interest. Information of historical interest
only, or information sought for litigation or commercial activities,
would not qualify as ``urgently needed,'' nor would a news media
publication or broadcast deadline unrelated to the news-breaking nature
of the information. The burden of demonstrating that the requested
information has a particular value that will be lost if not
disseminated quickly is on the requester.
(ii) A ``demonstration of compelling need'' means a statement
certified to be true and correct to the best of the requester's
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.
(2) Imminent loss of due process rights. Expedited processing shall
also be granted to a requester if loss of substantial due process
rights is imminent. A demonstration of imminent loss of substantial due
process rights by the requester shall include a description of the due
process rights that would be lost and a statement certified to be true
and correct to the best of the requester's 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.
If the DoD Component decides to expedite the request for this reason,
the request may be processed in the expedited track behind those
requests qualifying for compelling need.
(d) Consultation and referrals. The DoD Component shall take
appropriate action as described in Sec. 286.4(h)(2) when the record is
not under its release authority because it requires consultation with
another DoD Component or non-DoD agency, because the record was not
originated by the Component, or because the record is not in the
Component's system of records but is likely to be held by another DoD
Component or non-DoD agency. The following actions are necessary when
the record was originated by a non-Government source:
(1) When a request is received for a record that arguably contains
information exempt from release under Exemption 4, the provisions of
E.O. 12600 apply.
(i) When a FOIA request is received for records that may contain
confidential commercial information (e.g., government contracts), the
submitter shall be notified promptly of that request and afforded
reasonable time (e.g., 20 calendar days) to present any objections
concerning release. This practice of giving submitter notice is
required by E.O. 12600 for those FOIA requests for data not deemed
clearly exempt from disclosure under Exemption 4. The submitter notice
letter should include, as an attachment, a copy of the requested
information. Any objections to release provided by the submitter shall
be evaluated. The final decision to disclose information claimed to be
exempt under Exemption 4 shall be made by an official equivalent in
rank to the official who would make the decision to withhold that
information under the FOIA. When a substantial issue has been raised or
when the objections submitted lack specificity, the DoD Component may
seek additional information from the submitter and afford the submitter
a reasonable opportunity to present arguments on the legal and
substantive issues involved prior to making an agency determination. If
the Component and submitter cannot come to agreement as to what
information is exempt from release under Exemption 4, the Component
shall provide the submitter a date on which the information in question
will be released to the FOIA requester. This date should provide the
submitter sufficient time to block the release of the information by
obtaining an injunction in Federal Court (which is known as a reverse
FOIA lawsuit), if the submitter so chooses. If no response is
forthcoming the component shall release the information on the date
provided to the submitted.
(ii) The requester shall be notified when:
(A) The Component notifies the submitter of the FOIA request and
asks for comments.
(B) The Component advises the submitter that the requested
information will be released over the submitter's objections.
(iii) The submitter shall be notified immediately whenever the
requester
[[Page 71859]]
brings suit seeking to compel disclosure of the submitter's
information.
(iv) If the submitted information is a proposal provided in
response to a solicitation for a competitive proposal, and the proposal
is in DoD possession and control and meets the requirements of 10
U.S.C. 2305(g), the proposal shall not be disclosed, and no submitter
notification and subsequent analysis is required. The proposal shall be
withheld from public disclosure pursuant to Reference (m) and Exemption
3. This statute does not apply to bids, unsolicited proposals, or any
proposal that is set forth or incorporated by reference in a contract
between the DoD Component and the offeror that submitted the proposal.
In such situations, normal submitter notice and analysis shall be
conducted in accordance with Sec. 286.18 (l) except sealed bids that
are opened and read to the public. The term ``proposal'' means
information contained in or originating from any proposal, including a
technical, management, or cost proposal submitted by an offeror in
response to solicitation for a competitive proposal. The term
``proposal'' does not include an offeror's name, total price, or unit
prices when set forth in a record other than the proposal itself.
(v) If the record or information was submitted on a strictly
voluntary basis, absent any exercised authority that prescribes
criteria for submission, and it is absolutely clear that the record or
information would customarily not be released to the public the
submitter need not be notified. The Component shall withhold this
information under Exemption 4.
