[Title 32 CFR D]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Chapter V - DEPARTMENT OF THE ARMY]
[Subchapter A - AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS]
[Part 518 - THE ARMY FREEDOM OF INFORMATION ACT PROGRAM]
[Subpart D - For Official Use Only]
[From the U.S. Government Printing Office]


32NATIONAL DEFENSE32002-07-012002-07-01falseDSubpart DNATIONAL DEFENSEDEPARTMENT OF THE ARMYAID OF CIVIL AUTHORITIES AND PUBLIC RELATIONSTHE ARMY FREEDOM OF INFORMATION ACT PROGRAM
                    Subpart D--For Official Use Only

                           General Provisions



Sec. 518.38  General.

    Information that has not been given a security classification 
pursuant to the criteria of an Executive Order, but which may be 
withheld from the public for one or more of the reasons cited in FOIA 
exemptions 2 through 9 shall be considered as being for official use 
only. No other material shall be considered or marked ``For Official Use 
Only'' (FOUO), and FOUO is not authorized as an anemic form of 
classification to protect national security interests.



Sec. 518.39  Prior FOUO application.

    The prior application of FOUO markings is not a conclusive basis for 
withholding a record that is requested under the FOIA. When such a 
record is requested, the information in it shall be evaluated to 
determine whether, under current circumstances, FOIA exemptions apply in 
withholding the record or portions of it. If any exemption or exemptions 
apply or applies, it may nonetheless be released when it is determined 
that no governmental interest will be jeopardized by its release.



Sec. 518.40  Historical papers.

    Records such as notes, working papers, and drafts retained as 
historical evidence of DoD Component actions enjoy no special status 
apart from the exemptions under the FOIA (reference (a)).



Sec. 518.41  Time to mark records.

    The marking of records at the time of their creation provides notice 
of FOUO content and facilitates review when a record is requested under 
the FOIA. Records requested under the

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FOIA that do not bear such markings, shall not be assumed to be 
releasable without examination for the presence of information that 
requires continued protection and qualifies as exempt from public 
release.



Sec. 518.42  Distribution statement.

    Information in a technical document that requires a distribution 
statement pursuant to DoD Directive 5230.24 (reference (m)), shall bear 
that statement and may be marked FOUO as appropriate.



Sec. 518.43  Location of markings.

    (a) An unclassified document containing FOUO information shall be 
marked ``For Official Use Only'' in bold letters at least \3/16\ of an 
inch high at the bottom on the outside of the front cover (if any), one 
each page containing FOUO information, and on the outside of the back 
cover (if any).
    (b) Within a classified document, an individual page that contains 
both FOUO and classified information shall be marked at the top and 
bottom with the highest security classification of information appearing 
on the page.
    (c) Within a classified document, an individual page that contains 
FOUO information but no classified information shall be marked ``For 
Official Use Only'' at the bottom of the page. The paragraphs containing 
the ``For Official Use Only'' information should also be marked with the 
initials FOUO.
    (d) Other records, such as, photographs, films, tapes, or slides, 
shall be marked ``For Official Use Only'' or ``FOUO'' in a manner that 
ensures that a recipient or viewer is aware of the status of the 
information therein. Markings on microform will conform to the 
requirements of paragraphs (b) and (c) of this section. As a minimum, 
each frame of a microform containing FOUO information will be marked 
``FOR OFFICIAL USE ONLY'' at the bottom center of the appropriate page 
or frame. Classified or protective markings placed by a software program 
at both top and bottom of a page or frame of a computer-generated report 
are acceptable. Storage media (disk packs or magnetic tapes) containing 
personal information subject to the Privacy Act will be labeled ``FOR 
OFFICIAL USE ONLY-Privacy Act Information.''
    (e) FOUO material transmitted outside the Department of Defense 
requires application of an expanded marking to explain the significance 
of the FOUO marking. This may be accomplished by typing or stamping the 
following statement on the record prior to transfer: ``This document 
contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA. 
Exemptions * * * apply.''
    (f) Permanently bound volumes need to be marked only on the outside 
of the front and back covers, title page, and first and last pages. 
Volumes stapled by office-type hand or electric staples are not 
considered permanently bound.

                     Dissemination and Transmission



Sec. 518.44  Release and transmission procedures.

    Until FOUO status is terminated, the release and transmission 
instructions that follow apply:
    (a) FOUO information may be disseminated within DoD Components and 
between officials of DoD Components and DoD contractors, consultants, 
and grantees to conduct official business for the Department of Defense. 
Recipients shall be made aware of the status of such information, and 
transmission shall be by means that preclude unauthorized public 
disclosure. Transmittal documents shall call attention to the presence 
of FOUO attachments.
    (b) DoD holders of FOUO information are authorized to convey such 
information to officials in other departments and agencies of the 
executive and judicial branches to fulfill a government function, except 
to the extent prohibited by the Privacy Act. Records thus transmitted 
shall be marked ``For Official Use Only,'' and the recipient shall be 
advised that the information has been exempted from public disclosure, 
pursuant to the FOIA, and that special handling instructions do or do 
not apply.
    (c) Release of FOUO information to Members of Congress is governed 
by DoD Directive 5400.4 (reference (n)). Army implementing instructions 
are in Sec. 518.52 and in AR 1-20. Release to the GAO is governed by DoD 
Directive

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7650.1 (reference (o)). Records released to the Congress or GAO should 
be reviewed to determine whether the information warrants FOUO status. 
If not, prior FOUO markings shall be removed or effaced. If withholding 
criteria are met, the records shall be marked FOUO and the recipient 
provided an explanation for such exemption and marking. Alternatively, 
the recipient may be requested, without marking the record, to protect 
against its public disclosure for reasons that are explained.



