[Federal Register Volume 62, Number 33 (Wednesday, February 19, 1997)]
[Proposed Rules]
[Pages 7398-7431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3412]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 286

[DoD 5400.7-R]


DoD Freedom of Information Act Program Regulation

AGENCY: Department of Defense

ACTION: Proposed rule.

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SUMMARY: This proposed revision provides substantive and administrative 
changes to conform to the requirements of the Electronic Freedom of 
Information Act Amendments of 1996, 5 U.S.C. 552, as amended by Public 
Law 104-231. It also provides guidance to the Department of Defense on 
implementation of this amended law.

DATES: Comments must be received by April 21, 1997.

ADDRESSES: Forward copies to ASD(PA), Room 2C757, 1400 Defense 
Pentagon, Washington, DC 20301-1400

FOR FURTHER INFORMATION CONTACT: Mr. C. Talbott, 703-697-1171.

SUPPLEMENTARY INFORMATION:

Executive Order 12866, ``Regulatory Planning and Review''

    It has been determined that 32 CFR part 286 is not a significant 
regulatory action. The rule does not:
    (1) Have an annual effect to the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. This rule implements the Freedom of Information Act 
(5 U.S.C. 552), a statute concerning the release of Federal Government 
records, and does not economically

[[Page 7399]]

impact Federal Government relations with the private sector.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 
35)

    It has been certified that this part does not impose any reporting 
or recordkeeping requirements under the Paperwork Reduction Act of 
1995.

List of Subjects in 32 CFR Part 286

    Freedom of information.

    Accordingly, 32 CFR part 286 is proposed to be revised to read as 
follows:

PART 286--DOD FREEDOM OF INFORMATION ACT PROGRAM REGULATION

Subpart A--General Provisions

Sec.
286.1  Purpose and applicability.
286.2  DoD public information.
286.3  Definitions.
286.4  Policy.

Subpart B--FOIA Reading Rooms

286.7  Requirements.
286.8  Indexes.

Subpart C--Exemptions

286.11  General provisions.
286.12  Exemptions.

Subpart D--For Official Use Only

286.15  General provisions.
286.16  Markings.
286.17  Dissemination and transmission.
286.18  Safeguarding FOUO information.
286.19  Termination, disposal and unauthorized disclosure.

Subpart E--Release and Processing Procedures

286.22  General provisions.
286.23  Initial determinations.
286.24  Appeals.
286.25  Judicial actions.

Subpart F--Fee Schedule

286.28  General provisions.
286.29  Collection of fees and fee rates.
289.30  Collection of fees and fee rates for technical data.

Subpart G--Reports

286.33  Reports control.
286.34  Annual report.

Subpart H--Education and Training

286.37  Responsibility and purpose.

Appendix A to Part 286--Unified Combatant Commands--Processing 
Procedures for FOIA Appeals
Appendix B to Part 286--Addressing FOIA Requests
Appendix C to Part 286--Other Reason Categories
Appendix D to Part 286--''Record of Freedom of Information (FOI) 
Processing Cost'' (DD Form 2086)
Appendix E to Part 286-- ``Record of Freedom of Information (FOI) 
Processing Cost for Technical Data'' (DD Form 2086-1)
Appendix F to Part 286-- ``Annual Report Freedom of Information 
Act'' (DD Form 2564)
Appendix G to Part 286--DoD Freedom of Information Act Program 
Components

    Authority: 5 U.S.C. 552.

Subpart A--General Provisions


Sec. 286.1  Purpose and applicability.

    (a) Purpose. This part provides policies and procedures for the 
Department of Defense (DoD) implementation of the Freedom of 
Information Act (5 U.S.C. 552, as amended) and DoD Directive 5400.7 
1 and promotes uniformity in the DoD Freedom of Information Act 
(FOIA) Program.
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    \1\  Copies may be obtained, at cost, from the National 
Technical Information Service, 5285 Port Royal Road, Springfield, VA 
22161.
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    (b) Applicability. This part applies to the Office of the Secretary 
of Defense (OSD), the Military Departments, the Chairman of the Joint 
Chiefs of Staff, the Unified Combatant Commands, the Inspector General 
of the Department of Defense (IG DoD), the Defense Agencies, and the 
DoD Field Activities (hereafter referred to collectively as ``the DoD 
Components'). This part takes precedence over all DoD Component 
publications that supplement and implement the DoD FOIA Program. A list 
of DoD Components is at appendix G to this part.


Sec. 286.2  DoD public information.

    (a) The public has a right to information concerning the activities 
of its Government. DoD policy is to conduct its activities in an open 
manner and provide the public with a maximum amount of accurate and 
timely information concerning its activities, consistent always with 
the legitimate public and private interests of the American people. A 
record requested by a member of the public who follows rules 
established by proper authority in the Department of Defense shall not 
be withheld unless the record is exempt from mandatory disclosure under 
the FOIA. As a matter of policy, DoD Components shall make 
discretionary disclosures of exempt records or information whenever 
disclosure would not foreseeably harm an interest protected by a FOIA 
exemption, but this policy does not create any right enforceable in 
court. In order that the public may have timely information concerning 
DoD activities, records requested through public information channels 
by news media representatives that would not be withheld if requested 
under the FOIA should be released upon request. Prompt responses to 
requests for information from news media representatives should be 
encouraged to eliminate the need for these requesters to invoke the 
provisions of the FOIA and thereby assist in providing timely 
information to the public. Similarly, requests from other members of 
the public for information that would not be withheld under the FOIA 
should continue to be honored through appropriate means without 
requiring the requester to invoke the FOIA.
    (b) Within the Office of the Secretary of Defense, the Chief 
Information Officer, who is also the Assistant Secretary of Defense for 
Command, Control, Communications, and Intelligence is responsible for 
preparing reference material or a guide for requesting records or 
information from the DoD, subject to the nine exemptions of the FOIA. 
This part shall also include an index of all major information systems, 
and a description of major information and record locator systems. DoD 
FOIA Components shall coordinate with the appropriate office(s) to 
insure that this function is also accomplished within their department 
or organization.
    (c) DoD Components shall also prepare, in addition to normal FOIA 
regulations, a handbook for obtaining information from their 
organization. This handbook should be a short, simple explanation to 
the public of what the FOIA is designed to do, and how a member of the 
public can use it to access government records. Each DoD Component 
should explain the types of records that can be obtained through FOIA 
requests, why some records cannot, by law, be made available, and how 
the DoD Component determines whether the record can be released. The 
handbook should also explain how to make a FOIA request, how long the 
requester can expect to wait for a reply, and explain the right of 
appeal. The handbook should supplement other information locator 
systems, such as the Government Information Locator System (GILS), and 
explain how a requester can obtain more information about those 
systems. The handbook should be available on paper and through 
electronic means, and identify how a requester can access DoD 
Components'' Freedom of Information Act annual reports. Similarly, the 
DoD Components'' Freedom of Information Act annual reports should refer 
to the handbook and how to obtain it.

[[Page 7400]]

    (d) Control system. A request for records that invokes the FOIA 
shall enter a formal control system designed to ensure accountability 
and compliance with the FOIA. Any request for DoD records that either 
explicitly or implicitly cites the FOIA shall be processed under the 
provisions of this part, unless otherwise required by Sec. 286.4 (m)


Sec. 286.3  Definitions.

    As used in this part, the following terms and meanings shall be 
applicable:
    Administrative appeal. A request by a member of the general public, 
made under the FOIA, asking the appellate authority of a DoD Component 
to reverse a decision to: Withhold all or part of a requested record; 
deny a fee category claim by a requester; deny a request for expedited 
processing due to demonstrated compelling need under Sec. 286.4 (d) 
(3); deny a request for waiver or reduction of fees; deny a request to 
review an initial fee estimate; and confirm that no records were 
located during the initial search.
    Agency record. (1) The products of data compilation, such as all 
books, papers, maps, and photographs, machine readable materials, 
inclusive of those in electronic form or format, or other documentary 
materials, regardless of physical form or characteristics, made or 
received by an agency of the United States Government under Federal law 
in connection with the transaction of public business and in DoD's 
possession and control at the time the FOIA request is made.
    (2) The following are not included within the definition of the 
word ``record'':
    (i) Objects or articles, such as structures, furniture, vehicles 
and equipment, whatever their historical value, or value as evidence.
    (ii) Anything that is not a tangible or documentary record, such as 
an individual's memory or oral communication.
    (iii) Personal records of an individual not subject to agency 
creation or retention requirements, created and maintained primarily 
for the convenience of an agency employee, and not distributed to other 
agency employees for their official use.
    (iv) Information stored within a computer for which there is no 
existing computer program for retrieval of the requested information.
    (3) A record must exist and be in the possession and control of the 
Department of Defense at the time of the request to be considered 
subject to this part and the FOIA. There is no obligation to create, 
compile, or obtain a record to satisfy an FOIA request. See Sec. 286.4 
(g) (2) with respect to creating a record in the electronic 
environment.
    (4) Hard copy or electronic records, which are subject to FOIA 
requests under 5 U.S.C. 552 (a)(3), and which are available to the 
public through an established distribution system, or through the 
Federal Register, the National Technical Information Service, or the 
Internet, normally need not be processed under the provisions of the 
FOIA. If a request is received for such information, provide the 
requester with guidance on how to obtain the information. However, if 
the requester insists that the request be processed under the FOIA, 
then process the FOIA request. If the information sought is not an 
agency record pursuant to the FOIA and this part, there is no 
obligation to process the request under the FOIA, and the requester 
shall be so notified.
    Appellate authority. The Head of the DoD Component or the Component 
head's designee having jurisdiction for this purpose over the record, 
or any of the other adverse determinations outlined in definitions 
``Initial denial authority and Administrative appeal.'
    DoD Component. An element of the Department of Defense, as defined 
in Sec. 286.1 (a) of this section authorized to receive and act 
independently on FOIA requests (see appendix G to this part). A DoD 
component has its own initial denial authority (IDA), appellate 
authority, and legal counsel.
    Electronic data. Records and information (including e-mail) which 
are created, stored, and retrievable by electronic means.
    FOIA request. A written request for DoD records, made by any 
person, including a member of the public (U.S. or foreign citizen), an 
organization, or a business, but not including a Federal agency or a 
fugitive from the law, that either explicitly or implicitly invokes the 
FOIA, DoD Directive 5400.7, this part, or DoD Component supplementing 
regulations or instructions. Written requests may be received by postal 
service or other commercial delivery means, by facsimile, or 
electronically.
    Honoring form or format requests. DoD Components shall provide the 
record in any form or format requested by the requester if the record 
is readily reproducible in that form or format. DoD Components shall 
make reasonable efforts to maintain their records in forms or formats 
that are reproducible. In responding to requests for records, DoD 
Components shall make reasonable efforts to search for records in 
electronic form or format, except when such efforts would significantly 
interfere with the operation of the DoD Components'' automated 
information system. Such determinations shall be made on a case by case 
basis. See also Sec. 286.4 (g) (2).
    Initial denial authority (IDA). An official who has been granted 
authority by the head of a DoD component to: withhold records requested 
under the FOIA for one or more of the nine categories of records exempt 
from mandatory disclosure. IDA's may also deny a fee category claim by 
a requester; deny a request for expedited processing due to 
demonstrated compelling need under Sec. 286.4 (c) (3); deny a request 
for a waiver or reduction of fees; review a fee estimate; and confirm 
that no records were located in response to a request.
    Public interest. The interest in obtaining official information 
that sheds light on an agency's performance of its statutory duties 
because the information falls within the statutory purpose of the FOIA 
to inform citizens about what their government is doing. That statutory 
purpose, however, is not fostered by disclosure of information about 
private citizens accumulated in various governmental files that reveals 
nothing about an agency's or official's own conduct.


Sec. 286.4  Policy.

    (a) Compliance with the FOIA. DoD personnel are expected to comply 
with the FOIA , this part, and DoD FOIA policy in both letter and 
spirit. This strict adherence is necessary to provide uniformity in the 
implementation of the DoD FOIA Program and to create conditions that 
will promote public trust.
    (b) Openness with the public. The Department of Defense shall 
conduct its activities in an open manner consistent with the need for 
security and adherence to other requirements of law and regulation. 
Records not specifically exempt from disclosure under the Act shall, 
upon request, be made readily accessible to the public in accordance 
with rules promulgated by competent authority, whether or not the Act 
is invoked.
    (c) Avoidance of procedural obstacles. DoD Components shall ensure 
that procedural matters do not unnecessarily impede a requester from 
obtaining DoD records promptly. Components shall provide assistance to 
requesters to help them understand and comply with procedures 
established by this part and any supplemental regulations published by 
the DoD Components.
    (d) Prompt action on requests. (1) Generally, when a member of the 
public complies with the procedures established in this part and DoD 
Component regulations or instructions

[[Page 7401]]

for obtaining DoD records, the request shall receive prompt attention, 
and a response determination shall be dispatched within 10 working days 
(20 working days effective October 2, 1997) unless a significant number 
of requests precludes a determination within this time period. A 
response determination is notification to the requester that the 
records are released, or will be released on a certain date, or the 
records are denied under the appropriate FOIA exemption, or the records 
cannot be provided for one or more of the other reasons in paragraph 
(c) of this section. Interim responses acknowledging receipt of the 
request are encouraged; however, such responses do not constitute a 
response determination pursuant to the FOIA.
    (2) Multitrack processing. When a Component has a significant 
number of requests which precludes a response determination being made 
within 10 working days (20 working days effective October 2, 1997), 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 as described in paragraph (d) (3) of this section. DoD 
Components may establish as many processing queues as they wish; 
however, as 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 shall be a processing queue 
for simple requests, one track for complex requests, and one track 
shall be a processing queue for expedited processing as described in 
paragraph (d) (3) of this section. Simple and complex requests shall be 
decided by each DoD Component. DoD Components shall provide a requester 
whose request does not qualify for the fastest queue (except for 
expedited processing as described in paragraph (d) (3) of this section, 
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. This multitrack processing system does not obviate 
components'' responsibility to exercise due diligence in processing 
requests in the most expeditious manner possible.
    (3) 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, DoD 
Components shall process the request as soon as practicable. Actions by 
DoD Components 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. 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) It is also 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. News 
media requesters would normally qualify; however, other persons must 
demonstrate that their primary activity involves publishing or 
otherwise disseminating information to the public, not just a 
particular segment or group.
    (A) Urgently needed. 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.
    (B) Actual or alleged Federal government activity. The information 
concerns some actions taken, contemplated, or alleged by or about the 
government of the United States, or one of its components or agencies, 
including the Congress.
    (iii) 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 their 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.
    (iv) Other reason for expedited processing. Another reason which 
merits expedited processing by DoD Components is an imminent loss of 
substantial due process rights. 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 their 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. Once the decision has been made to expedite the 
request for this reason, the request may be processed in the expedited 
processing queue behind those requests qualifying for compelling need.
    (v) These same procedures also apply to requests for expedited 
processing of administrative appeals.
    (e) Use of exemptions. It is DoD policy to make records publicly 
available, unless the record qualifies for exemption under one or more 
of the nine exemptions. It is DoD policy that DoD Components shall make 
discretionary releases whenever possible; however, a discretionary 
release is normally not appropriate for records clearly exempt under 
exemptions 1, 3, 4, 6, 7 (F) and 7(C). Exemptions 2, 5, and 7(A)(B)(D) 
and (E) are discretionary in nature, and DoD Components are encouraged 
to exercise discretionary releases whenever possible. Exemptions 4, 6 
and 7(C) cannot be claimed when the requester is the submitter of the 
information.
    (f) Public domain. Nonexempt records released under the authority 
of this part are considered to be in the public domain. Such records 
may also be made available in Components' reading rooms in paper form, 
as well as electronically to facilitate public access. Exempt records 
released pursuant to the FOIA may be considered to be in the public 
domain only when their release constitutes a waiver of the FOIA 
exemption. Disclosure to a properly constituted advisory committee, to 
Congress, or to other Federal agencies does not waive the exemption. 
(See Sec. 286.22 (d)). Records disclosed without authorization by the 
appropriate DoD official (``leaks'') do not lose their exempt status. 
Also, while authority may exist to disclose records to individuals in 
their official capacity, the provisions of this part apply if the same 
individual seeks the records in a private or personal capacity.
    (g) Creating a record. (1) A record must exist and be in the 
possession and control of the Department of Defense at the time of the 
search to be considered subject to this part and the FOIA. Unless the 
originator or submitter of the record has imposed restrictions 
controlling the dissemination of the record, a DoD Component has 
control of a record when it has possession of the record and uses it in 
the conduct of its business. There is no obligation to create, compile, 
or obtain a record to satisfy an FOIA request. A DoD Component,

[[Page 7402]]

however, may compile a new record when so doing would result in a more 
useful response to the requester, or be less burdensome to the agency 
than providing existing records, and the requester does not object. 
Cost of creating or compiling such a record may not be charged to the 
requester unless the fee for creating the record is equal to or less 
than the fee which would be charged for providing the existing record. 
Fee assessments shall be in accordance with subpart F of this part.
    (2) With respect to electronic data, the issue of whether records 
are actually created or merely extracted from an existing data base is 
not always readily apparent. Consequently, when responding to FOIA 
requests for electronic data where creation of a record, programming, 
or particular format are questionable, Components should apply a 
standard of reasonableness. In other words, if the capability exists to 
respond to the request, and the effort would be a business as usual 
approach, then the request should be processed. However, the request 
need not be processed where the capability to respond does not exist 
without a significant expenditure of resources, thus not being a normal 
business as usual approach. As used in this sense, a significant 
expenditure of resources in both time and manpower, which would cause a 
significant interference with the operation of the components' 
automated information system would not be a business as usual approach.
    (h) Description of requested record. (1) Identification of the 
record desired is the responsibility of the requester. The requester 
must provide a description of the desired record, that enables the 
Government to locate the record with a reasonable amount of effort. 
When a DoD Component receives a request that does not reasonably 
describe the requested record, it shall notify the requester of the 
defect. The defect should be highlighted in a specificity letter, 
asking the requester to provide the type of information outlined below 
in paragraph (h)(2) of this section. DoD Components are not obligated 
to act on the request until the requester responds to the specificity 
letter. When practicable, DoD Components 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 Act.
    (2) 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. 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. Event-related and includes the circumstances that 
resulted in the record being created or the date and circumstances 
surrounding the event the record covers.
    (3) Generally, a record is not reasonably described unless the 
description contains sufficient Category I information to permit the 
conduct of an organized, nonrandom search based on the DoD Component'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.
    (4) The following guidelines deal with requests for personal 
records. Ordinarily, when personal identifiers are provided only in 
connection with a request for records concerning the requester, only 
records in a Privacy Act system of records, retrievable by personal 
identifiers need be searched. However, if a DoD Component has reason to 
believe that records on the requester may exist in a record system 
other than a Privacy Act system, the DoD Component shall search that 
system under the provisions of the FOIA. In either case, DoD Components 
may request a reasonable description of the records desired before 
searching for such records under the provisions of the FOIA and the 
Privacy Act (5 U.S.C. 552a). If the record is releasable under the 
FOIA, the Privacy Act does not bar its disclosure. See paragraph (m) of 
this section for the relationship between the FOIA and the Privacy Act.
    (5) The previous guidelines notwithstanding, the decision of the 
DoD Component concerning reasonableness of description must be based on 
knowledge of its files. If the description enables DoD Component 
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 DoD Component to deny 
the request on the ground that it does not reasonably describe the 
records sought. The key factor is the ability of the DoD Component's 
staff to reasonably ascertain and locate which records are being 
requested.
    (i) Referrals. (1) The DoD FOIA referral policy is based upon the 
concept of the originator of a record making a release determination on 
its information. If a DoD Component receives a request for records 
originated by another DoD Component, it shall contact the DoD Component 
to determine if it also received the request, and if not, obtain 
concurrence to refer the request. In either situation, the requester 
shall be advised of the action taken. While referrals to originators of 
information result in obtaining the best possible decision on release 
of the information, the policy does not relieve DoD Components from the 
responsibility of making a release decision on a record should the 
requester object to referral of the request and the record. A request 
received by a DoD Component having no records responsive to a request 
shall be referred routinely to another DoD Component, if the other DoD 
Component confirms that it has the requested record, and this belief 
can be confirmed by the other DoD Component. Prior to notifying a 
requester of a referral to another DoD Component, the DoD Component 
receiving the initial request shall consult with the other DoD 
Component to determine if that DoD Component's association with the 
material is classified. If the association is classified, the DoD 
Component receiving the initial request will protect the association 
and any exempt information without revealing the identity of the 
protected DoD Component. The protected DoD Component shall be 
responsible for submitting the justifications required in any 
litigation. Any DoD Component receiving a request that has been 
misaddressed shall refer the request to the proper address and advise 
the requester. DoD Components making referrals of requests or records 
shall include with the referral, a point of contact by name, a 
telephone number, and an e-mail address.
    (2) Whenever a record or a portion of a record is, after prior 
consultation, referred to another DoD Component or to a Government 
agency outside of the Department of Defense for a release determination 
and direct response, the requester shall be informed of the referral. 
Referred records shall only be identified to the extent consistent with 
security requirements.
    (3) A DoD Component shall refer for response directly to the 
requester, a FOIA request for a classified record that it holds to 
another DoD Component or agency outside the Department of Defense, if 
the record originated in the other DoD Component or outside agency or 
if the classification is derivative. In this situation, provide the 
record and a release recommendation on the record with the referral 
action.
    (4) A DoD Component may refer a request for a record that it 
originated to

