[Federal Register Volume 64, Number 177 (Tuesday, September 14, 1999)]
[Rules and Regulations]
[Pages 49850-49875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23344]



[[Page 49849]]

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Part III





Department of Defense





_______________________________________________________________________



Department of the Navy



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32 CFR Part 701



Availability of Records and Publication of Documents Affecting the 
Public; Final Rule

  Federal Register / Vol. 64, No. 177 / Tuesday, September 14, 1999 / 
Rules and Regulations  

[[Page 49850]]



DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 701

RIN 0703-AA53


Availability of Records and Publication of Documents Affecting 
the Public

AGENCY: Department of the Navy, DOD.

ACTION: Final rule.

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SUMMARY: This rule amends regulations on the Department of the Navy's 
Freedom of Information Act (FOIA) Program. This rule reflects changes 
in the Secretary of the Navy's procedures.

DATES: Effective September 14, 1999.

ADDRESSES: Department of the Navy PA/FOIA Policy Branch, Office of the 
Chief of Naval Operations, 2000 Navy Pentagon, Washington, DC 20350-
2000.

FOR FURTHER INFORMATION CONTACT: Mrs. Doris M. Lama, Head, DON PA/FOIA 
Policy Branch, Office of the Chief of Naval Operations, 2000 Navy 
Pentagon, Washington, DC 20350-2000, Telephone: (202) 685-6545.

SUPPLEMENTARY INFORMATION: Pursuant to the authority cited below, the 
Department of the Navy amends 32 CFR part 701, subparts A, B, C, and D 
derived from the Secretary of the Navy Instruction 5720.42 series, 
which implements within the Department of the Navy the provisions of 
Department of Defense Directives 5400.7 and 5400.7-R series, Department 
of Defense Freedom of Information Act Program (32 CFR part 286). This 
rule is being published by the Department of the Navy for guidance and 
interest of the public in accordance with 5 U.S.C. 552(a)(1). It has 
been determined that invitation of public comment on these changes to 
the Department of the Navy's implementing instruction prior to adoption 
would be impracticable and unnecessary, and it is therefore not 
required under the public rulemaking provisions of 32 CFR parts 286 and 
701, subpart E, and 5 U.S.C. 553(b). Interested persons, however, are 
invited to comment in writing on this amendment. All written comments 
received will be considered in making subsequent amendments or 
revisions to 32 CFR part 701, subparts A, B, C, and D, or the 
instruction upon which it is based. Changes may be initiated on the 
basis of comments received. Written comments should be addressed to 
Mrs. Doris M. Lama, Head, DON PA/FOIA Policy Branch, Office of the 
Chief of Naval Operations, 2000 Navy Pentagon, Washington, DC 20350-
2000. It has been determined that this final rule is not a 
``significant regulatory action'' as defined in Executive Order 12866.

List of Subjects in 32 CFR Part 701

    Administrative practice and procedure, Freedom of Information, 
Privacy.
    Accordingly, the Department of the Navy revises 32 CFR part 701 to 
read as follows:

PART 701--AVAILABILITY OF DEPARTMENT OF THE NAVY RECORDS AND 
PUBLICATION OF DEPARTMENT OF THE NAVY DOCUMENTS AFFECTING THE 
PUBLIC

Subpart A--Department of the Navy Freedom of Information Act (FOIA) 
Program

Sec.
701.1  Purpose.
701.2  Navy FOIA website/FOIA handbook.
701.3  Applicability.
701.4  Responsibility and authority.
701.5  Policy.
701.6  Reading rooms.
701.7  Relationship between the FOIA and PA.
701.8  Processing FOIA requests.
701.9  Referrals.
701.10  Processing requests received from governmental officials.
701.11  Processing specific kinds of records.
701.12  FOIA appeals/litigation.

Subpart B--FOIA Definitions and Terms

701.13  5 U.S.C. 552(a)(1) materials.
701.14  5 U.S.C. 552(a)(2) materials.
701.15  5 U.S.C. 552(a)(3) materials.
701.16  Administrative appeal.
701.17  Affirmative information disclosure.
701.18  Agency record.
701.19  Appellate authority.
701.20  Discretionary disclosure.
701.21  Electronic record.
701.22  Exclusions.
701.23  Executive Order 12958.
701.24  Federal agency.
701.25  5 U.S.C. 552, Freedom of Information Act (FOIA). 
701.26  FOIA exemptions.
701.27  FOIA terms location.
701.28  FOIA request.
701.29  Glomar response.
701.30  Initial Denial Authority (IDA).
701.31  Mosaic or compilation response.
701.32  Perfected request.
701.33  Public domain.
701.34  Public interest.
701.35  Reading room.
701.36  Release authorities.
701.37  Reverse FOIA.
701.38  Technical data.
701.39  Vaughn index.

Subpart C--FOIA Fees

701.40  Background.
701.41  FOIA fee terms.
701.42  Categories of requesters--applicable fees.
701.43  Fee declarations.
701.44  Restrictions.
701.45  Fee assessment.
701.46  Aggregating requests.
701.47  FOIA fees must be addressed in response letters.
701.48  Fee waivers.
701.49  Payment of fees.
701.50  Effect of the Debt Collection Act of 1982.
701.51  Refunds.
701.52  Computation of fees.
701.53  FOIA fee schedule.
701.54  Collection of fees and fee rates for technical data.
701.55  Processing FOIA fee remittances.

Subpart D--FOIA Exemptions

701.56  Background.
701.57  Ground rules.
701.58  In-depth analysis of FOIA exemptions.
701.59  A brief explanation of the meaning and scope of the nine 
FOIA exemptions.

    Authority: 5 U.S.C. 552.

Subpart A--Department of the Navy Freedom of Information Act (FOIA) 
Program


Sec. 701.1  Purpose.

    Subparts A, B, C, and D of this part issue policies and procedures 
for implementing the Freedom of Information Act (5 U.S.C. 552), and 
Department of Defense Directives 5400.7 and 5400.7-R series \1\ 
,Department of Defense Freedom of Information Act Program, (See 32 CFR 
part 286) and promote uniformity in the Department of the Navy Freedom 
of Information Act (FOIA) Program.
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    \1\ Copies may be obtained if needed from the Navy FOIA Website 
at http://www.ogc.secnav.hq.navy.mil/foia/index.html
_____________________________________-


Sec. 701.2  Navy FOIA website/FOIA handbook.

    (a) The Navy FOIA website (http://www.ogc.secnav.hq.navy.mil/foia/
index.html) is an excellent resource for requesters and FOIA 
coordinators. It provides connectivity to the Navy's official website, 
to other FOIA and non/FOIA websites, and to the Navy's electronic 
reading rooms.
    (b) FOIA requesters are encouraged to visit the Navy FOIA website 
prior to filing a request. It features a FOIA Handbook which provides: 
guidance on how and where to submit requests; what's releasable/what's 
not; addresses for frequently requested information; time limits and 
addresses for filing appeals, etc. FOIA requesters may also use the 
electronic FOIA request form on the website to seek access to records 
originated by the Secretary of the Navy (SECNAV) or the Chief of Naval 
Operations (CNO).


Sec. 701.3  Applicability.

    (a) Subparts A, B, C, and D of this part apply throughout the 
Department of the Navy (DON) and take precedence over

[[Page 49851]]

other DON instructions, which may serve to supplement it [i.e., Public 
Affairs Regulations, Security Classification Regulations, Navy 
Regulations, Marine Corps Orders, etc.]. Further, issuance of 
supplementary instructions by DON activities, deemed essential to the 
accommodation of perceived requirements peculiar to those activities, 
may not conflict.
    (b) The FOIA applies to ``records'' maintained by ``agencies'' 
within the Executive Branch of the Federal government, including the 
Executive Office of the President and independent regulatory agencies. 
It states that ``any person'' (U.S. citizen; foreigner, whether living 
inside or outside the United States; partnerships; corporations; 
associations; and foreign and domestic governments) has the right 
enforceable by law, to access Federal agency records, except to the 
extent that such records (or portions thereof) are protected from 
disclosure by one or more of the nine FOIA exemptions or one of three 
special law enforcement exclusions.
    (c) Neither Federal agencies nor fugitives from justice may use the 
FOIA to access agency records.
    (d) The Department of Defense (DoD) FOIA directive states that the 
FOIA programs of the U.S. Atlantic Command and the U.S. Pacific Command 
fall under the jurisdiction of the Department of Defense and not the 
Department of the Navy. This policy represents an exception to the 
policies directed under DoD Directive 5100.3, ``Support of the 
Headquarters of Unified, Specified, and Subordinate Commands.''


Sec. 701.4  Responsibility and authority.

    (a) The Head, DON PA/FOIA Policy Branch [CNO (N09B30)] has been 
delegated the responsibility for managing the DON's FOIA program, which 
includes setting FOIA policy and administering, supervising, and 
overseeing the execution of the 5 U.S.C. 552 and Department of Defense 
Directives 5400.7 and 5400.7-R series, Department of Defense Freedom of 
Information Act Program (see 32 CFR part 286).
    (1) As principal DON FOIA policy official, CNO (N09B30) issues 
SECNAV Instruction 5720.42; oversees the administration of the DON FOIA 
program; issues and disseminates FOIA policy; oversees the Navy FOIA 
website; represents the DON at all meetings, symposiums, and 
conferences that address FOIA matters; writes the Navy's FOIA Handbook; 
serves on FOIA boards and committees; serves as principal policy 
advisor and oversight official on all FOIA matters; prepares the DON 
Annual FOIA Report for submission to the Attorney General; reviews all 
FOIA appeals to determine trends that impact on the DON; reviews all 
FOIA litigation matters involving the DON and apprises the Director, 
Freedom of Information and Security Review, DoD of same; responds to 
depositions and litigation regarding DON FOIA policy Secretary of the 
Navy Instruction 5820.8A, Release of Information for Litigation 
Purposes and Testimony by DON Personnel; reviews/analyzes all proposed 
FOIA legislation to determine its impact on the DON; develops a Navy-
wide FOIA training program and serves as training oversight manager; 
conducts staff assistance visits/reviews within the DON to ensure 
compliance with 5 U.S.C. 552 and this part; reviews all SECNAV and 
Operations Navy instructions/forms that address FOIA; and oversees the 
processing of FOIA requests received by SECNAV and Chief of Naval 
Operations (CNO), to ensure responses are complete, timely, and 
accurate. Additionally, N09B30 works closely with other DoD and DON 
officials to ensure they are aware of highly visible and/or sensitive 
FOIA requests being processed by the DON.
    (2) SECNAV has delegated Initial Denial Authority (IDA) to N09B30 
for requests at the Secretariat and OPNAV level.
    (b) The Commandant of the Marine Corps is delegated responsibility 
for administering and supervising the execution of this instruction 
within the Marine Corps. To accomplish this task, the Director of 
Administrative Resource Management (Code ARAD) serves as the FOIA 
Coordinator for Headquarters, U.S. Marine Corps, and assists CNO 
(N09B30) in promoting the Department of the Navy FOIA Program by 
issuing a Marine Corps FOIA Handbook; utilizing the Marine Corps FOIA 
website to disseminate FOIA information; consolidating its activities 
Annual FOIA Reports and submitting it to CNO (N09B30); maintaining a 
current list of Marine Corps FOIA coordinators, etc.
    (c) The DON Chief Information Officer (DONCIO) is responsible for 
preparing and making publicly available upon request an index of all 
DON major information systems and a description of major information 
and record locator systems maintained by the Department of the Navy as 
required by 5 U.S.C. 552 and DoD 5400.7-R, ``DoD Freedom of Information 
Act Program.''
    (d) FOIA coordinators will:
    (1) Implement and administer a local FOIA program under this 
instruction; serve as principal point of contact on FOIA matters; issue 
a command/activity instruction that implements SECNAVINST 5740.42F by 
reference and highlights only those areas unique to the command/
activity (i.e., designate the command/activity's FOIA Coordinator and 
IDA; address internal FOIA processing procedures; and address command/
activity level FOIA reporting requirements); receive and track FOIA 
requests to ensure responses are made in compliance with 5 U.S.C. 552 
and DoD Directives 5400.7 and 5400.7-R and this part; provide general 
awareness training to command/activity personnel on the provisions of 5 
U.S.C. 552 and this instruction; collect and compile FOIA statistics 
and submit a consolidated Annual FOIA Report to Echelon 2 FOIA 
coordinator for consolidation; provide guidance on how to process FOIA 
requests; and provide guidance on the scope of FOIA exemptions.
    (2) Additionally, CMC (ARAD) and Echelon 2 FOIA coordinators will:
    (i) Ensure that reading room materials are placed in the activity's 
electronic reading room and that the activity's website is linked to 
the Navy FOIA website and the activity's reading room is linked to the 
Navy's FOIA reading room lobby. Documents placed in the reading room 
shall also be indexed as a Government Information Locator Service 
(GILS) record, as this will serve as an index of available records.
    (ii) Review proposed legislation and policy recommendations that 
impact the FOIA and provide comments to CNO (N09B30).
    (iii) Review SECNAVINST 5720.42F and provide recommended changes/
comments to CNO (N09B30).
    (iv) Routinely conduct random staff assistance visits/reviews/self-
evaluations within the command and lower echelon commands to ensure 
compliance with FOIA.
    (v) Collect and compile command and feeder reports for the Annual 
FOIA Report and provide a consolidated report to CNO (N09B30).
    (vi) Maintain a listing of their subordinate activities' FOIA 
coordinators to include full name, address, and telephone (office and 
fax) and place on their website.