(2) The coordination provisions of this paragraph apply to the
release of responsive information received from multi-national
organizations, such as the North Atlantic Treaty Organization (NATO),
United Nations Commands, the North American Aerospace Defense Command
(NORAD), the Inter-American Defense Board, foreign governments, or
international organizations (e.g., the International Committee of the
Red Cross).
(i) Coordination with foreign governments under the provisions of
this paragraph may be made through the Department of State, the
specific foreign embassy, or any other coordination channel the
Component has established. OFOI has established a coordination channel
with the United Kingdom Ministry of Defence (MOD). If the DoD Component
has MOD-originated information within its files, it shall be forwarded
to OFOI, which shall coordinate with the MOD for release. The MOD
release recommendation will be forwarded by OFOI back to the Component
for direct response to the requester. Coordination with most
international organizations may be made directly with those
organizations. However, for NORAD coordination the Components shall
refer the documents to the FOIA Office at the United States Northern
Command, which will consult with NORAD.
(ii) If an international organization or foreign government asks
the Department of Defense to withhold classified information originated
by the multi-national organization or foreign government, it will be
withheld under the provisions of Exemption 1.
(iii) If the DoD Component is asked to withhold sensitive
unclassified information originated by the multi-national organization
or foreign government, then the Component will withhold it under the
provisions of Exemption 3, and shall reference the relevant statute as
10 U.S.C. 130c. To qualify for withholding under this statute, the
Component IDA must make the three following determinations concerning
the requested foreign information:
(A) The information was provided by or produced in cooperation with
a foreign government or international organization.
(B) The information is withheld from public disclosure by the
foreign government or international organization (the foreign
government or international organization should make this
representation in writing).
(C) Any of the following three conditions are met:
(1) The foreign government or international organization requests
in writing that the information be withheld.
(2) The foreign government or international organization provides
the information to the U.S. Government on the condition that it not
released to the public.
(3) The requested information is specified in agency regulations as
being information the release of which would have an adverse effect on
the ability of the Government to obtain the same or similar information
in the future.
(D) To qualify for withholding, the information must meet the
following limitations:
(1) If the information came into the possession or under the
control of the U.S. Government prior to October 30, 2000, and more than
25 years prior to receipt of the FOIA request, the DoD Component shall
notify the foreign government or international organization of the
request for disclosure. The information then qualifies for withholding
only if the foreign government or international organization requests
in writing that the information not be disclosed for a specific period
of time. This date can be extended with a later request by the foreign
government or international organization.
(2) If the information came into the possession or under the
control of the U.S. Government after October 30, 2000, the information
cannot be withheld after the release date specified by the foreign
government or international organization. In the case where one or more
foreign governments or international organizations provided the
information, the latest date specified by any of them will be used. If
no release date was specified, and the information came into the
possession of the DoD Component more than 10 years prior to receipt of
the FOIA request, the procedures set forth in Sec. 286.18(d)(1)(i)
apply.
Sec. 286.19 Initial determinations.
(a) IDA. (1) The determination whether to withhold information
responsive to a FOIA request shall be made by any suitable official
designated in writing as an IDA by the DoD Component. In designating
IDAs, the DoD Component shall balance the goals of centralization of
authority to promote uniform decisions, and decentralization to
facilitate responding to each request within the time limitations of
the FOIA. The IDA shall review all withheld information to determine
whether it meets the criteria for withholding under one or more of the
FOIA exemptions. This determination may be made upon the recommendation
of a review official.
(2) IDAs and review officials shall not use the existence of
classification markings, distribution limiting statements, such as
``For Official Use Only'' markings, as justification to withhold
information. Information so marked must be reviewed after the receipt
of a FOIA request to determine if the markings still apply.
(3) To deny, in whole or in part, a requested record that is in the
possession and control of the DoD Component, the IDA must determine
that one or more of the FOIA exemptions justify withholding all or part
of the record.
(4) The IDA should consult with public affairs officers (PAOs) to
become familiar with subject matter considered to be newsworthy at the
local or national level, and advise PAOs of all requests from news
media representatives. In addition, the IDA should inform PAOs in
advance when they intend to withhold or partially
[[Page 71860]]
withhold a record if it appears the withholding action may be a media
issue.