[[Page 7403]]

another DoD Component or agency when the other DoD Component or agency 
has a valid interest in the record, or the record was created for the 
use of the other DoD Component or agency. In such situations, provide 
the record and a release recommendation on the record with the referral 
action. An example of such a situation is a request for audit reports 
prepared by the Defense Contract Audit Agency. These advisory reports 
are prepared for the use of contracting officers and their release to 
the audited contractor shall be at the discretion of the contracting 
officer. Any FOIA request shall be referred to the appropriate DoD 
Component and the requester shall be notified of the referral. Another 
example is a record originated by a DoD Component or agency which 
involves foreign relations, and could affect a DoD Component or 
organization in a host foreign country. Such a request and any 
responsive records, may be referred to the affected DoD Component or 
organization and the Department of State for consultation prior to a 
final release determination within DoD. See also Sec. 286.22(e).
    (5) Within DoD, a DoD Component shall ordinarily refer a FOIA 
request and a copy of the record it holds, but that was originated by 
another DoD Component or that contains substantial information obtained 
from another DoD Component, to that Component for direct response, 
after direct coordination and obtaining concurrence from the Component. 
The requester then shall be notified of such referral. DoD Components 
shall not, in any case, release or deny such records without prior 
consultation with the other DoD Component, except as provided in 
Sec. 286.22(e).
    (6) DoD Components that receive referred requests shall answer them 
in accordance with the time limits established by the FOIA, this part, 
and their multitrack processing queues, based upon the date of initial 
receipt of the request at the referring component or agency.
    (7) Agencies outside the Department of Defense that are subject to 
the FOIA.
    (i) A DoD Component may refer a FOIA request for any record that 
originated in an agency outside the DoD or that is based on information 
obtained from an outside agency to the agency for direct response to 
the requester after coordination with the outside agency, if that 
agency is subject to FOIA. Otherwise, the DoD Component must respond to 
the request.
    (ii) A DoD Component shall refer to the agency that provided the 
record any FOIA request for investigative, intelligence, or any other 
type of records that are on loan to the Department of Defense for a 
specific purpose, if the records are restricted from further release 
and so marked. However, if for investigative or intelligence purposes, 
the outside agency desires anonymity, a DoD Component may only respond 
directly to the requester after coordination with the outside agency.
    (8) DOD Components which receive requests for records of the 
National Security Council (NSC), the White House, or the White House 
Military Office (WHMO) shall process the requests. DoD records in which 
the NSC or White House has a concurrent reviewing interest, and NSC, 
White House, or WHMO records discovered in DoD Components' files shall 
be forwarded to the Office of the Assistant Secretary of Defense 
(Public Affairs)(OASD(PA)), ATTN: Directorate for Freedom of 
Information and Security Review (DFOISR). The DFOISR shall coordinate 
with the NSC, White House, or WHMO and return the records to the 
originating agency after coordination.
    (9) To the extent referrals are consistent with the policies 
expressed by this paragraph, referrals between offices of the same DoD 
Component are authorized.
    (10) On occasion, the Department of Defense receives FOIA requests 
for General Accounting Office (GAO) records containing DoD information. 
Even though the GAO is outside the Executive Branch, and not subject to 
the FOIA, all FOIA requests for GAO documents containing DoD 
information received either from the public, or on referral from the 
GAO, will be processed under the provisions of the FOIA.
    (j) Authentication. Records provided under this part shall be 
authenticated with an appropriate seal, whenever necessary, to fulfill 
an official Government or other legal function. This service, however, 
is in addition to that required under the FOIA and is not included in 
the FOIA fee schedule. DoD Components may charge for the service at a 
rate of $5.20 for each authentication.
    (k) Unified Combatant Commands. The Unified Combatant Commands are 
placed under the jurisdiction of the OSD, instead of the administering 
Military Department or the Joint Staff, only for the purpose of 
administering the DoD FOIA Program. This policy represents an exception 
to the policies directed in DoD Directive 5100.3; 2 it authorizes 
and requires the Unified Combatant Commands to process Freedom of 
Information Act (FOIA) requests in accordance with DoD Directive 5400.7 
and this part. The Unified Combatant Commands shall forward directly to 
the OASD(PA), all correspondence associated with the appeal of an 
initial denial for records under the provisions of the FOIA. Procedures 
to effect this administrative requirement are outlined in appendix A to 
this part.
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 286.1(a).
---------------------------------------------------------------------------

    (l) Records management. FOIA records shall be maintained and 
disposed of in accordance with the National Archives and Records 
Administration General Records Schedule, and DoD Component records 
schedules.
    (m) Relationship between the FOIA and the Privacy Act (PA). Not all 
requesters are knowledgeable of the appropriate statutory authority to 
cite when requesting records. In some instances, they may cite neither 
Act, but will imply one or both Acts. For these reasons, the following 
guidelines are provided to ensure that requesters receive the greatest 
amount of access rights under both Acts:
    (1) If the record is releasable under the FOIA, the Privacy Act 
does not bar its disclosure. Unlike the FOIA, the Privacy Act applies 
only to U.S. citizens and aliens admitted for permanent residence.
    (2) Requesters who seek records about themselves contained in a PA 
system of records and who cite or imply the PA, will have their 
requests processed under the provisions of both the PA and the FOIA. If 
the PA system of records is exempt from the provisions of 5 U.S.C. 
552a(d)(1), the requester shall be so advised with the appropriate PA 
exemption, and then further advised that the information was therefore 
reviewed for release under the FOIA.
    (3) Requesters who seek records about themselves which are not 
contained in a PA system of records and who cite or imply the PA, will 
have their requests processed under the provisions of the FOIA, since 
the PA does not apply to these records..
    (4) Requesters who seek records about themselves which are 
contained in a PA system of records and who cite or imply the FOIA or 
both Acts will have their requests processed under the provisions of 
both the PA and the FOIA. If the PA system of records is exempt from 
the provisions of 5 U.S.C. 552a(d)(1) the requester shall be so advised 
with the appropriate PA exemption, and then further advised that the 
information was therefore reviewed for release under the FOIA.
    (5) Requesters who seek access to agency records that are not part 
of a PA system of records, and who cite or imply the PA and FOIA, will 
have their

[[Page 7404]]

requests processed under the FOIA since the PA does not apply to these 
records.
    (6) Requesters who seek access to agency records and who cite or 
imply the FOIA, will have their requests processed under the FOIA.
    (7) Requesters shall be advised in final responses why their 
request was processed under a particular Act.
    (n) Non-responsive information in responsive records. DoD 
components shall interpret FOIA requests liberally when determining 
which records are responsive to the requests. DoD Components shall 
respond to FOIA requests which involve non-responsive information 
within a responsive record in the following manner:
    (1) Negotiate 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) Should negotiation fail, if the responsive record is 
unclassified, release all non-responsive and responsive information. 
For non-responsive information that is exempt, notify the requester 
that even if the information were determined responsive, it would 
likely be exempt under (state 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) Should negotiation fail, if the responsive record is 
classified, release all unclassified responsive and non-responsive 
information which is not otherwise exempt. If the non-responsive 
information is exempt, follow the procedures in (m) (2) of this 
section. The classified, non-responsive information need not be 
reviewed for declassification at this point. Advise the requester that 
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.

Subpart B--FOIA Reading Rooms


Sec. 286.7  Requirements.

    (a) Reading room. (1) Implementation of 5 U.S.C. 552 (a)(1) and 
(a)(2) within the Office of the Secretary of Defense is a records 
management responsibility within Washington Headquarters Services, 
Directives and Records Division. Each DoD Component shall provide an 
appropriate facility or facilities where the public may inspect and 
copy or have copied the materials described in paragraph (b) of this 
section. In addition to the materials described in paragraph (b) of 
this section, DoD Components may elect to place other records in their 
reading room, and also make them electronically available to the 
public. DoD Components may share reading room facilities if the public 
is not unduly inconvenienced. When appropriate, the cost of copying may 
be imposed on the person requesting the material in accordance with the 
provisions of subpart F of this part.
    (2) The FOIA requires that copies of all records, regardless of 
form or format, which have been released pursuant to a FOIA request 
under 5 U.S.C. 552 (a)(3), and which because of the nature of the 
subject matter, have become or are likely to become the subject of 
subsequent requests for substantially the same records be made publicly 
available.
    (i) DoD Components shall decide on a case by case basis whether 
records fall into this category, based on the following factors:
    (A) Previous experience of the DoD Component with similar records.
    (B) Particular circumstances of the records involved, including 
their nature and the type of information contained in them.
    (C) The identity and number of requesters and whether there is 
widespread press, historic, or commercial interest in the records.
    (ii) This provision is intended for situations where public access 
in a timely manner is important, and it is not intended to apply where 
there may be a limited number of requests over a short period of time 
from a few requesters. DoD Components may remove the records from this 
access medium when the appropriate officials determine that access is 
no longer necessary.
    (b) Material availability. The FOIA requires that ``(a) (2)'' 
materials shall be made available in the FOIA reading room for 
inspection and copying, unless such materials are published and copies 
are offered for sale. Identifying details that, if revealed, would 
create a clearly unwarranted invasion of personal privacy may be 
deleted from ``(a) (2)'' materials made available for inspection and 
copying. In every case, justification for the deletion must be fully 
explained in writing, and the extent of such deletion shall be 
indicated on the record which is made publicly available, unless such 
indication would harm an interest protected by an exemption under which 
the deletion was made. If technically feasible, the extent of the 
deletion in electronic records or any other form of record shall be 
indicated at the place in the record where the deletion was made. 
However, a DoD Component may publish in the Federal Register a 
description of the basis upon which it will delete identifying details 
of particular types of documents to avoid clearly unwarranted invasions 
of privacy. In appropriate cases, the DoD Component may refer to this 
description rather than write a separate justification for each 
deletion. For ``(a)(2)'' records created after November 1, 1996, such 
records shall be made available to the public in hard copy and by 
computer telecommunications or by other electronic means by November 1, 
1997. `` (a) (2)'' materials are:
    (1) Final opinions, including concurring and dissenting opinions, 
and orders made in the adjudication of cases, as defined in 5 U.S.C. 
551, that may be cited, used, or relied upon as precedents in future 
adjudications.
    (2) Statements of policy and interpretations that have been adopted 
by the agency and are not published in the Federal Register.
    (3) Administrative staff manuals and instructions, or portions 
thereof, that establish DoD policy or interpretations of policy that 
affect a member of the public. This provision does not apply to 
instructions for employees on tactics and techniques to be used in 
performing their duties, or to instructions relating only to the 
internal management of the DoD Component. Examples of manuals and 
instructions not normally made available are:
    (i) Those issued for audit, investigation, and inspection purposes, 
or those that prescribe operational tactics, standards of performance, 
or criteria for defense, prosecution, or settlement of cases.
    (ii) Operations and maintenance manuals and technical information 
concerning munitions, equipment, systems, and foreign intelligence 
operations.


Sec. 286.8  Indexes.

    (a) ``(a) (2)'' materials. (1) Each DoD Component shall maintain in 
each facility prescribed in Sec. 286.7 (a), an index of materials 
described in Sec. 286.7 (b), that are issued, adopted, or promulgated, 
after July 4, 1967. No ``(a) (2)'' materials issued, promulgated, or 
adopted after July 4, 1967, that are not indexed and either made 
available or published may be relied upon, used or

[[Page 7405]]

cited as precedent against any individual unless such individual has 
actual and timely notice of the contents of such materials. Such 
materials issued, promulgated, or adopted before July 4, 1967, need not 
be indexed, but must be made available upon request if not exempted 
under this part.
    (2) Each DoD Component shall promptly publish quarterly or more 
frequently, and distribute, by sale or otherwise, copies of each index 
of ``(a) (2)'' materials or supplements thereto unless it publishes in 
the Federal Register an order containing a determination that 
publication is unnecessary and impracticable. A copy of each index or 
supplement not published shall be provided to a requester at a cost not 
to exceed the direct cost of duplication as set forth in subpart F of 
this part.
    (3) Each index of ``(a)(2)'' materials or supplement thereto shall 
be arranged topically or by descriptive words rather than by case name 
or numbering system so that members of the public can readily locate 
material. Case name and numbering arrangements, however, may also be 
included for DoD Component convenience.
    (4) A general index of records referred to in Sec. 286.7(b)(4) 
shall be made available to the public, both in hard copy and 
electronically by December 31, 1999.
    (b) Other materials. (1) Any available index of DoD Component 
material published in the Federal Register, such as material required 
to be published by section 552(a)(1) of the FOIA, shall be made 
available in DoD Component FOIA reading rooms, and electronically to 
the public.
    (2) Although not required to be made available in response to FOIA 
requests or made available in FOIA reading rooms, ``(a)(1)'' materials 
shall, when feasible, be made available to the public in FOIA reading 
rooms for inspection and copying, and by electronic means. Examples of 
``(a)(1)'' materials are: descriptions of an agency's central and field 
organization, and to the extent they affect the public, rules of 
procedures, descriptions of forms available, instruction as to the 
scope and contents of papers, reports, or examinations, and any 
amendment, revision, or report of the aforementioned.

Subpart C--Exemptions


Sec. 286.11  General provisions.

    Records that meet the exemption criteria of the FOIA may be 
withheld from public disclosure and need not be published in the 
Federal Register, made available in a library reading room, or provided 
in response to an FOIA request.


Sec. 286.12  Exemptions.

    The following types of records may be withheld in whole or in part 
from public disclosure under the FOIA, unless otherwise prescribed by 
law. A discretionary release (see also Sec. 286.4(e)) to one requester 
may preclude the withholding of the same record under a FOIA exemption 
if the record is subsequently requested by someone else. In applying 
exemptions, the identity of the requester and the purpose for which the 
record is sought are irrelevant with the exception that an exemption 
may not be invoked where the particular interest to be protected is the 
requester's interest.
    (a) Number 1 (5 U.S.C. 552(b)(1)). Those properly and currently 
classified in the interest of national defense or foreign policy, as 
specifically authorized under the criteria established by executive 
order and implemented by regulations, such as DoD 5200.1-R 3. 
Although material is not classified at the time of the FOIA request, a 
classification review may be undertaken to determine whether the 
information should be classified. The procedures in DoD 5200.1-R apply. 
If the information qualifies as exemption 1 information, there is no 
discretion regarding its release. In addition, this exemption shall be 
invoked when the following situations are apparent:
---------------------------------------------------------------------------

    \3\  See footnote 1 to Sec. 286.1 (a).
---------------------------------------------------------------------------

    (1) The fact of the existence or nonexistence of a record would 
itself reveal classified information. In this situation, Components 
shall neither confirm nor deny the existence or nonexistence of the 
record being requested. A ``refusal to confirm or deny'' response must 
be used 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 itself disclose national security 
information.
    (2) Compilations of items of information which are individually 
unclassified may be classified if the compiled information reveals 
additional association or relationship that meets the standard for 
classification under an existing executive order for classification and 
DoD 5200.1-R, and is not otherwise revealed in the individual items of 
information.
    (b) Number 2 (5 U.S.C. 552(b)(2)). Those related solely to the 
internal personnel rules and practices of DoD or any of its Components. 
This exemption is entirely discretionary. This exemption has two 
profiles, high b2 and low b2. Paragraph (b)(2) of this section, 
contains a brief discussion on the low b2 profile; however, that 
discussion is for information purposes only. When only a minimum 
government interest would be affected (administrative burden), there is 
a great potential for discretionary disclosure of the information. 
Consequently, DoD Components shall not invoke the low b2 profile.
    (1) Records qualifying under high b2 are those containing or 
constituting statutes, rules, regulations, orders, manuals, directives, 
and instructions the release of which would allow circumvention of 
these records thereby substantially hindering the effective performance 
of a significant function of the DoD. Examples include:
    (i) Those operating rules, guidelines, and manuals for DoD 
investigators, inspectors, auditors, or examiners that must remain 
privileged in order for the DoD Component to fulfill a legal 
requirement.
    (ii) Personnel and other administrative matters, such as 
examination questions and answers used in training courses or in the 
determination of the qualifications of candidates for employment, 
entrance on duty, advancement, or promotion.
    (iii) Computer software, the release of which would allow 
circumvention of a statute or DoD rules, regulations, orders, manuals, 
directives, or instructions. In this situation, the use of the software 
must be closely examined to ensure a circumvention possibility exists.
    (2) Records qualifying under the low b2 profile are those that are 
trivial and housekeeping in nature for which there is no legitimate 
public interest or benefit to be gained by release, and it would 
constitute an administrative burden to process the request in order to 
disclose the records. Examples include; rules of personnel's use of 
parking facilities or regulation of lunch hours, statements of policy 
as to sick leave, and trivial administrative data such as file numbers, 
mail routing stamps, initials, data processing notations, brief 
references to previous communications, and other like administrative 
markings. DoD Components shall not invoke the low b2 profile.
    (c) Number 3 (5 U.S.C. 552(b)(3)). Those concerning matters that a 
statute specifically exempts from disclosure by terms that permit no 
discretion on the issue, or in accordance with criteria established by 
that statute for withholding or referring to particular types of 
matters to be withheld. The

