[Federal Register Volume 63, Number 227 (Wednesday, November 25, 1998)]
[Rules and Regulations]
[Pages 65420-65454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31103]



[[Page 65419]]

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Part IV





Department of Defense





_______________________________________________________________________



Office of the Secretary



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32 CFR Part 286



DoD Freedom of Information Act Program Regulation; Final Rule

  Federal Register / Vol. 63, No. 227 / Wednesday, November 25, 1998 / 
Rules and Regulations  

[[Page 65420]]



DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 286

[DoD 5400.7-R]
RIN 0790-AG58


DoD Freedom of Information Act Program Regulation

AGENCY: Office of the Secretary, Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: This final rule conforms to the requirements of the Electronic 
Freedom of Information Act Amendments of 1996. This revision reflects 
substantial and administrative changes since May 1997, as a result of 
DoD reorganization. This revision also provides guidance to DoD on 
implementation of the amends law.

EFFECTIVE DATE: September 4, 1998.

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; completion; 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 no economically 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 rule 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 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  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.
286.30  Collection of fees and fee rates for technical data.

Subpart G--Reports

286.33  Reports control.

Subpart H--Education and Training

286.36  Responsibility and purpose.

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

Appendix B to Part 286--Addressing FOIA Requests

Appendix C to Part 286--DD Form 2086, ``Record of Freedom of 
Information (FOI) Processing Cost''

Appendix D to Part 286--DD Form 2086-1, ``Record of Freedom of 
Information (FOI) Processing Cost for Technical Data''

Appendix E to Part 286--DD Form 2564, ``Annual Report Freedom of 
Information Act''

Appendix F 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 DoD 
implementation of the Freedom of Information Act, as amended (5 U.S.C. 
552), and DoD Directive 5400.7 \1\, and promotes uniformity in the DoD 
Freedom of Information Act (FOIA) Program.
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    \1\ Copy may be viewed via internet at http://web7.whs.osd.mil/
corres.htm.
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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 Combatant Command, 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 F.


Sec. 286.2  DoD public information.

    (a) Public information. (1) 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 in whole or in part unless the record is 
exempt from mandatory partial or total disclosure under the FOIA. As a 
matter of policy,

[[Page 65421]]

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 involve the FOIA.
    (2) Within the OSD, the Assistant Secretary of Defense for Command, 
Control, Communications, and Intelligence, as Chief Information 
Officer, in conjunction with the Assistant Secretary of Defense for 
Public Affairs, is responsible for ensuring preparation of reference 
material or a guide for requesting records or information from the 
Department of Defense, subject to the nine exemptions of the FOIA. This 
publication shall also include an index of all major information 
systems, and a description of major information and record locator 
systems, as defined by the Office of the Assistant Secretary of Defense 
for Command, Control, Communications, and Intelligence. DoD FOIA 
Components shall coordinate with the appropriate office(s) to insure 
that this is also accomplished within their department or organization.
    (3) DoD Components shall also prepare, in addition to normal FOIA 
regulations, a handbook for the use of the public in 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 
Service (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 contain the following additional 
information, complete with electronic links to the below elements; the 
location of reading room(s) within the Component and the types and 
categories of information available, the location of Component's World 
Wide Web page, a reference to the component's FOIA regulation and how 
to obtain a copy, a reference to the Component's FOIA annual report and 
how to obtain a copy and the location of the Component's GILS page. 
Also, the DoD Components' Freedom of Information Act Annual Reports 
should refer to the handbook and how to obtain it.
    (b) 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; 
to deny a fee category claim by a requester, to deny a request for 
waiver or reduction of fees; to deny a request to review an initial fee 
estimate; to deny a request for expedited processing due to 
demonstrated compelling need under Sec. 286.4(d)(3) of this part; to 
confirm that no records were located during the initial search. 
Requesters also may appeal the failure to receive a response 
determination within the statutory time limits, and any determination 
that the requester believes is adverse in nature.
    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 Department 
of Defense possession and control at the time the FOIA request is made. 
Care should be taken not to exclude records from being considered 
agency records, unless they fall within one of the categories in 
paragraph (2) of this definition.
    (2) The following age 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. Personal papers fall into 
three categories: those created before entering Government service; 
private materials brought into, created, or received in the office that 
were not created or received in the course of transacting Government 
business; and work-related personal papers that are not used in the 
transaction of Government business (see ``Personal Papers of Executive 
Branch Officials: A Management Guide'' \2\).
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    \2\ Available from the Records Administration Information 
Center, Agency Service Division (NIA), Washington, DC 20408.
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    (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 a FOIA request. See 
Sec. 286.4(g)(2) on creating a record in the electronic environment.
    (4) Hard copy or electronic records, that are subject to FOIA 
requests under 5 U.S.C. 552(a)(3), and that 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, DoD Components shall provide 
that requester with guidance inclusive of any written notice to the 
public, on how to obtain the information. However, if the requester 
insists that the request be processed under the FOIA, then the request 
shall be processed under the FOIA. If there is any doubt as to whether 
the request must be processed, contact the Directorate for Freedom of 
Information and Security Review.

[[Page 65422]]

    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 (IDA)'' and ``Administrative appeal''.
    DoD Component. An element of the Department of Defense, as defined 
in Sec. 286.1(b), authorized to receive and act independently on FOIA 
requests. (See appendix F of this part.) A DoD Component has its own 
initial denial authority (IDA), appellate authority, and legal counsel.
    Electronic record. Records (including e-mail) that are created, 
stored, and retrievable by electronic means.
    Federal agency. As defined by 5 U.S.C. 552(f)(1), a Federal agency 
is any executive department, military department, Government 
corporation, Government controlled corporation, or other establishment 
in the executive branch of the Government (including the Executive 
Office of the President), or any independent regulatory agency.
    FOIA request. A written request for DoD records that reasonably 
describes the record(s) sought, made by any person, including a member 
of the public (U.S. or foreign citizen/entity), an organization, or a 
business, but not including a Federal Agency or a fugitive from the 
law, that either explicitly or implicitly invokes the FOIA, DoD 
Directive 5400.7, this part, or DoD Component supplementing regulations 
or instructions. Requesters should also indicate a willingess to pay 
fees associated with the processing of their request or, in the 
alternative, why a waiver of fees may be appropriate. Written requests 
may be received by postal service or other commercial delivery means, 
by fascimile, or electronically. Requests received by fascimile or 
electronically must have a postal mailing address included since it may 
be practical to provide a substantive response electrically. The 
request is considered properly received, or perfected, when the above 
conditions have been met and the request arrives at the FOIA office of 
the Component in possession of the records.
    Initial denial authority (IDA). An official who has been granted 
authority by the head of 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(d)(3) of this part; 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 officials 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 better 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) Openiness with the public. The Department of Defense shall 
conduct its activities in an open manner consistent with the need for 
security and aherence to other requirements of law and regulation. 
Records not 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 for obtaining DoD records, and 
after the request is received by the official designated to respond, 
DoD Components shall endeavor to provide a final response determination 
within the statutory 20 working days. If a significant number of 
requests, or the complexity of the requests prevent a final response 
determination within the statutory time period, DoD Components shall 
advise the requester of this fact, and explain how the request will be 
responded to within its multitrack processing system (see 
Sec. 286.4(d)(2)). A final 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 Sec. 286.23(b). Interim responses acknowledging 
receipt of the request, negotiations with the requester concerning the 
scope of the request, the response timeframe, and fee agreements are 
encouraged; however, such actions do not constitute a final response 
determination pursuant to the FOIA. If a request fails to meet minimum 
requirements as set forth in Sec. 286.3, definition ``FOIA request'', 
Components shall inform the requester how to perfect or correct the 
request. The statutory 20 working day time limit applies upon receipt 
of a perfected or correct FOIA request which complies with the 
requirements outlined in Sec. 286.3, definition ``FOIA request''.
    (2) Multitrack processing. When a Component has a significant 
number of pending requests that prevents a response determination being 
made within 20 working days, the requests shall be processed in a 
multitrack processing system, based on the date of receipt, the amount 
of work and time involved in processing the requests, and whether the 
request qualifies for expedited processing 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. Determinations as to 
whether a request is simple or complex shall be made 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 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

[[Page 65423]]

