[Title 32 CFR A]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter Vi - DEPARTMENT OF THE NAVY]
[Subchapter A - UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS]
[Part 701 - AVAILABILITY OF DEPARTMENT OF THE NAVY RECORDS AND PUBLICATION OF DEPARTMENT OF THE NAVY DOCUMENTS AFFECTING THE PUBLIC]
[Subpart A - Department of the Navy Freedom of Information Act (FOIA)]
[From the U.S. Government Printing Office]
32NATIONAL DEFENSE52002-07-012002-07-01falseDepartment of the Navy Freedom of Information Act (FOIA)ASubpart ANATIONAL DEFENSEDepartment of Defense (Continued)DEPARTMENT OF THE NAVYUNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDSAVAILABILITY OF DEPARTMENT OF THE NAVY RECORDS AND PUBLICATION OF DEPARTMENT OF THE NAVY DOCUMENTS AFFECTING THE PUBLIC
Subpart A--Department of the Navy Freedom of Information Act (FOIA)
Program
Sec. 701.1 Purpose.
Subparts A, B, C, and D of this part issue policies and procedures
for implementing the Freedom of Information Act (5 U.S.C. 552), and
Department of Defense Directives 5400.7 and 5400.7-R series \1\,
Department of Defense Freedom of Information Act Program, (See 32 CFR
part 286) and promote uniformity in the Department of the Navy Freedom
of Information Act (FOIA) Program.
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\1\ Copies may be obtained if needed from the Navy FOIA Website at
http://www.ogc.secnav.hq.navy.mil/foia/index.html
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Sec. 701.2 Navy FOIA website/FOIA handbook.
(a) The Navy FOIA website (http://www.ogc.secnav.hq.navy. mil/foia/
index.html) is an excellent resource for requesters and FOIA
coordinators. It provides connectivity to the Navy's official website,
to other FOIA and non/FOIA websites, and to the Navy's electronic
reading rooms.
(b) FOIA requesters are encouraged to visit the Navy FOIA website
prior to filing a request. It features a FOIA Handbook which provides:
guidance on how and where to submit requests; what's releasable/what's
not; addresses for frequently requested information; time limits and
addresses for filing appeals, etc. FOIA requesters may also use the
electronic FOIA request form on the website to seek access to records
originated by the Secretary of the Navy (SECNAV) or the Chief of Naval
Operations (CNO).
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Sec. 701.3 Applicability.
(a) Subparts A, B, C, and D of this part apply throughout the
Department of the Navy (DON) and take precedence over other DON
instructions, which may serve to supplement it [i.e., Public Affairs
Regulations, Security Classification Regulations, Navy Regulations,
Marine Corps Orders, etc.]. Further, issuance of supplementary
instructions by DON activities, deemed essential to the accommodation of
perceived requirements peculiar to those activities, may not conflict.
(b) The FOIA applies to ``records'' maintained by ``agencies''
within the Executive Branch of the Federal government, including the
Executive Office of the President and independent regulatory agencies.
It states that ``any person'' (U.S. citizen; foreigner, whether living
inside or outside the United States; partnerships; corporations;
associations; and foreign and domestic governments) has the right
enforceable by law, to access Federal agency records, except to the
extent that such records (or portions thereof) are protected from
disclosure by one or more of the nine FOIA exemptions or one of three
special law enforcement exclusions.
(c) Neither Federal agencies nor fugitives from justice may use the
FOIA to access agency records.
(d) The Department of Defense (DoD) FOIA directive states that the
FOIA programs of the U.S. Atlantic Command and the U.S. Pacific Command
fall under the jurisdiction of the Department of Defense and not the
Department of the Navy. This policy represents an exception to the
policies directed under DoD Directive 5100.3, ``Support of the
Headquarters of Unified, Specified, and Subordinate Commands.''
Sec. 701.4 Responsibility and authority.
(a) The Head, DON PA/FOIA Policy Branch [CNO (N09B30)] has been
delegated the responsibility for managing the DON's FOIA program, which
includes setting FOIA policy and administering, supervising, and
overseeing the execution of the 5 U.S.C. 552 and Department of Defense
Directives 5400.7 and 5400.7-R series, Department of Defense Freedom of
Information Act Program (see 32 CFR part 286).
(1) As principal DON FOIA policy official, CNO (N09B30) issues
SECNAV Instruction 5720.42; oversees the administration of the DON FOIA
program; issues and disseminates FOIA policy; oversees the Navy FOIA
website; represents the DON at all meetings, symposiums, and conferences
that address FOIA matters; writes the Navy's FOIA Handbook; serves on
FOIA boards and committees; serves as principal policy advisor and
oversight official on all FOIA matters; prepares the DON Annual FOIA
Report for submission to the Attorney General; reviews all FOIA appeals
to determine trends that impact on the DON; reviews all FOIA litigation
matters involving the DON and apprises the Director, Freedom of
Information and Security Review, DoD of same; responds to depositions
and litigation regarding DON FOIA policy Secretary of the Navy
Instruction 5820.8A, Release of Information for Litigation Purposes and
Testimony by DON Personnel; reviews/analyzes all proposed FOIA
legislation to determine its impact on the DON; develops a Navy-wide
FOIA training program and serves as training oversight manager; conducts
staff assistance visits/reviews within the DON to ensure compliance with
5 U.S.C. 552 and this part; reviews all SECNAV and Operations Navy
instructions/forms that address FOIA; and oversees the processing of
FOIA requests received by SECNAV and Chief of Naval Operations (CNO), to
ensure responses are complete, timely, and accurate. Additionally,
N09B30 works closely with other DoD and DON officials to ensure they are
aware of highly visible and/or sensitive FOIA requests being processed
by the DON.
(2) SECNAV has delegated Initial Denial Authority (IDA) to N09B30
for requests at the Secretariat and OPNAV level.
(b) The Commandant of the Marine Corps is delegated responsibility
for administering and supervising the execution of this instruction
within the Marine Corps. To accomplish this task, the Director of
Administrative Resource Management (Code ARAD) serves as the FOIA
Coordinator for Headquarters, U.S. Marine Corps, and
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assists CNO (N09B30) in promoting the Department of the Navy FOIA
Program by issuing a Marine Corps FOIA Handbook; utilizing the Marine
Corps FOIA website to disseminate FOIA information; consolidating its
activities Annual FOIA Reports and submitting it to CNO (N09B30);
maintaining a current list of Marine Corps FOIA coordinators, etc.
(c) The DON Chief Information Officer (DONCIO) is responsible for
preparing and making publicly available upon request an index of all DON
major information systems and a description of major information and
record locator systems maintained by the Department of the Navy as
required by 5 U.S.C. 552 and DoD 5400.7-R, ``DoD Freedom of Information
Act Program.''
(d) FOIA coordinators will:
(1) Implement and administer a local FOIA program under this
instruction; serve as principal point of contact on FOIA matters; issue
a command/activity instruction that implements SECNAVINST 5740.42F by
reference and highlights only those areas unique to the command/activity
(i.e., designate the command/activity's FOIA Coordinator and IDA;
address internal FOIA processing procedures; and address command/
activity level FOIA reporting requirements); receive and track FOIA
requests to ensure responses are made in compliance with 5 U.S.C. 552
and DoD Directives 5400.7 and 5400.7-R and this part; provide general
awareness training to command/activity personnel on the provisions of 5
U.S.C. 552 and this instruction; collect and compile FOIA statistics and
submit a consolidated Annual FOIA Report to Echelon 2 FOIA coordinator
for consolidation; provide guidance on how to process FOIA requests; and
provide guidance on the scope of FOIA exemptions.
(2) Additionally, CMC (ARAD) and Echelon 2 FOIA coordinators will:
(i) Ensure that reading room materials are placed in the activity's
electronic reading room and that the activity's website is linked to the
Navy FOIA website and the activity's reading room is linked to the
Navy's FOIA reading room lobby. Documents placed in the reading room
shall also be indexed as a Government Information Locator Service (GILS)
record, as this will serve as an index of available records.
(ii) Review proposed legislation and policy recommendations that
impact the FOIA and provide comments to CNO (N09B30).
(iii) Review SECNAVINST 5720.42F and provide recommended changes/
comments to CNO (N09B30).
(iv) Routinely conduct random staff assistance visits/reviews/self-
evaluations within the command and lower echelon commands to ensure
compliance with FOIA.
(v) Collect and compile command and feeder reports for the Annual
FOIA Report and provide a consolidated report to CNO (N09B30).
(vi) Maintain a listing of their subordinate activities' FOIA
coordinators to include full name, address, and telephone (office and
fax) and place on their website.
Note to paragraph (d)(2)(vi): Do not place names of FOIA
coordinators who are overseas, routinely deployable or in sensitive
units on the website. Instead just list ``FOIA Coordinator'')
(vii) Notify CNO (N09B30) of any change of name, address, office
code and zip code, telephone and facsimile number, and/or e-mail address
of Echelon 2 FOIA Coordinators.
(viii) Conduct overview training to ensure all personnel are
knowledgeable of the FOIA and its requirements. See Sec. 701.12.
(ix) Work closely with the activity webmaster to ensure that
information placed on the activity's website does not violate references
in paragraphs (a), (c) and (f).