[[Page 7406]]

Directorate for Freedom of Information and Security Review, Office of 
the Assistant Secretary of Defense for Public Affairs maintains a list 
of ``(b)(3)'' statutes used within DoD, and provides updated lists of 
these statutes to DoD Components on a periodic basis. A few examples of 
such statutes are:
    (1) Patent Secrecy, 35 U.S.C. 181-188. Any records containing 
information relating to inventions that are the subject of patent 
applications on which Patent Secrecy Orders have been issued.
    (2) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162.
    (3) Communication Intelligence, 18 U.S.C. 798.
    (4) Authority to withhold from public disclosure certain technical 
data, 10 U.S.C. 130 and DoD Directive 5230.25. 4
---------------------------------------------------------------------------

    \4\  See footnote 1 to Sec. 286.1 (a).
---------------------------------------------------------------------------

    (5) Confidentiality of medical quality assurance records: Qualified 
Immunity for Participants, 10 U.S.C. 1102 f.
    (6) Physical protection of special nuclear material: Limitation on 
Dissemination of Unclassified Information, 10 U.S.C. 128.
    (7) Protection of intelligence sources and methods, 50 U.S.C. 403-
3(c)(5).
    (8) Protection of Contractor Submitted Proposals, 10 U.S.C. 
2305(g).
    (9) Procurement Integrity, 41 U.S.C. 423.
    (d) Number 4 (5 U.S.C. 552 (b)(4)). Those containing trade secrets 
or commercial or financial information that a DoD Component receives 
from a person or organization outside the Government with the 
understanding that the information or record will be retained on a 
privileged or confidential basis in accordance with the customary 
handling of such records. Records within the exemption must contain 
trade secrets, or commercial or financial records, the disclosure of 
which is likely to cause substantial harm to the competitive position 
of the source providing the information; impair the Government's 
ability to obtain necessary information in the future; or impair some 
other legitimate government interest. If the information qualifies as 
exemption 4 information, there is no discretion in its release. 
Examples include:
    (1) Commercial or financial information received in confidence in 
connection with loans, bids, contracts, or proposals set forth in or 
incorporated by reference in a contract entered into between the DoD 
Component and the offeror that submitted the proposal, as well as other 
information received in confidence or privileged, such as trade 
secrets, inventions, discoveries, or other proprietary data. See also 
Sec. 286.23(h)(2). Additionally, when the provisions of 10 U.S.C. 
2305(g), and 41 U.S.C. 423 are met, certain proprietary and source 
selection information may be withheld under exemption 3.
    (2) Statistical data and commercial or financial information 
concerning contract performance, income, profits, losses, and 
expenditures, if offered and received in confidence from a contractor 
or potential contractor.
    (3) Personal statements given in the course of inspections, 
investigations, or audits, when such statements are received in 
confidence from the individual and retained in confidence because they 
reveal trade secrets or commercial or financial information normally 
considered confidential or privileged.
    (4) Financial data provided in confidence by private employers in 
connection with locality wage surveys that are used to fix and adjust 
pay schedules applicable to the prevailing wage rate of employees 
within the Department of Defense.
    (5) Scientific and manufacturing processes or developments 
concerning technical or scientific data or other information submitted 
with an application for a research grant, or with a report while 
research is in progress.
    (6) Technical or scientific data developed by a contractor or 
subcontractor exclusively at private expense, and technical or 
scientific data developed in part with Federal funds and in part at 
private expense, wherein the contractor or subcontractor has retained 
legitimate proprietary interests in such data in accordance with 10 
U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement 
(DFARS), Chapter 2 of 48 CFR, part 227, subpart 227.71-227.72. 
Technical data developed exclusively with Federal funds may be withheld 
under Exemption Number 3 if it meets the criteria of 10 U.S.C. 130 and 
DoD Directive 5230.25 (see Sec. 286.12(b)(3)(v)).
    (7) Computer software which is copyrighted under the Copyright Act 
of 1976 (17 U.S.C. 106), the disclosure of which would have an adverse 
impact on the potential market value of a copyrighted work.
    (8) Proprietary information submitted strictly on a voluntary 
basis, absent any exercised authority prescribing criteria for 
submission. Examples of exercised authorities prescribing criteria for 
submission are statutes, executive orders, regulations, invitations for 
bids, requests for proposals, and contracts. Submission of information 
under these authorities is not voluntary (see also Sec. 286.23(h)(3)).
    (e) Number 5 (5 U.S.C. 552(b)(5)). Those containing information 
considered privileged in litigation, primarily under the deliberative 
process privilege. Except as provided in paragraphs (e)(2) through 
(e)(5) of this section, internal advice, recommendations, and 
subjective evaluations, as contrasted with factual matters, that are 
reflected in deliberative records pertaining to the decision-making 
process of an agency, whether within or among agencies (as defined in 5 
U.S.C. 552(e)), or within or among DoD Components. In order to meet the 
test of this exemption, the record must be both deliberative in nature, 
as well as part of a decision-making process. Merely being an internal 
record is insufficient basis for withholding under this exemption. Also 
potentially exempted are records pertaining to the attorney-client 
privilege and the attorney work-product privilege. This exemption is 
entirely discretionary.
    (1) Examples of the deliberative process include:
    (i) The non factual portions of staff papers, to include after-
action reports, lessons learned, and situation reports containing staff 
evaluations, advice, opinions, or suggestions.
    (ii) Advice, suggestions, or evaluations prepared on behalf of the 
Department of Defense by individual consultants or by boards, 
committees, councils, groups, panels, conferences, commissions, task 
forces, or other similar groups that are formed for the purpose of 
obtaining advice and recommendations.
    (iii) Those non factual portions of evaluations by DoD Component 
personnel of contractors and their products.
    (iv) Information of a speculative, tentative, or evaluative nature 
or such matters as proposed plans to procure, lease or otherwise 
acquire and dispose of materials, real estate, facilities or functions, 
when such information would provide undue or unfair competitive 
advantage to private personal interests or would impede legitimate 
government functions.
    (v) Trade secret or other confidential research development, or 
commercial information owned by the Government, where premature release 
is likely to affect the Government's negotiating position or other 
commercial interest.
    (vi) Records that are exchanged among agency personnel and within 
and among DoD Components or agencies as part of the preparation for 
anticipated administrative proceeding by an agency or litigation before 
any Federal, state, or military court, as well as records that qualify 
for the attorney-client privilege.

[[Page 7407]]

    (vii) Those portions of official reports of inspection, reports of 
the Inspector Generals, audits, investigations, or surveys pertaining 
to safety, security, or the internal management, administration, or 
operation of one or more DoD Components, when these records have 
traditionally been treated by the courts as privileged against 
disclosure in litigation.
    (viii) Planning, programming, and budgetary information which is 
involved in the defense planning and resource allocation process.
    (2) If any such intra or inter-agency record or reasonably 
segregable portion of such record hypothetically would be made 
available routinely through the discovery process in the course of 
litigation with the agency, then it should not be withheld under the 
FOIA. If, however, the information hypothetically would not be released 
at all, or would only be made through the discovery process by special 
order of the court based on agency maintaining its confidentiality, 
then the record may be withheld. Discovery is the formal process by 
which litigants obtain information from each other for use in the 
litigation. Consult with legal counsel to determine whether exemption 5 
material would be routinely made available through the discovery 
process.
    (3) Intra or inter-agency memoranda or letters that are factual, or 
those reasonably segregable portions that are factual, are routinely 
made available through discovery, and shall be made available to a 
requester, unless the factual material is otherwise exempt from 
release, inextricably intertwined with the exempt information, so 
fragmented as to be uninformative, or so redundant of information 
already available to the requester as to provide no new substantive 
information.
    (4) A direction or order from a superior to a subordinate, though 
contained in an internal communication, generally cannot be withheld 
from a requester if it constitutes policy guidance or a decision, as 
distinguished from a discussion of preliminary matters or a request for 
information or advice that would compromise the decision-making 
process.
    (5) An internal communication concerning a decision that 
subsequently has been made a matter of public record must be made 
available to a requester when the rationale for the decision is 
expressly adopted or incorporated by reference in the record containing 
the decision.
    (f) Number 6 (5 U.S.C. 552 (b)(6)). Information in personnel and 
medical files, as well as similar personal information in other files, 
that, if disclosed to the requester would result in a clearly 
unwarranted invasion of personal privacy. Release of information about 
an individual contained in a Privacy Act System of records that would 
constitute a clearly unwarranted invasion of privacy is prohibited, and 
could subject the releaser to civil and criminal penalties. If the 
information qualifies as exemption 6 information, there is no 
discretion in its release.
    (1) Examples of other files containing personal information similar 
to that contained in personnel and medical files include:
    (i) Those compiled to evaluate or adjudicate the suitability of 
candidates for civilian employment or membership in the Armed Forces, 
and the eligibility of individuals (civilian, military, or contractor 
employees) for security clearances, or for access to particularly 
sensitive classified information.
    (ii) Files containing reports, records, and other material 
pertaining to personnel matters in which administrative action, 
including disciplinary action, may be taken.
    (2) Home addresses are normally not releasable without the consent 
of the individuals concerned. In addition, DoD military and civilian 
personnel's names and duty addresses who are assigned to units that are 
sensitive, routinely deployable, or stationed in foreign territories 
can constitute a clearly unwarranted invasion of personal privacy.
    (i) Privacy interest. A privacy interest may exist in personal 
information even though the information has been disclosed at some 
place and time. If personal information is not freely available from 
sources other than the Federal Government, a privacy interest exists in 
its nondisclosure. The fact that the Federal Government expended funds 
to prepare, index and maintain records on personal information, and the 
fact that a requester invokes FOIA to obtain these records indicates 
the information is not freely available.
    (ii) Names and duty addresses published in telephone directories, 
organizational charts, rosters and similar materials for personnel 
assigned to units that are sensitive, routinely deployable, or 
stationed in foreign territories are withholdable under this exemption.
    (iii) This exemption shall not be used in an attempt to protect the 
privacy of a deceased person, but it may be used to protect the privacy 
of the deceased person's family if disclosure would rekindle grief, 
anguish, pain, embarrassment, or even disruption of peace of mind of 
surviving family members. In such situations, balance the surviving 
family members' privacy against the public's right to know to determine 
if disclosure is in the public interest. Additionally, the deceased's 
social security number should be withheld as it used by the next of kin 
to receive benefits. Disclosures may be made to the immediate next of 
kin as defined in DoD Directive 5154.24.5
---------------------------------------------------------------------------

    \5\ See footnote 1 to Sec. 286.1 (a).
---------------------------------------------------------------------------

    (4) Individuals' personnel, medical, or similar file may be 
withheld from them or their designated legal representative only to the 
extent consistent with DoD Directive 5400.11.6
---------------------------------------------------------------------------

    \6\ See footnote 1 to Sec. 286.1 (a).
---------------------------------------------------------------------------

    (5) A clearly unwarranted invasion of the privacy of the persons 
identified in a personnel, medical or similar record may constitute a 
basis for deleting those reasonably segregable portions of that record, 
even when providing it to the subject of the record. When withholding 
personal information from the subject of the record, first review the 
Privacy Act and then consult with legal counsel.
    (6) This exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest. In this situation, DoD 
Components shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This is a Glomar response, and exemption 
6 must be cited in the response. Additionally, in order to insure 
personal privacy is not violated during referrals, DoD Components shall 
coordinate with other DoD Components or Federal agencies before 
referring a record which is exempt under the Glomar concept.
    (i) A ``refusal to confirm or deny'' response must be used 
consistently, not only when a record exists, but also when a record 
does not exist. Otherwise, the pattern of using a ``no records'' 
response when a record does not exist and a ``refusal to confirm or 
deny'' when a record does exist will itself disclose personally private 
information.
    (ii) Refusal to confirm or deny should not be used when:
    (A) The person whose personal privacy is in jeopardy has provided 
the requester a waiver of his or her privacy rights; or
    (B) The person whose personal privacy is in jeopardy is deceased, 
the agency is aware of that fact, and disclosure would not invade the 
privacy of the deceased's family. See paragraph (f) (3) of this 
section.

[[Page 7408]]

    (g) Number 7 (5 U.S.C. 552 (b)(7)). Records or information compiled 
for law enforcement purposes; i.e., civil, criminal, or military law, 
including the implementation of executive orders or regulations issued 
pursuant to law. This exemption may be invoked to prevent disclosure of 
documents not originally created for, but later gathered for law 
enforcement purposes. With the exception of parts (C) and (F) of this 
exemption, this exemption is discretionary. If information qualifies as 
exemption (7)(C) or (7)(F) information, there is no discretion in its 
release. This exemption applies, however, only to the extent that 
production of such law enforcement records or information could result 
in the following:
    (1) Could reasonably be expected to interfere with enforcement 
proceedings.
    (2) Would deprive a person of the right to a fair trial or to an 
impartial adjudication.
    (3) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy of a living person, including surviving 
family members of an individual identified in such a record.
    (i) This exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest. In this situation, 
Components shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This is a Glomar response, and exemption 
7C must be cited in the response. Additionally, in order to insure 
personal privacy is not violated during referrals, DoD Components shall 
coordinate with other DoD Components or Federal agencies before 
referring a record which is exempt under the Glomar concept.
    (ii) A ``refusal to confirm or deny'' response must be used 
consistently, not only when a record exists, but also when a record 
does not exist. Otherwise, the pattern of using a ``no records'' 
response when a record does not exist and a ``refusal to confirm or 
deny'' when a record does exist will itself disclose personally private 
information.
    (iii) Refusal to confirm or deny should not be used when:
    (A) The person whose personal privacy is in jeopardy has provided 
the requester with a waiver of his or her privacy rights; or
    (B) The person whose personal privacy is in jeopardy is deceased, 
and the agency is aware of that fact.
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a source within the Department of 
Defense, a State, local, or foreign agency or authority, or any private 
institution which furnishes the information on a confidential basis.
    (v) Could disclose information furnished 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.
    (vi) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law.
    (vii) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (4) Examples include:
    (i) Statements of witnesses and other material developed during the 
course of the investigation and all materials prepared in connection 
with related government litigation or adjudicative proceedings.
    (ii) The identity of firms or individuals being investigated for 
alleged irregularities involving contracting with the Department of 
Defense when no indictment has been obtained nor any civil action filed 
against them by the United States.
    (iii) Information obtained in confidence, expressed or implied, in 
the course of a criminal investigation by a criminal law enforcement 
agency or office within a DoD Component, or a lawful national security 
intelligence investigation conducted by an authorized agency or office 
within a DoD Component. National security intelligence investigations 
include background security investigations and those investigations 
conducted for the purpose of obtaining affirmative or 
counterintelligence information.
    (5) The right of individual litigants to investigative records 
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500) is 
not diminished.
    (6) When the subject of an investigative report is the requester of 
the record and the report is contained in a Privacy Act system of 
records, it may only be denied to the requester if withholding is both 
authorized by DoD 5400.11-R 7, and by exemption seven of the FOIA.
---------------------------------------------------------------------------

    \7\  See footnote 1 to Sec. 286.1 (a).
---------------------------------------------------------------------------

    (7) Exclusions. Excluded from the previously identified exemption, 
are the below two situations applicable to the Department of Defense. 
Components considering invoking an exclusion should first consult with 
the Department of Justice, Office of Information and Privacy.
    (i) Whenever a request is made which involves access to records or 
information compiled for law enforcement purposes, and the 
investigation or proceeding involves a possible violation of criminal 
law where there is reason to believe that the subject of the 
investigation or proceeding is unaware of its pendency, and the 
disclosure of the existence of the records could reasonably be expected 
to interfere with enforcement proceedings, Components may, during only 
such times as that circumstance continues, treat the records or 
information as not subject to the FOIA. In such situation, the response 
to the requester will state that no records were found.
    (ii) Whenever informant records maintained by a criminal law 
enforcement organization within a DoD Component under the informant's 
name or personal identifier are requested by a third party using the 
informant's name or personal identifier, the Component may treat the 
records as not subject to the FOIA, unless the informant's status as an 
informant has been officially confirmed. If it is determined that the 
records are not subject to exemption 7, the response to the requester 
will state that no records were found.
    (h) Number 8 (5 U.S.C. 552 (b)(8)). Those contained in or related 
to examination, operation or condition reports prepared by, on behalf 
of, or for the use of any agency responsible for the regulation or 
supervision of financial institutions.
    (i) Number 9 (5 U.S.C. 552 (b)(9)). Those containing geological and 
geophysical information and data (including maps) concerning wells.

Subpart D--For Official Use Only


Sec. 286.15  General provisions.

    (a) General. Information that has not been given a security 
classification pursuant to the criteria of an Executive Order, but 
which may be withheld from the public for one or more of the reasons 
cited in FOIA exemptions 2 through 9 shall be considered as being for 
official use only. No other material shall be considered or marked 
``For Official Use Only'' (FOUO) and FOUO is not authorized as an 
anemic form of classification to protect national security interests.
    (b) Prior FOUO application. The prior application of FOUO markings 
is not a conclusive basis for withholding a record that is requested 
under the FOIA. When such a record is requested, the information in it 
shall be evaluated to

[[Page 7409]]

determine whether, under current circumstances, FOIA exemptions apply 
in withholding the record or portions of it. If any exemptions apply, 
it may nonetheless be released when it is determined that no 
governmental interest will be jeopardized by its release.
    (c) Historical papers. Records such as notes, working papers, and 
drafts retained as historical evidence of DoD Component actions enjoy 
no special status apart from the exemptions under the FOIA.
    (d) Time to mark records. The marking of records at the time of 
their creation provides notice of FOUO content and facilitates review 
when a record is requested under the FOIA. Records requested under the 
FOIA that do not bear such markings, shall not be assumed to be 
releasable without examination for the presence of information that 
requires continued protection and qualifies as exempt from public 
release.
    (e) Distribution statement. Information in a technical document 
that requires a distribution statement pursuant to DoD Directive 
5230.24 8 shall bear that statement and may be marked FOUO, as 
appropriate.
---------------------------------------------------------------------------

    \8\  See footnote 1 to Sec. 286.1 (a).
---------------------------------------------------------------------------


Sec. 286.16  Markings.

    (a) An unclassified document containing FOUO information shall be 
marked ``For Official Use Only'' at the bottom on the outside of the 
front cover (if any), on each page containing FOUO information, and on 
the outside of the back cover (if any).
    (b) Within a classified document, an individual page that contains 
both FOUO and classified information shall be marked at the top and 
bottom with the highest security classification of information 
appearing on the page. Individual paragraphs shall be marked at the 
appropriate classification level, as well as unclassified or FOUO, as 
appropriate.
    (c) Within a classified document, an individual page that contains 
FOUO information but no classified information shall be marked ``For 
Official Use Only'' at the bottom of the page.
    (d) Other records, such as, photographs, films, tapes, or slides, 
shall be marked ``For Official Use Only'' or ``FOUO'' in a manner that 
ensures that a recipient or viewer is aware of the status of the 
information therein.
    (e) FOUO material transmitted outside the Department of Defense 
requires application of an expanded marking to explain the significance 
of the FOUO marking. This may be accomplished by typing or stamping the 
following statement on the record prior to transfer:
    This document contains information EXEMPT FROM MANDATORY DISCLOSURE 
under the FOIA. Exemptions, apply.


