[Title 32 CFR 806.26]
[Code of Federal Regulations (annual edition) - July 1, 1997 Edition]
[Subtitle A - Department of Defense (Continued)]
[Sec. 806.26 - For Official Use Only (FOUO).]
[From the U.S. Government Publishing Office]

  For Official Use Only (FOUO).
  Sec. 806.26
    Department of Defense (Continued)

Sec. 806.26  For Official Use Only (FOUO).

    FOUO is not a classification. Information marked FOUO must meet the 
criteria for exemptions 2 through 9, or you cannot withhold it. Do not 
consider or mark any other records FOUO.
    (a) Originators mark records when they create them to call attention 
to FOUO content. An FOUO marking does not mean you must withhold a 
record under the FOIA. You still need to review a requested record. 
Examine records with and without markings to identify information that 
needs protection and is exempt from public release

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or to decide whether discretionary release is appropriate.
    (1) Information in a technical document that requires a distribution 
statement per AFI 61-204, Controlling the Distribution of Classified and 
Unclassified Scientific and Technical Information (formerly AFR 80-30), 
must show that statement. The originator may also mark the information 
FOUO, if appropriate.
    (2) Mark an unclassified document containing FOUO information ``For 
Official Use Only'' at the bottom, on the outside of the front cover (if 
any), on each page containing FOUO information, on the back page, and on 
the outside of the back cover (if any).
    (3) In unclassified documents, the originator may also mark 
individual paragraphs that contain FOUO information to alert users and 
assist in review.
    (4) In a classified document, mark:
    (i) An individual paragraph that contains FOUO, but not classified 
information, by placing ``(FOUO)'' at the beginning of the paragraph.
    (ii) The top and bottom of each page that has both FOUO and 
classified information, with the highest security classification of 
information on that page.
    (iii) ``FOUO'' at the bottom of each page that has FOUO but not 
classified information.
    (5) If a classified document also contains FOUO information or if 
the classified material becomes FOUO when declassified, place the 
following statement on the bottom of the cover or the first page, under 
the classification marking: If declassified, review the document to make 
sure material is not FOUO and not exempt under this part before public 
    (6) Mark other records, such as computer printouts, photographs, 
films, tapes, or slides,``For Official Use Only'' or ``FOUO'' so the 
receiver or viewer knows the record contains FOUO information.
    (7) Mark FOUO material sent to authorized persons outside the DoD 
with an explanation typed or stamped on the document:

    This document contains information EXEMPT FROM MANDATORY DISCLOSURE 
UNDER THE FOIA. Exemption(s) . . . . . . applies (apply). (Further 
distribution is prohibited without the approval of (enter OPR)).

    (b) DoD components, officials of DoD components, and authorized DoD 
contractors, consultants, and grantees send FOUO information to each 
other to conduct official DoD business. Tell recipients the status of 
such information, and send the material in a way that prevents 
unauthorized public disclosure. Make sure documents that transmit FOUO 
material call attention to any FOUO attachments. Normally, you may send 
FOUO records over facsimile equipment. To prevent unauthorized 
disclosure, consider attaching special cover sheets (i.e., AF Form 3227, 
Privacy Act Cover Sheet, for Privacy Act information), the location of 
sending and receiving machines, and whether authorized personnel are 
around to receive FOUO information. FOUO information may be passed to 
officials in other departments and agencies of the executive and 
judicial branches to fulfill a government function. Mark the records 
``For Official Use Only,'' and tell the recipient the information is 
exempt from public disclosure under the FOIA and whether it needs 
special handling. If the records are subject to the PA, refer to Part 
806b of this chapter for PA disclosure policies.
    (c) AFI 90-401, Air Force Relations With Congress (formerly AFR 11-
7), governs the release of FOUO information to members of the Congress 
and AFI 65-401, Air Force Relations With the General Accounting Office 
(formerly AFR 11-8), governs its release to the General Accounting 
Office (GAO). Review records before releasing to see if the information 
warrants FOUO status. If not, remove FOUO markings. If the material 
still warrants FOUO status, mark the records FOUO and explain the 
appropriate exemption and marking to the recipient.
    (d) When you use the US Postal Service, package records with FOUO 
information so their contents are safe. If FOUO information is not 
combined with classified information, individuals may send FOUO 
information by First Class Mail or Parcel Post. Bulky shipments, such as 
FOUO directives or testing materials, that qualify under postal 
regulations may be sent by Fourth Class Mail.