    (Note to paragraph (d)(2)(vi): Do not place names of FOIA 
coordinators who are overseas, routinely deployable or in sensitive 
units on the website. Instead just list ``FOIA Coordinator'')

    (vii) Notify CNO (N09B30) of any change of name, address, office 
code and zip code, telephone and facsimile number, and/or e-mail 
address of Echelon 2 FOIA Coordinators.
    (viii) Conduct overview training to ensure all personnel are 
knowledgeable

[[Page 49852]]

of the FOIA and its requirements. See Sec. 701.12.
    (ix) Work closely with the activity webmaster to ensure that 
information placed on the activity's website does not violate 
references in paragraphs (a), (c) and (f).
    (e) Initial Denial Authorities (IDAs). The following officials are 
delegated to serve as Initial Denial Authorities, on behalf of SECNAV 
(see Sec. 701.30 for definition):
    (1) Under Secretary of the Navy; Deputy Under Secretary of the 
Navy; Assistant Secretaries of the Navy (ASNs) and their principal 
deputy assistants; Assistant for Administration (SECNAV); Director, 
Administrative Division (SECNAV); Special Assistant for Legal and 
Legislative Affairs (SECNAV); Director, Office of Program Appraisal 
(SECNAV); DONCIO; Director, Small and Disadvantaged Business 
Utilization (SECNAV); Chief of Information (CHINFO); Director, Navy 
International Programs Office; Chief of Legislative Affairs; CNO; Vice 
CNO; Director, Naval Nuclear Propulsion Program (NOON); Director, Navy 
Staff (N09B); Head, DON PA/FOIA Policy Branch (N09B30); Director of 
Naval Intelligence (N2); Director of Space, Information Warfare, 
Command and Control (N6); Director of Navy Test & Evaluation & 
Technology Requirements (N091); Surgeon General of the Navy (N093); 
Director of Naval Reserve (N095); Oceanographer of the Navy (N096); 
Director of Religious Ministries/Chief of Chaplains of the Navy (N097); 
all Deputy Chiefs of Naval Operations; Chief of Naval Personnel; 
Director, Strategic Systems Programs; Chief, Bureau of Medicine and 
Surgery; Director, Office of Naval Intelligence; Naval Inspector 
General; Auditor General of the Navy; Commanders of the Naval Systems 
Commands; Chief of Naval Education and Training; Commander, Naval 
Reserve Force; Chief of Naval Research; Director, Naval Criminal 
Investigative Service; Deputy Commander, Naval Legal Service Command; 
Commander, Navy Personnel Command; Director, Naval Center of Cost 
Analysis; Commander, Naval Meteorology and Oceanography Command; 
Director, Naval Historical Center; heads of DON staff offices, boards, 
and councils; Program Executive Officers; and all general officers.
    (2) Within the Marine Corps: CMC and his Assistant, Chief of Staff, 
Deputy Chiefs of Staff; Director, Personnel Management Division; Fiscal 
Director of the Marine Corps; Counsel for the Commandant; Director of 
Intelligence; Director, Command, Communications and Computer Systems 
Division; Legislative Assistant to the Commandant; Director, Judge 
Advocate Division; Inspector General of the Marine Corps; Director, 
Manpower, Plans, and Policy Division; Head, Freedom of Information and 
Privacy Acts Section, HQMC; Director of Public Affairs; Director of 
Marine Corps History and Museums; Director, Personnel Procurement 
Division; Director, Morale Support Division; Director, Human Resources 
Division; Director of Headquarters Support; commanding generals; 
directors, Marine Corps districts; commanding officers, not in the 
administrative chain of command of a commanding general or district 
director. For each official listed above, the deputy or principal 
assistant is also authorized denial authority.
    (3) JAG and his Deputy and the DON General Counsel (DONGC) and his 
deputies are excluded from this grant of authorization, since SECNAV 
has delegated them to serve as his appellate authorities. However, they 
are authorized to designate IDA responsibilities to other senior 
officers/ officials within JAG and DONGC. DONGC has delegated IDA 
responsibilities to the Assistant General Counsels and the Associate 
General Counsel (Litigation).
    (4) For the shore establishment and operating forces: All officers 
authorized by Article 22, Uniform Code of Military Justice (UCMJ) or 
designated in section 0120, Manual of the Judge Advocate General 
(JAGINST 5800.7C) to convene general courts-martial.
    (5) IDAs must balance their decision to centralize denials for the 
purpose of promoting uniform decisions against decentralizing denials 
to respond to requests within the FOIA time limits. Accordingly, the 
IDAs listed in paragraphs (e)(1) through (4) are authorized to delegate 
initial denial authority to subordinate activities for the purpose of 
streamlining FOIA processing. They may also delegate authority to a 
specific staff member, assistant, or individuals acting during their 
absence if this serves the purpose of streamlining and/or complying 
with the time limits of FOIA.

    (Note to paragraph (e)(5): Such delegations shall be limited to 
comply with DoD Directive 5400.7, ``DoD Freedom of Information Act 
Program''.)

    (6) Delegations of IDA authority should be reflected in the 
activity's supplementing FOIA instruction or by letter, with a copy to 
CNO (N09B30) or CMC (ARAD), as appropriate.
    (f) Release authorities. Release authorities are authorized to 
grant requests on behalf of the Office of the Secretary of the Navy for 
agency records under their possession and control for which no FOIA 
exemption applies; to respond to requesters concerning refinement of 
their requests; to provide fee estimates; and to offer appeal rights 
for adequacy of search or fee estimates to the requester.
    (g) Appellate authorities are addressed in Sec. 701.12.


Sec. 701.5  Policy.

    (a) Compliance with the FOIA. DON policy is to comply with the FOIA 
as set forth in the Department of Defense's FOIA Directives 5400.7 and 
5400.7-R, and this instruction in this part in both letter and spirit; 
conduct its activities in an open manner consistent with the need for 
security and adherence to other requirements of law and regulation; and 
provide the public with the maximum amount of accurate and timely 
information concerning its activities.
    (b) Prompt action. DON activities shall act promptly on requests 
when a member of the public complies with the procedures established in 
the instruction in this part (i.e., files a ``perfected request'') and 
the request is received by the official designated to respond. See 
Sec. 701.11 for minimum requirements of the FOIA.
    (c) Provide assistance. DON activities shall assist requesters in 
understanding and complying with the procedures established by the 
instruction in this part, ensuring that procedural matters do not 
unnecessarily impede a requester from obtaining DON records promptly.
    (d) Grant access. (1) DON activities shall grant access to agency 
records when a member of the public complies with the provisions of the 
instruction in this part and there is no FOIA exemption available to 
withhold the requested information (see subpart D of this part).
    (2) In those instances where the requester has not cited FOIA, but 
the records are determined to be releasable in their entirety, the 
request shall be honored without requiring the requester to invoke 
FOIA.
    (e) Create a record. (1) A record must exist and be in the 
possession and control of the DON at the time of the request to be 
considered subject to the instruction in this part and the FOIA. 
Accordingly, DON activities need not process requests for records which 
are not in existence at the time the request is received. In other 
words, requesters may not have a ``standing FOIA request'' for release 
of future records.
    (2) There is no obligation to create, compile, or obtain a record 
to satisfy a FOIA request. However, this is not to be confused with 
honoring form or format requests (see Sec. 701.8). A DON activity,

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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 C of this part.
    (3) With respect to 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, DON activities 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 when 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 
interference with the operation of the DON activity's automated 
information system would not be a business as usual approach.
    (f) Disclosures. (1) Discretionary Disclosures. DON activities 
shall make discretionary disclosures whenever disclosure would not 
foreseeably harm an interest protected by a FOIA exemption. A 
discretionary disclosure is normally not appropriate for records 
clearly exempt under exemptions (b)(1), (b)(3), (b)(4), (b)(6), 
(b)(7)(C) and (b)(7)(F). Exemptions (b)(2), (b)(5), and (b)(7)(A), 
(b)(7)(B), (b)(7)(D) and (b)(7)(E) are discretionary in nature and DON 
activities are encouraged to exercise discretion whenever possible. 
Exemptions (b)(4), (b)(6), and (b)(7)(C) cannot be claimed when the 
requester is the ``submitter'' of the information. While discretionary 
disclosures to FOIA requesters constitute a waiver of the FOIA 
exemption that may otherwise apply, this policy does not create any 
legally enforceable right.
    (2) Public domain. Non-exempt records released under FOIA to a 
member of the public are considered to be in the public domain. 
Accordingly, such records may also be made available in reading rooms, 
in paper form, as well as electronically to facilitate public access.
    (3) Limited disclosures. Disclosure of records to a properly 
constituted advisory committee, to Congress, or to other Federal 
agencies does not waive a FOIA exemption.
    (4) Unauthorized disclosures. Exempt records disclosed without 
authorization by the appropriate DON official do not lose their exempt 
status.
    (5) Official versus personal disclosures. While authority may exist 
to disclose records to individuals in their official capacity, the 
provisions of the instruction in this part apply if the same individual 
seeks the records in a private or personal capacity.
    (6) Distributing information. DON activities are encouraged to 
enhance access to information by distributing information on their own 
initiative through the use of electronic information systems, such as 
the Government Information Locator Service (GILS).
    (g) Honor form or format requests. DON activities shall provide the 
record in any form or format requested by the requester, if the record 
is readily reproducible in that form or format. DON activities shall 
make reasonable efforts to maintain their records in forms or formats 
that are reproducible. In responding to requests for records, DON 
activities 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 DON activities' automated 
information system. Such determinations shall be made on a case-by-case 
basis.
    (h) Authenticate documents. Records provided under the instruction 
in 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. DON activities may charge 
for the service at a rate of $5.20 for each authentication.


Sec. 701.6.  Reading rooms.

    The FOIA requires that (a)(2) records created on or after 1 
November 1996, be made available electronically (starting 1 November 
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. DoD 5400.7-R, ``DoD Freedom of Information Act Program,'' 
requires that each DoD Component provide an appropriate facility or 
facilities where the public may inspect and copy or have copied the 
records held in their reading rooms. To comply, the Navy FOIA website 
includes links that assist members of the public in locating Navy 
libraries, online documents, and Navy electronic reading rooms 
maintained by SECNAV/CNO, CMC, OGC, JAG and Echelon 2 commands. 
Although each of these activities will maintain their own document 
collections on their own servers, the Navy FOIA website provides a 
common gateway for all Navy online resources. To this end, DON 
activities shall:
    (a) Establish their reading rooms and link them to the Navy FOIA 
Reading Room Lobby which is found on the Navy FOIA website.
    (b) Ensure that responsive documents held by their subordinate 
activities are also placed in the reading room.

    (Note to paragraph (b): SECNAV/ASN and OPNAV offices shall 
ensure that responsive documents are provided to CNO (N09B30) for 
placement in the reading room.)

    (c) Ensure that documents placed in a reading room are properly 
excised to preclude the release of personal or contractor-submitted 
information prior to being made available to the 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 DON activity 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 DON activity may refer 
to this description rather than write a separate justification for each 
deletion. DON activities may remove (a)(2)(D) records from their 
electronic reading room when the appropriate officials determine that 
access is no longer necessary.
    (d) Should a requester submit a FOIA request for FOIA-processed 
(a)(2) records, and insist that the request be processed, DON 
activities shall process the FOIA request. However, DON activities have 
no obligation to process a FOIA request for 5 U.S.C. 552(a)(2)(A), (B), 
and (C) [5 U.S.C. 552] records because these records are required to be 
made public and not FOIA-processed under paragraph (a)(3) of the FOIA.
    (e) DON activities may share reading room facilities if the public 
is not unduly inconvenienced. When appropriate, the cost of copying may 
be imposed on the person requesting the

[[Page 49854]]

material in accordance with FOIA fee guidelines (see subpart C of this 
part).
    (f) DON activities shall maintain an index of all available 
documents. A general index of FOIA-processed (a)(2) records shall be 
made available to the public, both in hard copy and electronically by 
31 December 1999. To comply with this requirement, DON activities shall 
establish a GILS record for each document it places in a reading room. 
No (a)(2) materials issued or adopted after 4 July 1967, that are not 
indexed and either made available or 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 or adopted before 4 July 1967, need not be indexed, 
but must be made available upon request if not exempted under the 
instruction in this part.
    (g) An index and copies of unclassified Navy instructions, forms, 
and addresses for DON activities (i.e., the Standard Navy Distribution 
List (SNDL) are located on the Navy Electronics Directives System 
(http://neds.nebt.daps.mil/).
    (h) DON 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 by JAG in their FOIA reading room and 
electronically to the public.
    (i) Although not required to be made available in response to FOIA 
requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials 
may, when feasible, be made available to the public in FOIA reading 
rooms for inspection and copying, and by electronic means. Examples of 
``(a)(1)'' materials are: descriptions of an agency's central and field 
organization, and to the extent they affect the public, rules of 
procedures, descriptions of forms available, instruction as to the 
scope and contents of papers, reports, or examinations, and any 
amendment, revision, or report of the aforementioned.


Sec. 701.7  Relationship between the FOIA and PA.