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 DoD 
Component's office that will determine whether to grant expedited 
processing. Once the DoD Component has determined to grant expedited 
processing, the request shall be processed 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 means that the failure to obtain the records on 
an expedited basis could reasonably be expected to pose an imminent 
threat to the life or physical safety of an individual.
    (ii) Compelling need also means that the information is urgently 
needed by an individual primarily engaged in disseminating information 
in order to inform the public concerning actual or alleged Federal 
Government activity. An individual primarily engaged in disseminating 
information means a person whose primary activity involves publishing 
or otherwise disseminating information to the public. Representatives 
of the news media (see Sec. 286.28(e)) would normally qualify as 
individuals primarily engaged in disseminating information. Other 
persons must demonstrate that their primary activity involves 
publishing or otherwise disseminating information to the public.
    (A) Urgently needed means that the information has a particular 
value that will be lost if not disseminated quickly. Ordinarily this 
means a breaking news story of general public interest. However, 
information of historical interest only, or information sought for 
litigation or commercial activities would not qualify, nor would a news 
media publication or broadcast deadline unrelated to the news breaking 
nature of the information.
    (b) [Reserved]
    (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 reasons for expedited processing. Other reasons that 
merit expedited processing by DoD Components are an imminent loss of 
substantial due process rights and humanitarian need. A demonstration 
of imminent loss of substantial due process rights shall be made by a 
statement certified by the requester to be true and correct to the best 
of his or her knowledge. Humanitarian need means that disclosing the 
information will promote the welfare and interest of mankind. A 
demonstration of humanitarian need shall be also made by a statement 
certified by the requester to be true and correct to the best of his or 
her knowledge. Both statements mentioned above must accompany the 
request in order to be considered and responded to within the 10 
calendar days required for decisions on expedited access. Once the 
decision has been made to expedite the request for either of these 
reasons, the request may be processed in the expedited processing queue 
behind those requests qualifying for compelling need.
    (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(C) and 7(F) (see subpart C of this part). 
Exemptions 2, 5, and 7(A)(B)(D) and (E) (see subpart C of this part) 
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. Discretionary 
releases to FOIA requesters constitute a waiver of the FOIA exemption 
that may otherwise apply. Disclosure to a properly constituted advisory 
committee, to Congress, or to other Federal Agencies does not waive the 
exemption. (See Sec. 286.22(d).) Exempt records disclosed without 
authorization by the appropriate DoD official 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. There is no 
obligation to create, compile, or obtain a record to satisfy a FOIA 
request. A DoD Component, 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) About electronic data, the issue of whether records are 
actually created or merely extracted from an existing database is not 
always readily apparent. Consequently, when responding to FOIA requests 
for electronic data where creation of a record, programming, or 
particular format are questionable, 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, that would cause a significant 
interference with the operation of the Component's 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. In 
order to assist DoD Components in conducting more timely searches, 
requesters should endeavor to provide as much identifying information 
as possible. When a DoD Component receives a request that does not 
reasonably describe the requested record, it shall notify the requester 
of the defect in writing. The requester should be asked to provide the 
type of information outlined in paragraph (h)(2) of this section. DoD 
Components are not obligated to act on the request until the requester 
responds to the specificity

[[Page 65424]]

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 is file-related and includes information such as 
type of record (for example, memorandum), title, index citation, 
subject area, date the record was created, and originator.
    (ii) Category II is event-related and includes the circumstances 
that resulted in the record being created or the date and circumstances 
surrounding the event the record covers.
    (3) Generally, a record is not reasonably described unless the 
description contains sufficient Category I information to permit the 
conduct of an organized, non-random search based on the 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 that can be retrieved 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. If the record is required to be released 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 should contact the DoD 
Component to determine if it also received the request, and if not, 
obtain concurrence from the other DoD Component to refer the request. 
In either situation, the requester shall be advised of the action 
taken, unless exempt information would be revealed. 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. Should this situation occur, DoD Components should coordinate 
with the originator of the information prior to making a release 
determination. 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 has reason to believe it has the 
requested record. 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 exempt. If the association 
is exempt, 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) A DoD Component shall refer for response directly to the 
requester, a FOIA request for a record that it holds to another DoD 
Component or agency outside the DoD, if the record originated in the 
other DoD Component or outside agency. Whenever a record or a portion 
of a record is referred to another DoD Component or to a Government 
Agency outside of the DoD for a release determination and direct 
response, the requester shall be informed of the referral, unless it 
has been determined that notification would reveal exempt information. 
Referred records shall only be identified to the extent consistent with 
security requirements.
    (3) A DoD Component may refer a request for a record that it 
originated to 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. Ensure you include a point of contact 
with the telephone number. 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. A FOIA request shall be referred to the 
appropriate DoD Component and the requester shall be notified of the 
referral, unless exempt information would be revealed. Another example 
is a record originated by a DoD Component or agency that 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 for 
consultation prior to a final release determination within the 
Department of Defense. See also Sec. 286.22(e) of this part.
    (4) Within the Department of Defense, a DoD Component shall 
ordinarily refer a FOIA request and a copy of the records it holds, but 
that was originated by other 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 by 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) of this part.
    (5) 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.

[[Page 65425]]

    (6) 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 Department of Defense 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.
    (7) DoD Components that 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 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.
    (8) To the extent referrals are consistent with the policies 
expressed by this section, referrals between offices of the same DoD 
Component are authorized.
    (9) 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, shall 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) Combatant Commands. (1) The Combatant Commands are placed under 
the jurisdiction of the OSD, instead of the administering Military 
Department or the Chairman of the Joint Chiefs of 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; \3\ it 
authorizes and requires the Combatant Commands to process FOIA requests 
in accordance with DoD Directive 5400.7 and this part. The Combatant 
Commands shall forward directly to the Director, Freedom of Information 
and Security Review 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 of 
this part.
---------------------------------------------------------------------------

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

    (2) Combatant Commands shall maintain an electronic reading room 
for FOIA-processed 5 U.S.C. 552(a)(2)(D) records in accordance with 
subpart B of this part. Records qualifying for this means of public 
access also shall be maintained in hard copy for public access at 
Combatant Commands' respective locations.
    (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, nor are all of them aware of appeal 
procedures. 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. See also Sec. 286.24 regarding appeal 
rights.
    (1) If the record is required to be released 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 
Privacy Act system of records and who cite or imply only the Privacy 
Act, will have their requests processed under the provisions of both 
the Privacy Act and the FOIA. If the Privacy Act system of records is 
exempt from the provisions of 5 U.S.C. 552a(d)(1) and if the records, 
or any portion thereof, are exempt under the FOIA, the requester shall 
be so advised with the appropriate Privacy Act and FOIA exemption. 
Appeals shall be processed under both Acts.
    (3) Requesters who seek records about themselves that are not 
contained in a Privacy Act system of records and who cite or imply the 
Privacy Act will have their requests processed under the provisions of 
the FOIA, since the Privacy Act does not apply to these records. 
Appeals shall be processed under the FOIA.
    (4) Requesters who seek records about themselves that are contained 
in a Privacy Act system of records and who cite or imply the FOIA or 
both Acts will have their requests processed under the provisions of 
both the Privacy Act and the FOIA. If the Privacy Act system of records 
is exempt from the provisions of 5 U.S.C. 552a(d)(1) and if the records 
or any portion thereof, are exempt under the FOIA, the requester shall 
be so advised with the appropriate Privacy Act and FOIA exemption. 
Appeals shall be processed under both Acts.
    (5) Requesters who seek access to agency records that are not part 
of a Privacy Act system of records, and who cite or imply the Privacy 
Act and FOIA, will have their requests processed under the FOIA since 
the Privacy Act does not apply to these records. Appeals shall be 
processed under the FOIA.
    (6) Requesters who seek access to agency records and who cite or 
imply the FOIA will have their requests an appeals processed under the 
FOIA.
    (7) Requesters shall be advised in the final response letter which 
Act(s) was (were) used, inclusive of appeal rights as outlined in 
paragraphs (m)(1) through (m)(6) of this section.
    (n) Non-responsive information in responsive records. DoD 
Components shall interpret FOIA requests liberally when determining 
which records are responsive to the requests, and may release non-
responsive information. However, should DoD Components desire to 
withhold non-responsive information, the following steps shall be 
accomplished:
    (1) Consult with the requester, and ask if the requester views the 
information as responsive, and if not, seek the requester's concurrence 
to deletion of non-responsive information without a FOIA exemption. 
Reflect this concurrence in the response letter.
    (2) If the responsive record is unclassified, and the requester 
does not agree to deletion of non-responsive information without a FOIA 
exemption, release all non-responsive and responsive information which 
is not exempt. For non-responsive information that is exempt, notify 
the requester that

[[Page 65426]]

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) If the responsive record is classified, and the requester does 
not agree to deletion of non-responsive information without a FOIA 
exemption, release all unclassified responsive and non-responsive 
information which is not exempt. If the non-responsive information is 
exempt, follow the procedures in paragraph (n)(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.
    (o) 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 paragraph (g)(2) of this section.

