[Federal Register Volume 65, Number 119 (Tuesday, June 20, 2000)]
[Rules and Regulations]
[Pages 38201-38204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-15367]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 293


National Imagery Mapping Agency (NIMA) Freedom of Information Act 
Program

AGENCY:  Office of the Secretary, Department of Defense.

ACTION:  Final rule.

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SUMMARY:  This final rule establishes the National Imagery and Mapping 
Agency (NIMA) regulation governing the disclosure of information under 
the Freedom of Information Act. This part is revised pursuant to the 
Department of Defense rule which implements the Freedom of Information 
Act and it conforms to the Department's rule and schedule. As a 
component of the Department of Defense, the Department rules and 
schedules with respect to the Freedom of Information Act, as amended, 
will also be the policy of NIMA.

DATES: This rule is effective March 14, 2000. Comments must be received 
by August 21, 2000.

ADDRESSES: NIMA/GC, Mail Stop D-10, 4600 Sangamore Road, Bethesda, MD 
20816-5003.

FOR FURTHER INFORMATION CONTACT: Tom Willess @301-227-2953.

SUPPLEMENTARY INFORMATION:

List of Subjects in 32 CFR Part 293

    Freedom of Information.


    Accordingly, 32 CFR part 293 is revised to read as follows:

PART 293--NATIONAL IMAGERY MAPPING AGENCY (NIMA) FREEDOM OF 
INFORMATION ACT PROGRAM

Sec.
293.1   Purpose.
293.2   Policy.
293.3   Applicability and scope.
293.4   Definitions.
293.5   Responsibilities.
293.6   Procedure.

    Authority: 5 U.S.C. 552a.


Sec. 293.1  Purpose.

    This part implementations the Freedom of Information Act (FOIA) and 
32 CFR part 286 to establish a uniform process in responding to FOIA 
requests received by the National Imagery Mapping Agency (NIMA).


Sec. 293.2  Policy.

    It is NIMA policy that:
    (a) Agency records that, if disclosed, would cause no foreseeable 
harm to an interest protected by a FOIA exemption, will be made readily 
accessible to the public.
    (b) NIMA organizations will ensure that internal procedural matters 
do not unnecessarily impede a FOIA requester from promptly obtaining 
NIMA records.


Sec. 293.3  Applicability and scope.

    This part applies to all NIMA organizations and is intended as a 
brief overview of the FOIA process within NIMA. To obtain complete 
guidance, this instruction must be used in conjunction with 32 CFR part 
286. Additional assistance is also available from the Office of General 
Counsel (GC).


Sec. 293.4  Definitions.

    Agency records.
    (1) A product of data compilation (such as all books, papers, maps, 
photographs, and machine-readable materials including those in 
electronic form or format) or other documentary materials (such as 
letters, memos, or notes) regardless of physical form or 
characteristics that is made or received by NIMA in connection with the 
transaction of public business, and is in NIMA's possession and control 
at the time the FOIA request is made.

[[Page 38202]]