Sec. 286.17  Dissemination and transmission.

    (a) Release and transmission procedures. Until FOUO status is 
terminated, the release and transmission instructions that follow 
apply:
    (1) FOUO information may be disseminated within DoD Components and 
between officials of DoD Components and DoD contractors, consultants, 
and grantees to conduct official business for the Department of 
Defense. Recipients shall be made aware of the status of such 
information, and transmission shall be by means that preclude 
unauthorized public disclosure. Transmittal documents shall call 
attention to the presence of FOUO attachments.
    (2) DoD holders of FOUO information are authorized to convey such 
information to officials in other departments and agencies of the 
executive and judicial branches to fulfill a government function, 
except to the extent prohibited by the Privacy Act. Records thus 
transmitted shall be marked ``For Official Use Only'', and the 
recipient shall be advised that the information has been exempted from 
public disclosure, pursuant to the FOIA, and that special handling 
instructions do or do not apply.
    (3) Release of FOUO information to Members of Congress is governed 
by DoD Directive 5400.4 9. Release to the GAO is governed by DoD 
Directive 7650.1 10. Records released to the Congress or GAO 
should be reviewed to determine whether the information warrants FOUO 
status. If not, prior FOUO markings shall be removed or effaced. If 
withholding criteria are met, the records shall be marked FOUO and the 
recipient provided an explanation for such exemption and marking. 
Alternatively, the recipient may be requested, without marking the 
record, to protect against its public disclosure for reasons that are 
explained.
---------------------------------------------------------------------------

    \9\  See footnote 1 to Sec. 286.1 (a).
    \10\  See footnote 1 to Sec. 286.1 (a).
---------------------------------------------------------------------------

    (b) Transporting FOUO information. Records containing FOUO 
information shall be transported in a manner that precludes disclosure 
of the contents. When not commingled with classified information, FOUO 
information may be sent via first-class mail or parcel post. Bulky 
shipments, such as distributions of FOUO Directives or testing 
materials, that otherwise qualify under postal regulations may be sent 
by fourth-class mail.
    (c) Electronically and facsimile transmitted messages. Each part of 
electrically and facsimile transmitted messages containing FOUO 
information shall be marked appropriately. Unclassified messages 
containing FOUO information shall contain the abbreviation ``FOUO'' 
before the beginning of the text. Such messages and facsimiles shall be 
transmitted in accordance with communications security procedures in 
Allied Communications Publication (ACP-121 11) for FOUO 
information.
---------------------------------------------------------------------------

    \11\  Not for general public distribution. Available to Military 
Components only. Components contact MCEB.
---------------------------------------------------------------------------


Sec. 286.18  Safeguarding FOUO information.

    (a) During duty hours. During normal working hours, records 
determined to be FOUO shall be placed in an out-of-sight location if 
the work area is accessible to non-government personnel.
    (b) During nonduty hours. At the close of business, FOUO records 
shall be stored so as to preclude unauthorized access. Filing such 
material with other unclassified records in unlocked files or desks, 
etc., is adequate when normal U.S. Government or government-contractor 
internal building security is provided during nonduty hours. When such 
internal security control is not exercised, locked buildings or rooms 
normally provide adequate after-hours protection. If such protection is 
not considered adequate, FOUO material shall be stored in locked 
receptacles such as file cabinets, desks, or bookcases. FOUO records 
that are subject to the provisions of 50 U.S.C. 402 note shall meet the 
safeguards outlined for that group of records.


Sec. 286.19  Termination, disposal and unauthorized disclosure.

    (a) Termination. The originator or other competent authority, e.g., 
initial denial and appellate authorities, shall terminate ``For 
Official Use Only'' markings or status when circumstances indicate that 
the information no longer requires protection from public disclosure. 
When FOUO status is terminated, all known holders shall be notified, to 
the extent practical. Upon notification, holders shall efface or remove 
the ``For Official Use Only'' markings, but records in file or storage 
need not be retrieved solely for that purpose.
    (b) Disposal. (1) Nonrecord copies of FOUO materials may be 
destroyed by tearing each copy into pieces to preclude reconstructing, 
and placing

[[Page 7410]]

them in regular trash containers. When local circumstances or 
experience indicates that this destruction method is not sufficiently 
protective of FOUO information, local authorities may direct other 
methods but must give due consideration to the additional expense 
balanced against the degree of sensitivity of the type of FOUO 
information contained in the records.
    (2) Record copies of FOUO documents shall be disposed of in 
accordance with the disposal standards established under 44 U.S.C. 
Chapter 33, as implemented by DoD Component instructions concerning 
records disposal.
    (c) Unauthorized disclosure. The unauthorized disclosure of FOUO 
records does not constitute an unauthorized disclosure of DoD 
information classified for security purposes. Appropriate 
administrative action shall be taken, however, to fix responsibility 
for unauthorized disclosure whenever feasible, and appropriate 
disciplinary action shall be taken against those responsible. 
Unauthorized disclosure of FOUO information that is protected by the 
Privacy Act may also result in civil and criminal sanctions against 
responsible persons. The DoD Component that originated the FOUO 
information shall be informed of its unauthorized disclosure.

Subpart E--Release and Processing Procedures


Sec. 286.22  General provisions.

    (a) Public information. (1) Since the policy of the Department of 
Defense is to make the maximum amount of information available to the 
public consistent with its other responsibilities, written requests for 
a DoD record made under the provisions of 5 U.S.C. 552 (a)(3) of the 
FOIA may be denied only when:
    (i) The record is subject to one or more of the exemptions of the 
FOIA.
    (ii) The record has not been described well enough to enable the 
DoD Component to locate it with a reasonable amount of effort by an 
employee familiar with the files.
    (iii) The requester has failed to comply with the procedural 
requirements, including the written agreement to pay or payment of any 
required fee imposed by the instructions of the DoD Component 
concerned. When personally identifiable information in a record is 
requested by the subject of the record or his attorney, notarization of 
the request, or a statement certifying under the penalty of perjury 
that their identity is true and correct may be required. 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.
    (2) Individuals seeking DoD information should address their FOIA 
requests to one of the addresses listed in Appendix B to this part.
    (b) Requests from private parties. The provisions of the FOIA are 
reserved for persons with private interests as opposed to U.S. federal 
agencies seeking official information. Requests from private persons 
will be made in writing, and will clearly show all other addressees 
within the Federal Government to whom the request was also sent. This 
procedure will reduce processing time requirements, and ensure better 
inter and intra-agency coordination. DoD Components are under no 
obligation to establish procedures to receive hand delivered requests; 
and they should encourage requesters to send requests by mail, 
facsimile, or by electronic means. Disclosure of records to individuals 
under the FOIA is considered public release of information, except as 
provided for in Secs. 286.4(f) and 286.12.
    (c) Requests from Government officials. Requests from officials of 
State, or local Governments for DoD Component records shall be 
considered the same as any other requester. Requests from members of 
Congress not seeking records on behalf of a Congressional Committee, 
Subcommittee, either House sitting as a whole, or made on behalf of 
their constituents shall be considered the same as any other requester 
(See also Sec. 286.4 (f) and paragraph (d) of this section). Requests 
from officials of foreign governments shall be considered the same as 
any other requester. Requests from officials of foreign governments 
that do not invoke the FOIA shall be referred to appropriate foreign 
disclosure channels and the requester so notified.
    (d) Privileged release to U.S. Government officials. (1) Records 
exempt from release to the public under the FOIA may be disclosed in 
accordance with DoD Component regulations to agencies of the Federal 
government, whether legislative, executive, or administrative, as 
follows:
    (i) In response to a request of a Committee or Subcommittee of 
Congress, or to either House sitting as a whole in accordance with DoD 
Directive 5400.4;
    (ii) To other Federal Agencies, both executive and administrative, 
as determined by the head of a DoD Component or designee;
    (iii) In response to an order of a Federal court, DoD Components 
shall release information along with a description of the restrictions 
on its release to the public.
    (2) DoD Components shall inform officials receiving records under 
the provisions of this paragraph that those records are exempt from 
public release under the FOIA. DoD Components also shall advise 
officials of any special handling instructions. Classified information 
is subject to the provisions of DoD 5200.1-R, and information contained 
in Privacy Act systems of records is subject to DoD 5400.11-R.
    (e) Coordination with affected DoD component. (1) When a DoD 
Component receives a FOIA request for a record in which an affected DoD 
organization (including a Unified or Subunified Combatant Command) has 
a substantial interest in the subject matter, or the DoD Component 
receives a FOIA request from a foreign government, a foreign citizen, 
or an individual or entity with a foreign address, the DoD component 
receiving the request shall provide the request to the affected DoD 
component.
    (2) Upon receiving the request, the affected DoD Component shall 
review the request for host nation relations, coordinate with 
Department of State as appropriate, and if necessary, provide a copy of 
the request to the appropriate foreign disclosure office for review. 
Upon request by the affected DoD component, the DoD component receiving 
the initial request shall provide a copy of releasable records to the 
affected DoD component. The affected DoD component may further release 
the records to its host nation after coordination with Department of 
State if release is in the best interest of the United States 
Government. If the record is released to the host nation government, 
the affected DoD Component shall notify the DoD Component which 
initially received the request of the release to the host nation.
    (3) Nothing in the previous paragraphs of this section shall impede 
the processing of the FOIA request initially received by a DoD 
component.


Sec. 286.23  Initial determinations.

    (a) Initial denial authority. (1) Components shall limit the number 
of IDAs appointed. In designating its IDAs, a DoD Component shall 
balance the goals of centralization of authority to promote uniform 
decisions and decentralization to facilitate responding to each request 
within the time limitations of the FOIA.
    (2) The initial determination whether to make a record available 
upon request may be made by any suitable official

[[Page 7411]]

designated by the DoD Component in published regulations. The presence 
of the marking ``For Official Use Only'' does not relieve the 
designated official of the responsibility to review the requested 
record for the purpose of determining whether an exemption under the 
FOIA is applicable.
    (3) The officials designated by DoD Components to make initial 
determinations should consult with public affairs officers (PAOs) to 
become familiar with subject matter that is considered to be 
newsworthy, and advise PAOs of all requests from news media 
representatives. In addition, the officials should inform PAOs in 
advance when they intend to withhold or partially withhold a record, if 
it appears that the withholding action may be challenged in the media.
    (b) Reasons for not releasing a record. There are seven reasons for 
not complying with a request for a record under 5 U.S.C. 552(a)(3) of 
the FOIA:
    (1) The request is transferred to another DoD Component, or to 
another federal agency.
    (2) The DoD Component determines through knowledge of its files and 
reasonable search efforts that it neither controls nor otherwise 
possesses the requested record.
    (3) A record has not been described with sufficient particularity 
to enable the DoD Component to locate it by conducting a reasonable 
search.
    (4) The requester has failed unreasonably to comply with procedural 
requirements, including payment of fees, imposed by this part or DoD 
Component supplementing regulations.
    (5) The request is withdrawn by the requester.
    (6) The information requested is not a record within the meaning of 
the FOIA and this part.
    (7) The record is denied in whole or in part in accordance with 
procedures set forth in the FOIA and this part.
    (c) Denial tests. To deny a requested record that is in the 
possession and control of a DoD Component, it must be determined that 
the record is exempt under one or more of the exemptions of the FOIA. 
An outline of the FOIA's exemptions is contained in subpart C of this 
part.
    (d) Reasonably segregable portions. Although portions of some 
records may be denied, the remaining reasonably segregable portions 
must be released to the requester when it reasonably can be assumed 
that a skillful and knowledgeable person could not reconstruct the 
excised information. The amount of deleted information shall be 
indicated on the released portion of paper records by use of brackets 
or darkened areas indicating removal of information. In no case shall 
the deleted areas be left ``white'' without the use of brackets to show 
the bounds of deleted information. In the case of electronic deletion, 
or deletion in audiovisual or microfiche records, if technically 
feasible, the amount of redacted information shall be indicated at the 
place in the record such deletion was made. This may be done by use of 
brackets, shaded areas, or some other identifiable technique which will 
clearly show the limits of the deleted information. When a record is 
denied in whole, the response advising the requester of that 
determination will specifically state that it is not reasonable to 
segregate portions of the record for release.
    (e) Response to requester. (1) Whenever possible, initial 
determinations to release or deny a record normally shall be made and 
the decision reported to the requester within 10 working days (20 
working days effective October 2, 1997) after receipt of the request by 
the official designated to respond. When a DoD Component has a 
significant number of requests which preclude a response determination 
within the 10 working day period (20 working days effective October 2, 
1997), the requester shall be so notified in an interim response, and 
advised whether their request qualifies for the fast track or slow 
track within the DoD Components'' multitrack processing system. 
Requesters who do not meet the criteria for fast track processing shall 
be given the opportunity to limit the scope of their request in order 
to qualify for fast track processing. See also Sec. 286.4(d) for 
greater detail on multitrack processing and compelling need meriting 
expedited processing.
    (2) When a decision is made to release a record, a copy should be 
made available promptly to the requester once he has complied with 
preliminary procedural requirements.
    (3) When a request for a record is denied in whole or in part, the 
official designated to respond shall inform the requester in writing of 
the name and title or position of the official who made the 
determination, and shall explain to the requester the basis for the 
determination in sufficient detail to permit the requester to make a 
decision concerning appeal. The requester specifically shall be 
informed of the exemptions on which the denial is based, inclusive of a 
brief statement describing what the exemption(s) cover. When the 
initial denial is based in whole or in part on a security 
classification, the explanation should include a summary of the 
applicable Executive Order criteria for classification, as well as an 
explanation, to the extent reasonably feasible, of how those criteria 
apply to the particular record in question. The requester shall also be 
advised of the opportunity and procedures for appealing an unfavorable 
determination to a higher final authority within the DoD Component.
    (4) The final response to the requester should contain information 
concerning the fee status of the request, consistent with the 
provisions of subpart F, this part.
    (5) The explanation of the substantive basis for a denial shall 
include specific citation of the statutory exemption applied under 
provisions of this part, e.g., 5 U.S.C. 552 (b)(1). Merely referring to 
a classification; to a ``For Official Use Only'' marking on the 
requested record; or to this part or a DoD component's regulation does 
not constitute a proper citation or explanation of the basis for 
invoking an exemption.
    (6) When the time for response becomes an issue, the official 
responsible for replying shall acknowledge to the requester the date of 
the receipt of the request.
    (7) In denying a request for records, in whole or in part, a DoD 
Component shall make a reasonable effort to estimate the volume of the 
records denied and provide this estimate to the requester, unless 
providing such an estimate would harm an interest protected by an 
exemption of the FOIA.
    (f) Extension of time. (1) In unusual circumstances, when 
additional time is needed to respond to the initial request, the DoD 
Component shall acknowledge the request in writing within the 10 day 
period (20 days effective October 2, 1997), describe the circumstances 
requiring the delay, and indicate the anticipated date for a 
substantive response that may not exceed 10 additional working days, 
except as provided in the following:
    (2) With respect to a request for which a written notice has 
extended the time limits by 10 additional working days, and the 
component determines that it cannot make a response determination 
within that additional 10 working day period, the requester shall be 
notified and provided an opportunity to limit the scope of the request 
so that it may be processed within the extended time limit, or an 
opportunity to arrange an alternative time frame for processing the 
request or a modified request. Refusal by the requester to reasonably 
modify the request or arrange for an alternative time frame shall be 
considered a factor in determining whether exceptional

[[Page 7412]]

circumstances exist with respect to DoD Components' request backlogs. 
Exceptional circumstances do not include a delay that results from 
predictable component backlogs, unless the DoD Component demonstrates 
reasonable progress in reducing its backlog.
    (3) Unusual circumstances that may justify delay are:
    (i) The need to search for and collect the requested records from 
other facilities that are separate from the office determined 
responsible for a release or denial decision on the requested 
information.
    (ii) The need to search for, collect, and examine a voluminous 
amount of separate and distinct records which are requested in a single 
request.
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with other agencies having a substantial interest in 
the determination of the request, or among two or more DoD Components 
having a substantial subject-matter interest in the request.
    (4) DoD Components may aggregate certain requests by the same 
requester, or by a group of requesters acting in concert, if the DoD 
Component reasonably believes that such requests actually constitute a 
single request, which would otherwise satisfy the unusual circumstances 
set forth above, and the requests involve clearly related matters. 
Multiple requests involving unrelated matters shall not be aggregated. 
If the requests are aggregated under these conditions, the requester or 
requesters shall be so notified.
    (5) In cases where the statutory time limits cannot be met and no 
informal extension of time has been agreed to, the inability to process 
any part of the request within the specified time should be explained 
to the requester with a request that he agree to await a substantive 
response by an anticipated date. It should be made clear that any such 
agreement does not prejudice the right of the requester to appeal the 
initial decision after it is made. DoD Components are reminded that the 
requester still retains the right to treat this delay as a defacto 
denial with full administrative remedies.
    (6) As an alternative to the taking of formal extensions of time as 
described previously, the negotiation by the cognizant FOIA 
coordinating office of informal extensions in time with requesters is 
encouraged where appropriate.
    (g) Misdirected requests. Misdirected requests shall be forwarded 
promptly to the DoD Component or other Federal agency with the 
responsibility for the records requested. The period allowed for 
responding to the request misdirected by the requester shall not begin 
until the request is received by the DoD Component that manages the 
records requested.
    (h) Records of Non-U.S. Government source. (1) When a request is 
received for a record that falls under exemption 4, that was obtained 
from a non-U.S. Government source, or for a record containing 
information clearly identified as having been provided by a non-U.S. 
Government source, the source of the record or information [also known 
as ``the submitter'' for matters pertaining to proprietary data under 5 
U.S.C. 552) Exemption (b)(4)] [Sec. 286.12] shall be notified promptly 
of that request and afforded reasonable time (e.g., 30 calendar days) 
to present any objections concerning the release, unless it is clear 
that there can be no valid basis for objection. This practice is 
required for those FOIA requests for data not deemed clearly exempt 
from disclosure under Exemption (b)(4). If, for example, the record or 
information was provided with actual or presumptive knowledge of the 
non-U.S. Government source and established that it would be made 
available to the public upon request, there is no obligation to notify 
the source. Any objections shall be evaluated. The final decision to 
disclose information claimed to be exempt under Exemption (b)(4) shall 
be made by an official equivalent in rank to the official who would 
make the decision to withhold that information under the FOIA. When a 
substantial issue has been raised, the DoD Component may seek 
additional information from the source of the information and afford 
the source and requester reasonable opportunities to present their 
arguments on the legal and substantive issues involved prior to making 
an agency determination. When the source advises it will seek a 
restraining order or take court action to prevent release of the record 
or information, the requester shall be notified, and action on the 
request normally shall not be taken until after the outcome of that 
court action is known. When the requester brings court action to compel 
disclosure, the submitter shall be promptly notified of this action.
    (2) If the submitted information is a proposal in response to a 
solicitation for a competitive proposal, and the proposal is in the 
possession and control of DoD, and meets the requirements of 10 U.S.C. 
2305(g), the proposal shall not be disclosed, and no submitter 
notification and subsequent analysis is required. The proposal shall be 
withheld from public disclosure pursuant to 10 U.S.C. 2305(g) and 
exemption ``(b)(3)'' of the FOIA. This statute does not apply to bids, 
unsolicited proposals, or any proposal that is set forth or 
incorporated by reference in a contract between a DoD Component and the 
offeror that submitted the proposal. In such situations, normal 
submitter notice shall be conducted in accordance with paragraph (h)(1) 
of this section, except for sealed bids which are opened and read to 
the public. The term proposal means any proposal, including a 
technical, management, or cost proposal submitted by an offeror in 
response to solicitation for a competitive proposal. Submitter notice, 
and analysis as appropriate, are required for exemption ``(b)(4)'' 
matters which are not specifically incorporated in 10 U.S.C. 2305(g).
    (3) If the record or information was submitted on a strictly 
voluntary basis, absent any exercised authority which prescribes 
criteria for submission, and it is absolutely clear that the record or 
information would customarily not be released to the public, the 
submitter need not be notified. Examples of exercised authorities 
prescribing criteria for submission are statutes, executive orders, 
regulations, invitations for bids, requests for proposals, and 
contracts. Records or information submitted under these authorities are 
not voluntary in nature. When it is not clear whether the information 
was submitted on a voluntary basis, absent any exercised authority, and 
whether it would customarily be released to the public by the 
submitter, notify the submitter and ask that it describe its treatment 
of the information, and render an objective evaluation. If the decision 
is made to release the information over the objection of the submitter, 
notify the submitter and afford the necessary time to allow the 
submitter to seek a restraining order, or take court action to prevent 
release of the record or information.
    (4) The coordination provisions of this paragraph (h) also apply to 
any non-U.S. Government record in the possession and control of the 
Department of Defense from multi-national organizations, such as the 
North Atlantic Treaty Organization (NATO), United Nations Commands, the 
North American Aerospace Defense Command (NORAD), the Inter-American 
Defense Board, or foreign governments. Coordination with foreign 
governments under the provisions of this paragraph (h) may be made 
through Department of State, or the specific foreign embassy.
    (i) File of initial denials. Copies of all initial denials shall be 
maintained by

