[Federal Register Volume 69, Number 248 (Tuesday, December 28, 2004)]
[Proposed Rules]
[Pages 77836-77868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27848]



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Part II





Department of Defense





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Department of the Army



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32 CFR Part 518



The Freedom of Information Act Program; Proposed Rule

  Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / 
Proposed Rules  

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DEPARTMENT OF DEFENSE

Department of the Army

32 CFR Part 518

RIN 0702-AA45


The Freedom of Information Act Program

AGENCY: Department of the Army, DoD.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Department of the Army is proposing to revise our rules in 
support of the Freedom of Information Act as required by public law and 
updates the provisions for access and release of information from all 
Army information systems (automated and manual) that further supports 
the Army's Records Management Program.

DATES: Comments submitted to the address below on or before February 
28, 2005 will be considered.

ADDRESSES: You may submit comments, identified by ``32 CFR Part 518 and 
RIN 0702-AA45'' in the subject line, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include ``32 
CFR Part 518 and RIN 0702-AA45'' in the subject line of the message.
     Mail: U.S. Army Records Management and Declassification 
Agency, Freedom of Information and Privacy Office, ATTN: AHRC-PDD-FP, 
(Ms. Carter), Casey Bldg., Suite 144, 7701 Telegraph Road, Alexandria, 
VA 22315-3905.

FOR FURTHER INFORMATION CONTACT: Brenda Carter (703) 428-6503.

SUPPLEMENTARY INFORMATION:

A. Background

    This proposed revision prescribes procedures and responsibilities 
of the Freedom of Information Act, in accordance with the Electronic 
Freedom of Information Act (FOIA) Amendments of 1996. The Electronic 
Freedom of Information Act Amendments of 1996 changed the response time 
from 10 to 20 days, required Multitrack processing of FOIA requests, 
required an Electronic FOIA Reading Room, and changed the requirements 
for the Annual Report and the timetable for that report from calendar 
to fiscal year.

B. Regulatory Flexibility Act

    The Department of the Army has determined that the Regulatory 
Flexibility Act does not apply because the proposed rule does not have 
a significant economic impact on a substantial number of small entities 
within the meaning to the Regulatory Flexibility Act, 5 U.S.C. 601-612.

C. Paperwork Reduction Act

    The Department of the Army has determined that the Paperwork 
Reduction Act does not apply because the proposed rule does not impose 
recordkeeping or information collection requirements from contractors 
or members of the public.

D. Executive Order 12866

    The Department of the Army has determined that according to the 
criteria defined in Executive Order 12866, this proposed rule is not a 
significant regulatory action.

Bruno C. Leuyer,
Chief, Freedom of Information and Privacy Office.

List of Subjects in 32 CFR part 518

    Freedom of Information Act, Administrative practices and 
procedures.

    For the reasons stated in the preamble, the Department of the Army 
proposes to revise 32 CFR part 518--The Army Freedom of Information Act 
Program as follows:

PART 518--THE FREEDOM OF INFORMATION ACT PROGRAM

Subpart A--General provisions
Sec.
518.1 Purpose.
518.2 References.
518.3 Explanation of abbreviations and terms.
518.4 Responsibilities.
518.5 Authority.
518.6 Public information.
518.7 FOIA terms defined.
518.8 Freedom of Information requirements.
Subpart B--FOIA Reading Rooms
518.9 Reading room.
518.10 ``(a)(2)'' materials.
518.11 Other materials.
Subpart C--Exemptions
518.12 General.
518.13 FOIA exemptions.
Subpart D--For Official Use Only
518.14 General.
Subpart E--Release and Processing Procedures
518.15 General provisions.
518.16 Initial determinations.
518.17 Appeals.
518.18 Judicial actions.
Subpart F--Fee Schedule
518.19 General provisions.
518.20 Collection of fees and fee rates.
518.21 Collection of fees and fee rates for technical data.
Subpart G--Reports
518.22 Reports control.
518.23 Annual report content.

Appendices to Part 518

Appendix A to Part 518--References.
Appendix B to Part 518--Addressing FOIA Requests.

    Authority: 5 U.S.C. 551, 552, 552a, 5101-5108, 5110-5113, 5115, 
5332-5334, 5341-42, 5504-5509, 7154; 10 U.S.C. 130, 1102, 2320-2321, 
2328; 18 U.S.C. 798, 3500; 31 U.S.C. 3710; 35 U.S.C. 181-188; 42 
U.S.C. 2162; 44 U.S.C. 33; and Executive Order 12600.

PART 518--THE ARMY FREEDOM OF INFORMATION ACT PROGRAM

Subpart A--General provisions


Sec.  518.1  Purpose.

    This part provides policies and procedures for implementation of 
the Freedom of Information Act (5 U.S.C. 552, as amended) and 
Department of Defense Directive (DoDD) 5400.7 and promotes uniformity 
in the Department of Defense (DoD) Freedom of Information Act (FOIA) 
Program (AR25-55). This Army regulation implements provisions for 
access and release of information from all Army information systems 
(automated and manual) in support of Army Information Management (AR 
25-1).


Sec.  518.2  References.

    Required and related publications are listed in Appendix A of this 
part.


Sec.  518.3  Explanation of abbreviations and terms.

    Abbreviations and special terms used in this part are explained in 
the glossary of AR 25-55.


Sec.  518.4  Responsibilities.

    (a) The Deputy Chief of Staff for Personnel (DCS, G-1) is 
responsible for issuing policy and establishing guidance for the Army 
FOIA Program. DCS, G-1 has the responsibility to approve exceptions to 
this part that are consistent with controlling law and regulations. 
DCS, G-1 may delegate the approval authority, in writing, to a division 
chief, under its supervision, within that agency in the grade of O6 or 
civilian equivalent.
    (b) The U.S. Army Human Resources Command, (AHRC), The Adjutant 
General (TAG), Records Management and Declassification Agency (RMDA), 
is responsible for developing and recommending policy to DCS, G-1 
concerning the Army FOIA program and overall execution of the program 
under the policy and guidance of DCS, G-1.

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    (c) The Chief of Information Officer (CIO), G6 will provide 
oversight of the FOIA program as necessary in compliance with Federal 
Statutes, regulations, Office of Management and Budget (OMB), and the 
Office of Secretary of Defense (OSD).
    (d) Heads of Army Staff agencies, field operating agencies, major 
Army commands (MACOMS), and subordinate commands are responsible for 
the supervision and execution of the FOIA program in functional areas 
and activities under their command.
    (e) Heads of Joint Service agencies or commands for which the Army 
is the Executive Agent, or otherwise has responsibility for providing 
fiscal, logistical, or administrative support, will adhere to the 
policies and procedures in this part.
    (f) Commander, Army and Air Force Exchange Service (AAFES), is 
responsible for the supervision of the FOIA program within that command 
pursuant to this part.


Sec.  518.5  Authority.

    (a) This part governs written FOIA requests from members of the 
public. It does not preclude the release of personnel or other records 
to agencies or individuals in the Federal Government for use in 
official work.
    (b) Soldiers and civilian employees of the Department of the Army 
(DA) may, as private citizens, request DA or other agencies' records 
under the FOIA. They must prepare requests at their own expense and on 
their own time. They may not use Government equipment, supplies, or 
postage to prepare personal FOIA requests. It is not necessary for 
soldiers or civilian employees to go through the chain of command to 
request information under the FOIA.
    (c) Requests for DA records processed under the FOIA may be denied 
only in accordance with the FOIA (5 U.S.C. 552(b)), as implemented by 
this part. Guidance on the applicability of the FOIA is also found in 
the Federal Acquisition Regulation (FAR).
    (d) Release of some records may also be affected by the programs 
that created them. They are discussed in the following regulations:
    (1) AR 20-1 (Inspector General activities and procedures);
    (2) AR 27-10 (military justice);
    (3) AR 27-20 (claims);
    (4) AR 27-40 (litigation: release of information and appearance of 
witnesses);
    (5) AR 27-60 (intellectual property);
    (6) AR 36-2 (Government Accounting Office audits);
    (7) AR 40-66, AR 40-68, and AR 40-400 (medical records);
    (8) AR 70-31 (technical reports);
    (9) AR 20-1, AR 385-40 and DA Pam 385-40 (aircraft accident 
investigations);
    (10) AR 195-2 (criminal investigation activities);
    (11) AR 190-45 (Military Police records and reports);
    (12) AR 360-1 (Army public affairs: public information, general 
policies on release of information to the public);
    (13) AR 380-5 and DoD 5200.1-R (national security classified 
information);
    (14) AR 380-5 paragraph 7-101e (policies and procedures for 
allowing persons outside the Executive Branch to do unofficial 
historical research in classified Army records);
    (15) AR 380-10 (Technology Transfer for disclosure of information 
and contacts with foreign representatives;
    (16) AR 381-45 (U.S. Army Intelligence and Security Command 
investigation files);
    (17) AR 385-40 (safety reports and records);
    (18) AR 600-8-104 (military personnel information management 
records);
    (19) AR 600-85 (alcohol and drug abuse records);
    (20) AR 608-19 (family advocacy records); and
    (21) AR 690 (series civilian personnel records, FAR, DoD Federal 
Acquisition Regulation Supplement (DFARS) and the Army Federal 
Acquisition Regulation Supplement (AFARS) procurement matters).


Sec.  518.6  Public information.

    (a) Public information. The public has a right to information 
concerning the activities of its Government. Army policy is to conduct 
its activities in an open manner and provide the public with a maximum 
amount of accurate and timely information concerning its activities, 
consistent always with the legitimate public and private interests of 
the American people. A record requested by a member of the public who 
follows rules established by proper authority in DA shall not be 
withheld in whole or in part unless the record is exempt from mandatory 
partial or total disclosure under the FOIA. As a matter of policy, Army 
activities shall make discretionary disclosures of exempt records or 
information only after full and deliberate consideration of the 
institutional, commercial, and personal privacy interests that could be 
implicated by disclosure of the information. Activities must be 
prepared to present a sound legal basis in support of their 
determinations. In order that the public may have timely information 
concerning Army activities, records requested through public 
information channels by news media representatives that would not be 
withheld if requested under the FOIA should be released upon request. 
Prompt responses to requests for information from news media 
representatives should be encouraged to eliminate the need for these 
requesters to invoke the provisions of the FOIA and thereby assist in 
providing timely information to the public. Similarly, requests from 
other members of the public for information that would not be withheld 
under the FOIA should continue to be honored through appropriate means 
without requiring the requester to invoke the FOIA.
    (b) FOIA handbook. The Department of the Army Freedom of 
Information Act/Privacy Act (DA FOIA/PA) Office shall prepare, in 
addition to FOIA regulations, a handbook for the use of the public in 
obtaining information from its organizations. This handbook will be a 
short, simple explanation of what the FOIA is designed to do, and how a 
member of the public can use it to access government records. The DA 
FOIA/PA Office handbook will explain the types of records that can be 
obtained through FOIA requests, why some records cannot, by law, be 
made available, and how the Army activity determines whether or not the 
record can be released. The handbook will also explain how to make a 
FOIA request, how long the requester can expect to wait for a reply, 
and appeal rights. The handbook will supplement other information 
locator systems, such as the Government Information Locator Service 
(GILS), and explain how a requester can obtain more information about 
those systems. The handbook will be available on paper and through 
electronic means and contain the following additional information, 
complete with electronic links to the below elements: The location of 
reading room and the types and categories of information available; the 
location of the World Wide Web page; a reference to the Army FOIA 
regulation and how to obtain a copy; a reference to the Army FOIA 
annual report and how to obtain a copy; and the location of the GILS 
page. The DA FOIA handbook, ``A Citizen's Guide to Request Army Records 
Under the Freedom of Information Act (FOIA),'' can be accessed on-line 
at http://www.rmda.belvoir.army.mil/. ``The Major Automated Information 
Systems Descriptions'' can be accessed at www.defenselink.mil/pubs/foi.
    (c) Control system. A request for records that invokes the FOIA 
shall enter a formal control system designed

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to ensure accountability and compliance with the FOIA. Any request for 
Army records that either explicitly or implicitly cites the FOIA shall 
be processed under the provisions of this part, unless otherwise 
required.


Sec.  518.7  FOIA terms defined.

    (a) FOIA request. A written request for Army records that 
reasonably describes the record(s) sought, made by any person, 
including a member of the public (U.S. or foreign citizen/entity), an 
organization, or a business, but not including a Federal Agency or a 
fugitive from the law, that either explicitly or implicitly invokes the 
FOIA, DoDD 5400.7, DoD 5400.7-R, this part, or Army Activity 
supplementing regulations or instructions. All requesters should also 
indicate a willingness to pay fees associated with the processing of 
their request. Requesters may ask for a waiver of fees, but should also 
express a willingness to pay fees in the event of a waiver denial. 
Written requests may be received by postal service or other commercial 
delivery means, by facsimile, or electronically (such as e-mail). 
Requests received by facsimile or electronically must have a postal 
mailing address included since it may not be practical to provide a 
substantive response electronically. The request is considered properly 
received, or perfected, when the conditions in this paragraph have been 
met and the request arrives at the FOIA office of the Activity in 
possession of the records.
    (b) Agency record. The products of data compilation, such as all 
books, papers, maps, photographs, and machine readable materials, 
inclusive of those in electronic form or format, or other documentary 
materials, regardless of physical form or characteristics, made or 
received by an agency of the United States Government under Federal law 
in connection with the transaction of public business and in DA 
possession and control at the time the FOIA request is made.
    (1) The following are not included within the definition of the 
word ``record'': Objects or articles, such as structures, furniture, 
vehicles and equipment, whatever their historical value, or value as 
evidence; Anything that is not a tangible or documentary record, such 
as an individual's memory or oral communication; 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 in accordance with Public Law 86-36, National Security 
Information Exemption.
    (2) A record must exist and be in the possession and control of DA 
at the time of the request to be considered subject to this part and 
the FOIA. There is no obligation to create or compile a record to 
satisfy a FOIA request.
    (3) Hard copy or electronic records that are subject to FOIA 
requests under 5 U.S.C. 552(a)(3), and that are available to the public 
through an established distribution system such as the Government 
Printing Office (GPO), Federal Register, National Technical Information 
Service (NTIS), or the Internet, normally need not be processed under 
the provisions of the FOIA. If a request is received for such 
information, Army 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 the request shall be processed under the 
FOIA. If there is any doubt as to whether the request must be 
processed, contact DA, FOIA/PA Office.
    (c) Army activity. A specific area of organizational or functional 
responsibility within DA, authorized to receive and act independently 
on FOIA requests.
    (d) Initial denial authority (IDA). An official who has been 
granted authority by the Secretary of the Army to deny records 
requested under the FOIA based on one or more of the nine categories of 
exemptions from mandatory disclosure. An IDA also: Denies a fee 
category claim by a requester; denies a request for expedited 
processing due to demonstrated compelling need; denies a request for a 
waiver or reduction of fees; reviews a fee estimate; and confirms that 
no records were located in response to a request.
    (e) Appellate authority. The Secretary of the Army or designee 
having jurisdiction for this purpose over the record, or any of the 
other adverse determinations. The DA appellate authority is the Office 
of the Army General Counsel (OGC).
    (f) Administrative appeal. A request by a member of the general 
public, made under the FOIA, asking the appellate authority of the Army 
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 
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. Requesters also may appeal the failure to receive a response 
determination within the statutory time limits, a fee estimate, and any 
determination that the requester believes is adverse in nature.
    (g) Public interest. The interest in obtaining official information 
that sheds light on an activity's performance of its statutory duties 
because the information falls within the statutory purpose of the FOIA 
to inform citizens about what their Government is doing. That statutory 
purpose, however, is not fostered by disclosure of information about 
private citizens accumulated in various governmental files that reveals 
nothing about an agency's or official's own conduct.
    (h) Electronic record. Records (including e-mail) that are created, 
stored, and retrievable by electronic means.
    (i) Federal agency. As defined by 5 U.S.C. 552(f)(1), a Federal 
agency is any executive department, military department, Government 
corporation, Government controlled corporation, or other establishment 
in the executive branch of the Government (including the Executive 
Office of the President), or any independent regulatory agency.
    (j) Law enforcement investigation. An investigation conducted by a 
command or activity for law enforcement purposes relating to crime, 
waste, fraud or national security. Such investigations may include 
gathering evidence for criminal prosecutions and for civil or 
regulatory proceedings.


Sec.  518.8  Freedom of Information requirements.