(b) Reasons for not releasing a record. The following are reasons
for not complying with a request for a record pursuant to 5 U.S.C.
552(a)(3). These reasons are data items that should be maintained in
the control system database for ease of retrieval and reporting in the
Annual FOIA Report.
(1) No records. A reasonable search of files failed to identify
responsive records.
(2) Referrals. The request is transferred to another DoD Component
or Federal agency.
(3) Request withdrawn. The request is withdrawn by the requester.
(4) Fee-related reason. The requester is unwilling to pay fees
associated with a request; the requester is past due in the payment of
fees from a previous FOIA request; or the requester disagrees with the
fee estimate.
(5) Records not reasonably described. A record has not been
described with sufficient particularity to enable the DoD Component to
locate it by conducting a reasonable search.
(6) Not a proper FOIA request for some other reason. The requester
has failed to comply with procedural requirements, other than fee-
related requirements, imposed by this part or by DoD Component
supplementing regulations.
(7) Not an agency record. The information requested is not a record
within the meaning of the FOIA and this part.
(8) Duplicate request. The request is a duplicate request (e.g., a
requester asks for the same information more than once). This includes
identical requests received through different means (e.g., electronic
mail, facsimile, mail, courier) at the same or different times.
(9) Other (Specify). Any other reason a requester does not comply
with published rules other than those outlined in paragraph (b) of this
section.
(10) Partial or total denial. The record is denied in whole or in
part in accordance with procedures set forth in the FOIA.
(c) Reasonably segregable portions. Although portions of some
records may be denied, the remaining reasonably segregable portions
must be released to the requester. Unless disclosing the extent of the
deletion would harm an interest protected by an exemption, the amount
of deleted information shall be indicated on the released portion of
paper records by use of brackets or darkened areas. In no case shall
the deleted areas be left ``white'' without the use of brackets to show
the bounds of deleted information. In the case of electronic deletion
or deletion in audiovisual or microfiche records, if technically
feasible, the amount of redacted information shall be indicated at the
place in the record such deletion was made, unless including the
indication would harm an interest protected by the exemption under
which the deletion was made. This may be done by use of brackets,
shaded areas, or some other identifiable technique that will clearly
show the limits of the deleted information.
(d) Response to requester. (1) When a decision is made to release a
record, a copy should be made available promptly to the requester.
(2) When a request for a record is denied in whole or in part, the
official designated to respond shall provide the requester a written
explanation of the substantive basis for denial including specific
citation of the statutory exemption applied under provisions of this
part (e.g., 5 U.S.C. 552 (b)(1)) and advise the requester of their
appeal rights, including the address to which any appeal should be
mailed. The basis for the determination shall be in sufficient detail
to permit the requester to make a decision concerning an appeal. If the
IDA does not sign the response letter, the name and duty title of the
IDA will be specified in the letter. The official also shall advise the
requester that any appeal to the adverse determination must be
postmarked no later than 60 days after the date of the initial denial
letter.
(3) The DoD Component shall make a reasonable effort to estimate
the volume of the records denied and provide this estimate to the
requester, unless providing such an estimate would harm an interest
protected by an exemption of the FOIA. This estimate should be in
number of pages or in some other reasonable form of estimation.
(4) When a denial is based on a statute qualifying as a FOIA
Exemption 3 statute, the DoD Components shall state the particular
statute relied upon to deny the information.
(5) When a requester is assessed fees for processing a request, the
requester's fee category shall be specified in the final response
letter. The DoD Components also shall provide the requester with a
complete cost breakdown (e.g., 15 pages of office reproduction at $.15
per page; three hours of professional level search at $53.00 per hour,
etc.) in the response letter.
(e) File of initial denials. Copies of all initial denials shall be
maintained by each DoD Component in a form suitable for rapid
retrieval, periodic statistical compilation, and management evaluation.
Records denied for any of the reasons contained in Sec. 286.14 (for
which no appeal was filed) shall be maintained for a period of 6 years
to meet the statute of limitations requirement.
