[Federal Register Volume 59, Number 193 (Thursday, October 6, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24663]


[[Page Unknown]]

[Federal Register: October 6, 1994]


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DEPARTMENT OF DEFENSE

Department of the Air Force

32 CFR Part 806

 

Air Force Freedom of Information Act Program

AGENCY: Department of the Air Force, DoD.

ACTION: Final rule.

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SUMMARY: The Department of the Air Force revised its rule to update Air 
Force procedures for the Air Force Freedom of Information Act (FOIA) 
Program. This revision provides guidance for making records public. It 
tells how to process FOIA requests and tells the public how to request 
copies of Air Force records using the FOIA. It outlines requirements 
for For Official Use Only (FOUO) material. The intended effect is to 
provide current information on Air Force policy and procedures for the 
disclosure of records to the public under the Freedom of Information 
Act.

EFFECTIVE DATE: March 31, 1994.

FOR FURTHER INFORMATION CONTACT:
Mrs. Anne P. Rollins, SAF/AAIQ, 1610 Air Force Pentagon, Washington DC 
20330-1610, telephone (703) 697-3492.

SUPPLEMENTARY INFORMATION: This rule implements 5 U.S.C. 552, as 
amended, and DODD 5400.7 (32 CFR Part 285) and DOD 5400.7-R (32 CFR 
Part 286).

    Because this part implements a higher authority directive, it is 
not published as a proposed rule for comment.
    The Department of the Air Force has determined that this rule is 
not a major rule because it will not have an annual effect on the 
economy of $100 million or more. The Secretary of the Air Force has 
certified that this rule is exempt from the requirements of the 
Regulatory Flexibility Act, 5 U.S.C. 601-612, because this rule does 
not have a significant economic impact on small entities as defined by 
the Act, and does not impose any obligatory information requirements 
beyond those imposed by DoD. This rule revises Air Force Regulation 
(AFR) 4-33, Air Force Freedom of Information Act Program, 31 July 1992.

List of Subjects in 32 CFR Part 806

    Freedom of information, Classified information, Records.

    Accordingly, 32 CFR Part 806 is revised as follows:

PART 806--AIR FORCE FREEDOM OF INFORMATION ACT PROGRAM

Sec.
806.0  Purpose.
806.1  General guidance.
806.2  Responsibilities.
806.3  Material not covered by the FOIA.
806.4  FOIA requests.
806.5  Submitting FOIA requests.
806.6  Processing requests under FOIA and Privacy Act (PA).
806.7  Describing records.
806.8  Creating a record.
806.9  Special disclosure procedures.
806.10  FOIA exemptions.
806.11  FOIA exclusions.
806.12  Denials.
806.13  Freedom of Information Act annual report.
806.14  Host-tenant relationship.
806.15  Processing FOIA requests.
806.16  Referrals.
806.17  Categorizing requesters.
806.18  Fee assessment.
806.19  Aggregating requests.
806.20  Fee waivers.
806.21  Transferring fees to accounting and finance offices.
806.22  Fee rates.
806.23  Technical data.
806.24  Technical data fee rates.
806.25  Appeals.
806.26  For Official Use Only (FOUO).

Appendix A to Part 806--Glossary of Terms
Appendix B to Part 806--Requirements of 5 U.S.C. 552(b)(4)

    Authority: 5 U.S.C. 552.


Sec. 806.0  Purpose.

    This part implements Department of Defense (DoD) Directive 5400.7, 
13 May 1988, DoD Freedom of Information Act Program; and DoD Regulation 
5400.7-R, 3 October 1990, DoD Freedom of Information Act Program, 10 
May 1991, with Change 1 (32 CFR Parts 285 and 286). It provides 
guidance for making records public and for the Air Force Freedom of 
Information Act (FOIA) Program. It tells how to process FOIA requests 
and tells the public how to request copies of Air Force records using 
the FOIA (Title 5, United States Code, Section 552, as amended). It 
outlines the requirements for For Official Use (FOUO) material. If this 
part conflicts with other Air Force publications, it takes precedence 
over those that deal with making records public.


Sec. 806.1  General guidance.

    The Air Force discloses its records in its possession and control 
to the public, except those records exempt under the FOIA which, if 
released, would cause an identifiable harm. Make discretionary 
disclosures of exempt information whenever possible. (Discretionary 
releases are generally not appropriate for exemptions 1, 3, 4, 6, and 
7(C)). A discretionary release to one requester will prevent 
withholding the same record if someone else requests it. Answer all 
requests for information and records promptly. Handle requests in a 
customer-friendly manner. Get misrouted FOIA requests to the FOIA 
Office immediately. Do not withhold a record simply because it might 
suggest administrative error or inefficiency or cause embarrassment. Do 
not deny a request just because the record is stored in a computer.


Sec. 806.2  Responsibilities.

    (a) The Administrative Assistant to the Secretary of the Air Force 
(SAF/AA) takes overall responsibility for making sure the Air Force 
complies with the FOIA.
    (b) The Office of the General Counsel to the Secretary of the Air 
Force (SAF/GSA) makes final decisions on appeals.
    (c) The Director of Information management (SAF/AAI), through the 
Access Programs Office of the Administrative Communications and Records 
Management Division, SAF/AAIQ:
    (1) Administers procedures described in this part.
    (2) Submits required reports to the Office of the Assistant to the 
Secretary of Defense (Public Affairs).
    (3) Provides guidance and instructions to major commands (MAJCOM) 
and field operating agencies (FOA).
    (d) MAJCOM and FOA commanders implement this part in their commands 
and agencies.
    (e) FOIA managers:
    (1) Control and process FOIA requests.
    (2) Obtain recommendations from the office of primary 
responsibility (OPR) for records.
    (3) Provide a reading room for inspecting, copying and giving 
copies of records to requesters.
    (4) Provide training.
    (5) Review publications to make sure they comply with this part.
    (6) Conduct periodic program reviews.
    (7) Approve or deny fee waivers.
    (8) Assess and collect fees.
    (9) Send extension notices to requesters.
    (10) Submit required reports.
    (11) Make final determinations on ``no records'' responses.
    (f) OPRs:
    (1) Coordinate the release or denial with the offices of collateral 
responsibility (OCR) and with the Staff Judge Advocate (SJA) and FOIA 
office on proposed denials.
    (2) Provide requested records.
    (3) Help the disclosure authority determine whether to release 
record; and act as declassification authority when appropriate.

    (g) Disclosure authorities determine whether to release records and 
provide them to the FOIA office.

    (h) Initial denial authorities:

    (1) Make final decisions to deny records.

    (2) Tell requesters the nature of records or information denied, 
exemption supporting the denial with reason, and appeal procedures.

Sec. 806.3  Material not covered by the FOIA.

    (a) Objects or articles, such as structures, furniture, vehicles, 
and equipment, whatever their historical value or value as evidence.

    (b) Administrative tools for creating, storing, and retrieving 
records, if not created or used as sources of information about 
organizations, policies, functions, decisions, or procedures of DoD. 
Normally computer software, including source code, object code, and 
listings of source and object codes, regardless of medium, are not 
agency records. This does not include the supported data that is 
processed and produced by such software an that in some instances may 
be stored with the software.

    (c) Personal notes 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.

    (d) Information stored in a computer for which there is no existing 
computer program for retrieval of the requested information.
    (e) If other procedures for processing requests for material not 
covered by FOIA exist:
    (1) Log the request and refer the request outside of the FOIA to 
the proper office.
    (2) Acknowledge the requester's letter, tell the individual where 
you referred the request, and that the material is not a record under 
the FOIA.
    (f) If no alternative release procedures exist, process the request 
under FOIA by advising the requester that materials are not agency 
records and give the requester appeal rights.