Subpart B--FOIA Reading Rooms


Sec. 286.7  Requirements.

    (a) Reading room. Each DoD Component shall provide an appropriate 
facility or facilities where the public may inspect and copy or have 
copied the records described in paragraph (b) of this section and 
Sec. 286.8(a). In addition to the records described in paragraph (b) of 
this section and Sec. 286.8(a), 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, and also may 
establish decentralized reading rooms. 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.
    (b) Record availability. The FOIA requires that records described 
in 5 U.S.C. 552(a)(2) (A), (B), (C), and (D) created on or after 
November 1, 1996, shall be made available electronically by November 1, 
1997, as well as in hard copy in the FOIA reading room for inspection 
and copying, unless such records are published and copies are offered 
for sale. Personal privacy information, that if disclosed to a third 
party requester, would result in an invasion of the first party's 
personal privacy, and contractor submitted information, that if 
disclosed to a competing contractor, would result in competitive harm 
to the submitting contractor shall be deleted from all 5 U.S.C. 
552(A)(2) records made available to the general public. 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 records to 
avoid clearly unwarranted invasions of privacy, or competitive harm to 
business submitters. In appropriate cases, the DoD Component may refer 
to this description rather than write a separate justification for each 
deletion. 5 U.S.C. 552(a)(2) (A), (B), (C) and (D) records are:
    (1) (a)(2)(A) records. Final opinions, including concurring and 
dissenting opinions, and orders made in the adjudication of cases, as 
defined in 5 U.S.C. 551, that may be cited, used, or relied upon as 
precedents in future adjudications.
    (2) (a)(2)(B) records. Statements of policy and interpretations 
that have been adopted by the agency and are not published in the 
Federal Register.
    (3) (a)(2)(C) records. Administrative staff manuals and 
instructions, or portions therefo, 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 criterial for defense, prosecution, or settlement of cases.
    (ii) Operations and maintenance manuals and technical information 
concerning munitions, equipment, systems, and intelligence activities.
    (4) (a)(2)(D) records. Those 5 U.S.C. 552(a)(3) records, which 
because of the nature of the subject matter, have become or are likely 
to become the subject of subsequent requests for substantially the same 
records. These records are referred to as FOIA-processed (a)(2) 
records.
    (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 simular records.
    (B) Particular circumstances of the records involved, including 
their nature and the type of information contained in them.
    (C) The identify 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.
    (iii) Should a requester submit a FOIA request for FOIA-processed 
(a)(2) records, and insist that the request be processed, DoD 
Components shall process the FOIA request. However, DoD Components have 
no obligation to process a FOIA request for 5 U.S.C. 552(a)(2) (A), 
(B), and (C) records because these records are required to be made 
public and not FOIA-processed under paragraph (a)(3) of the FOIA.


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

[[Page 65427]]

published may be relied upon, used or cited as precedent against any 
individual unless such individual has actual and-timely notice of the 
contents of such materials. Such materials issued, 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 topical 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 FOIA-processed (a)(2) 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 any 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 a 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 of a record (see also Sec. 286.4(e)) to 
one requester shall prevent the withholding of the same record under a 
FOIA exemption if the record is subsequently requested by someone else. 
However, a FOIA exemption may be invoked to withhold information that 
is similar or related that has been the subject of a discretionary 
release. 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. However, if the 
subject of the record is the requester for the record and the record 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 \4\ 
and by a FOIA exemption.
---------------------------------------------------------------------------

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

    (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.\5\ 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:
---------------------------------------------------------------------------

    \5\ 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 that 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.R-1, 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 the Department of Defense or 
any of its Components. This exemption is entirely discretionary. This 
exemption has two profiles, high (b)(2) and low (b)(2). Paragraph 
(b)(2) of this section contains a brief discussion on the low (b)(2) 
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 (b)(2) profile.
    (1) Records qualifying under high (b)(2) are those containing or 
constituting statues, rules, regulations, orders, manuals, directives, 
instructions, and security classification guides, the release of which 
would allow circumvention of these records thereby substantially 
hindering the effective performance of a significant function of the 
Department of Defense. Examples include:
    (i) Those operating rules, guidelines, and manuals for DoD 
investigators, inspectors, auditors, and 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 (b)(2) 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

[[Page 65428]]

hours, statements of policy as to sick leave, and 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 (b)(2) 
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 Directorate for Freedom of Information and 
Security Review maintains a list of (b)(3) statutes used within the 
Department of Defense, 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.\6\
---------------------------------------------------------------------------

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

    (5) Confidentiality of Medical Quality Assurance Records: Qualified 
Immunity for Participants, 10 U.S.C. 1102f.
    (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)(6).
    (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. Commercial or financial 
information submitted on a voluntary basis, absent any exercised 
authority prescribing criteria for submission is protected without any 
requirement to show competitive harm (see paragraph (d)(8) of this 
section). 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) of this part. 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, 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 paragraph (c)(4) of this section).
    (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

[[Page 65429]]

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) Those portions of official reports of inspection, reports of 
the Inspector General, 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.
    (vii) Planning, programming, and budgetary information that 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 released in a particular case during civil 
discovery where a party's particularized showing of need might override 
a privilege, 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 incorporately 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 a requester, other than the person about whom the 
information is about, 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, including private e-mail addresses, are 
normally not releasable without the consent of the individuals 
concerned. This includes lists of home addresses and military quarters' 
addresses without the occupant's name. Additionally, the names and duty 
addresses (postal and/or e-mail) of DoD military and civilian personnel 
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 (postal and/or e-mail) 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.
    (3) 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 since it is 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.\7\
---------------------------------------------------------------------------

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

    (4) A clearly unwarranted invasion of the privacy of third parties 
identified in a personnel, medical or similar record constitutes a 
basis for deleting those reasonably segregable portions of that record. 
When withholding third party personal information from the subject of 
the record and the record is contained in a Privacy Act system of 
records, consult with legal counsel.
    (5) 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 that 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

[[Page 65430]]

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.
    (B) The person initiated or directly participated in an 
investigation that lead to the creation of any agency record seeks 
access to that record.
    (C) 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.
    (g) Number 7 (5 U.S.C. 552(b)(7)). Records or information complied 
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) (see 
paragraph (g)(1)(iii) of this section) of this exemption, this 
exemption is discretionary. If information qualifies as exemption 
(7)(C) or (7)(F) (see paragraph (g)(1)(iii) of this section) 
information, there is no discretion in its release.
    (1) This exemption applies, however, only to the extent that 
production of such law enforcement records or information could result 
in the following:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings (5 U.S.C. 552(b)(7)(A)).
    (ii) Would deprive a person of the right to a fair trial or to an 
impartial adjudication (5 U.S.C. 552(b)(7)(B)).
    (iii) 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 (5 U.S.C. 
552(b)(7)(C)).
    (A) 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 a Glomar response, and exemption 
(7)(C) 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 that is exempt under the Glomar concept.
    (B) 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.
    (C) Refusal to confirm or deny should not be used when:
    (1) The person whose personal privacy is in jeopardy has provided 
the requester with a waiver of his or her privacy rights.
    (2) The person whose personal privacy is in jeopardy is deceased, 
and the Agency is aware of that fact.
    (D) 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 that furnishes the information on a confidential basis; and 
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 (5 U.S.C. 552(b)(7)(D)).
    (E) 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 (5 U.S.C. 
552(b)(7)(E)).
    (F) Could reasonably be expected to endanger the life or physical 
safety of any individual (5 U.S.C. 552(b)(7)(F)).
    (2) Some examples of exemption 7 are:
    (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 identify 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 
with a DoD Component. National security intelligence investigations 
include background security investigations and those investigations 
conducted for the purpose of obtaining affirmative or 
counterintelligence information.
    (3) 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.
    (4) Exclusions. Excluded from exemption 7 are the following 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 that 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 circumstances continues, treat the records of 
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 5 U.S.C. 552(b)(7), the response to the 
request will state that no records were found.
    (h) Number 8 (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 because disclosure would

[[Page 65431]]

cause a foreseeable harm to an interest protected by one or more FOIA 
exemptions 2 through 9 (see subpart C of this part) shall be considered 
as being for official use only (FOUO). No other material shall be 
considered FOUO, and FOUO is not authorized as an anemic form of 
classification to protect national security interests. Additional 
information on FOUO and other controlled, unclassified information may 
be found in DoD 5200. 1-R or by contacting the Directorate for 
Security, Office of the Assistant Secretary of Defense (Command, 
Control, Communications, and Intelligence).
    (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 determine whether disclosure would result in a 
foreseeable harm to an interest protected by one or more FOIA 
exemptions 2 through 9. Even if any exemptions apply, the record shall 
be released as a discretionary matter when it is determined that there 
is no foreseeable harm to an interest protected by the exemptions.
    (c) Historical papers. Records such as notes, working papers, and 
drafts retained as historical evidence of DoD Component actions enjoy 
no special 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) Location of markings. (1) 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). Each paragraph containing FOUO information shall be marked as 
such.
    (2) 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.
    (3) Within a classified document, an individual page that contains 
FOUO information but no classified information shall be marked ``For 
Official Use Only'' at the top and bottom of the page, as well as each 
paragraph that contains FOUO information.
    (4) 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.
    (5) 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. Exemption(s) ______ applies/apply.