(e) Initial Denial Authorities (IDAs). The following officials are
delegated to serve as Initial Denial Authorities, on behalf of SECNAV
(see Sec. 701.30 for definition):
(1) Under Secretary of the Navy; Deputy Under Secretary of the Navy;
Assistant Secretaries of the Navy (ASNs) and their principal deputy
assistants; Assistant for Administration (SECNAV); Director,
Administrative Division (SECNAV); Special Assistant for Legal and
Legislative Affairs (SECNAV); Director, Office of Program Appraisal
(SECNAV); DONCIO; Director, Small and Disadvantaged Business
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Utilization (SECNAV); Chief of Information (CHINFO); Director, Navy
International Programs Office; Chief of Legislative Affairs; CNO; Vice
CNO; Director, Naval Nuclear Propulsion Program (NOON); Director, Navy
Staff (N09B); Head, DON PA/FOIA Policy Branch (N09B30); Director of
Naval Intelligence (N2); Director of Space, Information Warfare, Command
and Control (N6); Director of Navy Test & Evaluation & Technology
Requirements (N091); Surgeon General of the Navy (N093); Director of
Naval Reserve (N095); Oceanographer of the Navy (N096); Director of
Religious Ministries/Chief of Chaplains of the Navy (N097); all Deputy
Chiefs of Naval Operations; Chief of Naval Personnel; Director,
Strategic Systems Programs; Chief, Bureau of Medicine and Surgery;
Director, Office of Naval Intelligence; Naval Inspector General; Auditor
General of the Navy; Commanders of the Naval Systems Commands; Chief of
Naval Education and Training; Commander, Naval Reserve Force; Chief of
Naval Research; Director, Naval Criminal Investigative Service; Deputy
Commander, Naval Legal Service Command; Commander, Navy Personnel
Command; Director, Naval Center of Cost Analysis; Commander, Naval
Meteorology and Oceanography Command; Director, Naval Historical Center;
heads of DON staff offices, boards, and councils; Program Executive
Officers; and all general officers.
(2) Within the Marine Corps: CMC and his Assistant, Chief of Staff,
Deputy Chiefs of Staff; Director, Personnel Management Division; Fiscal
Director of the Marine Corps; Counsel for the Commandant; Director of
Intelligence; Director, Command, Communications and Computer Systems
Division; Legislative Assistant to the Commandant; Director, Judge
Advocate Division; Inspector General of the Marine Corps; Director,
Manpower, Plans, and Policy Division; Head, Freedom of Information and
Privacy Acts Section, HQMC; Director of Public Affairs; Director of
Marine Corps History and Museums; Director, Personnel Procurement
Division; Director, Morale Support Division; Director, Human Resources
Division; Director of Headquarters Support; commanding generals;
directors, Marine Corps districts; commanding officers, not in the
administrative chain of command of a commanding general or district
director. For each official listed above, the deputy or principal
assistant is also authorized denial authority.
(3) JAG and his Deputy and the DON General Counsel (DONGC) and his
deputies are excluded from this grant of authorization, since SECNAV has
delegated them to serve as his appellate authorities. However, they are
authorized to designate IDA responsibilities to other senior officers/
officials within JAG and DONGC. DONGC has delegated IDA responsibilities
to the Assistant General Counsels and the Associate General Counsel
(Litigation).
(4) For the shore establishment and operating forces: All officers
authorized by Article 22, Uniform Code of Military Justice (UCMJ) or
designated in section 0120, Manual of the Judge Advocate General
(JAGINST 5800.7C) to convene general courts-martial.
(5) IDAs must balance their decision to centralize denials for the
purpose of promoting uniform decisions against decentralizing denials to
respond to requests within the FOIA time limits. Accordingly, the IDAs
listed in paragraphs (e)(1) through (4) are authorized to delegate
initial denial authority to subordinate activities for the purpose of
streamlining FOIA processing. They may also delegate authority to a
specific staff member, assistant, or individuals acting during their
absence if this serves the purpose of streamlining and/or complying with
the time limits of FOIA.
Note to paragraph (e)(5): Such delegations shall be limited to
comply with DoD Directive 5400.7, ``DoD Freedom of Information Act
Program''.)
(6) Delegations of IDA authority should be reflected in the
activity's supplementing FOIA instruction or by letter, with a copy to
CNO (N09B30) or CMC (ARAD), as appropriate.
(f) Release authorities. Release authorities are authorized to grant
requests on behalf of the Office of the Secretary of the Navy for agency
records under their possession and control for which no FOIA exemption
applies; to respond to requesters concerning refinement of their
requests; to
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provide fee estimates; and to offer appeal rights for adequacy of search
or fee estimates to the requester.
(g) Appellate authorities are addressed in Sec. 701.12.
Sec. 701.5 Policy.
(a) Compliance with the FOIA. DON policy is to comply with the FOIA
as set forth in the Department of Defense's FOIA Directives 5400.7 and
5400.7-R, and this instruction in this part in both letter and spirit;
conduct its activities in an open manner consistent with the need for
security and adherence to other requirements of law and regulation; and
provide the public with the maximum amount of accurate and timely
information concerning its activities.
(b) Prompt action. DON activities shall act promptly on requests
when a member of the public complies with the procedures established in
the instruction in this part (i.e., files a ``perfected request'') and
the request is received by the official designated to respond. See
Sec. 701.11 for minimum requirements of the FOIA.
(c) Provide assistance. DON activities shall assist requesters in
understanding and complying with the procedures established by the
instruction in this part, ensuring that procedural matters do not
unnecessarily impede a requester from obtaining DON records promptly.
(d) Grant access. (1) DON activities shall grant access to agency
records when a member of the public complies with the provisions of the
instruction in this part and there is no FOIA exemption available to
withhold the requested information (see subpart D of this part).
(2) In those instances where the requester has not cited FOIA, but
the records are determined to be releasable in their entirety, the
request shall be honored without requiring the requester to invoke FOIA.
(e) Create a record. (1) A record must exist and be in the
possession and control of the DON at the time of the request to be
considered subject to the instruction in this part and the FOIA.
Accordingly, DON activities need not process requests for records which
are not in existence at the time the request is received. In other
words, requesters may not have a ``standing FOIA request'' for release
of future records.
(2) There is no obligation to create, compile, or obtain a record to
satisfy a FOIA request. However, this is not to be confused with
honoring form or format requests (see Sec. 701.8). A DON activity,
however, may compile a new record when so doing would result in a more
useful response to the requester, or be less burdensome to the agency
than providing existing records, and the requester does not object. Cost
of creating or compiling such a record may not be charged to the
requester unless the fee for creating the record is equal to or less
than the fee which would be charged for providing the existing record.
Fee assessments shall be in accordance with subpart C of this part.
(3) With respect 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 responding to FOIA
requests for electronic data where creation of a record, programming, or
particular format are questionable, DON activities should apply a
standard of reasonableness. In other words, if the capability exists to
respond to the request, and the effort would be a business as usual
approach, then the request should be processed. However, the request
need not be processed when the capability to respond does not exist
without a significant expenditure of resources, thus not being a normal
business as usual approach. As used in this sense, a significant
interference with the operation of the DON activity's automated
information system would not be a business as usual approach.
(f) Disclosures--(1) Discretionary Disclosures. DON activities shall
make discretionary disclosures whenever disclosure would not foreseeably
harm an interest protected by a FOIA exemption. A discretionary
disclosure is normally not appropriate for records clearly exempt under
exemptions (b)(1), (b)(3), (b)(4), (b)(6), (b)(7)(C) and (b)(7)(F).
Exemptions (b)(2), (b)(5), and (b)(7)(A),
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(b)(7)(B), (b)(7)(D) and (b)(7)(E) are discretionary in nature and DON
activities are encouraged to exercise discretion whenever possible.
Exemptions (b)(4), (b)(6), and (b)(7)(C) cannot be claimed when the
requester is the ``submitter'' of the information. While discretionary
disclosures to FOIA requesters constitute a waiver of the FOIA exemption
that may otherwise apply, this policy does not create any legally
enforceable right.
(2) Public domain. Non-exempt records released under FOIA to a
member of the public are considered to be in the public domain.
Accordingly, such records may also be made available in reading rooms,
in paper form, as well as electronically to facilitate public access.
(3) Limited disclosures. Disclosure of records to a properly
constituted advisory committee, to Congress, or to other Federal
agencies does not waive a FOIA exemption.
(4) Unauthorized disclosures. Exempt records disclosed without
authorization by the appropriate DON official do not lose their exempt
status.
(5) Official versus personal disclosures. While authority may exist
to disclose records to individuals in their official capacity, the
provisions of the instruction in this part apply if the same individual
seeks the records in a private or personal capacity.
(6) Distributing information. DON activities are encouraged to
enhance access to information by distributing information on their own
initiative through the use of electronic information systems, such as
the Government Information Locator Service (GILS).
(g) Honor form or format requests. DON activities shall provide the
record in any form or format requested by the requester, if the record
is readily reproducible in that form or format. DON activities shall
make reasonable efforts to maintain their records in forms or formats
that are reproducible. In responding to requests for records, DON
activities shall make reasonable efforts to search for records in
electronic form or format, except when such efforts would significantly
interfere with the operation of the DON activities' automated
information system. Such determinations shall be made on a case-by-case
basis.