Sec. 806.4  FOIA requests.

    (a) Under FOIA, members of the public, including foreign citizens, 
military and civilian personnel acting as private citizens, 
organizations and businesses, and individual members of the Congress, 
for themselves or constituents, may request records in writing. Federal 
agencies or fugitives from the law cannot make FOIA requests.
    (b) Requesters should not use Government equipment, supplies, 
stationery, postage, telephones, or official mail channels to make FOIA 
requests. FOIA managers will process such requests and tell requesters 
that using government resources to make FOIA requests is not an 
authorized official use.


Sec. 806.5  Submitting FOIA requests.

    Submit written requests that reasonably describe the desired 
records and include a statement on fees. Address letters to the FOIA 
office of the activity that has the record. List other addressees to 
save time.


Sec. 806.6  Processing requests under FOIA and Privacy Act (PA).

    Process requests under the Act that gives the most information. If 
the requester cites both Acts, address each in the reply.


Sec. 806.7  Describing records.

    The requester is responsible for identifying the desired record. He 
or she should sufficiently describe the record to help locate it with a 
reasonable amount of effort. Generally a reasonable description 
contains enough information for an organized, nonrandom search. Offices 
must make reasonable efforts to find the records described. This means 
searching all activities and locations most likely to have the records, 
including staged or retired records. If the description is unclear, ask 
for more specific information. When possible, tell the requester what 
information would help.


Sec. 806.8  Creating a record.

    (a) The Air Force is not required to create, compile, or obtain a 
record from outside the Air Force to fulfill a request. You may want to 
create a new record when it would be a more useful response to the 
requester or is less burdensome for the agency than providing an 
existing record and the requester agrees. Do not charge the requester 
more for creating a record than you would charge for the existing 
record.
    (b) Apply a standard of reasonableness for electronic data when 
there is a question on whether you are creating, programming, or 
formatting a record. If you can respond with a ``business as usual'' 
approach, process the request, otherwise offer the requester appeal 
rights.


Sec. 806.9  Special disclosure procedures.

    Some instructions have disclosure procedures for certain types of 
records. Refer to those instructions for specific disclosure procedures 
when you process FOIA requests. The only reason to deny a request is a 
FOIA exemption.
    (a) Process FOIA requests from foreign citizens, foreign 
governments, their representatives, or international commands under 
this part, and coordinate with your foreign disclosure office. If the 
command has no foreign disclosure office, refer the request to SAF/AAIS 
(FOIA) for SAF/IAD coordination through the MAJCOM FOIA office.
    (b) If requests from foreign government officials do not cite the 
FOIA, refer them to your foreign disclosure office and notify the 
requester.
    (c) If you have a non-U.S. Government record, coordinate with the 
record's originator before releasing it (see Sec. 806.10(e)(1). This 
includes records created by foreign governments and organizations like 
the North Atlantic Treaty Organization (NATO) and North American 
Aerospace Defense (NORAD). Coordinate release of foreign government 
records with the U.S. Department of State through the MAJCOM FOIA 
office. Coordinate release or denial of Letters of Offer and Acceptance 
(LOA) and SAF/IA through SAF/AAIS (FOIA).


Sec. 806.10  FOIA exemptions.