(f) Special mail services. The DoD Components are authorized to use
registered mail, certified mail, certificates of mailing, and return
receipts. However, their use should be limited to instances where it
appears advisable to establish proof of dispatch or receipt of FOIA
correspondence. The requester shall be notified that they are
responsible for the full costs of special services. A commercial
delivery service may be used provided the requester asks for such
service to receive the requested information in a timelier manner and
the requester pays directly for the service.
(g) Receipt account. The Treasurer of the United States has
established an account for FOIA receipts. This account, receipt account
3210, shall be used for depositing all FOIA receipts, except receipts
for ``Working Capital'' and non appropriated funded activities.
Components are reminded that the account number must be preceded by the
appropriate disbursing office two-digit prefix. ``Working Capital'' and
non-appropriated funded activity FOIA receipts shall be deposited to
the applicable fund. All money orders or checks remitting FOIA fees
should be made payable to the U.S. Treasurer.
Sec. 286.20 Appeals
(a) General. If the DoD Component IDA denies a record for any of
the reasons contained in Sec. 286.14 the DoD Component shall advise
the requester that the decision may be appealed in writing to a
designated appellate authority. The Component will further advise the
requester that the appeal should be accompanied by a copy of the denial
letter. In addition to appeal rights associated with the denial of
information, the following are adverse determinations and are subject
to appeal:
(1) The disapproval of a fee category claim by a requester, the
disapproval of a request for waiver or reduction of fees, and a dispute
regarding fee estimates.
(2) A determination not to grant expedited processing.
(3) Not providing a response determination to a FOIA request within
the statutory time limits.
(4) Any determination found to be adverse in nature by the
requester.
(b) FOIA/Privacy Act appeals. When denials have been made under the
provisions of the Privacy Act and the
[[Page 71861]]
FOIA and the denied information is contained in a Privacy Act system of
records, appeals shall be processed under both the Privacy Act and the
FOIA. If the denied information is not maintained in a Privacy Act
system of records, the appeal shall be processed under the FOIA.
(c) Time of receipt. A FOIA appeal has been received by the DoD
Component when it reaches the office of an appellate authority having
jurisdiction. Misdirected appeals should be referred expeditiously to
the proper appellate authority.
(d) Time limits. (1) If the requester submits an appeal after the
conclusion of the 60-day time established by the date of the initial
denial letter, the appeal may be considered closed. However, the
Components are encouraged to make exceptions on a case by case basis.
In cases where the requester is provided several incremental
determinations for a single request, the time period for the appeal
shall not begin until the date of the final response. Denied records
shall be retained for a period of 6 years after final adjudication to
meet the statute of limitations requirement.
(2) Final determinations on appeals normally shall be made within
20 working days after receipt. When the DoD Component has a significant
number of appeals preventing a response determination within 20 working
days, the appeals shall be processed in a multi-track system, based at
a minimum, on the three processing tracks established for initial
requests according to Sec. 286.18(b). The provisions of Sec.
286.18(b) also apply to appeals of initial determinations, to include
establishing additional processing tracks as needed.
(e) Delay in responding to an appeal. If a determination cannot be
made and the requester notified within 20 working days, the appellate
authority or the appellate authority's representative shall acknowledge
to the requester, in writing, the date of receipt of the appeal, the
circumstances surrounding the delay, and the anticipated date for
substantive response. Requesters shall be advised that, if the delay
exceeds the statutory extension provision or is for reasons other than
the unusual circumstances identified in Sec. 286.4(b)(2)(ii)(C), they
may consider their administrative remedies exhausted. They may,
however, without prejudicing their right of judicial remedy, await a
substantive response.
(f) Response to the requester. (1) When an appellate authority
makes a final determination to release all or a portion of records
withheld by an IDA, a written response and a copy of the records
released should be forwarded promptly to the requester. If the
requester owes outstanding fees from the initial request, and these
fees were not appealed, the final appellate response will not be made
until the fees are paid.
(2) Final denial of an appeal must be made in writing and signed by
the appellate authority. The response shall include the following:
(i) The basis for the denial, to include an explanation of the
applicable statutory exemption or exemptions invoked under provisions
of the FOIA, and of other appeal matters set forth in Sec. 286.20(a).