[[Page 7413]]

each DoD Component in a form suitable for rapid retrieval, periodic 
statistical compilation, and management evaluation. Records denied at 
the initial stage shall be maintained for a period of six years to meet 
the statute of limitations requirement.
    (j) Special mail services. Components 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.
    (k) Receipt accounts. The Treasurer of the United States has 
established two accounts for FOIA receipts, and all money orders or 
checks remitting FOIA fees should be made payable to the U.S. 
Treasurer. These accounts, which are described in the following 
paragraphs, shall be used for depositing all FOIA receipts, except 
receipts for industrially funded and non appropriated funded 
activities. Components are reminded that the below account numbers must 
be preceded by the appropriate disbursing office two digit prefix. 
Industrially funded and non appropriated funded activity FOIA receipts 
shall be deposited to the applicable fund.
    (1) Receipt account 3210 sale of publications and reproductions, 
Freedom of Information Act. This account shall be used when depositing 
funds received from providing existing publications and forms that meet 
the receipt account series description found in Federal account symbols 
and titles.
    (2) Receipt account 3210 fees and other charges for services, 
freedom of information act. This account is used to deposit search 
fees, fees for duplicating and reviewing (in the case of commercial 
requesters) records to satisfy requests that could not be filled with 
existing publications or forms.


Sec. 286.24  Appeals

    (a) General. If the official designated by the DoD Component to 
make initial determinations on requests for records declines to provide 
a record because the official considers it exempt under one or more of 
the exemptions of the FOIA, that decision may be appealed by the 
requester, in writing, to a designated appellate authority. The appeal 
should be accompanied by a copy of the letter denying the initial 
request. Such appeals should contain the basis for disagreement with 
the initial refusal. Appeal procedures also apply to the disapproval of 
a fee category claim by a requester, disapproval of a request for 
waiver or reduction of fees, disputes regarding fee estimates, review 
on an expedited basis a determination not to grant expedited access to 
agency records, and for no record determinations when the requester 
considers such responses adverse in nature. Appeals of Office of the 
Secretary of Defense and Joint Staff determinations may be sent to the 
address in paragraph 2.a. of Appendix B to this part. If a request is 
merely misaddressed, and the receiving DoD Component simply advises the 
requester of such and refers the request to the appropriate DoD 
Component, this shall not be considered a no record determination.
    (b) Time of receipt. An FOIA appeal has been received by a DoD 
Component when it reaches the office of an appellate authority having 
jurisdiction. Misdirected appeals should be referred expeditiously to 
the proper appellate authority.
    (c) Time limits. (1) The requester shall be advised to file an 
appeal so that it reaches the appellate authority no later than 60 
calendar days after the date of the initial denial letter. At the 
conclusion of this period, the case may be considered closed; however, 
such closure does not preclude the requester from filing litigation. In 
cases where the requester is provided several incremental 
determinations for a single request, the time for the appeal shall not 
begin until the requester receives the last such notification. Records 
which are denied shall be retained for a period of six years to meet 
the statute of limitations requirement.
    (2) Final determinations on appeals normally shall be made within 
20 working days after receipt. When a DoD Component has a significant 
number of appeals precluding a response determination within 20 working 
days, the appeals shall be processed in a multitrack processing system, 
based at a minimum, on the three processing tracks established for 
initial requests. See Sec. 286.4(c). All of the provisions of 
Sec. 286.4(c) apply also to appeals of initial determinations, to 
include establishing additional processing queues as needed.
    (d) Delay in responding to an appeal. (1) If additional time is 
needed due to the unusual circumstances described in paragraph 
Sec. 286.24(g), the final decision may be delayed for the number of 
working days (not to exceed 10), that were not used as additional time 
for responding to the initial request.
    (2) If a determination cannot be made and the requester notified 
within 20 working days, the appellate authority shall acknowledge to 
the requester, in writing, the date of receipt of the appeal, the 
circumstances surrounding the delay, and the anticipated date for 
substantive response. Requesters shall be advised that, if the delay 
exceeds the statutory extension provision or is for reasons other than 
the unusual circumstances identified in Sec. 286.24(g), they may 
consider their administrative remedies exhausted. They may, however, 
without prejudicing their right of judicial remedy, await a substantive 
response. The DoD Component shall continue to process the case 
expeditiously, whether or not the requester seeks a court order for 
release of the records, but a copy of any response provided subsequent 
to filing of a complaint shall be forwarded to the Department of 
Justice.
    (e) Response to the requester. (1) When an appellate authority 
makes a final determination to release all or a portion of records 
withheld by an IDA, a written response and a copy of the records so 
released should be forwarded promptly to the requester after compliance 
with any preliminary procedural requirements, such as payment of fees.
    (2) Final refusal of an appeal must be made in writing by the 
appellate authority or by a designated representative. The response, at 
a minimum, shall include the following:
    (i) The basis for the refusal shall be explained to the requester 
in writing, both with regard to the applicable statutory exemption or 
exemptions invoked under provisions of the FOIA, and with respect to 
other appeal matters as set forth in paragraph (a) of this section.
    (ii) When the final refusal is based in whole or in part on a 
security classification, the explanation shall include a determination 
that the record meets the cited criteria and rationale of the governing 
Executive Order, and that this determination is based on a 
declassification review, with the explanation of how that review 
confirmed the continuing validity of the security classification.
    (iii) The final denial shall include the name and title or position 
of the official responsible for the denial.
    (iv) In the case of appeals for denial of records, the response 
shall advise the requester that the information being denied does not 
contain meaningful portions that are reasonably segregable.
    (v) The response shall advise the requester of the right to 
judicial review.
    (f) Consultation. (1) Final refusal involving issues not previously 
resolved or that the DoD Component knows to be inconsistent with 
rulings of other DoD Components ordinarily should not be made before 
consultation with the Office of the General Counsel of the Department 
of Defense.

[[Page 7414]]

    (2) Tentative decisions to deny records that raise new or 
significant legal issues of potential significance to other agencies of 
the Government shall be provided to the Department of Defense Office of 
General Counsel (Office of Legal Counsel).


Sec. 286.25  Judicial actions.

    (a) General. (1) This section states current legal and procedural 
rules for the convenience of the reader. The statements of rules do not 
create rights or remedies not otherwise available, nor do they bind the 
Department of Defense to particular judicial interpretations or 
procedures.
    (2) A requester may seek an order from a United States District 
Court to compel release of a record after administrative remedies have 
been exhausted; i.e., when refused a record by the head of a Component 
or an appellate designee or when the DoD Component has failed to 
respond within the time limits prescribed by the FOIA and in this part.
    (b) Jurisdiction. The requester may bring suit in the United States 
District Court in the district in which the requester resides or is the 
requesters place of business, in the district in which the record is 
located, or in the District of Columbia.
    (c) Burden of proof. The burden of proof is on the DoD Component to 
justify its refusal to provide a record. The court shall evaluate the 
case de novo (anew) and may elect to examine any requested record in 
camera (in private) to determine whether the denial was justified.
    (d) Actions by the court. (1) When a DoD Component has failed to 
make a determination within the statutory time limits but can 
demonstrate due diligence in exceptional circumstances, the court may 
retain jurisdiction and allow the Component additional time to complete 
its review of the records.
    (2) If the court determines that the requester's complaint is 
substantially correct, it may require the United States to pay 
reasonable attorney fees and other litigation costs.
    (3) When the court orders the release of denied records, it may 
also issue a written finding that the circumstances surrounding the 
withholding raise questions whether DoD Component personnel acted 
arbitrarily and capriciously. In these cases, the special counsel of 
the Merit System Protection Board shall conduct an investigation to 
determine whether or not disciplinary action is warranted. The DoD 
Component is obligated to take the action recommended by the special 
counsel.
    (4) The court may punish the responsible official for contempt when 
a DoD Component fails to comply with the court order to produce records 
that it determines have been withheld improperly.
    (e) Non-United States Government source information. A requester 
may bring suit in a U.S. District Court to compel the release of 
records obtained from a non government source or records based on 
information obtained from a non government source. Such source shall be 
notified promptly of the court action. When the source advises that it 
is seeking court action to prevent release, the DoD Component shall 
defer answering or otherwise pleading to the complainant as long as 
permitted by the Court or until a decision is rendered in the court 
action of the source, whichever is sooner.
    (f) FOIA litigation. Personnel responsible for processing FOIA 
requests at the DoD Component level shall be aware of litigation under 
the FOIA. Such information will provide management insights into the 
use of the nine exemptions by Component personnel. Whenever a complaint 
under the FOIA is filed in a U.S. District Court, the DoD Component 
named in the complaint shall forward a copy of the complaint by any 
means to the OASD(PA), ATTN: DFOISR, with an information copy to the 
General Counsel, Department of Defense, ATTN: Office of Legal Counsel.

Subpart F--Fee Schedule


Sec. 286.28  General provisions.

    (a) Authorities. The Freedom of Information Act (5 U.S.C. 552), as 
amended; by the Freedom of Information Reform Act of 1986; the 
Paperwork Reduction Act (44 U.S.C. 35); the Privacy Act of 1974 (5 
U.S.C. 552a); the Budget and Accounting Act of 1921 (31 U.S.C. 1 et. 
seq.); the Budget and Accounting Procedures Act (31 U.S.C. 67 et. 
seq.); the Defense Authorization Act for FY 87, Section 954, (10 U.S.C. 
2328), as amended by the Defense Technical Corrections Act of 1987 (10 
U.S.C. 101 note).
    (b) Application. (1) The fees described in this subpart apply to 
FOIA requests, and conform to the Office of Management and Budget 
Uniform Freedom of Information Act Fee Schedule and Guidelines. They 
reflect direct costs for search, review (in the case of commercial 
requesters); and duplication of documents, collection of which is 
permitted by the FOIA. They are neither intended to imply that fees 
must be charged in connection with providing information to the public 
in the routine course of business, nor are they meant as a substitute 
for any other schedule of fees, such as DoD Instruction 7230.7 12, 
which does not supersede the collection of fees under the FOIA. Nothing 
in this subpart shall supersede fees chargeable under a statute 
specifically providing for setting the level of fees for particular 
types of records. A ``statute specifically providing for setting the 
level of fees for particular types of records'' (5 U.S.C. 552 
(a)(4)(a)(vi)) means any statute that enables a Government Agency such 
as the Government Printing Office (GPO) or the National Technical 
Information Service (NTIS), to set and collect fees. Components should 
ensure that when documents that would be responsive to a request are 
maintained for distribution by agencies operating statutory-based fee 
schedule programs such as the GPO or NTIS, they inform requesters of 
the steps necessary to obtain records from those sources.
---------------------------------------------------------------------------

    \12\  See footnote 1 to Sec. 286.1 (a).
---------------------------------------------------------------------------

    (2) The term ``direct costs'' means those expenditures a Component 
actually makes in searching for, reviewing (in the case of commercial 
requesters), and duplicating documents to respond to an FOIA request. 
Direct costs include, for example, the salary of the employee 
performing the work (the basic rate of pay for the employee plus 16 
percent of that rate to cover benefits), and the costs of operating 
duplicating machinery. These factors have been included in the fee 
rates prescribed at Sec. 286.29. Not included in direct costs are 
overhead expenses such as costs of space, heating or lighting the 
facility in which the records are stored.
    (3) The term ``search'' includes all time spent looking, both 
manually and electronically for material that is responsive to a 
request. Search also includes a page-by-page or line-by-line 
identification (if necessary) of material in the record to determine if 
it, or portions thereof are responsive to the request. Components 
should ensure that searches are done in the most efficient and least 
expensive manner so as to minimize costs for both the Component and the 
requester. For example, Components should not engage in line-by-line 
searches when duplicating an entire document known to contain 
responsive information would prove to be the less expensive and quicker 
method of complying with the request. Time spent reviewing documents in 
order to determine whether to apply one or more of the statutory 
exemptions is not search time, but review time. See paragraph (b) (5) 
of this section for the definition of review, and paragraph (c)

[[Page 7415]]

(5) of this section and Sec. 286.29 (b) (2) for information pertaining 
to computer searches.
    (4) The term ``duplication'' refers to the process of making a copy 
of a document in response to an FOIA request. Such copies can take the 
form of paper copy, microfiche, audiovisual, or machine readable 
documentation (e.g., magnetic tape or disc), among others. Every effort 
will be made to ensure that the copy provided is in a form that is 
reasonably useable, the requester shall be notified that the copy 
provided is the best available and that the agency's master copy shall 
be made available for review upon appointment. For duplication of 
computer tapes and audiovisual, the actual cost, including the 
operator's time, shall be charged. In practice, if a Component 
estimates that assessable duplication charges are likely to exceed 
$25.00, it shall notify the requester of the estimate, unless the 
requester has indicated in advance his or her willingness to pay fees 
as high as those anticipated. Such a notice shall offer a requester the 
opportunity to confer with Component personnel with the object of 
reformulating the request to meet his or her needs at a lower cost.
    (5) The term ``review'' refers to the process of examining 
documents located in response to an FOIA request to determine whether 
one or more of the statutory exemptions permit withholding. It also 
includes processing the documents for disclosure, such as excising them 
for release. Review does not include the time spent resolving general 
legal or policy issues regarding the application of exemptions. It 
should be noted that charges for commercial requesters may be assessed 
only for the initial review. Components may not charge for reviews 
required at the administrative appeal level of an exemption already 
applied. However, records or portions of records withheld in full under 
an exemption which is subsequently determined not to apply may be 
reviewed again to determine the applicability of other exemptions not 
previously considered. The costs for such a subsequent review would be 
properly assessable.
    (c) Fee restrictions. (1) No fees may be charged by any DoD 
Component if the costs of routine collection and processing of the fee 
are likely to equal or exceed the amount of the fee. With the exception 
of requesters seeking documents for a commercial use, Components shall 
provide the first two hours of search time, and the first one hundred 
pages of duplication without charge. For example, for a request (other 
than one from a commercial requester) that involved two hours and ten 
minutes of search time, and resulted in one hundred and five pages of 
documents, a Component would determine the cost of only ten minutes of 
search time, and only five pages of reproduction. If this processing 
cost was equal to, or less than the cost to the Component for billing 
the requester and processing the fee collected, no charges would 
result.
    (2) Requesters receiving the first two hours of search and the 
first one hundred pages of duplication without charge are entitled to 
such only once per request. Consequently, if a Component, after 
completing its portion of a request, finds it necessary to refer the 
request to a subordinate office, another DoD Component, or another 
Federal Agency to action their portion of the request, the referring 
Component shall inform the recipient of the referral of the expended 
amount of search time and duplication cost to date.
    (3) The elements to be considered in determining the ``cost of 
collecting a fee'' are the administrative costs to the Component of 
receiving and recording a remittance, and processing the fee for 
deposit in the Department of Treasury's special account. The cost to 
the Department of Treasury to handle such remittance is negligible and 
shall not be considered in Components' determinations.
    (4) For the purposes of these restrictions, the word ``pages'' 
refers to paper copies of a standard size, which will normally be 
``8\1/2\ x 11'' or ``11 x 14''. Thus, requesters would not be entitled 
to 100 microfiche or 100 computer disks, for example. A microfiche 
containing the equivalent of 100 pages or 100 pages of computer 
printout; however, might meet the terms of the restriction.
    (5) In the case of computer searches, the first two free hours will 
be determined against the salary scale of the individual operating the 
computer for the purposes of the search. As an example, when the direct 
costs of the computer central processing unit, input-output devices, 
and memory capacity equal $24.00 (two hours of equivalent search at the 
clerical level), amounts of computer costs in excess of that amount are 
chargeable as computer search time. In the event the direct operating 
cost of the hardware configuration cannot be determined, computer 
search shall be based on the salary scale of the operator executing the 
computer search. See Sec. 286.29 for further details regarding fees for 
computer searches.
    (d) Fee waivers. (1) Documents shall be furnished without charge, 
or at a charge reduced below fees assessed to the categories of 
requesters in paragraph (e) of this section when the Component 
determines that waiver or reduction of the fees is in the public 
interest because furnishing the information is likely to contribute 
significantly to public understanding of the operations or activities 
of the Department of Defense and is not primarily in the commercial 
interest of the requester.
    (2) When assessable costs for an FOIA request total $15.00 or less, 
fees shall be waived automatically for all requesters, regardless of 
category.
    (3) Decisions to waive or reduce fees that exceed the automatic 
waiver threshold shall be made on a case-by-case basis, consistent with 
the following factors:
    (i) Disclosure of the information ``is in the public interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the Government.''
    (A) The subject of the request. Components should analyze whether 
the subject matter of the request involves issues which will 
significantly contribute to the public understanding of the operations 
or activities of the Department of Defense. Requests for records in the 
possession of the Department of Defense which were originated by non-
government organizations and are sought for their intrinsic content, 
rather than informative value will likely not contribute to public 
understanding of the operations or activities of the Department of 
Defense. An example of such records might be press clippings, magazine 
articles, or records forwarding a particular opinion or concern from a 
member of the public regarding a DoD activity. Similarly, disclosures 
of records of considerable age may or may not bear directly on the 
current activities of the Department of Defense; however, the age of a 
particular record shall not be the sole criteria for denying relative 
significance under this factor. It is possible to envisage an 
informative issue concerning the current activities of the Department 
of Defense, based upon historical documentation. Requests of this 
nature must be closely reviewed consistent with the requester's stated 
purpose for desiring the records and the potential for public 
understanding of the operations and activities of the Department of 
Defense.
    (B) The informative value of the information to be disclosed. This 
factor requires a close analysis of the substantive contents of a 
record, or portion of the record, to determine whether disclosure is 
meaningful, and shall inform the public on the operations or activities 
of the Department of Defense. While the