    Denial authorities may withhold records or information when an 
identifiable harm would result by disclosure, and the records are 
exempt under 5 U.S.C. 552(b).
    (a) Exemption 1--Classified Records. Records properly and currently 
classified in the interest of national defense or foreign policy, as 
authorized by executive order and implementing instructions. Apply this 
exemption when disclosing information by itself or in the context of 
other information that could reasonably be expected to damage national 
security.
    (1) To make a sound decision, review the record paragraph by 
paragraph for releasable information. Review all unclassified parts 
before release to see if they are exempt. Before releasing a reviewed 
and declassified document, draw a single black line through all the 
classification markings, so they are still legible and stamp the 
document ``Unclassified.'' Review material, if appropriate, to 
determine if it should be classified, even though it was not classified 
when requested. AFI 31-401, Information Security Program Management 
(formerly AFRs 205-1 and 205-43), tells how to classify and declassify 
records. Check to see if information from foreign sources is 
classified. Delete exempt parts of records and disclose the rest if it 
does not distort meaning and you can reasonably assume that a skillful, 
knowledgeable person could not reconstruct the information deleted. 
Denial letters must say that unauthorized disclosure of such 
information could reasonably be expected to cause damage to national 
security and cite the appropriate executive order paragraph(s) as 
authority for classification. When denying a whole classified record, 
release all unclassified parts that would cause no identifiable harm. 
Coordinate with the local information security specialist when invoking 
this exemption for consistency of classification policy and procedures.
    (2) When simply knowing whether a record exists or not reveals 
classified information, use the ``Glomar'' (refusal to confirm or deny) 
response. Apply it consistently, not only when a record exists but also 
when a record does not exist. Otherwise, the pattern of using a ``no 
record'' response when a record does not exist, and a ``refusal to 
confirm or deny'' when a record does exist will disclose exempt 
information. Cite the FOIA exemption when you use the ``Glomar'' 
response.
    (b) Exemption 2--Internal Personnel Rules and Practices. Exempt 
information falls in two categories:
    (1) ``High'' 2 protects records which, if disclosed, would 
substantially hinder the effective performance of a significant 
function of the DoD by risking circumvention of a statute or Air Force 
instruction or policy.
    (2) ``Low'' 2 is for trivial internal administrative matters of no 
genuine public interest and the process of releasing such records would 
constitute an unwarranted administrative burden. You can only use the 
``low'' 2 exemption before fully processing the requested records. 
Otherwise, you may eliminate the administrative burden justification.
    (c) Exemption 3--Other Statutes. Records of matters that a statute 
specifically exempts from disclosure by terms that permit no discretion 
on the issue of withholding or according to defined standards for 
withholding or referring to particular types of matters we must 
withhold. When using this exemption, cite both exemption 3 and the 
specific statute.
    (d) Exemption 4--Confidential Commercial Information. Records with 
trade secrets and commercial or financial information submitted by a 
person or entity outside the Federal Government on a privileged or 
confidential basis that, if released, is likely to cause substantial 
competitive harm to the submitter of the information or impair the 
government's future ability to obtain necessary information. Examples 
of exempt information follow:
    (1) Trade secrets that are commercially valuable plans, formulas, 
processes, or devices used for making, preparing, compounding, or 
processing trade commodities and are the product of innovation or 
substantial effort and were given in confidence.
    (2) Commercial or financial information given in confidence, in 
connection with loans, bids, contracts, or proposals; or privileged 
information, such as trade secrets, inventions, discoveries, or other 
proprietary data.
    (3) Statistical data and commercial or financial information 
concerning contract performance, income, profits, losses, and 
expenditures, offered and given in confidence by a contractor or 
potential contractor.
    (4) Personal statements made during inspections, investigations, or 
audits, if such statements are given in confidence by the individual 
and kept confidential, because they reveal trade secrets or commercial 
or financial information normally considered confidential or 
privileged.
    (5) Financial data private employers provide in confidence for 
local wage surveys, used to set and adjust pay schedules for prevailing 
wage rate employees of the DoD.
    (6) Scientific and manufacturing processes or developments 
concerning technical or scientific data or other information submitted 
with a research grant application or with a report during research.
    (7) Computer software qualifying as a record under this part that 
is copyrighted under the Copyright Act of 1976 (17 U.S.C. 106), the 
disclosure of which would adversely affect its market value.
    (8) Technical or scientific data a contractor or subcontractor 
developed entirely with private funds and technical or scientific data 
developed with both Federal and private funds, which the contractor or 
subcontractor legally owns per 10 U.S.C. 2320-2321 and DoD Federal 
Acquisition Regulation Supplement (DFARS), chapter 2 of 48 CFR 227.4. 
You may withhold technical data developed entirely with Federal funds 
under Exemption 3 if the data meets the criteria of 10 U.S.C. 130.
    (e) Before releasing information submitted from outside the Air 
Force:
    (1) Write to the submitter of the data for views on releasability 
and include appendix b with your letter.
    (2) Tell the requester that we must give the submitter of the data 
the opportunity to comment before the Air Force decides whether to 
release the information.
    (3) Give the submitter a reasonable period of time (no more than 30 
calendar days) to object to release and provide justification.
    (4) If the submitter does not respond, write that you have not 
received a reply, tell the submitter of the decision to release with 
the reason and give the expected release date (at least 2 weeks from 
the date of your letter).
    (5) If the submitter objects, but the Air Force disclosure 
authority considers the records releasable, tell the submitter before 
releasing the data. Include in the letter a brief explanation and a 
release date at least 2 weeks from the date of the letter.
    (f) Exemption 5--Inter- or Intra-Agency Records. Intra-agency or 
inter-agency memoranda or letters that, according to recognized legal 
privileges are not routinely released to a party in litigation with the 
Air Force or DoD. If such a record or part of such a record would be 
made available routinely through the discovery process in the course of 
litigation with the agency, release it. In the discovery process, 
litigants get from each other information relevant to issues in a trial 
or hearing. if the information is only made available through the 
discovery process by special court order, then it is exempt. Release 
factual records or parts unless the information is privileged or 
otherwise exempt. Generally, release a direction or order from a 
superior to a subordinate, though contained in an internal 
communication, if it forms policy guidance or a decision, but is not a 
discussion of preliminary or other matters that would compromise 
decision making. Consult your SJA about whether Exemption 5 material 
would be routinely available through the discovery process. Here are 
examples of exempt information.
    (1) The deliberative process privilege--those parts of records with 
internal advice, opinions, evaluations, or recommendations that reveal 
Air Force or DoD deliberations.
    (2) Those nonfactual parts of Air Force personnel evaluations of 
contractors and their products.
    (3) Advance information of a speculative, tentative, or evaluative 
nature on such matters as proposals to buy, lease, or otherwise acquire 
and dispose of materials, real estate, facilities, or functions, if 
such information gives private personal interests an unfair competitive 
advantage or impedes legitimate governmental functions. Generally, you 
cannot use this privilege to withhold factual information. However, you 
may withhold facts when they are so interconnected with deliberative 
information that disclosing facts necessarily discloses the Air Force's 
deliberative process or when facts and deliberative information are so 
interconnected that separating them would be uninformative or 
redundant.
    (4) Official reports of inspection, audits, investigations, or 
surveys on safety, security, or internal management, administration, or 
operation of the Air Force.
    (5) The attorney work product privilege--records an attorney 
prepares, or supervises the preparation of, in contemplating or 
preparing for administrative proceedings or litigation.
    (6) The attorney-client privilege--confidential communication 
between an attorney and client. For example, a commander expresses 
concerns in confidence to his or her judge advocate and asks for a 
legal opinion. The legal opinion and everything the commander tells the 
judge advocate in confidence qualify.
    (7) Unlike deliberative process privilege, you may withhold both 
facts and opinions in attorney work product or privileged 
communications.
    (8) Trade secrets or other confidential research, development, or 
commercial information the Air Force or DoD owns, whose premature 
release probably would affect the Air Force's or DoD's negotiating 
position or other commercial interests.
    (9) Computer software qualifying as a record under this part which 
is deliberative in nature, if its release would inhibit decisionmaking. 
In this case, closely examine the use of the software to ensure its 
deliberative nature.
    (10) Planning, programming, and budget information involving 
defense planning and resource allocation.
    (g) Exemption 6--Invasion of Personal Privacy. Personnel, medical, 
and similar personal information in other files whose release to the 
public clearly invades personal privacy. To decide whether to release 
personal information, balance the privacy interest against what its 
release would tell the public about how the Air Force functions or 
about the conduct of an Air Force functions or about the conduct of any 
Air force employee (the public interest). Withhold records only when 
the privacy interest exceeds the public interest. Do not use this 
exemption to protect a deceased person's privacy, but you may use it to 
protect the privacy of the deceased person's family in rare instances. 
Generally let a person (or their representative) see their own 
personnel, medical, or similar files and withhold information from the 
subject only using 5 U.S.C. 552a, The Privacy Act of 1974 (see part 
806b of this chapter).
    (1) Withhold names and duty addresses of personnel serving overseas 
or in sensitive or routinely deployable units. Routinely deployable 
units normally leave their permanent home stations on a periodic or 
rotating basis for peacetime operations or for scheduled training 
exercises conducted outside the United States or U.S. territories on a 
routine basis. Units based in the United States for a long time, such 
as those in extensive training or maintenance activities, do not 
quality during that period. Units designated for deployment or 
contingency plans not yet executed and units that seldom leave the 
United States or U.S. territories (e.g., annually or semiannually) are 
not routinely deployable units. However, units alerted for deployment 
outside the United States or U.S. territories during actual execution 
of a contingency plan or in support of a crisis operation qualify. The 
way the Air Force deploys units makes it difficult to determine when a 
unit that has part of its personnel deployed becomes eligible for 
denial. The Air Force any consider a unit deployed on a routine basis 
or deployed fully overseas when 30 percent of its personnel has been 
either alerted or actually deployed. In this context, alerted means 
that a unit has received an official written warning of an impending 
operational mission outside the United States or U.S. territories.
    (2) Sensitive units are primarily involved in training for special 
activities or classified missions, including, for example, 
intelligence-gathering units that collect, handle, dispose of, or store 
classified information and materials, as well as units that train or 
advise foreign personnel.
    (3) Each MAJCOM and FOA will establish a system and OPR(s) to 
identify units in their command qualifying for this exemption. 
Appropriate OPRs could include Directors of Operations, Plans, and 
Programs, and Personnel. The resulting list of nonreleasable units will 
be reviewed and updated in January and July and provided to the MAJCOM 
or FOA FOIA office. This listing will be in ASCII format on a 3\1/2\ or 
5\1/4\ inch floppy disk (double sided, high density), which contains 
the unit's eight-position personnel accounting symbol (PAS) code, with 
1 pas code per line (record) (8-byte record). The MAJCOM or FOA FOIA 
manager will forward an electronic copy of the list of nonreleasonable 
units to AFMPC/RMI to be included in the personnel data system. The 
MAJCOM and AFMPC FOIA offices will use it to determine releasable lists 
of names and duty addresses.
    (h) Exemption 7--Investigative Records. Records or information 
gathered for law enforcement purposes but only when releasing these 
records would probably:
    (1) Interfere with enforcement proceedings.
    (2) Deprive a person of the right to a fair trial or an impartial 
judgment.
    (3) Invade personal privacy unnecessarily.
    (4) Identify a confidential source, including a state, local, or 
foreign agency or authority or any private institution that gives 
confidential information.
    (5) Disclose information from a confidential source and obtained by 
a criminal law enforcement authority in a criminal investigation or by 
an agency conducting a lawful national security intelligence 
investigation.
    (6) Disclose methods for law enforcement investigation or 
prosecutions.
    (7) Disclose guidelines for law enforcement investigations or 
prosecutions if the release would probably encourage circumvention of 
the law.
    (8) Endanger an individual's life or physical safety.
    (i) You may use this exemption to prevent disclosure of documents 
not originally created for, but later gathered for law enforcement 
purposes.
    (j) Exemption 8--Financial Institutions. Those records contained in 
or related to examination, operation, or condition reports prepared by, 
on the behalf of, or for the use of, an agency that regulates or 
supervises financial institutions.
    (k) Exemption 9--Wells. Records with geological and geophysical 
information and data, including maps, concerning wells.