(h) Authenticate documents. Records provided under the instruction
in this part shall be authenticated with an appropriate seal, whenever
necessary, to fulfill an official Government or other legal function.
This service, however, is in addition to that required under the FOIA
and is not included in the FOIA fee schedule. DON activities may charge
for the service at a rate of $5.20 for each authentication.
Sec. 701.6 Reading rooms.
The FOIA requires that (a)(2) records created on or after 1 November
1996, be made available electronically (starting 1 November 1997) as
well as in hard copy, in the FOIA reading room for inspection and
copying, unless such records are published and copies are offered for
sale. DoD 5400.7-R, ``DoD Freedom of Information Act Program,'' requires
that each DoD Component provide an appropriate facility or facilities
where the public may inspect and copy or have copied the records held in
their reading rooms. To comply, the Navy FOIA website includes links
that assist members of the public in locating Navy libraries, online
documents, and Navy electronic reading rooms maintained by SECNAV/CNO,
CMC, OGC, JAG and Echelon 2 commands. Although each of these activities
will maintain their own document collections on their own servers, the
Navy FOIA website provides a common gateway for all Navy online
resources. To this end, DON activities shall:
(a) Establish their reading rooms and link them to the Navy FOIA
Reading Room Lobby which is found on the Navy FOIA website.
(b) Ensure that responsive documents held by their subordinate
activities are also placed in the reading room.
Note to paragraph (b): SECNAV/ASN and OPNAV offices shall ensure
that responsive documents are provided to CNO (N09B30) for placement in
the reading room.)
(c) Ensure that documents placed in a reading room are properly
excised to preclude the release of personal or contractor-submitted
information prior to being made available to the public. In every case,
justification for the deletion must be fully explained in writing,
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and the extent of such deletion shall be indicated on the record which
is made publicly available, unless such indication would harm an
interest protected by an exemption under which the deletion was made. If
technically feasible, the extent of the deletion in electronic records
or any other form of record shall be indicated at the place in the
record where the deletion was made. However, a DON activity may publish
in the Federal Register a description of the basis upon which it will
delete identifying details of particular types of records to avoid
clearly unwarranted invasions of privacy, or competitive harm to
business submitters. In appropriate cases, the DON activity may refer to
this description rather than write a separate justification for each
deletion. DON activities may remove (a)(2)(D) records from their
electronic reading room when the appropriate officials determine that
access is no longer necessary.
(d) Should a requester submit a FOIA request for FOIA-processed
(a)(2) records, and insist that the request be processed, DON activities
shall process the FOIA request. However, DON activities have no
obligation to process a FOIA request for 5 U.S.C. 552(a)(2)(A), (B), and
(C) [5 U.S.C. 552] records because these records are required to be made
public and not FOIA-processed under paragraph (a)(3) of the FOIA.
(e) DON activities may share reading room facilities if the public
is not unduly inconvenienced. When appropriate, the cost of copying may
be imposed on the person requesting the material in accordance with FOIA
fee guidelines (see subpart C of this part).
(f) DON activities shall maintain an index of all available
documents. A general index of FOIA-processed (a)(2) records shall be
made available to the public, both in hard copy and electronically by 31
December 1999. To comply with this requirement, DON activities shall
establish a GILS record for each document it places in a reading room.
No (a)(2) materials issued or adopted after 4 July 1967, that are not
indexed and either made available or published may be relied upon, used
or cited as precedent against any individual unless such individual has
actual and timely notice of the contents of such materials. Such
materials issued or adopted before 4 July 1967, need not be indexed, but
must be made available upon request if not exempted under the
instruction in this part.
(g) An index and copies of unclassified Navy instructions, forms,
and addresses for DON activities (i.e., the Standard Navy Distribution
List (SNDL) are located on the Navy Electronics Directives System
(http://neds.nebt.daps.mil/).
(h) DON material published in the Federal Register, such as material
required to be published by Section 552(a)(1) of the FOIA, shall be made
available by JAG in their FOIA reading room and electronically to the
public.
(i) Although not required to be made available in response to FOIA
requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials
may, when feasible, be made available to the public in FOIA reading
rooms for inspection and copying, and by electronic means. Examples of
``(a)(1)'' materials are: descriptions of an agency's central and field
organization, and to the extent they affect the public, rules of
procedures, descriptions of forms available, instruction as to the scope
and contents of papers, reports, or examinations, and any amendment,
revision, or report of the aforementioned.
Sec. 701.7 Relationship between the FOIA and PA.
Not all requesters are knowledgeable of the appropriate statutory
authority to cite when requesting records. In some instances, they may
cite neither Act, but will imply one or both Acts. For these reasons,
the following guidelines are provided to ensure requesters receive the
greatest amount of access rights under both Acts:
(a) If the record is required to be released under the FOIA, the PA
does not bar its disclosure. Unlike the FOIA, the PA applies only to
U.S. citizens and aliens admitted for permanent residence. Subpart F of
this part implements the DON's Privacy Act Program.
(b) Requesters who seek records about themselves contained in a PA
system of records and who cite or imply only the PA, will have their
requests processed under the provisions of both the PA and the FOIA. If
the PA
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system of records is exempt from the provisions of 5 U.S.C. 552a(d)(1)
and the records, or any portion thereof are exempt under the FOIA, the
requester shall be so advised with the appropriate PA and FOIA
exemption. Appeals shall be processed under both Acts.
(c) Requesters who seek records about themselves that are not
contained in a PA system of records and who cite or imply the PA will
have their requests processed under the provisions of the FOIA, since
the PA does not apply to these records. Appeals shall be processed under
the FOIA.
(d) Requesters who seek records about themselves that are contained
in a PA system of records and who cite or imply the FOIA or both Acts
will have their requests processed under the provisions of both the PA
and the FOIA. If the PA system of records is exempt from the provisions
of 5 U.S.C. 552a(d)(1), and the records, or any portion thereof are
exempt under the FOIA, the requester shall be so advised with the
appropriate PA and FOIA exemption. Appeals shall be processed under both
Acts.
(e) Requesters who seek access to agency records that are not part
of a PA system of records, and who cite or imply the PA and FOIA, will
have their requests processed under FOIA, since the PA does not apply to
these records. Appeals shall be processed under the FOIA.
(f) Requesters who seek access to agency records and who cite or
imply the FOIA will have their requests and appeals processed under the
FOIA.
(g) Requesters shall be advised in final responses which Act(s) was
(were) used, inclusive of appeal rights.
(h) The time limits for responding to the request will be determined
based on the Act cited. For example, if a requester seeks access under
the FOIA for his or her personal records which are contained in a PA
system of records, the time limits of the FOIA apply.
(i) Fees will be charged based on the kind of records being
requested (i.e., FOIA fees if agency records are requested; PA fees for
requesters who are seeking access to information contained in a PA
system of record which is retrieved by their name and/or personal
identifier).
Sec. 701.8 Processing FOIA requests.
Upon receipt of a FOIA request, DON activities shall:
(a) Review the request to ensure it meets the minimum requirements
of the FOIA to be processed.
(1) Minimum requirements of a FOIA request. A request must be in
writing; cite or imply FOIA; reasonably describe the records being
sought so that a knowledgeable official of the agency can conduct a
search with reasonable effort; and if fees are applicable, the requester
should include a statement regarding willingness to pay all fees or
those up to a specified amount or request a waiver or reduction of fees.
(2) If a request does not meet the minimum requirements of the FOIA,
DON activities shall apprise the requester of the defect and assist him/
her in perfecting the request.
Note to paragraph (a)(2): The statutory 20 working day time limit
applies upon receipt of a ``perfected'' FOIA request.)
(b) When a requester or his/her attorney requests personally
identifiable information in a record, the request may require a
notarized signature or a statement certifying under the penalty of
perjury that their identity is true and correct. Additionally, written
consent of the subject of the record is required for disclosure from a
Privacy Act System of records, even to the subject's attorney.
(c) Review description of requested record(s). (1) The FOIA
requester is responsible for describing the record he/she seeks so that
a knowledgeable official of the activity can locate the record with a
reasonable amount of effort. In order to assist DON activities in
conducting more timely searches, a requester should endeavor to provide
as much identifying information as possible. When a DON activity
receives a request that does not reasonably describe the requested
record, it shall notify the requester of the defect in writing. The
requester should be asked to provide the type of information outlined in
this paragraph. DON activities are not obligated to act on the request
until the requester responds to the
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specificity letter. When practicable, DON activities shall offer
assistance to the requester in identifying the records sought and in
reformulating the request to reduce the burden on the agency in
complying with the FOIA. The following guidelines are provided to deal
with generalized requests and are based on the principle of reasonable
effort. Descriptive information about a record may be divided into two
broad categories.
(i) Category I is file-related and includes information such as type
of record (for example, memorandum), title, index citation, subject
area, date the record was created, and originator.
(ii) Category II is event-related and includes the circumstances
that resulted in the record being created or the date and circumstances
surrounding the event the record covers.
(2) Generally, a record is not reasonably described unless the
description contains sufficient Category I information to permit the
conduct of an organized, non random search based on the DON activity's
filing arrangements and existing retrieval systems, or unless the record
contains sufficient Category II information to permit inference of the
Category I elements needed to conduct such a search.