    Not all requesters are knowledgeable of the appropriate statutory 
authority to cite when requesting records. In some instances, they may 
cite neither Act, but will imply one or both Acts. For these reasons, 
the following guidelines are provided to ensure requesters receive the 
greatest amount of access rights under both Acts:
    (a) If the record is required to be released under the FOIA, the PA 
does not bar its disclosure. Unlike the FOIA, the PA applies only to 
U.S. citizens and aliens admitted for permanent residence. Subpart F of 
this part implements the DON's Privacy Act Program.
    (b) Requesters who seek records about themselves contained in a PA 
system of records and who cite or imply only the PA, will have their 
requests processed under the provisions of both the PA and the FOIA. If 
the PA system of records is exempt from the provisions of 5 U.S.C. 
552a(d)(1) and the records, or any portion thereof are exempt under the 
FOIA, the requester shall be so advised with the appropriate PA and 
FOIA exemption. Appeals shall be processed under both Acts.
    (c) Requesters who seek records about themselves that are not 
contained in a PA system of records and who cite or imply the PA will 
have their requests processed under the provisions of the FOIA, since 
the PA does not apply to these records. Appeals shall be processed 
under the FOIA.
    (d) Requesters who seek records about themselves that are contained 
in a PA system of records and who cite or imply the FOIA or both Acts 
will have their requests processed under the provisions of both the PA 
and the FOIA. If the PA system of records is exempt from the provisions 
of 5 U.S.C. 552a(d)(1), and the records, or any portion thereof are 
exempt under the FOIA, the requester shall be so advised with the 
appropriate PA and FOIA exemption. Appeals shall be processed under 
both Acts.
    (e) Requesters who seek access to agency records that are not part 
of a PA system of records, and who cite or imply the PA and FOIA, will 
have their requests processed under FOIA, since the PA does not apply 
to these records. Appeals shall be processed under the FOIA.
    (f) Requesters who seek access to agency records and who cite or 
imply the FOIA will have their requests and appeals processed under the 
FOIA.
    (g) Requesters shall be advised in final responses which Act(s) was 
(were) used, inclusive of appeal rights.
    (h) The time limits for responding to the request will be 
determined based on the Act cited. For example, if a requester seeks 
access under the FOIA for his or her personal records which are 
contained in a PA system of records, the time limits of the FOIA apply.
    (i) Fees will be charged based on the kind of records being 
requested (i.e., FOIA fees if agency records are requested; PA fees for 
requesters who are seeking access to information contained in a PA 
system of record which is retrieved by their name and/or personal 
identifier).


Sec. 701.8  Processing FOIA requests.

    Upon receipt of a FOIA request, DON activities shall:
    (a) Review the request to ensure it meets the minimum requirements 
of the FOIA to be processed.
    (1) Minimum requirements of a FOIA request. A request must be in 
writing; cite or imply FOIA; reasonably describe the records being 
sought so that a knowledgeable official of the agency can conduct a 
search with reasonable effort; and if fees are applicable, the 
requester should include a statement regarding willingness to pay all 
fees or those up to a specified amount or request a waiver or reduction 
of fees.
    (2) If a request does not meet the minimum requirements of the 
FOIA, DON activities shall apprise the requester of the defect and 
assist him/her in perfecting the request.

    (Note to paragraph (a)(2): The statutory 20 working day time 
limit applies upon receipt of a ``perfected'' FOIA request.)

    (b) When a requester or his/her attorney requests personally 
identifiable information in a record, the request may require a 
notarized signature or a statement certifying under the penalty of 
perjury that their identity is true and correct. Additionally, written 
consent of the subject of the record is required for disclosure from a 
Privacy Act System of records, even to the subject's attorney.
    (c) Review description of requested record(s). (1) The FOIA 
requester is responsible for describing the record he/she seeks so that 
a knowledgeable official of the activity can locate the record with a 
reasonable amount of effort. In order to assist DON activities in 
conducting more timely searches, a requester should endeavor to provide 
as much identifying information as possible. When a DON activity 
receives a request that does not reasonably describe the requested 
record, it shall notify the requester of the defect in writing. The 
requester should be asked to provide the type of information outlined 
in this paragraph. DON activities are not obligated to act on the 
request until the requester responds to the specificity letter. When 
practicable, DON activities shall offer assistance to the requester in 
identifying the records sought and in reformulating the request to 
reduce the burden on the agency in complying with the FOIA. The 
following guidelines are provided to deal with generalized requests and 
are based on the principle of reasonable effort. Descriptive 
information about a record may be divided into two broad categories.
    (i) Category I is file-related and includes information such as 
type of

[[Page 49855]]

record (for example, memorandum), title, index citation, subject area, 
date the record was created, and originator.
    (ii) Category II is event-related and includes the circumstances 
that resulted in the record being created or the date and circumstances 
surrounding the event the record covers.
    (2) Generally, a record is not reasonably described unless the 
description contains sufficient Category I information to permit the 
conduct of an organized, non random search based on the DON activity's 
filing arrangements and existing retrieval systems, or unless the 
record contains sufficient Category II information to permit inference 
of the Category I elements needed to conduct such a search.
    (3) The following guidelines deal with requests for personal 
records: Ordinarily, when personal identifiers are provided solely in 
connection with a request for records concerning the requester, only 
records in Privacy Act system of records that can be retrieved by 
personal identifiers need be searched. However, if a DON activity has 
reason to believe that records on the requester may exist in a record 
system other than a PA system, the DON activity shall search the system 
under the provisions of the FOIA. In either case, DON activities may 
request a reasonable description of the records desired before 
searching for such records under the provisions of the FOIA and the PA. 
If the records are required to be released under the FOIA, the PA does 
not bar its disclosure.
    (4) The guidelines in paragraph (c)(3) notwithstanding, the 
decision of the DON activity concerning reasonableness of description 
must be based on the knowledge of its files. If the description enables 
the DON activity personnel to locate the record with reasonable effort, 
the description is adequate. The fact that a FOIA request is broad or 
burdensome in its magnitude does not, in and of itself, entitle a DON 
activity to deny the request on the ground that it does not reasonably 
describe the records sought. The key factor is the ability of the staff 
to reasonably ascertain and locate which records are being requested.
    (d) Review request to determine if FOIA fees may be applicable. (1) 
FOIA fee issues shall be resolved before a DON activity begins 
processing a FOIA request.
    (2) FOIA fees shall be at the rates prescribed at subpart C of this 
part.
    (3) If fees are applicable, a requester shall be apprised of what 
category of requester he/she has been placed and provided a complete 
breakout of fees to include any and all information provided before 
fees are assessed (e.g., first two hours of search and first 100 pages 
of reproduction have been provided without charge.)
    (4) Forms DD 2086 (for FOIA requests) and 2086-1 (for FOIA requests 
for technical data) serve as an administrative record of all costs 
incurred to process a request; actual costs charged to a requester 
(i.e., search, review, and/or duplication and at what salary level and 
the actual time expended); and as input to the Annual FOIA Report. 
Requesters may request a copy of the applicable form to review the time 
and costs associated with the processing of a request.
    (5) Final response letters shall address whether or not fees are 
applicable or have been waived. A detailed explanation of FOIA fees is 
provided at subpart C of this part.
    (e) Control FOIA Request. Each FOIA request should be date stamped 
upon receipt; given a case number; and entered into a formal control 
system to track the request from receipt to response. Coordinators may 
wish to conspicuously stamp, label, and/or place the request into a 
brightly colored folder/cover sheet to ensure it receives immediate 
attention by the action officer.
    (f) Enter request into multitrack processing system. When a DON 
activity has a significant number of pending requests that prevents a 
response determination being made within 20 working days, the requests 
shall be processed in a multitrack processing system, based on the date 
of receipt, the amount of work and time involved in processing the 
requests, and whether the request qualifies for expedited processing.
    (1) DON activities may establish as many queues as they wish, 
however, at a minimum three processing tracks shall be established, all 
based on a first-in, first-out concept, and rank ordered by the date of 
receipt of the request: one track for simple requests, one track for 
complex requests, and one track for expedited processing. 
Determinations as to whether a request is simple or complex shall be 
made by each DON activity.
    (2) DON activities shall provide a requester whose request does not 
qualify for the fastest queue (except for expedited processing), an 
opportunity to limit in writing by hard copy, facsimile, or 
electronically the scope of the request in order to qualify for the 
fastest queue.
    (3) This multitrack processing system does not obviate the 
activity's responsibility to exercise due diligence in processing 
requests in the most expeditious manner possible.
    (4) Referred requests shall be processed according to the original 
date received by the initial activity and then placed in the 
appropriate queue.
    (5) Establish a separate queue for expedited processing. A separate 
queue shall be established for requests meeting the test for expedited 
processing. Expedited processing shall be granted to a requester after 
the requester requests such and demonstrates a compelling need for the 
information. Notice of the determination as to whether to grant 
expedited processing in response to a requester's compelling need shall 
be provided to the requester within 10 calendar days after receipt of 
the request in the office which will determine whether to grant 
expedited access. Once the determination has been made to grant 
expedited processing, DON activities shall process the request as soon 
as practicable. Actions by DON activities to initially deny or affirm 
the initial denial on appeal of a request for expedited processing, and 
failure to respond in a timely manner shall be subject to judicial 
review.
    (i) Compelling need means that the failure to obtain the records on 
an expedited basis could reasonably be expected to pose an imminent 
threat to the life or physical safety of an individual.
    (ii) Compelling need also means that the information is urgently 
needed by an individual primarily engaged in disseminating information 
in order to inform the public concerning actual or alleged Federal 
Government activity. An individual primarily engaged in disseminating 
information means a person whose primary activity involves publishing 
or otherwise disseminating information to the public. Representatives 
of the news media would normally qualify as individuals primarily 
engaged in disseminating information. Other persons must demonstrate 
that their primary activity involves publishing or otherwise 
disseminating information to the public.
    (iii) Urgently needed means that the information has a particular 
value that will be lost if not disseminated quickly. Ordinarily this 
means a breaking news story of general public interest. However, 
information of historical interest only, or information sought for 
litigation or commercial activities would not qualify, nor would a news 
media publication or broadcast deadline unrelated to the news breaking 
nature of the information.
    (iv) A demonstration of compelling need by a requester shall be 
made by a statement certified by the requester to be

[[Page 49856]]

true and correct to the best of his/her knowledge. This statement must 
accompany the request in order to be considered and responded to within 
the 10 calendar days required for decisions on expedited access.
    (v) Other reasons that merit expedited processing by DON activities 
are an imminent loss of substantial due process rights and humanitarian 
need. A demonstration of imminent loss of substantial due process 
rights shall be made by a statement certified by the requester to be 
true and correct to the best of his/her knowledge. Humanitarian need 
means that disclosing the information will promote the welfare and 
interests of mankind. A demonstration of humanitarian need shall also 
be made by a statement certified by the requester to be true and 
correct to the best of his/her knowledge. Both of these statements must 
accompany the request in order to be considered and responded to within 
the 10 calendar days required for decisions on expedited access. Once 
the decision has been made to expedite the request for either of these 
reasons, the request may be processed in the expedited processing queue 
behind those requests qualifying for compelling need.
    (6) These same procedures also apply to requests for expedited 
processing of administrative appeals.
    (g) Respond to request within FOIA time limits. Once an activity 
receives a ``perfected'' FOIA request, it shall inform the requester of 
its decision to grant or deny access to the requested records within 20 
working days. Activities are not necessarily required to release 
records within the 20 working days, but access to releasable records 
should be granted promptly thereafter and the requester apprised of 
when he/she may expect to receive a final response to his/her request. 
Naturally, interim releases of documents are encouraged if appropriate. 
Sample response letters are provided on the Navy FOIA website.
    (1) If a significant number of requests, or the complexity of the 
requests prevents a final response determination within the statutory 
time period, DON activities shall advise the requester of this fact, 
and explain how the request will be responded to within its multitrack 
processing system. A final response determination is notification to 
the requester that the records are released, or will be released by a 
certain date, or the records are denied under the appropriate FOIA 
exemption(s) or the records cannot be provided for one or more of the 
``other reasons'' (see Sec. 701.8(n)). Interim responses acknowledging 
receipt of the request, negotiations with the requester concerning the 
scope of the request, the response timeframe, and fee agreements are 
encouraged; however, such actions do not constitute a final response 
determination under FOIA.
    (2) Formal extension. In those instances where a DON activity 
cannot respond within the 20 working day time limit, the FOIA provides 
for extension of initial time limits for an additional 10 working days 
for three specific situations: the need to search for and collect 
records from separate offices; the need to examine a voluminous amount 
of records required by the request; and the need to consult with 
another agency or agency component. In such instances, naval activities 
shall apprise requesters in writing of their inability to respond 
within 20 working days and advise them of their right to appeal to the 
appellate authority.

    (Note to paragraph (g)(2): Formal extension letters require IDA 
signature.)