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    (e) Mark each part of a message that contains FOUO information. 
Unclassified messages containing FOUO information must show the 
abbreviation ``FOUO'' before the text begins.
    (f) To safeguard FOUO records during normal duty hours, place them 
in an out-of-sight location if people who do not work for the government 
come into the work area. After normal duty hours, store FOUO records to 
prevent unauthorized access. File them with other unclassified records 
in unlocked files or desks, etc., if the Government or a Government 
contractor provides normal internal building security. When there is no 
internal security, locked buildings or rooms usually provide adequate 
after-hours protection. For additional protection, store FOUO material 
in locked containers such as file cabinets, desks, or bookcases.
    (g) When a record is no longer FOUO, remove the markings or indicate 
on the document the markings no longer apply. Try to tell everyone who 
has the records that their status has changed.
    (h) Destroy FOUO materials by tearing them up so no one can put them 
back together and throwing them into trash containers. When the 
information needs more protection, local authorities may use other 
methods. However, balance the expense of extra protection against the 
degree of sensitivity of the FOUO information in the records. You may 
recycle FOUO material. Safeguard the FOUO documents or information until 
recycling to prevent unauthorized disclosure. Recycling contracts must 
include agreements on how to protect and destroy FOUO and PA materials.
    (i) Unauthorized disclosure of FOUO records is not an unauthorized 
disclosure of classified information. Air Force personnel must act to 
protect FOUO records under their control from unauthorized disclosure. 
When unauthorized persons gain access to these records, administrators 
find out who is responsible and take disciplinary action where 
appropriate. Unauthorized disclosure of FOUO information containing PA 
information may also result in civil or criminal sanctions against 
individuals or the Air Force. Tell the originating organization when its 
records are improperly disclosed.

                Appendix A to Part 806--Glossary of Terms

    Appellate Authority--The Office of the General Counsel to the 
Secretary of the Air Force, who decides FOIA appeals.
    Commercial Request--A category 1 request from, or on behalf of, one 
who seeks information that furthers the commercial, trade, or profit 
interest of the requester or the person represented.
    Denial--A determination by a denial authority not to disclose 
requested records in its possession and control.
    Determination--The decision to grant or deny all or part of a 
request from the public for records.
    Disclosure--Providing access to, or one copy of, a record.
    Disclosure Authority--Official authorized to release records.
    Education Institution Request--A category 2 request from a 
preschool, 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, or 
an institution of vocational education that operates one or more 
scholarly research programs.
    Electronic Data--Records or information created, stored, and 
retrieved by electronic means. Electronic records do not include 
computer software used as a tool to create, store, or retrieve 
electronic data.
    FOIA Manager--The person who manages the FOIA Program at each 
organizational level.
    FOIA Request--A written request for records from the public that 
cites or implies the FOIA.
    Functional Request--A request for records that does not specifically 
cite or imply the FOIA.
    Glomar Response--A reply that neither confirms nor denies the 
existence or nonexistence of the requested record. A ``Glomar'' response 
may be used with FOIA exemptions 1, 6, and 7(C).
    Initial Denial Authority (IDA)--Persons in authority positions who 
may withhold records under the FOIA.
    News Media Request--A category 2 request from a person whose job is 
gathering news for a publishing or broadcasting organization that 
supplies news to the public. News media also includes free lance 
journalists who can prove they have good reason for expecting a news 
organization to publish their work.
    Noncommercial Scientific Institution Request--A category 2 request 
from a noncommercial institution that operates solely to conduct 
scientific research not intended to promote a particular product or 
    Other Request--A category 3 request from anyone who does not fit 
into the Commercial category or the Noncommercial Scientific or