(3) The following guidelines deal with requests for personal
records: Ordinarily, when personal identifiers are provided solely in
connection with a request for records concerning the requester, only
records in Privacy Act system of records that can be retrieved by
personal identifiers need be searched. However, if a DON activity has
reason to believe that records on the requester may exist in a record
system other than a PA system, the DON activity shall search the system
under the provisions of the FOIA. In either case, DON activities may
request a reasonable description of the records desired before searching
for such records under the provisions of the FOIA and the PA. If the
records are required to be released under the FOIA, the PA does not bar
its disclosure.
(4) The guidelines in paragraph (c)(3) notwithstanding, the decision
of the DON activity concerning reasonableness of description must be
based on the knowledge of its files. If the description enables the DON
activity personnel to locate the record with reasonable effort, the
description is adequate. The fact that a FOIA request is broad or
burdensome in its magnitude does not, in and of itself, entitle a DON
activity to deny the request on the ground that it does not reasonably
describe the records sought. The key factor is the ability of the staff
to reasonably ascertain and locate which records are being requested.
(d) Review request to determine if FOIA fees may be applicable. (1)
FOIA fee issues shall be resolved before a DON activity begins
processing a FOIA request.
(2) FOIA fees shall be at the rates prescribed at subpart C of this
part.
(3) If fees are applicable, a requester shall be apprised of what
category of requester he/she has been placed and provided a complete
breakout of fees to include any and all information provided before fees
are assessed (e.g., first two hours of search and first 100 pages of
reproduction have been provided without charge.)
(4) Forms DD 2086 (for FOIA requests) and 2086-1 (for FOIA requests
for technical data) serve as an administrative record of all costs
incurred to process a request; actual costs charged to a requester
(i.e., search, review, and/or duplication and at what salary level and
the actual time expended); and as input to the Annual FOIA Report.
Requesters may request a copy of the applicable form to review the time
and costs associated with the processing of a request.
(5) Final response letters shall address whether or not fees are
applicable or have been waived. A detailed explanation of FOIA fees is
provided at subpart C of this part.
(e) Control FOIA Request. Each FOIA request should be date stamped
upon receipt; given a case number; and entered into a formal control
system to track the request from receipt to response. Coordinators may
wish to conspicuously stamp, label, and/or place the request into a
brightly colored folder/cover sheet to ensure it receives immediate
attention by the action officer.
(f) Enter request into multitrack processing system. When a DON
activity has
[[Page 55]]
a significant number of pending requests that prevents a response
determination being made within 20 working days, the requests shall be
processed in a multitrack processing system, based on the date of
receipt, the amount of work and time involved in processing the
requests, and whether the request qualifies for expedited processing.
(1) DON activities may establish as many queues as they wish,
however, at a minimum three processing tracks shall be established, all
based on a first-in, first-out concept, and rank ordered by the date of
receipt of the request: one track for simple requests, one track for
complex requests, and one track for expedited processing. Determinations
as to whether a request is simple or complex shall be made by each DON
activity.
(2) DON activities shall provide a requester whose request does not
qualify for the fastest queue (except for expedited processing), an
opportunity to limit in writing by hard copy, facsimile, or
electronically the scope of the request in order to qualify for the
fastest queue.
(3) This multitrack processing system does not obviate the
activity's responsibility to exercise due diligence in processing
requests in the most expeditious manner possible.
(4) Referred requests shall be processed according to the original
date received by the initial activity and then placed in the appropriate
queue.
(5) Establish a separate queue for expedited processing. A separate
queue shall be established for requests meeting the test for expedited
processing. Expedited processing shall be granted to a requester after
the requester requests such and demonstrates a compelling need for the
information. Notice of the determination as to whether to grant
expedited processing in response to a requester's compelling need shall
be provided to the requester within 10 calendar days after receipt of
the request in the office which will determine whether to grant
expedited access. Once the determination has been made to grant
expedited processing, DON activities shall process the request as soon
as practicable. Actions by DON activities 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.
(i) Compelling need means that the failure to obtain the records on
an expedited basis could reasonably be expected to pose an imminent
threat to the life or physical safety of an individual.
(ii) Compelling need also means that the information is urgently
needed by an individual primarily engaged in disseminating information
in order to inform the public concerning actual or alleged Federal
Government activity. An individual primarily engaged in disseminating
information means a person whose primary activity involves publishing or
otherwise disseminating information to the public. Representatives of
the news media would normally qualify as individuals primarily engaged
in disseminating information. Other persons must demonstrate that their
primary activity involves publishing or otherwise disseminating
information to the public.
(iii) Urgently needed means that the information has a particular
value that will be lost if not disseminated quickly. Ordinarily this
means a breaking news story of general public interest. However,
information of historical interest only, or information sought for
litigation or commercial activities would not qualify, nor would a news
media publication or broadcast deadline unrelated to the news breaking
nature of the information.
(iv) A demonstration of compelling need by a requester shall be made
by a statement certified by the requester to be true and correct to the
best of his/her knowledge. This statement must accompany the request in
order to be considered and responded to within the 10 calendar days
required for decisions on expedited access.
(v) Other reasons that merit expedited processing by DON activities
are an imminent loss of substantial due process rights and humanitarian
need. A demonstration of imminent loss of substantial due process rights
shall be made by a statement certified by the requester to be true and
correct to the best of his/her knowledge. Humanitarian need means that
disclosing the information will promote the welfare
[[Page 56]]
and interests of mankind. A demonstration of humanitarian need shall
also be made by a statement certified by the requester to be true and
correct to the best of his/her knowledge. Both of these statements must
accompany the request in order to be considered and responded to within
the 10 calendar days required for decisions on expedited access. Once
the decision has been made to expedite the request for either of these
reasons, the request may be processed in the expedited processing queue
behind those requests qualifying for compelling need.
(6) These same procedures also apply to requests for expedited
processing of administrative appeals.
(g) Respond to request within FOIA time limits. Once an activity
receives a ``perfected'' FOIA request, it shall inform the requester of
its decision to grant or deny access to the requested records within 20
working days. Activities are not necessarily required to release records
within the 20 working days, but access to releasable records should be
granted promptly thereafter and the requester apprised of when he/she
may expect to receive a final response to his/her request. Naturally,
interim releases of documents are encouraged if appropriate. Sample
response letters are provided on the Navy FOIA website.
(1) If a significant number of requests, or the complexity of the
requests prevents a final response determination within the statutory
time period, DON activities shall advise the requester of this fact, and
explain how the request will be responded to within its multitrack
processing system. A final response determination is notification to the
requester that the records are released, or will be released by a
certain date, or the records are denied under the appropriate FOIA
exemption(s) or the records cannot be provided for one or more of the
``other reasons'' (see Sec. 701.8(n)). Interim responses acknowledging
receipt of the request, negotiations with the requester concerning the
scope of the request, the response timeframe, and fee agreements are
encouraged; however, such actions do not constitute a final response
determination under FOIA.
(2) Formal extension. In those instances where a DON activity cannot
respond within the 20 working day time limit, the FOIA provides for
extension of initial time limits for an additional 10 working days for
three specific situations: the need to search for and collect records
from separate offices; the need to examine a voluminous amount of
records required by the request; and the need to consult with another
agency or agency component. In such instances, naval activities shall
apprise requesters in writing of their inability to respond within 20
working days and advise them of their right to appeal to the appellate
authority.
Note to paragraph (g)(2): Formal extension letters require IDA
signature.)
(3) Informal extension. A recommended alternative to taking a formal
extension is to call the requester and negotiate an informal extension
of time with the requester. The advantages include the ability to agree
on a mutually acceptable date to respond that exceeds a formal extension
of an additional 10 working days, and the letter of confirmation does
not require the signature of an IDA. Additionally, it does not impact on
the additional days the appellate authority may take when responding to
a FOIA appeal.
(h) Conduct a search for responsive records. (1) Conduct a search
for responsive records, keeping in mind a test for reasonableness (i.e.,
file disposition requirements set forth in SECNAVINST 5212.5D, ``Navy
and Marine Corps Records Disposal Manual''). This includes making a
manual search for records as well as an electronic search for records.
Do not assume that because a document is old, it does not exist. Rather,
ensure that all possible avenues are considered before making a
determination that no record could be found (i.e., such as determining
if the record was transferred to a federal records center for holding).
(2) Requesters can appeal ``adequacy of search.'' To preclude
unnecessary appeals, you are encouraged to detail your response letter
to reflect the search undertaken so the requester understands the
process. It is particularly helpful to address the records disposal
requirements set forth in
[[Page 57]]
SECNAVINST 5212.5D, ``Navy and Marine Corps Records Disposal Manual''
for the records being sought.
(i) Review documents for release. Once documents have been located,
the originator or activity having possession and control is responsible
for reviewing them for release and coordinating with other activities/
agencies having an interest. The following procedures should be
followed:
(1) Sort documents by originator and make necessary referrals (see
Sec. 701.9).
(2) Documents for which the activity has possession and control
should be reviewed for release. If the review official determines that
all or part of the documents requested require denial, and the head of
the activity is an IDA, he/she shall respond directly to the requester.
