[Title 32 CFR B]
[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 B - FOIA Definitions and Terms]
[From the U.S. Government Printing Office]


32NATIONAL DEFENSE52002-07-012002-07-01falseBSubpart BNATIONAL 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 B--FOIA Definitions and Terms



Sec. 701.13  5 U.S.C. 552(a)(1) materials.

    Section (a)(1) of the FOIA requires publication in the Federal 
Register of descriptions of agency organizations, functions, substantive 
rules, and statements of general policy.



Sec. 701.14  5 U.S.C. 552(a)(2) materials.

    Section (a)(2) of the FOIA requires that certain materials routinely 
be made available for public inspection and copying. The (a)(2) 
materials are commonly referred to as ``reading room'' materials and are 
required to be indexed to facilitate public inspection. (a)(2) materials 
consist of:
    (a) 5 U.S.C. 552(a)(2)(A) records. Final opinions, including 
concurring and dissenting opinions, and orders made in the adjudication 
of cases, as defined in 5 U.S.C. 551, that may be cited, used, or relied 
upon as precedents in future adjudications.
    (b) 5 U.S.C. 552(a)(2)(B) records. Statements of policy and 
interpretations that have been adopted by the agency and are not 
published in the Federal Register.
    (c) 5 U.S.C. 552(a)(2)(C) records. Administrative staff manuals and 
instructions, or portions thereof, that establish DON policy or 
interpretations of policy that affect a member of the public. This 
provision does not apply to instructions for employees on tactics and 
techniques to be used in performing their duties, or to instructions 
relating only to the internal management of the DON activity. Examples 
of manuals

[[Page 69]]

and instructions not normally made available are:
    (1) Those issued for audit, investigation, and inspection purposes, 
or those that prescribe operational tactics, standards of performance, 
or criteria for defense, prosecution, or settlement of cases.
    (2) Operations and maintenance manuals and technical information 
concerning munitions, equipment, systems, and foreign intelligence 
operations.
    (d) 5 U.S.C. 552(a)(2)(D) records. Those (a)(2) records, which 
because of the nature of the subject matter, have become or are likely 
to become the subject of subsequent requests for substantially the same 
records. These records are referred to as FOIA-processed (a)(2) records. 
DON activities shall decide on a case-by-case basis whether records fall 
into this category based on the following factors: previous experience 
of the DON activity with similar records; particular circumstances of 
the records involved, including their nature and the type of information 
contained in them; and/or the identity and number of requesters and 
whether there is widespread press, historic, or commercial interest in 
the records.
    (1) This provision is intended for situations where public access in 
a timely manner is important and it is not intended to apply where there 
may be a limited number of requests over a short period of time from a 
few requesters. DON activities may remove the records from this access 
medium when the appropriate officials determine that access is no longer 
necessary.
    (2) Should a requester submit a FOIA request for FOIA-processed 
(a)(2) records and insist that the request be processed under FOIA, DON 
activities shall process the FOIA request. However, DON activities have 
no obligation to process a FOIA request for (a)(2)(A), (B) and (C) 
records because these records are required to be made public and not 
FOIA-processed under paragraph (a)(3) of the FOIA.
    (e) However, agency records that are withheld under FOIA from public 
disclosure, based on one or more of the FOIA exemptions, do not qualify 
as (a)(2) materials and need not be published in the Federal Register or 
made available in a library reading room.



Sec. 701.15  5 U.S.C. 552(a)(3) materials.

    Agency records which are processed for release under the provisions 
of the FOIA.



Sec. 701.16  Administrative appeal.

    A request made by a FOIA requester asking the appellate authority 
(JAG or OGC) to reverse a decision to: withhold all or part of a 
requested record; deny a fee category claim by a requester; deny a 
request for expedited processing due to demonstrated compelling need; 
deny a request for a waiver or reduction of fees; deny a request to 
review an initial fee estimate; and confirm that no records were located 
during the initial search. FOIA requesters may also appeal a non-
response to a FOIA request within the statutory time limits.



Sec. 701.17  Affirmative information disclosure.