Sec. 518.45  Transporting FOUO information.

    Records containing FOUO information shall be transported in a manner 
that precludes disclosure of the contents. When not commingled with 
classified information, FOUO information may be sent via first-class 
mail or parcel post. Bulky shipments, such as distributions of FOUO 
Directives or testing materials, that otherwise qualify under postal 
regulations may be sent by fourth-class mail. When material marked FOUO 
is removed from storage, attach DA Label 87 (For Official Use Only Cover 
Sheet).



Sec. 518.46  Electrically transmitted messages.

    Each part of electrically transmitted messages containing FOUO 
information shall be marked appropriately. Unclassified messages 
containing FOUO information shall contain the abbreviation ``FOUO'' 
before the beginning of the text. Such messages shall be transmitted in 
accordance with communications security procedures in ACP[EN]121 (U.S. 
Supp 1) (reference (p)) for FOUO information. Army follows the 
procedures in AR 25-11.



Sec. 518.47  Telephone usage.

    (a) FOUO information may be discussed over the telephone lines with 
DoD, other Government agencies, and Government support contractors for 
official purposes.
    (b) Facsimile communications marked FOUO may be transmitted by 
nonsecure terminals with the FOUO markings intact between U.S. DoD, 
other U.S. Government agencies, and U.S. Government support contractors 
for official purposes.

                      Safeguarding FOUO Information



Sec. 518.48  During duty hours.

    During normal working hours, records determined to be FOUO shall be 
placed in an out-of-sight location if the work area is accessible to 
non-governmental personnel. When material marked FOUO is removed from 
storage, attach DA Label 87.



Sec. 518.49  During nonduty hours.

    At the close of business, FOUO records shall be stored so as to 
preclude unauthorized access. Filing such material with other 
unclassified records in unlocked files or desks, etc., is adequate when 
normal U.S. Government or government-contractor internal building 
security is provided during nonduty hours. When such internal security 
control is not exercised, locked buildings or rooms normally provide 
adequate after-hours protection. If such protection is not considered 
adequate, FOUO material shall be stored in locked receptacles such as 
file cabinets, desks, or bookcases. FOUO records that are subject to the 
provisions of Public Law 86-36 (reference (c)) shall meet the safeguards 
outlined for that group of records. Army personnel handling National 
Security Agency (NSA) records will follow NSA instructions on storing 
and safeguarding those records.

           Termination, Disposal and Unauthorized Disclosures



Sec. 518.50  Termination.

    The originator or other competent authority, e.g., initial denial 
and appellate authorities, shall terminate ``For Official Use Only'' 
markings or status when circumstances indicate that the information no 
longer requires protection from public disclosure. When FOUO status is 
terminated, all known holders shall be notified, to the extent 
practical. Upon notification, holders shall efface or remove the ``For 
Official Use Only'' markings, but records in file

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or storage need not be retrieved solely for that purpose.

[56 FR 48932, Sept. 26, 1991; 56 FR 56010, Oct. 31, 1991]



Sec. 518.51  Disposal.

    (a) Nonrecord copies of FOUO materials may be destroyed by tearing 
each copy into pieces to preclude reconstructing, and placing them in 
regular trash containers. When local circumstances or experience 
indicates that this destruction method is not sufficiently protective of 
FOUO information, local authorities may direct other methods but must 
give due consideration to the additional expense balanced against the 
degree of sensitivity of the type of FOUO information contained in the 
records.
    (b) Record copies of FOUO documents shall be disposed of in 
accordance with the disposal standards established under 44 U.S.C. 
chapter 33 (reference (q)), as implemented by DoD Component instructions 
concerning records disposal. Army implementing disposition instructions 
are in AR 5-400-2.



Sec. 518.52  Unauthorized disclosure.

    The unauthorized disclosure of FOUO records does not constitute an 
unauthorized disclosure of DoD information classified for security 
purposes. Appropriate administrative action shall be taken, however, to 
fix responsibility for unauthorized disclosure whenever feasible, and 
appropriate disciplinary action shall be taken against those 
responsible. Unauthorized disclosure of FOUO information that is 
protected by the Privacy Act (reference (gg)) may also result in civil 
and criminal sanctions against responsible persons. The DoD Component 
that originated the FOUO information shall be informed of its 
unauthorized disclosure.