Sec. 806.11  FOIA exclusions.

    (a) Under two limited situations, requests for law enforcement 
records are not subject to disclosure under FOIA:
    (1) Requests for law enforcement records when the investigation 
involves a possible criminal violation, the subject is unaware of the 
investigation, and disclosing the record's existence could interfere 
with enforcement.
    (2) Requests for informant records a criminal law enforcement 
agency keeps under the informant's name or personal identifier made by 
a third party using the informant's name or personal identifier, but 
only when the informant's status as an informant has not been 
officially confirmed.
    (b) In these cases, do not use denial procedures; instead, say you 
found no records. Coordinate with the SJA on these cases. When you 
write to the requester, do not give the statutory citation for the 
exclusion nor state your reliance on an exclusion.


Sec. 806.12  Denials.

    Only denial authorities may withhold information. Denial authority 
level is at the deputy chiefs of staff and chiefs of comparable offices 
or higher at HQ USAF, and MAJCOM and FOA commanders. These officials 
may name an additional official as a denial authority. Send SAF/AAIQ a 
letter with the position titles only. Only the Administrative Assistant 
to the Secretary of the Air Force can approve a request for more than 
one additional denial authority. Send those requests, with 
justification, to SAF/AAIQ.
    (a) When denying information, delete only the exempt parts of a 
record, release what remains, and let the requester know that you are 
providing all reasonably segregable, releasable parts of the record. 
Clearly show the requester where you deleted information.
    (b) Denial letters must include the reason for the denial and cite 
the statutory exemption. Only authorized denial authorities sign denial 
letters. FOIA managers may sign ``no records'' responses. Denial 
letters and ``no records'' responses must also include an appeal 
paragraph that:
    (1) Tells the requester to address appeals to the Secretary of the 
Air Force, through the FOIA office of the activity that issued the 
denial or ``no records'' response.
    (2) Tells the requester to appeal within 60 calendar days from the 
date of the letter and to include reasons for reconsideration.
    (3) Asks the requester to attach a copy of the response.


Sec. 806.13  Freedom of Information Act annual report

    (a) MAJCOM and FOA FOIA managers submit a calendar-year report on 
3\1/2\- or 5\1/4\-inch disk using the FOIA System. Send the report by 
10 January to SAF/AAIQ. The report control symbol (RCS) is DD-
PA(A)1365.
    (b) SAF/AAIQ submits the report to the Office of the Assistant to 
the Secretary of Defense (Public Affairs) Directorate for Freedom of 
Information and Security Review on DD Form 2564, Annual Report--Freedom 
of Information Act.


Sec. 806.14  Host-tenant relationship.

    (a) The host base FOIA manager logs, processes, and reports FOIA 
requests for tenant units. The host base FOIA office refers all 
recommended denials and ``no records'' appeals to the tenant MAJCOM 
FOIA manager.
    (b) This host-tenant relationship does not apply to disclosure 
authorities for specialized records, such as the Air Force Audit Agency 
and the Air Force Office of Special Investigations.


Sec. 806.15  Processing FOIA requests.

    All FOIA offices use the FOIA system to track and manage FOIA 
requests. AFM 4-196 is the FOIA System End Users Manual.
    (a) After receiving a FOIA request, the FOIA manager:
    (1) Records the date and time of receiving the request, logs the 
request in the FOIA system and sets a suspense date. For more than 10 
FOIA requests, sets up a first-in, first-out system to process the 
requests in the order received.
    (2) Considers a request received when the FOIA office responsible 
for processing the request receives it; and when the requester states a 
willingness to pay fees set for his or her category (see Sec. 806.17), 
has paid past FOIA debts, and has reasonably described the requested 
records.
    (3) Determines the fee according to the requester's category, 
writes to requesters who have not made arrangements to pay for the 
information and whose fees are more than $15, telling them the category 
and cost of the request.
    (4) Answers fee waiver requests before processing. Asks for more 
justification, if needed to make a good decision. Do not consider this 
notice a denial.
    (5) Attaches DD Form 2086, Record of Freedom of Information (FOI) 
Processing Cost, or DD 2086-1, Record of Freedom of Information (FOI) 
Processing Cost for Technical Data, to each request. The OPR must 
complete and return this form to the FOIA office. These forms give the 
fees for charging, if any, and processing costs you use to prepare the 
FOIA annual report.
    (6) Writes the requester to acknowledge receipt of the request if 
the date or postmark (whichever is later) is more than 10 workdays ago 
and informs the requester of any unusual problems.
    (7) Tells the requester if the record is not sufficiently described 
and asks for more information. If possible, offers to help the 
requester identify the requested records and tells what kind of 
information makes searching for a record easier.
    (8) Sends the request to the OPR who searches for the record and 
decides whether to release it.
    (9) Sends classified records with no OPR or functional equivalent 
to SAF/AAIS, through the MAJCOM or FOA FOIA office, for HQ USAF/SP 
review. Telephones SAF/AAIS before sending the records.
    (10) Tells the requester in a letter sent within 10 workdays after 
receiving the request of the final decision to release or deny the 
records.
    (11) When answering requests for lists of names and duty addresses, 
tells requesters as early as possible about the mass mailing 
restrictions outlined in AFI 37-125, Official Mail, Small Parcel and 
Distribution Management (formerly AFR 4-50).
    (12) Grants 10 additional workdays for one or more of three 
reasons:
    (i) All or part of the requested records are not at the 
installation processing the request.
    (ii) Fulfilling the request means collecting and reviewing an 
enormous number of records.
    (iii) Other Air Fore activities or other agencies need to be 
involved in deciding whether to release the records.
    (13) Sends the requester a letter within 10 workdays, giving the 
reason for the delay and a date (within 20 workdays after receiving the 
request) when the requester can expect a final decision.
    (14) Records extensions and reasons for them in the FOIA system.
    (15) Coordinates with the public affairs office if the requested 
records are potentially newsworthy or if the news media sent the 
request.
    (16) Sends releasable records to requesters with a bill (if 
appropriate).
    (17) Sends a request the OPR wants to deny through the MAJCOM or 
FOA FOIA office to the denial authority for a decision. The package 
must include:
    (i) The request.
    (ii) A copy of the requested records.
    (iii) The OPR's and SJA's written recommendations.
    (iv) The exemption cited.
    (v) The reason for denial.
    (b) The OPR locates the information and recommends its release. In 
cases where several OPRs have functional responsibility for the 
information, the primary OPR is the one responsible for most of the 
information in the document. The OPR:
    (1) Works with the offices of collateral responsibility (OCR) 
inside and outside the Air Force, considers the opinions and 
information they provide, and makes the final release decision.
    (2) Forwards records that need coordination with other Air Force 
functional areas and outside agencies to the MAJCOM or FOA FOIA office, 
which sends them to the appropriate FOI office for review and return 
for final decision.
    (3) Answers each functional request and follows FOIA denial 
procedures for records withheld.


Sec. 806.16  Referrals.