    This is where a DON activity makes records available to the public 
on its own initiative. In such instance, the DON activity has determined 
in advance that a certain type of records or information is likely to be 
of such interest to members of the public, and that it can be disclosed 
without concern for any FOIA exemption sensitivity. Affirmative 
disclosures can be of mutual benefit to both the DON and the members of 
the public who are interested in obtaining access to such information.



Sec. 701.18  Agency record.

    Agency records are either created or obtained by an agency and under 
agency control at the time of the FOIA request. Agency records are 
stored as various kinds of media, such as:
    (a) Products of data compilation (all books, maps, photographs, 
machine readable materials, inclusive of those in electronic form or 
format, or other documentary materials), regardless of physical form or 
characteristics, made or received by an agency of the United States 
Government under Federal law in connection with the transaction of 
public business and in Department of

[[Page 70]]

the Navy possession and control at the time the FOIA request is made.
    (b) Care should be taken not to exclude records from being 
considered agency records, unless they fall within one of the following 
categories:
    (1) Objects or articles, such as structures, furniture, paintings, 
three-dimensional models, vehicles, equipment, parts of aircraft, ships, 
etc., whatever their historical value or value as evidence.
    (2) Anything that is not a tangible or documentary record, such as 
an individual's memory or oral communication.
    (3) Personal records of an individual not subject to agency creation 
or retention requirements, created and maintained primarily for the 
convenience of an agency employee, and not distributed to other agency 
employees for their official use. Personal papers fall into three 
categories: those created before entering Government service; private 
materials brought into, created, or received in the office that were not 
created or received in the course of transacting Government business, 
and work-related personal papers that are not used in the transaction of 
Government business.
    (4) 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 this 
instruction and the FOIA. There is no obligation to create, compile, or 
obtain a record to satisfy a FOIA request.
    (5) Hard copy or electronic records, which are subject to FOIA 
requests under 5 U.S.C. 552(a)(3), and which are available to the public 
through an established distribution system, or through the Federal 
Register, the National Technical Information Service, or the Internet, 
normally need not be processed under the provisions of the FOIA. If a 
request is received for such information, DON activities shall provide 
the requester with guidance, inclusive of any written notice to the 
public, on how to obtain the information. However, if the requester 
insists that the request be processed under the FOIA, then process the 
request under FOIA.



Sec. 701.19  Appellate authority.

    SECNAV has delegated the OGC and JAG to review administrative 
appeals of denials of FOIA requests on his behalf and prepare agency 
paperwork for use by the DOJ in defending a FOIA lawsuit. JAG is further 
authorized to delegate this authority to a designated Assistant JAG. The 
authority of OGC is further delegated to the Principal Deputy General 
Counsel, the Deputy General Counsel, and the Associate General Counsel 
(Management).



Sec. 701.20  Discretionary disclosure.

    The decision to release information that could qualify for 
withholding under a FOIA exemption, but upon review the determination 
has been made that there is no foreseeable harm to the Government for 
releasing such information. Discretionary disclosures do not apply to 
exemptions (b)(1), (b)(3), (b)(4), (b)(6) and (b)(7)(C).



Sec. 701.21  Electronic record.

    Records (including e-mail) which are created, stored, and retrieved 
by electronic means.



Sec. 701.22  Exclusions.

    The FOIA contains three exclusions (c)(1), (c)(2) and (c)(3) which 
expressly authorize Federal law enforcement agencies for especially 
sensitive records under certain specified circumstances to treat the 
records as not subject to the requirements of the FOIA.



Sec. 701.23  Executive Order 12958.

    Revoked Executive Order 12356 on October 14, 1995 and is the basis 
for claiming that information is currently and properly classified under 
(b)(1) exemption of the FOIA. It sets forth new requirements for 
classifying and declassifying documents. It recognizes both the right of 
the public to be informed about the activities of its government and the 
need to protect national security information from unauthorized or 
untimely disclosure.

[[Page 71]]



Sec. 701.24  Federal agency.

    A Federal agency is any executive department, military department, 
Government corporation, Government-controlled corporation, or other 
establishment in the executive branch of the Government (including the 
Executive Office of the President), or any independent regulatory 
agency.



Sec. 701.25  5 U.S.C. 552, Freedom of Information Act (FOIA).

    An access statute that pertains to agency records of the Executive 
Branch of the Federal Government, including the Executive Office of the 
President and independent regulatory agencies.