    (b) [Reserved]


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 may qualify for 
exemption 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 prevents 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 
electronically 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 
whenever practicable.


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 nongovernment personnel.
    (b) During nonduty hours. At the close of business, FOUO records 
shall be stored so as to prevent 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

[[Page 65432]]

such as file cabinets, desks, or bookcases. FOUO records that are 
subject to the provisions of the National Security Act of 1959 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 prevent reconstructing, 
and placing 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. 
3301-3314, 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. 282.22  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) Disclosure would result in a foreseeable harm to an interest 
protected by a FOIA exemption, and the record is subject to one or more 
of the exemptions of 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 the subject's 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 of this part.
    (b) Requests from private parties. The provisions of the FOIA are 
reserved for persons with private interest as opposed to U.S. Federal 
Agencies seeking official information. Requests from private persons 
will be made in writing, and should clearly show all other addressees 
within the Federal Government to which the request was also sent. This 
procedure will reduce processing time requirements, and ensure better 
inter- and intra-agency coordination. However, if the requester does 
not show all other addressees to which the request was also sent, DoD 
Components shall still process the request. DoD Components 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 
Sec. 286.4(f) and Sec. 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 outside of the FOIA 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) Consultation with affected DoD component. (1) When a DoD 
Component receives a FOIA request for a record in which an affected DoD 
organization (including a Combatant Command) has a clear and 
substantial interest in the subject matter, consultation with that 
affected DoD organization is required. As an example, where a DoD 
Component receives a request for records related to DoD operations in a 
foreign country, the cognizant Combatant Command for the area involved 
in the request shall be consulted before a release is made. 
Consultations may be telephonic, electronic, or in hard copy.

[[Page 65433]]

    (2) The affected DoD Component shall review the circumstances of 
the request for host-nation relations, and provide, where appropriate, 
FOIA processing assistance to the responding DoD Component regarding 
release of information. Responding DoD Components shall provide copies 
of responsive records to the affected DoD Component when requested by 
the affected DoD Component. The affected DoD Component shall receive a 
courtesy copy of all releases in such circumstances.
    (3) Nothing in paragraphs (e)(1) and (e)(2) 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 the 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 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. The following are reasons 
for not complying with a request for a record under 5 U.S.C. 552(a)(3):
    (1) No records. A reasonable search of files failed to identify 
responsive records.
    (2) Referrals. The request is transferred to another DoD Component, 
or to another Federal Agency.
    (3) Request withdrawn. The request is withdrawn by the requester.
    (4) Fee-related reason. The requester is unwilling to pay fees 
associated with a request; the requester is past due in the payment of 
fees from a previous FOIA request; or the requester disagrees with the 
fee estimate.
    (5) Records not reasonably described. A record has not been 
described with sufficient particularity to enable the DoD Component to 
locate it by conducting a reasonable search.
    (6) Not a proper FOIA request for some other reason. The requester 
has failed unreasonably to comply with procedural requirements, other 
than fee-related, imposed by this part or DoD Component supplementing 
regulations.
    (7) Not an agency record. The information requested is not a record 
within the meaning of the FOIA and this part.
    (8) Duplicate request. The request is a duplicate request (e.g., a 
requester asks for the same information more than once). This includes 
identical requests received via different means (e.g., electronic mail, 
facsimile, mail, courier) at the same or different times.
    (9) Other (specify). Any other reason a requester does not comply 
with published rules other than those outlined paragraphs (b)(1) 
through (b)(8) of this section.
    (10) Partial or total denial. The record is denied in whole or in 
part in accordance with procedures set forth in the FOIA.
    (c) Denial tests. To deny a requested record that is in the 
possession and control of a DoD Component, it must be determined that 
disclosure of the record would result in a foreseeable harm to an 
interest protected by a FOIA exemption, and 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. Unless indicating the extent of the deletion would 
harm an interest protected by an exemption, 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, unless 
including the indication would harm an interest protected by the 
exemption under which the deletion is made. This may be done by use of 
brackets, shaded areas, or some other identifiable technique that will 
clearly show the limits of the deleted information. When a record is 
denied in whole, the responsive 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 20 working days after 
receipt of the request by the official designated to respond. When a 
DoD Component has a significant number of pending requests which 
prevent a response determination within the 20 working day period, 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)(2), 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

[[Page 65434]]

the fee status of the request, consistent with the provisions of 
subpart F of this part. When a requester is assessed fees for 
processing a request, the requester's fee category shall be specified 
in the response letter. Components also shall provide the requester 
with a complete cost breakdown (e.g., 15 pages of office reproduction 
at $0.15 per page; 5 minutes of computer search time at $43.50 per 
minute, 2 hours of professional level search at $25 per hour, etc.) in 
the response letter.
    (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) When denying a request for records, in whole or in a 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. This estimate should be in number of pages or in 
some other reasonable form of estimation, unless the volume is 
otherwise indicated through deletions on records disclosed in part.
    (8) When denying a request for records in accordance with a statute 
qualifying as a FOIA exemption 3 statute, DoD Components shall, in 
addition to sitting the particular statute relied upon to deny the 
information, also state whether a court has upheld the decision to 
withhold the information under the particular statute, and a concise 
description of the scope of the information being withheld.
    (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 the 20 day period, 
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 follows:
    (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 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 appropriately 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 in paragraph (f)(3) of this section, 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. If 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 de facto 
denial with full administrative remedies.
    (6) As an alternative to the taking of formal extensions of time as 
described in Sec. 286.23(f), 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 (see 
Sec. 286.12(d)), 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(d), this part and E.O. 12600 (3 CFR, 1987 Comp., p. 235)) 
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) of 5 
U.S.C. 552. 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

[[Page 65435]]

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 5 U.S.C. 552. 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 that are opened and read to the 
public. The term proposal means information contained in or originating 
from any proposal, including a technical, management, or cost proposal 
submitted by an offeror in response to solicitation for a competitive 
proposal, but does not include an offeror's name or total price or unit 
prices when set forth in a record other than the proposal itself. 
Submitter notice, and analysis as appropriate, are required for 
exemption (b)(4) matters that 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 that prescribes 
criteria for submission, and after consultation with the submitter, 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 also apply to any 
non-U.S. Government record in the possession and control of the DoD 
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 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 each DoD Component in a form suitable for rapid 
retrieval, periodic statistical compilation, and management evaluation. 
Records denied for any of the reasons contained in paragraph (b) of 
this section 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. The requester shall be notified that they are 
responsible for the full costs of special services.
    (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 paragraphs (k)(1) and 
(k)(2) of this section shall be used for depositing all FOIA receipts, 
except receipts for Working Capital and non appropriated funded 
activities. Components are reminded that the below account numbers must 
be preceded by the appropriate disbursing office two digit prefix. 
Working Capital 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 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, for no record determinations when the requester 
considers such responses adverse in nature, not providing a response 
determination to a FOIA request within the statutory time limits, or 
any determination found to be adverse in nature by the requester. When 
denials have been made under the provisions of the Privacy Act and the 
FOIA, and the denied information is contained in a Privacy Act system 
of records, appeals shall be processed under both the Privacy Act and 
the FOIA. If the denied information is not maintained in a Privacy Act 
system of records, the appeal shall be processed under the FOIA. 
Appeals of Office of the Secretary of Defense and Chairman of the Joint 
Chiefs of Staff determinations may be sent to the address in appendix B 
of 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. A 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 is postmarked no later than 60 calendar days after 
the date of the initial denial letter. If no appeal is received, or if 
the appeal is postmarked after the conclusion of this 60-day period, 
the appeal may be considered closed. However, exceptions to the above 
may be considered on a case by case basis.