    (a) Compliance with the FOIA. Army personnel are expected to comply 
with the FOIA, this part, and Army FOIA policy in both letter and 
spirit. This strict adherence is necessary to provide uniformity in the 
implementation of the Army FOIA Program and to create conditions that 
will promote public trust.
    (b) Openness with the public. The DA shall conduct its activities 
in an open manner consistent with the need for security and adherence 
to other requirements of law and regulation. Records not specifically 
exempt from disclosure under the Act shall, upon request, be made 
readily accessible to the public in accordance with rules

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promulgated by competent authority, whether or not the Act is invoked.
    (1) Operations Security (OPSEC). DA officials who release records 
under the FOIA must also consider OPSEC. The Army implementing 
directive is AR 530-1.
    (2) DA Form 4948-R. This form lists references and information 
frequently used for FOIA requests related to OPSEC. Persons who 
routinely deal with the public (by telephone or letter) on such 
requests should keep the form on their desks as a guide.
    (c) Avoidance of procedural obstacles. Army Activities shall ensure 
that procedural matters do not unnecessarily impede a requester from 
obtaining DA records promptly. The Army shall provide assistance to 
requesters to help them understand and comply with procedures 
established by this part and any supplemental regulations published by 
the Army Activities. Coordination of referral of requests with DA FOIA/
PA Office should be made telephonically in order to respond to the 
requester in a timelier manner. Requests will not be mailed to the DA 
FOIA/PA Office for disposition or coordination with other IDAs.
    (d) Prompt action on requests and final response determinations. 
Generally, when a member of the public complies with the procedures 
established in this part or instructions for obtaining DA records, and 
after the request is received by the official designated to respond, 
Army Activities shall endeavor to provide a final response 
determination within the statutory 20 working days. If a significant 
number of requests, or the complexity of the requests prevent a final 
response determination within the statutory time period, Army 
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 partially released, or will be released on a 
certain date, or the records are withheld under an appropriate FOIA 
exemption, or the records cannot be provided for one or more of the 
other reasons. Interim responses acknowledging receipt of the request, 
negotiations with the requester concerning the scope of the request, 
the response timeframe, and fee agreements are encouraged; however, 
such actions do not constitute a final response determination pursuant 
to the FOIA. If a request fails to meet minimum requirements as set 
forth, Activities shall contact the requester and inform the requester 
what would be required to perfect or correct the request, or to limit 
the scope to allow for the most expeditious response. The statutory 20 
working day time limit applies upon receipt of a perfected or correct 
FOIA request. Before mailing a final response determination and those 
records or portions thereof deemed releasable, records custodians will 
obtain a written legal opinion from their servicing judge advocate 
concerning the releasibility of the requested records. The legal 
opinion must cite specific exemptions, appropriate justification, and 
identify if the records were processed under the FOIA, PA (including 
the applicable systems notice), or both.
    (1) Multi-track processing. When an Army 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. Army Activities may 
establish as many processing queues as they wish; however, as a 
minimum, three processing tracks shall be established, all based on a 
first-in, first-out concept, and rank ordered by the date of receipt of 
the request. One track shall be a processing queue for simple requests, 
one track for complex requests, and one track shall be a processing 
queue for expedited processing. Determinations as to whether a request 
is simple or complex shall be made by each Army Activity. Army 
Activities shall provide a requester whose request does not qualify for 
the fastest queue an opportunity to limit the scope of the request in 
order to qualify for the fastest queue. This multitrack processing 
system does not obviate an Activity's responsibility to exercise due 
diligence in processing requests in the most expeditious manner 
possible.
    (2) 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 
Army Activity's office that will determine whether to grant expedited 
processing. Once the Army Activity has determined to grant expedited 
processing, the request shall be processed as soon as practicable. 
Actions by Army Activities to initially deny or affirm the initial 
denial on appeal of a request for expedited processing and a failure to 
respond in a timely manner shall be subject to judicial review. Initial 
determination of denials of expedited processing will be immediately 
forwarded to the IDA for action. If the IDA upholds the denial, the 
requester will be informed of his or her right to appeal.
    (i) Imminent threat. 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) Alleged Federal Government activity. 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) General public interest. 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) Certified statement. A demonstration of compelling need by a 
requester shall be made by a statement certified by the requester to be 
true and correct to the best of his or 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 for expedited processing. Another reason that 
merits expedited processing by Army FOIA offices is an imminent loss of 
substantial due process rights. A demonstration of imminent loss of 
substantial due process rights shall be made by a statement certified 
by the requester to be true and correct to the best of his or her 
knowledge. The

[[Page 77840]]

statement mentioned in paragraph (c)(2)(iv) of this section must 
accompany the request in order to be considered and responded to within 
the 10 calendar days required for decisions on expedited access. Once 
the decision has been made to expedite the request for this reason, the 
request may be processed in the expedited processing queue behind those 
requests qualifying for compelling need.
    (vi) Administrative appeals. These same procedures also apply to 
requests for expedited processing of administrative appeals.
    (e) Use of exemptions. It is Army policy to make records publicly 
available, unless the record qualifies for exemption under one or more 
of the nine exemptions. Discretionary releases of information protected 
under the FOIA should be made only after full and deliberate 
consideration of the institutional, commercial, and personal privacy 
interests that could be implicated by disclosure of the information. 
When Army activities determine to withhold information using one of the 
nine exemptions, the Department of Justice (DOJ) will defend the 
position unless it is found to be lacking a Sound Legal Basis for 
denial.
    (1) Parts of a requested record may be exempt from disclosure under 
the FOIA. The proper DA official may delete exempt information and 
release the remainder to the requester. The proper official also has 
the discretion under the FOIA to release exempt information when 
appropriate; he or she must exercise this discretion in a reasonable 
manner, within regulations consistent with current policy 
considerations. The excised copies shall clearly reflect the denied 
information by the use of brackets, indicating the removal of 
information. Bracketed areas must be sufficiently removed so as to 
reveal no information. The best means to ensure illegibility is to cut 
out the information from a copy of the document and reproduce the 
appropriate pages.
    (2) If the document is declassified, all classification markings 
shall be lined through with a single black line, which will allow the 
markings to be read. The document shall then be stamped 
``Unclassified.''
    (f) Public domain. Nonexempt records released under the authority 
of this part are considered to be in the public domain. Such records 
may also be made available in the DA reading room in paper form, as 
well as electronically, to facilitate public access. Exempt records 
disclosed without authorization by the appropriate Army FOIA official 
do not lose their exempt status. Also, while authority may exist to 
disclose records to individuals in their official capacity, the 
provisions of this part apply if the same individual seeks the records 
in a private or personal capacity.
    (g) Creating a record. A record must exist and be in the possession 
and control of DA at the time of the search to be considered subject to 
this part and the FOIA. There is no obligation to create or compile a 
record to satisfy a FOIA request. An Army Activity, 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 
that would be charged for providing the existing record. Fee 
assessments shall be in accordance with Subpart F of this part.
    (1) Concerning 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, Army Activities should apply a 
standard of reasonableness.
    (2) If the capability exists to respond to the request, and the 
effort would be a business as usual approach, then the request should 
be processed. However, the request need not be processed where the 
capability to respond does not exist without a significant expenditure 
of resources, thus not being a normal business as usual approach. As 
used in this sense, a significant expenditure of resources in both time 
and/or manpower that would cause a significant interference with the 
operation of the Army Activity's automated information system would not 
be a business as usual approach.
    (h) Description of requested record. Identification of the record 
desired is the responsibility of the requester. The requester must 
provide a description of the desired record that enables the Government 
to locate the record with a reasonable amount of effort. In order to 
assist Army Activities in conducting more timely searches, requesters 
should endeavor to provide as much identifying information as possible. 
When an Army Activity receives a request that does not reasonably 
describe the requested record, it shall contact the requester and 
afford the requester the opportunity to perfect the request. Army 
Activities are not obligated to act on the request until the requester 
perfects the request. When practicable, Army Activities shall contact 
the requester to aid in identifying the records sought and in 
reformulating the request to reduce the burden on the agency in 
complying with the Act. DA FOIA officials will reply to unclear 
requests by: Describing the defects in the requests; explaining the 
types of information described below, and ask the requester for such 
information; and explaining that no action will be taken on the request 
until the requester replies to the letter.
    (1) 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: Category I is file-related and includes information such as 
type of record (for example, memorandum), title, index citation, 
subject area, date of record creation, and originator; 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 an 
organized, non random search based on the Army Activity's filing 
arrangements and existing retrieval systems, or unless the record 
contains sufficient Category II information to permit an 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 only in 
connection with a request for records concerning the requester, only 
records in a PA system of records that can be retrieved by personal 
identifiers need be searched. However, if an Army Activity has reason 
to believe that records on the requester may exist in a record system 
other than a PA system, the Army Activity shall search that system 
under the provisions of the FOIA. In either case, Army 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 record is required to be released under the FOIA, the Privacy 
Act does not bar its disclosure.
    (4) The previous guidelines notwithstanding, the decision of the 
Army Activity concerning reasonableness of description must be based on 
knowledge of its files. If the description enables Army Activity 
personnel to locate the record with

[[Page 77841]]

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 an Army 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 Army Activity's staff to reasonably ascertain and 
locate which records are being requested.
    (i) Referrals. The Army FOIA referral policy is based upon the 
concept of the originator of a record making a release determination on 
its information. If an Army Activity receives a request for records 
originated by another Army Activity, it will contact the Army Activity 
to determine if it also received the request, and if not, obtain 
concurrence from the other Army Activity to refer the request. An Army 
Activity shall refer a FOIA request for a classified record that it 
holds to another Army Activity, DoD Component, or agency outside the 
DoD, if the record originated in another Army Activity or DoD Component 
or outside agency, or if the classification is derivative. In this 
situation, provide the record and a release recommendation on the 
record with the referral action. In either situation, the requester 
shall be advised of the action taken, unless exempt information would 
be revealed. While referrals to originators of information result in 
obtaining the best possible decision on release of the information, the 
policy does not relieve Army 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, 
Army Activities shall still coordinate with the originator of the 
information prior to making a release determination. A request received 
by an Army Activity having no records responsive to a request shall be 
referred routinely to another Army Activity, if the other Army Activity 
has reason to believe it has the requested records. Prior to notifying 
a requester of a referral to another Army Activity, the Army Activity 
receiving the initial request shall consult with the other Army 
Activity to determine if that Army Activity's association with the 
material is exempt. If the association is exempt, the Army Activity 
receiving the initial request will protect the association and any 
exempt information without revealing the identity of the protected Army 
Activity. The protected Army Activity should be responsible for 
submitting the justifications required in any litigation. Any Army 
Activity receiving a request that has been misaddressed shall refer the 
request to the proper address and advise the requester. Army Activities 
making referrals of requests for records shall include with the 
referral, a point of contact by name, a telephone number, and an e-mail 
address. If the office receiving the FOIA request does not know where 
the requested records are located, that activity will contact the DA, 
FOIA/PA Office, to determine the office where the request should be 
referred.
    (1) An Army Activity shall refer for response directly to the 
requester a FOIA request for a record that it holds to another Army 
Activity or agency outside the Army, if the record originated in the 
other Army Activity or outside agency. Whenever a record or a portion 
of a record is referred to another Army Activity or to a Government 
Agency outside of the Army for a release determination and direct 
response, the requester shall be informed of the referral, unless it 
has been determined that notification would reveal exempt information. 
Referred records shall only be identified to the extent consistent with 
security requirements.
    (2) An Army Activity may refer a request for a record that it 
originated to another Army Activity or agency when the other Army 
Activity or agency has a valid interest in the record, or the record 
was created for the use of the other Army Activity or agency. In such 
situations, provide the record and a release recommendation on the 
record with the referral action. Include a point of contact with the 
telephone number. An example of such a situation is a request for audit 
reports prepared by the U.S. Army Audit Agency. These advisory reports 
are prepared for the use of contracting officers and their release to 
the audited contractor shall be at the discretion of the contracting 
officer. A FOIA request shall be referred to the appropriate Army 
Activity and the requester shall be notified of the referral, unless 
exempt information would be revealed. Another example is a record 
originated by an Army Activity or agency that involves foreign 
relations, and could affect an Army Activity or organization in a host 
foreign country. Such a request and any responsive records may be 
referred to the affected Army Activity or organization for consultation 
prior to a final release determination within DA.
    (3) Within DA, an Army Activity shall ordinarily refer a FOIA 
request and a copy of the record it holds but that originated with 
another Army Activity or that contains substantial information obtained 
from another Army Activity, to that Activity for direct response, after 
direct coordination and obtaining concurrence from the Activity. The 
requester then shall be notified of such referral. Army Activities 
shall not, in any case, release or deny such records without prior 
consultation with the other Army Activity.
    (4) Army Activities that receive referred requests shall answer 
them in accordance with the time limits established by the FOIA, this 
part, and their multitrack processing queues, based upon the date of 
initial receipt of the request at the referring Activity or agency.
    (5) Agencies outside DA that are subject to the FOIA.
    (i) An Army Activity may refer a FOIA request for any record that 
originated in an agency outside DA 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 Army Activity must respond to 
the request.
    (ii) An Army 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 DA 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, an Army Activity may only respond directly to the requester 
after coordination with the outside agency.
    (6) Army Activities that receive requests for records of the 
National Security Council (NSC), the White House, or the White House 
Military Office (WHMO) shall process the requests. Army records in 
which the NSC or White House has a concurrent reviewing interest, and 
NSC, White House, or WHMO records discovered in Army Activity's files 
shall be forwarded through DA, FOIA/PA Office, to the Washington 
Headquarters Services, Office For Freedom of Information and Security 
Review (OFOISR). The OFOISR shall coordinate with the NSC, White House, 
or WHMO and return the records to the originating agency after 
coordination.
    (7) To the extent referrals are consistent with the policies 
expressed by this section, referrals between offices of the same Army 
Activity are authorized.
    (8) On occasion, the DA receives FOIA requests for General 
Accounting Office (GAO) records containing Army information. Even 
though the GAO is outside the Executive Branch, and not subject to the 
FOIA, all FOIA requests

[[Page 77842]]

for GAO documents containing Army information received either from the 
public or on referral from the GAO shall be processed under the 
provisions of the FOIA.
    (j) Authentication. Records provided under this part shall be 
authenticated with an appropriate seal, whenever necessary, to fulfill 
an official Government or other legal function. This service, however, 
is in addition to that required under the FOIA and is not included in 
the FOIA fee schedule. Army Activities may charge for the service at a 
rate of $5.20 for each authentication.
    (k) Records management. FOIA records shall be maintained and 
disposed of in accordance with the National Archives and Records 
Administration (NARA) General Records Schedule and DoD Component 
records schedules.
    (l) Record-keeping requirements in accordance with the Army Records 
Information Management System (ARIMS). The records listed below are 
required by ARIMS in the conduct of the daily business of the Army to 
provide adequate and proper documentation to protect the rights and 
interests of individuals and the Federal Government. The full 
description of the records and their disposition is found at https://www2.arims.army.mil.
    (1) FOIA requests, access, and denials;
    (2) FOIA administrative files;
    (3) FOIA appeals;
    (4) FOIA controls;
    (5) FOIA reports;
    (6) Access to information files;
    (7) Safeguarded nondefense information releases;
    (8) Nonsafeguarded information releases;
    (9) Unauthorized disclosure reports;
    (10) Acknowledgement; and
    (11) Initial Denial Authority designations/appointments.
    (m) Relationship between the FOIA and the Privacy Act (PA). Not all 
requesters are knowledgeable of the appropriate statutory authority to 
cite when requesting records, nor are all of them aware of appeal 
procedures. In some instances, they may cite neither Act, but will 
imply one or both Acts. For these reasons, the below guidelines are 
provided to ensure that requesters receive the greatest amount of 
access rights under both Acts.
    (1) 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 lawfully admitted for permanent residence.
    (2) 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 if 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.
    (3) Requesters who seek records about themselves that are not 
contained in a Privacy Act 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.
    (4) 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 if 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.
    (5) Requesters who seek access to agency records that are not part 
of a PA system of records, and who cite or imply the PA and FOIA, will 
have their requests processed under the FOIA since the PA does not 
apply to these records. Appeals shall be processed under the FOIA. 
Requesters who seek access to agency records and who cite or imply the 
FOIA will have their requests and appeals processed under the FOIA.
    (6) Requesters shall be advised in the final response letter, which 
Act(s) was (were) used, inclusive of appeal rights as outlined in 
paragraphs (m)(1) through (5) of this section.
    (n) Non-responsive information in responsive records. Army 
Activities shall interpret FOIA requests liberally when determining 
which records are responsive to the requests, and may release non-
responsive information. However, should Army 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 delete the 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 that 
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 exempt under (state appropriate exemption(s)). 
Advise the requester of the right to request this information under a 
separate FOIA request. The separate request shall be placed in the same 
location within the processing queue as the original request.
    (3) If the responsive record is classified, and the requester does 
not agree to deletion of non-responsive information without a FOIA 
exemption, release all unclassified responsive and non-responsive 
information that is not exempt. The classified, non-responsive 
information need not be reviewed for declassification at this point. 
Advise the requester that even if the classified information were 
determined responsive, it would likely be exempt under 5 U.S.C. 
552(b)(1), and other exemptions if appropriate. Advise the requester of 
the right to request this information under a separate FOIA request. 
The separate request shall be placed in the same location within the 
processing queue as the original request.
    (o) Honoring form or format requests. Army 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. Army Activities 
shall make reasonable efforts to maintain their records in forms or 
formats that are reproducible. In responding to requests for records, 
Army 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 Army Activities' automated 
information system. Such determinations shall be made on a case-by-case 
basis.

Subpart B--FOIA Reading Rooms


Sec.  518.9  Reading room.

    (a) Reading room location. The DA shall provide an appropriate 
facility or facilities where the public may inspect and copy or have 
copied the records described in paragraphs (b)(1) through (4) of this 
section. In addition to the records described, DA may elect to place 
other records in their reading room, and also make them electronically 
available to the public. The Army may share reading room facilities 
with DoD Components if the public is not unduly inconvenienced, and 
also may establish decentralized reading rooms. When appropriate, the 
cost of copying may be

[[Page 77843]]

imposed on the person requesting the material in accordance with the 
provisions of Subpart F of this part. The Army FOIA Public Reading Room 
is operated by the DA, FOIA/PA Office.
    (b) Record availability. The FOIA requires that records described 
in 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) created on or after 
November 1, 1996, shall be made available electronically, 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. All 
portions determined to be exempt in accordance with 5 U.S.C. 552 
(reference (a)) shall be deleted from all 5 U.S.C. 552(a)(2) records 
made available to the general public. In every case, justification for 
the deletion must be fully explained in writing, and the extent of such 
deletion shall be indicated on the record that 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, the Army 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 Army may refer to this 
description rather than write a separate justification for each 
deletion. 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) records are:
    (1) (a)(2)(A) records. Final opinions, including concurring and 
dissenting opinions, and orders made in the adjudication of cases, as 
defined in 5 U.S.C. 551, that may be cited, used, or relied upon as 
precedents in future adjudications;
    (2) (a)(2)(B) records. Statements of policy and interpretations 
that have been adopted by the agency that are not published in the 
Federal Register; and
    (3) (a)(2)(C) records. Administrative staff manuals and 
instructions, or portions thereof that establish Army 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 Army. Examples of 
manuals and instructions not normally made available are:
    (i) Those issued for audit, investigation, and inspection purposes, 
or those that prescribe operational tactics, standards of performance, 
or criteria for defense, prosecution, or settlement of cases; and
    (ii) Operations and maintenance manuals and technical information 
concerning munitions, equipment, systems, and intelligence activities.
    (4) (a)(2)(D) records. Those 5 U.S.C. 552(a)(3) records, which 
because of the nature of the subject matter, have become or are likely 
to become the subject of subsequent requests for substantially the same 
records. These records are referred to as FOIA-processed (a)(2) 
records.
    (i) Army Activities shall decide on a case by case basis whether 
records fall into this category, based on previous experience of the 
Army Activity with similar records; particular circumstances of the 
records involved, including their nature and the type of information 
contained in them; or the identity and number of requesters and whether 
there is widespread press, historic, or commercial interest in the 
records.
    (ii) This provision is intended for situations where public access 
in a timely manner is important, and it is not intended to apply where 
there may be a limited number of requests over a short period of time 
from a few requesters. Army Activities may remove the records from this 
access medium when the appropriate officials determine that access is 
no longer necessary.
    (iii) Should a requester submit a FOIA request for FOIA-processed 
(a)(2) records, and insist that the request be processed, Army 
Activities shall process the FOIA request. However, Army Activities 
have no obligation to process a FOIA request for 5 U.S.C. 552(a)(2)(A), 
(B), and (C) records because these records are required to be made 
public and not FOIA-processed under paragraph (a)(3) of the FOIA.


Sec.  518.10  ``(a)(2)'' materials.

    (a) The DA FOIA/PA Office shall maintain in the facility an index 
of materials described in paragraphs (b)(1) through (4) of Sec.  518.9, 
that are issued, adopted, or promulgated after July 4, 1967. No 
``(a)(2)'' materials issued, promulgated, or adopted after July 4, 1967 
that are not indexed and either made available or published may be 
relied upon, used or cited as precedent against any individual unless 
such individual has actual and timely notice of the contents of such 
materials. Such materials issued, promulgated, or adopted before July 
4, 1967 need not be indexed, but must be made available upon request if 
not exempted under this part.
    (b) The DA FOIA/PA Office shall promptly publish quarterly or more 
frequently, and distribute, by sale or otherwise, copies of each index 
of ``(a)(2)'' materials or supplements thereto unless it publishes in 
the Federal Register an order containing a determination that 
publication is unnecessary and impracticable. A copy of each index or 
supplement not published shall be provided to a requester at a cost not 
to exceed the direct cost of duplication as set forth in Subpart F of 
this part.
    (c) Each index of ``(a)(2)'' materials or supplement thereto shall 
be arranged topically or by descriptive words rather than by case name 
or numbering system so that members of the public can readily locate 
material. Case name and numbering arrangements, however, may also be 
included for Army convenience.
    (d) A general index of FOIA-processed (a)(2) records shall be made 
available to the public, both in hard copy and electronically.