[[Page 7416]]

subject of a request may contain information which concerns operations 
or activities of the Department of Defense, it may not always hold 
great potential for contributing to a meaningful understanding of these 
operations or activities. An example of such would be a heavily 
redacted record, the balance of which may contain only random words, 
fragmented sentences, or paragraph headings. A determination as to 
whether a record in this situation will contribute to the public 
understanding of the operations or activities of the Department of 
Defense must be approached with caution, and carefully weighed against 
the arguments offered by the requester. Another example is information 
already known to be in the public domain. Disclosure of duplicative, or 
nearly identical information already existing in the public domain may 
add no meaningful new information concerning the operations and 
activities of the Department of Defense.
    (C) The contribution to an understanding of the subject by the 
general public likely to result from disclosure. The key element in 
determining the applicability of this factor is whether disclosure will 
inform, or have the potential to inform the public, rather than simply 
the individual requester or small segment of interested persons. The 
identity of the requester is essential in this situation in order to 
determine whether such requester has the capability and intention to 
disseminate the information to the public. Mere assertions of plans to 
author a book, researching a particular subject, doing doctoral 
dissertation work, or indigence are insufficient without demonstrating 
the capacity to further disclose the information in a manner which will 
be informative to the general public. Requesters should be asked to 
describe their qualifications, the nature of their research, the 
purpose of the requested information, and their intended means of 
dissemination to the public.
    (D) The significance of the contribution to public understanding. 
In applying this factor, Components must differentiate the relative 
significance or impact of the disclosure against the current level of 
public knowledge, or understanding which exists before the disclosure. 
In other words, will disclosure on a current subject of wide public 
interest be unique in contributing previously unknown facts, thereby 
enhancing public knowledge, or will it basically duplicate what is 
already known by the general public. A decision regarding significance 
requires objective judgment, rather than subjective determination, and 
must be applied carefully to determine whether disclosure will likely 
lead to a significant public understanding of the issue. Components 
shall not make value judgments as to whether the information is 
important enough to be made public.
    (ii) Disclosure of the information ``is not primarily in the 
commercial interest of the requester.''
    (A) The existence and magnitude of a commercial interest. If the 
request is determined to be of a commercial interest, Components should 
address the magnitude of that interest to determine if the requester's 
commercial interest is primary, as opposed to any secondary personal or 
non-commercial interest. In addition to profit-making organizations, 
individual persons or other organizations may have a commercial 
interest in obtaining certain records. Where it is difficult to 
determine whether the requester is of a commercial nature, Components 
may draw inference from the requester's identity and circumstances of 
the request. In such situations, the provisions of paragraph (e) of 
this section apply. Components are reminded that in order to apply the 
commercial standards of the FOIA, the requester's commercial benefit 
must clearly override any personal or non-profit interest.
    (B) The primary interest in disclosure. Once a requester's 
commercial interest has been determined, Components should then 
determine if the disclosure would be primarily in that interest. This 
requires a balancing test between the commercial interest of the 
request against any public benefit to be derived as a result of that 
disclosure. Where the public interest is served above and beyond that 
of the requester's commercial interest, a waiver or reduction of fees 
would be appropriate. Conversely, even if a significant public interest 
exists, and the relative commercial interest of the requester is 
determined to be greater than the public interest, then a waiver or 
reduction of fees would be inappropriate. As examples, news media 
organizations have a commercial interest as business organizations; 
however, their inherent role of disseminating news to the general 
public can ordinarily be presumed to be of a primary interest. 
Therefore, any commercial interest becomes secondary to the primary 
interest in serving the public. Similarly, scholars writing books or 
engaged in other forms of academic research, may recognize a commercial 
benefit, either directly, or indirectly (through the institution they 
represent); however, normally such pursuits are primarily undertaken 
for educational purposes, and the application of a fee charge would be 
inappropriate. Conversely, data brokers or others who merely compile 
government information for marketing can normally be presumed to have 
an interest primarily of a commercial nature.
    (iii) Components are reminded that the previously mentioned factors 
and examples are not all inclusive. Each fee decision must be 
considered on a case-by-case basis and upon the merits of the 
information provided in each request. When the element of doubt as to 
whether to charge or waive the fee cannot be clearly resolved, 
Components should rule in favor of the requester.
    (4) In addition, the following additional circumstances describe 
situations where waiver or reduction of fees are most likely to be 
warranted:
    (i) A record is voluntarily created to preclude an otherwise 
burdensome effort to provide voluminous amounts of available records, 
including additional information not requested.
    (ii) A previous denial of records is reversed in total, or in part, 
and the assessable costs are not substantial (e.g. $15.00--$30.00).
    (e) Fee assessment. (1) Fees may not be used to discourage 
requesters, and to this end, FOIA fees are limited to standard charges 
for direct document search, review (in the case of commercial 
requesters) and duplication.
    (2) In order to be as responsive as possible to FOIA requests while 
minimizing unwarranted costs to the taxpayer, Components shall adhere 
to the following procedures:
    (i) Analyze each request to determine the category of the 
requester. If the Component determination regarding the category of the 
requester is different than that claimed by the requester, the 
Component shall:
    (A) Notify the requester to provide additional justification to 
warrant the category claimed, and that a search for responsive records 
will not be initiated until agreement has been attained relative to the 
category of the requester. Absent further category justification from 
the requester, and within a reasonable period of time (i.e., 30 
calendar days), the Component shall render a final category 
determination, and notify the requester of such determination, to 
include normal administrative appeal rights of the determination.
    (B) Advise the requester that, notwithstanding any appeal, a search 
for responsive records will not be initiated until the requester 
indicates a willingness to pay assessable costs

[[Page 7417]]

appropriate for the category determined by the Component.
    (ii) Requesters should submit a fee declaration appropriate for the 
below categories.
    (A) Commercial. Requesters should indicate a willingness to pay all 
search, review and duplication costs.
    (B) Educational or noncommercial scientific institution or news 
media. Requesters should indicate a willingness to pay duplication 
charges in excess of 100 pages if more than 100 pages of records are 
desired.
    (C) All others. Requesters should indicate a willingness to pay 
assessable search and duplication costs if more than two hours of 
search effort or 100 pages of records are desired.
    (iii) If the previous conditions are not met, then the request need 
not be processed and the requester shall be so informed.
    (iv) In the situations described by paragraphs (e)(2)(i) and 
(e)(2)(ii) of this section, Components must be prepared to provide an 
estimate of assessable fees if desired by the requester. While it is 
recognized that search situations will vary among Components, and that 
an estimate is often difficult to obtain prior to an actual search, 
requesters who desire estimates are entitled to such before committing 
to a willingness to pay. Should Component estimates exceed the actual 
amount of the estimate or the amount agreed to by the requester, the 
amount in excess of the estimate or the requester's agreed amount shall 
not be charged without the requester's agreement.
    (v) No DoD Component may require advance payment of any fee; i.e., 
payment before work is commenced or continued on a request, unless the 
requester has previously failed to pay fees in a timely fashion, or the 
agency has determined that the fee will exceed $250.00. As used in this 
sense, a timely fashion is 30 calendar days from the date of billing 
(the fees have been assessed in writing) by the Component.
    (vi) Where a Component estimates or determines that allowable 
charges that a requester may be required to pay are likely to exceed 
$250.00, the Component shall notify the requester of the likely cost 
and obtain satisfactory assurance of full payment where the requester 
has a history of prompt payments, or require an advance payment of an 
amount up to the full estimated charges in the case of requesters with 
no history of payment.
    (vii) Where a requester has previously failed to pay a fee charged 
in a timely fashion (i. e., within 30 calendar days from the date of 
the billing), the Component may require the requester to pay the full 
amount owed, plus any applicable interest, or demonstrate that he or 
she has paid the fee, and to make an advance payment of the full amount 
of the estimated fee before the Component begins to process a new or 
pending request from the requester. Interest will be at the rate 
prescribed in 31 U.S.C. 3717, and confirmed with respective Finance and 
Accounting Offices.
    (viii) After all work is completed on a request, and the documents 
are ready for release, Components may request payment before forwarding 
the documents if there is no payment history on the requester, or if 
the requester has previously failed to pay a fee in a timely fashion 
(i. e., within 30 calendar days from the date of the billing). In the 
case of the latter, the provisions of paragraph (e) (2) (vii) of this 
section. Components may not hold documents ready for release pending 
payment from requesters with a history of prompt payment.
    (ix) When Components act under paragraphs (e) (2) (i) through (vii) 
of this section, the administrative time limits of the FOIA will begin 
only after the Component has received a willingness to pay fees and 
satisfaction as to category determination, or fee payments (if 
appropriate).
    (x) Components may charge for time spent searching for records, 
even if that search fails to locate records responsive to the request. 
Components may also charge search and review (in the case of commercial 
requesters) time if records located are determined to be exempt from 
disclosure. In practice, if the Component estimates that search charges 
are likely to exceed $25.00 it shall notify the requester of the 
estimated amount of fees, unless the requester has indicated in advance 
his or her willingness to pay fees as high as those anticipated. Such a 
notice shall offer the requester the opportunity to confer with 
Component personnel with the object of reformulating the request to 
meet his or her needs at a lower cost.
    (3) Commercial requesters. Fees shall be limited to reasonable 
standard charges for document search, review and duplication when 
records are requested for commercial use. Requesters must reasonably 
describe the records sought (see Sec. 286.4 (h)).
    (i) The term ``commercial use'' request refers to a request from, 
or on behalf of one who seeks information for a use or purpose that 
furthers the commercial, trade, or profit interest of the requester or 
the person on whose behalf the request is made. In determining whether 
a requester properly belongs in this category, Components must 
determine the use to which a requester will put the documents 
requested. Moreover, where a Component has reasonable cause to doubt 
the use to which a requester will put the records sought, or where that 
use is not clear from the request itself, Components should seek 
additional clarification before assigning the request to a specific 
category.
    (ii) When Components receive a request for documents for commercial 
use, they should assess charges which recover the full direct costs of 
searching for, reviewing for release, and duplicating the records 
sought. Commercial requesters (unlike other requesters) are not 
entitled to two hours of free search time, nor 100 free pages of 
reproduction of documents. Moreover, commercial requesters are not 
normally entitled to a waiver or reduction of fees based upon an 
assertion that disclosure would be in the public interest. However, 
because use is the exclusive determining criteria, it is possible to 
envision a commercial enterprise making a request that is not for 
commercial use. It is also possible that a non-profit organization 
could make a request that is for commercial use. Such situations must 
be addressed on a case-by-case basis.
    (4) Educational Institution requesters. Fees shall be limited to 
only reasonable standard charges for document duplication (excluding 
charges for the first 100 pages) when the request is made by an 
educational institution whose purpose is scholarly research. Requesters 
must reasonably describe the records sought (see Sec. 286.4 (h)). The 
term ``educational institution'' refers to a pre-school, a public or 
private elementary or secondary school, an institution of graduate high 
education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, which operates a program or programs of scholarly research. 
Fees shall be waived or reduced in the public interest if the criteria 
of Sec. 286.28 (d).
    (5) Non-commercial scientific institution requesters. Fees shall be 
limited to only reasonable standard charges for document duplication 
(excluding charges for the first 100 pages) when the request is made by 
a non-commercial scientific institution whose purpose is scientific 
research. Requesters must reasonably describe the records sought. The 
term ``non-commercial scientific institution'' refers to an institution 
that is not operated on a ``commercial'' basis as defined in 
Sec. 286.28(e)(3) and which is operated solely for the purpose of 
conducting scientific research, the results of which

[[Page 7418]]

are not intended to promote any particular product or industry. Fees 
shall be waived or reduced in the public interest if the criteria of 
Sec. 286.28 (d) have been met.
    (6) Components shall provide documents to requesters in 
Sec. 286.28(e)(2) and (e)(5) for the cost of duplication alone, 
excluding charges for the first 100 pages. To be eligible for inclusion 
in these categories, requesters must show that the request is being 
made under the auspices of a qualifying institution and that the 
records are not sought for commercial use, but in furtherance of 
scholarly (from an educational institution) or scientific (from a non-
commercial scientific institution) research.
    (7) Representatives of the news media. Fees shall be limited to 
only reasonable standard charges for document duplication (excluding 
charges for the first 100 pages) when the request is made by a 
representative of the news media. Requesters must reasonably describe 
the records sought (see Sec. 286.4 (h)). Fees shall be waived or 
reduced if the criteria of Sec. 286.28(d) have been met.
    (i) The term ``representative of the news media'' refers to any 
person actively gathering news for an entity that is organized and 
operated to publish or broadcast news to the public. The term ``news'' 
means information that is about current events or that would be of 
current interest to the public. Examples of news media entities include 
television or radio stations broadcasting to the public at large, and 
publishers of periodicals (but only in those instances when they can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public. These examples are 
not meant to be all-inclusive. Moreover, as traditional methods of news 
delivery evolve (e.g., electronic dissemination of newspapers through 
telecommunications services), such alternative media would be included 
in this category. In the case of ``freelance'' journalists, they may be 
regarded as working for a news organization if they can demonstrate a 
solid basis for expecting publication though that organization, even 
through not actually employed by it. A publication contract would be 
the clearest proof, but Components may also look to the past 
publication record of a requester in making this determination.
    (ii) To be eligible for inclusion in this category, a requester 
must meet the criteria in Sec. 286.28(e)(7)(i) and his or her request 
must not be made for commercial use. A request for records supporting 
the news dissemination function of the requester shall not be 
considered to be a request that is for a commercial use. For example, a 
document request by a newspaper for records relating to the 
investigation of a defendant in a current criminal trial of public 
interest could be presumed to be a request from an entity eligible for 
inclusion in this category, and entitled to records at the cost of 
reproduction alone (excluding charges for the first 100 pages).
    (iii) ``Representative of the news media'' does not include private 
libraries, private repositories of Government records, or middlemen, 
such as information vendors or data brokers.
    (8) All other requesters. Components shall charge requesters who do 
not fit into any of the previous categories, fees which recover the 
full direct cost of searching for and duplicating records, except that 
the first two hours of search time and the first 100 pages of 
duplication shall be furnished without charge. Requesters must 
reasonably describe the records sought (see Sec. 286.4 (h)). Requests 
from subjects about themselves will continue to be treated under the 
fee provisions of the Privacy Act of 1974, which permit fees only for 
duplication. Components are reminded that this category of requester 
may also be eligible for a waiver or reduction of fees if disclosure of 
the information is in the public interest as defined under 
Sec. 286.28(d)(1). (See also Sec. 286.28(e)(2)).
    (f) Aggregating requests. Except for requests that are for a 
commercial use, a Component may not charge for the first two hours of 
search time or for the first 100 pages of reproduction. However, a 
requester may not file multiple requests at the same time, each seeking 
portions of a document or documents, solely in order to avoid payment 
of fees. When a Component reasonably believes that a requester or, on 
rare occasions, a group of requesters acting in concert, is attempting 
to break a request down into a series of requests for the purpose of 
avoiding the assessment of fees, the agency may aggregate any such 
requests and charge accordingly. One element to be considered in 
determining whether a belief would be reasonable is the time period in 
which the requests have occurred. For example, it would be reasonable 
to presume that multiple requests of this type made within a 30 day 
period had been made to avoid fees. For requests made over a longer 
period; however, such a presumption becomes harder to sustain and 
Components should have a solid basis for determining that aggregation 
is warranted in such cases. Components are cautioned that before 
aggregating requests from more than one requester, they must have a 
concrete basis on which to conclude that the requesters are acting in 
concert and are acting specifically to avoid payment of fees. In no 
case may Components aggregate multiple requests on unrelated subjects 
from one requester.
    (g) Effect of the Debt Collection Act of 1982 (5 U.S.C. 5514 note). 
The Debt Collection Act of 1982 (5 U.S.C. 5514 note) provides for a 
minimum annual rate of interest to be charged on overdue debts owed the 
Federal Government. Components may levy this interest penalty for any 
fees that remain outstanding 30 calendar days from the date of billing 
(the first demand notice) to the requester of the amount owed. The 
interest rate shall be as prescribed in 31 U.S.C. 3717. Components 
should verify the current interest rate with respective Finance and 
Accounting Offices. After one demand letter has been sent, and 30 
calendar days have lapsed with no payment, Components may submit the 
debt to respective Finance and Accounting Offices for collection 
pursuant to the Debt Collection Act of 1982.
    (h) Computation of fees. The fee schedule in this subpart shall be 
used to compute the search, review (in the case of commercial 
requesters) and duplication costs associated with processing a given 
FOIA request. Costs shall be computed on time actually spent. Neither 
time-based nor dollar-based minimum charges for search, review and 
duplication are authorized.


Sec. 286.29  Collection of fees and fee rates.

    (a) Collection of fees. Collection of fees will be made at the time 
of providing the documents to the requester or recipient when the 
requester specifically states that the costs involved shall be 
acceptable or acceptable up to a specified limit that covers the 
anticipated costs. Collection of fees may not be made in advance unless 
the requester has failed to pay previously assessed fees within 30 
calendar days from the date of the billing by the DOD Component, or the 
Component has determined that the fee will be in excess of $250 (see 
Sec. 286.28 (e)).
    (b) Search time--(1) Manual search.

------------------------------------------------------------------------
                                                                 Hourly 
                Type                           Grade              rate  
                                                               (dollars)
------------------------------------------------------------------------
Clerical............................  E9/GS8 and below.......         12
Professional........................  01-06/GS9-GS15.........         25
Executive...........................  07/GS16/ES1 and above..         45
------------------------------------------------------------------------


[[Page 7419]]

    (2) Computer search. Fee assessments for computer search consists 
of two parts; individual time (hereafter referred to as human time), 
and machine time.
    (i) Human time. Human time is all the time spent by humans 
performing the necessary tasks to prepare the job for a machine to 
execute the run command. If execution of a run requires monitoring by a 
human, that human time may be also assessed as computer search. The 
terms ``programmer/operator'' shall not be limited to the traditional 
programmers or operators. Rather, the terms shall be interpreted in 
their broadest sense to incorporate any human involved in performing 
the computer job (e.g. technician, administrative support, operator, 
programmer, database administrator, or action officer).
    (ii) Machine time. Machine time involves only direct costs of the 
Central Processing Unit (CPU), input/output devices, and memory 
capacity used in the actual computer configuration. Only this CPU rate 
shall be charged. No other machine related costs shall be charged. In 
situations were the capability does not exist to calculate CPU time, no 
machine costs can be passed on to the requester. When CPU calculations 
are not available, only human time costs shall be assessed to 
requesters. Should DoD Components lease computers, the services charged 
by the lessor shall not be passed to the requester under the FOIA.
    (c) Duplication.