If, however, the activity head is not an IDA, then the request, a copy
of the responsive documents (unexcised), proposed redacted copy of the
documents, and a detailed explanation regarding their release must be
referred to the IDA for a final release determination and the requester
shall be notified in writing of the transfer.
(3) Documents for which the activity does not have possession and
control, but has an interest, should be referred to the originator along
with any recommendations regarding release (see Sec. 701.9).
(j) Process non-responsive information in responsive documents. DON
activities shall interpret FOIA requests liberally when determining
which records are responsive to the requests, and may release non-
responsive information. However, should DON activities desire to
withhold non-responsive information, the following steps shall be
accomplished:
(1) Consult with the requester, and ask if the requester views the
information as responsive, and if not, seek the requester's concurrence
to deletion of non-responsive information without a FOIA exemption.
Reflect this concurrence in the response letter.
(2) If the responsive record is unclassified and the requester does
not agree to deletion of non-responsive information without a FOIA
exemption, release all non-responsive and responsive information which
is not exempt. For non-responsive information that is exempt, notify the
requester that even if the information were determined responsive, it
would likely be exempted (state the appropriate exemption(s).) Advise
the requester of the right to request this information under a separate
FOIA request. The separate request shall be placed in the same location
within the processing queue as the original request.
(3) If the responsive record is classified, and the requester does
not agree to deletion of non-responsive information without a FOIA
exemption, release all unclassified responsive and non-responsive
information which is not exempt. If the non-responsive information is
exempt, follow the procedures provided. The classified, non-responsive
information need not be reviewed for declassification at this point.
Advise the requester than even if the classified information were
determined responsive, it would likely be exempt under 5 U.S.C. 552
(b)(1) and other exemptions if appropriate. Advise the requester of the
right to request this information under a separate FOIA request. The
separate request shall be placed in the same location within the
processing queue as the original request.
(k) Withholding/excising information. (1) DON records may only be
withheld if they qualify for exemption under one or more of the nine
FOIA exemptions/three exclusions and it is determined that a foreseeable
harm to an interest protected by those exemptions would result if the
information is released. There are nine FOIA exemptions. See subpart D
of this part for the scope of each exemption.
(2) Although a FOIA exemption may apply, DON activities are
encouraged to consider discretionary disclosures of information when an
exemption permits such disclosure (see Sec. 701.5(f).)
(3) Excising documents. The excision of information within a
document should be made so that the requester can readily identify the
amount of information being withheld and the reason for the withholding.
Accordingly, ensure that any deletion of information is bracketed and
all applicable exemptions listed. In those instances, where multiple
pages of documents are determined to
[[Page 58]]
be exempt from disclosure in their entirety, indicate the number of
pages being denied and the basis for the denial.
(l) Reasonably segregable information. DON activities must release
all ``reasonably segregable information'' when the meaning of these
portions is not distorted by deletion of the denied portions, and when
it reasonably can be assumed that a skillful and knowledgeable person
could not reasonably reconstruct excised information. When a record is
denied in whole, the response to the requester will specifically state
that it is not reasonable to segregate portions of the record for
release.
(m) Making a discretionary disclosure. A discretionary disclosure to
one requester may preclude the withholding of similar information under
a FOIA exemption if subsequently requested by the same individual or
someone else. The following suggested language should be included with
the discretionary disclosure of any record that could be subject to
withholding: ``The information you requested is subject to being
withheld under section (b)(--) of the FOIA. The disclosure of this
material to you by the DON is discretionary and does not constitute a
waiver of our right to claim this exemption for similar records in the
future.''
(n) Other reasons. There are 10 reasons for not complying with a
request for a record under FOIA:
(1) No record. The DON activity conducts a reasonable search of
files and fails to identify records responsive to the request.
Note to paragraph (n)(1): Requester must be advised that he/she may
appeal the adequacy of search and provided appeal rights. Response
letter does not require signature by IDA.)
(2) Referral. The request is referred to another DoD/DON activity or
to another executive branch agency for their action.
Note to paragraph (n)(2): Referral does not need to be signed by
IDA.)
(3) Request withdrawn. The requester withdraws request.
Note to paragraph (n)(3): Response letter does not require signature
by IDA.)
(4) Fee-related reason. Requester is unwilling to pay fees
associated with the request; is past due in payment of fees from a
previous request; or disagrees with the fee estimate.
Note to paragraph (n)(4): Requester must be advised that he/she may
appeal the fee estimate. Response letter does not require signature by
IDA.)
(5) Records not reasonably described. A record has not been
described with sufficient particularity to enable the DON activity to
locate it by conducting a reasonable search.
Note to paragraph (n)(5): Response letter does not require signature
by IDA.)
(6) Not a proper FOIA request for some other reason. When the
requester fails unreasonably to comply with procedural requirements,
other than those fee-related issues described in paragraph (n)(4),
imposed by the instruction in this part and/or other published rules or
directives.
Note to paragraph (n)(6): Response letter does not require signature
by IDA.)
(7) Not an agency record. When the requester is provided a response
indicating that the requested information was ``not an agency record''
within the meaning of the FOIA and the instruction in this part.
Note to paragraph (n)(7): Response letter does not require signature
by IDA.)
(8) Duplicate request. When a request is duplicative of another
request which has already been completed or currently in process from
the same requester.
Note to paragraph (n)(8): Response letter does not require signature
by IDA.
(9) Other (specify). When a FOIA request cannot be processed because
the requester does not comply with published rules, other than for those
reasons described in paragraphs (n) (1) through (8). DON activities must
document the specific discrepancy.
Note to paragraph (n)(9): Response letter does not require signature
by IDA.)
(10) Denial of request. The record is denied in whole or in part in
accordance with procedures set forth in 5 U.S.C. 552, DoD 5400.7-R, and
the instruction in this part.
[[Page 59]]
Note to paragraph (n)(10): The requester is advised that he/she may
appeal the determination and response letter must be signed by IDA.)
(o) Writing a response letter. FOIA response letters should contain
the following information:
(1) The date of the request; when it was received; if records were
not located, where the search was conducted and what the records
disposal requirements are for those records.
(2) Cut-off dates. Normally, DON activities shall consider the date
of receipt of a FOIA request as the cut-off date for a records search.
Where a DON activity employs a particular cut-off date, however, it
should give notice of that date in the response letter to the requester.
(3) If a request is denied in whole or in part, the denial response
letter should cite the exemption(s) claimed; if possible, delineate the
kinds of information withheld (i.e., social security numbers, date of
birth, home addresses, etc.) as this may satisfy the requester and thus
eliminate an appeal; provide appeal rights, and be signed by an IDA.
However, there is no requirement that the response contain the same
documentation necessary for litigation (i.e., FOIA requesters are not
entitled to a Vaughn index (see definition in Sec. 701.39 during the
administrative process).
(4) The fees charged or waived; if fees were charged, what category
was the requester placed in and provide a breakout of the fees charged
(i.e., the first 2 hours of search were waived and so you are being
charged for the remaining 4 hours of search at $25 per hour, or $100;
the first 100 pages of reproduction were waived and the remaining 400
pages being provided were charged at $.15 per page, resulting in $60 in
reproduction fees, for a total of $160). These figures are derived from
Form DD 2086 (FOIA Fees) or Form DD 2086-1 (Technical Data Fees).
(5) Sample response letters are provided on the Navy FOIA website.
(p) Press responses. Ensure responses being made to the press are
cleared through public affairs channels.
(q) Special mail services. DON activities 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.
Sec. 701.9 Referrals.
(a) The DoD/DON FOIA referral policy is based upon the concept of
the originator of a record making a release determination on its
information. If a DON activity receives a request for records originated
by another DoD/DON activity, it should contact the activity to determine
if it also received the request, and if not, obtain concurrence to refer
the request. In either situation, the requester shall be advised of the
action taken, unless exempt information would be revealed.
(b) While referrals to originators of information result in
obtaining the best possible decision on release of the information, the
policy does not relieve DON activities from the responsibility of making
a release decision on a record should the requester object to referral
of the request and the record. Should this situation occur, DON
activities should coordinate with the originator of the information
prior to making a release determination.
(c) A request received by a DON activity having no records
responsive to a request shall be referred routinely to another DoD/DON
activity, if the other activity has reason to believe it has the
requested record. Prior to notifying a requester of a referral to
another DoD/DON activity, the DON activity receiving the initial request
shall consult with the other DoD/DON activity to determine if that
activity's association with the material is exempt. If the association
is exempt, the activity receiving the initial request will protect the
association and any exempt information without revealing the identity of
the protected activity. The protected activity shall be responsible for
submitting the justifications required in any litigation.
(d) Any DON activity receiving a request that has been misaddressed
shall refer the request to the proper address and advise the requester.
DON activities making referrals of requests or records shall include
with the referral, a point of contact by name, a telephone
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number (commercial and DSN), and an e-mail address (if available).
(e) A DON activity shall refer a FOIA request for a record that it
holds but was originated by another Executive Branch agency, to them for
a release determination and direct response to the requester. 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.
(f) A DON activity may refer a request for a record that it
originated to another activity or agency when the activity or agency has
a valid interest in the record, or the record was created for the use of
the other agency or activity. In such situations, provide the record and
a release recommendation on the record with the referral action. DON
activities should include a point of contact and telephone number in the
referral letter. If that organization is to respond directly to the
requester, apprise the requester of the referral.