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Educational Institutions or News Media category.
    Partial Denial--Decision to withhold part of a requested agency 
    Public Interest--When releasing official information sheds light on 
how an agency performs its statutory duties and informs citizens about 
what their government is doing or reveals an Air Force official's 
conduct. Normally there is no public interest in personal information if 
it does not reveal a person's conduct in their job.
    Records--The products of data compilation, such as all books, 
papers, maps, and photographs, machine readable materials or other 
documentary materials, regardless of physical form or characteristics, 
made or received by an agency of the U.S. Government in connection with 
the transaction of public business and in the agency's possession and 
control at the time it receives the request. Records such as notes, 
working papers, and drafts kept as historical evidence of actions are 
subject to the FOIA, and may be exempt from release under 5 U.S.C. 
552(b)(5) if an identifiable harm exists by their release. Computer 
software rarely qualifies as an agency record. Evaluate each case. Two 
examples of software as a record are:
    a. Data embedded in the software cannot be extracted without the 
    b. Software that reveals information about DoD organization, 
policies, functions, decisions, or procedures, such as computer models 
used to forecast budget outlays, to calculate retirement system costs, 
or to optimize models on travel costs.
    Search--To look for a requested record or a specific section of a 
record. You can search over the telephone, manually, or with computer 
    Statutory Time Limits--The 10 workdays after receiving the request 
to tell the requester whether the records are released or denied. This 
term also covers the additional 10-workday extension allowed for reasons 
in Sec. 806.15(a)(12). The 10 days begin when the FOIA manager receives 
a properly filed request with a reasonable description of the requested 
records and with the requester's stated willingness to pay fees or fees 
paid. If the requester disagrees with his or her category or wants fees 
reduced or waived, the 10 days begin after resolving these issues.
    Technical Data--Information (including computer software 
documentation) that is scientific or technical in nature and recorded on 
any medium.

 Appendix B to Part 806--Requirements of 5 U.S.C. 552(b)(4) (Send With 
                          Letter to Submitters)

    (a) The Freedom of Information Act (FOIA) requires Federal agencies 
to provide their records, except those specifically exempted, for the 
public to inspect and copy.
    (b) Section (b) of the Act lists nine exemptions that are the only 
basis for withholding records from the public.
    (c) In this case, the fourth exemption, 5 U.S.C. 552(b)(4), may 
apply to records or information the Air Force maintains. Under this 
exemption, agencies may withhold trade secrets and commercial or 
financial information they obtained from a person or organization 
outside the government which is privileged or confidential.
    (d) This generally includes information provided and received with 
the understanding that it will be kept privileged or confidential.
    (e) Commercial or financial matter is ``confidential'' and exempt if 
its release will probably:
    (1) Impair the Government's ability to obtain necessary information 
in the future.
    (2) Substantially harm the source's competitive position or impair 
some other legitimate Government interest.
    (f) The exemption may be used to help the source when public 
disclosure will probably cause substantial harm to its competitive 
position. Examples of information that may qualify for this exemption 
    (1) Commercial or financial information received in confidence with 
loans, bids, contracts, or proposals, as well as other information 
received in confidence or privileged, such as trade secrets, inventions, 
discoveries, or other proprietary data.
    (2) Statistical data and commercial or financial information 
concerning contract performance, income, profits, losses, and 
expenditures, offered and received in confidence from a contractor or 
potential contractor.
    (3) Personal statements given during inspections, investigations, or 
audits, received and kept in confidence because they reveal trade 
secrets or commercial or financial information, normally considered 
confidential or privileged.
    (4) Financial data that private employers give in confidence for 
local wage surveys used to set and adjust pay schedules for the 
prevailing wage rate of DoD employees.
    (5) Information about scientific and manufacturing processes or 
developments that is technical or scientific or other information 
submitted with a research grant application, or with a report while 
research is in progress.
    (6) Technical or scientific data a contractor or subcontractor 
develops entirely at private expense, and technical or scientific data 
developed partly with Federal funds and partly with private funds, in 
which the contractor or subcontractor retains legitimate proprietary 
interests per 10 U.S.C. 2320-2321 and 48 CFR 227.4.
    (7) Computer software copyrighted under the Copyright Act of 1976 
(17 U.S.C. 106), the

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disclosure of which would adversely impact its potential market value.
    (g) If release of the subject material would prejudice your 
commercial interests, give detailed written reasons that identify the 
specific information and the competitive harm it will cause to you, your 
organization, or your business. The Act requires we provide any 
reasonably segregable part of a record after deleting exempt parts. So, 
tell us if deleting key words or phrases would adequately protect your 
    (h) If you do not prove the probability of substantial harm to your 
competitive position or other commercial interests, we may be required 
to release the information. Records qualify for protections case by