    (3) Informal extension. A recommended alternative to taking a 
formal extension is to call the requester and negotiate an informal 
extension of time with the requester. The advantages include the 
ability to agree on a mutually acceptable date to respond that exceeds 
a formal extension of an additional 10 working days, and the letter of 
confirmation does not require the signature of an IDA. Additionally, it 
does not impact on the additional days the appellate authority may take 
when responding to a FOIA appeal.
    (h) Conduct a search for responsive records. (1) Conduct a search 
for responsive records, keeping in mind a test for reasonableness 
(i.e., file disposition requirements set forth in SECNAVINST 5212.5D, 
``Navy and Marine Corps Records Disposal Manual''). This includes 
making a manual search for records as well as an electronic search for 
records. Do not assume that because a document is old, it does not 
exist. Rather, ensure that all possible avenues are considered before 
making a determination that no record could be found (i.e., such as 
determining if the record was transferred to a federal records center 
for holding).
    (2) Requesters can appeal ``adequacy of search.'' To preclude 
unnecessary appeals, you are encouraged to detail your response letter 
to reflect the search undertaken so the requester understands the 
process. It is particularly helpful to address the records disposal 
requirements set forth in SECNAVINST 5212.5D, ``Navy and Marine Corps 
Records Disposal Manual'' for the records being sought.
    (i) Review documents for release. Once documents have been located, 
the originator or activity having possession and control is responsible 
for reviewing them for release and coordinating with other activities/
agencies having an interest. The following procedures should be 
followed:
    (1) Sort documents by originator and make necessary referrals (see 
Sec. 701.9).
    (2) Documents for which the activity has possession and control 
should be reviewed for release. If the review official determines that 
all or part of the documents requested require denial, and the head of 
the activity is an IDA, he/she shall respond directly to the requester. 
If, however, the activity head is not an IDA, then the request, a copy 
of the responsive documents (unexcised), proposed redacted copy of the 
documents, and a detailed explanation regarding their release must be 
referred to the IDA for a final release determination and the requester 
shall be notified in writing of the transfer.
    (3) Documents for which the activity does not have possession and 
control, but has an interest, should be referred to the originator 
along with any recommendations regarding release (see Sec. 701.9).
    (j) Process non-responsive information in responsive documents. DON 
activities shall interpret FOIA requests liberally when determining 
which records are responsive to the requests, and may release non-
responsive information. However, should DON activities desire to 
withhold non-responsive information, the following steps shall be 
accomplished:
    (1) Consult with the requester, and ask if the requester views the 
information as responsive, and if not, seek the requester's concurrence 
to deletion of non-responsive information without a FOIA exemption. 
Reflect this concurrence in the response letter.
    (2) If the responsive record is unclassified and the requester does 
not agree to deletion of non-responsive information without a FOIA 
exemption, release all non-responsive and responsive information which 
is not exempt. For non-responsive information that is exempt, notify 
the requester that even if the information were determined responsive, 
it would likely be exempted (state the appropriate exemption(s).) 
Advise the requester of the right to request this information under a 
separate FOIA request. The separate request shall be placed in the same 
location within the processing queue as the original request.
    (3) If the responsive record is classified, and the requester does 
not agree to deletion of non-responsive

[[Page 49857]]

information without a FOIA exemption, release all unclassified 
responsive and non-responsive information which is not exempt. If the 
non-responsive information is exempt, follow the procedures provided. 
The classified, non-responsive information need not be reviewed for 
declassification at this point. Advise the requester than even if the 
classified information were determined responsive, it would likely be 
exempt under 5 U.S.C. 552 (b)(1) and other exemptions if appropriate. 
Advise the requester of the right to request this information under a 
separate FOIA request. The separate request shall be placed in the same 
location within the processing queue as the original request.
    (k) Withholding/excising information. (1) DON records may only be 
withheld if they qualify for exemption under one or more of the nine 
FOIA exemptions/three exclusions and it is determined that a 
foreseeable harm to an interest protected by those exemptions would 
result if the information is released. There are nine FOIA exemptions. 
See subpart D of this part for the scope of each exemption.
    (2) Although a FOIA exemption may apply, DON activities are 
encouraged to consider discretionary disclosures of information when an 
exemption permits such disclosure (see Sec. 701.5(f).)
    (3) Excising documents. The excision of information within a 
document should be made so that the requester can readily identify the 
amount of information being withheld and the reason for the 
withholding. Accordingly, ensure that any deletion of information is 
bracketed and all applicable exemptions listed. In those instances, 
where multiple pages of documents are determined to be exempt from 
disclosure in their entirety, indicate the number of pages being denied 
and the basis for the denial.
    (l) Reasonably segregable information. DON activities must release 
all ``reasonably segregable information'' when the meaning of these 
portions is not distorted by deletion of the denied portions, and when 
it reasonably can be assumed that a skillful and knowledgeable person 
could not reasonably reconstruct excised information. When a record is 
denied in whole, the response to the requester will specifically state 
that it is not reasonable to segregate portions of the record for 
release.
    (m) Making a discretionary disclosure. A discretionary disclosure 
to one requester may preclude the withholding of similar information 
under a FOIA exemption if subsequently requested by the same individual 
or someone else. The following suggested language should be included 
with the discretionary disclosure of any record that could be subject 
to withholding: ``The information you requested is subject to being 
withheld under section (b)(__) of the FOIA. The disclosure of this 
material to you by the DON is discretionary and does not constitute a 
waiver of our right to claim this exemption for similar records in the 
future.''
    (n) Other reasons. There are 10 reasons for not complying with a 
request for a record under FOIA:
    (1) No record. The DON activity conducts a reasonable search of 
files and fails to identify records responsive to the request.

    (Note to paragraph (n)(1): Requester must be advised that he/she 
may appeal the adequacy of search and provided appeal rights. 
Response letter does not require signature by IDA.)

    (2) Referral. The request is referred to another DoD/DON activity 
or to another executive branch agency for their action.

    (Note to paragraph (n)(2): Referral does not need to be signed 
by IDA.)

    (3) Request withdrawn. The requester withdraws request.

    (Note to paragraph (n)(3): Response letter does not require 
signature by IDA.)

    (4) Fee-related reason. Requester is unwilling to pay fees 
associated with the request; is past due in payment of fees from a 
previous request; or disagrees with the fee estimate.

    (Note to paragraph (n)(4): Requester must be advised that he/she 
may appeal the fee estimate. Response letter does not require 
signature by IDA.)

    (5) Records not reasonably described. A record has not been 
described with sufficient particularity to enable the DON activity to 
locate it by conducting a reasonable search.

    (Note to paragraph (n)(5): Response letter does not require 
signature by IDA.)

    (6) Not a proper FOIA request for some other reason. When the 
requester fails unreasonably to comply with procedural requirements, 
other than those fee-related issues described in paragraph (n)(4), 
imposed by the instruction in this part and/or other published rules or 
directives.

    (Note to paragraph (n)(6): Response letter does not require 
signature by IDA.)

    (7) Not an agency record. When the requester is provided a response 
indicating that the requested information was ``not an agency record'' 
within the meaning of the FOIA and the instruction in this part.

    (Note to paragraph (n)(7): Response letter does not require 
signature by IDA.)

    (8) Duplicate request. When a request is duplicative of another 
request which has already been completed or currently in process from 
the same requester.

    (Note to paragraph (n)(8): Response letter does not require 
signature by IDA.

    (9) Other (specify). When a FOIA request cannot be processed 
because the requester does not comply with published rules, other than 
for those reasons described in paragraphs (n) (1) through (8). DON 
activities must document the specific discrepancy.

    (Note to paragraph (n)(9): Response letter does not require 
signature by IDA.)

    (10) Denial of request. The record is denied in whole or in part in 
accordance with procedures set forth in 5 U.S.C. 552, DoD 5400.7-R, and 
the instruction in this part.

    (Note to paragraph (n)(10): The requester is advised that he/she 
may appeal the determination and response letter must be signed by 
IDA.)

    (o) Writing a response letter. FOIA response letters should contain 
the following information:
    (1) The date of the request; when it was received; if records were 
not located, where the search was conducted and what the records 
disposal requirements are for those records.
    (2) Cut-off dates. Normally, DON activities shall consider the date 
of receipt of a FOIA request as the cut-off date for a records search. 
Where a DON activity employs a particular cut-off date, however, it 
should give notice of that date in the response letter to the 
requester.
    (3) If a request is denied in whole or in part, the denial response 
letter should cite the exemption(s) claimed; if possible, delineate the 
kinds of information withheld (i.e., social security numbers, date of 
birth, home addresses, etc.) as this may satisfy the requester and thus 
eliminate an appeal; provide appeal rights, and be signed by an IDA. 
However, there is no requirement that the response contain the same 
documentation necessary for litigation (i.e., FOIA requesters are not 
entitled to a Vaughn index (see definition in Sec. 701.39 during the 
administrative process).
    (4) The fees charged or waived; if fees were charged, what category 
was the requester placed in and provide a breakout of the fees charged 
(i.e., the first 2 hours of search were waived and so you are being 
charged for the remaining 4 hours of search at $25 per hour, or $100; 
the first 100 pages of reproduction were waived and the remaining 400 
pages being provided

[[Page 49858]]

were charged at $.15 per page, resulting in $60 in reproduction fees, 
for a total of $160). These figures are derived from Form DD 2086 (FOIA 
Fees) or Form DD 2086-1 (Technical Data Fees).
    (5) Sample response letters are provided on the Navy FOIA website.
    (p) Press responses. Ensure responses being made to the press are 
cleared through public affairs channels.
    (q) Special mail services. DON activities are authorized to use 
registered mail, certified mail, certificates of mailing and return 
receipts. However, their use should be limited to instances where it 
appears advisable to establish proof of dispatch or receipt of FOIA 
correspondence.


Sec. 701.9  Referrals.

    (a) The DoD/DON FOIA referral policy is based upon the concept of 
the originator of a record making a release determination on its 
information. If a DON activity receives a request for records 
originated by another DoD/DON activity, it should contact the activity 
to determine if it also received the request, and if not, obtain 
concurrence to refer the request. In either situation, the requester 
shall be advised of the action taken, unless exempt information would 
be revealed.
    (b) While referrals to originators of information result in 
obtaining the best possible decision on release of the information, the 
policy does not relieve DON activities 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, 
DON activities should coordinate with the originator of the information 
prior to making a release determination.
    (c) A request received by a DON activity having no records 
responsive to a request shall be referred routinely to another DoD/DON 
activity, if the other activity has reason to believe it has the 
requested record. Prior to notifying a requester of a referral to 
another DoD/DON activity, the DON activity receiving the initial 
request shall consult with the other DoD/DON activity to determine if 
that activity's association with the material is exempt. If the 
association is exempt, the activity receiving the initial request will 
protect the association and any exempt information without revealing 
the identity of the protected activity. The protected activity shall be 
responsible for submitting the justifications required in any 
litigation.
    (d) Any DON activity receiving a request that has been misaddressed 
shall refer the request to the proper address and advise the requester. 
DON activities making referrals of requests or records shall include 
with the referral, a point of contact by name, a telephone number 
(commercial and DSN), and an e-mail address (if available).
    (e) A DON activity shall refer a FOIA request for a record that it 
holds but was originated by another Executive Branch agency, to them 
for a release determination and direct response to the requester. 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.
    (f) A DON activity may refer a request for a record that it 
originated to another activity or agency when the activity or agency 
has a valid interest in the record, or the record was created for the 
use of the other agency or activity. In such situations, provide the 
record and a release recommendation on the record with the referral 
action. DON activities should include a point of contact and telephone 
number in the referral letter. If that organization is to respond 
directly to the requester, apprise the requester of the referral.
    (g) Within the DON/DoD, a DON activity shall ordinarily refer a 
FOIA request and a copy of the record it holds, but that was originated 
by another DON/DoD activity or that contains substantial information 
obtained from that activity, to that activity for direct response, 
after direct coordination and obtaining concurrence from the activity. 
The requester shall be notified of such referral. In any case, DON 
activities shall not release or deny such records without prior 
consultation with the activity, except as provided in paragraph (c) of 
this section.
    (h) Activities receiving a referred request shall place it in the 
appropriate processing queue based on the date it was initially 
received by the referring activity/agency.
    (i) Agencies outside the DON that are subject to the FOIA. (1) A 
DON activity may refer a FOIA request for any record that originated in 
an agency outside the DON 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 DON activity must respond to the request.

    (Note: DON activities shall not refer documents originated by 
entities outside the Executive Branch of Government (e.g., Congress, 
State and local government agencies, police departments, private 
citizen correspondence, etc.), to them for action and direct 
response to the requester, since they are not subject to the FOIA).

    (2) A DON activity 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 DON 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 DON activity may only respond directly to the 
requester after coordination with the outside agency.


Sec. 701.10  Processing requests received from governmental officials.

    (a) Members of Congress. Many constituents seek access to 
information through their Member of Congress. Members of Congress who 
seek access to records on behalf of their constituent are provided the 
same information that the constituent would be entitled to receive. 
There is no need to verify that the individual has authorized the 
release of his/her record to the Congressional member, since the 
Privacy Act's ``blanket routine use'' for Congressional inquiries 
applies.
    (b) Privileged release to U.S. Government officials. DON records 
may be authenticated and released to U.S. Government officials if they 
are requesting them in their official capacity on behalf of Federal 
governmental bodies, whether legislative, executive, administrative, or 
judicial. To ensure adequate protection of these documents, DON 
activities shall inform officials receiving records under the 
provisions of this paragraph that those records are exempt from public 
release under FOIA. DON activities shall also mark the records as 
``Privileged'' and ``Exempt from Public Disclosure'' and annotate any 
special handling instructions on the records. Because such releases are 
not made under the provisions of the FOIA, they do not impact on future 
decisions to release/deny requests for the same records to other 
requesters. Examples of privileged releases are:
    (1) In response to a request from a Committee or Subcommittee of 
Congress, or to either House sitting as a whole.
    (2) To the Federal Courts, whenever ordered by officers of the 
court as necessary for the proper administration of justice.
    (3) To other Federal agencies, both executive and administrative, 
as determined by the head of a DON activity or designee.
    (c) State or local government officials. Requests from State or 
local government

[[Page 49859]]

officials for DON records are treated the same as any other requester.
    (d) Non-FOIA requests from foreign governments. Requests from 
foreign governments that do not invoke the FOIA shall be referred to 
the appropriate foreign disclosure channels and the requester so 
notified. See Sec. 701.11(c) regarding processing FOIA requests from 
foreign governments and/or their officials.


Sec. 701.11  Processing specific kinds of records.