(g) Within the DON/DoD, a DON activity shall ordinarily refer a FOIA
request and a copy of the record it holds, but that was originated by
another DON/DoD activity or that contains substantial information
obtained from that activity, to that activity for direct response, after
direct coordination and obtaining concurrence from the activity. The
requester shall be notified of such referral. In any case, DON
activities shall not release or deny such records without prior
consultation with the activity, except as provided in paragraph (c) of
this section.
(h) Activities receiving a referred request shall place it in the
appropriate processing queue based on the date it was initially received
by the referring activity/agency.
(i) Agencies outside the DON that are subject to the FOIA. (1) A DON
activity may refer a FOIA request for any record that originated in an
agency outside the DON or that is based on information obtained from an
outside agency to the agency for direct response to the requester after
coordination with the outside agency, if that agency is subject to FOIA.
Otherwise, the DON activity must respond to the request.
(Note: DON activities shall not refer documents originated by
entities outside the Executive Branch of Government (e.g., Congress,
State and local government agencies, police departments, private citizen
correspondence, etc.), to them for action and direct response to the
requester, since they are not subject to the FOIA).
(2) A DON activity shall refer to the agency that provided the
record any FOIA request for investigative, intelligence, or any other
type of records that are on loan to the DON for a specific purpose, if
the records are restricted from further release and so marked. However,
if for investigative or intelligence purposes, the outside agency
desires anonymity, a DON activity may only respond directly to the
requester after coordination with the outside agency.
Sec. 701.10 Processing requests received from governmental officials.
(a) Members of Congress. Many constituents seek access to
information through their Member of Congress. Members of Congress who
seek access to records on behalf of their constituent are provided the
same information that the constituent would be entitled to receive.
There is no need to verify that the individual has authorized the
release of his/her record to the Congressional member, since the Privacy
Act's ``blanket routine use'' for Congressional inquiries applies.
(b) Privileged release to U.S. Government officials. DON records may
be authenticated and released to U.S. Government officials if they are
requesting them in their official capacity on behalf of Federal
governmental bodies, whether legislative, executive, administrative, or
judicial. To ensure adequate protection of these documents, DON
activities shall inform officials receiving records under the provisions
of this paragraph that those records are exempt from public release
under FOIA. DON activities shall also mark the records as ``Privileged''
and ``Exempt from Public Disclosure'' and annotate any special handling
instructions on the records. Because such releases are not made under
the provisions of the FOIA, they do not impact
[[Page 61]]
on future decisions to release/deny requests for the same records to
other requesters. Examples of privileged releases are:
(1) In response to a request from a Committee or Subcommittee of
Congress, or to either House sitting as a whole.
(2) To the Federal Courts, whenever ordered by officers of the court
as necessary for the proper administration of justice.
(3) To other Federal agencies, both executive and administrative, as
determined by the head of a DON activity or designee.
(c) State or local government officials. Requests from State or
local government officials for DON records are treated the same as any
other requester.
(d) Non-FOIA requests from foreign governments. Requests from
foreign governments that do not invoke the FOIA shall be referred to the
appropriate foreign disclosure channels and the requester so notified.
See Sec. 701.11(c) regarding processing FOIA requests from foreign
governments and/or their officials.
Sec. 701.11 Processing specific kinds of records.
DON activities that possess copies or receive requests for the
following kinds of records shall promptly forward the requests to the
officials named in this section and if appropriate apprise the requester
of the referral:
(a) Classified records. Executive Order 12958 governs the
classification of records.
(1) Glomar response. In the instance where a DON activity receives a
request for records whose existence or nonexistence is itself
classifiable, the DON activity shall refuse to confirm or deny the
existence or non-existence of the records. This response is only
effective as long as it is given consistently. If it were to be known
that an agency gave a ``Glomar'' response only when records do exist and
gave a ``no records'' response otherwise, then the purpose of this
approach would be defeated. A Glomar response is a denial and exemption
(b)(1) is cited and appeal rights are provided to the requester.
(2) Processing classified documents originated by another activity.
DON activities shall refer the request and copies of the classified
documents to the originating activity for processing. If the originating
activity simply compiled the classified portions of the document from
other sources, it shall refer, as necessary, those portions to the
original classifying authority for their review and release
determination and apprise that authority of any recommendations they
have regarding release. If the classification authority for the
information cannot be determined, then the originator of the compiled
document has the responsibility for making the final determination.
Records shall be identified consistent with security requirements. Only
after consultation and approval from the originating activity, shall the
requester be apprised of the referral. In most cases, the originating
activity will make a determination and respond directly to the
requester. In those instances where the originating activity determines
a Glomar response is appropriate, the referring agency shall deny the
request.
(b) Courts-martial records of trial. The release/denial authority
for these records is the Office of the Judge Advocate General (Code 20),
Washington Navy Yard, Building 111, Washington, DC 20374-1111. Promptly
refer the request and/or documents to this activity and apprise the
requester of the referral.
(c) Foreign requests/information. (1) FOIA requests received from
foreign governments/foreign government officials should be processed as
follows:
(i) When a DON activity receives a FOIA request for a record in
which an affected DoD/DON activity has a substantial interest in the
subject matter, or the DON activity receives a FOIA request from a
foreign government, a foreign citizen, or an individual or entity with a
foreign address, the DON activity receiving the request shall provide a
copy of the request to the affected DON activity.
(ii) Upon receiving the request, the affected activity shall review
the request for host nation relations, coordinate with Department of
State as appropriate, and if necessary, provide a
[[Page 62]]
copy of the request to the appropriate foreign disclosure office for
review. Upon request by the affected activity, the DON activity
receiving the initial request shall provide a copy of releasable records
to the affected activity. The affected activity may further release the
records to its host nation after coordination with Department of State
if release is in the best interest of the United States Government. If
the record is released to the host nation government, the affected DON
activity shall notify the DON activity which initially received the
request of the release to the host nation.
(iii) Such processing must be done expeditiously so as not to impede
the processing of the FOIA request by the DON activity that initially
received the request.
(2) Non-U.S. Government Records (i.e., records originated by
multinational organizations such as the North Atlantic Treaty
Organization (NATO), the North American Air Defense (NORAD) and foreign
governments) which are under the possession and control of DON shall be
coordinated prior to a final release determination being made.
Coordination with foreign governments shall be made through the
Department of State.
(d) Government Accounting Office (GAO) documents. (1) On occasion,
the DON receives FOIA requests for GAO documents containing DON
information, either directly from requesters or as referrals from GAO.
Since the GAO is outside of the Executive Branch and therefore not
subject to FOIA, all FOIA requests for GAO documents containing DON
information will be processed by the DON under the provisions of the
FOIA.
(2) In those instances when a requester seeks a copy of an
unclassified GAO report, DON activities may apprise the requester of its
availability from the Director, GAO Distribution Center, ATTN: DHISF,
P.O. Box 6015, Gaithersburg, MD 20877-1450 under the cash sales program.
(e) Judge Advocate General Manual (JAGMAN) investigative records.
These records are no longer centrally processed. Accordingly, requests
for investigations should be directed to the following officials:
(1) JAGMAN Investigations conducted prior to 1 Jul 95--to the Judge
Advocate General (Code 35), Washington Navy Yard, Suite 3000, 1322
Patterson Avenue, SE, Washington, DC 20374-5066.
(2) Command Investigation--to the command that conducted the
investigation.
(3) Litigation-Report Investigation--to the Judge Advocate General
(Code 35), Washington Navy Yard, Suite 3000, 1322 Patterson Avenue, SE,
Washington, DC 20374-5066.
(4) Court or Board of Inquiry--to the Echelon 2 commander over the
command that convened the investigation.
(f) Mailing lists. Numerous FOIA requests are received for mailing
lists of home addresses or duty addresses of DON personnel. Processing
of such requests is as follows:
(1) Home addresses are normally not releasable without the consent
of the individuals concerned. This includes lists of home addresses and
military quarters' addresses without the occupant's name (i.e.,
exemption (b)(6) applies).
(2) Disclosure of lists of names and duty addresses or duty
telephone numbers of persons assigned to units that are stationed in
foreign territories, routinely deployable, or sensitive, has also been
held by the courts to constitute a clearly unwarranted invasion of
personal privacy and must be withheld from disclosure under 5 U.S.C.
552(b)(6). General officers and public affairs officers information is
releasable. Specifically, disclosure of such information poses a
security threat to those service members because it reveals information
about their degree of involvement in military actions in support of
national policy, the type of Navy and/or Marine Corps units to which
they are attached, and their presence or absence from households.
Release of such information aids in the targeting of service members and
their families by terrorists or other persons opposed to implementation
of national policy. Only an extraordinary public
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interest in disclosure of this information can outweigh the need and
responsibility of the DON to protect the tranquility and safety of
service members and their families who repeatedly have been subjected to
harassment, threats, and physical injury. Units covered by this policy
are:
(i) Those located outside of the 50 States, District of Columbia,
Commonwealth of Puerto Rico, Guam, U.S. Virgin Islands, and American
Samoa.