Sec.  518.11  Other materials.

    (a) Any available index of Army material published in the Federal 
Register, such as material required to be published by Section 
552(a)(1) of the FOIA, shall be made available in the Army FOIA Public 
Reading Room, and electronically to the public.
    (b) Although not required to be made available in response to FOIA 
requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials 
shall, when feasible, be made available to the public in FOIA reading 
rooms for inspection and copying, and by electronic means. Examples of 
``(a)(1)'' materials are descriptions of an agency's central and field 
organization, and to the extent they affect the public, rules of 
procedures, descriptions of forms available, instruction as to the 
scope and contents of papers, reports, or examinations, and any 
amendment, revision, or report of the aforementioned.

Subpart C--Exemptions


Sec.  518.12  General.

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


Sec.  518.13  FOIA exemptions.

    The following types of records may be withheld in whole or in part 
from public disclosure under the FOIA, unless otherwise prescribed by 
law. A discretionary release of a record to one requester shall prevent 
the withholding

[[Page 77844]]

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 to that which has been 
the subject of a discretionary release. In applying exemptions, the 
identity of the requester and the purpose for which the record is 
sought are irrelevant with the exception that an exemption may not be 
invoked where the particular interest to be protected is the 
requester's interest. However, if the subject of the record is the 
requester for the record and the record is contained in a PA system of 
records, it may only be denied to the requester if withholding is both 
authorized by AR 25-71 and by a FOIA exemption.
    (a) Number 1 (5 U.S.C. 552 (b)(1)). Those properly and currently 
classified in the interest of national defense or foreign policy, as 
specifically authorized under the criteria established by Executive 
Order and implemented by regulations, such as DoD 5200.1-R. Although 
material is not classified at the time of the FOIA request, a 
classification review may be undertaken to determine whether the 
information should be classified. The procedures in DoD 5200.1-R apply. 
If the information qualifies as exemption 1 information, there is no 
discretion regarding its release. In addition, this exemption shall be 
invoked when the following situations are apparent:
    (1) The fact of the existence or nonexistence of a record would 
itself reveal classified information. In this situation, Army 
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.
    (2) Compilations of items of information that are individually 
unclassified may be classified if the compiled information reveals 
additional association or relationship that meets the standard for 
classification under an existing executive order for classification and 
DoD 5200.1-R, 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 DoD or any of its Components. This 
exemption has two profiles, high (b)(2) and low (b)(2). Activities are 
encouraged to consult the DA, FOIA/PA Office, and the U.S. DoJ 
``Freedom of Information Act Guide & Privacy Act Overview'' for a more 
in depth discussion on the legal history of the use of the low (b)(2) 
exemption. When only a minimal Government interest would be affected 
(administrative burden), Army Activities shall apply the sound legal 
basis standard regarding disclosure of the information. Army Activities 
shall apply the low 2 exemption as applicable.
    (1) Records qualifying under high (b)(2) are those containing or 
constituting statutes, rules, regulations, orders, manuals, directives, 
instructions, security classification guides, and sensitive but 
unclassified information related to America's homeland security and 
critical infrastructure information the release of which would allow 
circumvention of these records thereby substantially hindering the 
effective performance or present an unwarranted risk of adverse impact 
on the ability of other agencies to protect other important records of 
a significant function of the DA. Examples include:
    (i) Those operating rules, guidelines, and manuals for Army 
investigators, inspectors, auditors, or examiners that must remain 
privileged in order for the Army Activity to fulfill a legal 
requirement;
    (ii) Personnel and other administrative matters, such as 
examination questions and answers used in training courses or in the 
determination of the qualifications of candidates for employment, 
entrance on duty, advancement, or promotion; and
    (iii) Computer software, the release of which would allow 
circumvention of a statute, DoD or Army rules, regulations, orders, 
manuals, directives, or instructions. In this situation, the use of the 
software must be closely examined to ensure a circumvention possibility 
exists.
    (2) Records qualifying under the low (b)(2) profile are those that 
are trivial and housekeeping in nature for which there is no legitimate 
public interest or benefit to be gained by release, and it would 
constitute an administrative burden to process the request in order to 
disclose the records. Examples include rules of personnel's use of 
parking facilities or regulation of lunch 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. 
Army Activities shall apply the low 2 exemption as applicable.
    (c) Number 3 (5 U.S.C. 552(b)(3)). Those concerning matters that a 
statute specifically exempts from disclosure by terms that permit no 
discretion on the issue, or in accordance with criteria established by 
that statute for withholding or referring to particular types of 
matters to be withheld. The DA, FOIA/PA Office, maintains a list of 
(b)(3) statutes used within the DoD, and provides updated lists of 
these statutes to Army Activities on a periodic basis. A few examples 
of such statutes are:
    (1) Personnel in Overseas, Sensitive, or Routinely Deployable 
Units: nondisclosure of personally identifying information, 10 U.S.C. 
130(b). Additionally, the names and duty addresses (postal and/or e-
mail) of Army 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 and may also be withheld in accordance with FOIA Exemption 3. 
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, in accordance with 10 U.S.C. 130 ``Personnel in Overseas, 
Sensitive, or Routinely Deployable Units;''
    (2) Classification and Declassification of Restricted Data, 42 
U.S.C. 2162;
    (3) Disclosure of Classified Information, 18 U.S.C. 798(a);
    (4) Authority to Withhold from Public Disclosure Certain Technical 
Data, 10 U.S.C. 130 and DoDD 5230.25;
    (5) Confidentiality of Medical Quality Assurance Records: Qualified 
Immunity for Participants, 10 U.S.C. 1102(f);
    (6) Physical Protection of Special Nuclear Material: Limitation on 
Dissemination of Unclassified Information, 10 U.S.C. 128;
    (7) Protection of Intelligence Sources and Methods, 50 U.S.C. 403-
3(c)(6);
    (8) Prohibition on Release of Contractor Submitted Proposals, 10 
U.S.C. 2305(g);
    (9) Restrictions on Disclosing and Obtaining Contractor Bid or 
Proposal Information or Source Selection Information, 41 U.S.C. 423; 
and
    (10) Secrecy of Certain Inventions and Filing Applications in a 
Foreign Country, 35 U.S.C. 181-188. Any records containing information 
relating to inventions that are the subject of

[[Page 77845]]

patent applications on which Patent Secrecy Orders have been issued.
    (d) Number 4 (5 U.S.C. 552 (b)(4)). Those containing trade secrets 
or commercial or financial information that an Army 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 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 Army 
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 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 DA;
    (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. 2320-2311 and DoD Federal Acquisition Regulation Supplement 
(DFARS), Subpart 27.4. Technical data developed exclusively with 
Federal funds may be withheld under Exemption Number 3 if it meets the 
criteria of 10 U.S.C. 130 and DoDD 5230.25;
    (7) Computer software, which is copyrighted in accordance with 17 
U.S.C. 106, `Exclusive rights in Copyrighted Works, the disclosure of 
which would have an adverse impact on the potential market value of a 
copyrighted work; and
    (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) Number 5 (5 U.S.C. 552 (b)(5)). Those containing information 
considered privileged in litigation, primarily under the deliberative 
process privilege. Except as provided in paragraphs (e) (1) through (5) 
of this section, internal advice, recommendations, and subjective 
evaluations, as contrasted with factual matters that are reflected in 
deliberative records pertaining to the decision-making process of an 
agency, whether within or among agencies (as defined in 5 U.S.C. 
552(e)), or within or among Army Activities. In order to meet the test 
of this exemption, the record must be both deliberative in nature, as 
well as part of a decision-making process. Merely being an internal 
record is insufficient basis for withholding under this exemption. Also 
potentially exempted are records pertaining to the attorney-client 
privilege and the attorney work-product privilege. Discretionary 
disclosure decisions should be made only after full and deliberate 
consideration of the institutional, commercial, and personal privacy 
interests that could be implicated by disclosure of the information.
    (1) Examples of the deliberative process include:
    (i)The non-factual portions of staff papers, to include after-
action reports, lessons learned, and situation reports containing staff 
evaluations, advice, opinions, or suggestions;
    (ii) Advice, suggestions, or evaluations prepared on behalf of the 
DA by individual consultants or by boards, committees, councils, 
groups, panels, conferences, commissions, task forces, or other similar 
groups that are formed for the purpose of obtaining advice and 
recommendations.;
    (iii) Those non-factual portions of evaluations by DoD Component 
personnel of contractors and their products;
    (iv) Information of a speculative, tentative, or evaluative nature 
or such matters as proposed plans to procure, lease or otherwise 
acquire and dispose of materials, real estate, facilities or functions, 
when such information would provide undue or unfair competitive 
advantage to private personal interests or would impede legitimate 
government functions;
    (v) Trade secret or other confidential research development, or 
commercial information owned by the Government, where premature release 
is likely to affect the Government's negotiating position or other 
commercial interest;
    (vi) 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 Army Activities, when these records have 
traditionally been treated by the courts as privileged against 
disclosure in litigation; and
    (vii) Planning, programming, and budgetary information that is 
involved in the defense planning and resource allocation process.
    (2) If any such intra-or inter-agency record or reasonably 
segregable portion of such record hypothetically would be made 
available routinely through the discovery process in the course of 
litigation with the Army, 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.

[[Page 77846]]

    (3) Intra- or inter-agency memoranda or letters that are factual, 
or those reasonably segregable portions that are factual, are routinely 
made available through discovery, and shall be made available to a 
requester, unless the factual material is otherwise exempt from 
release, inextricably intertwined with the exempt information, so 
fragmented as to be uninformative, or so redundant of information 
already available to the requester as to provide no new substantive 
information.
    (4) A direction or order from a superior to a subordinate, though 
contained in an internal communication, generally cannot be withheld 
from a requester if it constitutes policy guidance or a decision, as 
distinguished from a discussion of preliminary matters or a request for 
information or advice that would compromise the decision-making 
process.
    (5) An internal communication concerning a decision that 
subsequently has been made a matter of public record must be made 
available to a requester when the rationale for the decision is 
expressly adopted or incorporated by reference in the record containing 
the decision.
    (f) Number 6 (5 U.S.C. 552 (b)(6)). Information in personnel and 
medical files, as well as similar personal information in other files, 
and lists of personally identifying information of Army personnel, 
that, if disclosed to a requester, other than the person about whom the 
information is about, would result in a clearly unwarranted invasion of 
personal privacy. Release of information about an individual contained 
in a Privacy Act System of Records that would constitute a clearly 
unwarranted invasion of privacy is prohibited, and could subject the 
releaser to civil and criminal penalties. If the information qualifies 
as exemption 6 information, there is no discretion regarding its 
release.
    (1) Examples of other files containing personal information similar 
to that contained in personnel and medical files include:
    (i) Those compiled to evaluate or adjudicate the suitability of 
candidates for civilian employment or membership in the Armed Forces, 
and the eligibility of individuals (civilian, military, or contractor 
employees) for security clearances, or for access to particularly 
sensitive classified information; and
    (ii) Files containing reports, records, and other material 
pertaining to personnel matters in which administrative action, 
including disciplinary action, may be taken.
    (2) Army components shall ordinarily withhold lists of names 
(including active duty military, civilian employees, contractors, 
members of the National Guard and Reserves, and military dependents) 
and other personally identifying information, including lists of e-mail 
addresses of personnel currently or recently assigned within a 
particular component, unit, organization, or office within the Army. 
Home addresses, including private e-mail addresses, are normally not 
releasable without the consent of the individuals concerned. This 
includes lists of home addresses and military quarters' addressees 
without the occupant's name.
    (i) Privacy interest. A privacy interest may exist in personal 
information even though the information has been disclosed at some 
place and time. If personal information is not freely available from 
sources other than the Federal Government, a privacy interest exists in 
its nondisclosure. The fact that the Federal Government expended funds 
to prepare, index and maintain records on personal information, and the 
fact that a requester invokes FOIA to obtain these records indicates 
the information is not freely available.
    (ii) The right to privacy of deceased persons is not entirely 
settled, but the majority rule is that death extinguishes their privacy 
rights. However, particularly sensitive, graphic, personal details 
about the circumstances surrounding an individual's death may be 
withheld when necessary to protect the privacy interests of surviving 
family members. Even information that is not particularly sensitive in 
and of itself may be withheld to protect the privacy interests of 
surviving family members if disclosure would rekindle grief, anguish, 
pain, embarrassment, or cause a disruption of their peace of minds. 
Additionally, the deceased's social security number should be withheld 
since it is used by the next of kin to receive benefits. Disclosures of 
the deceased's social security number may be made to the immediate next 
of kin.
    (iii) A clearly unwarranted invasion of the privacy of third 
parties identified in a personnel, medical or similar record 
constitutes a basis for deleting those reasonably segregable portions 
of that record. When withholding third party personal information from 
the subject of the record and the record is contained in a Privacy Act 
system of records, consult with legal counsel.
    (iv) 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, Army 
Activities shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This is a ``Glomar'' response, and 
exemption 6 must be cited in the response. Additionally, in order to 
ensure personal privacy is not violated during referrals, Army 
Activities shall coordinate telephonically or in person with other Army 
Activities or DoD Components or Federal Agencies before referring a 
record that is exempt under the ``Glomar'' concept. See Phillippi v. 
CIA, 546 F.2d 1009 (D.C. Cir. 1976).
    (v) 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. Refusal to confirm or deny should not be used when:
    (A) The person whose personal privacy is in jeopardy has provided 
the requester a waiver of his or her privacy rights;
    (B) The person initiated or directly participated in an 
investigation that lead to the creation of an agency record seeks 
access to that record; or
    (C) The person whose personal privacy is in jeopardy is deceased, 
the Agency is aware of that fact, and disclosure would not invade the 
privacy of the deceased's family.
    (g) Number 7 (5 U.S.C. 552 (b)(7)). Records or information compiled 
for law enforcement purposes, i.e., civil, criminal, or military, 
including the implementation of Executive Orders or regulations issued 
pursuant to law. This exemption may be invoked to prevent disclosure of 
documents not originally created for, but later gathered for law 
enforcement purposes. With the exception of parts (C) and (F), this 
exemption is discretionary. If information qualifies as exemption 
(7)(C) or (7)(F) information, there is no discretion in its release.
    (1) This exemption applies, however, only to the extent that 
production of such law enforcement records or information could result 
in the following:
    (i) Could reasonably be expected to interfere with law enforcement 
proceedings (5 U.S.C. 552(b)(7)(A));
    (ii) Would deprive a person of the right to a fair trial or to an 
impartial adjudication (5 U.S.C. 552(b)(7)(B));
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of the personal privacy of a living person,

[[Page 77847]]

or to surviving family members of an individual identified in such a 
record (5 U.S.C. 552(b)(7)(C));
    (iv) 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, 
Activities shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This is a ``Glomar'' response, and 
exemption (7)(C) must be cited in the response. Additionally, in order 
to ensure personal privacy is not violated during referrals, Army 
Activities shall coordinate with other Army Activities or DoD 
Components or Federal Agencies before referring a record that is exempt 
under the ``Glomar'' concept;
    (v) 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;
    (vi) 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 Agency is aware of that 
fact and disclosure would not invade the privacy of the deceased's 
family;
    (vii) Could reasonably be expected to disclose the identity of a 
confidential source, including a source within DoD, a State, local, or 
foreign agency or authority, or any private institution that furnishes 
the information on a confidential basis; and could disclose information 
furnished from a confidential source and obtained by a criminal law 
enforcement authority in a criminal investigation or by an agency 
conducting a lawful national security intelligence investigation (5 
U.S.C. 552(b)(7)(D));
    (viii) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law (5 U.S.C. 
552(b)(7)(E)); or
    (ix) Could reasonably be expected to endanger the life or physical 
safety of any individual (5 U.S.C. 552(b)(7)(F)).
    (2) Some examples of exemption 7 are:
    (i) Statements of witnesses and other material developed during the 
course of the investigation and all materials prepared in connection 
with related Government litigation or adjudicative proceedings;
    (ii) The identity of firms or individuals being investigated for 
alleged irregularities involving contracting with the DoD when no 
indictment has been obtained or any civil action filed against them by 
the United States; and
    (iii) Information obtained in confidence, expressed or implied, in 
the course of a criminal investigation by a criminal law enforcement 
agency or office within an Army Activity or a DoD Component, or a 
lawful national security intelligence investigation conducted by an 
authorized agency or office within an Army Activity or a DoD Component. 
National security intelligence investigations include background 
security investigations and those investigations conducted for the 
purpose of obtaining affirmative or counterintelligence information.
    (3) The right of individual litigants to investigative records 
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500), 
is not diminished.
    (4) Excluded from exemption 7 are two situations applicable to DoD. 
(Activities considering invoking an exclusion based on the following 
scenarios should first consult through legal counsel, to the DoJ, 
Office of Information and Privacy (DoJ OIP).
    (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, Activities may, during only 
such times as that circumstance continues, treat the records or 
information as not subject to the FOIA. In such a 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 an Army Activity or a DoD Component 
under the informant's name or personal identifier are requested by a 
third party using the informant's name or personal identifier, the 
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.
    (h) Number 8 (5 U.S.C. 552(b)(8)). Those contained in or related to 
examination, operation or condition reports prepared by, on behalf of, 
or for the use of any agency responsible for the regulation or 
supervision of financial institutions.
    (i) Number 9 (5 U.S.C. 552(b)(9)). Those containing geological and 
geophysical information and data (including maps) concerning wells.

Subpart D--For Official Use Only


Sec.  518.14  General.

    Information that has not been given a security classification 
pursuant to the criteria of an Executive Order, but which may be 
withheld from the public because disclosure would cause harm to an 
interest protected by one or more FOIA exemptions 2 through 9 (see 
Subpart C of this part) shall be considered as being for official use 
only (FOUO). No other material shall be considered FOUO and FOUO is not 
authorized as an additional form of classification to protect national 
security interests. Additional information on FOUO and other 
controlled, unclassified information may be found in DoD 5200.1-R, 
``Information Security Program'' or by contacting the DA FOIA/PA 
Office.

Subpart E--Release and Processing Procedures


Sec.  518.15  General provisions.

    (a) Since the policy of the DoD is to make the maximum amount of 
information available to the public consistent with its other 
responsibilities, written requests for an Army record made under the 
provisions of 5 U.S.C. 552(a)(3) of the FOIA may be denied only when:
    (1) The record is subject to one or more of the exemptions of the 
FOIA;
    (2) The record has not been described well enough to enable the 
Army Activity to locate it with a reasonable amount of effort by an 
employee familiar with the files; or
    (3) The requester has failed to comply with the procedural 
requirements, including the written agreement to pay or payment of any 
required fee imposed by the instructions of the Army Activity 
concerned. When personally identifiable information in a record is 
requested by the subject of the record or his attorney, notarization of 
the request, or a statement certifying under the penalty of perjury 
that their identity is true and correct may be required.