[[Page 65436]]

In cases where the requester is provided several incremental 
determinations for a single request, the time for the appeal shall not 
begin until the date of the final response. Records that 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 preventing a response determination within 20 working 
days, the appeals shall be processed in a multitrack processing system, 
based at a minimum, on the three processing tracks established for 
initial requests. See Sec. 286.4(d) of this part. All of the provisions 
of Sec. 286.4(d) 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 Sec. 286.23(f), 
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. 286.23(f), they may 
consider their administrative remedies exhausted. They may, however, 
without prejudicing their right of judicial remedy, await a 
substantiative response. The DoD component shall continue to process 
the case expeditiously.
    (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 total denial of records, the 
response shall advise the requester that the information being denied 
does not contain meaningful portions that are reasonably segregable.
    (v) When the denial is based upon an exemption 3 statute (subpart C 
of this part), the response, in addition to citing the statute relied 
upon to deny the information, shall state whether a court has upheld 
the decision to withhold the information under the statute, and shall 
contain a concise description of the scope of the information withheld.
    (vi) The response shall advise the requester of the right to 
judicial review.
    (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 DoD Office of the General Counsel.
    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 DoD Office of the General Counsel.


Sec. 286.25  Judicial actions.

    (a) General. (1) This section states current legal and procedural 
rules for the convenience of the reader. The statemetns 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 U.S. 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 with 
the time limits prescribed by the FOIA and in this part.
    (b) Jurisdiction. The requester may bring suit in the U.S. 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 requester 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, to include 
negotiating with the requester to modify the scope of their request, 
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 
witholding 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

[[Page 65437]]

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 Director, Freedom of 
Information and Security Review with an information copy to the DoD 
Office of the General counsel, ATTN: Office of Legal Counsel.

Subpart F--Fee Schedule


Sec. 286.28  General provisions.

    (a) Authorities. The Freedom of Information Act, as amended; the 
Paperwork Reduction Act (44 U.S.C. Chapter 35), as amended; the Privacy 
Act of 1974, as amended; the Budget and Accounting Act of 1921 and the 
Budget and Accounting Procedures Act, as amended (see 31 U.S.C.); and 
10 U.S.C. 2328.
    (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 7000.14-R,\11\ 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.
---------------------------------------------------------------------------

    \11\ 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 a 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 of this subpart. 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)(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 a 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 usable, 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 a 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 that 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

[[Page 65438]]

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, this subpart, 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 a 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 that 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 determinate whether disclosure is 
meaningful, and shall inform the public on the operations or activities 
of the Department of Defense. While the subject of a request may 
contain information that 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 previously released record 
that has been heavily redacted, 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 that 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 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 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 profitmaking 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

[[Page 65439]]

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.
    (4) Components are reminded that the factors and examples used in 
this subsection 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.
    (5) In addition, the following circumstances describe situations 
where waiver or reduction of fees are most likely to be warranted:
    (i) A record is voluntarily created to prevent 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 appropriate for the 
category determined by the Component.
    (ii) Requesters should submit a fee declaration appropriate for the 
following 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 above 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 Components' actual costs exceed the 
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, particularly for those requesters who have no payment 
history, or for those requesters who have failed previously 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 previsions of paragraph 
(e)(2)(vii) of this section, apply.
    (ix) When Components act under paragraphs (e)(2)(i) through 
(e)(2)(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

[[Page 65440]]

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 in records located are determined to be exempt from 
disclosure. In practice, if the Components 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 or 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 commerical 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. Commerical requesters (unlike other requesters) are not 
entitled to two hours of free search time, nor 100 free pages of 
reproduction of documents. Moreover, commerical 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 commerical 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 commerical 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 paragraph (d) of this section, have been met.
    (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-commerical scientific institution whose purpose is scientific 
research. Requesters must reasonbly describe the records sought (see 
Sec. 286.4(h)). The term ``non-commercial scientific institution'' 
refers to an institution that is not operated on a ``commercial'' basis 
as defined in paragraph (e)(3) of this section, and that is operated 
solely for the purpose of conducting scientific research, the results 
of which are not intended to promote any particular product or 
industry. Fees shall be waived or reduced in the public interest if the 
criteria of paragraph (d) of this section, have beem met.
    (6) Components shall provide documents to requesters in paragraphs 
(e)(4) and (e)(5) of this section 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 paragraph (d) of this section, 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 through that organization, even 
though 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 paragraph (e)(7)(i) of this section, 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, information 
vendors, data brokers or similar marketers of information whether to 
industries and businesses, or other entities.
    (8) All other requesters. Components shall charge requesters who do 
not fit into any of the categories described in paragraphs (e)(3), 
(e)(4), (e)(5), or (e)(7) of this section, 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

[[Page 65441]]

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 paragraph (d)(1) of this section. (See also paragraph (e)(3)(ii) 
of this section.)
    (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 of 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 on 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. 5515 note). 
The Debt Collection Act of 1982 (5 U.S.C. 5515 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 5 U.S.C. 5515 note.
    (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. The appropriate fee category of the 
requester shall be applied before computing fees.
    (i) Refunds. In the event that a Component discovers that it has 
overcharged a requester or a requester has overpaid, the Component 
shall promptly refund the charge to the requester by reimbursement 
methods that are agreeable to the requester and the Component.


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
------------------------------------------------------------------------
Clerical.............................  E9/GS8 and below.......       $12
Professional.........................  O1-O6/GS9-GS15.........        25
Executive............................  O7/GS16/ES1 and above..        45
------------------------------------------------------------------------

    (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 where 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 the
 printouts).                               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
------------------------------------------------------------------------
Clerical.............................  E9/GS8 and below.......       $12
Professional.........................  O1-O6/GS9-GS15.........        25
Executive............................  O7/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 in this section 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

[[Page 65442]]

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. 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 of this subpart for 
other types of information released under the FOIA.
    (b) Waiver. Components shall waive the payment of costs required in 
paragraph (a) of this section, which are greater than the costs that 
would be required for release of this same information under 
Sec. 286.29 of this subpart if:
    (1) 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;
    (2) The release of technical data is requested in order to comply 
with the terms of an international agreement; or
    (3) The Component determines in accordance with Sec. 286.28(d)(1), 
that such a waiver is in the interest of the United States.
    (c) Fee rates--(1) Search time--(i) Manual search: clerical.

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

    (ii) Manual search: professional and executive (To be established 
at actual hourly rate prior to search. A minimum charge will be 
established at \1/2\ hourly rates).
    (2) 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 (c)(1)(i) 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.
    (3) Duplication.

------------------------------------------------------------------------
                              Type                                 Cost
------------------------------------------------------------------------
Aerial photograph, maps, specifications, permits, charts,
 blueprints, and other technical engineering documents.........    $2.50
Engineering data (microfilm):
    (i) Aperture cards.........................................
    (A) Silver duplicate negative, per card....................      .75
    When key punched and verified, per card....................      .85
    (B) Diazo duplicate negative, per card.....................      .65
    When key punched and verified, per card....................      .75
    (ii) 35mm roll film, per frame.............................      .50
    (iii) 16mm roll film, per frame............................      .45
    (iv) Paper prints (engineering drawings), each.............     1.50
    (v) Paper reprints of microfilm indices, each..............      .10
------------------------------------------------------------------------

    (4) Review time--(i) Clerical.

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

    (ii) Professional and executive (To be established at actual hourly 
rate prior to review. A minimum charge will be established at \1/2\ 
hourly rates).
    (d) Other technical data records. Charges for any additional 
services not specifically provided in paragraph (c) of this section, 
consistent with Volume 11A of DoD 7000.14-R, shall be made by 
Components at the following rates:

(1) Minimum charge for office copy (up to six images)...........   $3.50
(2) Each additional image.......................................     .10
(3) Each typewritten page.......................................    3.50
(4) Certification and validation with seal, each................    5.20
(5) Hand-drawn plots and sketches, each hour or fraction thereof   12.00
 

Subpart G--Reports


Sec. 286.33  Reports control.