    Note to Sec. 701.25: Records maintained by State governments, 
municipal corporations, by the courts, by Congress, or by companies and 
private citizens do not fall under this Federal statute)



Sec. 701.26  FOIA exemptions.

    There are nine exemptions that identify certain kinds of records/
information that qualify for withholding under FOIA. See subpart D of 
this part for a detailed explanation of each exemption.



Sec. 701.27  FOIA fee terms location.

    The FOIA fee terms can be found in subpart C of this part.



Sec. 701.28  FOIA request.

    A written request for DON records, made by ``any person'' including 
a member of the public (U.S. or foreign citizen/entity), an 
organization, or a business, but not including a Federal agency or a 
fugitive from the law that either explicitly or implicitly invokes the 
FOIA by citing DoD FOIA regulations or the instruction in this part. 
FOIA requests can be made for any purpose whatsoever, with no showing of 
relevancy required. Because the purpose for which records are sought has 
no bearing on the merits of the request, FOIA requesters do not have to 
explain or justify their requests. Written requests may be received by 
postal service or other commercial delivery means, by facsimile or 
electronically.



Sec. 701.29  Glomar response.

    Refusal by the agency to either confirm or deny the existence or 
non-existence of records responsive to a FOIA request. See exemptions 
(b)(1), (b)(6), and (b)(7)(C) at subpart D of this part.



Sec. 701.30  Initial Denial Authority (IDA).

    SECNAV has delegated authority to a limited number of officials to 
act on his behalf to withhold records under their cognizance that are 
requested under the FOIA for one or more of the nine categories of 
records exempt from mandatory disclosure; to deny a fee category claim 
by a requester; to deny a request for expedited processing due to 
demonstrated compelling need; to deny or grant a request for waiver or 
reduction of fees when the information sought relates to matters within 
their respective geographical areas of responsibility or chain of 
command; fees; to review a fee estimate; and to confirm that no records 
were located in response to a request. IDAs may also grant access to 
requests.



Sec. 701.31  Mosaic or compilation response.

    The concept that apparently harmless pieces of information when 
assembled together could reveal a damaging picture. See exemption (b)(1) 
at subpart D of this part.



Sec. 701.32  Perfected request.

    A request which meets the minimum requirements of the FOIA to be 
processed and is received by the DON activity having possession and 
control over the documents/information.



Sec. 701.33  Public domain.

    Agency records released under the provisions of FOIA and the 
instruction in this part to a member of the public.



Sec. 701.34  Public interest.

    The interest in obtaining official information that sheds light on a 
DON activity's performance of its statutory duties because the 
information falls within the statutory purpose of the FOIA to inform 
citizens what their government is doing. That statutory purpose, 
however, is not fostered by disclosure of information about private

[[Page 72]]

citizens accumulated in various governmental files that reveals nothing 
about an agency's or official's own conduct.



Sec. 701.35  Reading room.

    Location where (a)(2) materials are made available for public 
inspection and copying.



Sec. 701.36  Release authorities.

    Commanding officers and heads of Navy and Marine Corps shore 
activities or their designees are authorized to grant requests on behalf 
of SECNAV for agency records under their possession and control for 
which no FOIA exemption applies. As necessary, they will coordinate 
releases with other officials who may have an interest in the 
releasability of the record.



Sec. 701.37  Reverse FOIA.

    When the ``submitter'' of information, usually a corporation or 
other business entity, that has supplied the agency with data on its 
policies, operations and products, seeks to prevent the agency that 
collected the information from revealing the data to a third party in 
response to the latter's FOIA request.



Sec. 701.38  Technical data.

    Recorded information, regardless of form or method of the recording, 
of a scientific or technical nature (including computer software 
documentation).



Sec. 701.39  Vaughn index.

    Itemized index, correlating each withheld document (or portion) with 
a specific FOIA exemption(s) and the relevant part of the agency's 
nondisclosure justification. The index may contain such information as: 
date of document; originator; subject/title of document; total number of 
pages reviewed; number of pages of reasonably segregable information 
released; number of pages denied; exemption(s) claimed; justification 
for withholding; etc. FOIA requesters are not entitled to a Vaughn index 
during the administrative process.