[[Page 77848]]

Additionally, written consent of the subject of the record is required 
for disclosure from a PA system of records, to include the subject's 
attorney.
    (4) Release of information under the FOIA can have an adverse 
impact on OPSEC. The Army implementing directive for OPSEC is AR 530-1. 
It requires that OPSEC points of contact be named for all HQDA staff 
agencies and for all commands down to battalion level. The FOIA 
official for the staff agency or command will use DA Form 4948-R to 
announce the OPSEC/FOIA advisor for the command. Persons named as OPSEC 
points of contact will be OPSEC/FOIA advisors. Command OPSEC/FOIA 
advisors should implement the policies and procedures in AR 530-1, 
consistent with this part and with the following considerations:
    (i) Documents or parts of documents properly classified in the 
interest of national security must be protected. Classified documents 
may be released in response to a FOIA request only under AR 380-5, 
Chapter III. AR 380-5 provides that if parts of a document are not 
classified and can be segregated with reasonable ease, they may be 
released, but parts requiring continued protection must be clearly 
identified.
    (ii) The release of unclassified documents could violate national 
security. When this appears possible, OPSEC/FOIA advisors should 
request a classification evaluation of the document by its proponent 
under AR 380-5, paragraphs 2-204, 2-600, 2-800, and 2-801. In such 
cases, other FOIA exemptions may also apply.
    (iii) A combination of unclassified documents, or parts of them, 
could combine to supply information that might violate national 
security if released. When this appears possible, OPSEC/FOIA advisors 
should consider classifying the combined information per AR 380-5, 
paragraph 2-211.
    (iv) A document or information may not be properly or currently 
classified when a FOIA request for it is received. In this case, the 
request may not be denied on the grounds that the document or 
information is classified except in accordance with Executive Order 
12958 as amended, Section 1.6(d), and AR 380-5, paragraph 2-204, and 
with approval of the Army OGC.
    (5) OPSEC/FOIA advisors will; advise persons processing FOIA 
requests on related OPSEC requirements; help custodians of requested 
documents prepare requests for classification evaluations; and help 
custodians of requested documents identify the parts of documents that 
must remain classified under this section and AR 380-5.
    (6) OPSEC/FOIA advisors do not, by their actions, relieve FOIA 
personnel and custodians processing FOIA requests of their 
responsibility to protect classified or exempted information.
    (b) The provisions of the FOIA are reserved for persons with 
private interests as opposed to U.S. Federal Agencies seeking official 
information. Requests from private persons will be made in writing, and 
should clearly show all other addressees within the Federal Government 
to which the request was also sent. This procedure will reduce 
processing time requirements, and ensure better inter- and intra-agency 
coordination. However, if the requester does not show all other 
addressees to which the request was also sent, Army Activities shall 
still process the request. Army Activities should encourage requesters 
to send requests by mail, facsimile, or by electronic means. Disclosure 
of records to individuals under the FOIA is considered public release 
of information, except as provided in this paragraph. DA officials will 
release the following records, upon request, to the persons specified 
below, even though these records are exempt from release to the general 
public. The statutory 20 working day limit applies.
    (1) Medical records. Commanders or chiefs of medical treatment 
facilities will release information--
    (i) On the condition of sick or injured patients to the patient's 
relatives to the extent permitted by law and regulation.
    (ii) That a patient's condition has become critical to the nearest 
known relative or to the person the patient has named to be informed in 
an emergency.
    (iii) That a diagnosis of psychosis has been made to the nearest 
known relative or to the person named by the patient.
    (iv) On births, deaths, and cases of communicable diseases to local 
officials (if required by local laws).
    (v) Copies of records of present or former soldiers, dependents, 
civilian employees, or patients in DA medical facilities will be 
released to the patient or to the patient's representative on written 
request. The attending physician can withhold records if he or she 
thinks that release may injure the patient's mental or physical health; 
in that case, copies of records will be released to the patient's next 
of kin or legal representative or to the doctor or dentist chosen by 
the patient. If the patient is adjudged insane, or dies, the copies 
will be released, on written request, to the patient's next of kin or 
legal representative.
    (vi) Copies of records may be given to a Federal or State hospital 
or penal institution if the person concerned is an inmate or patient 
there.
    (vii) Copies of records or information from them may be given to 
authorized representatives of certain agencies. The National Academy of 
Sciences, the National Research Council, and other accredited agencies 
are eligible to receive such information when they are engaged in 
cooperative studies, with the approval of The Surgeon General of the 
Army. However, certain information on drug and alcohol use cannot be 
released. AR 600-85 covers the Army's substance abuse program.
    (viii) Copies of pertinent parts of a patient's records can be 
furnished to the staff judge advocate or legal officer of the command 
in connection with the Government's collection of a claim. If proper, 
the legal officer can release this information to the tortfeasor's 
insurer without the patient's consent.


    Note: Information released to third parties must be accompanied 
by a statement of the conditions of release. The statement will 
specify that the information not be disclosed to other persons 
except as privileged communication between doctor and patient.


    (2) Military personnel records. Military personnel records will be 
released under these conditions:
    (i) DA must provide specific information about a person's military 
service (statement of military service) in response to a request by 
that person or with that person's written consent to his or her legal 
representative;
    (ii) Papers relating to applications for, designation of 
beneficiaries under, and allotments to pay premiums for, National 
Service Life Insurance or Serviceman's Group Life Insurance will be 
released to the applicant or to the insured. If the insured is adjudged 
insane (evidence of an insanity judgment must be included) or dies, the 
records will be released, on request, to designated beneficiaries or to 
the next of kin;
    (iii) Copies of DA documents that record the death of a soldier, a 
dependent, or a civilian employee will be released, on request, to that 
person's next of kin, life insurance carrier, and legal representative. 
A person acting on behalf of someone else concerned with the death 
(e.g., the executor of a will) may also obtain copies by submitting a 
written request that includes evidence of his or her representative 
capacity. That representative may give written consent for release to 
others; or
    (iv) Papers relating to the pay and allowances or allotments of a 
present or former soldier will be released to the soldier or his or her 
authorized representative. If the soldier is deceased,

[[Page 77849]]

these papers will be released to the next of kin or legal 
representatives.
    (3) Civilian personnel records. Civilian Personnel Officers (CPO) 
with custody of papers relating to the pay and allowances or allotments 
of current or former civilian employees will release them to the 
employee or his or her authorized representative. If the employee is 
deceased, these records will be released to the next of kin or legal 
representative. However, a CPO cannot release statements of witnesses, 
medical records, or other reports or documents pertaining to 
compensation for injuries or death of a DA civilian employee.
    (4) Accused persons. Release of information to the public 
concerning accused persons before determination of the case. Such 
release may prejudice the accused's opportunity for a fair and 
impartial determination of the case. The following procedures apply:
    (i) The following information concerning persons accused of an 
offense may be released by the convening authority to public news 
agencies or media. The accused's name, grade or rank, unit, regular 
assigned duties, and other information as allowed by AR 25-71, 
paragraph 3-3a. The substance or text of the offense of which the 
person is accused. The identity of the apprehending or investigating 
agency and the length or scope of the investigation before 
apprehension. The factual circumstances immediately surrounding the 
apprehension, including the time and place of apprehension, resistance, 
or pursuit. The type and place of custody, if any;
    (ii) Information that will not be released. Before evidence has 
been presented in open court, subjective observations or any 
information not incontrovertibly factual will not be released. 
Background information or information relating to the circumstances of 
an apprehension may be prejudicial to the best interests of the 
accused, and will not be released unless it serves a law enforcement 
function. The following kinds of information will not be released: 
Observations or comments on an accused's character and demeanor, 
including those at the time of apprehension and arrest or during 
pretrial custody. Statements, admissions, confessions, or alibis 
attributable to an accused, or the fact of refusal or failure of the 
accused to make a statement. Reference to confidential sources, 
investigative techniques and procedures, investigator notes, and 
activity files. This includes reference to fingerprint tests, polygraph 
examinations, blood tests, firearms identification tests, or similar 
laboratory tests or examinations. Statements as to the identity, 
credibility, or testimony of prospective witnesses. Statements 
concerning evidence or argument in the case, whether or not that 
evidence or argument may be used at the trial. Any opinion on the 
accused's guilt. Any opinion on the possibility of a plea of guilty to 
the offense charged, or of a plea to a lesser offense;
    (iii) Other considerations. Photographing or televising the 
accused. DA personnel should not encourage or volunteer assistance to 
news media in photographing or televising an accused or suspected 
person being held or transported in military custody. DA 
representatives should not make photographs of an accused or suspect 
available unless a law enforcement function is served. Requests from 
news media to take photographs during courts-martial are governed by AR 
360-1;
    (iv) Fugitives from justice. This section does not restrict the 
release of information to enlist public aid in apprehending a fugitive 
from justice; or
    (v) Exceptional cases. Permission to release information from 
military personnel records to public news agencies or media may be 
requested from The Judge Advocate General (TJAG). Requests for 
information from military personnel records will be processed according 
to this part.
    (5) Litigation, tort claims, and contract disputes. Release of 
information or records under this section are subject to the time 
limitations prescribed by the FOIA. The requester must be advised of 
the reasons for nonrelease or referral.
    (i) Litigation. Each request for a record related to pending 
litigation involving the United States will be referred to the staff 
judge advocate or legal officer of the command. He or she will promptly 
inform the Litigation Division, U.S. Army Legal Services Agency 
(USALSA), of the substance of the request and the content of the record 
requested. (Mailing address: U.S. Army Litigation Center, 901 N. Stuart 
Street, Arlington, VA 22203-1837. If information is released for use in 
litigation involving the United States, the Chief, Army Litigation 
Division (AR 27-40, para 1-4d) must be advised of the release. He or 
she will note the release in such investigative reports. Information or 
records normally exempted from release (i.e., personnel and medical 
records) may be releasable to the judge or court concerned, for use in 
litigation to which the United States is not a party. Refer such 
requests to the local staff judge advocate or legal officer, who will 
coordinate it with the Litigation Center, USALSA.
    (ii) Tort claims. A claimant or a claimant's attorney may request a 
record that relates to a pending administrative tort claim filed 
against the DA. Refer such requests promptly to the claims approving or 
settlement authority that has monetary jurisdiction over the pending 
claim. These authorities will follow AR 27-20. The request may concern 
an incident in which the pending claim is not as large as a potential 
claim; in such a case, refer the request to the authority that has 
monetary jurisdiction over the potential claim. A potential claimant or 
his or her attorney may request information under circumstances clearly 
indicating that it will be used to file a tort claim, though none has 
yet been filed. Refer such requests to the staff judge advocate or 
legal officer of the command. That authority, when subordinate, will 
promptly inform the Chief, U.S. Army Claims Service (USACS), of the 
substance of the request and the content of the record. (Mailing 
address: U.S. Army Claims Service, ATTN: JACS-TCC, Fort George G. 
Meade, MD 20755-5360. IDA officials who receive requests will refer 
them directly to the Chief, USACS. They will also advise the requesters 
of the referral and the basis for it. The Chief, USACS, will process 
requests according to this part and AR 27-20, paragraph 1-10.
    (iii) Contract disputes. Each request for a record that relates to 
a potential contract dispute or a dispute that has not reached final 
decision by the contracting officer will be treated as a request for 
procurement records and not as litigation. However, the officials will 
consider the effect of release on the potential dispute. Those 
officials may consult with the USALSA, Contract Appeals Division. 
(Mailing address: U.S. Army Legal Services Agency, ATTN: JALS-CA, 901 
North Stuart Street, Arlington, VA 22203. If the request is for a 
record that relates to a pending contract appeal to the Armed Services 
Board of Contract Appeals, or to a final decision that is still subject 
to appeal (i.e., 90 days have not lapsed after receipt of the final 
decision by the contractor) then the request will be: Treated as 
involving a contract dispute; and referred to the USALSA, Contract 
Appeals Division.
    (6) Special nuclear material. Dissemination of unclassified 
information concerning physical protection of special nuclear material.
    (i) Unauthorized dissemination of unclassified information 
pertaining to security measures, including security plans, procedures, 
and equipment for the physical protection of special

[[Page 77850]]

nuclear material, is prohibited under 10 U.S.C. 128.
    (ii) This prohibition shall be applied by the Deputy Chief of 
Staff, G-3 as the IDA, to prohibit the dissemination of any such 
information only if and to the extent that it is determined that the 
unauthorized dissemination of such information could reasonably be 
expected to have a significant adverse effect on the health and safety 
of the public or the common defense and security by significantly 
increasing the likelihood of illegal production of nuclear weapons, 
theft, diversion, or sabotage of special nuclear materials, equipment, 
or facilities.
    (iii) In making such a determination, Army personnel may consider 
what the likelihood of an illegal production, theft, diversion, or 
sabotage would be if the information proposed to be prohibited from 
dissemination were at no time available for dissemination.
    (iv) Army personnel shall exercise the foregoing authority to 
prohibit the dissemination of any information described so as to apply 
the minimum restrictions needed to protect the health and safety of the 
public or the common defense and security, and upon a determination 
that the unauthorized dissemination of such information could 
reasonably be expected to result in a significant adverse effect on the 
health and safety of the public or the common defense and security by 
significantly increasing the likelihood of illegal production of 
nuclear weapons, theft, diversion, or sabotage of special nuclear 
materials, equipment, or facilities.
    (v) Army employees shall not use this authority to withhold 
information from the appropriate committees of Congress.
    (7) Names and duty addresses. Lists of names, including telephone 
directories, organizational charts, and/or staff directories published 
by installations or activities, and other personally identifying 
information will ordinarily be withheld when requested under the FOIA. 
This does not preclude a discretionary release of names and duty 
information of personnel who, by the nature of their position and 
duties, frequently interact with the public, such as general officers, 
public affairs officers, and other personnel designated as official 
command spokespersons. The IDA for telephone directories is delegated 
to the DA, FOIA/PA Office. Public Affairs Offices may, after careful 
analysis, release information determined to have legitimate news value, 
such as notices of personnel reassignments to new units or 
installations within the continental United States, results of 
selection/promotion boards, school graduations/completions, and awards 
and similar personal achievements. They may release the names and duty 
addresses of key officials, if such release is determined to be in the 
interests of advancing official community relation's functions.
    (c) Requests from government officials. Requests from officials of 
State or local Governments for Army Activity records shall be 
considered the same as any other requester. Requests from members of 
Congress not seeking records on behalf of a Congressional Committee, 
Subcommittee, either House sitting as a whole, or made on behalf of 
their constituents shall be considered the same as any other requester. 
Requests from officials of foreign governments shall be considered the 
same as any other requester; however, Army Intelligence elements are 
statutorily prohibited from releasing records responsive to requests 
made by any foreign government or a representative of a foreign 
government. Requests from officials of foreign governments that do not 
invoke the FOIA shall be referred to appropriate foreign disclosure 
channels and the requester so notified.
    (d) Privileged release outside of the FOIA to U.S. government 
officials. Records exempt from release to the public under the FOIA may 
be disclosed in accordance with Army regulations to agencies of the 
Federal Government, whether legislative, executive, or administrative, 
as follows:
    (1) In response to a request of a Committee or Subcommittee of 
Congress, or to either House sitting as a whole in accordance with DoDD 
5400.4. The Army implementing directive is AR 1-20. Commanders or 
chiefs will notify the Chief of Legislative Liaison of all releases of 
information to members of Congress or staffs of congressional 
committees. Organizations that in the normal course of business are 
required to provide information to Congress may be excepted. Handle 
requests by members of Congress (or staffs of congressional committees) 
for inspection of copies of official records as follows:
    (i) National security classified records, follow AR 380-5;
    (ii) Civilian personnel records, members of Congressional 
Committees, Subcommittees, or Joint Committees may examine official 
personnel folders to the extent that the subject matter falls within 
their established jurisdictions, as permitted by 5 CFR 297.401(i);
    (iii) Information related to disciplinary action. This paragraph 
refers to records of trial by courts-martial; nonjudicial punishment of 
military personnel under the Uniform Code of Military Justice, Article 
15; nonpunitive measures such as administrative reprimands and 
admonitions; suspensions of civilian employees; and similar documents. 
If DA has specific instructions on the request, the following will 
apply. Subordinate commanders will not release any information without 
securing the consent of the proper installation commander. The 
installation commander may release the information unless the request 
is for a classified or ``FOUO'' document. In that case the commander 
will refer the request promptly to the Chief of Legislative Liaison for 
action, including the recommendations of the transmitting agency and 
copies of the requested records with the referral.
    (iv) Military personnel records. Only HQDA can release information 
from these records. Custodians will refer all requests from Congress 
directly and promptly to the Chief of Legislative Liaison, HQDA, 
Washington, DC 20310-1600.
    (v) Criminal investigation records. Only the Commanding General, 
U.S. Army Criminal Investigation Command (USACIDC), can release any 
USACIDC-originated criminal investigation file. For further 
information, see AR 195-2.
    (vi) Other exempt records. Commanders or chiefs will refer requests 
for all other categories of exempt information directly to the Chief of 
Legislative Liaison. They will include a copy of the material requested 
and, as appropriate, recommendations concerning release or denial.
    (vii) All other records. The commander or chief with custody of the 
records will furnish all other information promptly; to other Federal 
Agencies, both executive and administrative, as determined by the head 
of an Army Activity or designee; or in response to an order of a 
Federal court, Army Activities shall release information along with a 
description of the restrictions on its release to the public;
    (viii) Disciplinary actions and criminal investigations. Requests 
for access to, or information from, the records of disciplinary actions 
or criminal investigations will be honored if proper credentials are 
presented. Representatives of the Office of Personnel Management may be 
given information from personnel files of employees actually employed 
at organizations or activities. Each such request will be considered on 
its merits. The information released will be the

[[Page 77851]]

minimum required in connection with the investigation being conducted.
    (ix) Other types of requests. All other official requests received 
by DA elements from agencies of the executive branch (including other 
military departments) will be honored, if there are no compelling 
reasons to the contrary. If there are reasons to withhold the records, 
the requests will be submitted for determination of the propriety of 
release to the appropriate addresses shown in Appendix B of this part.
    (2) Army Activities shall inform officials receiving records under 
the provisions of this section that those records are exempt from 
public release under the FOIA. Army Activities also shall advise 
officials of any special handling instructions. Classified information 
is subject to the provisions of DoD 5200.1-R, and information contained 
in Privacy Act systems of records is subject to DoD 5400.11-R.
    (e) Consultation with affected DoD component. (1) When an Army 
Activity receives a FOIA request for a record in which an affected Army 
or DoD organization (including a Combatant Command) has a clear and 
substantial interest in the subject matter, consultation with that 
affected Army or DoD organization is required. As an example, where an 
Army Activity receives a request for records related to DoD operations 
in a foreign country, the cognizant Combatant Command for the area 
involved in the request shall be consulted before a release is made. 
Consultations may be telephonic, electronic, or in hard copy.
    (2) The affected Activity shall review the circumstances of the 
request for host-nation relations, and provide, where appropriate, FOIA 
processing assistance to the responding DoD Component regarding release 
of information. Responding Army Activities shall provide copies of 
responsive records to the affected DoD Component when requested. The 
affected DoD Component shall receive a courtesy copy of all releases in 
such circumstances.
    (3) Nothing in Sec.  518.19 shall impede the processing of the FOIA 
request initially received by an Army Activity.