    (2) The following are not considered Agency records:
    (i) Objects or articles, such as structures, furniture, vehicles, 
and equipment.
    (ii) Anything that is not a tangible or documentary record, such as 
an individual's memory or oral communication.
    (iii) Personal records of an individual not subject to agency 
creation or retention requirements, that have been created and 
maintained primarily for the convenience of the Agency employee, and 
that are not distributed to other Agency employees for their official 
use. Personal records 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.
    (3) Agency records available to the public through an established 
public distribution system, the Federal Register, the National 
Technical Information Service (NTIS), or the Internet normally need not 
be processed as FOIA requests, unless the requester insists that the 
request be processed under the FOIA.
    (4) To be subject to the FOIA, the Agency record being requested 
must actually exist and be in the possession and control of the Agency 
at the time a FOIA request is made. There is no obligation to create, 
compile, or obtain a record to satisfy a FOIA request.
    Appellate authority (AA). An agency employee who has been granted 
authority to review the decision of the initial denial authority (IDA) 
(see IDA definition) that has been appealed by a FOIA requester and 
make the appeal determination for the Agency on the releasability of 
the records in question.
    FOIA exemption. Agency records, which if disclosed, would cause a 
foreseeable harm to an interest protected by a FOIA exemption, may be 
withheld from public release. There are nine exemptions that permit an 
agency to withhold records requested under a FOIA request. The 
exemptions are for records that apply to:
    (1) Information that is currently and properly classified pursuant 
to an Executive Order in the interest of national defense or foreign 
policy.
    (2) Information that pertains solely to the internal rules and 
practices of the Agency. This exemption has two profiles, high and low. 
The high profile permits withholding of a document that, if released, 
would allow circumvention of an Agency rule, policy, or statute, 
thereby impeding the Agency in the conduct of its mission. The low 
profile permits withholding of the record if there is no public 
interest in the record, and it would be an administrative burden to 
process the request. Activities should not rely on the low profile 
exemption because the Department of Justice may not defend its use.
    (3) Information specifically exempted from disclosure by a statute 
that establishes particular criteria for withholding the record. The 
language of the statute must clearly state that the information will 
not be disclosed.
    (4) Information such as trade secrets and commercial or financial 
information obtained from a company on a privileged or confidential 
basis that, if released, would result in competitive harm to the 
company.
    (5) Inter- and intra-agency momoranda that are deliberative in 
nature. This exemption is appropriate for internal documents that are 
part of the decision-making process, and contain subjective 
evaluations, opinions, and recommendations. A document must be both 
deliberative and part of a decision-making process to qualify for this 
exemption.
    (6) Information from personnel and medical files that would result 
in a clearly unwarranted invasion of personal privacy if disclosed or 
released.
    (7) Records or information compiled for law enforcement purposes 
that:
    (i) Could reasonably be expected to interfere with law enforcement 
proceedings.
    (ii) Would deprive a person of a right to a fair trial or impartial 
adjudication.
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of the personal privacy of others.
    (iv) Would disclose the identity of a confidential source; would 
disclose investigative techniques and procedures; and
    (v) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (8) The 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.
    (9) Geological and geophysical information and data (including 
maps) concerning wells.
    FOIA request.
    (1) An FOIA request is a request, in writing, for agency records. 
The request can either implicitly cite FOIA, but must reasonably 
describe the record being requested. In addition, the request must 
include language indicating the requester's willingness to pay fees 
associated with processing the FOIA request.
    (2) Any person, including a member of the public (U.S. or foreign 
citizen or entity), an organization, or a business can make FOIA 
requests. Requests from officials of State or local Governments for 
NIMA records are considered the same as requests from any other 
requester. Requests from members of Congress not seeking records on 
behalf of a congressional committee or subcommittee, and requests from 
either House sitting as a whole or made on behalf of constituents are 
considered the same as requests from any other requester. Requests from 
foreign governments that do not invoke the FOA are referred to 
appropriate foreign disclosure channels and the requester is so 
notified by GC.
    Initial denial authority (IDA). An agency employee who has been 
granted authority to make an initial determination for the Agency that 
records requested in a FOIA request should be withheld from disclosure 
or release.
    Mandatory declassification officer (MDO). A senior agency official 
has been granted authority to perform mandatory declassification 
reviews for NIMA.
    Multi-track processing. A system in which pending FOIA requests 
that cannot be processed within the statutory time limit of 20 working 
days are separated into distinct working tracks. The tracks are based 
on the date the FOIA request is received by GC, the amount of work and 
time involved in processing the request, and whether the request 
qualifies for expedited processing.
    NIMA operational file exemption. 10 U.S.C. 457 provides that NIMA 
may withhold from public disclosure operational files that:
    (1) As of September 22, 1996 were maintained by National 
Photographic Interpretations Center (NPIC) or
    (2) Concern the activities of the Agency as of that date that were 
performed by NPIC. Questions on operational files created after 22 
September 1996 should be directed to GC.


Sec. 293.5  Responsibilities.

    (a) Director of NIMA (D/NIMA).
    (1) Designates the Agency initial denial authority (IDA) and 
appellate authority (AA).
    (2) Appoints substitutes for the current IDA or AA if necessary.
    (b)  The Chief of Staff (CS) (or acting CS as designated by CS) 
serves as AA.

