[Title 32 CFR 701.8]
[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)]
[Sec. 701.8 - Processing FOIA requests.]
[From the U.S. Government Printing Office]


32NATIONAL DEFENSE52002-07-012002-07-01false701.8Sec. 701.8NATIONAL 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 PUBLICDepartment of the Navy Freedom of Information Act (FOIA)
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

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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

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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

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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

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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.


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    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.