Sec.  518.16  Initial determinations.

    (a) Initial denial authority. The DA officials are designated as 
the Army's only IDAs. Only an IDA, his or her delegate, or the 
Secretary of the Army can deny FOIA requests for DA records. Each IDA 
will act on direct and referred requests for records within his or her 
area of functional responsibility. (See the proper AR in the 10 series 
for full discussions of these areas. Included are records created or 
kept within the IDA's area of responsibility; records retired by, or 
referred to, the IDA's headquarters or office; and records of 
predecessor organizations. If a request involves the areas of more than 
one IDA, the IDA to whom the request was originally addressed will 
normally respond to it; however, the affected IDAs may consult on such 
requests and agree on responsibility for them. IDAs will complete all 
required coordination at initial denial level. This includes classified 
records retired to the NARA when a mandatory declassification review is 
necessary. Requests and/or responsive documents should not be sent to 
the DA FOIA/PA Office for initial denial authority or to forward to 
other offices within the DA.
    (b) FOIA requesters may ultimately appeal if they are dissatisfied 
with adverse determinations. It is crucial to forward complete packets 
to the IDAs. Ensure cover letters list all attachments and describe 
from where the records were obtained, i.e., a PA system of records 
(including the applicable systems notice), or other. If a FOIA action 
is complicated, include a chronology of events to assist the IDA in 
understanding what happened in the course of processing the FOIA 
request. If a file does not include documentation described below, 
include the tab, and insert a page marked ``not applicable'' or ``not 
used.'' The order and contents of FOIA file attachments follow: (Tab A 
or 1) The original FOIA request and envelope (if applicable); (Tab B or 
2) The response letter; (Tab C or 3) Copies of all records entirely 
released, single-sided; (Tab D or 4) Copies of administrative 
processing documents, including extension letters and ``no records'' 
certificates, in chronological order; (Tab E or 5) Copies of all 
records partially released or entirely denied, single-sided. For 
partially released records, mark in yellow highlighter (or other 
readable highlighter) those portions withheld; and (Tab F or 6) Legal 
opinions(s).
    (c) The initial determination of whether to make a record available 
or grant a fee waiver upon request may be made by any suitable official 
designated by the Army Activity in published regulations. The presence 
of the marking ``FOUO'' does not relieve the designated official of the 
responsibility to review the requested record for the purpose of 
determining whether an exemption under this part is applicable and 
should be invoked. IDAs may delegate all or part of their authority to 
a division chief under its supervision within the Agency in the grade 
of 05/civilian equivalent. Requests for delegation authority below this 
level must be submitted, after coordination, to the DA FOIA/PA Office, 
with detailed justification, for approval. Such delegations must not 
slow FOIA actions. If an IDA's delegate denies a FOIA or fee waiver 
request, the delegate must clearly state that he or she is acting for 
the IDA and identify the IDA by name and position in the written 
response to the requester. IDAs will send only the names, offices, and 
telephone numbers of their delegates to the DA, FOIA/PA Office. IDAs 
will keep this information current.
    (d) The officials designated by Army Activities to make initial 
determinations should consult with public affairs officers (PAOs) to 
become familiar with subject matters that are considered to be 
newsworthy, and advise PAOs of all requests from news media 
representatives. In addition, the officials should inform PAOs in 
advance when they intend to withhold or partially withhold a record, if 
it appears that the withholding action may be challenged in the media. 
A FOIA release or denial action, appeal, or court review may generate 
public or press interest. In such case, the IDA (or delegate) should 
consult the Chief of Public Affairs or the command or organization PAO. 
The IDA should inform the PAO contacted of the issue and obtain advice 
and recommendations on handling its public affairs aspect. Any advice 
or recommendations requested or obtained should be limited to this 
aspect. Coordination must be completed within the statutory 20 working 
day FOIA response limit. (The point of contact for the Army Chief of 
Public Affairs is HQDA (SAPA-OSR), Washington D.C. 20310-1500). If the 
request involves actual or potential litigation against the United 
States, release must be coordinated with The Judge Advocate General 
(TJAG).
    (e) The following officials are designated IDAs for the areas of 
responsibility outlined below:
    (1) The Administrative Assistant to the Secretary of the Army is 
authorized to act for the Secretary of the Army on requests for all 
records maintained by the Office of the Secretary of the Army and its 
serviced activities as well as requests requiring the personal 
attention of the Secretary of the Army. This also includes civilian 
Equal Employment Opportunity (EEO) actions. (See DCS, G-1 for military 
Equal Opportunity (EO) actions). The Administrative Assistant to the 
Secretary of the Army has delegated its authority to the Chief Attorney 
and Legal Services Directorate, U.S. Army Resources & Programs

[[Page 77852]]

Agency. (See DCS, G1 for military Equal Opportunity (EO) actions)
    (2) The Assistant Secretary of the Army (Financial Management and 
Comptroller) is authorized to act on requests for finance and 
accounting records. Requests for CONUS finance and accounting records 
should be referred to the Defense Finance and Accounting Service 
(DFAS). The Chief Attorney and Legal Services Directorate, acts on 
requests for non-finance and accounting records of the Assistant 
Secretary of the Army (Financial Management and Comptroller).
    (3) The Assistant Secretary of the Army (Acquisition, Logistics, & 
Technology) is authorized to act on requests for procurement records 
other than those under the purview of the Chief of Engineers and the 
Commander, U.S. Army Materiel Command. The Chief Attorney and Legal 
Services Directorate, acts on requests for non-procurement records of 
the Assistant Secretary of the Army (Acquisition, Logistics and 
Technology).
    (4) The Deputy Assistant Secretary of the Army (Civilian Personnel 
Policy)/Director of Civilian Personnel, Office of the Assistant 
Secretary of the Army (Manpower and Reserve Affairs) is authorized to 
act on requests for civilian personnel records, personnel 
administration and other civilian personnel matters, except for EEO 
(civilian) matters which will be acted on by the Administrative 
Assistant to the Secretary of the Army. The Deputy Assistant Secretary 
of the Army (Civilian Personnel Policy)/Director of Civilian Personnel 
has delegated this authority to the Chief, Policy and Program 
Development Division.
    (5) The Chief Information Officer, G-6 is authorized to act on 
requests for records pertaining to Army Information Technology, 
command, control communications and computer systems and the 
Information Resources Management Program (automation, 
telecommunications, visual information, records management, 
publications and printing).
    (6) The Inspector General is authorized to act on requests for all 
Inspector General Records.
    (7) The Auditor General is authorized to act on requests for 
records relating to audits done by the U.S. Army Audit Agency under AR 
10-2. This includes requests for related records developed by the Audit 
Agency.
    (8) The Director of the Army Staff is authorized to act on requests 
for all records of the Chief of Staff and its Field Operating Agencies. 
The Director of the Army Staff has delegated its authority to the Chief 
Attorney and Legal Services Directorate, U.S. Army Resources & Programs 
Agency. The Chief Attorney and Legal Services Director, U.S. Army 
Resources & Programs Agency acts on requests for records of the Chief 
of Staff and its Field Operating Agencies. (See TJAG for the (GOMO) 
actions).
    (9) The Deputy Chief of Staff, G-3 is authorized to act on requests 
for records relating to International Affairs policy, planning, 
integration and assessments, strategy formulation, force development, 
individual and unit training policy, strategic and tactical command and 
control systems, nuclear and chemical matters, use of DA forces.
    (10) The Deputy Chief of Staff, G-8 is authorized to act on 
requests for records relating to programming, material integration and 
externally directed reviews.
    (11) The Office of the Deputy Chief of Staff, G-1 is authorized to 
act on the following records: Personnel board actions, Equal 
Opportunity (military) and sexual harassment, health promotions, 
physical fitness and well being, command and leadership policy records, 
HIV and suicide policy, substance abuse programs except for individual 
treatment records which are the responsibility of the Surgeon General, 
retiree benefits, services, and programs, (excluded are individual 
personnel records of retired military personnel, which are the 
responsibility of the U.S. Army Human Resources Command-St. Louis 
(AHRC-STL), DA dealings with Veterans Affairs, U.S. Soldier's and 
Airmen's Home, retention, promotion, and separation; recruiting and MOS 
policy issues, personnel travel and transportation entitlements, 
military strength and statistics, The Army Librarian, demographics, and 
Manprint.
    (12) The Deputy Chief of Staff, G-4 is authorized to act on 
requests for records relating to DA logistical requirements and 
determinations, policy concerning materiel maintenance and use, 
equipment standards, and logistical readiness.
    (13) The Chief of Engineers is authorized to act on requests for 
records involving civil works, military construction, engineer 
procurement, and ecology; and the records of the U.S. Army Engineer 
divisions, districts, laboratories, and field operating agencies.
    (14) The Surgeon General, Commander, U.S. Army Medical Command, is 
authorized to act on requests for medical research and development 
records, and the medical records of active duty military personnel, 
dependents, and persons given physical examination or treatment at DA 
medical facilities, to include alcohol and drug treatment/test records.
    (15) The Chief of Chaplains is authorized to act on requests for 
records involving ecclesiastical relationships, rites performed by DA 
chaplains, and nonprivileged communications relating to clergy and 
active duty chaplains' military personnel files.
    (16) The Judge Advocate General is authorized to act on requests 
for records relating to claims, courts-martial, legal services, 
administrative investigations, and similar legal records. TJAG is also 
authorized to act on requests for the GOMO actions and records 
described elsewhere in this regulation, especially if those records 
relate to litigation in which the United States has an interest. In 
addition, TJAG is authorized to act on requests for records that are 
not within the functional areas of responsibility of any other IDA, 
including, but not limited to requests for records for Commands, and 
activities.
    (17) The Chief, National Guard Bureau, is authorized to act on 
requests for all personnel and medical records of retired, separated, 
discharged, deceased, and active Army National Guard military 
personnel, including technician personnel, unless such records clearly 
fall within another IDA's responsibility. This authority includes, but 
is not limited to, National Guard organization and training files; 
plans, operations, and readiness files, policy files, historical files, 
files relating to National Guard military support, drug interdiction, 
and civil disturbances; construction, civil works, and ecology records 
dealing with armories, facilities within the States, ranges, etc.; 
Equal Opportunity investigative records; aviation program records and 
financial records dealing with personnel, operation and maintenance, 
and equipment budgets.
    (18) The Chief of Army Reserve is authorized to act on requests for 
all personnel and medical records of retired, separated, discharged, 
deceased, and reserve component military personnel, and all U.S. Army 
Reserve (USAR) records, unless such records clearly fall within another 
IDA's responsibility. Records under the responsibility of the Chief of 
Army Reserve include records relating to USAR plans, policies, and 
operations; changes in the organizational status of USAR units; 
mobilization and demobilization policies, active duty tours, and the 
Individual Mobilization Augmentation program.
    (19) The Commander, United States Army Materiel Command (AMC) is 
authorized to act on requests for the records of AMC headquarters and 
to subordinate commands, units, and

[[Page 77853]]

activities that relate to procurement, logistics, research and 
development, and supply and maintenance operations.
    (20) The Provost Marshal General (PMG) is authorized to act on all 
requests for provost marshal activities and law enforcement functions 
for the army, all matters relating to police intelligence, physical 
security, criminal investigations, corrections and internment (to 
include confinement and correctional programs for U.S. prisoners, 
criminal investigations, provost marshal activities, and military 
police support. The PMG is responsible for the Office of Security, 
Force Protection, and Law Enforcement Division and is the functional 
proponent for AR 190-series (Military Police) and 195-series (Criminal 
Investigation), AR 630-10 Absent Without Leave, Desertion, and 
Administration of Personnel Involved in Civilian Court Proceedings, and 
AR 633-30, Military Sentences to Confinement.
    (21) The Commander, U.S. Army Criminal Investigation Command 
(USACIDC), is authorized to act on requests for criminal investigative 
records of USACIDC headquarters, its subordinate activities, and 
military police reports. This includes criminal investigation records, 
investigation-in-progress records, and all military police records and 
reports.
    (22) The Commander, United States Army Human Resources Command 
(USAHRC), is authorized to act on requests for military personnel files 
relating to active duty (other than those of reserve and retired 
personnel) military personnel matters, personnel locator, physical 
disability determinations, and other military personnel administration 
records; records relating to military casualty and memorialization 
activities; heraldic activities, voting, records relating to 
identification cards, naturalization and citizenship, commercial 
solicitation, Military Postal Service Agency and Army postal and 
unofficial mail service.
    (23) The Commander, USARC-StL has been delegated authority to act 
on behalf of the USAHRC for requests concerning all personnel and 
medical records of retired, separated, discharged, deceased, and 
reserve component military personnel, unless such records clearly fall 
within another IDA's authority. The authority does not include records 
relating to USAR plans, policies, and operations; changes in the 
organizational status of USAR units, mobilization and demobilization 
policies; active duty tours, and the individual mobilization 
augmentation program.
    (24) The Assistant Chief of Staff for Installation Management 
(ACSIM) is authorized to act on requests for records relating to 
planning, programming, execution and operation of Army installations. 
This includes base realignment and closure activities, environmental 
activities other than litigation, facilities and housing activities, 
and installation management support activities.
    (25) The Commander, United States Army Intelligence and Security 
Command, is authorized to act on requests for intelligence and security 
records, foreign scientific and technological records, intelligence 
training, intelligence threat assessments, and foreign liaison 
information.
    (26) The Commander, U.S. Army Safety Center, is authorized to act 
on requests for Army safety records.
    (27) The Commander, United States Army Test and Evaluation Command 
(ATEC), is authorized to act on requests for the records of ATEC 
headquarters, its subordinate commands, units, and activities that 
relate to test and evaluation operations.
    (28) The General Counsel, Army and Air Force Exchange Service 
(AAFES), is authorized to act on requests for AAFES records, under AR 
60-20/AFR 147-14.
    (29) Special IDA authority for time-event related records may be 
designated on a case-by-case basis. These will be published in the 
Federal Register. You may contact the DA, FOIA/PA Office to obtain 
current information on special delegations.
    (f) Reasons for not releasing a record. The following are reasons 
for not complying with a request for a record under 5 U.S.C. 552(a)(3).
    (1) No records. A reasonable search of files failed to identify 
responsive records. The records custodian will prepare a detailed no 
records certificate. This certificate must include, at a minimum, what 
areas or offices were searched and how the search was conducted 
(manually, by computer, etc.). The certificate will be signed by the 
records custodian and will include his or her grade and title. The 
original certificate will be forwarded to the IDA. Preprinted ``check-
the-block'' or ``fill-in-the-blank'' no records certificates are not 
authorized.
    (2) Referrals. The request is transferred to another Army Activity 
or DoD Component, or to another Federal Agency.
    (3) Request withdrawn. The request is withdrawn by the requester.
    (4) Fee-related reason. The requester is unwilling to pay fees 
associated with a request; the requester is past due in the payment of 
fees from a previous FOIA request; or the requester disagrees with the 
fee estimate.
    (5) Records not reasonably described. A record has not been 
described with sufficient particularity to enable the Army or DoD 
Component to locate it by conducting a reasonable search.
    (6) Not a proper FOIA request for some other reason. The requester 
has failed unreasonably to comply with procedural requirements, other 
than fee-related, imposed by this part or Army Activity supplementing 
regulations.
    (7) Not an agency record. The information requested is not a record 
within the meaning of the FOIA and this part.
    (8) Duplicate request. The request is a duplicate request (e.g., a 
requester asks for the same information more than once). This includes 
identical requests received via different means (e.g., electronic mail, 
facsimile, mail, and courier) at the same or different times.
    (9) Other (specify). Any other reason a requester does not comply 
with published rules other than those outlined in paragraphs (f) (1) 
through (8) of this section.
    (10) Partial or total denial. The record is denied in whole or in 
part in accordance with procedures set forth in the FOIA.
    (g) Denial tests. To deny a requested record that is in the 
possession and control of an Army Activity, it must be determined that 
the record is exempt under one or more of the exemptions of the FOIA. 
An outline of the FOIA's exemptions is contained in Subpart C of this 
part.
    (h) Reasonably segregable portions. Although portions of some 
records may be denied, the remaining reasonably segregable portions 
must be released to the requester when it reasonably can be assumed 
that a skillful and knowledgeable person could not reconstruct the 
excised information. Unless indicating the extent of the deletion would 
harm an interest protected by an exemption, the amount of deleted 
information shall be indicated on the released portion of paper records 
by use of brackets or darkened areas indicating removal of information. 
In no case shall the deleted areas be left ``white'' without the use of 
brackets to show the bounds of deleted information. In the case of 
electronic deletion, or deletion in audiovisual or microfiche records, 
if technically feasible, the amount of redacted information shall be 
indicated at the place in the record such deletion was made, unless 
including the indication would harm an interest protected by the 
exemption under which the deletion is made. This may be done by use of