(ii) A determination that the record meets the cited criteria and
rationale of the governing Executive Order if the final refusal is
based in whole or in part on Exemption 1.
(iii) A statement that the information being denied does not
contain meaningful portions that are reasonably segregable in the case
of appeals for total denial of records.
(iv) The requester's right to judicial review.
(g) Consultation. (1) Final denial of access involving issues not
previously resolved or that the DoD Component knows to be inconsistent
with rulings of other DoD Components ordinarily should not be made
before consultation with the DoD Office of the General Counsel.
(2) Tentative decisions to deny records that raise new or
significant legal issues of potential significance to other Government
agencies shall be discussed with the DoD Office of the General Counsel.
Sec. 286.21 Judicial actions.
(a) General. (1) This paragraph states current legal and procedural
rules for the convenience of the reader. The statements of rules do not
create rights or remedies not otherwise available, nor do they bind the
Department of Defense to particular judicial interpretations or
procedures.
(2) A requester may seek an order from a U.S. District Court to
compel release of a record after administrative remedies have been
exhausted; i.e., when the requester has filed an administrative appeal
from the denied access to a record by the Head of the DoD Component or
an appellate designee, or when the DoD Component has failed to respond
within the time limits prescribed by the FOIA and in this part.
(b) Venue. The requester may bring suit in the U.S. District Court
in the district in which the requester resides, the district where the
requester's place of business is located, the district in which the
record is located, or the District of Columbia.
(c) Burden of proof. The burden of proof is on the DoD Component to
justify its refusal to provide a record. The court shall evaluate the
case de novo (anew) and may elect to examine any requested record in
camera (in private) to determine whether the denial was justified.
(d) Actions by the court. (1) The U.S. District Court for the
District of Columbia has ruled that, when the DoD Component has failed
to make a determination within the statutory time limits but can
demonstrate due diligence in exceptional circumstances, to include
negotiating with the requester to modify the scope of their request,
the court may retain jurisdiction and allow the Component additional
time to complete its review of the records (Department of Justice FOIA
Update Web site). The Component must request that the Court retain
jurisdiction by seeking an ``Open America'' stay (Department of Justice
FOIA Update Web site).
(2) If the Court determines that the plaintiff substantially
prevails, it may require the United States to pay reasonable attorney
fees and other litigation costs.
(3) When the Court orders the release of denied records, it may
also issue a written finding that the circumstances surrounding the
withholding raise questions as to whether DoD Component personnel acted
arbitrarily and capriciously. In these cases, the special counsel of
the Merit System Protection Board shall conduct an investigation to
determine whether or not disciplinary action is warranted. The DoD
Component is obligated to take the action recommended by the special
counsel.
(4) The Court may punish the responsible official for contempt when
the DoD Component fails to comply with the court order to produce
records that it determines have been withheld improperly, or to
otherwise comply with a court order.
(e) Non-United States Government source information (business
information). A requester may bring suit in a U.S. District Court to
compel the release of records obtained from a submitter or records
based on information obtained from a submitter. The submitter shall be
notified promptly of the court action pursuant to E.O. 12600. When the
submitter advises that it is seeking court action to prevent release,
the DoD Component shall defer answering or otherwise pleading to the
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complainant as long as permitted by the court, or until a decision is
rendered in the court action of the source, whichever is sooner.
(f) FOIA litigation. Personnel responsible for processing FOIA
requests at the DoD Component level shall be aware of litigation under
the FOIA. Whenever a complaint is filed in a U.S. District Court under
the FOIA, the DoD Component named in the complaint shall forward a copy
of the complaint to DFOIPO with an information copy to the DoD Office
of the General Counsel, ATTN: Office of Legal Counsel.
Subpart E--Fee Schedule
Sec. 286.24 General provisions.
(a) Application. (1) The fees described in this subpart apply to
requests submitted pursuant to 5 U.S.C. 551, 552, and 552(a) and
conform to the OMB Uniform Freedom of Information Act Fee Schedule and
Guidelines S. They reflect direct costs for search, review (in the case
of commercial requesters), and duplication of documents.