(ii) Routinely deployable units--Those units that normally deploy
from homeport or permanent station on a periodic or rotating basis to
meet operational requirements or participate in scheduled exercises.
This includes routinely deployable ships, aviation squadrons,
operational staffs, and all units of the Fleet Marine Force (FMF).
Routinely deployable units do not include ships undergoing extensive
yard work or those whose primary mission is support of training, e.g.,
yard craft and auxiliary aircraft landing training ships.
(iii) Units engaged in sensitive operations. Those primarily
involved in training for or conduct of covert, clandestine, or
classified missions, including units primarily involved in collecting,
handling, disposing, or storing of classified information and materials.
This also includes units engaged in training or advising foreign
personnel. Examples of units covered by this exemption are nuclear power
training facilities, SEAL Teams, Security Group Commands, Weapons
Stations, and Communications Stations.
(3) Except as otherwise provided, lists containing names and duty
addresses of DON personnel, both military and civilian, who are assigned
to units in the Continental United States (CONUS) and U.S. territories
shall be released regardless of who has initiated the request.
(4) Exceptions to this policy must be coordinated with CNO (N09B30)
or CMC (ARAD) prior to responding to requests, including those from
Members of Congress. The policy in paragraphs (f) (1) through (3) should
be considered when weighing the releasability of the address or
telephone number of a specifically named individual.
(5) DON activities are reminded that e-mail addresses that identify
an individual who is routinely deployable, overseas, or assigned to a
sensitive unit should not be made available. Additionally,
organizational charts for these kinds of units and activities that
identify specific members should not be placed on the Internet.
(g) Medical quality assurance documents. The Chief, Bureau of
Medicine and Surgery (BUMED) is the release/denial authority for all
naval medical quality assurance documents as defined by Title 10, United
States Code, Section 1102. Requests for medical quality assurance
documents shall be promptly referred to BUMED and the requester notified
of the referral.
(h) Mishap investigation reports (MIRs). The Commander, Naval Safety
Center (NAVSAFECEN) is the release/denial authority for all requests for
mishap investigations or documents which contain mishap information. All
requests or documents located which apply shall be promptly referred to
the Commander, Naval Safety Center, Code 503, 375 A Street, Norfolk, VA
23511-4399 for action. Telephonic liaison with NAVSAFECEN is encouraged.
The requester shall be notified of the referral.
(i) National Security Council (NSC)/White House. (1) DON activities
that receive requests for records of NSC, the White House, or the White
House/Military Office (WHMO) shall process the requests.
(2) DON records in which the NSC or the White House has a concurrent
reviewing interest, and NSC, White House, or WHMO records discovered in
DON activity files, shall be forwarded to CNO (N09B30), 2000 Navy
Pentagon, Washington, DC 20350-2000. N09B30, in turn, will coordinate
the request directly with DFOISR, so DFOISR can coordinate the request
with NSC, White House, or WHMO. After coordination, the records will be
returned to the DON activity for their direct response to the requester.
During the interim, DON activities should notify the requester that they
are coordinating their request and a response will therefore be delayed.
(j) Naval attache documents/information. The Director, Defense
Intelligence Agency (DIA) has the responsibility for
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reviewing for release/denial any naval attache-originated documents/
information. Accordingly, FOIA requests for naval attache documents or
copies of the documents located in DON files or referred in error to a
DON activity shall be promptly referred to the Chief, Freedom of
Information Act Staff, Defense Intelligence Agency (SVI-1), Washington,
DC 20340-5100 for action and direct response to the requester. Ensure
that the requester is notified in writing of the transfer to DIA.
(k) Naval Audit Service reports. The Director, Naval Audit Service
is the release/denial authority for their reports. All requests or
documents located which apply shall be promptly referred to the
Director, Naval Audit Service, 5611 Columbia Pike, NASSIF Building,
Falls Church, VA 22041-5080 for action. The requester shall be notified
of the referral.
(l) Naval Criminal Investigative Service (NCIS) reports. The
Director, NCIS is the release/denial authority for all NCIS reports/
information. All requests for and copies of NCIS reports located in DON
activity files shall be promptly referred to the Director, NCIS (Code
OOJF), Washington Navy Yard, Building 111, 716 Sicard Street, SE,
Washington, DC 20388-5380 for action and, if appropriate, the requester
so notified. Telephonic liaison with NCIS Headquarters is strongly
encouraged.
(m) Naval Inspector General (NAVINSGEN) reports. (1) NAVINSGEN is
the release/denial authority for all investigations and inspections
conducted by or at the direction of NAVINSGEN and for any records held
by any command that relate to Navy hotline complaints that have been
referred to the NAVINSGEN. Accordingly, such actions shall be promptly
referred to the Naval Inspector General (Code OOL), Building 200, Room
100, Washington Navy Yard, 901 M Street, SE, Washington, DC 20374-5006
for action and, if appropriate, the requester so notified.
(2) Requests for local command inspector general reports which have
not been referred to NAVINSGEN should be processed by the command that
conducted the investigation and NAVINSGEN advised as necessary.
(3) The Deputy Naval Inspector General for Marine Corps Matters
(DNIGMC) is the release/denial authority for all investigations
conducted by the DNIGMC. Requests for local Marine Corps command
Inspector General reports shall be coordinated with the DNIGMC.
(n) Naval Nuclear Propulsion Information (NNPI). The Director, Naval
Nuclear Propulsion Program (CNO (NOONB)/NAVSEA (08)) is the release/
denial authority for all information and requests concerning NNPI. Naval
activities receiving such requests are responsible for searching their
files for responsive records. If no documents are located, the naval
activity shall respond to the requester and provide CNO (NOONB) with a
copy of the request and response. If documents are located, the naval
activity shall refer the request, responsive documents, and a
recommendation regarding release to the Director, Naval Nuclear
Propulsion Program (NOONB), 2000 Navy Pentagon, Washington, DC 20350-
2000, who will make the final release determination to the requester,
after coordinating the release through DoD activities.
(o) Naval Telecommunications Procedures (NTP) publications. The
Commander, Naval Computer and Telecommunications Command is the release/
denial authority for NTP publications. All requests or documents located
which apply shall be promptly referred to the Commander, Naval Computer
and Telecommunications Command (Code NOOJ), 4401 Massachusetts Avenue,
NW, Washington, DC 20394-5460 for action and direct response to the
requester.
(p) News media requests. (1) Respond promptly to requests received
from news media representatives through public information channels, if
the information is releasable under FOIA. This eliminates the
requirement to invoke FOIA and may result in timely information being
made available to the public.
(2) In those instances where records/information are not releasable,
either in whole or in part, or are not currently available for a release
consideration, Public Affairs Officers shall
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promptly advise the requester of where and how to submit a FOIA request.
(3) DON activities receiving and processing requests from members of
the press shall ensure that responses are cleared through their public
affairs channels.
(q) Records originated by other government agencies. (1) A DON
activity may refer a FOIA request for any record that originated in an
agency outside the DON or that is based on information obtained from an
outside agency to the cognizant agency for direct response to the
requester after coordination with the outside agency, if that agency is
subject to FOIA. Otherwise, the DON activity must respond to the
request.
(2) A DON activity shall refer to the agency that provided the
record any FOIA request for investigative, intelligence, or any other
type of records that are on loan to the DON for a specific purpose, if
the records are restricted from further release and so marked. However,
if for investigative or intelligence purposes, the outside agency
desires anonymity, a DON activity may only respond directly to the
requester after coordination with the outside agency.
(r) Submitter documents. (1) When a request is received for a record
containing confidential commercial information that was submitted to the
Government, the requirements of Executive Order 12600 shall apply.
Specifically, the submitter shall be notified of the request
(telephonically, by letter, or by facsimile) and afforded a reasonable
amount of time (anywhere from 2 weeks to a month depending on the
circumstances) to present any objections concerning release, unless it
is clear there can be no valid basis for objection. For example, the
record was provided with actual or presumptive knowledge of the
submitter that it would be made available to the public upon request.
(2) The DON activity will evaluate any objections and negotiate with
the submitter as necessary. When a substantial issue has been raised,
the DON activity may seek additional information from the submitter and
afford the submitter and requester reasonable opportunities to present
their arguments in legal and substantive issues prior to making an
agency determination.
(3) The final decision to disclose information claimed to be exempt
under exemption (b)(4) shall be made by an official at least equivalent
in rank to the IDA and the submitter advised that he or she may seek a
restraining order or take court action to prevent the release. The
submitter is given 10 days to take action.
(4) Should the submitter take such action, the requester will be
notified and no action will be taken on the request until the outcome of
the court action is known.
(s) Technical Documents Controlled by Distribution Statements B, C,
D, E, F, or X shall be referred to the controlling DoD office for review
and release determination.
Sec. 701.12 FOIA appeals/litigation.
(a) Appellate authorities. SECNAV has delegated his appellate
authority to the JAG and the DONGC to act on matters under their
cognizance. Their responsibilities include adjudicating appeals made to
SECNAV on: denials of requests for copies of DON records or portions
thereof; disapproval of a fee category claim by a requester; disapproval
of a request to waive or reduce fees; disputes regarding fee estimates;
reviewing determinations not to grant expedited access to agency
records, and reviewing ``no record'' determinations when the requester
considers such responses adverse in nature. They have the authority to
release or withhold records, or portions thereof; to waive or reduce
fees; and to act as required by SECNAV for appeals under 5 U.S.C. 552
and this instruction. The JAG has further delegated this appellate
authority to the Assistant Judge Advocate General (Civil Law). The DONGC
has further delegated this appellate authority to the Principal Deputy
General Counsel, the Deputy General Counsel, and the Associate General
Counsel (Management).