[[Page 77854]]

brackets, shaded areas, or some other identifiable technique that will 
clearly show the limits of the deleted information. When a record is 
denied in whole, the response advising the requester of that 
determination will specifically state that it is not reasonable to 
segregate portions of the record for release.
    (i) Response to requester. Whenever possible, initial 
determinations to release or deny a record normally shall be made and 
the decision reported to the requester within 20 working days after 
receipt of a proper request by the official designated to respond. When 
an Army Activity has a significant number of pending requests which 
prevent a response determination within the 20 working day period, the 
requester shall be so notified in an interim response, and advised 
whether their request qualifies for the fast track or slow track within 
the Army Activity's multitrack processing system. Requesters who do not 
meet the criteria for fast track processing shall be given the 
opportunity to limit the scope of their request in order to qualify for 
fast track processing.
    (1) When a decision is made to release a record, a copy should be 
made available promptly to the requester once he has complied with 
preliminary procedural requirements.
    (2) When a request for a record is denied in whole or in part, the 
official designated to respond shall inform the requester in writing of 
the name and title or position of the official who made the 
determination, and shall explain to the requester the basis for the 
determination in sufficient detail to permit the requester to make a 
decision concerning appeal. The requester specifically shall be 
informed of the exemptions on which the denial is based, inclusive of a 
brief statement describing what the exemption(s) cover. When the 
initial denial is based in whole or in part on a security 
classification, the explanation should include a summary of the 
applicable Executive Order criteria for classification, as well as an 
explanation, to the extent reasonably feasible, of how those criteria 
apply to the particular record in question. The requester shall also be 
advised of the opportunity and procedures for appealing an unfavorable 
determination to a higher final authority within the Army Activity. The 
IDA will inform the requester of his or her right to appeal, in whole 
or part, the denial of the FOIA or fee waiver request and that the 
appeal must be sent through the IDA to the Secretary of the Army (ATTN: 
OGC).
    (3) The final response to the requester should contain information 
concerning the fee status of the request, consistent with the 
provisions of Subpart F, of this part. When a requester is assessed 
fees for processing a request, the requester's fee category shall be 
specified in the response letter. Activities also shall provide the 
requester with a complete cost breakdown (e.g., 115 pages of office 
reproduction at $0.15 per page; 5 minutes of computer search time at 
$43.50 per minute, 3 hours of professional level search at $44 per 
hour, etc.) in the response letter.
    (4) The explanation of the substantive basis for a denial shall 
include specific citation of the statutory exemption applied under 
provisions of this part; e.g., 5 U.S.C. 552 (b)(1). Merely referring to 
a classification; to a ``FOUO'' marking on the requested record; or to 
this part or an Army Activity's regulation does not constitute a proper 
citation or explanation of the basis for invoking an exemption.
    (5) When the time for response becomes an issue, the official 
responsible for replying shall acknowledge to the requester the date of 
the receipt of the request.
    (6) When denying a request for records, in whole or in part, an 
Army Activity shall make a reasonable effort to estimate the volume of 
the records denied and provide this estimate to the requester, unless 
providing such an estimate would harm an interest protected by an 
exemption of the FOIA. This estimate should be in number of pages or in 
some other reasonable form of estimation, unless the volume is 
otherwise indicated through deletions on records disclosed in part.
    (7) When denying a request for records in accordance with a statute 
qualifying as a FOIA exemption 3 statute, Army Activities shall, in 
addition to stating the particular statute relied upon to deny the 
information, also state whether a court has upheld the decision to 
withhold the information under the particular statute, and a concise 
description of the scope of the information being withheld.
    (j) Extension of time. In unusual circumstances, when additional 
time is needed to respond to the initial request, the Army Activity 
shall acknowledge the request in writing within 20 working days, 
describe the circumstances requiring the delay, and indicate the 
anticipated date for a substantive response that may not exceed 10 
additional working days, except as provided below:
    (1) With respect to a request for which a written notice has 
extended the time limits by 10 additional working days, and the 
Activity determines that it cannot make a response determination within 
that additional 10 working day period, the requester shall be notified 
and provided an opportunity to limit the scope of the request so that 
it may be processed within the extended time limit, or an opportunity 
to arrange an alternative time frame for processing the request or a 
modified request. Refusal by the requester to reasonably modify the 
request or arrange for an alternative time frame shall be considered a 
factor in determining whether exceptional circumstances exist with 
respect to Army Activity's request backlogs. Exceptional circumstances 
do not include a delay that results from predictable activity backlogs, 
unless the Army Activity demonstrates reasonable progress in reducing 
its backlog.
    (2) Unusual circumstances that may justify delay are: the need to 
search for and collect the requested records from other facilities that 
are separate from the office determined responsible for a release or 
denial decision on the requested information; the need to search for, 
collect, and appropriately examine a voluminous amount of separate and 
distinct records which are requested in a single request; and the need 
for consultation, which shall be conducted with all practicable speed, 
with other agencies having a substantial interest in the determination 
of the request, or among two or more Army Activities or DoD Components 
having a substantial subject-matter interest in the request.
    (3) Army Activities may aggregate certain requests by the same 
requester, or by a group of requesters acting in concert, if the Army 
Activity reasonably believes that such requests actually constitute a 
single request, which would otherwise satisfy the unusual circumstances 
set forth in paragraph (j)(2) of this section, and the requests involve 
clearly related matters. Multiple requests involving unrelated matters 
shall not be aggregated. If the requests are aggregated under these 
conditions, the requester or requesters shall be so notified.
    (4) In cases where the statutory time limits cannot be met and no 
informal extension of time has been agreed to, the inability to process 
any part of the request within the specified time should be explained 
to the requester with a request that he agree to await a substantive 
response by an anticipated date. It should be made clear that any such 
agreement does not prejudice the right of the requester to appeal the 
initial decision after it is made. Army Activities are reminded that 
the requester still retains the right to treat

[[Page 77855]]

this delay as a defacto denial with full administrative remedies. Only 
the responsible IDA can extend it, and the IDA must first coordinate 
with the OGC.
    (5) As an alternative to the taking of formal extensions of time 
the negotiation by the cognizant FOIA coordinating office of informal 
extensions in time with requesters is encouraged where appropriate.
    (k) Misdirected requests. Misdirected requests shall be forwarded 
promptly to the Army Activity or other Federal Agency with the 
responsibility for the records requested. The period allowed for 
responding to the request misdirected by the requester shall not begin 
until the request is received by the Army Activity that manages the 
records requested.
    (l) Records of non-U.S. Government source. When a request is 
received for a record that falls under exemption 4, that was obtained 
from a non-U.S. Government source, or for a record containing 
information clearly identified as having been provided by a non-U.S. 
Government source, the source of the record or information [also known 
as ``the submitter'' for matters pertaining to proprietary data under 5 
U.S.C. 552, FOIA, Exemption (b)(4)] and E.O. 12600], shall be notified 
promptly of that request and afforded reasonable time (14 calendar 
days) to present any objections concerning the release, unless it is 
clear that there can be no valid basis for objection. This practice is 
required for those FOIA requests for data not deemed clearly exempt 
from disclosure under exemption (b)(4) of 5 U.S.C. 552, The FOIA. If, 
for example, the record or information was provided with actual or 
presumptive knowledge of the non-U.S. Government source and established 
that it would be made available to the public upon request, there is no 
obligation to notify the source. Any objections shall be evaluated. The 
final decision to disclose information claimed to be exempt under 
exemption (b)(4) shall be made by an official equivalent in rank to the 
official who would make the decision to withhold that information under 
FOIA. When a substantial issue has been raised, the Army Activity may 
seek additional information from the source of the information and 
afford the source and requester reasonable opportunities to present 
their arguments on the legal and substantive issues involved prior to 
making an agency determination. When the source seeks a restraining 
order or take court action to prevent release of the record or 
information, the requester shall be notified, and action on the request 
normally shall not be taken until after the outcome of that court 
action is known. When the requester brings court action to compel 
disclosure, the submitter shall be promptly notified of this action.
    (1) If the submitted information is a proposal in response to a 
solicitation for a competitive proposal, and the proposal is in the 
possession and control of DA (see 10 U.S.C. 2305(g)), the proposal 
shall not be disclosed, and no submitter notification and subsequent 
analysis is required. The proposal shall be withheld from public 
disclosure pursuant to 10 U.S.C. 2305(g) and exemption (b)(3) of the 
FOIA. This statute does not apply to bids, unsolicited proposals, or 
any proposal that is set forth or incorporated by reference in a 
contract between an Army Activity and the offeror that submitted the 
proposal. In such situations, normal submitter notice shall be 
conducted except for sealed bids that are opened and read to the 
public. The term, proposal, means information contained in or 
originating from any proposal, including a technical, management, or 
cost proposal submitted by an offeror in response to solicitation for a 
competitive proposal, but does not include an offeror's name or total 
price or unit prices when set forth in a record other than the proposal 
itself. Submitter notice, and analysis as appropriate, are required for 
exemption (b)(4) matters that are not specifically incorporated in 10 
U.S.C. 2305(g).
    (2) If the record or information was submitted on a strictly 
voluntary basis, absent any exercised authority that prescribes 
criteria for submission, and after consultation with the submitter, it 
is absolutely clear that the record or information would customarily 
not be released to the public, the submitter need not be notified. 
Examples of exercised authorities prescribing criteria for submission 
are statutes, Executive Orders, regulations, invitations for bids, 
requests for proposals, and contracts. Records or information submitted 
under these authorities are not voluntary in nature. When it is not 
clear whether the information was submitted on a voluntary basis, 
absent any exercised authority, and whether it would customarily be 
released to the public by the submitter, notify the submitter and ask 
that it describe its treatment of the information, and render an 
objective evaluation. If the decision is made to release the 
information over the objection of the submitter, notify the submitter 
and afford the necessary time to allow the submitter to seek a 
restraining order, or take court action to prevent release of the 
record or information.
    (3) The coordination provisions of this section also apply to any 
non-U.S. Government record in the possession and control of the Army or 
DoD from multi-national organizations, such as the North Atlantic 
Treaty Organization (NATO), United Nations Commands, the North American 
Aerospace Defense Command (NORAD), the Inter-American Defense Board, or 
foreign governments. Coordination with foreign governments under the 
provisions of this section may be made through Department of State, or 
the specific foreign embassy.
    (m) File of initial denials. Copies of all initial withholdings or 
denials shall be maintained by each Army Activity in a form suitable 
for rapid retrieval, periodic statistical compilation, and management 
evaluation. Records denied for any of the reasons contained in Sec.  
518.20 shall be maintained for a period of six years to meet the 
statute of limitations requirement. Records will be maintained in 
accordance with AR 25-400-2.
    (n) Special mail services. Army 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. The requester shall be notified that they are 
responsible for the full costs of special services.
    (o) Receipt accounts. The Treasurer of the United States has 
established two accounts for FOIA receipts, and all money orders or 
checks remitting FOIA fees should be made payable to the U.S. 
Treasurer. These accounts shall be used for depositing all FOIA 
receipts, except receipts for industrially funded and non-appropriated 
funded activities. Components are reminded that the below account 
numbers must be preceded by the appropriate disbursing office two digit 
prefix. Industrially funded and non-appropriated funded activity FOIA 
receipts shall be deposited to the applicable fund.
    (1) Receipt Account 3210 Sale of Publications and Reproductions, 
FOIA. This account shall be used when depositing funds received from 
providing existing publications and forms that meet the Receipt Account 
Series description found in Federal Account Symbols and Titles. Deliver 
collections within 30 calendar days to the servicing finance and 
accounting office.
    (2) Receipt Account 3210 Fees and Other Charges for Services, FOIA. 
This account is used to deposit search fees, fees for duplicating and 
reviewing (in the case of commercial requesters)

[[Page 77856]]

records to satisfy requests that could not be filled with existing 
publications or forms.


Sec.  518.17  Appeals.

    (a) General. If the official designated by the Army Activity to 
make initial determinations on requests for records declines to provide 
a record because the official considers it exempt under one or more of 
the exemptions of the FOIA, that decision may be appealed by the 
requester, in writing, to a designated appellate authority. The appeal 
should be accompanied by a copy of the letter denying the initial 
request. Such appeals should contain the basis for disagreement with 
the initial refusal. Appeal procedures also apply to the disapproval of 
a fee category claim by a requester, disapproval of a request for 
waiver or reduction of fees, disputes regarding fee estimates, review 
on an expedited basis a determination not to grant expedited access to 
agency records, for no record determinations when the requester 
considers such responses adverse in nature, not providing a response 
determination to a FOIA request within the statutory time limits, or 
any determination found to be adverse in nature by the requester. Upon 
an IDA's receipt of a no records determination appeal, the IDA will 
direct the records custodian to conduct another records search and 
certify, in writing, that is has made a good faith effort that 
reasonably could be expected to produce the information requested. If 
no records are again found, the original no records certificate will be 
forwarded to the IDA for inclusion in the appeals packet. When denials 
have been made under the provisions of the FOIA and the PA, and the 
denied information is contained in a PA system of records, appeals 
shall be processed under both the FOIA and the PA. If the denied 
information is not maintained in a PA system of records, the appeal 
shall be processed under the FOIA. If a request is merely misaddressed, 
and the receiving Army Activity or DoD Component simply advises the 
requester of such and refers the request to the appropriate Army or DoD 
Component, this shall not be considered a no record determination.
    (1) Appeals of adverse determinations from denial of records or 
``no record'' determination, received by Army IDAs must be forwarded 
through the denying IDA to the Secretary of the Army (ATTN: OGC). On 
receipt of an appeal, the IDA will--
    (i) Send the appeal to the Office of the Secretary of the Army, 
OGC, together with a copy of the documents that are the subject of the 
appeal. The cover letter will list all attachments and describe from 
where the records were obtained, i.e., a PA system of records 
(including the applicable systems notice, or other. If a file does not 
include documentation described below, include the tab, and insert a 
page marked ``not applicable'' or ``not used.'' The order and contents 
of FOIA file attachments follow: (Tab A or 1) The original FOIA request 
and envelope (if applicable); (Tab B or 2) The IDA denial letter; (Tab 
C or 3) Copies of all records entirely released, single-sided; (Tab D 
or 4) Copies of administrative processing documents, including 
extension letters and ``no records'' certificates, in chronological 
order; (Tab E or 5) Copies of all records partially denied or 
completely denied, single-sided. For records partially denied, mark in 
yellow highlighter (or other readable highlighter) those portions 
withheld; and (Tab F or 6) Legal opinions(s); and
    (ii) Assist the OGC as requested during his or her consideration of 
the appeal.
    (2) Appeals of denial of records made by the OGC, AAFES, shall be 
made to the Secretary of the Army when the Commander, AAFES, is an Army 
officer. Appeals of denial of records made by the OGC, AAFES, shall be 
made to the Secretary of the Air Force when the Commander is an Air 
Force officer.
    (b) Time of receipt. A FOIA appeal has been received by an Army 
Activity when it reaches the office of an appellate authority having 
jurisdiction, the OGC. Misdirected appeals should be referred 
expeditiously to the OGC.
    (c) Time limits. The requester shall be advised to file an appeal 
so that it is postmarked no later than 60 calendar days after the date 
of the initial denial letter. If no appeal is received, or if the 
appeal is postmarked after the conclusion of this 60-day period, the 
case may be considered closed. However, exceptions to the above may be 
considered on a case-by-case basis. In cases where the requester is 
provided several incremental determinations for a single request, the 
time for the appeal shall not begin until the date of the final 
response. Records that are denied shall be retained for a period of six 
years to meet the statute of limitations requirement. Final 
determinations on appeals normally shall be made within 20 working days 
after receipt. When an Army Activity 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. All of the provisions of the FOIA apply also to appeals of 
initial determinations, to include establishing additional processing 
queues as needed.
    (d) Delay in responding to an appeal. If additional time is needed 
due to the 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. 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 Army Activity 
will continue to process the case expeditiously.
    (e) Response to the requester. When the appellate authority (OGC) 
makes a final determination to release all or a portion of records 
withheld by an IDA, a written response and a copy of the records so 
released should be forwarded promptly to the requester after compliance 
with any preliminary procedural requirements, such as payment of fees. 
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:
    (1) The basis for the refusal shall be explained to the requester 
in writing, both with regard to the applicable statutory exemption or 
exemptions invoked under provisions of the FOIA, and with respect to 
other appeal matters;
    (2) 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;
    (3) The final denial shall include the name and title or position 
of the official responsible for the denial;
    (4) 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;

[[Page 77857]]

    (5) When the denial is based upon an exemption 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; or
    (6) The response shall advise the requester of the right to 
judicial review.
    (f) Consultation. Final refusal involving issues not previously 
resolved or that the Army Activity knows to be inconsistent with 
rulings of other DoD Components ordinarily should not be made before 
consultation with the Army OGC. Tentative decisions to deny records 
that raise new or significant legal issues of potential significance to 
other Agencies of the Government shall be provided to the Army OGC.


Sec.  518.18  Judicial actions.

    (a) This section states current legal and procedural rules for the 
convenience of the reader. The statements of rules do not create rights 
or remedies not otherwise available, nor do they bind the DA or DoD to 
particular judicial interpretations or procedures. A requester may seek 
an order from a U.S. District Court to compel release of a record after 
administrative remedies have been exhausted; i.e., when refused a 
record by the head of a Component or an appellate designee or when the 
Army Activity has failed to respond within the time limits prescribed 
by the FOIA and in this part.
    (b) The requester may bring suit in the U.S. District Court in the 
district, in which the requester resides or is the requester's place of 
business, in the district in which the record is located, or in the 
District of Columbia.
    (c) The burden of proof is on the Army Activity to justify its 
refusal to provide a record. The court shall evaluate the case de novo 
(anew) and may elect to examine any requested record in camera (in 
private) to determine whether the denial was justified.
    (d) When an Army Activity has failed to make a determination within 
the statutory time limits but can demonstrate due diligence in 
exceptional circumstances, to include negotiating with the requester to 
modify the scope of their request, the court may retain jurisdiction 
and allow the Activity additional time to complete its review of the 
records.
    (1) If the court determines that the requester's complaint is 
substantially correct, it may require the U. S. to pay reasonable 
attorney fees and other litigation costs.
    (2) When the court orders the release of denied records, it may 
also issue a written finding that the circumstances surrounding the 
withholding raise questions whether Army Activity personnel acted 
arbitrarily and capriciously. In these cases, the special counsel of 
the Merit Systems Protection Board shall conduct an investigation to 
determine whether or not disciplinary action is warranted. The Army 
Activity is obligated to take the action recommended by the special 
counsel.
    (3) The court may punish the responsible official for contempt when 
an Army Activity fails to comply with the court order to produce 
records that it determines have been withheld improperly.
    (e) Non-U. S. Government source information. A requester may bring 
suit in an U.S. District Court to compel the release of records 
obtained from a non-government source or records based on information 
obtained from a non-government source. Such source shall be notified 
promptly of the court action. When the source advises that it is 
seeking court action to prevent release, the Army Activity shall defer 
answering or otherwise pleading to the complainant as long as permitted 
by the Court or until a decision is rendered in the court action of the 
source, whichever is sooner.
    (f) FOIA litigation. Personnel responsible for processing FOIA 
requests at the DoD Component level shall be aware of litigation under 
the FOIA. Such information will provide management insights into the 
use of the nine exemptions by Component personnel. Whenever a complaint 
under the FOIA is filed in an U.S. District Court, the Army Activity 
named in the complaint shall forward a copy of the complaint by any 
means to HQDA, OTJAG (DAJA-LT), with an information copy to the Army 
OGC. In the DA, HQDA OTJAG (DAJA-LT), WASH D.C. 20310-2210 is also 
responsible for forwarding this information to the Office of the Army 
OGC and to the DA FOIA/PA Office.
    (1) Bases for FOIA lawsuits. In general, there are four categories 
of complaints in a FOIA lawsuit; failure to respond to a request within 
time frames established in the FOIA statute; challenge to the adequacy 
of search for responsive records; challenge to application of a FOIA 
Exemption; and procedural challenges, such as application of waiver of 
fees. The guidance below is intended to cover all categories of 
complaints. In responding to litigation support requests, bear in mind 
the type of complaint that has given rise to the lawsuit and provide 
information, which addresses the specific reason(s) for the complaint.
    (2) Responsibility for FOIA litigation. For the Army, under the 
general oversight of the OGC, FOIA litigation is the responsibility of 
the General Litigation Branch, Army Litigation Division. If you are 
notified of a FOIA lawsuit involving the Army, contact the General 
Litigation Branch immediately at: U.S. Army Litigation Center, General 
Litigation Branch (JALS-LTG), 901 North Stuart Street, Suite 700, 
Arlington VA 22203-1837. The General Litigation Branch will provide 
guidance on gathering information and assembling a litigation report 
necessary to respond to FOIA litigation.
    (3) Litigation reports for FOIA lawsuits. As with any lawsuit, the 
Army Litigation Division and DOJ will require a litigation report. This 
report should be prepared with the assistance, and under the 
supervision of, the legal advisor. For general guidance on litigation 
reports, see Army Regulation 27-40, paragraph 3-9. Unlike the usual 60-
day time period to respond to complaints under the Federal Rules of 
Civil Procedure, complaints under the FOIA must be answered within 30 
days of the service of the complaint. Therefore, it is imperative to 
contact the Litigation Division immediately and to begin preparing the 
litigation report without delay.
    (4) Specific guidance for FOIA litigation reports. The following is 
specific guidance for preparing a litigation report in FOIA Litigation. 
The required material should be indexed and assembled under the 
following categories:
    (i) Statement of facts. (Tab A). Provide a chronological statement 
of all facts related to the FOIA request, beginning with receipt of the 
request, responses to the request, and searches for responsive records. 
The statement of facts should refer to supporting enclosed exhibits 
whenever possible.
    (ii) Responses to pleadings. (Tab B). If you have been provided a 
copy of the complaint, provide a line-by-line answer to the factual 
statements in the pleadings, along with recommendations on whether to 
admit or deny the allegation.
    (iii) Memorandum of law. (Tab C). No memorandum of law is necessary 
in FOIA lawsuits. If records were withheld, provide a written statement 
explaining the FOIA Exemption used to withhold the information and the 
rationale for its application in the particular facts of your case. 
Include here a copy of any legal review

