[Title 32 CFR 806.26]
[Code of Federal Regulations (annual edition) - July 1, 1997 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter VII - DEPARTMENT OF THE AIR FORCE]
[Subchapter A - ADMINISTRATION]
[Part 806 - AIR FORCE FREEDOM OF INFORMATION ACT PROGRAM]
[Sec. 806.26 - For Official Use Only (FOUO).]
[From the U.S. Government Publishing Office]
For Official Use Only (FOUO).
Department of Defense (Continued)
DEPARTMENT OF THE AIR FORCE
AIR FORCE FREEDOM OF INFORMATION ACT PROGRAM
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
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
(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.
(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
FOIA Manager--The person who manages the FOIA Program at each
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
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
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
(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
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