(2) The fees are neither intended to imply they must be charged in
connection with providing information to the public pursuant to the
FOIA request nor are they meant to substitute for any other charges
established by the Department of Defense, such as DoD 7000.14-R, to
recoup direct costs of authorized services provided by DoD Components
that are not FOIA related.
(3) Nothing in this subpart shall supersede fees chargeable under a
statute specifically providing for setting the level of fees for
particular types of records, such as the GPO or the National Technical
Information Service. The Components should ensure documents responsive
to a request are maintained for distribution by agencies operating
statutory-based fee schedule programs and inform requesters of the
steps necessary to obtain records from those sources.
(b) Fee restrictions. (1) No fees may be charged by any DoD
Component if the total assessable fees are less than or equal $25.00.
For requesters in the educational institution, noncommercial scientific
institution, or news media categories, the Components shall provide all
search time and the first 100 pages of duplication without charge. For
requesters in the ``all other'' category, the Components shall provide
the first 2 hours of search time, and the first 100 pages of
duplication without charge. The Components shall provide all review
time without charge except for requesters in the commercial category.
Time expended shall be computed to the nearest 15 minutes.
(2) Requesters receiving the first 2 hours of search and the first
100 pages of duplication without charge are entitled to such only once
per request. Therefore, if the Component, after completing its portion
of a request, finds it necessary to refer the request to a subordinate
office, another DoD Component, or another Federal agency for action on
their portion of the request, the referring Component shall inform the
recipient of the referral of the expended amount of search time and
duplication cost to date.
(3) For the purposes of these restrictions, the word ``pages''
refers to paper copies of a standard size, which will normally be
``8\1/2\ x 11'' or ``11 x 14''. Thus, requesters would not be entitled
to 100 microfiche or 100 computer disks, for example.
(4) In the case of computer searches, the first 2 free hours will
be determined against the salary scale of the individual operating the
computer for the purposes of the search. As an example, when the direct
costs of the computer central processing unit, input-output devices,
and memory capacity equal $40.00 (2 hours of equivalent search at the
clerical level), amounts of computer costs in excess of that amount are
chargeable as computer search time. In the event the direct operating
cost of the hardware configuration cannot be determined, computer
search shall be based on the salary scale of the operator executing the
computer search. See Sec. 286.25(b)(1) for further details regarding
fees for computer searches.
(c) Fee waivers. (1) When assessable costs for a FOIA request total
$25.00 or less, fees shall be waived automatically for all requesters,
regardless of category.
(2) Documents shall be furnished without charge, or at a reduced
charge, when the Component determines that waiver or reduction of the
fees is in the public interest because furnishing the information is
likely to contribute significantly to public understanding of the
operations or activities of the Department of Defense and is not
primarily in the commercial interest of the requester. Decisions to
waive or reduce fees that exceed the automatic waiver threshold shall
be made on a case-by-case basis and after a search for responsive
records is completed, consistent with the following factors:
(i) Disclosure of the information ``is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the Government.'' The
factors identified must be met to some degree to warrant waiving or
reducing assessable fees in the ``public interest.''
(A) The subject of the request. The Components should analyze
whether the subject matter of the request involves issues will
significantly contribute to the public understanding of the operations
or activities of the Department of Defense. Requests for records in the
possession of the Department of Defense that were originated by non-
government organizations and are sought for their intrinsic content,
rather than informative value, will likely not contribute to public
understanding of the operations or activities of the Department of
Defense. An example of such records might be press clippings, magazine
articles, or records forwarding a particular opinion or concern from a
member of the public regarding a DoD activity. Similarly, disclosures
of records of considerable age may or may not bear directly on the
current activities of the Department of Defense; however, the age of a
particular record shall not be the sole criterion for denying relative
significance under this factor. It is possible to envisage an
informative issue concerning the current DoD activities, based on
historical documentation. Requests of this nature must be closely
reviewed consistent with the requester's stated purpose for desiring
the records and the potential for public understanding of DoD
operations and activities.