    (a) General. (1) The Annual Freedom of Information Act Report is 
mandated by the statute and reported on a fiscal year basis. Due to the 
magnitude of the requested statistics and the need to ensure accuracy 
of reporting, DoD Components shall track this data as requests are 
processed. This will also facilitate a quick and accurate compilation 
of statistics. DoD Components shall forward their report to the 
Directorate for Freedom of Information and Security Review no later 
than November 30 following the fiscal year's close. It may be submitted 
electronically and via hard copy accompanied by a computer diskette. In 
turn, DoD will produce a consolidated report for submission to the 
Attorney General, and ensure that a copy of the DoD consolidated report 
is placed on the Internet for public access.
    (2) Existing DoD standards and registered data elements are to be 
utilized to the greatest extent possible in accordance with the 
provisions of DoD Manual 8320.1-M,\12\ ``Data Administration 
Procedures.''
---------------------------------------------------------------------------

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

    (3) The reporting requirement outlined in this subpart is assigned 
Report Control Symbol DD-DA&M(A)1365, Freedom of Information Act Report 
to Congress.
    (b) Annual Report. The current edition of DD Form 2564 shall be 
used to submit component input. DD Form 2564 is available on the 
Internet at http://www.defenselink.mil/pubs/ under Regulations and 
Forms. Instructions for completion follow:

[[Page 65443]]

    (1) Item 1: Initial request determinations. Please note that 
initial Privacy Act requests which are also processed as initial FOIA 
requests are reported here. They will also be reported as ``Privacy Act 
requests'' on the Annual Privacy Act Report. See Sec. 286.4(m), 
Relationship between the FOIA and the Privacy Act (PA).
    (i) Total requests processed. Enter the total number of initial 
FOIA requests responded to (completed) during the fiscal year. Since 
more than one action frequently is taken on a completed case, total 
actions (see (b)(1)(vi) of this section) the sum of Items (b)(1)(ii) 
through (b)(1)(v) of this section, may exceed total requests processed 
(See appendix E of this part for form layout.)
    (ii) 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.)
    (iii) Denied in part. Enter the total number of initial FOIA 
requests responded to and denied in part based on one or more of the 
FOIA exemptions. (Do not report ``other reason responses'' as a partial 
denial here, unless a FOIA exemption is used also.)
    (iv) Denied in full. Enter the total number of initial FOIA 
requests responded to and denied in full based on one or more of the 
FOIA exemptions. (Do not report ``other reason responses'' as denials 
here, unless a FOIA exemption is used also.)
    (v) ``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)(ii) of this section explains the nine possible ``other 
reasons.''
    (vi) Total actions. Enter the total number of FOIA actions taken 
during the fiscal year. This number will be the sum of (b)(1)(ii) 
through (b)(1)(v) of this section. Total actions must be equal to or 
greater than the number of total requests processed (paragraph 
(b)(1)(i) of this section).
    (2) Item 2: Initial request exemptions and other reasons--(i) 
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 (b)(1)(iii) and (b)(1)(iv) of this section. The (b)(7) 
exemption is reported by subcategories identified in paragraphs 
(b)(2)(i)(A) through (b)(2)(i)(F) of this section:
    (A) Interfere with enforcement;
    (B) Fair trial right;
    (C) Invasion of privacy;
    (D) Protect confidential source;
    (E) Disclose techniques; and
    (F) Endanger life or safety.
    (ii) ``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.
    (A) No records. Enter the number of times a reasonable search of 
files failed to identify records responsive to subject request.
    (B) Referrals. Enter the number of times a request was referred to 
another DoD Component or Federal Agency for action.
    (C) Request withdrawn. Enter the number of times a request and/or 
appeal was withdrawn by a requester. (For appeals, report number in 
Item 4b on the report form. (See appendix E of this part.))
    (D) Fee-related reason. Requester is unwilling to pay the fees 
associated with a request; the requester is past due in the payment of 
fees from a previous FOIA request; or the requester disagrees with a 
fee estimate.
    (E) Records not reasonably described. Enter the number of times a 
FOIA request could not be acted upon since the record had not been 
described with sufficient particularity to enable the DoD Component to 
locate it by conducting a reasonable search.
    (F) Not a proper FOIA request for some other reason. Enter the 
number of times the requester has failed unreasonably to comply with 
procedural requirements, other than fee-related (described in paragraph 
(b)(2)(ii)(D) of this section), imposed by this part or a DoD 
Component's supplementing regulation.
    (G) Not an agency record. Enter the number of times a requester was 
provided a response indicating the requested information was not a 
record within the meaning of the FOIA and this part.
    (H) Duplicate request. Record number of duplicate requests closed 
for that reason (e.g., request for the same information by the same 
requester). This includes identical requests received via different 
means (e.g., electronic mail, facsimile, mail, courier) at the same or 
different times.
    (I) Other (specify). Any other reason a requester does not comply 
with published rules, other than those reasons outlined in paragraphs 
(b)(2)(ii)(A) through (b)(2)(ii)(H) of this section.
    (J) Total. Enter the sum of paragraphs (b)(2)(ii)(A) through 
(b)(2)(ii)(I) of this section in the block provided on the form. This 
number will be equal to or greater than the number in paragraph 
(b)(1)(v) of this section since more than one reason may be claimed for 
each ``other reason'' response.
    (iii) (b)(3) statutes invoked on initial determinations. Identify 
the number of times you have used a specific statute to support each 
(b)(3) exemption. List the 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 the specific 
sections of the acts invoked. The total number of instances reported 
will be equal to or greater than the total number of (b)(3) exemptions 
listed in Item 2a on the report form.
    (3) Item 3: Appeal determinations. Please note that Privacy Act 
appeals which are also processed as FOIA appeals are reported here. 
They will also be reported as ``Privacy Act appeals'' on the Annual 
Privacy Act Report. See Sec. 286.4(m), Relationship Between the FOIA 
and the Privacy Act (PA).
    (i) Total appeal responses. Enter the total number of FOIA appeals 
responded to (completed) during the fiscal year.
    (ii) Granted in full. Enter the total number of FOIA appeals 
responded to and granted in full during the year.
    (iii) Denied in part. Enter the total number of FOIA appeals 
responded to and denied in part based on one or more of the FOIA 
exemptions. (Do not report ``other reason responses'' as a partial 
denial here, unless a FOIA exemption is used also.)
    (iv) Denied in Full. Enter the total number of FOIA appeals 
responded to and denied in full based on one or more of the FOIA 
exemptions. (Do not report ``other reason responses'' as denials here, 
unless a FOIA exemption is used also.)
    (v) ``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 (as outlined in ``other reasons'' 
in paragraph (b)(2)(ii) of this section).
    (vi) Total actions. Enter the total number of FOIA appeal actions 
taken during the fiscal year. This number will be the sum of paragraphs 
(b)(3)(ii) through (b)(3)(v) of this section, and should be equal to or 
greater than the number of total appeal responses, paragraph (b)(3)(i) 
of this section.

[[Page 65444]]

    (4) Item 4: Appeal exemptions and other reasons--(i) 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 (b)(3)(iii) and (b)(3)(iv) of this section. Note that the 
(b)(7) exemption is reported by subcategories identified in paragraphs 
(b)(4)(i)(A) through (b)(4)(i)(F) of this section:
    (A) Interfere with enforcement;
    (B) Fair trial right;
    (C) Invasion of privacy;
    (D) Protect confidential source;
    (E) Disclose techniques; and
    (F) Endanger life or safety.
    (ii) ``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)(2)(ii) of 
this section for description of ``other reasons.'' This number may be 
equal to or possibly greater than the number in paragraph (b)(3)(v) of 
this section since more than one reason may be claimed for each ``other 
reason'' response.
    (iii) (b)(3) statutes invoked on appeal determinations. Identify 
the number of times a specific statute has been used to support each 
(b)(3) exemption identified in item 4a on the report form (Appendix E 
of this part). List the 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 citation to the specific sections of the 
statute invoked. The total number of instances reported will be equal 
to or greater than the total number of (b)(3) exemptions listed in Item 
4a on the report form.
    (5) Item 5: Number and median age of initial cases pending: (i) 
Total initial cases pending:
    (ii) Beginning and ending report period: Midnight, 2400 hours, 
September 30 of the Preceding Year--OR--0001 hours, October 1 is the 
beginning of the report period. Midnight, 2400 hours, is the close of 
the reporting period.
    (iii) Median age of initial requests pending: Report the median age 
in days (including holidays and weekends) of initial requests pending.
    (iv) Examples of median calculation. (A) If 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).
    (B) If 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).
    (v) Accuracy of calculations. Components must ensure the accuracy 
of calculations. As backup, the raw data used to perform calculations 
should be recorded and preserved. This will enable recalculation of 
median (and mean values) as necessary. Components may require 
subordinate elements to forward raw data, as deemed necessary and 
appropriate.
    (vi) Average. If a Component believes that ``average'' (mean) 
processing time is a better measure of performance, then report 
``averages'' (means) as well as median values (e.g., with data 
reflected and plainly labeled on plain bond as an attachment to the 
report). However, ``average'' (mean) values will not be included in the 
consolidated DoD report unless all Components report it.
    (6) Item 6: 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).
    (7) Item 7: 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:
    (i) Total number of initial requests. Enter the total number of 
initial requests processed [completed] during the reporting period 
(fiscal year) by type (Simple, Complex and Expedited Processing) in the 
appropriate row on the form.
    (ii) Median age (days). Enter the median number of days [calendar 
days including holidays and weekends] required to process each type of 
case (Simple, Complex and Expedited Processing) during the period in 
the appropriate row on the form.
    (iii) 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.
    (8) Item 8: 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.
    (9) Item 9: FOIA program costs--(i) Number of full time staff. 
Enter the number of personnel your agency had dedicated to working FOIA 
full time during the fiscal year. This will be expressed in work-years 
(manyears). For example: ``5.1, 3.2, 1.0, 6.5, et al.'' A sample 
calculation follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Number
                   Employee                       (months     Work-years                                        Note
                                                  worked)
--------------------------------------------------------------------------------------------------------------------------------------------------------
SMITH, Jane...................................            6          0.5   Hired full time at middle of fiscal year.
PUBLIC, John Q................................            4           .34  Dedicated to full time FOIA processing last quarter of fiscal year.
BROWN, Tom....................................           12          1.0   Worked FOIA full time all fiscal year.
                                               ---------------------------
    Total.....................................           22          1.84  .............................................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (ii) Number of part time staff: Enter the number of personnel your 
agency had dedicated to working FOIA part time during the fiscal year. 
This will be expressed in work-years (manyears). For example: ``5.1, 
3.2, 1.0, 6.5, et al.'' A sample calculation follows:

[[Page 65445]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Number
                   Employee                        (hours     Work-years                                        Note
                                                  worked)
--------------------------------------------------------------------------------------------------------------------------------------------------------
PUBLIC, John Q................................          200           .1   Amount of time devoted to part time FOIA processing before becoming full time
                                                                            FOIA processor in previous example.
WHITE, Sally..................................          400           .2   Processed FOIA's part time while working as paralegal in General Counsel's
                                                                            Office.
PETERS, Ron...................................        1,000           .5   Part time employee dedicated to FOIA processing.
                                               ---------------------------
    Total: \1\ 1,600/2,000....................  ...........  ............  .............................................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Hours (hours worked in a year) equals 0.8 work-years.

    (iii) Estimated litigation cost: Report your best estimate of 
litigation costs for the FY. Include all direct and indirect expenses 
associated with FOIA litigation in U.S. District Courts, U.S. Circuit 
Courts of Appeals, and the U.S. Supreme Court.
    (iv) Total program cost: Report the total cost of FOIA program 
operation within your agency. Include your litigation costs in this 
total. While you do not have to report detailed cost information as in 
the past, you should be able to explain the technique by which you 
derived your agency's total cost figures if the need arises.
    (A) Before the close of each fiscal year, the Directorate for 
Freedom of Information and Security Review (DFOISR) will dispatch the 
latest OSD Composite Rate Chart for military personnel to DoD 
Components. This information may be used in computing military 
personnel costs.
    (B) DoD Components should compute their civilian personnel costs 
using rates from local Office of Personnel Management (OPM) Salary 
Tables and shall add 16% for benefits.
    (C) Data captured on DD Form 2086, Record of Freedom of Information 
(FOI) Processing Cost and DD Form 2086-1, Record of Freedom of 
Information (FOI) Processing Cost for Technical Data, shall be 
summarized and used in computing total costs.
    (D) An overhead rate of 25% shall be added to all calculated costs 
for supervision, space, and administrative support.
    (10) Item 10: Authentication. The official that approves the 
agency's report submission to DoD will sign and date; enter typed name 
and duty title; and provide both the agency's name and phone number for 
questions about the report.
    (c) Electronic publication. The consolidated DoD Annual FOIA 
Program Report will be made available to the public in either paper or 
electronic format.

Subpart H--Education and Training


Sec. 286.36  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 FOIA 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 DoD.
    (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.
    (e) Uniformity of legal interpretation. In accordance with DoD 
Directive 5400.7, the DoD Office of the General Counsel shall ensure 
uniformity in the legal position and interpretation of the DoD FOIA 
Program.

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

AP1.1. General

    AP1.1.1. In accordance with DoD Directive 5400.7 \1\ and this 
part, the 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\ Copy may be viewed via internet at http://web7.whs.osd.mil/
corres.htm.
    \2\ See footnote 1 to paragraph AP1.1.1. of this appendix.
---------------------------------------------------------------------------

    AP1.1.2. The policy change in AP1.1.1. of this appendix 
authorizes and requires the 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 Director, Freedom of 
Information and Security Review, all correspondence associated with 
the appeal of an initial denial for information under the provisions 
of the FOIA.
---------------------------------------------------------------------------

    \3\ See footnote 1 to paragraph AP1.1.1. of this appendix.
---------------------------------------------------------------------------

AP1.2. Responsibilities of Commands

    Combatant Commanders in Chief shall:
    AP1.2.1. Designate the officials authorized to deny initial FOIA 
requests for records.
    AP1.2.2. Designate an office as the point-of-contact for FOIA 
matters.
    AP1.2.3. Refer FOIA cases to the Director, Freedom of 
Information and Security Review, for review and evaluation when the 
issues raised are of unusual significance, precedent setting, or 
otherwise require special attention or guidance.

[[Page 65446]]

    AP1.2.4. 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.
    AP1.2.5. Coordinate proposed denials of records with the 
appropriate Combatant Command's Office of the Staff Judge Advocate.
    AP1.2.6. Answer any request for a record within 20 working days 
of receipt. The requesters 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.
    AP1.2.7. Provide to the Director, Freedom of Information and 
Security Review when the request for a record is denied in whole or 
in part, a copy of the response to the requester or the requester's 
representative, and any internal memoranda that provide background 
information or rationale for the denial.
    AP1.2.8. 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 Director, Administration and Management and 
Washington Headquarters Services, Directorate for Freedom of 
Information and Security Review, Room 2C757, 1155 Defense Pentagon, 
Washington, DC 20301-1155.
    AP1.2.9. Upon request, submit to Director, Administration and 
Management and Washington Headquarters Services a copy of the 
records that were denied. The Director, Administration and 
Management and Washington Headquarters Services shall make such 
requests when adjudicating appeals.

AP1.3.  Fees for FOIA Requests

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

AP1.4.  Communications

    Excellent communication capabilities currently exist between the 
Director, Freedom of Information and Security Review and the Freedom 
of Information Act Offices of the Combatant Commands. This 
communication capability shall be used for FOIA cases that are time 
sensitive.

AP1.5.  Information Requirements

    AP1.5.1. The Combatant Commands shall submit to the Director, 
Freedom of Information and Security Review, an annual report. The 
instructions for the report are outlined in subpart G of this part.
    AP1.5.2. The annual reporting requirement contained in this part 
shall be submitted in duplicate to the Director, Freedom of 
Information and Security Review not later than each November 30. 
This reporting requirement has been assigned Report Control Symbol 
DD-DA&M(A) 1365 in accordance with DoD 8910.1-M.\4\
---------------------------------------------------------------------------

    \4\ See footnote 1 to paragraph AP1.1.1. of this appendix.
---------------------------------------------------------------------------

Appendix B to Part 286--Addressing FOIA Requests

AP2.1.  General

    AP2.1.1. The Department of Defense includes the Office of the 
Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the 
Military Departments, the Combatant Commands, the Inspector General, 
the Defense Agencies, and the DoD Field Activities.
    AP2.1.2. 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.

AP2.2. Listing of DoD Component Addresses for FOIA Requests

    AP2.2.1. Office of the Secretary of Defense and the Chairman of 
the Joint Chiefs of Staff. Send all requests for records from the 
below listed offices to: Directorate for Freedom of Information and 
Security Review, Room 2C757, 1155 Defense Pentagon, Washington, DC 
20301-1155.