    DON activities that possess copies or receive requests for the 
following kinds of records shall promptly forward the requests to the 
officials named in this section and if appropriate apprise the 
requester of the referral:
    (a) Classified records. Executive Order 12958 governs the 
classification of records.
    (1) Glomar response. In the instance where a DON activity receives 
a request for records whose existence or nonexistence is itself 
classifiable, the DON activity shall refuse to confirm or deny the 
existence or non-existence of the records. This response is only 
effective as long as it is given consistently. If it were to be known 
that an agency gave a ``Glomar'' response only when records do exist 
and gave a ``no records'' response otherwise, then the purpose of this 
approach would be defeated. A Glomar response is a denial and exemption 
(b)(1) is cited and appeal rights are provided to the requester.
    (2) Processing classified documents originated by another activity. 
DON activities shall refer the request and copies of the classified 
documents to the originating activity for processing. If the 
originating activity simply compiled the classified portions of the 
document from other sources, it shall refer, as necessary, those 
portions to the original classifying authority for their review and 
release determination and apprise that authority of any recommendations 
they have regarding release. If the classification authority for the 
information cannot be determined, then the originator of the compiled 
document has the responsibility for making the final determination. 
Records shall be identified consistent with security requirements. Only 
after consultation and approval from the originating activity, shall 
the requester be apprised of the referral. In most cases, the 
originating activity will make a determination and respond directly to 
the requester. In those instances where the originating activity 
determines a Glomar response is appropriate, the referring agency shall 
deny the request.
    (b) Courts-martial records of trial. The release/denial authority 
for these records is the Office of the Judge Advocate General (Code 
20), Washington Navy Yard, Building 111, Washington, DC 20374-1111. 
Promptly refer the request and/or documents to this activity and 
apprise the requester of the referral.
    (c) Foreign requests/information. (1) FOIA requests received from 
foreign governments/foreign government officials should be processed as 
follows:
    (i) When a DON activity receives a FOIA request for a record in 
which an affected DoD/DON activity has a substantial interest in the 
subject matter, or the DON activity receives a FOIA request from a 
foreign government, a foreign citizen, or an individual or entity with 
a foreign address, the DON activity receiving the request shall provide 
a copy of the request to the affected DON activity.
    (ii) Upon receiving the request, the affected activity shall review 
the request for host nation relations, coordinate with Department of 
State as appropriate, and if necessary, provide a copy of the request 
to the appropriate foreign disclosure office for review. Upon request 
by the affected activity, the DON activity receiving the initial 
request shall provide a copy of releasable records to the affected 
activity. The affected activity may further release the records to its 
host nation after coordination with Department of State if release is 
in the best interest of the United States Government. If the record is 
released to the host nation government, the affected DON activity shall 
notify the DON activity which initially received the request of the 
release to the host nation.
    (iii) Such processing must be done expeditiously so as not to 
impede the processing of the FOIA request by the DON activity that 
initially received the request.
    (2) Non-U.S. Government Records (i.e., records originated by 
multinational organizations such as the North Atlantic Treaty 
Organization (NATO), the North American Air Defense (NORAD) and foreign 
governments) which are under the possession and control of DON shall be 
coordinated prior to a final release determination being made. 
Coordination with foreign governments shall be made through the 
Department of State.
    (d) Government Accounting Office (GAO) documents. (1) On occasion, 
the DON receives FOIA requests for GAO documents containing DON 
information, either directly from requesters or as referrals from GAO. 
Since the GAO is outside of the Executive Branch and therefore not 
subject to FOIA, all FOIA requests for GAO documents containing DON 
information will be processed by the DON under the provisions of the 
FOIA.
    (2) In those instances when a requester seeks a copy of an 
unclassified GAO report, DON activities may apprise the requester of 
its availability from the Director, GAO Distribution Center, ATTN: 
DHISF, P.O. Box 6015, Gaithersburg, MD 20877-1450 under the cash sales 
program.
    (e) Judge Advocate General Manual (JAGMAN) investigative records. 
These records are no longer centrally processed. Accordingly, requests 
for investigations should be directed to the following officials:
    (1) JAGMAN Investigations conducted prior to 1 Jul 95--to the Judge 
Advocate General (Code 35), Washington Navy Yard, Suite 3000, 1322 
Patterson Avenue, SE, Washington, DC 20374-5066.
    (2) Command Investigation--to the command that conducted the 
investigation.
    (3) Litigation-Report Investigation--to the Judge Advocate General 
(Code 35), Washington Navy Yard, Suite 3000, 1322 Patterson Avenue, SE, 
Washington, DC 20374-5066.
    (4) Court or Board of Inquiry--to the Echelon 2 commander over the 
command that convened the investigation.
    (f) Mailing lists. Numerous FOIA requests are received for mailing 
lists of home addresses or duty addresses of DON personnel. Processing 
of such requests is as follows:
    (1) Home 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 (i.e., 
exemption (b)(6) applies).
    (2) Disclosure of lists of names and duty addresses or duty 
telephone numbers of persons assigned to units that are stationed in 
foreign territories, routinely deployable, or sensitive, has also been 
held by the courts to constitute a clearly unwarranted invasion of 
personal privacy and must be withheld from disclosure under 5 U.S.C. 
552(b)(6). General officers and public affairs officers information is 
releasable. Specifically, disclosure of such information poses a 
security threat to those service members because it reveals information 
about their degree of involvement in military actions in support of 
national policy, the type of Navy and/or Marine Corps units to which 
they are attached, and their presence or absence from households. 
Release of such information aids in the

[[Page 49860]]

targeting of service members and their families by terrorists or other 
persons opposed to implementation of national policy. Only an 
extraordinary public interest in disclosure of this information can 
outweigh the need and responsibility of the DON to protect the 
tranquility and safety of service members and their families who 
repeatedly have been subjected to harassment, threats, and physical 
injury. Units covered by this policy are:
    (i) Those located outside of the 50 States, District of Columbia, 
Commonwealth of Puerto Rico, Guam, U.S. Virgin Islands, and American 
Samoa.
    (ii) Routinely deployable units--Those units that normally deploy 
from homeport or permanent station on a periodic or rotating basis to 
meet operational requirements or participate in scheduled exercises. 
This includes routinely deployable ships, aviation squadrons, 
operational staffs, and all units of the Fleet Marine Force (FMF). 
Routinely deployable units do not include ships undergoing extensive 
yard work or those whose primary mission is support of training, e.g., 
yard craft and auxiliary aircraft landing training ships.
    (iii) Units engaged in sensitive operations. Those primarily 
involved in training for or conduct of covert, clandestine, or 
classified missions, including units primarily involved in collecting, 
handling, disposing, or storing of classified information and 
materials. This also includes units engaged in training or advising 
foreign personnel. Examples of units covered by this exemption are 
nuclear power training facilities, SEAL Teams, Security Group Commands, 
Weapons Stations, and Communications Stations.
    (3) Except as otherwise provided, lists containing names and duty 
addresses of DON personnel, both military and civilian, who are 
assigned to units in the Continental United States (CONUS) and U.S. 
territories shall be released regardless of who has initiated the 
request.
    (4) Exceptions to this policy must be coordinated with CNO (N09B30) 
or CMC (ARAD) prior to responding to requests, including those from 
Members of Congress. The policy in paragraphs (f) (1) through (3) 
should be considered when weighing the releasability of the address or 
telephone number of a specifically named individual.
    (5) DON activities are reminded that e-mail addresses that identify 
an individual who is routinely deployable, overseas, or assigned to a 
sensitive unit should not be made available. Additionally, 
organizational charts for these kinds of units and activities that 
identify specific members should not be placed on the Internet.
    (g) Medical quality assurance documents. The Chief, Bureau of 
Medicine and Surgery (BUMED) is the release/denial authority for all 
naval medical quality assurance documents as defined by Title 10, 
United States Code, Section 1102. Requests for medical quality 
assurance documents shall be promptly referred to BUMED and the 
requester notified of the referral.
    (h) Mishap investigation reports (MIRs). The Commander, Naval 
Safety Center (NAVSAFECEN) is the release/denial authority for all 
requests for mishap investigations or documents which contain mishap 
information. All requests or documents located which apply shall be 
promptly referred to the Commander, Naval Safety Center, Code 503, 375 
A Street, Norfolk, VA 23511-4399 for action. Telephonic liaison with 
NAVSAFECEN is encouraged. The requester shall be notified of the 
referral.
    (i) National Security Council (NSC)/White House. (1) DON activities 
that receive requests for records of NSC, the White House, or the White 
House/Military Office (WHMO) shall process the requests.
    (2) DON records in which the NSC or the White House has a 
concurrent reviewing interest, and NSC, White House, or WHMO records 
discovered in DON activity files, shall be forwarded to CNO (N09B30), 
2000 Navy Pentagon, Washington, DC 20350-2000. N09B30, in turn, will 
coordinate the request directly with DFOISR, so DFOISR can coordinate 
the request with NSC, White House, or WHMO. After coordination, the 
records will be returned to the DON activity for their direct response 
to the requester. During the interim, DON activities should notify the 
requester that they are coordinating their request and a response will 
therefore be delayed.
    (j) Naval attache documents/information. The Director, Defense 
Intelligence Agency (DIA) has the responsibility for reviewing for 
release/denial any naval attache-originated documents/information. 
Accordingly, FOIA requests for naval attache documents or copies of the 
documents located in DON files or referred in error to a DON activity 
shall be promptly referred to the Chief, Freedom of Information Act 
Staff, Defense Intelligence Agency (SVI-1), Washington, DC 20340-5100 
for action and direct response to the requester. Ensure that the 
requester is notified in writing of the transfer to DIA.
    (k) Naval Audit Service reports. The Director, Naval Audit Service 
is the release/denial authority for their reports. All requests or 
documents located which apply shall be promptly referred to the 
Director, Naval Audit Service, 5611 Columbia Pike, NASSIF Building, 
Falls Church, VA 22041-5080 for action. The requester shall be notified 
of the referral.
    (l) Naval Criminal Investigative Service (NCIS) reports. The 
Director, NCIS is the release/denial authority for all NCIS reports/
information. All requests for and copies of NCIS reports located in DON 
activity files shall be promptly referred to the Director, NCIS (Code 
OOJF), Washington Navy Yard, Building 111, 716 Sicard Street, SE, 
Washington, DC 20388-5380 for action and, if appropriate, the requester 
so notified. Telephonic liaison with NCIS Headquarters is strongly 
encouraged.
    (m) Naval Inspector General (NAVINSGEN) reports. (1) NAVINSGEN is 
the release/denial authority for all investigations and inspections 
conducted by or at the direction of NAVINSGEN and for any records held 
by any command that relate to Navy hotline complaints that have been 
referred to the NAVINSGEN. Accordingly, such actions shall be promptly 
referred to the Naval Inspector General (Code OOL), Building 200, Room 
100, Washington Navy Yard, 901 M Street, SE, Washington, DC 20374-5006 
for action and, if appropriate, the requester so notified.
    (2) Requests for local command inspector general reports which have 
not been referred to NAVINSGEN should be processed by the command that 
conducted the investigation and NAVINSGEN advised as necessary.
    (3) The Deputy Naval Inspector General for Marine Corps Matters 
(DNIGMC) is the release/denial authority for all investigations 
conducted by the DNIGMC. Requests for local Marine Corps command 
Inspector General reports shall be coordinated with the DNIGMC.
    (n) Naval Nuclear Propulsion Information (NNPI). The Director, 
Naval Nuclear Propulsion Program (CNO (NOONB)/NAVSEA (08)) is the 
release/denial authority for all information and requests concerning 
NNPI. Naval activities receiving such requests are responsible for 
searching their files for responsive records. If no documents are 
located, the naval activity shall respond to the requester and provide 
CNO (NOONB) with a copy of the request and response. If documents are 
located, the naval activity shall refer the request, responsive 
documents, and a recommendation regarding release to the Director, 
Naval Nuclear Propulsion Program (NOONB), 2000 Navy

[[Page 49861]]

Pentagon, Washington, DC 20350-2000, who will make the final release 
determination to the requester, after coordinating the release through 
DoD activities.
    (o) Naval Telecommunications Procedures (NTP) publications. The 
Commander, Naval Computer and Telecommunications Command is the 
release/denial authority for NTP publications. All requests or 
documents located which apply shall be promptly referred to the 
Commander, Naval Computer and Telecommunications Command (Code NOOJ), 
4401 Massachusetts Avenue, NW, Washington, DC 20394-5460 for action and 
direct response to the requester.
    (p) News media requests. (1) Respond promptly to requests received 
from news media representatives through public information channels, if 
the information is releasable under FOIA. This eliminates the 
requirement to invoke FOIA and may result in timely information being 
made available to the public.
    (2) In those instances where records/information are not 
releasable, either in whole or in part, or are not currently available 
for a release consideration, Public Affairs Officers shall promptly 
advise the requester of where and how to submit a FOIA request.
    (3) DON activities receiving and processing requests from members 
of the press shall ensure that responses are cleared through their 
public affairs channels.
    (q) Records originated by other government agencies. (1) A DON 
activity may refer a FOIA request for any record that originated in an 
agency outside the DON or that is based on information obtained from an 
outside agency to the cognizant agency for direct response to the 
requester after coordination with the outside agency, if that agency is 
subject to FOIA. Otherwise, the DON activity must respond to the 
request.
    (2) A DON activity 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 DON 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 DON activity may only respond directly to the 
requester after coordination with the outside agency.
    (r) Submitter documents. (1) When a request is received for a 
record containing confidential commercial information that was 
submitted to the Government, the requirements of Executive Order 12600 
shall apply. Specifically, the submitter shall be notified of the 
request (telephonically, by letter, or by facsimile) and afforded a 
reasonable amount of time (anywhere from 2 weeks to a month depending 
on the circumstances) to present any objections concerning release, 
unless it is clear there can be no valid basis for objection. For 
example, the record was provided with actual or presumptive knowledge 
of the submitter that it would be made available to the public upon 
request.
    (2) The DON activity will evaluate any objections and negotiate 
with the submitter as necessary. When a substantial issue has been 
raised, the DON activity may seek additional information from the 
submitter and afford the submitter and requester reasonable 
opportunities to present their arguments in legal and substantive 
issues prior to making an agency determination.
    (3) The final decision to disclose information claimed to be exempt 
under exemption (b)(4) shall be made by an official at least equivalent 
in rank to the IDA and the submitter advised that he or she may seek a 
restraining order or take court action to prevent the release. The 
submitter is given 10 days to take action.
    (4) Should the submitter take such action, the requester will be 
notified and no action will be taken on the request until the outcome 
of the court action is known.
    (s) Technical Documents Controlled by Distribution Statements B, C, 
D, E, F, or X shall be referred to the controlling DoD office for 
review and release determination.


Sec. 701.12.  FOIA appeals/litigation.