(1) In their capacity, appellate authorities will serve as principal
points of contact on DON FOIA appeals and litigation; receive and track
FOIA appeals and ensure responses are made in compliance with 5 U.S.C.
552, DoD 5400.7 and 5400.7-R, and the instruction
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in this part; complete responsive portions of the Annual FOIA Report
that addresses actions on appeals and litigation costs during the fiscal
year and submit to CNO (N09B30); provide CNO (N09B30) with a copy of all
appeal determinations as they are issued; and keep CNO (N09B30) informed
in writing of all FOIA lawsuits as they are filed against the DON.
Appellate authorities shall facsimile a copy of the complaint to CNO
(N09B30) for review and provide updates to CNO (N09B30) to review and
disseminate to DFOISR.
(2) OGC's cognizance: Legal advice and services to SECNAV and the
Civilian Executive Assistants on all matters affecting DON; legal
services in subordinate commands, organizations, and activities in the
areas of business and commercial law, real and personal property law,
intellectual property law, fiscal law, civilian personnel and labor law,
environmental law, and in coordination with the JAG, such other legal
services as may be required to support the mission of the Navy and the
Marine Corps, or the discharge of the General Counsel's
responsibilities; and conducting litigation involving the areas
enumerated above and oversight of all litigation affecting the DON.
(3) JAG's cognizance: In addition to military law, all matters
except those falling under the cognizance of the DONGC.
(b) Appellants may file an appeal if they have been denied
information in whole or in part; have been denied a waiver or reduction
of fees; have been denied/have not received a response within 20 working
days; or received a ``no record'' response or wish to challenge the
``adequacy of a search'' that was made. Appeal procedures also apply to
the disapproval of a fee category claim by a requester, disputes
regarding fee estimates, review of an expedited basis determination not
to grant expedited access to agency records, or any determination found
to be adverse in nature by the requester.
(c) Action by the appellate authority. (1) Upon receipt, JAG (34) or
Assistant to the General Counsel (FOIA) will promptly notify the IDA of
the appeal. In turn, the IDA will provide the appellate authority with
the following documents so that a determination can be made: a copy of
the request, responsive documents both excised and unexcised, a copy of
the denial letter, and supporting rationale for continued withholding.
IDAs shall respond to the appellate authority within 10 working days.
(2) Final determinations on appeals normally shall be made within 20
working days after receipt. When the appellate authority has a
significant number of appeals preventing a response determination within
20 working days, the appeals shall be processed in a multitrack
processing system based, at a minimum, on the three processing tracks
established for initial requests.
(3) If the appeal is received by the wrong appellate authority, the
time limits do not take effect until it is received by the right one.
If, however, the time limit for responding cannot be met, the appellate
authority shall advise the appellant that he/she may consider his/her
administrative remedies exhausted. However, he/she may await a
substantive response without prejudicing his/her right of judicial
remedy. Nonetheless, the appellate authority will continue to process
the case expeditiously, whether or not the appellant seeks a court order
for release of records. In such cases, a copy of the response will be
provided to the Department of Justice (DOJ).
(d) Addresses for filing appeals. (1) General Counsel of the Navy,
720 Kennon Street, SE, Room 214, Washington Navy Yard, Washington, DC
20374-5012, or
(2) Judge Advocate General, Washington Navy Yard, 1322 Patterson
Avenue, SE, Suite 3000, Washington, DC 20374-5066.
(e) Appeal letter requirements. The appellant shall file a written
appeal with the cognizant appellate authority (i.e., DONGC or JAG). The
appeal should include a copy of the DON response letter and supporting
rationale on why the appeal should be granted.
(f) Consultation/coordination. (1) The Special Assistant for Naval
Investigative Matters and Security (CNO (N09N)) may be consulted to
resolve inconsistencies or disputes involving classified records.
(2) Direct liaison with officials within DON and other interested
Federal
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agencies is authorized at the discretion of the appellate authority, who
also coordinates with appropriate DoD and DOJ officials.
(3) SECNAV, appropriate Assistant or Deputy Assistant Secretaries,
and CNO (N09B30) shall be consulted and kept advised of cases with
unusual implications. CHINFO shall be consulted and kept advised on
cases involving public affairs implications.
(4) Final refusal involving issues not previously resolved or that
the DON appellate authority knows to be inconsistent with rulings of
other DoD components ordinarily should not be made before consultation
with the DoD Office of General Counsel (OGC).
(5) Tentative decisions to deny records that raise new and
significant legal issues of potential significance to other agencies of
the Government shall be provided to the DoD OGC.
(g) Copies of final appeal determinations. Appellate authorities
shall provide copies of final appeal determinations to the activity
affected and to CNO (N09B30) as appeals are decided.
(h) Denying an appeal. The appellate authority must render his/her
decision in writing with a full explanation as to why the appeal is
being denied along with a detailed explanation of the basis for refusal
with regard to the applicable statutory exemption(s) invoked. With
regard to denials involving classified information, the final refusal
should explain that a declassification review was undertaken and based
on the governing Executive Order and implementing security
classification guides (identify the guides), the information cannot be
released and that information being denied does not contain meaningful
portions that are reasonably segregable. In all instances, the final
denial letter shall contain the name and position title of the official
responsible for the denial and advise the requester of the right to seek
judicial review.
(i) Granting an appeal. The appellate authority must render his/her
decision in writing. When an appellate authority makes a determination
to release all or a portion of records withheld by an IDA, a copy of the
releasable records should be promptly forwarded to the requester after
compliance with any procedural requirements, such as payment of fees.
(j) Processing appeals made under PA and FOIA. When denials have
been made under the provisions of PA and FOIA, and the denied
information is contained in a PA system of records, the appeal shall be
processed under both PA and FOIA. If the denied information is not
maintained in a PA system of records, the appeal shall be processed
under FOIA.
(k) Response letters. (1) When an appellate authority makes a final
determination to release all or portion of records withheld by an IDA, a
written response and a copy of the records so released should be
forwarded promptly to the requester after compliance with any
preliminary procedural requirements, such as payment of fees.
(2) Final refusal of an appeal must be made in writing by the
appellate authority or by a designated representative. The response at a
minimum shall include the following:
(i) The basis for the refusal shall be explained to the requester in
writing, both with regard to the applicable statutory exemption or
exemptions invoked under the provisions of the FOIA, and with respect to
other issues appealed for which an adverse determination was made.
(ii) When the final refusal is based in whole or in part on a
security classification, the explanation shall include a determination
that the record meets the cited criteria and rationale of the governing
Executive Order, and that this determination is based on a
declassification review, with the explanation of how that review
confirmed the continuing validity of the security classification.
(iii) The final denial shall include the name and title or position
of the official responsible for the denial.
(iv) In the case of appeals for total denial of records, the
response shall advise the requester that the information being denied
does not contain meaningful portions that are reasonably segregable.
(v) When the denial is based upon an exemption (b)(3) statute, the
response, in addition to citing the statute relied upon to deny the
information, shall state whether a court has upheld the
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decision to withhold the information under the statute, and shall
contain a concise description of the scope of the information withheld.
(vi) The response shall advise the requester of the right to
judicial review.
(l) Time limits/requirements. (1) A FOIA appeal has been received by
a DON activity when it reaches the appellate authority having
jurisdiction. Misdirected appeals should be referred expeditiously to
the proper appellate authority.
(2) The requester shall be advised to file an appeal so that it is
postmarked no later than 60 calendar days after the date of the initial
denial letter. If no appeal is received, or if the appeal is postmarked
after the conclusion of the 60 day period, the case may be considered
closed. However, exceptions may be considered on a case-by-case basis.
(3) In cases where the requester is provided several incremental
determinations for a single request, the time for the appeal shall not
begin until the date of the final response. Requests and responsive
records that are denied shall be retained for a period of 6 years to
meet the statute of limitations requirement.
(4) Final determinations on appeals normally shall be made within 20
working days after receipt. When a DON appellate authority has a
significant number of appeals preventing a response determination within
20 working days, the appeals shall be processed in a multitrack
processing system, based at a minimum on the three processing tracks
established for initial requests. (See Sec. 701.8(f)).
(5) If additional time is needed due to unusual circumstances, the
final decision may be delayed for the number of working days (not to
exceed 10) that were not used as additional time for responding to the
initial request.
(6) If a determination cannot be made and the requester notified
within 20 working days, the appellate authority 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, they may consider their administrative
remedies exhausted. They may, however, without prejudicing their right
of judicial remedy, await a substantive response. The appellate
authority shall continue to process the case expeditiously.
(m) FOIA litigation. The appellate authority is responsible for
providing CNO (N09B30) with a copy of any FOIA litigation filed against
the DON and any subsequent status of the case. CNO (N09B30) will, in
turn, forward a copy of the complaint to DFOISR for their review.