[[Page 77858]]

regarding the withholding of the records.
    (iv) Potential witness information. (Tab D). List the names, 
addresses, telephone number, facsimile number and e-mail addresses of 
all potential witnesses. At a minimum, this must include all of the 
following: the FOIA Officer or Coordinator or other person responsible 
for processing FOIA requests; the individual(s) who actually conducted 
the search for responsive records; the legal advisor(s) who reviewed or 
provided advice on the request; and the point of contact at any office 
or agency to which the FOIA request was referred.
    (v) Exhibits. (Tab E). Provide copies of all correspondence 
regarding the FOIA request. This includes all correspondence between 
the agency and the requester, including any enclosures; any referrals 
or forwarding of the request to other agencies or offices; copies of 
all documents released to the requester pursuant to the request in 
litigation. If any information is withheld or redacted, provide a 
complete copy of all withheld information. Identify withheld 
information by placing brackets around all information withheld and 
note in the margins of the document the specific FOIA exemption applied 
to deny release of the document; all records and correspondence 
forwarded to the IDA, if applicable; all appeals by the requester; if 
the withheld document is classified, provide a summary of each document 
withheld. The Summary of classified documents should include the 
following:
    (A) The classification of the document;
    (B) The date of the document;
    (C) The number of pages of the document;
    (D) The author or creator of the document;
    (E) The intended or actual recipient of the document;
    (F) The subject of the document and an unclassified description of 
the document sufficient to inform the court of the nature of the 
contents of the document; and
    (G) An explanation of the reason for withholding, including the 
specific provision(s) of Executive Order 12,958 which permit 
classification of the information.
    (vi) Draft declarations. (Tab F). A declaration is a statement for 
use in litigation made under penalty of perjury pursuant to specific 
statutory authority (28 U.S.C. 1746) which need not be notarized. 
Declarations may be used by the Army to support a motion to dismiss or 
to grant summary judgment. Depending on the basis for the lawsuit, with 
the assistance of their legal advisor, witnesses should prepare a draft 
declaration to be included with the litigation report.
    (vii) The following is some general guidance on the content of a 
declaration in FOIA litigation. Identify the declarant and describe his 
or her qualifications and responsibilities as they relate to the FOIA; 
provide a statement indicating that the declarant is familiar with the 
specific request and the general subject matter of the records; include 
a statement of the searcher's understanding of the exact nature of the 
request, including any modification (narrowing or expanding the search 
based on communications with the requester); generally, the factual 
portion of the declaration should be organized as a chronological 
statement beginning with receipt of the request; provide a specific 
description of the system of records searched; and provide a 
description of procedures used to search for the requested records, 
(manual search of records, computer database search, etc.). This 
portion of the declaration is especially important when no records are 
found. The declaration must reflect an adequate and reasonable search 
for records in locations where responsive records are likely to be 
found.
    (5) Special guidance for initial denial authorities. If any 
information was withheld, the IDA or person with specific knowledge of 
the withholding must provide a specific statement of any Exemptions to 
the FOIA, which were applied to the records.
    (i) Withheld records. For withheld records, describe in reasonably 
specific detail all records or parts of records withheld. If the number 
of records is extensive, use an index of the records and consider 
numbering the documents to facilitate reference. It is also permissible 
(and frequently helpful) to include redacted portions of records 
withheld as attachments or exhibits to the declarations.
    (ii) Exemptions. Include in the declaration a specific statement 
demonstrating that all the elements of each FOIA exemption are met.
    (iii) Segregation. The FOIA requires that all information not 
subject to an exemption to the FOIA, which can be reasonably segregated 
from exempt information, must be released to FOIA requesters. In any 
instance where an entire document is withheld, the individual 
authorizing the withholding must specifically address that segregation 
and release of non-exempt material was not possible without rendering 
the record essentially meaningless. If applicable, this issue must be 
specifically addressed in the declaration.
    (iv) Sound legal basis. Army policy promotes careful consideration 
of FOIA requests and discretionary decisions to disclose information 
protected under the FOIA. Discretionary disclosures should be made only 
after full and deliberate consideration of the institutional, 
commercial, and personal privacy interests that could be implicated by 
disclosure of the information. The decision to withhold records, in 
whole or in part, otherwise exempt from disclosure under the FOIA must 
exhibit a sound legal basis or present an unwarranted risk of adverse 
impact on the ability of other agencies to protect other important 
records.

Subpart F--Fee Schedule


Sec.  518.19  General provisions.

    (a) Authorities. The FOIA, as amended; the Paperwork Reduction Act 
(44 U.S.C. 35), as amended; the PA of 1974, as amended; the Budget and 
Accounting Act of 1921 and the Budget and Accounting Procedures Act, as 
amended (see 31 U.S.C.); and 10 U.S.C. 2328).
    (b) Application. The fees described in this Subpart apply to FOIA 
requests, and conform to the Office of Management and Budget Uniform 
Freedom of Information Act Fee Schedule and Guidelines. They reflect 
direct costs for search, review (in the case of commercial requesters), 
and duplication of documents, collection of which is permitted by the 
FOIA. They are neither intended to imply that fees must be charged in 
connection with providing information to the public in the routine 
course of business, nor are they meant as a substitute for any other 
schedule of fees, such as DoD 7000.14-R, which does not supersede the 
collection of fees under the FOIA. Nothing in this subpart shall 
supersede fees chargeable under a statute specifically providing for 
setting the level of fees for particular types of records. A ``statute 
specifically providing for setting the level of fees for particular 
types of records'' (5 U.S.C. 552 FOIA, (a)(4)(A)(vi)) means any statute 
that enables a Government Agency such as the GPO or the NTIS, to set 
and collect fees. Components should ensure that when documents that 
would be responsive to a request are maintained for distribution by 
agencies operating statutory-based fee schedule programs such as GPO or 
NTIS, they inform requesters of the steps necessary to obtain records 
from those sources.

[[Page 77859]]

    (1) The term ``direct costs'' means those expenditures an 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. Not included in direct costs are overhead 
expenses such as costs of space, heating or lighting the facility in 
which the records are stored.
    (2) The term ``search'' includes all time spent looking, both 
manually and electronically, for material that is responsive to a 
request. Search also includes a page-by-page or line-by-line 
identification (if necessary) of material in the record to determine if 
it, or portions thereof are responsive to the request. 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.
    (3) The term ``duplication'' refers to the process of making a copy 
of a document in response to a FOIA request. Such copies can take the 
form of paper copy, microfiche, audiovisual, or machine-readable 
documentation (e.g., magnetic tape or disc), among others. Every effort 
will be made to ensure that the copy provided is in a form that is 
reasonably useable, 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-stored records, the actual cost, including the operator's 
time, shall be charged. In practice, if an 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.
    (4) The term ``review'' refers to the process of examining 
documents located in response to a FOIA request to determine whether 
one or more of the statutory exemptions permit withholding. It also 
includes processing the documents for disclosure, such as excising them 
for release. Review does not include the time spent resolving general 
legal or policy issues regarding the application of exemptions. It 
should be noted that charges for commercial requesters may be assessed 
only for the initial review. 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, which is subsequently determined not to apply, may be 
reviewed again to determine the applicability of other exemptions not 
previously considered. The costs for such a subsequent review would be 
properly assessable.
    (c) Fee restrictions. No fees may be charged by any Army 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 two hours of search time, and the first one hundred 
pages of duplication without charge. For example, for a request (other 
than one from a commercial requester) that involved two hours and 
fifteen minutes of search time, and resulted in one hundred and twenty-
five pages of documents, an Activity would determine the cost of only 
ten minutes of search time, and only five pages of reproduction. If 
this processing cost was equal to, or less than the cost to the 
Activity for billing the requester and processing the fee collected, no 
charges would result.
    (1) Requesters receiving the first two hours of search and the 
first one hundred pages of duplication without charge are entitled to 
such only once per request. Consequently, if an Activity, after 
completing its portion of a request, finds it necessary to refer the 
request to a subordinate office, another Army Activity or DoD 
Component, or another Federal Agency for 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.
    (2) The elements to be considered in determining the ``cost of 
collecting a fee'' are the administrative costs to the 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 the Activity's determinations.
    (3) For the purposes of these restrictions, the word ``pages'' 
refers to paper copies of a standard size, which will normally be 
8\1/2\ x 11 or 11 x 14. 
Thus, requesters would not be entitled to 100 microfiche or 100 
computer disks, for example. A microfiche containing the equivalent of 
100 pages or 100 pages of computer printout, however, might meet the 
terms of the restriction.
    (4) In the case of computer searches, the first two free hours will 
be determined against the salary scale of the individual operating the 
computer for the purposes of the search. As an example, when the direct 
costs of the computer central processing unit, input-output devices, 
and memory capacity equal $40.00 (two hours of equivalent search at the 
clerical level), amounts of computer costs in excess of that amount are 
chargeable as computer search time. In the event the direct operating 
cost of the hardware configuration cannot be determined, computer 
search shall be based on the salary scale of the operator executing the 
computer search.
    (d) Fee waivers. Documents shall be furnished without charge, or at 
a charge reduced below fees assessed to the categories of requesters 
when the 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 DA and is not primarily in the commercial interest of the 
requester.
    (1) When assessable costs for a FOIA request total $15.00 or less, 
fees shall be waived automatically for all requesters, regardless of 
category.
    (2) Decisions to waive or reduce fees that exceed the automatic 
waiver threshold shall be made on a case-by-case basis. 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.''
    (i) 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 DA or DoD. 
Requests for records in the possession of the Army or DoD, 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 
either DA or DoD. An example of such records might be press clippings, 
magazine

[[Page 77860]]

articles, or records forwarding a particular opinion or concern from a 
member of the public regarding an Army or DoD activity. Similarly, 
disclosures of records of considerable age may or may not bear directly 
on the current activities of either DA or 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 DA or 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 DA or DoD.
    (ii) The informative value of the information to be disclosed 
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 DA or 
DoD. While the subject of a request may contain information that 
concerns operations or activities of DA or DoD, 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 DA or DoD 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 DA or DoD.
    (iii) The contribution to an understanding of the subject by the 
general public is likely to result from disclosure that 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.
    (iv) 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 
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. Activities shall not 
make value judgments as to whether the information is important enough 
to be made public.
    (4) Disclosure of the information ``is not primarily in the 
commercial interest of the requester.''
    (i) If the request is determined to be of a commercial interest, 
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, 
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.
    (ii) Once a requester's commercial interest has been determined, 
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.
    (5) Activities are reminded that 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, 
Activities should rule in favor of the requester.
    (6) In addition, the following additional circumstances describe 
situations where waiver or reduction of fees are most likely to be 
warranted:
    (i) A record is voluntarily created to prevent an otherwise 
burdensome effort to provide voluminous amounts of available records, 
including additional information not requested; or
    (ii) A previous denial of records is reversed in total, or in part, 
and the assessable costs are not substantial (e.g. $15.00--$30.00).
    (e) Fee assessment. 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.
    (1) In order to be as responsive as possible to FOIA requests while 
minimizing unwarranted costs to the taxpayer, Activities shall adhere 
to the following procedures:
    (i) Each request must be analyzed to determine the category of the 
requester. If the Activity determination regarding the category of the 
requester is different than that claimed by the requester, the Activity 
should 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

[[Page 77861]]

justification from the requester, and within a reasonable period of 
time (i.e., 30 calendar days), the Activity shall render a final 
category determination, and notify the requester of such determination, 
to include normal administrative appeal rights of the determination. 
The requester should be advised 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;
    (ii) Requesters should submit a fee declaration appropriate for the 
below categories. Commercial requesters should indicate a willingness 
to pay all search, review and duplication costs. Educational or 
Noncommercial Scientific Institution or News Media requesters should 
indicate a willingness to pay duplication charges, if applicable, in 
excess of 100 pages if more than 100 pages of records are desired. All 
other requesters should indicate a willingness to pay assessable search 
and duplication costs;
    (iii) 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 Activities' 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;
    (iv) No Army Activity may require advance payment of any fee; i.e., 
payment before work is commenced or continued on a request, unless the 
requester has previously failed to pay fees in a timely fashion, or the 
agency has determined that the fee will exceed $250.00. As used in this 
sense, a timely fashion is 30 calendar days from the date of billing 
(the fees have been assessed in writing) by the Activity;
    (v) Where an 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;
    (vi) 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 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;
    (vii) After all work is completed on a request, and the documents 
are ready for release, 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;
    (viii) The administrative time limits of the FOIA will begin only 
after the Activity has received a willingness to pay fees and 
satisfaction as to category determination, or fee payments (if 
appropriate); and
    (ix) Activities may charge for time spent searching for records, 
even if that search fails to locate records responsive to the request. 
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 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.
    (2) Commercial Requesters. Fees shall be limited to reasonable 
standard charges for document search, review and duplication when 
records are requested for commercial use. Requesters must reasonably 
describe the records sought.
    (i) The term ``commercial use'' request refers to a request from, 
or on behalf of one who seeks information for a use or purpose that 
furthers the commercial, trade, or profit interest of the requester or 
the person on whose behalf the request is made. In determining whether 
a requester properly belongs in this category, Activities must 
determine the use to which a requester will put the documents 
requested. Moreover, 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, Activities should seek 
additional clarification before assigning the request to a specific 
category.
    (ii) When 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 two hours of free search time, nor 100 free pages of 
reproduction of documents. Moreover, commercial requesters are not 
normally entitled to a waiver or reduction of fees based upon an 
assertion that disclosure would be in the public interest. However, 
because use is the exclusive determining criteria, it is possible to 
envision a commercial enterprise making a request that is not for 
commercial use. It is also possible that a non-profit organization 
could make a request that is for commercial use. Such situations must 
be addressed on a case-by-case basis.
    (3) Educational institution requesters. Fees shall be limited to 
only reasonable standard charges for document duplication (excluding 
charges for the first 100 pages) when the request is made by an 
educational institution whose purpose is scholarly research. Requesters 
must reasonably describe the records sought. The term ``educational 
institution'' refers to a pre-school, a public or private elementary or 
secondary school, an institution of graduate high education, an 
institution of undergraduate higher education, an institution of 
professional education, and an institution of vocational education, 
which operates a program or programs of scholarly research. Fees shall 
be waived or reduced in the public interest if the criteria above have 
been met.
    (4) Non-commercial scientific institution requesters. Fees shall be 
limited to only reasonable standard charges for document duplication 
(excluding charges for the first 100 pages) when the request is made by 
a non-commercial scientific institution whose purpose is scientific 
research. Requesters must reasonably describe the records sought. The 
term ``non-commercial scientific institution'' refers to an institution 
that is not operated on a ``commercial'' basis 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.
    (5) Activities shall provide documents to requesters for the cost 
of duplication alone, excluding charges for the first 100 pages. To be 
eligible for inclusion in these categories, requesters must

[[Page 77862]]

show that the request is being made under the auspices of a qualifying 
institution and that the records are not sought for commercial use, but 
in furtherance of scholarly (from an educational institution) or 
scientific (from a non-commercial scientific institution) research.
    (6) Representatives of the news media. Fees shall be limited to 
only reasonable standard charges for document duplication (excluding 
charges for the first 100 pages) when the request is made by a 
representative of the news media. Requesters must reasonably describe 
the records sought.
    (i) The term ``representative of the news media'' refers to any 
person actively gathering news for an entity that is organized and 
operated to publish or broadcast news to the public. The term ``news'' 
means information that is about current events or that would be of 
current interest to the public. Examples of news media entities include 
television or radio stations broadcasting to the public at large and 
publishers of periodicals (but only in those instances when they can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public. These examples are 
not meant to be all-inclusive. Moreover, as traditional methods of news 
delivery evolve (e.g., electronic dissemination of newspapers through 
telecommunications services), such alternative media would be included 
in this category. In the case of ``freelance'' journalists, they may be 
regarded as working for a news organization if they can demonstrate a 
solid basis for expecting publication through that organization, even 
though not actually employed by it. A publication contract would be the 
clearest proof, but Activities may also look to the past publication 
record of a requester in making this determination.
    (ii) To be eligible for inclusion in this category, a requester 
must meet the criteria in paragraph (e)(6)(i) of this section, and his 
or her request must not be made for commercial use. A request for 
records supporting the news dissemination function of the requester 
shall not be considered to be a request that is for a commercial use. 
For example, a document request by a newspaper for records relating to 
the investigation of a defendant in a current criminal trial of public 
interest could be presumed to be a request from an entity eligible for 
inclusion in this category, and entitled to records at the cost of 
reproduction alone (excluding charges for the first 100 pages).
    (iii) ``Representative of the news media'' does not include private 
libraries, private repositories of Government records, information 
vendors, data brokers or similar marketers of information whether to 
industries and businesses, or other entities.
    (7) All Other Requesters. Activities shall charge requesters who do 
not fit into any of the categories, fees which recover the full direct 
cost of searching for and duplicating records, except that the first 
two hours of search time and the first 100 pages of duplication shall 
be furnished without charge. Requesters must reasonably describe the 
records sought. 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. 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 as defined in paragraph (e)(6)(ii) of this section.
    (f) Aggregating requests. Except for requests that are for a 
commercial use, an Activity may not charge for the first two hours of 
search time or for the first 100 pages of reproduction. However, a 
requester may not file multiple requests at the same time, each seeking 
portions of a document or documents, solely in order to avoid payment 
of fees. When 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 agency may aggregate any such 
requests and charge accordingly. One element to be considered in 
determining whether a belief would be reasonable is the time period in 
which the requests have occurred. For example, it would be reasonable 
to presume that multiple requests of this type made within a 30-day 
period had been made to avoid fees. For requests made over a longer 
period, however, such a presumption becomes harder to sustain and 
Activities should have a solid basis for determining that aggregation 
is warranted in such cases. 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 Activities aggregate multiple requests on unrelated subjects 
from one requester.
    (g) Debt Collection Act of 1982 (Pub. L. 97-365). The Debt 
Collection Act provides for a minimum annual rate of interest to be 
charged on overdue debts owed the Federal Government. 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. 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, 
Activities may submit the debt to respective Finance and Accounting 
Offices for collection pursuant to the Debt Collection Act.
    (h) Computation of fees. The 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. 
Costs shall be computed on time actually spent. Neither time-based nor 
dollar-based minimum charges for search, review and duplication are 
authorized. The appropriate fee category of the requester shall be 
applied before computing fees. DD Form 2086 (Record of Freedom of 
Information (FOI) Processing Cost) will be used to annotate fees for 
processing FOIA information.
    (i) Refunds. In the event that an Activity discovers that it has 
overcharged a requester or a requester has overpaid, the Activity shall 
promptly refund the charge to the requester by reimbursement methods 
that are agreeable to the requester and the Activity.