    (a) Appellate authorities. SECNAV has delegated his appellate 
authority to the JAG and the DONGC to act on matters under their 
cognizance. Their responsibilities include adjudicating appeals made to 
SECNAV on: denials of requests for copies of DON records or portions 
thereof; disapproval of a fee category claim by a requester; 
disapproval of a request to waive or reduce fees; disputes regarding 
fee estimates; reviewing determinations not to grant expedited access 
to agency records, and reviewing ``no record'' determinations when the 
requester considers such responses adverse in nature. They have the 
authority to release or withhold records, or portions thereof; to waive 
or reduce fees; and to act as required by SECNAV for appeals under 5 
U.S.C. 552 and this instruction. The JAG has further delegated this 
appellate authority to the Assistant Judge Advocate General (Civil 
Law). The DONGC has further delegated this appellate authority to the 
Principal Deputy General Counsel, the Deputy General Counsel, and the 
Associate General Counsel (Management).
    (1) In their capacity, appellate authorities will serve as 
principal points of contact on DON FOIA appeals and litigation; receive 
and track FOIA appeals and ensure responses are made in compliance with 
5 U.S.C. 552, DoD 5400.7 and 5400.7-R, and the instruction in this 
part; complete responsive portions of the Annual FOIA Report that 
addresses actions on appeals and litigation costs during the fiscal 
year and submit to CNO (N09B30); provide CNO (N09B30) with a copy of 
all appeal determinations as they are issued; and keep CNO (N09B30) 
informed in writing of all FOIA lawsuits as they are filed against the 
DON. Appellate authorities shall facsimile a copy of the complaint to 
CNO (N09B30) for review and provide updates to CNO (N09B30) to review 
and disseminate to DFOISR.
    (2) OGC's cognizance: Legal advice and services to SECNAV and the 
Civilian Executive Assistants on all matters affecting DON; legal 
services in subordinate commands, organizations, and activities in the 
areas of business and commercial law, real and personal property law, 
intellectual property law, fiscal law, civilian personnel and labor 
law, environmental law, and in coordination with the JAG, such other 
legal services as may be required to support the mission of the Navy 
and the Marine Corps, or the discharge of the General Counsel's 
responsibilities; and conducting litigation involving the areas 
enumerated above and oversight of all litigation affecting the DON.
    (3) JAG's cognizance: In addition to military law, all matters 
except those falling under the cognizance of the DONGC.
    (b) Appellants may file an appeal if they have been denied 
information in whole or in part; have been denied a waiver or reduction 
of fees; have been denied/have not received a response within 20 
working days; or received a ``no record'' response or wish to challenge 
the ``adequacy of a search'' that was made. Appeal procedures also 
apply to the disapproval of a fee category claim by a requester, 
disputes regarding fee estimates, review of an expedited basis 
determination not to grant expedited access to agency records, or any 
determination found to be adverse in nature by the requester.
    (c) Action by the appellate authority. (1) Upon receipt, JAG (34) 
or Assistant to the General Counsel (FOIA) will

[[Page 49862]]

promptly notify the IDA of the appeal. In turn, the IDA will provide 
the appellate authority with the following documents so that a 
determination can be made: a copy of the request, responsive documents 
both excised and unexcised, a copy of the denial letter, and supporting 
rationale for continued withholding. IDAs shall respond to the 
appellate authority within 10 working days.
    (2) Final determinations on appeals normally shall be made within 
20 working days after receipt. When the appellate authority 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.
    (3) If the appeal is received by the wrong appellate authority, the 
time limits do not take effect until it is received by the right one. 
If, however, the time limit for responding cannot be met, the appellate 
authority shall advise the appellant that he/she may consider his/her 
administrative remedies exhausted. However, he/she may await a 
substantive response without prejudicing his/her right of judicial 
remedy. Nonetheless, the appellate authority will continue to process 
the case expeditiously, whether or not the appellant seeks a court 
order for release of records. In such cases, a copy of the response 
will be provided to the Department of Justice (DOJ).
    (d) Addresses for filing appeals. (1) General Counsel of the Navy, 
720 Kennon Street, SE, Room 214, Washington Navy Yard, Washington, DC 
20374-5012, or
    (2) Judge Advocate General, Washington Navy Yard, 1322 Patterson 
Avenue, SE, Suite 3000, Washington, DC 20374-5066.
    (e) Appeal letter requirements. The appellant shall file a written 
appeal with the cognizant appellate authority (i.e., DONGC or JAG). The 
appeal should include a copy of the DON response letter and supporting 
rationale on why the appeal should be granted.
    (f) Consultation/coordination. (1) The Special Assistant for Naval 
Investigative Matters and Security (CNO (N09N)) may be consulted to 
resolve inconsistencies or disputes involving classified records.
    (2) Direct liaison with officials within DON and other interested 
Federal agencies is authorized at the discretion of the appellate 
authority, who also coordinates with appropriate DoD and DOJ officials.
    (3) SECNAV, appropriate Assistant or Deputy Assistant Secretaries, 
and CNO (N09B30) shall be consulted and kept advised of cases with 
unusual implications. CHINFO shall be consulted and kept advised on 
cases involving public affairs implications.
    (4) Final refusal involving issues not previously resolved or that 
the DON appellate authority knows to be inconsistent with rulings of 
other DoD components ordinarily should not be made before consultation 
with the DoD Office of General Counsel (OGC).
    (5) Tentative decisions to deny records that raise new and 
significant legal issues of potential significance to other agencies of 
the Government shall be provided to the DoD OGC.
    (g) Copies of final appeal determinations. Appellate authorities 
shall provide copies of final appeal determinations to the activity 
affected and to CNO (N09B30) as appeals are decided.
    (h) Denying an appeal. The appellate authority must render his/her 
decision in writing with a full explanation as to why the appeal is 
being denied along with a detailed explanation of the basis for refusal 
with regard to the applicable statutory exemption(s) invoked. With 
regard to denials involving classified information, the final refusal 
should explain that a declassification review was undertaken and based 
on the governing Executive Order and implementing security 
classification guides (identify the guides), the information cannot be 
released and that information being denied does not contain meaningful 
portions that are reasonably segregable. In all instances, the final 
denial letter shall contain the name and position title of the official 
responsible for the denial and advise the requester of the right to 
seek judicial review.
    (i) Granting an appeal. The appellate authority must render his/her 
decision in writing. When an appellate authority makes a determination 
to release all or a portion of records withheld by an IDA, a copy of 
the releasable records should be promptly forwarded to the requester 
after compliance with any procedural requirements, such as payment of 
fees.
    (j) Processing appeals made under PA and FOIA. When denials have 
been made under the provisions of PA and FOIA, and the denied 
information is contained in a PA system of records, the appeal shall be 
processed under both PA and FOIA. If the denied information is not 
maintained in a PA system of records, the appeal shall be processed 
under FOIA.
    (k) Response letters. (1) When an appellate authority makes a final 
determination to release all or 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 the provisions of the FOIA, and with respect 
to other issues appealed for which an adverse determination was made.
    (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 (b)(3) statute, 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.
    (l) Time limits/requirements. (1) A FOIA appeal has been received 
by a DON activity when it reaches the appellate authority having 
jurisdiction. Misdirected appeals should be referred expeditiously to 
the proper appellate authority.
    (2) 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 the 60 day period, the case may be considered 
closed. However, exceptions may be considered on a case-by-case basis.
    (3) In cases where the requester is provided several incremental 
determinations for a single request, the

[[Page 49863]]

time for the appeal shall not begin until the date of the final 
response. Requests and responsive records that are denied shall be 
retained for a period of 6 years to meet the statute of limitations 
requirement.
    (4) Final determinations on appeals normally shall be made within 
20 working days after receipt. When a DON appellate authority 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. 701.8(f)).
    (5) If additional time is needed due to unusual circumstances, 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.
    (6) 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, they may consider their administrative 
remedies exhausted. They may, however, without prejudicing their right 
of judicial remedy, await a substantive response. The appellate 
authority shall continue to process the case expeditiously.
    (m) FOIA litigation. The appellate authority is responsible for 
providing CNO (N09B30) with a copy of any FOIA litigation filed against 
the DON and any subsequent status of the case. CNO (N09B30) will, in 
turn, forward a copy of the complaint to DFOISR for their review.

Subpart B--FOIA Definitions and Terms


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

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


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

    Section (a)(2) of the FOIA requires that certain materials 
routinely be made available for public inspection and copying. The 
(a)(2) materials are commonly referred to as ``reading room'' materials 
and are required to be indexed to facilitate public inspection. (a)(2) 
materials consist of:
    (a) 5 U.S.C. 552(a)(2)(A) records. Final opinions, including 
concurring and dissenting opinions, and orders made in the adjudication 
of cases, as defined in 5 U.S.C. 551, that may be cited, used, or 
relied upon as precedents in future adjudications.
    (b) 5 U.S.C. 552(a)(2)(B) records. Statements of policy and 
interpretations that have been adopted by the agency and are not 
published in the Federal Register.
    (c) 5 U.S.C. 552(a)(2)(C) records. Administrative staff manuals and 
instructions, or portions thereof, that establish DON policy or 
interpretations of policy that affect a member of the public. This 
provision does not apply to instructions for employees on tactics and 
techniques to be used in performing their duties, or to instructions 
relating only to the internal management of the DON activity. Examples 
of manuals and instructions not normally made available are:
    (1) Those issued for audit, investigation, and inspection purposes, 
or those that prescribe operational tactics, standards of performance, 
or criteria for defense, prosecution, or settlement of cases.
    (2) Operations and maintenance manuals and technical information 
concerning munitions, equipment, systems, and foreign intelligence 
operations.
    (d) 5 U.S.C. 552(a)(2)(D) records. Those (a)(2) records, which 
because of the nature of the subject matter, have become or are likely 
to become the subject of subsequent requests for substantially the same 
records. These records are referred to as FOIA-processed (a)(2) 
records. DON activities shall decide on a case-by-case basis whether 
records fall into this category based on the following factors: 
previous experience of the DON activity with similar records; 
particular circumstances of the records involved, including their 
nature and the type of information contained in them; and/or the 
identity and number of requesters and whether there is widespread 
press, historic, or commercial interest in the records.
    (1) This provision is intended for situations where public access 
in a timely manner is important and it is not intended to apply where 
there may be a limited number of requests over a short period of time 
from a few requesters. DON activities may remove the records from this 
access medium when the appropriate officials determine that access is 
no longer necessary.
    (2) Should a requester submit a FOIA request for FOIA-processed 
(a)(2) records and insist that the request be processed under FOIA, DON 
activities shall process the FOIA request. However, DON activities have 
no obligation to process a FOIA request for (a)(2)(A), (B) and (C) 
records because these records are required to be made public and not 
FOIA-processed under paragraph (a)(3) of the FOIA.
    (e) However, agency records that are withheld under FOIA from 
public disclosure, based on one or more of the FOIA exemptions, do not 
qualify as (a)(2) materials and need not be published in the Federal 
Register or made available in a library reading room.


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

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


Sec. 701.16  Administrative appeal.

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


Sec. 701.17  Affirmative information disclosure.

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


Sec. 701.18  Agency record.

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

[[Page 49864]]

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


Sec. 701.19  Appellate authority.

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


Sec. 701.20  Discretionary disclosure.

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


Sec. 701.21  Electronic record.

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


Sec. 701.22  Exclusions.

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


Sec. 701.23  Executive Order 12958.

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


Sec. 701.24  Federal agency.

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


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

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

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


Sec. 701.26  FOIA exemptions.

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


Sec. 701.27  FOIA fee terms location.

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


Sec. 701.28  FOIA request.

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


Sec. 701.29  Glomar response.

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


Sec. 701.30  Initial Denial Authority (IDA).

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


Sec. 701.31  Mosaic or compilation response.

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


Sec. 701.32  Perfected request.

    A request which meets the minimum requirements of the FOIA to be 
processed and is received by the DON

[[Page 49865]]

activity having possession and control over the documents/information.


Sec. 701.33  Public domain.

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


Sec. 701.34  Public interest.

    The interest in obtaining official information that sheds light on 
a DON activity's performance of its statutory duties because the 
information falls within the statutory purpose of the FOIA to inform 
citizens what their government is doing. That statutory purpose, 
however, is not fostered by disclosure of information about private 
citizens accumulated in various governmental files that reveals nothing 
about an agency's or official's own conduct.


Sec. 701.35  Reading room.

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


Sec. 701.36  Release authorities.

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


Sec. 701.37  Reverse FOIA.

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


Sec. 701.38  Technical data.

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


Sec. 701.39  Vaughn index.

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

Subpart C--FOIA Fees


Sec. 701.40  Background.

    (a) The DON follows the uniform fee schedule developed by DoD and 
established to conform with the Office of Management and Budget's 
(OMB's) Uniform Freedom of Information Act Fee Schedule and Guidelines.
    (b) Fees 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, which does not supersede the 
collection of fees under the FOIA.
    (c) FOIA fees do not supersede fees chargeable under a statute 
specifically providing for setting the level of fees for particular 
types of records. For example, 5 U.S.C. 552 (a)(4)(A)(vi) enables a 
Government agency such as the Government Printing Office (GPO) or the 
National Technical Information Service (NTIS), to set and collect fees. 
DON activities 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 GPO or NTIS, 
they inform requesters of the steps necessary to obtain records from 
those sources.


Sec. 701.41  FOIA fee terms.