    A FOIA manager refers requests to another FOIA office after 
consulting with them when the request asks for records or information 
originated by someone other than the activity receiving the request or 
when an OPR finds records in a search that belong to another activity.
    (a) Refer FOIA requesters to sources that can provide unaltered 
publications and processed documents, such as maps, charts, 
regulations, and manuals to the public, with or without charge. For 
example, people can obtain documents published in the Federal Register 
without using the FOIA. The National Technical Information Service 
(NTIS), 5285 Port Royal Road, Springfield, VA 22161, sells current Air 
Force standard numbered (departmental) publications, but does not stock 
superseded, obsolete, rescinded, classified, FOUO, limited (L), or 
``X'' distribution Air Force publications. FOIA requests for these 
publications go through normal FOIA channels to the OPR for a release 
recommendation.
    (b) Usually, tell the requester about the referral, identify the 
record referred as security permits, and tell the requester to expect 
an answer from the agency or activity receiving the referral.
    (c) If a request would involve many referrals, tell the requester 
where to address the request; don't refer it yourself.
    (d) Before releasing records or information originated with the 
National Security Council (NSC) or the White House, refer them through 
the Office of the Assistant to the Secretary of Defense (Public 
Affairs) Directorate for Freedom of Information (OATSD[PA]DFOISR), 
Washington DC 20301. The OATSD(PA) will consult with them and reply 
back to you.
    (e) The General Accounting Office (GAO) is outside the Executive 
Branch and not subject to the FOIA. However, if the FOIA manager 
receives a FOIA request directly from the public or referred from GAO 
for GAO documents that contain Air Force or DoD information, process 
the request under FOIA.


Sec. 806.17  Categorizing requesters.

    (a) Requesters' fees depend on which group they belong to:
    (1) Category 1: Commercial. Requesters pay all search, review, and 
duplication. To decide who belongs in this category find out how these 
requesters will use the requested documents. If you are unsure how the 
requester plans to use the records or the request itself does not 
clearly state plans, seek additional information before you categorize 
the request.
    (2) Category 2: Educational or Noncommercial Scientific Institution 
or News Media. Requesters get the first 100 copies free and pay for 
additional copies. These requesters do not pay search or review 
charges. Requesters who use requested records to write and spread news 
are not considered commercial requesters.
    (3) Category 3: Others. Requesters get the first 2 hours of search 
and the first 100 copies free. These requesters do not pay review 
charges.
    (b) Analyze each request to categorize the requester. If you think 
the requester's category differs from what the requester claims, ask 
the individual for more justification and say you cannot begin 
searching for records until you have agreed on the category. If the 
requester does not send the FOIA manager more justification in 
reasonable time (normally, 30 calendar days), the manager makes a final 
decision and notifies the requester of the decision and of the right to 
appeal it.
    (c) Tell requesters that you cannot begin to answer their requests 
until they state they will pay the costs set for their category.


Sec. 806.18  Fee assessment.

    The FOIA limits charges to search, review, and duplication based on 
the requester's category.
    (a) Estimate fees if the requester asks. Do not charge an amount 
more than the estimate or the amount the requester agrees to unless the 
requester first agrees to pay more.
    (b) Search time includes all time spent looking for records to 
respond to a request. Personnel must search efficiently to minimize 
both the Air Force's and the requester's costs. Search efforts must be 
thorough and include all locations and activities most likely to have 
the requested records. Searches may include retired or staged records. 
Time spent reviewing documents to decide whether statutory exemptions 
apply counts as review time, not search time. For computer searches, 
determine the first 2 free hours against the salary scale of the person 
operating the computer.
    (1) FOIA managers may charge for search time for the appropriate 
category (and review time for commercial requesters only), if the 
requester agreed in advance to pay, even if:
    (i) A search does not uncover the requested records.
    (ii) The records found are entirely exempt from disclosure.
    (2) When estimated search charges exceed $25, tell the requester 
the estimated fees, unless the requester has already indicated a 
willingness to pay fees as high as the estimate. When feasible, offer 
the requester the opportunity to restate the request so that the search 
costs less.
    (c) Review is the process of examining documents to determine if 
one or more of the statutory exemptions allows withholding. It also 
includes the time it takes to excise information. Review does not 
include time spent resolving general legal or policy issues on 
exemptions. FOIA managers may only assess commercial requesters for 
initial review. This does not include reviews at the appeal stage for 
exemptions already applied, but it may include review to apply an 
exemption not previously cited.
    (d) Requesters pay only for copies of the records they actually 
receive. Copies may be on paper, microfiche, audiovisual, or machine-
readable magnetic tape or disk, among other media. FOIA managers must 
try hard to ensure copies are clear. If you cannot possibly provide a 
clear copy, tell the requester that the copy is the best available and 
that he or she can make an appointment to review the master copy. For 
copies of computer tapes and audiovisual material, charge the actual 
copying cost, including the operator's time.
    (e) Before beginning or continuing work on a request, FOIA managers 
may require advance payment from requesters:
    (1) Who have not paid fees on time (usually within 30 calendar 
days) in the past.
    (2) Whose estimated fees are over $250, unless the requester always 
pays promptly. In that case, give the requester an estimate and ask the 
requester to ensure full payment.
    (f) If the requester has always paid promptly, the FOIA manager 
sends the records and requests payment at the same time.
    (g) If a requester has not paid on time in the past, FOIA managers 
may ask the requester to:
    (1) Pay (or show proof of payment of) outstanding bills, plus 
interest, for past FOIA requests. Consult 31 U.S.C. 3717 for interest 
rates and coordinate with your accounting and finance office.
    (2) Pay estimated fees in advance.
    (h) If a requester has no payment history, or has not paid on time 
in the past, FOIA managers may ask the requester to pay after 
processing the request but before sending the records.
    (i) When employees with different hourly rates search for 
information for an ``Other'' (Category 3) requester, waive the cost of 
the most expensive 2 hours of search. Requesters receive the first 2 
hours search (Category 3 requesters only) and the first 100 pages of 
duplication (Categories 2 and 3) free only once per request. If you 
complete your work and refer the request to another FOI office for 
action, tell that FOI office how much time you spent searching and how 
many pages you copied for the requester.


Sec. 806.19  Aggregating requests.

    A requester may make many requests at once, each seeking parts of a 
document or documents, just to avoid paying fees. When a requester or a 
group of requesters breaks a request into many requests to avoid 
paying, the FOIA manager may combine the requests and charge 
accordingly. Before combining requests, be sure you have solid evidence 
that the requesters are trying to avoid fees. Do not combine one 
requester's multiple requests on unrelated subjects. Contact SAF/AAIQ 
before taking action.


Sec. 806.20  Fee waivers.