------------------------------------------------------------------------
                   Type                         Cost per page (cents)   
------------------------------------------------------------------------
Pre-Printed material......................  02.                         
Office copy...............................  15.                         
Microfiche................................  25.                         
Computer copies (tapes, discs or            Actual cost of duplicating  
 printouts).                                 the tape, disc or printout 
                                             (includes operator's time  
                                             and cost of the medium).   
------------------------------------------------------------------------

    (d) Review time (in the case of commercial requesters).

------------------------------------------------------------------------
                                                                 Hourly 
                Type                           Grade              rate  
                                                               (dollars)
------------------------------------------------------------------------
Clerical............................  E9/GS8 and below.......         12
Professional........................  01-06/GS9-GS15.........         25
Executive...........................  07/GS16/ES1 and above..         45
------------------------------------------------------------------------

    (e) Audiovisual documentary materials. Search costs are computed as 
for any other record. Duplication cost is the actual direct cost of 
reproducing the material, including the wage of the person doing the 
work. Audiovisual materials provided to a requester need not be in 
reproducible format or quality.
    (f) Other records. Direct search and duplication cost for any 
record not described above shall be computed in the manner described 
for audiovisual documentary material.
    (g) Costs for special services. Complying with requests for special 
services is at the discretion of the Components. Neither the FOIA, nor 
its fee structure cover these kinds of services. Therefore, Components 
may recover the costs of special services requested by the requester 
after agreement has been obtained in writing from the requester to pay 
for one or more of the following services:
    (1) Certifying that records are true copies.
    (2) Sending records by special methods such as express mail, etc.


Sec. 286.30  Collection of fees and fee rates for technical data.

    (a) Fees for technical data. (1) Technical data, other than 
technical data that discloses critical technology with military or 
space application, if required to be released under the FOIA, shall be 
released after the person requesting such technical data pays all 
reasonable costs attributed to search, duplication and review of the 
records to be released. Technical data, as used in this section, means 
recorded information, regardless of the form or method of the recording 
of a scientific or technical nature (including computer software 
documentation). This term does not include computer software, or data 
incidental to contract administration, such as financial and/or 
management information. DoD Components shall retain the amounts 
received by such a release, and it shall be merged with and available 
for the same purpose and the same time period as the appropriation from 
which the costs were incurred in complying with request. All reasonable 
costs as used in this sense are the full costs to the Federal 
Government of rendering the service, or fair market value of the 
service, whichever is higher. Fair market value shall be determined in 
accordance with commercial rates in the local geographical area. In the 
absence of a known market value, charges shall be based on recovery of 
full costs to the Federal Government. The full costs shall include all 
direct and indirect costs to conduct the search and to duplicate the 
records responsive to the request. This cost is to be differentiated 
from the direct costs allowable under Sec. 286.29 for other types of 
information released under the FOIA.
    (2) Waiver. Components shall waive the payment of costs required in 
paragraph (a)(1) of this section which are greater than the costs that 
would be required for release of this same information under 
Sec. 286.29 if:
    (i) The request is made by a citizen of the United States or a 
United States corporation, and such citizen or corporation certifies 
that the technical data requested is required to enable it to submit an 
offer, or determine whether it is capable of submitting an offer to 
provide the product to which the technical data relates to the United 
States or a contractor with the United States. However, Components may 
require the citizen or corporation to pay a deposit in an amount equal 
to not more than the cost of complying with the request, which will be 
refunded upon submission of an offer by the citizen or corporation;
    (ii) The release of technical data is requested in order to comply 
with the terms of an international agreement; or
    (iii) The Component determines in accordance with Sec. 286.28(d)(1) 
that such a waiver is in the interest of the United States.
    (b) Fee rates.
    (1) Search time.--(i) Manual search.

------------------------------------------------------------------------
                                                                 Hourly 
                Type                           Grade              rate  
                                                               (dollars)
------------------------------------------------------------------------
Clerical............................  E9/GS8 and below.......      13.25
                                      (Minimum charge).......       8.30
------------------------------------------------------------------------

    (ii) Professional and executive (To be established at actual hourly 
rate prior to search. A minimum charge will be established at 1/2 
hourly rates). Computer search is based on the total cost of the 
central processing unit, input-output devices, and memory capacity of 
the actual computer configuration. The wage (based upon the scale in 
paragraph (a) (3) (I) (A) of this section) for the computer operator 
and/or programmer determining how to conduct, and subsequently 
executing the search will be recorded as part of the computer search. 
See Sec. 286.29 (b) (2) for further details regarding computer search.
    (2) Duplication.

------------------------------------------------------------------------
                             Type                                 Cost  
------------------------------------------------------------------------
Aerial photographs, specifications, permits, charts,                    
 blueprints, and other technical documents Engineering data             
 (mircofilm) Aperture cards...................................     $2.50
  Silver duplicate negative, per card.........................       .75

[[Page 7420]]

                                                                        
  When key punched and verified, per card.....................       .85
  Diazo duplicate negative, per card..........................       .65
  When key punched and verified, per card.....................       .75
35mm roll film, per frame.....................................       .50
16mm roll film, per frame.....................................       .45
Paper prints (engineering drawings), each.....................      1.50
Paper reprints of microfilm indices, each.....................       .10
------------------------------------------------------------------------

    (3) Review time.

------------------------------------------------------------------------
                                                                 Hourly 
                Type                           Grade              rate  
                                                               (dollars)
------------------------------------------------------------------------
Clerical............................  E9/GS8 and below.......      13.25
                                      (Minimum Charge).......       8.30
------------------------------------------------------------------------

    (4) Professional and executive (To be established at actual hourly 
rate prior to review. A minimum charge will be established at \1/2\ 
hourly rates).
    (5) Other technical data records. Charges for any additional 
services not specifically provided paragraph (c) of this section, 
consistent with DoD Instruction 7230.7, shall be made by Components at 
the following rates:

Minimum charge for office copy (up to six images).................$3.50
Each additional image..............................................0.10
Each typewritten page..............................................3.50
Certification and validation with seal, each.......................5.20
Hand-drawn plots and sketches, each hour or fraction thereof......12.00

Subpart G--Reports


Sec. 286.33  Reports control.

    (a) Each DoD component shall compile Freedom of Information Act 
statistics on a fiscal year basis beginning October 1, 1997, and report 
same to DFOISR, OASD(PA) no later than November 30 following the fiscal 
year's close. In turn, DFOISR, OASD(PA) will produce a consolidated DoD 
report for submission to the Attorney General.
    (b) Existing DoD standards and registered data elements are to be 
utilized to the greatest extent possible in accordance with the 
provisions of DoD 8320.1-M,13 ``Data Administration Procedures''.
---------------------------------------------------------------------------

    \13\ See footnote 1 to Sec. 286.1 (a).
---------------------------------------------------------------------------

    (c) The reporting requirement outlined in this subpart will be 
assigned Report Control Symbol DD-PA(A)1365.


Sec. 286.34  Annual report.

    Annual report content. DD Form 2564 will be used to submit 
component input. Instructions for completion follows:
    (a) Item 1. Initial request determinations.
    (1) Total requests processed. Enter the total number of initial 
FOIA requests responded to during the fiscal year.
    (2) Granted in full. Enter the total number of initial FOIA 
requests responded to that were granted in full during the fiscal year. 
(This may include requests granted by your office, yet still requiring 
action by another office.)
    (3) Denied in part. Enter the total number of initial FOIA requests 
responded to and denied in part based on one or more of the nine FOIA 
exemptions. (Do not report denial of fee waivers.)
    (4) Denied in full. Enter the total number of initial FOIA requests 
responded to and denied in full based on one or more of the nine FOIA 
exemptions. (Do not report denial of fee waivers.)
    (5) ``Other reason'' responses. Enter the total number of initial 
FOIA requests in which you were unable to provide all or part of the 
requested information based on an ``other reason'' response. Paragraph 
(b)(2) of this section explains the six possible ``other reasons''.
    (6) Total actions. Enter the total number of FOIA actions taken 
during the fiscal year. This number will be the sum of paragraphs 
(a)(2) through (a)(5) of this section.
    (b) Item 2. (1) Exemptions invoked on initial request 
determinations. Enter the number of times an exemption was claimed for 
each request that was denied in full or in part. Since more than one 
exemption may be claimed when responding to a single request, this 
number will be equal to or greater than the sum of paragraph (a)(3) and 
(a)(4) of this section.
    (2) ``Other reasons'' cited on initial determinations. Identify the 
``Other Reason'' response cited when responding to a FOIA request and 
enter the number of times each was claimed.
    (i) Transferred request. Enter the number of times a request was 
transferred to another DoD component or Federal Agency for action.
    (ii) Lack of records. Enter the number of times a search of files 
failed to identify records responsive to subject request and there was 
no statutory obligation to create a record.
    (iii) Failure of requester to reasonably describe record. Enter the 
number of times a FOIA request could not be acted upon since the 
requester failed to reasonably describe the record(s) being sought.
    (iv) Other failures by requester to comply with published rules 
and/or directives. Enter the number of times a requester failed to 
follow published rules concerning time, place, fees, and procedures.
    (v) Request withdrawn by requester. Enter the number of times a 
requester withdrew a request and/or appeal.
    (vi) Not an agency record. Enter the number of times a requester 
was provided a response indicating the requested information was not an 
agency record.
    (vii) Total. Enter the sum of paragraphs (b) (2) (i) through (b) 
(2) (vi) of this section. This number will be equal to or greater than 
the number in paragraph (a) (5) of this section since more than one 
reason may be claimed for each ``other reason'' response.
    (c) Item 3. Appeal determinations.
    (1) Total appeal responses. Enter the total number of FOIA appeals 
responded to during the fiscal year.
    (2) Granted in full. Enter the total number of FOIA appeals 
responded to and granted in full during the year.
    (3) Denied in part. Enter the total number of FOIA appeals 
responded to and denied in part based on one or more of the nine FOIA 
exemptions.
    (4) Denied in full. Enter the total number of FOIA appeals 
responded to and denied in full based on one or more of the nine FOIA 
exemptions.
    (5) ``Other reason'' responses. Enter the total number of FOIA 
appeals in which you were unable to provide the requested information 
based on an ``other reason'' response. Item (b) (2) of this section 
explains the six possible ``other reasons''.
    (6) Total actions. Enter the total number of FOIA appeal actions 
taken during the fiscal year. This number will be the sum of paragraphs 
(b) (2) through (b) (5) (vi) of this section.
    (d) Item 4. (1) Exemptions invoked on appeal determinations. Enter 
the number of times an exemption was claimed for each appeal that was 
denied in full or in part. Since more than one exemption may be claimed 
when responding to a single request, this number will be equal to or 
greater than the sum of paragraphs (c) (3) and (c) (4) of this section.
    (2) ``Other reasons'' cited on appeal determinations. Identify the 
``other reason'' response cited when responding to a FOIA appeal and 
enter the number of times each was claimed. See paragraph (b) (3) of 
this section for description of ``other reasons''.
    (e) Item 5. Statutes invoked on initial and appeal determinations. 
Identify the number of times you have used a specific statute to 
support each (b)(3) exemption identified in paragraphs (b) (1) and (d) 
(1) of this section. List the

[[Page 7421]]

statutes used to support each ``(b) (3)'' exemption; the number of 
instances in which the statute was cited; note whether or not the 
statute has been upheld in a court hearing; and provide a concise 
description of the material withheld in each individual case by the 
statute's use. Ensure you cite specific sections of acts invoked. To 
qualify as a ``(b) (3)'' exemption, the statute must contain clear 
wording that the information covered will not be disclosed. The total 
number of instances reported above will be equal to or greater than the 
total number of ``(b) (3)'' exemptions listed in paragraphs (b) (1) and 
(d) (1) of this section.
    (f) Item 6. Number and median age of cases pending as of September 
30 of the preceding year.
    (1) Total number of initial requests pending as of September 30, 
preceding year. Enter the total number of initial FOIA requests pending 
(open) as of the day before the current reporting period began 
(September 30 previous to the reported period, fiscal year).
    (2) Median age of requests pending as of September 30 of the 
preceding year. Enter the median age of pending FOIA requests as of the 
day before the current reporting period began (September 30 previous to 
the reported period, fiscal year).
    (3) Examples. (i) Given five cases aged 10, 25, 35, 65, and 100 
days from date of receipt as of the previous September 30th. The total 
requests pending is five (5). The median age (days) of open requests is 
the middle, not average value, in this set of numbers (10, 25, 35, 65, 
and 100), 35 (the middle value in the set).
    (ii) Given six pending cases, aged 10, 20, 30, 50, 120, and 200 
days from date of receipt, as of the previous September 30th. The total 
requests pending is six (6). The median age (days) of open requests 40 
days (the mean (average) of the two middle numbers in the set, in this 
case the average of middle values 30 and 50).
    (g) Item 7. Number of initial requests received during the fiscal 
year. Enter the total number of initial FOIA requests received during 
the reporting period (fiscal year being reported).
    (h) Item 8. Types of requests processed and median age. Information 
is reported for three types of initial requests completed during the 
reporting period: simple; complex; and expedited processing. The 
following items of information are reported for these requests:
    (1) Total number of initial requests. Enter the total number of 
initial requests processed during the reporting period (fiscal year) by 
type (simple, complex and expedited processing) in the appropriate row 
on the form.
    (2) Median age (days). Enter the median number of days required to 
process each type of case (simple, complex and expedited processing) 
during the period in the appropriate row on the form.
    (3) Example. Given seven initial requests, multitrack--Simple 
completed during the fiscal year, aged 10, 25, 35, 65, 79, 90 and 400 
days when completed. The total number of requests completed was seven 
(7). The median age (days) of completed requests is 65, the middle 
value in the set.
    (i) Item 9. Fees collected from the public. Enter the total amount 
of fees collected from the public during the fiscal year. This includes 
search, review and reproduction costs only.
    (j) Item 10--(1) FOI program costs.
    (i) Personnel costs. Paragraphs (j) (1) (i) (A) and (j) (1) (i) (B) 
of this section are used to capture man-years and salary costs of 
personnel primarily involved in planning, program management and/or 
administrative handling of FOIA requests. Determine salaries for 
military personnel by using the Composite Standard Pay Rates (DoD 
7220.9-M).\14\ For civilian personnel use Office of Personnel 
Management salary table and add 16% for benefits. A sample computation 
is shown:
---------------------------------------------------------------------------

    \14\ See footnote 1 to Sec. 286,1 (a).

----------------------------------------------------------------------------------------------------------------
                                                     Number of                                                  
                      Grade                          personnel        Salary         % of time         Costs    
----------------------------------------------------------------------------------------------------------------
O-5.............................................               1         $90,707              10          $9,071
O-1.............................................               1          37,545              10           3,755
E-7.............................................               1          44,375              50          22,188
      Totals....................................               3  ..............              70          35,014
----------------------------------------------------------------------------------------------------------------

    (A) Estimated man-years. Add the total percentages of time for 
personnel involved in administering the FOI program and divide by 100. 
In the example shown above, (10+10+50)/100=.7 man-years.
    (B) Man-year costs. Total costs associated with salaries of 
individuals involved in administering FOIA program. In the example 
shown, the total cost is $35,014.
    (C) Estimated man-hour costs by category. This section accounts for 
all other personnel not reported in paragraphs (j)(1)(i)(A) and 
(j)(1)(i) (B) of this section who are involved in processing FOIA 
requests. Enter the total hourly cost for each of the five areas 
described.
    (1) Search time. This includes only those direct costs associated 
with time spent looking for material that is responsive to a request, 
including line-by-line identification of material within a document to 
determine if it is responsive to the request. Searches may be done 
manually or by computer using existing programming.
    (2) Review and excising. This includes all direct costs incurred 
during the process of examining documents located in response to a 
request to determine whether any portion of any document located is 
permitted to be withheld. It also includes excising documents to 
prepare them for release. It does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    (3) Coordination and approval. This includes all costs involved in 
coordinating the release/denial of documents requested under the FOIA.
    (4) Correspondence/form preparation. This includes all costs 
involved in typing responses, filling out forms, etc., to respond to a 
FOIA request.
    (5) Other activities. This includes all other processing costs not 
covered above, such as processing time by the mail room.
    (6) Total. Enter the sum of paragraphs (j)(1)(i)(C)(1) through 
(j)(1)(i)(C)(5) of this section.
    (D) Overhead. This is the cost of supervision, space, and 
administrative support. It is computed as 25% of the sum of paragraphs 
(j)(1)(i)(B) and (j)(1)(i)(C) of this section.
    (E) Total. Enter the sum of paragraphs (j)(1)(i)(B), (j)(1)(i)(C), 
and (j)(1)(i)(D) of this section.
    (ii) Other case-related costs. Using the fee schedule, enter the 
total amounts

[[Page 7422]]

incurred in each of the areas in the following paragraphs:
    (A) Computer search time. This includes cost of central processing 
unit, input/output devices, memory, etc. of the computer system used, 
as well as the wage of the machine's operator/programmer.
    (B) Office copy reproduction. This is the cost of reproducing 
normal documents with office copying equipment.
    (C) Microfiche reproduction. This is the cost of reproducing 
records and providing microfiche.
    (D) Printed records. This is the cost of providing reproduced 
copies of forms, publications, or reports.
    (E) Computer copy. This is the actual cost of duplicating magnetic 
tapes, floppy diskettes, computer printouts, etc.
    (F) Audiovisual materials. This is the actual cost of duplicating 
audio or video tapes or like materials, to include the wage of the 
person doing the work.
    (G) Other. Report all other costs which are easily identifiable, 
such as per diem, operation of courier vehicles, training courses, 
printing (indexes and forms), long distance telephone calls, special 
mail services, use of indicia, etc.
    (H) Subtotal. Enter the sum of paragraphs (j)(1)(ii)(A) through 
(j)(1)(ii)(G) of this section
    (I) Overhead. This is the cost of supervision, space, and 
administrative support. It is computed as 25% of paragraph (j) (1) (ii) 
(H) of this section.
    (J) Total. Enter the sum of paragraphs (j) (1) (ii) (H) and (j) (1) 
(i) (I) of this section.
    (iii) Cost of routine requests processed. This item is optional. 
Some reporting activities may find it economical to develop an average 
cost factor for processing repetitive routine requests rather than 
tracking costs on each request as it is processed. Care should be 
exercised so that costs are comprehensive to include a 25% overhead, 
yet are not duplicated elsewhere in the report. Multiply the number of 
routine requests processed times the cost factor to compute this 
amount.
    (iv) Total costs. Enter the sum of paragraphs (j) (1) (i) through 
(j) (1) (iii) of this section.
    (2) Number of full time staff. Enter the number of people in your 
agency that process FOIA actions full time.
    (k) Item 11. Date report prepared. Enter the date the report was 
completed and signed by an approving official.
    (l) Item 12. Name, address & phone number of agency. Enter data for 
the agency or activity that prepared the report.
    (m) Item 13. Signature, typed name, and title of approving 
official. Enter the name and title of the individual approving the 
report. Approval of the report is indicated by the official's 
signature.