(B) The informative value of the information to be disclosed. This
factor requires a close analysis of the substantive contents of a
record, or portion of the record, to determine whether disclosure is
meaningful, and shall inform the public on the operations or activities
of the Department of Defense. While the subject of a request may
contain information that concerns the Department of Defense, it may not
always hold great potential for contributing to a meaningful
understanding of these operations or activities. An example of such
would be a previously released record that has been heavily redacted,
the balance of which may contain only random words, fragmented
sentences, or paragraph headings. A determination as to whether a
record in this situation will contribute to the public understanding of
DoD operations or activities must be approached with caution, and
carefully weighed against the arguments offered by the requester.
Another example is information already known to be in the public
domain. Disclosure of duplicative or nearly identical information
already existing in the
[[Page 71863]]
public domain may not add meaningful new information concerning the
operations and activities of the Department of Defense.
(C) The contribution to an understanding of the subject by the
general public likely to result from disclosure. The key element in
determining the applicability of this factor is whether disclosure will
inform, or have the potential to inform the public, rather than simply
the individual requester or small segment of interested persons. The
identity of the requester is essential in this situation in order to
determine whether such requester has the capability and intention to
disseminate the information to the public. Mere assertions of plans to
author a book, researching a particular subject, doing doctoral
dissertation work, or indigence are insufficient without demonstrating
the capacity to further disclose the information in a manner that will
be informative to the general public. Requesters should be asked to
describe their qualifications, the nature of their research, the
purpose of the requested information, and their intended means of
dissemination to the public.
(D) The significance of the contribution to public understanding.
In applying this factor, the Components must differentiate the relative
significance or impact of the disclosure against the current level of
public knowledge, or understanding which exists before the disclosure.
In other words, will disclosure on a current subject of wide public
interest be unique in contributing previously unknown facts, thereby
enhancing public knowledge, or will it basically duplicate what is
already known by the general public? A decision regarding significance
requires objective judgment, rather than subjective determination, and
must be applied carefully to determine whether disclosure will likely
lead to a significant public understanding of the issue. The Components
shall not make value judgments as to whether the information is
important enough to be made public.
(ii) Disclosure of the information ``is not primarily in the
commercial interest of the requester.'' Determining ``commercial
interest'' requires consideration of the following issues:
(A) The existence and magnitude of a commercial interest. If the
request is determined to be of a commercial interest, the Components
should address the magnitude of that interest to determine if the
requester's commercial interest is primary, as opposed to any secondary
personal or non-commercial interest. In addition to profit-making
organizations, individual persons or other organizations may have a
commercial interest in obtaining certain records. Where it is difficult
to determine whether the requester is of a commercial nature, the
Components may draw inference from the requester's identity and
circumstances of the request. The Components are reminded that in order
to apply the commercial standards of the FOIA, the requester's
commercial benefit must clearly override any personal or non-profit
interest.
(B) The primary interest in disclosure. Once a requester's
commercial interest has been determined, the Components should then
determine if the disclosure would be primarily in that interest. This
requires a balancing test between the commercial interest of the
request against any public benefit to be derived as a result of that
disclosure. Where the public interest is served above and beyond that
of the requester's commercial interest, a waiver or reduction of fees
would be appropriate. Conversely, even if a significant public interest
exists, and the relative commercial interest of the requester is
determined to be greater than the public interest, then a waiver or
reduction of fees would be inappropriate. As examples, news media
organizations have a commercial interest as business organizations;
however, their inherent role of disseminating news to the general
public can ordinarily be presumed to be of a primary interest.
Therefore, any commercial interest becomes secondary to the primary
interest in serving the public. Similarly, scholars writing books or
engaged in other forms of academic research may recognize a commercial
benefit, either directly, or indirectly (through the institution they
represent); however, normally such pursuits are primarily undertaken
for educational purposes, and the application of a fee charge would be
inappropriate. Conversely, data brokers or others who merely compile
Government information for marketing can normally be presumed to have
an interest primarily of a commercial nature.
(3) Components are reminded that the factors and examples used in
this paragraph are not all inclusive. Each fee decision must be
considered on a case-by-case basis and upon the merits of the
information provided in each request. When the element of doubt as to
charging or waiving the fee cannot be clearly resolved, Components
should rule in favor of the requester.