    (a) Waive fees for requesters of all categories when:
    (1) FOIA costs total $15 or less.
    (2) A record is created voluntarily to save the cost of supplying 
many records.
    (3) A record previously withheld is released at small cost (e.g., 
$15 to $30).
    (4) Releasing the information is likely to contribute significantly 
to public understanding of the operations or activities of the DoD and 
is not primarily in the commercial interest of the requester.
    (b) A waiver in the public interest establishes the two basic 
requirements below. Both must be met before you waive or reduce fees. 
Use the following six factors. Begin with the first four factors to 
determine ``public interest'' and then use the two remaining factors to 
decide if release ``is not primarily in the commercial interest of the 
requester.''
    (1) Requirement 1. Is releasing the information in the public 
interest business it will probably contribute significantly to public 
understanding of the government's operations or activities?
    (i) Factor 1--Subject of the Request. Analyze whether the subject 
matter will significantly contribute to the public understanding of DoD 
operations or activities. Requests made for records in DoD's possession 
originated by nongovernment organizations for their intrinsic content 
rather than informative value will likely not contribute to public 
understanding of DoD operations or activities. Press clippings, 
magazine articles, or records expressing an opinion or concern from a 
member of the public regarding a DoD activity are such records. 
Releasing older records may be relevant to current DoD activities, so 
do not discount it under this factor simply because it is old. For 
example, a requester might want historical records to study how a 
certain current DoD policy evolved. Review these requests closely, 
comparing the requester's stated purpose for the records and the 
potential for public understanding of DoD operations and activities.
    (ii) Factor 2--Informative Value. Closely analyze a record's 
substantive contents to determine whether disclosure is meaningful, and 
will inform the public on DoD operations or activities. While the 
subject of a request may contain information concerning DoD operations 
or activities it may not always help people understand these operations 
or activities. One example is a heavily edited record, containing only 
random words, fragmented sentences, or paragraph headings. Another 
example is information already in the public domain.
    (iii) Factor 3--General Public Will Understand the Subject Better. 
Will the records' release inform, or have the potential to inform, the 
public or just the requester or a few interested persons? Knowing the 
requester's identity is essential to determine whether he or she plans 
to, and knows how to, communicate information to the public. Plans to 
write a book, research a subject, work on a doctoral dissertation, or 
indigency are not reason enough to waive fees. The requester must tell 
how he or she plans to disclose the information to the general public. 
You may ask requesters for their qualifications, the nature of their 
research, the purpose of requesting information, and their plans for 
making information public.
    (iv) Factor 4--Significance of Public Understanding. Balance the 
relative significance or impact of the disclosure against the level of 
public knowledge or understanding that exists before disclosure. 
Records released on a subject of wide public interest should contain 
previously unknown facts that increase public knowledge. They should 
not duplicate what the general public already knows. Determining the 
significance of information requires objective judgment. Take care to 
determine whether disclosure will probably lead to significant public 
understanding of the issue. Do not judge whether the information is 
important enough to be public.
    (2) Requirement 2. Does disclosure of the information primarily 
mean profit for the requester?
    (i) Factor 5--Commercial Interest. If you determine the requester 
will use the records to make a profit, then decide if it's primary, as 
opposed to a personal or noncommercial interest. In addition to profit-
making organizations, individuals, and other organizations may have a 
commercial interest in certain records. When you have difficulty 
deciding whether a request is commercial in nature, the requester's 
identity and the circumstances of the request may help. You may write 
to the requester and ask for more details.
    (ii) Factor 6--Primary Interest. After you have determined the 
requester's commercial interest, decide if it is primary. Commercial 
interests are primary only if the requester's profit clearly overrides 
a personal or nonprofit interest. You must decide whether the 
commercial interest outweighs any benefit to the public as a result of 
disclosure. Waive or reduce fees when the public gains more than the 
requester. If the requester's commercial interest is greater than the 
public interest, do not waive or reduce fees even if public interest is 
significant. As business organizations, news organizations have a 
commercial interest; however, you can assume that their primary 
interest is giving the general public news. Scholars writing books or 
engaging in other academic research, may profit, either directly or 
indirectly (through the institution they represent); however, such work 
is primarily done for educational purposes. Usually you would not 
assess scholars fees. Assume that brokers or others who compile 
government information for marketing use the information for profit.
    (iii) Decide each fee waiver case by case. When you have doubts 
about waiving or charging a fee, favor the requester.


Sec. 806.21  Transferring fees to accounting and finance offices.

    The Treasurer of the United States has two accounts for FOIA 
receipts. Use account 3210, Sales of Publications and Reproductions, 
Freedom of Information Act, for depositing fees for publications and 
forms described in Federal Account Symbols and titles. Use receipt 
account 3210, Fees and Other Charges for Services, Freedom of 
Information Act, to deposit fees for searching for, copying, and 
reviewing records to provide information not in existing publications 
or forms. Add your disbursing office's prefix to the account numbers. 
Deposit all FOIA receipts in these accounts except those from 
industrially funded and nonappropriated funded activities. Deposit 
these receipts in the applicable fund.


Sec. 806.22  Fee rates.

    (a) These fees apply only to FOIA requests. Part 813 of this 
chapter, Schedule of Fees for Copying, Certifying and Searching Records 
and Other Documentary Material, contains the fee schedule for non-FOIA 
services. Refer to Part 806B of this chapter for guidance on fees for 
PA requests.
    (b) Search and review:
    (1) Clerical (E9 and GS-8 and below)--$12 an hour.
    (2) Professional (01-06 and GS-9-GS/GM-15)--$25 an hour.
    (3) Executive (07 and GS-16/ES1 and above)--$45 an hour.
    (c) Computer search fees are based on direct costs of the central 
processing unit, input-output devices, and memory capacity of the 
actual computer configuration. Also include the salary scale (equal to 
hourly rates above) for the computer operator or programmer who planned 
and carried out the search.
    (d) Duplication:
    (1) Preprinted material--$.02 per page.
    (2) Office copies--$.15 per page.
    (3) Microfiche--$.25 per page.
    (4) Computer copies (tapes or printouts)--actual cost of 
duplicating the tape or printout, including operator's time and tape 
cost.
    (e) Copying cost for audiovisual documents is the actual cost of 
reproducing the material, including the wage of the person doing the 
work. Audiovisual materials given to a requester need not be 
reproducible.
    (f) Special Services. Includes certifying that records are true 
copies and sending records by express mail. You may recover their costs 
if the requester clearly asks for and agrees to pay for them.


Sec. 806.23  Technical data.

    Technical data does not include computer software or data used for 
contract administration, such as financial and management information. 
If the FOIA requires, release technical data (not including critical 
technology with military or space application) after the requester pays 
all reasonable costs for search, duplication, and review.


Sec. 806.24  Technical data fee rates.

    (a) Clerical search and review--$13.25 an hour. Minimum charge--
$8.30. Professionals and executives--set rate before beginning at 
actual hourly rate. Minimum charge is \1/2\ of hourly rate.
    (b) Copying rates depend on the type of record. If this list does 
include the product, use the fair market value.
    (1) Aerial photographs, specifications, permits, charts, 
blueprints, and other technical documents--$2.50 each.
    (2) Microfilmed engineering data aperture cards (silver duplicate 
negatives)--$.75 per card.
    (3) Silver duplicate negatives, keypunched and verified--$.85 per 
card.
    (4) Diazo duplicate negatives--$.65 per card.
    (5) Diazo duplicate negatives keypunched and verified--$.75 per 
card.
    (6) Engineering data on 35mm roll film--$.50 per frame.
    (7) Engineering data 16mm roll film--$.45 per frame.
    (8) Engineering paper prints and drawings--$1.50 each.
    (9) Reprints of microfilm indices--$.10 each.
    (10) Office copies--$3.50 for up to six images. Each additional 
image--$.10.
    (11) Typewritten pages--$3.50 each.
    (12) Certification and validation with seal--$5.20.
    (13) Hand-drawn plots and sketches--$12 an hour or less.
    (14) Fee Waivers for Technical Data. Waive the fees if they are 
more than regular FOIA fee rates if a citizen or a US corporation asks 
and certifies the need for technical data to submit (or assess its 
ability to submit) an offer to supply the United States or its 
contractor with a product related to the technical data. You may ask 
the citizen or corporation for a deposit of not more than what 
fulfilling the request costs. When the citizen or coporation submits 
the offer, refund the deposit. Also waive charges:
    (15) If a requester needs technical data to meet the terms of an 
international agreement.
    (16) If you decide, using regular FOIA fee waiver guidance, that a 
waiver is in the interest of the United States.


Sec. 806.25  Appeals.