Executive Secretariat
Under Secretary of Defense (Policy)
    Assistant Secretary of Defense (International Security Affairs)
    Assistant Secretary of Defense (Special Operations & Low 
Intensity Conflict)
    Assistant Secretary of Defense (Strategy & Threat Reduction)
    Deputy to the Under Secretary of Defense (Policy Support)
    Director of Net Assessment
    Defense Security Assistance Agency
    Defense Technology Security Administration
Under Secretary of Defense (Acquisition & Technology)
    Deputy Under Secretary of Defense (Logistics)
    Deputy Under Secretary of Defense (Advanced Technology)
    Deputy Under Secretary of Defense (Acquisition Reform)
    Deputy Under Secretary of Defense (Environmental Security)
    Deputy Under Secretary of Defense (International & Commercial 
Programs)
    Deputy Under Secretary of Defense (Industrial Affairs & 
Installations)
    Assistant to the Secretary of Defense (Nuclear, Chemical & 
Biological Defense Programs)
    Director, Defense Research & Engineering
    Director, Small & Disadvantaged Business Utilization
    Director, Defense Procurement
    Director, Test Systems Engineering & Evaluation
    Director, Strategic & Tactical Systems
    DoD Radiation Experiments Command Center
    On-Site Inspection Agency
Under Secretary of Defense (Comptroller)
    Director, Program Analysis and Evaluation
Under Secretary of Defense (Personnel & Readiness)
Assistant Secretary of Defense (Health Affairs)
Assistant Secretary of Defense (Legislative Affairs)
Assistant Secretary of Defense (Public Affairs)
Assistant Secretary of Defense (Command, Control, Communications & 
Intelligence)
Assistant Secretary of Defense (Reserve Affairs)
General Counsel, Department of Defense
Director, Operational Test and Evaluation
Assistant to the Secretary of Defense (Intelligence Oversight)
Director, Administration and Management
Special Assistant for Gulf War Illness
Defense Advanced Research Projects Agency
Ballistic Missile Defense Organization
Defense Systems Management College
National Defense University
Armed Forces Staff College
Department of Defense Dependents Schools
Uniformed Services University of the Health Sciences
Armed Forces Radiology Research Institute
Washington Headquarters Services

    AP2.2.2. Department of the Army. Army records may be requested 
from those Army officials who are listed in 32 CFR 518. Send 
requests to the Department of the Army, Freedom of Information and 
Privacy Acts Office, TAPC-PDR-PF, 7798 Cissna Road, Suite 205, 
Springfield, VA 22150-3166, for records of the Headquarters, U.S. 
Army, or if there is uncertainty as to which Army activity may have 
the records.
    AP2.2.3. 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 a FOIA request. Send requests to Chief of Naval 
Operations, N09B30, 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 it there is uncertainty as to which Navy or 
Marine activities may have the records.
    AP2.2.4. Department of the Air Force. Air Force records may be 
requested from the commander of any Air Force installation, major 
command, or field operating agency (ATTN: FOIA Office). For Air 
Force records of Headquarters, United States Air Force, or it there 
is uncertainty as to which Air Force activity may have the records, 
send requests to Department of the Air Force, 11CS/SCSR(FOIA), 1000 
Air Force Pentagon, Washington, DC 20330-1000.
    AP2.2.5. Defense Contract Audit Agency (DCAA). DCAA records may 
be requested from any of its regional offices or from its 
Headquarters. Requesters should send FOIA 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.

[[Page 65447]]

    AP2.2.6. Defense Information Systems Agency (DISA). DISA records 
may be requested from any DISA field activity or from its 
Headquarters. Requesters should send FOIA requests to Defense 
Information Systems Agency, Regulatory/General Counsel, 701 South 
Courthouse Road, Arlington, VA 22204-2199.
    AP2.2.7. Defense Intelligence Agency (DIA). FOIA requests for 
DIA records may be addressed to Defense Intelligence Agency, ATTN: 
SVI-1, Washington, DC 20340-5100.
    AP2.2.8. Defense Security Service (DSS). All FOIA requests for 
DSS records should be sent to the Defense Security Service, Office 
of FOIA and Privacy V0020, 1340 Braddock Place, Alexandria, VA 
22314-1651.
    AP2.2.9. Defense Logistics Agency (DLA). DLA records may be 
requested from its headquarters or from any of its field activities. 
Requesters should send FOIA requests to Defense Logistics Agency, 
ATTN: CAAR, 8725 John J. Kingman Road, Suite 2533, Ft. Belvoir, VA 
22060-6221.
    AP2.2.10. National Imagery and Mapping Agency (NIMA). FOIA 
requests for NIMA records may be sent to the National Imagery and 
Mapping Agency, General Counsels Office, GCM, mail Stop D-10, 4600 
Sangamore Road, Bethesda, MD 20816-5003.
    AP2.2.11. Defense Special Weapons Agency (DSWA). FOIA 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.
    AP2.2.12. National Security Agency (NSA). FOIA requests for NSA 
records may be sent to the National Security Agency/Central Security 
Service, FOIA/PA Services, N5P5, 9800 Savage Road, Suite 6248, Fort 
George G. Meade, MD 20755-6248.
    AP2.2.13. Inspector General of the Department of Defense (IG, 
DoD). FOIA requests for IG, DoD records may be sent to the Inspector 
General of the Department of Defense, Chief FOIA/PA Office, 400 Army 
Navy Drive, Room 405, Arlington, VA 22202-2884.
    AP2.2.14. Defense Finance and Accounting Service (DFAS). DFAS 
records may be requested from any of its regional offices or from 
its Headquarters. Requesters should send FOIA requests to Defense 
Finance and Accounting Service, Directorate for External Services, 
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.
    AP2.2.15. National Reconnaissance Office (NRO). FOIA requests 
for NRO records may be sent to the National Reconnaissance Office, 
Information Access and Release Center, Attn: FOIA Officer, 14675 Lee 
Road, Chantilly, VA 20151-1715.
    AP2.3. Other Addresses. Although the below organizations are OSD 
and Chairman of the Joint Chiefs of Staff Components for the 
purposes of the FOIA, requests may be sent directly to the addresses 
indicated.
    AP2.3.1. DoD TRICARE Management Activity. Director, TRICARE 
Management Activity, 16401 East Centretech Parkway, Aurora, CO 
80011-9043.
    AP2.3.2. 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.
    AP2.3.3. U.S. Central Command. Commander-in-Chief, U.S. Central 
Command, CCJ1 AGR, MacDill Air Force Base, FL 33608-7001.
    AP2.3.4. U.S. European Command. Commander-in-Chief, 
Headquarters, U.S. European Command/ECJ1-AA(FOIA) Unit 30400 Box 
1000, APO AE 09128-4209.
    AP2.3.5. U.S. Southern Command. Commander-in-Chief, U.S. 
Southern Command, SCJ1-A, 3511 NW 91st Avenue, Miami, FL 33172-1217.
    AP2.3.6. U.S. Pacific Command. Commander-in-Chief, U.S. Pacific 
Command, USPACOM FOIA Coordinator (J042), Administrative Support 
Division, Joint Secretariat, Box 28, Camp H. M. Smith, HI 96861-
5025.
    AP2.3.7. U.S. Special Operations Command. Commander-in-Chief, 
U.S. Special Operations Command, Chief, Command Information 
Management Branch, ATTN: SOJ6-SI, 7701 Tampa Point Blvd., MacDill 
Air Force Base, FL 33621-5323.
    AP2.3.8. U.S. Atlantic Command. Commander-in-Chief, U.S. 
Atlantic Command, Code J02P, Norfolk, VA 23511-5100.
    AP2.3.9. 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.
    AP2.3.10. U.S. Transportation Command. Commander-in-Chief, U.S. 
Transportation Command, ATTN: TCJ1-1F, 508 Scott Drive, Scott Air 
Force Base, IL 62225-5357.
    AP2.3.11. U.S. Strategic Command. Commander-in-Chief, U.S. 
Strategic Command, Attn: J0734, 901 SAC Blvd., Suite 1E5, Offutt Air 
Force Base, NE 68113-6073.

AP2.4.  National Guard Bureau

    FOIA 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.

AP2.5.  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 Directorate for Freedom of Information 
and Security Review, Room 2C757, 1155 Defense Pentagon, Washington, 
DC 20301-1155.

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[[Page 65448]]

Appendix C to Part 286--DD Form 2086, ``Record of Freedom of 
Information (FOI) Processing Cost''
[GRAPHIC] [TIFF OMITTED] TR25NO98.000


[[Page 65449]]

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[[Page 65450]]

Appendix D to Part 286--DD Form 2086-1, ``Record of Freedom of 
Information (FOI) Processing Cost for Technical Data''
[GRAPHIC] [TIFF OMITTED] TR25NO98.002


[[Page 65451]]

[GRAPHIC] [TIFF OMITTED] TR25NO98.003



[[Page 65452]]

Appendix E to Part 286--DD Form 2564, ``Annual Report Freedom of 
Information Act''
[GRAPHIC] [TIFF OMITTED] TR25NO98.004


[[Page 65453]]

[GRAPHIC] [TIFF OMITTED] TR25NO98.005



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[[Page 65454]]

Appendix F to Part 286--DoD Freedom of Information Act Program 
Components

Office of the Secretary of Defense/Chairman of the Joint Chiefs of 
Staff/Combatant Commands, Defense Agencies, and the DoD Field 
Activities
Department of the Army
Department of the Navy
Department of the Air Force
Defense Information Systems Agency
Defense Contract Audit Agency
Defense Intelligence Agency
Defense Security Service
Defense Logistics Agency
National Imagery and Mapping Agency
Defense Special Weapons Agency
National Security Agency
Office of the Inspector General, Department of Defense
Defense Finance and Accounting Service
National Reconnaissance Office

    Dated: November 17, 1998.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 98-31103 Filed 11-24-98; 8:45 am]
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