    (a) Direct costs means those expenditures a DON activity 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 in 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.
    (b) 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 activity'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 DON activity 
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 activity personnel with the object of 
reformulating the request to meet his or her needs at a lower cost.
    (c) 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. DON activities 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.
    (d) Search refers to 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. DON activities should ensure 
that searches are done in the most efficient and least expensive manner 
so as to minimize costs for both the activity and the requester. For 
example, activities 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.
    (1) DON activities may charge for time spent searching for records, 
even if that

[[Page 49866]]

search fails to locate records responsive to the request.
    (2) DON activities may also charge search and review (in the case 
of commercial requesters) time if records located are determined to be 
exempt from disclosure.
    (3) In practice, if the DON activity 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 
activity personnel with the object of reformulating the request to meet 
his or her needs at a lower cost.


Sec. 701.42  Categories of requesters--applicable fees.

    (a) Commercial requesters 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, DON activities must determine the 
use to which a requester will put the documents requested. More over, 
where an activity 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, it should seek additional clarification before 
assigning the request to a specific category.
    (1) Fees shall be limited to reasonable standard charges for 
document search, review and duplication when records are requested for 
commercial use. Requesters must reasonably describe the records sought.
    (2) When DON activities receive a request for documents for 
commercial use, they should assess charges which recover the full 
direct costs of searching for, reviewing for release, and duplicating 
the records sought. Commercial requesters (unlike other requesters) are 
not entitled to 2 hours of free search time, nor 100 free pages of 
reproduction of documents. Moreover, commercial requesters are not 
normally entitled to a waiver or reduction of fees based upon an 
assertion that disclosure would be in the public interest. However, 
because use is the exclusive determining criteria, it is possible to 
envision a commercial enterprise making a request that is not for 
commercial use. It is also possible that a non-profit organization 
could make a request that is for commercial use. Such situations must 
be addressed on a case-by-case basis.
    (b) 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.
    (1) 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.
    (2) 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 research.
    (3) Fees shall be waived or reduced in the public interest if 
criteria of Sec. 701.58 have been met.
    (c) Non-commercial Scientific Institution refers to an institution 
that is not operated on a ``commercial'' basis 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.
    (1) Fees shall be limited to only reasonable standard charges for 
document duplication (excluding the first 100 pages) when the request 
is made by a non-commercial scientific institution whose purpose is 
scientific research. Requesters must reasonably describe the records 
sought.
    (2) 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 or scientific 
research.
    (d) Representative of the news media. (1) 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 DON activities may also look to the past 
publication record of a requester in making this determination.
    (2) To be eligible for inclusion in this category, a requester must 
meet the criteria established in paragraph (d)(1), 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).
    (3) 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.
    (4) 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. Fees shall be waived or 
reduced if the fee waiver criteria have been met.
    (e) All other requesters. DON activities shall charge requesters 
who do not fit into any of the categories described in paragraph (a) 
through (d) fees which recover the full direct cost of searching for 
and duplicating records, except that the first 2 hours of search time 
and the first 100 pages of duplication shall be furnished without 
charge. Requesters must reasonably describe the records sought. 
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. DON activities 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.

[[Page 49867]]

Sec. 701.43  Fee declarations.

    Requesters should submit a fee declaration appropriate for the 
categories in paragraphs (a) through (c) of this section, if fees are 
expected to exceed the minimum fee threshold of $15.00.
    (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 2 hours of search 
effort or 100 pages of records are desired.
    (d) If the conditions in paragraphs (a) through (c) are not met, 
then the request need not be processed and the requester shall be so 
informed.


Sec. 701.44  Restrictions.

    (a) No fees may be charged by any DON activity 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, activities shall provide the first 2 
hours of search time, and the first 100 pages of duplication without 
charge. For example, for a request (other than one from a commercial 
requester) that involved 2 hours and 10 minutes of search time, and 
resulted in 105 pages of documents, an activity would determine the 
cost of only 10 minutes of search time, and only five pages of 
reproduction. If this processing cost was equal to, or less than, the 
cost to the activity for billing the requester and processing the fee 
collected, no charges would result.
    (b) Requesters receiving the first 2 hours of search and the first 
100 pages of duplication without charge are entitled to such only once 
per request. Consequently, if a DON activity, after completing its 
portion of a request, finds it necessary to refer the request to a 
subordinate office, another DON activity, or another Federal agency to 
action their portion of the request, the referring activity shall 
inform the recipient of the referral of the expended amount of search 
time and duplication cost to date.
    (c) The elements to be considered in determining the ``cost of 
collecting a fee'' are the administrative costs to the DON activity of 
receiving and recording a remittance, and processing the fee for 
deposit in the Department of Treasury's special account. The cost to 
the Department of Treasury to handle such remittance is negligible and 
shall not be considered in activity determinations.
    (d) For the purposes of the restrictions in this section, 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.
    (e) In the case of computer searches, the first 2 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 (2 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.


Sec. 701.45  Fee assessment.

    (a) 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.
    (b) In order to be as responsive as possible to FOIA requests while 
minimizing unwarranted costs to the taxpayer, DON activities shall 
analyze each request to determine the category of the requester. If the 
activity's determination regarding the category of the requester is 
different than that claimed by the requester, the activity shall:
    (1) 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 DON activity shall render a final category 
determination, and notify the requester of such determination, to 
include normal administrative appeal rights of the determination.
    (2) 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 activity.
    (c) Estimate of fees. DON activities 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 activities, 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 the activity's 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.
    (d) Advance payment of fees. DON activities may not require advance 
payment of any fee (i.e., before work is commenced or continued on a 
request) unless the requester has failed to pay fees in a timely 
fashion (i.e., 30 calendar days from the date of the assessed billing 
in writing), or the activity has determined that the fee will exceed 
$250.00.
    (e) When a DON activity estimates or determines that allowable 
charges that a requester may be required to pay are likely to exceed 
$250.00, the activity 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 
payment history.
    (f) 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 DON activity 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 DON activity begins to process a new or 
pending request from the requester. Interest will be at the rate 
prescribed by 31 U.S.C. 3737 and confirmed with respective finance and 
accounting offices.
    (g) After all the work is completed on a request, and the documents 
are ready for release, DON activities may require payment before 
forwarding the documents, particularly for those requesters who have no 
payment history, or for those requesters who have failed to previously 
pay a fee in a timely fashion (i.e., within 30 calendar days from the 
date of the billing).
    (h) DON activities may charge for time spent searching for records, 
even if that search fails to locate records responsive

[[Page 49868]]

to the request. DON activities may also charge search and review (in 
the case of commercial requesters) time if records located are 
determined to be exempt from disclosure. In practice, if the DON 
activity 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 activity personnel with the object of 
reformulating the request to meet his or her needs at a lower cost.


Sec. 701.46  Aggregating requests.

    Except for requests that are for a commercial use, a DON activity 
may not charge for the first 2 hours of search time or for the first 
100 pages of reproduction. However, a requester may not file multiple 
requests at the same time, each seeking portions of a document or 
documents, solely in order to avoid payment of fees. When an activity 
reasonably believes that a requester or, on rare occasions, a group of 
requesters acting in concert, is attempting to break a request down 
into a series of requests for the purpose of avoiding the assessment of 
fees, the activity 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 activities should have 
a solid basis for determining that aggregation is warranted in such 
cases. DON activities 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 an activity 
aggregate multiple requests on unrelated subjects.


Sec. 701.47  FOIA fees must be addressed in response letters.

    DON activities shall ensure that requesters receive a complete 
breakout of all fees which are charged and apprised of the ``Category'' 
in which they have been placed. For example: ``We are treating you as 
an 'All Other Requester.' As such, you are entitled to 2 free hours of 
search and 100 pages of reproduction, prior to any fees being assessed. 
We have expended an additional 2 hours of search at $25.00 per hour and 
an additional 100 pages of reproduction, for a total fee of $65.00.''


Sec. 701.48  Fee waivers.

    Documents shall be furnished without charge, or at a charge reduced 
below fees assessed to the categories of requesters, when the DON 
activity 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 DON/DoD and is not primarily in the commercial 
interest of the requester. When assessable costs for a FOIA request 
total $15.00 or less, fees shall be waived automatically for all 
requesters, regardless of category. 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:
    (a) 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.''
    (b) The subject of the request. DON activities 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 DON/DoD. Requests for records in the possession of 
the DON 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 DON/DoD. 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 DON/DoD 
activity. Similarly, disclosures of records of considerable age may or 
may not bear directly on the current activities of the DON/DoD, 
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 
DON/DoD, 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 DON/DoD.
    (c) The informative value of the information to be disclosed. This 
factor requires a close analysis of the substantive contents of a 
record, or portion of the record, to determine whether disclosure is 
meaningful, and shall inform the public on the operations or activities 
of the DON. While the subject of a request may contain information that 
concerns operations or activities of the DON, 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 DON 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 DON.
    (d) 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.
    (e) The significance of the contribution to public understanding. 
In applying this factor, DON activities must differentiate the relative 
significance or impact of the disclosure against the current level of 
public knowledge, or understanding which exists before the disclosure. 
In other words, will disclosure on a current subject of wide public 
interest be unique in contributing previously unknown facts, thereby 
enhancing public knowledge, or will it basically duplicate what is 
already known by the

[[Page 49869]]

general public? A decision regarding significance requires objective 
judgment, rather than subjective determination, and must be applied 
carefully to determine whether disclosure will likely lead to a 
significant public understanding of the issue. DON activities shall not 
make value judgments as to whether the information is important enough 
to be made public.
    (f) Disclosure of the information ``is not primarily in the 
commercial interest of the requester.''
    (1) The existence and magnitude of a commercial interest. If the 
request is determined to be of a commercial interest, DON activities 
should address the magnitude of that interest to determine if the 
requester's commercial interest is primary, as opposed to any secondary 
personal or non-commercial interest. In addition to profit-making 
organizations, individual persons or other organizations may have a 
commercial interest in obtaining certain records. Where it is difficult 
to determine whether the requester is of a commercial nature, DON 
activities may draw inference from the requester's identity and 
circumstances of the request. Activities are reminded that in order to 
apply the commercial standards of the FOIA, the requester's commercial 
benefit must clearly override any personal or non-profit interest.
    (2) The primary interest in disclosure. Once a requester's 
commercial interest has been determined, DON activities 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.
    (g) The factors and examples used in this section 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, DON activities should rule in favor of the requester.
    (h) The following additional circumstances describe situations 
where waiver or reduction of fees are most likely to be warranted:
    (1) A record is voluntarily created to prevent an otherwise 
burdensome effort to provide voluminous amounts of available records, 
including additional information not requested.
    (2) 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).


Sec. 701.49  Payment of fees.

    (a) Normally, fees will be collected at the time of providing the 
documents to the requester when the requester specifically states that 
the costs involved shall be acceptable or acceptable up to a specified 
limit that covers the anticipated costs, and the fees do not exceed 
$250.00.
    (b) However, after all work is completed on a request, and the 
documents are ready for release, DON activities 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).
    (c) When a DON activity estimates or determines that allowable 
charges that a requester may be required to pay are likely to exceed 
$250.00, the activity 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.
    (d) Advance payment of a fee is also applicable when a requester 
has previously failed to pay fees in a timely fashion (i.e., 30 
calendar days) after being assessed in writing by the activity. 
Further, 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 DON activity 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 activity 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.


Sec. 701.50  Effect of the Debt Collection Act of 1982.

    The Debt Collection Act of 1982 (Pub. L. 97-365) provides for a 
minimum annual rate of interest to be charged on overdue debts owed the 
Federal Government. DON activities 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. DON 
activities 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, DON activities may 
submit the debt to respective finance and accounting offices for 
collection.


Sec. 701.51  Refunds.

    In the event that a DON activity discovers that it has overcharged 
a requester or a requester has overpaid, the DON activity shall 
promptly refund the charge to the requester by reimbursement methods 
that are agreeable to the requester and the activity.


Sec. 701.52  Computation of fees.

    (a) It is imperative that DON activities compute all fees to ensure 
accurate reporting in the Annual FOIA Report, but ensure that only 
applicable fees be charged to the requester. For example, although we 
calculate correspondence and preparation costs, these fees are not 
recoupable from the requester.
    (b) DD 2086, Record of Freedom of Information (FOI) Processing 
Cost, should be filled out accurately to reflect all processing costs, 
as requesters may solicit a copy of that document to ensure accurate 
computation of fees. Costs shall be computed on time actually spent. 
Neither time-based nor dollar-based minimum charges for search, review 
and duplication are authorized.

[[Page 49870]]

Sec. 701.53  FOIA fee schedule.

    The following fee schedule shall be used to compute the search, 
review (in the case of commercial requesters) and duplication costs 
associated with processing a given FOIA request. The appropriate fee 
category of the requester shall be applied before computing fees.
    (a) Manual search.

------------------------------------------------------------------------
                                                                  Hourly
               Type                            Grade               rate
------------------------------------------------------------------------
Clerical.........................  E9/GS8 and below............   $12.00
Professional.....................  O1-O6/GS9-GS15..............    25.00
Executive........................  O7/GS16/ES1 and above.......    45.00
------------------------------------------------------------------------

    (b) Computer search. Fee assessments for computer search consist of 
two parts; individual time (hereafter referred to as human time) and 
machine time.
    (1) 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).
    (2) 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 DON activities lease computers, the services 
charged by the lessor shall not be passed to the requester under the 
FOIA.
    (c) Duplication.

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

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

------------------------------------------------------------------------
                                                                  Hourly
               Type                            Grade               rate
------------------------------------------------------------------------
Clerical.........................  E9/GS8 and below............   $12.00
Professional.....................  O1-O6/GS9-GS15..............    25.00
Executive........................  O7/GS16/ES1 and above.......    45.00
------------------------------------------------------------------------

    (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 DON activity. Neither the FOIA nor 
its fee structure cover these kinds of services. Therefore, DON 
activities may recover the costs of special services requested by the 
requester after agreement has been obtained in writing from the 
requester to pay for such fees as certifying that records are true 
copies, sending records by special methods such as express mail, etc.


Sec. 701.54  Collection of fees and fee rates for technical data.