    Requesters may appeal denials of records, category determinations, 
fee waiver requests, and ``no records'' determinations by writing to 
the Office of the Secretary of the Air Force, within 60 calendar days 
after the date of the denial letter. A requester who sends the appeal 
after 60 calendar days, should explain the reason for the delay.
    (a) Requesters who appeal have exhausted all administrative 
remedies within the Department of the Air Force and The Office of the 
General Counsel to the Secretary of the Air Force (SAF/GC) makes a 
final decision. Requesters must address all appeals to the Office of 
the Secretary of the Air Force, through the MAJCOM or FOA FOIA office 
that denied the request. Requesters should attach a copy of the denial 
letter to their appeal and give their reasons for appealing.
    (b) After coordinating with the local SJA (and the OPR, if 
appropriate), MAJCOM and FOA FOIA offices send all appeals, including 
late submissions, to Air Force Legal Services Agency (AFLSA/JACL) for 
determination, unless they have reconsidered and approved the request. 
MAJCOM and FOA FOIA offices give appeals priority. They do not have 20 
workdays to process an appeal.
    (c) Requesters must appeal denials involving Office of Personnel 
Management's controlled civilian personnel records to the Office of the 
General Counsel, Office of Personnel Management, 1900 E Street NW, 
Washington DC 20415.
    (d) When sending appeals to AFLSA/JACL, attach:
    (1) The original appeal letter and envelope.
    (2) The initial request and any attachments.
    (3) The denial letter, with an index of the denied material, if 
applicable.
    (4) Copies of all records you have already provided; or if the 
records are massive (Several cubic feet) and AFLSA/JACL agrees, an 
index or description of released records.
    (5) Copies of all administrative processing documents, including 
extension letters and opinions and recommendations about the request.
    (6) Copy of the denied record or denied portions of it marked to 
show what you withheld. If the records are massive and AFLSA/JACL 
agrees, you may substitute a detailed description of the documents.
    (7) A point-by-point discussion of factual and legal arguments the 
requester's appeal contains and, proof that the denial authority 
considered and rejected these arguments and why.
    (8) An explanation of the decisionmaking process for intraagency 
documents denied under the deliberative process privilege and how the 
denied material fits into that process.
    (e) Assemble appeal packages:
    (1) Arrange attachments in the order listed in paragraph (d) of 
this section. Use tabbed dividers to separate attachments.
    (2) List all attachments in your cover letter.
    (3) Include the name of the person to contact and a phone number.
    (f) AFLSA/JACL sends the appeal of the Office of the General 
Counsel, who makes a final determination. The law requires a final 
decision within 20 workdays after receipt of the appeal letter. The 20 
days begins when the denial authority's FOIA office receives the 
appeal. The time limit includes processing actions by all levels. If a 
final determination cannot be made within 20 days, AFLSA/JACL writes to 
the requester to acknowledge the appeals' receipt and to explain the 
delay. If SAF/GC upholds the denial, in whole or in part, SAF/GC tells 
the requester, explains reasons for the denial, and tells the requester 
about judicial review rights. If SAF/GC grants the appeal, that office 
tells the requester in writing and releases, or directs the release of, 
the record.
    (g) For ``no records'' determinations, search again, if warranted, 
or verify the first search. Include in the package you send to AFLSAS/
JACL any letters that show you systematically tried to find records. 
Tell, for example, what areas or offices you search for how you 
conducted the search--manually, by computer, by telephone, etc.
    (h) For appeals to denials of fee waiver requests, fully account 
for actual and estimated costs with a copy of the DD 2086 or DD Form 
2086-1.


Sec. 806.26  For Official Use Only (FOUO).

    FOUO is not a classification. Information marked FOUO must meet the 
criteria for exemptions 2 through 9, or you cannot withhold it. Do not 
consider or mark any other records FOUO.
    (a) Originators mark records when they create them to call 
attention to FOUO content. An FOUO marking does not mean you must 
withhold a record under the FOIA. You still need to review a requested 
record. Examine records with and without markings to identify 
information that needs protection and is exempt from public release or 
to decide whether discretionary release is appropriate.
    (1) Information in a technical document that requires a 
distribution statement per AFI 61-204, Controlling the Distribution of 
Classified and Unclassified Scientific and Technical Information 
(formerly AFR 80-30), must show that statement. The originator may also 
mark the information FOUO, if appropriate.
    (2) Mark an unclassified document containing FOUO information ``For 
Official Use Only'' at the bottom, on the outside of the front cover 
(if any), on each page containing FOUO information, on the back page, 
and on the outside of the back cover (if any).
    (3) In unclassified documents, the originator may also mark 
individual paragraphs that contain FOUO information to alert users and 
assist in review.
    (4) In a classified document, mark:
    (i) An individual paragraph that contains FOUO, but not classified 
information, by placing ``(FOUO)'' at the beginning of the paragraph.
    (ii) The top and bottom of each page that has both FOUO and 
classified information, with the highest security classification of 
information on that page.
    (iii) ``FOUO'' at the bottom of each page that has FOUO but not 
classified information.
    (5) If a classified document also contains FOUO information or if 
the classified material becomes FOUO when declassified, place the 
following statement on the bottom of the cover or the first page, under 
the classification marking: If declassified, review the document to 
make sure material is not FOUO and not exempt under this part before 
public release.
    (6) Mark other records, such as computer printouts, photographs, 
films, tapes, or slides,``For Official Use Only'' or ``FOUO'' so the 
receiver or viewer knows the record contains FOUO information.
    (7) Mark FOUO material sent to authorized persons outside the DoD 
with an explanation typed or stamped on the document:

    This document contains information EXEMPT FROM MANDATORY 
DISCLOSURE UNDER THE FOIA. Exemption(s) . . . . . . applies (apply). 
(Further distribution is prohibited without the approval of (enter 
OPR)).

    (b) DoD components, officials of DoD components, and authorized DoD 
contractors, consultants, and grantees send FOUO information to each 
other to conduct official DoD business. Tell recipients the status of 
such information, and send the material in a way that prevents 
unauthorized public disclosure. Make sure documents that transmit FOUO 
material call attention to any FOUO attachments. Normally, you may send 
FOUO records over facsimile equipment. To prevent unauthorized 
disclosure, consider attaching special cover sheets (i.e., AF Form 
3227, Privacy Act Cover Sheet, for Privacy Act information), the 
location of sending and receiving machines, and whether authorized 
personnel are around to receive FOUO information. FOUO information may 
be passed to officials in other departments and agencies of the 
executive and judicial branches to fulfill a government function. Mark 
the records ``For Official Use Only,'' and tell the recipient the 
information is exempt from public disclosure under the FOIA and whether 
it needs special handling. If the records are subject to the PA, refer 
to Part 806b of this chapter for PA disclosure policies.
    (c) AFI 90-401, Air Force Relations With Congress (formerly AFR 11-
7), governs the release of FOUO information to members of the Congress 
and AFI 65-401, Air Force Relations With the General Accounting Office 
(formerly AFR 11-8), governs its release to the General Accounting 
Office (GAO). Review records before releasing to see if the information 
warrants FOUO status. If not, remove FOUO markings. If the material 
still warrants FOUO status, mark the records FOUO and explain the 
appropriate exemption and marking to the recipient.
    (d) When you use the US Postal Service, package records with FOUO 
information so their contents are safe. If FOUO information is not 
combined with classified information, individuals may send FOUO 
information by First Class Mail or Parcel Post. Bulky shipments, such 
as FOUO directives or testing materials, that qualify under postal 
regulations may be sent by Fourth Class Mail.
    (e) Mark each part of a message that contains FOUO information. 
Unclassified messages containing FOUO information must show the 
abbreviation ``FOUO'' before the text begins.
    (f) To safeguard FOUO records during normal duty hours, place them 
in an out-of-sight location if people who do not work for the 
government come into the work area. After normal duty hours, store FOUO 
records to prevent unauthorized access. File them with other 
unclassified records in unlocked files or desks, etc., if the 
Government or a Government contractor provides normal internal building 
security. When there is no internal security, locked buildings or rooms 
usually provide adequate after-hours protection. For additional 
protection, store FOUO material in locked containers such as file 
cabinets, desks, or bookcases.
    (g) When a record is no longer FOUO, remove the markings or 
indicate on the document the markings no longer apply. Try to tell 
everyone who has the records that their status has changed.
    (h) Destroy FOUO materials by tearing them up so no one can put 
them back together and throwing them into trash containers. When the 
information needs more protection, local authorities may use other 
methods. However, balance the expense of extra protection against the 
degree of sensitivity of the FOUO information in the records. You may 
recycle FOUO material. Safeguard the FOUO documents or information 
until recycling to prevent unauthorized disclosure. Recycling contracts 
must include agreements on how to protect and destroy FOUO and PA 
materials.
    (i) Unauthorized disclosure of FOUO records is not an unauthorized 
disclosure of classified information. Air Force personnel must act to 
protect FOUO records under their control from unauthorized disclosure. 
When unauthorized persons gain access to these records, administrators 
find out who is responsible and take disciplinary action where 
appropriate. Unauthorized disclosure of FOUO information containing PA 
information may also result in civil or criminal sanctions against 
individuals or the Air Force. Tell the originating organization when 
its records are improperly disclosed.