[[Page 38203]]

    (c) The Director of the Congressional Affairs Office (D/CA) (or 
acting D/CA as designated by D/CA) serves as IDA.
    (d) Office of General Counsel (GC).
    (1) Administers NIMA's FOIA program for processing FOIA requests 
received by NIMA.
    (2) Processes all requests for mandatory declassification review in 
response to requests for declassificaton that meet the requirements of 
Executive Order 12958.
    (3) Submits this part to the Department of Defense to publish in 
the Code of Federal Regulations and the Federal Register.
    (e) Office Directors in the functional Directorates and the Office 
Directors who are aligned with D/NMA (for example, Office of General 
Counsel, Office of Inspector General, Chief of Staff, International and 
Policy Office, or Mission Support Office) with regard to search for 
records.
    (1) Appoint an Office point of contact (POC) to whom FOIA requests 
can be directed from GC and who serves as a direct liaison with GC.
    (2) Forward, through the POC, the FOIA request from GC to the 
organization most likely to hold or maintain the records being 
requested.
    (3) Direct, through the POC, a search for the records be completed 
in a timely manner and respond directly to GC on the outcome of the 
search.
    (f) Office Directors in the functional Directorates and the Office 
Directors who are aligned with D/NIMA (for example, Office of General 
Counsel, Office of Inspector General, Chief of Staff, International and 
Policy Office, or Mission Support Office) with regard to 
declassification review.
    (1) Appoint an employee to act as the POC for the Office.
    (2) Oversee and coordinate, through the POC, declassification 
reviews for FOIA.
    (3) Make, through the POC, recommendations to the mandatory 
declassification officer (MDO) on the declassification of Agency 
records.
    (g) Chief, Mission Support Office, Security Programs Division, as 
MDO.
    (1) Conducts declassification reviews for FOIA.
    (2) Advises GC whether Agency records are properly classified in 
accordance with Executive Order 12958 and should be withheld from 
public release or disclosure.


Sec. 293.6  Procedures.

    (a) Administration of the FOIA program. GC receives all FOIA 
requests submitted to NIMA, logs the requests into a database, and 
initiates the record search. If a final response cannot be made to the 
FOIA requester within the statutory time requirement of 20 working 
days, GC advises the requester of this fact and explains how the FOIA 
request will be processed within a multi-track processing system. As 
part of the administration FOIA process, GC:
    (1) Assesses and collects fees for costs associated with processing 
FOIA requests, and approves or denies requests for fee waivers. Fees 
collected are forwarded through the Financial Management Directorate 
(CFO) to the U.S. Treasury.
    (2) Approves or denies requests for expedited processing.
    (3) Sends a ``no records'' response to FOIA requesters after a 
records search reveals that no Agency records exist that are responsive 
to the FOIA request.
    (4) Provides training with NIMA on the FOIA law and Agency 
processing procedures.
    (5) Conducts periodic reviews of NIMA's FOIA program.
    (6) Maintains a public reading room for inspecting and copying 
Agency records and arranges appointments for access to reading room 
records.
    (7) Maintains an ``electronic'' reading room for Agency records, an 
index for frequently requested records, a FOIA handbook, and other 
material as required by the FOIA on a public Internet website.
    (8) Coordinates with other DoD Components, other members of the 
Intelligence Community, or the Department of Justice, as needed, on 
FOIA requests referred to NIMA.
    (9) Coordinates with other DoD Components, other members of the 
Intelligence Community, or the Department of Justice, as needed, prior 
to releasing any records under the FOIA that may also be pertinent to 
litigation pending against the United States.
    (10) Prepares the Annual Report--Freedom of Information Act (DD 
Form 2564) and forwards the report to the Directorate for Freedom of 
Information and Security Review, Washington Headquarters Services.
    (11) Coordinates responses to all news media requests with the 
Public Affairs Office (PA) and congressional inquiries with CA.
    (12) Coordinates denials of access to Agency records with NIMA's 
IDA and AA and prepares a legal synopsis and recommendation for release 
or denial of the record.
    (13) Maintains FOIA case files in accordance with the NIMA records 
management schedules in NI 8040.1.
    (b) Searching for responsive NIMA records.
    (1) GC forwards a copy of the FOIA request to the appropriate 
Agency POC. The POC fowards the request to the Office most likely to 
hold or maintain the records being requested.
    (2) The Office conducts a search for records responsive to the FOIA 
request. all NIMA offices must promptly conduct searches to locate 
records responsive to a FOIA request, even if the search is likely to 
reveal classified, sensitive, or for official use only (FOUO) records. 
A reasonable search includes the search of all activities and locations 
most likely to have the records that have not been transferred to the 
National Archives and Records Administration (NARA).
    (3) If a reasonable search does not identify or locate records 
responsive to the request, the Office must provide GC with a ``no 
records'' response and provide a recommendation of other Offices in 
which to conduct the search.
    (4) If a reasonable search identifies or locates records responsive 
to the request, the Office must send two copies of the responsive 
record to GC and provide a recommendation regarding releasability of 
the record. Any objection to release of the record must be based on one 
or more of the FOIA exemptions. The office must also complete and 
forward DD Form 2086 or DD Form 2086-1, as appropriate, detailing the 
time and cost incurred in the search, review, and copying of the 
responsive records.
    (5) FOUO records. When an office has identified FOUO records that 
are responsive to a FOIA request, the record must be evaluated to 
determine whether any FOIA exemptions are applicable to withhold either 
the entire record or portions of the record from release. Unless the 
requested record clearly falls into one or more of the FOIA exemptions, 
an FOUO marking all not prevent a record from being released to the 
FOIA requester.
    (6) All Offices promptly forward or return any misaddressed FOIA 
requests to GC.
    (c) Mandatory declassification review. When a request for a 
declassification review is received, or when an office has identified 
classified records that are responsive to a FOIA request and has 
forwarded copies to GC, GC forwards one copy of the record to the MDO 
for a declassification review. The MDO works with the declassification 
POC to determine if the record in question is currently and properly 
classified under Executive Order 12958, and if any information 
contained in the record may be segregated for release to the FOIA 
requester. The MDO forwards the results of the declassification review 
to GC, in writing, along with any recommendations on whether 
information in the record can be