Subpart H--Education and Training


Sec. 286.37  Responsibility and purpose.

    (a) Responsibility. The Head of each DoD Component is responsible 
for the establishment of educational and training programs on the 
provisions and requirements of this part. The educational programs 
should be targeted toward all members of the DoD Component, developing 
a general understanding and appreciation of the DoD FOIA Program; 
whereas, the training programs should be focused toward those personnel 
who are involved in the day-to-day processing of FOI requests, and 
should provide a thorough understanding of the procedures outlined in 
this part.
    (b) Purpose. The purpose of the educational and training programs 
is to promote a positive attitude among DoD personnel and raise the 
level of understanding and appreciation of the DoD FOIA Program, 
thereby improving the interaction with members of the public and 
improving the public trust in the Department of Defense.
    (c) Scope and principles. Each Component shall design its FOIA 
educational and training programs to fit the particular requirements of 
personnel dependent upon their degree of involvement in the 
implementation of this part. The program should be designed to 
accomplish the following objectives:
    (1) Familiarize personnel with the requirements of the FOIA and its 
implementation by this part.
    (2) Instruct personnel, who act in FOIA matters, concerning the 
provisions of this part, advising them of the legal hazards involved 
and the strict prohibition against arbitrary and capricious withholding 
of information.
    (3) Provide for the procedural and legal guidance and instruction, 
as may be required, in the discharge of the responsibilities of initial 
denial and appellate authorities.
    (4) Advise personnel of the penalties for noncompliance with the 
FOIA.
    (d) Implementation. To ensure uniformity of interpretation, all 
major educational and training programs concerning the implementation 
of this part should be coordinated with the Director, Freedom of 
Information and Security Review, OASD(PA).
    (e) Uniformity of legal interpretation. In accordance with DoD 
Directive 5400.7, the General Counsel of the Department of Defense 
shall ensure uniformity in the legal position and interpretation of the 
DoD FOIA Program.

Appendix A to Part 286--Unified Combatant commands--Processing 
Procedures for FOIA Appeals

1. General

    a. In accordance with DoD Directive 5400.7 \1\ and this part, 
the Unified Combatant Commands are placed under the jurisdiction of 
the Office of the Secretary of Defense, instead of the administering 
Military Department, only for the purpose of administering the 
Freedom of Information Act (FOIA) Program. This policy represents an 
exception to the policies in DoD Directive 5100.3 \2\.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ See footnote 1 of section 1.a. of this appendix.
---------------------------------------------------------------------------

    b. The policy change above authorizes and requires the Unified 
Combatant Commands to process FOIA requests in accordance with DoD 
Directive 5400.7 and DoD Instruction 5400.10 \3\ and to forward 
directly to the OASD(PA) all correspondence associated with the 
appeal of an initial denial for information under the provisions of 
the FOIA.
---------------------------------------------------------------------------

    \3\ See footnote 1 of section 1.a. of this appendix.
---------------------------------------------------------------------------

2. Responsibilities of Commands

    Unified Combatant Commanders in Chief shall:
    a. Designate the officials authorized to deny initial FOI 
requests for records.
    b. Designate an office as the point-of-contact for FOI matters.
    c. Refer FOIA cases to the OASD(PA) for review and evaluation 
when the issues raised are of unusual significance, precedent 
setting, or otherwise require special attention or guidance.
    d. Consult with other OSD and DoD Components that may have a 
significant interest in the requested record prior to a final 
determination. Coordination with agencies outside of the Department 
of Defense, if required, is authorized.
    e. Coordinate proposed denials of records with the appropriate 
Unified Combatant Command's Office of the Staff Judge Advocate.
    f. Answer any request for a record within 10 working days of 
receipt. The requester shall be notified that his request has been 
granted or denied. In unusual circumstances, such notification may 
state that additional time, not to exceed 10 working days, is 
required to make a determination.
    g. Provide to the OASD(PA) when the request for a record is 
denied in whole or in part, a copy of the response to the requester 
or his representative, and any internal memoranda that provide 
background information or rationale for the denial.
    h. State in the response that the decision to deny the release 
of the requested information, in whole or in part, may be appealed 
to the Assistant Secretary of Defense (Public Affairs), the 
Pentagon, Washington, DC 20301-1400.

[[Page 7423]]

    i. Upon request, submit to OASD(PA) a copy of the records that 
were denied. ASD(PA) shall make such requests when adjudicating 
appeals.

3. Fees for FOI requests

    The fees charged for requested records shall be in accordance 
with subpart F of this part.

4. Communications

    Excellent communication capabilities currently exist between the 
OASD(PA) and the Public Affairs Offices of the Unified Combatant 
Commands. This communication capability shall be used for FOI cases 
that are time sensitive.

5. Reporting requirements

    a. The Unified Combatant Commands shall submit to the OASD(PA) 
an annual report. The instructions for the report are outlined in 
subpart G of this part.
    b. The annual report shall be submitted in duplicate to the 
OASD(PA) not later than each November 30. This reporting requirement 
is assigned Report Control Symbol DD-PA(A) 1365.

Appendix B to Part 286--Addressing FOIA Requests

1. General

    a. The Department of Defense includes the Office of the 
Secretary of Defense and the Joint Staff, the Military Departments, 
the Unified Combatant Commands, the Defense Agencies, and the DoD 
Field Activities.
    b. The Department of Defense does not have a central repository 
for DoD records. FOIA requests, therefore, should be addressed to 
the DoD Component that has custody of the record desired. In 
answering inquiries regarding FOIA requests, DoD personnel shall 
assist requesters in determining the correct DoD Component to 
address their requests. If there is uncertainty as to the ownership 
of the record desired, the requester shall be referred to the DoD 
Component that is most likely to have the record.

2. Listing of DoD Component Addresses for FOI Requests

    a. Office of the Secretary of Defense and the Joint Staff. Send 
all requests for records from the below listed offices to: Office of 
the Assistant Secretary of Defense (Public Affairs), ATTN: 
Directorate for Freedom of Information and Security Review, Room 
2C757, 1400 Defense Pentagon, Washington, DC 20301-1400.
    (1) Executive Secretariat
    (2) Under Secretary of Defense (Policy)
    (i) Assistant Secretary of Defense (International Security 
Affairs)
    (ii) Assistant Secretary of Defense (International Security 
Policy)
    (iii) Assistant Secretary of Defense (Special Operations & Low 
Intensity Conflict)
    (iv) Assistant Secretary of Defense (Strategy & Requirements)
    (v) Deputy to the Under Secretary of Defense (Policy Support)
    (vi) Director of Net Assessment Defense Security Assistance 
Agency
    (viii) Defense Technology Security Administration
    (3) Under Secretary of Defense (Acquisition & Technology)
    (i) Deputy Under Secretary of Defense (Logistics)
    (ii) Deputy Under Secretary of Defense (Advanced Technology)
    (iii) Deputy Under Secretary of Defense (Acquisition Reform)
    (iv) Deputy Under Secretary of Defense (Environmental Security)
    (v) Deputy Under Secretary of Defense (Space)
    (vi) Deputy Under Secretary of Defense (International & 
Commercial Programs)
    (vii) Deputy Under Secretary of Defense (Industrial Affairs & 
Installations)
    (viii) Assistant to the Secretary of Defense (Nuclear, Chemical 
& Biological Defense Programs)
    (ix) Director, Defense Research & Engineering
    (x) Director, Small & Disadvantaged Business Utilization
    (xi) Director, Defense Procurement
    (xii) Director, Test Systems Engineering & Evaluation
    (xiii) Director, Strategic & Tactical Systems
    (xiv) Defense Evaluation Support Activity
    (xv) DoD Radiation Experiments Command Center
    (xvi) On-Site Inspection Agency
    (4) Under Secretary of Defense (Comptroller)
    (5) Director Program Analysis and Evaluation
    (6) Under Secretary of Defense (Personnel & Readiness)
    (i) Assistant Secretary of Defense (Health Affairs)
    (ii) Assistant Secretary of Defense (Legislative Affairs)
    (iii) Assistant Secretary of Defense (Public Affairs)
    (iv) Assistant Secretary of Defense (Command, Control, 
Communications & Intelligence)
    (v) Assistant Secretary of Defense (Reserve Affairs)
    (7) General Counsel, Department of Defense
    (8) Director, Operational Test and Evaluation
    (9) Assistant to the Secretary of Defense (Intelligence 
Oversight)
    (10) Defense Advanced Research Projects Agency
    (11) Ballistic Missile Defense Organization
    (12) Defense Systems Management College
    (13) National Defense University
    (14) Armed Forces Staff College
    (15) Department of Defense Dependents Schools
    (16) Uniformed Services University of the Health Sciences
    (17) Armed Forces Radiobiology Research Institute
    (18) Washington Headquarters Services
    b. Department of the Army. Army records may be requested from 
those Army officials who are listed in 32 CFR part 518, Appendix B. 
Send requests to the Freedom of Information and Privacy Acts Office, 
SAIS-IDP-F/P, Suite 201, 1725 Jefferson Davis Hwy, Arlington, VA 
22202-4102, for records of the Headquarters, U.S. Army, or if there 
is uncertainty as to which Army activity may have the records.
    c. Department of the Navy. Navy and Marine Corps records may be 
requested from any Navy or Marine Corps activity by addressing a 
letter to the Commanding Officer and clearly indicating that it is 
an FOI request. Send requests to Chief of Naval Operations, N-09B30, 
Room 5E521, 2000 Navy, Pentagon, Washington, DC 20350-2000, for 
records of the Headquarters, Department of the Navy, and to 
Commandant of the Marine Corps, (ARAD), Headquarters U.S. Marine 
Corps, 2 Navy Annex, Washington, DC 20380-1775, for records of the 
U.S. Marine Corps, or if there is uncertainty as to which Navy or 
Marine activities may have the records.
    d. Department of the Air Force. Air Force records may be 
requested from the Commander of any Air Force installation, major 
command, or separate operating agency (ATTN: FOIA Office). For Air 
Force records of Headquarters, United States Air Force, or if there 
is uncertainty as to which Air Force activity may have the records, 
send requests to OL-P, 11CS/SCSR(FOIA), Room 4A1088C, 1000 Air 
Force, Pentagon, Washington, DC 20330-1000.
    e. Defense Contract Audit Agency (DCAA). DCAA records may be 
requested from any of its regional offices or from its Headquarters. 
Requesters should send FOI requests to the Defense Contract Audit 
Agency, ATTN: CMR, 8725 John J. Kingman Road, Suite 2135, Fort 
Belvoir, VA 22060-6219, for records of its headquarters or if there 
is uncertainty as to which DCAA region may have the records sought.
    f. Defense Information Systems Agency (DISA). DISA records may 
be requested from any DISA field activity or from its Headquarters. 
Requesters should send FOI requests to Defense Information Systems 
Agency, Regulatory/General Counsel, 701 South Courthouse Road, 
Arlington, VA 22204-2199.
    g. Defense Intelligence Agency (DIA). FOI requests for DIA 
records may be addressed to Defense Intelligence Agency, ATTN: SVI-
1, Washington, DC 20340-5100.
    h. Defense Investigative Service (DIS). All FOI requests for DIS 
records should be sent to the Defense Investigative Service, Office 
of Information and Public Affairs, 1340 Braddock Place, Alexandria, 
VA 22314-1651.
    i. Defense Logistics Agency (DLA). DLA records may be requested 
from its headquarters or from any of its field activities. 
Requesters should send FOI requests to Defense Logistics Agency, 
ATTN: DLA/CAAV, 8725 John J. Kingman Road, Suite 2533, Alexandria, 
VA 22060-6221.
    j. National Imagery and Mapping Agency (NIMA). FOI requests for 
NIMA records may be sent to the National Imagery and Mapping Agency, 
General Counsel for Office of Information & Privacy, Mail Stop A-7, 
8613 Lee Highway, Fairfax, VA 22031-2137.
    k. Defense Special Weapons Agency (DSWA). FOI requests for DSWA 
records may be sent to the Defense Special Weapons Agency, Public 
Affairs Office, Room 113, 6801 Telegraph Road, Alexandria, VA 22310-
3398.
    l. National Security Agency (NSA). FOI requests for NSA records 
may be sent to the National Security Agency, FOIA/PA Services,

[[Page 7424]]

N5P5, 9800 Savage Road, Suite 6248, Fort George G. Meade, MD 20755-
6248.
    m. Office of the Inspector General, Department of Defense (IG, 
DoD). FOI requests for IG, DoD records may be sent to the Department 
of Defense Office of the Inspector General, Chief FOI/PA Office, 400 
Army Navy Drive, Room 405, Arlington, VA 22202-2884.
    n. Defense Finance and Accounting Service (DFAS). DFAS records 
may be requested from any of its regional offices or from its 
Headquarters. Requesters should send FOI requests to Defense Finance 
and Accounting Service, Directorate for External Affairs & 
Management Support, Crystal Mall 3, Room 416, Arlington, VA 22240-
5291, for records of its Headquarters, or if there is uncertainty as 
to which DFAS region may have the records sought.
    o. National Reconnaissance Office (NRO). FOI requests for NRO 
records may be sent to the National Reconnaissance Office, FOIA 
Officer, 1040 Defense Pentagon, Room 4C1000, Washington, DC 20301-
1040.
    3. Other Addresses
    Although the below organizations are OSD and Joint Staff 
Components for the purposes of the F0IA, requests may be sent 
directly to the addresses indicated:
    a. Office of Civilian Health and Medical Program of the 
Uniformed Services (OCHAMPUS). Director, OCHAMPUS, ATTN: Freedom of 
Information Officer, Aurora, CO 80045-6900.
    b. Chairman, Armed Services Board of Contract Appeals (ASBCA). 
Chairman, Armed Services Board of Contract Appeals, Skyline Six Rm 
703, 5109 Leesburg Pike, Falls Church, VA 22041-3208.
    c. U.S. Central Command. U.S. Central Command/CCJ1/AG, MacDill 
Air Force Base, FL 33608-7001.
    d. U.S. European Command. Headquarters, U.S. European Command/
ECJ1-AA(FOIA) Unit 30400 Box 1000, APO AE 09128-4209.
    e. U.S. Southern Command. U.S. Commander-in-Chief, Southern 
Command, Unit 1110, SCJ1-A, APO AA 34003-0007.
    f. U.S. Pacific Command. U.S Commander-in-Chief, Pacific 
Command, USPACOM FOIA Coordinator (J042), Administrative Support 
Division, Joint Secretariat, Box 28, Camp H. M. Smith, HI 96861-
5025.
    g. U.S. Special Operations Command. U.S. Special Operations 
Command, Chief, Command Information Management Branch, ATTN: SOJ6-
SI, 7701 Tampa Point Blvd., MacDill Air Force Base FL 33621-5323.
    h. U.S. Atlantic Command. Commander-in-Chief, Atlantic Command, 
Code J02P, Norfolk, VA 23511-5100.
    i. U.S. Space Command. Commander-in-Chief, U.S. Space Command, 
Command Records Manager/FOIA/PA Officer, 150 Vandenberg Street, 
Suite 1105, Peterson Air Force Base, CO 80914-5400.
    j. U.S. Transportation Command. U.S. Commander-in-Chief, 
Transportation Command, ATTN: TCIM-F, 508 Scott Drive, Scott Air 
Force Base, IL 62225-5357.
    k. U.S. Strategic Command. U.S. Commander-in-Chief, Strategic 
Command, Attn: J0734, 901 SAC Blvd., Suite 1E5, Offutt AFB, NE 
68113-6073.
    4. National Guard Bureau
    FOI requests for National Guard Bureau records may be sent to 
the Chief, National Guard Bureau, ATTN: NGB-ADM, Room 2C363, 2500 
Army Pentagon, Washington, DC 20310-2500.

5. Miscellaneous

    If there is uncertainty as to which DoD Component may have the 
DoD record sought, the requester may address a Freedom of 
Information request to the Office of the Assistant Secretary of 
Defense (Public Affairs), Directorate for Freedom of Information and 
Security Review, Room 2C757, 1400 Defense Pentagon, Washington, DC 
20301-1400.

Appendix C to Part 286--Other Reason Categories

1. Transferred requests

    This category applies when responsibility for making a 
determination or a decision on categories 2, 3, or 4 of this 
appendix is shifted from one Component to another, or to another 
Federal Agency.

2. Lack of records

    This category covers those situations wherein the requester is 
advised the DoD Component has no record or has no statutory 
obligation to create a record.

3. Failure of requester to reasonably describe record.

    This category is specifically based on section 552(a)(3)(a) of 
the FOIA.

4. Other failures by requesters to comply with published rules or 
directives

    This category is based on section 552(a)(3)(b) of the FOIA and 
includes instances of failure to follow published rules concerning 
time, place, fees, and procedures.
    5. Request withdrawn by requester. This category covers those 
situations wherein the requester asks an agency to disregard the 
request (or appeal) or pursues the request outside FOIA channels.
    6. Not an agency record. This category covers situations where 
the information requested is not an agency record within the meaning 
of the FOIA and this part.

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[[Page 7425]]

Appendix D to Part 286--Record of Freedom of Information (FOI) 
Processing Cost (DD Form 2086)
[GRAPHIC] [TIFF OMITTED] TP19FE97.091


[[Page 7426]]

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[[Page 7427]]

Appendix E to Part 286--Record of Freedom of Information (FOI) 
Processing Cost for Technical Data (DD Form 2086-1)
[GRAPHIC] [TIFF OMITTED] TP19FE97.093


[[Page 7428]]

[GRAPHIC] [TIFF OMITTED] TP19FE97.094



[[Page 7429]]

Appendix F to Part 286--Annual Report Freedom of Information Act 
(DD Form 2564)
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[[Page 7430]]

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[[Page 7431]]

Appendix G--DoD Freedom of Information Act Program Components

    a. Office of the Secretary of Defense/Joint Staff/Unified 
Combatant Commands, Defense Agencies, and the DoD Field Activities
    b. Department of the Army
    c. Department of the Navy
    d. Department of the Air Force
    e. Defense Information Systems Agency
    f. Defense Contract Audit Agency
    g. Defense Intelligence Agency
    h. Defense Investigative Service
    i. Defense Logistics Agency
    j. National Imagery and Mapping Agency
    k. Defense Special Weapons Agency
    l. National Security Agency
    m. Office of the Inspector General, Department of Defense
    n. Defense Finance and Accounting Service
    o. National Reconnaissance Office

    Dated: February 6, 1997.
L.M. Bynum,
 Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 97-3412 Filed 2-18-97; 8:45 am]
BILLING CODE 5000-04-P