Appendix A to Part 806--Glossary of Terms

    Appellate Authority--The Office of the General Counsel to the 
Secretary of the Air Force, who decides FOIA appeals.
    Commercial Request--A category 1 request from, or on behalf of, 
one who seeks information that furthers the commercial, trade, or 
profit interest of the requester or the person represented.
    Denial--A determination by a denial authority not to disclose 
requested records in its possession and control.
    Determination--The decision to grant or deny all or part of a 
request from the public for records.
    Disclosure--Providing access to, or one copy of, a record.
    Disclosure Authority--Official authorized to release records.
    Education Institution Request--A category 2 request from a 
preschool, a public or private elementary or secondary school, an 
institution of undergraduate higher education, an institution of 
graduate higher education, an institution of professional education, 
or an institution of vocational education that operates one or more 
scholarly research programs.
    Electronic Data--Records or information created, stored, and 
retrieved by electronic means. Electronic records do not include 
computer software used as a tool to create, store, or retrieve 
electronic data.
    FOIA Manager--The person who manages the FOIA Program at each 
organizational level.
    FOIA Request--A written request for records from the public that 
cites or implies the FOIA.
    Functional Request--A request for records that does not 
specifically cite or imply the FOIA.
    Glomar Response--A reply that neither confirms nor denies the 
existence or nonexistence of the requested record. A ``Glomar'' 
response may be used with FOIA exemptions 1, 6, and 7(C).
    Initial Denial Authority (IDA)--Persons in authority positions 
who may withhold records under the FOIA.
    News Media Request--A category 2 request from a person whose job 
is gathering news for a publishing or broadcasting organization that 
supplies news to the public. News media also includes free lance 
journalists who can prove they have good reason for expecting a news 
organization to publish their work.
    Noncommercial Scientific Institution Request--A category 2 
request from a noncommercial institution that operates solely to 
conduct scientific research not intended to promote a particular 
product or industry.
    Other Request--A category 3 request from anyone who does not fit 
into the Commercial category or the Noncommercial Scientific or 
Educational Institutions or News Media category.
    Partial Denial--Decision to withhold part of a requested agency 
record.
    Public Interest--When releasing official information sheds light 
on how an agency performs its statutory duties and informs citizens 
about what their government is doing or reveals an Air Force 
official's conduct. Normally there is no public interest in personal 
information if it does not reveal a person's conduct in their job.
    Records--The products of data compilation, such as all books, 
papers, maps, and photographs, machine readable materials or other 
documentary materials, regardless of physical form or 
characteristics, made or received by an agency of the U.S. 
Government in connection with the transaction of public business and 
in the agency's possession and control at the time it receives the 
request. Records such as notes, working papers, and drafts kept as 
historical evidence of actions are subject to the FOIA, and may be 
exempt from release under 5 U.S.C. 552(b)(5) if an identifiable harm 
exists by their release. Computer software rarely qualifies as an 
agency record. Evaluate each case. Two examples of software as a 
record are:
    a. Data embedded in the software cannot be extracted without the 
software.
    b. Software that reveals information about DoD organization, 
policies, functions, decisions, or procedures, such as computer 
models used to forecast budget outlays, to calculate retirement 
system costs, or to optimize models on travel costs.
    Search--To look for a requested record or a specific section of 
a record. You can search over the telephone, manually, or with 
computer searches.
    Statutory Time Limits--The 10 workdays after receiving the 
request to tell the requester whether the records are released or 
denied. This term also covers the additional 10-workday extension 
allowed for reasons in Sec. 806.15(a)(12). The 10 days begin when 
the FOIA manager receives a properly filed request with a reasonable 
description of the requested records and with the requester's stated 
willingness to pay fees or fees paid. If the requester disagrees 
with his or her category or wants fees reduced or waived, the 10 
days begin after resolving these issues.
    Technical Data--Information (including computer software 
documentation) that is scientific or technical in nature and 
recorded on any medium.

Appendix B to Part 806--Requirements of 5 U.S.C. 552(b)(4) (Send With 
Letter to Submitters)

    (a) The Freedom of Information Act (FOIA) requires Federal 
agencies to provide their records, except those specifically 
exempted, for the public to inspect and copy.
    (b) Section (b) of the Act lists nine exemptions that are the 
only basis for withholding records from the public.
    (c) In this case, the fourth exemption, 5 U.S.C. 552(b)(4), may 
apply to records or information the Air Force maintains. Under this 
exemption, agencies may withhold trade secrets and commercial or 
financial information they obtained from a person or organization 
outside the government which is privileged or confidential.
    (d) This generally includes information provided and received 
with the understanding that it will be kept privileged or 
confidential.
    (e) Commercial or financial matter is ``confidential'' and 
exempt if its release will probably:
    (1) Impair the Government's ability to obtain necessary 
information in the future.
    (2) Substantially harm the source's competitive position or 
impair some other legitimate Government interest.
    (f) The exemption may be used to help the source when public 
disclosure will probably cause substantial harm to its competitive 
position. Examples of information that may qualify for this 
exemption include:
    (1) Commercial or financial information received in confidence 
with loans, bids, contracts, or proposals, as well as other 
information received in confidence or privileged, such as trade 
secrets, inventions, discoveries, or other proprietary data.
    (2) Statistical data and commercial or financial information 
concerning contract performance, income, profits, losses, and 
expenditures, offered and received in confidence from a contractor 
or potential contractor.
    (3) Personal statements given during inspections, 
investigations, or audits, received and kept in confidence because 
they reveal trade secrets or commercial or financial information, 
normally considered confidential or privileged.
    (4) Financial data that private employers give in confidence for 
local wage surveys used to set and adjust pay schedules for the 
prevailing wage rate of DoD employees.
    (5) Information about scientific and manufacturing processes or 
developments that is technical or scientific or other information 
submitted with a research grant application, or with a report while 
research is in progress.
    (6) Technical or scientific data a contractor or subcontractor 
develops entirely at private expense, and technical or scientific 
data developed partly with Federal funds and partly with private 
funds, in which the contractor or subcontractor retains legitimate 
proprietary interests per 10 U.S.C. 2320-2321 and 48 CFR 227.4.
    (7) Computer software copyrighted under the Copyright Act of 
1976 (17 U.S.C. 106), the disclosure of which would adversely impact 
its potential market value.
    (g) If release of the subject material would prejudice your 
commercial interests, give detailed written reasons that identify 
the specific information and the competitive harm it will cause to 
you, your organization, or your business. The Act requires we 
provide any reasonably segregable part of a record after deleting 
exempt parts. So, tell us if deleting key words or phrases would 
adequately protect your interests.
    (h) If you do not prove the probability of substantial harm to 
your competitive position or other commercial interests, we may be 
required to release the information. Records qualify for protections 
case by case.
Patsy J. Conner,
Air Force Federal Register Liaison Officer.
[FR Doc. 94-24663 Filed 10-5-94; 8:45 am]
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