(4) In addition, the following additional circumstances describe
situations where waivers or reductions of fees are most likely to be
warranted:
(i) A record is voluntarily created to prevent an otherwise
burdensome effort to provide voluminous amounts of available records,
including additional information not requested.
(ii) A previous denial of records is reversed in total, or in part,
and the assessable costs are not substantial (e.g. $25.00-$50.00).
(d) Fee assessment. (1) Fees may not be used to discourage
requesters. Assessable FOIA fees are limited to standard charges for
direct search, review (in the case of commercial requesters), and
duplication.
(2) Fees are assessed based on the category determined to be
appropriate for the requester's status and the FOIA request should
contain a willingness to pay fees appropriate to that category. The
categories are identified below:
(i) Commercial. Requesters should indicate a willingness to pay all
search, review, and duplication costs when the records are requested
for commercial use.
(A) The term ``commercial use'' request refers to a request from,
or on behalf of one who seeks information for a use or purpose that
furthers the commercial, trade, or profit interest of the requester or
the person on whose behalf the request is made. In determining whether
a requester properly belongs in this category, Components must
determine the use to which a requester will put the documents
requested. Moreover, where a Component has reasonable cause to doubt
the use to which a requester will put the records sought, or where that
use is not clear from the request itself, Components should seek
additional clarification from the requester before assigning the
request to a specific category.
(B) When the Components receive a request for documents for
commercial use, they should assess charges which recover the full
direct costs of searching for, reviewing for release, and duplicating
the records sought. Accordingly, commercial requesters are not entitled
to 2 hours of free search time and 100 free pages of reproduction.
(C) Commercial requesters are not normally entitled to a waiver or
reduction of fees based upon an assertion that disclosure would be in
the public interest. However, because use is the exclusive determining
criterion, it is possible to envision a commercial enterprise making a
request that is not for commercial use. It is also possible that a non-
profit organization could make a request that is for commercial
[[Page 71864]]
use. Such situations must be addressed on a case-by-case basis.
(ii) Educational, non-commercial scientific institution, or news
media. Requesters should indicate a willingness to pay duplication
charges in excess of 100 pages if more than 100 pages of records are
desired.
(A) Educational institution. Fees shall be limited to only
reasonable standard charges for document duplication (excluding charges
for the first 100 pages) when the request is made by an educational
institution whose purpose is scholarly research. The term ``educational
institution'' refers to a pre-school, a public or private elementary or
secondary school, an institution of undergraduate higher education, an
institution of graduate higher education, an institution of
professional education, and an institution of vocational education,
which operates a program or programs of scholarly research. Fees shall
be waived or reduced in the public interest if the fee waiver criteria
are met.
(B) Non-commercial scientific institution. Fees shall be limited to
only reasonable standard charges for document duplication (excluding
charges for the first 100 pages) when the request is made by a non-
commercial scientific institution whose purpose is scientific research.
The term ``non-commercial scientific institution'' refers to an
institution that is not operated on a ``commercial'' basis as defined
in Sec. 286.24(d)(2)(i)(A), and is operated solely for the purpose of
conducting scientific research, the results of which are not intended
to promote any particular product or industry. Fees shall be waived or
reduced in the public interest if the fee waiver criteria are met.
(C) Representatives of the news media. Fees shall be limited to
only reasonable standard charges for document duplication (excluding
charges for the first 100 pages). Fees shall be waived or reduced if
the fee waiver criteria are met.
(1) The term ``representative of the news media'' refers to any
person actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public. The term ``news''
means information about current events or that would be of current
interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large, and
publishers of periodicals (but only in those instances when they can
qualify as disseminators of ``news'') who make their products available
for purchase or subscription by the general public. These examples are
not meant to be all-inclusive. Moreover, as traditional methods of news
delivery evolve (e.g., electronic dissemination of newspapers through
telecommunications services and the Internet), such alternative media
might be included in this category.
(2) To be eligible for inclusion in this category, a requester must
meet the criteria in the preceding paragraph, and his or her request
must not be made for commercial use. In the case of ``freelance''
journalists, they may be regarded as working for a news organization if
they can demonstrate a solid basis for e