    (a) 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.
    (b) DON activities 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 information released under FOIA.
    (c) Waiver. DON activities 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 
the FOIA 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, DON activities 
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 DON activity determines in accordance with Sec. 701.48 that 
such a waiver is in the interest of the United States.
    (d) Fee rates. (1) Manual search.

------------------------------------------------------------------------
                                                                  Hourly
               Type                            Grade               rate
------------------------------------------------------------------------
Clerical.........................  E9/GS8 and below............   $13.25
Clerical (Minimum Charge)........  ............................     8.30
Professional.....................  01 to 06/GS9 to GS15........     (**)
Executive........................  07/GS16/ES-1 and above......     (**)
------------------------------------------------------------------------
** Rate to be established at actual hourly rate prior to search. A
  minimum charge will be established at \1/2\ Minimum Charge)

    (2) Computer search is based on the total cost of the central 
processing unit,

[[Page 49871]]

input-output devices, and memory capacity of the actual computer 
configuration. The wage (based upon the scale for manual search) 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.
    (3) Duplication.

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

    (4) Review Time.

------------------------------------------------------------------------
                                                                  Hourly
               Type                            Grade               rate
------------------------------------------------------------------------
Clerical.........................  E9/GS8 and below............   $13.25
Clerical Minimum Charge..........  E9/GS8 and below............     8.30
Professional.....................  01 to 06/GS9 to GS15........     (**)
Executive........................  07/GS16/ES1 or higher.......     (**)
------------------------------------------------------------------------
** Rate to be established at actual hourly rate prior to search. (A
  minimum charge will be established at \1/2\ Minimum Charge)

    (5) Other technical data records. Charges for any additional 
services not specifically provided in paragraph (d) of this section, 
consistent with Volume 11A of DoD 7000.14-R (NOTAL) shall be made by 
DON activities at the following rates:

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


Sec. 701.55  Processing FOIA fee remittances.

    (a) Payments for FOIA charges, less fees assessed for technical 
data or by a Working Capital Fund or a Non-Appropriated Fund (NAF) 
activity, shall be made payable to the U.S. Treasurer and deposited in 
Receipt Account Number 172419.1203.
    (b) Payments for fees assessed for technical data shall be made 
payable to the DON activity that incurred the costs and will be 
deposited directly into the accounting line item from which the costs 
were incurred.
    (c) Payments for fees assessed by Working Capital Fund or Non-
Appropriated Fund (NAF) activities shall be made payable to the DON 
activity and deposited directly into their account.

Subpart D--FOIA Exemptions


Sec. 701.56  Background.

    The FOIA is a disclosure statute whose goal is an informed 
citizenry. Accordingly, records are considered to be releasable, unless 
they contain information that qualifies for withholding under one or 
more of the nine FOIA exemptions. The exemptions are identified as 5 
U.S.C. 552 (b)(1) through (b)(9).


Sec. 701.57  Ground rules.

    (a) Identity of requester. 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 in systems notice and by a FOIA exemption.
    (b) Reasonably segregable. Even though a document may contain 
information which qualifies for withholding under one or more FOIA 
exemptions, FOIA requires that all ``reasonably segregable'' 
information be provided to the requester, unless the segregated 
information would have no meaning. In other words, redaction is not 
required when it would reduce the balance of the text to unintelligible 
gibberish.
    (c) Discretionary release. A discretionary release of a record 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.
    (d) Initial Denial Authority (IDA) actions. The decision to 
withhold information in whole or in part based on one or more of the 
FOIA exemptions requires the signature of an IDA. See listing of IDAs 
in Sec. 701.4.


Sec. 701.58  In-depth analysis of FOIA exemptions.

    An in-depth analysis of the FOIA exemptions is addressed in the 
DOJ's annual publication, ``Freedom of Information Act Guide & Privacy 
Act Overview.'' A copy is available on the DOJ's FOIA website (see Navy 
FOIA website at http://www.ogc.secnav.hq.navy.mil/foia/index.html for 
easy access).


Sec. 701.59  A brief explanation of the meaning and scope of the nine 
FOIA exemptions.

    (a) 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.
    (1) 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 based on the Executive Order on 
classification (i.e., Executive Order 12958) and/or a security 
classification guide. The procedures for reclassification are addressed 
in the Executive Order.
    (2) If the information qualifies as exemption (b)(1) information, 
there is no discretion regarding its release. In addition, this 
exemption shall be invoked when the following situations are apparent:
    (i) Glomar response: The fact of the existence or nonexistence of a 
record would itself reveal classified information. In this situation, 
DON activities 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.
    (ii) Compilation: 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 is not otherwise revealed in the individual items of information.
    (b) 5 U.S.C. 552 (b)(2): Those related solely to the internal 
personnel rules and practices of the DON and its

[[Page 49872]]

activities. This exemption is entirely discretionary and has two 
profiles, high (b)(2) and low (b)(2):
    (1) High (b)(2) are records containing or constituting statutes, 
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 DON. For 
example:
    (i) Those operating rules, guidelines, and manuals for DON 
investigators, inspectors, auditors, or examiners that must remain 
privileged in order for the DON activity 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 DON 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) Discussion of low (b)(2) is provided for information only, as 
DON activities may not invoke the low (b)(2). Low (b)(2) records are 
those matters which are trivial and housekeeping in nature for which 
there is no legitimate public interest or benefit to be gained by 
release, and it would constitute an administrative burden to process 
the request in order to disclose the records. Examples include rules of 
personnel's use of parking facilities or regulation of lunch hours, 
statements of policy as to sick leave, and administrative data such as 
file numbers, mail routing stamps, initials, data processing notations, 
brief references to previous communications, and other like 
administrative markings.
    (c) 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. A few examples of (b)(3) statutes are:
    (1) 10 U.S.C. 128, Physical Protection of Special Nuclear Material, 
Limitation on Dissemination of Unclassified Information.
    (2) 10 U.S.C. 130, Authority to Withhold From Public Disclosure 
Certain Technical Data.
    (3) 10 U.S.C. 1102, Confidentiality of Medical Quality Assurance 
Records.
    (4) 10 U.S.C. 2305(g), Protection of Contractor Submitted 
Proposals.
    (5) 12 U.S.C. 3403, Confidentiality of Financial Records.
    (6) 18 U.S.C. 798, Communication Intelligence.
    (7) 35 U.S.C. 181-188, Patent Secrecy--any records containing 
information relating to inventions that are the subject of patent 
applications on which Patent Secrecy Orders have been issued.
    (8) 35 U.S.C. 205, Confidentiality of Inventions Information.
    (9) 41 U.S.C. 423, Procurement Integrity.
    (10) 42 U.S.C. 2162, Restricted Data and Formerly Restricted Data.
    (11) 50 U.S.C. 403 (d)(3), Protection of Intelligence Sources and 
Methods.
    (d) 5 U.S.C. 552 (b)(4): Those containing trade secrets or 
commercial or financial information that a DON activity 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. If the information qualifies as exemption (b)(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 DON 
activity 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. 
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 (b)(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 DON.
    (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, subparts 227.71 and 227.72. Technical 
data developed exclusively with Federal funds may be withheld under 
Exemption (b)(3) if it meets the criteria of 10 U.S.C. 130 and DoD 
Directive 5230.25 of 6 November 1984.
    (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.
    (e) 5 U.S.C. 552(b)(5): Those containing information considered 
privileged in litigation, primarily under the deliberative process 
privilege. For example: 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 or within or 
among DON activities. In order to meet the test of this exemption, the 
record must be both deliberative in nature, as

[[Page 49873]]

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. Examples of the deliberative process include:
    (1) The nonfactual portions of staff papers, to include after-
action reports, lessons learned, and situation reports containing staff 
evaluations, advice, opinions, or suggestions.
    (2) Advice, suggestions, or evaluations prepared on behalf of the 
DON 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.
    (3) Those non-factual portions of evaluations by DON personnel of 
contractors and their products.
    (4) Information of a speculative, tentative, or evaluative nature 
or such matters as proposed plans to procure, lease or otherwise 
acquire and dispose of materials, real estate, facilities or functions, 
when such information would provide undue or unfair competitive 
advantage to private personal interests or would impede legitimate 
government functions.
    (5) 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.
    (6) Those portions of official reports of inspection, reports of 
the Inspector Generals, audits, investigations, or surveys pertaining 
to safety, security, or the internal management, administration, or 
operation of one or more DON activities, when these records have 
traditionally been treated by the courts as privileged against 
disclosure in litigation.
    (7) Planning, programming, and budgetary information that is 
involved in the defense planning and resource allocation process.
    (8) 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.
    (9) 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.
    (10) 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.
    (11) An internal communication concerning a decision that 
subsequently has been made a matter of public record must be made 
available to a requester when the rationale for the decision is 
expressly adopted or incorporated by reference in the record containing 
the decision.
    (f) 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 (b)(6) information, there is no discretion in its release. 
Examples of other files containing personal information similar to that 
contained in personnel and medical files include:
    (1) 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.
    (2) Files containing reports, records, and other material 
pertaining to personnel matters in which administrative action, 
including disciplinary action, may be taken.
    (3) Home addresses, including private e-mail addresses, are 
normally not releasable without the consent of the individuals 
concerned. This includes lists of home addressees and military 
quarters' addressees without the occupant's name. Additionally, the 
names and duty addresses (postal and/or e-mail) of DON/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.
    (4) 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.
    (5) 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.
    (6) 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 of 28 October 1996 
(NOTAL).
    (7) 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

[[Page 49874]]

in a Privacy Act system of records, consult with legal counsel.
    (8) 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, DON 
activities shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This is a Glomar response, and exemption 
(b)(6) must be cited in the response. Additionally, in order to insure 
personal privacy is not violated during referrals, DON activities shall 
coordinate with other DON activities 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 itself disclose personally private 
information.
    (ii) Refusal to confirm or deny should not be used when the person 
whose personal privacy is in jeopardy has provided the requester a 
waiver of his or her privacy rights; the person initiated or directly 
participated in an investigation that led to the creation of an agency 
record seeks access to that record; or 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.
    (g) 5 U.S.C. 552(b)(7). Records or information compiled for law 
enforcement purposes; i.e., civil, criminal, or military law, including 
the implementation of Executive Orders or regulations issued under 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 (b)(7)(C) and (b)(7)(F), this exemption 
is discretionary. This exemption applies, however, only to the extent 
that production of such law enforcement records or information could 
result in the following:
    (1) 5 U.S.C. 552(b)(7)(A): Could reasonably be expected to 
interfere with enforcement proceedings.
    (2) 5 U.S.C. 552(b)(7)(B): Would deprive a person of the right to a 
fair trial or to an impartial adjudication.
    (3) 5 U.S.C. 552(b)(7)(C): Could reasonably be expected to 
constitute an unwarranted invasion of personal privacy of a living 
person, including surviving family members of an individual identified 
in such a record.
    (i) This exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest. In this situation, 
Components shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This is a Glomar response, and exemption 
(b)(7)(C) must be cited in the response. Additionally, in order to 
insure personal privacy is not violated during referrals, DON 
activities shall coordinate with other DON/DoD activities or Federal 
Agencies before referring a record that is exempt under the Glomar 
concept. A ``refusal to confirm or deny'' response must be used 
consistently, not only when a record exists, but also when a record 
does not exist. Otherwise, the pattern of using a ``no records'' 
response when a record does not exist and a ``refusal to confirm or 
deny'' when a record does exist will itself disclose personally private 
information.
    (ii) Refusal to confirm or deny should not be used when the person 
whose personal privacy is in jeopardy has provided the requester with a 
waiver of his or her privacy rights; or the person whose personal 
privacy is in jeopardy is deceased, and the activity is aware of that 
fact.
    (4) 5 U.S.C. 552(b)(7)(D): Could reasonably be expected to disclose 
the identity of a confidential source, including a source within the 
DON; 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) 5 U.S.C. 552(b)(7)(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.
    (6) 5 U.S.C. 552(b)(7)(F): Could reasonably be expected to endanger 
the life or physical safety of any individual.
    (7) Some examples of exemption 7 are: 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; the identity of firms or individuals being 
investigated for alleged irregularities involving contracting with the 
DoD when no indictment has been obtained nor any civil action filed 
against them by the United States; information obtained in confidence, 
expressed or implied, in the course of a criminal investigation by a 
criminal law enforcement agency or office within a DON activity or a 
lawful national security intelligence investigation conducted by an 
authorized agency or office within the DON; national security 
intelligence investigations include background security investigations 
and those investigations conducted for the purpose of obtaining 
affirmative or counterintelligence information.
    (8) 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.
    (9) Exclusions. Excluded from the exemption in paragraph (g)(8) are 
the following two situations applicable to the DON:
    (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, DON activities may, during 
only such times as that circumstance continues, treat the records or 
information as not subject to the FOIA. In such situation, the response 
to the requester will state that no records were found.
    (ii) Whenever informant records maintained by a criminal law 
enforcement organization within a DON activities under the informant's 
name or personal identifier are requested by a third party using the 
informant's name or personal identifier, the DON activity 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 
requester will state that no records were found.
    (iii) DON activities considering invoking an exclusion should first 
consult with the DOJ's Office of Information and Privacy.
    (h) 5 U.S.C. 552(b)(8): Those contained in or related to 
examination, operation or condition reports prepared by, on behalf of, 
or for the use of any agency responsible for the regulation or 
supervision of financial institutions.

[[Page 49875]]

    (i) 5 U.S.C. 552(b)(9): Those containing geological and geophysical 
information and data (including maps) concerning wells.

    Dated: August 30, 1999.
J. L. Roth,
Lieutenant Commander, Judge Advocate General's Corps, U.S. Navy, 
Federal Register Liaison Officer.
[FR Doc. 99-23344 Filed 9-13-99; 8:45 am]
BILLING CODE 3810-FF-P