[[Page 38204]]

reasonably segregated and released to the FOIA requester.
    (d) Withholding Agency records from public release. If the 
requested record is not releasable because it is either currently and 
properly classified or falls within another FOIA exemption, GC prepares 
an analysis on the rationale for denying the record, prepares the 
initial denial letter to be sent to the FOIA requester, and forwards 
the materials to the Agency IDA. The Agency IDA reviews the FOIA 
request and rationale for withholding the record and, if he or she 
concurs, signs the letter prepared by GC. The letter signed by the 
Agency IDA advises the FOIA requester that the records requested are 
being withheld from release, states the amount of material withheld 
from release, states the FOIA exemptions supporting the denial, and 
provides information on appealing the decision to the Agency AA. A copy 
of all initial denial letters is forwarded to GC and maintained in the 
individual FOIA file.
    (e) Appeal rights of FOIA requesters.
    (1) If a FOIA requester appeal the initial denial decision of the 
agency IDA, GC processes the appeal for review by the agency AA. The AA 
reviews the initial FOIA request, GC's analysis, and the denial 
decision made by the IDA. The AA has the authority to either uphold the 
decision made by the IDA, and withhold the requested records from 
release, or reverse the decision made by the IDA and release all or a 
portion of the records requested. GC prepares the written response to 
the FOIA requester for the AA's signature. If the AA makes a final 
determination to uphold the decision made by the agency IDA, the final 
Agency response includes the basis for the decision and advises the 
FOIA requester of the right to seek judicial review.
    (2) In addition to denials of information, a FOIA requester also 
has a right to appeal initial assessments made by GC regarding fee 
categories, fee waivers, fee estimates, requests for expedited 
processing, no record determinations, failure to meet the statutory 
time limits, or any determination found to be adverse by the requester. 
The authority to uphold or reverse initial assessments made by GC in 
these areas is the agency AA. The decision of the AA is final.
    (f) Relationship between the FOIA and the Privacy Act. Not all 
requesters will be knowledgeable of the appropriate act to cite when 
requesting records or access to records. In some instances, either the 
FOIA or the Privacy Act may be cited.
    (1) Both the FOIA and the Privacy Act give the right to request 
access to records held by Federal Agencies. Access rights under the 
FOIA are given to any individual, business, or organization, but the 
Privacy Act gives access rights only to those individuals who are the 
subject of the records being requested.
    (2) When responding to a request for records under the Privacy Act, 
detailed guidance on which act to apply may be found in 32 CFR part 286 
and 32 CFR part 310. Additional assistance is also available from GC.

    Dated: June 13, 2000.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 00-15367 Filed 6-19-00; 8:45 am]
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