Sec.  518.20  Collection of fees and fee rates.

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

------------------------------------------------------------------------
                                                                  Hourly
              Type                            Grade                rate
                                                                   ($)
------------------------------------------------------------------------
Clerical........................  E9/GS 8 and below............       20
Professional....................  01-06/GS 9-GS 15.............       44
Executive.......................  07/ST/SL/SES-1 and above.....       75
Contractor......................                                      44
------------------------------------------------------------------------


[[Page 77863]]

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

------------------------------------------------------------------------
                                                                Cost per
                             Type                                 page
                                                                (cents)
------------------------------------------------------------------------
Pre-printed material.........................................        .02
Office Copy..................................................        .15
Microfiche...................................................        .25
Computer copies (tapes, discs or printouts)..................        (1)
------------------------------------------------------------------------
 \1\Actual cost of duplicating the tape, disc or printout (includes
  operator's time and cost of the medium).

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

------------------------------------------------------------------------
                                                                  Hourly
              Type                            Grade                rate
                                                                   ($)
------------------------------------------------------------------------
Clerical........................  E9/GS 8 and below............       20
Professional....................  01-06/GS 9-GS 15.............       44
Executive.......................  07/ST/SL/SES-1 and above.....       75
Contractor......................                                      44
------------------------------------------------------------------------

    (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. Army audiovisual materials are referred 
to as ``visual information.''
    (f) Other records. Direct search and duplication cost for any 
record not described above shall be computed in the manner described 
for audiovisual documentary material.
    (g) Costs for special services. Complying with requests for special 
services is at the discretion of the Activities. Neither the FOIA, nor 
its fee structure cover these kinds of services. Therefore, 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 one or more of the following services:
    (1) Certifying that records are true copies; and/or
    (2) Sending records by special methods such as express mail, etc.


Sec.  518.21  Collection of fees and fee rates for technical data.

    (a) Fees for technical data. Technical data, other than technical 
data that discloses critical technology with military or space 
application, if required to be released under the FOIA, shall be 
released after the person requesting such technical data pays all 
reasonable costs attributed to search, duplication and review of the 
records to be released. Technical data, as used in this section, means 
recorded information, regardless of the form or method of the recording 
of a scientific or technical nature (including computer software 
documentation). This term does not include computer software, or data 
incidental to contract administration, such as financial and/or 
management information. Army 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 for other types of information released 
under the FOIA. DD Form 2086-1 will be used to annotate fees for 
technical data. The form is available through normal publication 
channels.
    (b) Waiver. Activities shall waive the payment of costs described 
in paragraph (a) of this section, which are greater than the costs that 
would be required for release of this same information if 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, 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;
    (i) The release of technical data is requested in order to comply 
with the terms of an international agreement; or,
    (ii) The Activity determines that such a waiver is in the interest 
of the United States.
    (c) Fee rates.
    (1) Costs for a manual search of technical data.

------------------------------------------------------------------------
                                                                 Hourly
              Type                           Grade              rate ($)
------------------------------------------------------------------------
Clerical.......................  E9/GS 8 and below...........      13.25
Minimum Charge.................                                    8.30
------------------------------------------------------------------------
Notes: Professional and Executive (To be established at actual hourly
  rate prior to search. A minimum charge will be established at \1/2\
  hourly rates.

    (2) Computer search is based on the total cost of the cpu, input-
output devices, and memory capacity of the actual computer 
configuration. The wage 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.
    (d) Duplication costs for technical data.

------------------------------------------------------------------------
                             Type                               Cost ($)
------------------------------------------------------------------------
Aerial photograph, maps, specifications, permits, charts,           2.50
 blueprints, and other technical engineering documents.......
Engineering data (microfilm).................................
a. Aperture cards
Silver duplicate negative, per card..........................        .75
When key punched and verified, per card......................        .85

[[Page 77864]]

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

    (e) Review time costs of technical data.

------------------------------------------------------------------------
                                                                 Hourly
              Type                           Grade              rate ($)
------------------------------------------------------------------------
Clerical.......................  E9/GS 8 and below...........      13.25
Minimum Charge.................                                    8.30
------------------------------------------------------------------------
Notes:Professional and Executive (To be established at actual hourly
  rate prior to search. A minimum charge will be established at \1/2\
  hourly rates.

    (f) Other technical data records. Charges for any additional 
services not specifically consistent with Volume 11A of DoD 7000.14-R, 
shall be made by Activities at the following rates:

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

Subpart G--Reports


Sec.  518.22  Reports control.

    (a) General. (1) The Annual FOIA Report is mandated by the statute 
and reported on a fiscal year basis. Due to the magnitude of the 
requested statistics and the need to ensure accuracy of reporting, Army 
Activities shall track this data as requests are processed. This will 
also facilitate a quick and accurate compilation of statistics. Army 
Activities shall forward their report to DA, FOIA/PA Office, no later 
than October 15 following the fiscal year's close. It may be submitted 
electronically and via hard copy accompanied by a computer diskette. In 
turn, DA and DoD will produce a consolidated report for a submission to 
the Attorney General and ensure that a copy of the consolidated report 
is placed on the Internet for public access.
    (2) Existing Army standards and registered data elements are to be 
utilized to the greatest extent possible in accordance with the 
provisions of DoD 8320.1-M, ``Data Administration Procedures.''
    (3) The reporting requirement outlined is assigned Report Control 
Symbol DD-DA&M(A)1365, FOIA Report to Congress.
    (b) Reporting time. Each DA IDA shall prepare statistics and 
accumulate paperwork for the preceding fiscal year on those items 
prescribed for the annual report. The IDAs will follow guidelines below 
and submit the information to the DA, FOIA/PA Office, on or before the 
15th day of each October.
    (1) Each reporting activity will submit the information requested 
on the DD Form 2564,'Annual Report Freedom of Information Act.'' The 
form is available through normal publication channels.
    (2) Each IDA will submit the information requested on the DD Form 
2564, excluding items 3, 4, and 9c.
    (3) The Judge Advocate General (DAJA) and Chief of Engineers (COE) 
will submit the information requested on the Form DD 2564, item 9c.
    (4) The General Counsel (SAGC) will submit the information 
requested on the DD Form 2564, items 3 and 4.
    (5) The DA, FOIA/PA Office will compile the data submitted in the 
Army's Annual Report. This report will be submitted to the DoD Office 
for Freedom of Information and Security Review on or before the 30th 
day of each November.


Sec.  518.23  Annual report content.

    The current edition of DD Form 2564 shall be used to submit 
Activity input. Instructions for completion follows:
    (a) ITEM 1 initial request determinations. Please note that initial 
PA requests, which are also processed as initial FOIA requests, are 
reported here.
    (1) Total requests processed. Enter the total number of initial 
FOIA requests responded to (completed) during the fiscal year. This 
should include pending cases at the end of the prior fiscal year, Total 
Actions is the sum of Items 1b through 1e, on the DD Form 2564. This 
total may exceed Total Requests Processed.
    (2) Granted in full. Enter the total number of initial FOIA 
requests responded to that were granted in full during the fiscal year. 
(This may include requests granted by your office, yet still requiring 
action by another office).
    (3) Denied in part. Enter the total number of initial FOIA requests 
responded to and denied in part based on one or more of the FOIA 
exemptions. (Do not report ``Other Reason Responses'' as a partial 
denial here, unless a FOIA exemption is also used).
    (4) Denied in full. Enter the total number of initial FOIA requests 
responded to and denied in full based on one or more of the FOIA 
exemptions. (Do not report ``Other Reason Responses'' as denials here, 
unless a FOIA exemption is also used).
    (5) ``Other reason'' responses. Enter the total number of initial 
FOIA requests in which you were unable to provide all or part of the 
requested information based on an ``Other Reason'' response.
    (6) Total actions. Enter the total number of FOIA actions taken 
during the fiscal year. This number will be the sum of items 1b, 
through 1e. Total Actions must be equal to or greater than the number 
of Total Requests Processed.
    (b) ITEM 2 initial request exemptions and other reasons. (1) 
Exemptions invoked on initial request determinations. Enter the number 
of times an exemption was claimed for each request that was denied in 
full or in part. Since more than one exemption may be claimed when 
responding to a single request, this number will be equal to or greater 
than the sum of paragraphs (a)(3) and (4), of this section. The (b)(7) 
exemption is reported by subcategories (A) through (F): (A) Interfere 
with Enforcement; (B) Fair Trial Right; (C) Invasion of Privacy; (D) 
Protect Confidential Source; (E) Disclose Techniques, and (F) Endanger 
Life or Safety.
    (2) ``Other reasons'' cited on initial determinations. Identify the 
``Other Reason'' response cited when responding to a FOIA request and 
enter the number of times each was claimed.
    (i) No records. Enter the number of times a reasonable search of 
files failed to identify records responsive to subject request.
    (ii) Referrals. Enter the number of times a request was referred to 
another DoD Component or Federal Agency for action.
    (iii) Request withdrawn. Enter the number of times a request and/or 
appeal was withdrawn by a requester.
    (iv) Fee-related reason. Requester is unwilling to pay the fees 
associated with a request; the requester is past due in the payment of 
fees from a previous FOIA request; or the requester disagrees with a 
fee estimate.
    (v) Records not reasonably described. Enter the number of times a 
FOIA request could not be acted upon since the record had not been 
described with sufficient particularity to enable the Army Activity to 
locate it by conducting a reasonable search.
    (vi) Not a proper FOIA request for some other reason. Enter the 
number of times the requester has failed unreasonably to comply with 
procedural requirements, other than fee-

[[Page 77865]]

related imposed by this part or an Army Activity's supplementing 
regulation.
    (vii) Not an agency record. Enter the number of times a requester 
was provided a response indicating the requested information was not a 
record within the meaning of the FOIA and this part.
    (viii) Duplicate request. Record number of duplicate requests 
closed for that reason (e.g., request for the same information by the 
same requester). This includes identical requests received via 
different means (e.g., electronic mail, facsimile, mail, and courier) 
at the same or different times.
    (ix) Other (Specify). Any other reason a requester does not comply 
with published rules, other than those reasons outlined in paragraphs 
(b) (2) (i) through (viii) of this section.
    (x) Total. Enter the sum of paragraphs (b) (2) (i) through (ix) of 
this section, in the block provided on the form (total other reasons). 
This number will be equal to or greater than the number in item 1e on 
the report form, since more than one reason may be claimed for each 
``Other Reason'' response.
    (3) (b)(3) Statutes invoked on initial determinations. Identify the 
number of times you have used a specific statute to support each (b)(3) 
exemption. List the statutes used to support each (b)(3) exemption; the 
number of instances in which the statute was cited; note whether or not 
the statute has been upheld in a court hearing; and provide a concise 
description of the material withheld in each individual case by the 
statute's use. Ensure you cite the specific sections of the acts 
invoked. The total number of instances reported will be equal to or 
greater than the total number of (b)(3) exemptions listed in Item 2a on 
the report form.
    (c) ITEM 3 appeal determinations. Please note that PA appeals, 
which are also processed as FOIA appeals, are reported here.
    (i) Total appeal responses. Enter the total number of FOIA appeals 
responded to (completed) during the fiscal year.
    (ii) Granted in full. Enter the total number of FOIA appeals 
responded to and granted in full during the year.
    (iii) Denied in part. Enter the total number of FOIA appeals 
responded to and denied in part based on one or more of the FOIA 
exemptions. (Do not report ``Other Reason Responses'' as a partial 
denial here, unless a FOIA exemption is used also.)
    (iv) Denied in full. Enter the total number of FOIA appeals 
responded to and denied in full based on one or more of the FOIA 
exemptions. (Do not report ``Other Reason Responses'' as denials here, 
unless a FOIA exemption is used also).
    (v) ``Other reason'' responses. Enter the total number of FOIA 
appeals in which you were unable to provide the requested information 
based on an ``Other Reason'' response.
    (vi) Total actions. Enter the total number of FOIA appeal actions 
taken during the fiscal year. This number will be the sum of items 3b, 
through 3e, and should be equal to or greater than the number of Total 
Appeal Responses, item 3a on the report form.
    (d) ITEM 4 Appeal exemptions and other reasons. (1) Exemptions 
Invoked on Appeal Determinations. Enter the number of times an 
exemption was claimed for each appeal that was denied in full or in 
part. Since more than one exemption may be claimed when responding to a 
single request, this number will be equal to or greater than the sum of 
items 3c, and 3d on the report form. Note that the (b)(7) exemption is 
reported by subcategory (A) through (F): (A) Interfere with 
Enforcement; (B) Fair Trial Right; (C) Invasion of Privacy; (D) Protect 
Confidential Source; (E) Disclose Techniques, and (F) Endanger Life or 
Safety.
    (2) ``Other reasons'' cited on appeal determinations. Identify the 
``Other Reason'' response cited when responding to a FOIA appeal and 
enter the number of times each was claimed. This number may be equal to 
or possibly greater than the number in item 3e on the report form, 
since more than one reason may be claimed for each ``Other Reason'' 
response.
    (3) (b)(3) Statutes invoked on appeal determinations. Identify the 
number of times a specific statute has been used to support each (b)(3) 
exemption identified in item 4a on the report form DD 2564. List the 
statutes used to support each (b)(3) exemption; the number of instances 
in which the statute was cited; note whether or not the statute has 
been upheld in a court hearing; and provide a concise description of 
the material withheld in each individual case by the statute's use. 
Ensure citation to the specific sections of the statute invoked. The 
total number of instances reported will be equal to or greater than the 
total number of (b)(3) exemptions listed in Item 4a on the report form.
    (e) ITEM 5 Number and median age of initial cases pending:
    (1) Total initial cases pending:
    (i) Beginning and ending report period: Midnight, 2400 hours, 
September 30,of the Preceding Year -or-0001 hours, October 1,is the 
beginning of the report period. Midnight, 2400 hours, is the close of 
the reporting period.
    (ii) The number for the beginning report period must be the same 
number reported as of the end of the report period from the previous 
report.
    (2) Median age of initial requests pending: Report the median age 
in days (including holidays and weekends) of initial requests pending.
    (3) Examples of median calculation. (i) If given five cases aged 
10, 25, 35, 65, and 100 days from date of receipt as of the previous 
September 30th, the total requests pending is five (5). The median age 
(days) of open requests is the middle, not average value, in this set 
of numbers (10, 25, 35, 65, and 100), 35 (the middle value in the set).
    (ii) If given six pending cases, aged 10, 20, 30, 50, 120, and 200 
days from date of receipt, as of the previous September 30th, the total 
requests pending is six (6). The median age (days) of open requests 40 
days (the mean [average] of the two middle numbers in the set, in this 
case the average of middle values 30 and 50).
    (4) Accuracy of calculations. Activities must ensure the accuracy 
of calculations. As backup, the raw data used to perform calculations 
should be recorded and preserved. This will enable recalculation of 
median [and mean values] as necessary. Activities may require 
subordinate elements to forward raw data, as deemed necessary and 
appropriate.
    (5) Average. If an Activity believes that ``average'' (mean) 
processing time is a better measure of performance, then report 
``averages'' (means) as well as median values (e.g., with data 
reflected and plainly labeled on plain bond as an attachment to the 
report). However, ``average'' (mean) values will not be included in the 
consolidated Army report unless all Activities report it.
    (f) ITEM 6 number of initial requests received during the fiscal 
year. Enter the total number of initial FOIA requests received during 
the reporting period (fiscal year being reported).
    (g) ITEM 7 types of requests processed and median age. Information 
is reported for three types of initial requests completed during the 
reporting period: Simple; Complex; and Expedited Processing. The 
following items of information are reported for these requests:
    (1) Total number of initial requests. Enter the total number of 
initial requests processed [completed] during the reporting period 
(fiscal year) by type (Simple, Complex and Expedited Processing) in the 
appropriate row on the form.

[[Page 77866]]

    (2) Median age (Days). Enter the median number of days [calendar 
days including holidays and weekends] required to process each type of 
case (Simple, Complex and Expedited Processing) during the period in 
the appropriate row on the form.
    (3) Example. Given seven initial requests, multitrack--simple 
completed during the fiscal year, aged 10, 25, 35, 65, 79, 90 and 400 
days when completed. The total number of requests completed was seven 
(7). The median age (days) of completed requests is 65, the middle 
value in the set.
    (h) ITEM 8 Fees collected from the public. Enter the total amount 
of fees collected from the public during the fiscal year. This includes 
search, review and reproduction costs only.
    (i) ITEM 9 FOIA program costs. (1) Number of full time staff. Enter 
the number of personnel your agency had dedicated to working FOIA full 
time during the fiscal year. This will be expressed in work-years [man-
years]. For example: ``5.1, 3.2, 1.0, 6.5, et al.''

                        Table 7-1.--Sample Computation of Work Years for Full Time Staff
----------------------------------------------------------------------------------------------------------------
                                           Number of
               Employee                  months worked    Work-years                      Note
----------------------------------------------------------------------------------------------------------------
Smith, Jane...........................               6             .5   Hired full time at middle of fiscal
                                                                         year.
Public, John Q........................               4             .34  Dedicated to full time FOIA processing
                                                                         last quarter of the fiscal year.
Brown, Tom............................              12            1.0   Worked FOIA full time all fiscal year.
                                       -----------------
    Totals............................              22            1.84
----------------------------------------------------------------------------------------------------------------

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

                            Table 7-2.--Computation of Work Years for Part Time Staff
----------------------------------------------------------------------------------------------------------------
                                           Number of
               Employee                  months worked    Work-years                      Note
----------------------------------------------------------------------------------------------------------------
Public, John Q........................             200              .1  Amount of time devoted to part time FOIA
                                                                         processing before becoming full time
                                                                         FOIA processor in previous example.
White, Sally..........................             400              .2  Processed FOIAs part time while working
                                                                         as paralegal in General Counsel's
                                                                         Office.
Peters, Ron...........................           1,000              .5  Part time employee dedicated to FOIA
                                                                         processing.
                                       -----------------
    Totals............................    *1,600/2,000  ..............
----------------------------------------------------------------------------------------------------------------
*(hours worked in a year) equals 0.8 work-years.

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

Appendix A to Part 518--References

    (a) References.
    (1) AR 1-20 Legislative Liaison;
    (2) AR 20-1 Inspector General Activities and Procedures;
    (3) AR 25-1 The Army Information Management;
    (4) AR 25-11 Record Communications and the Privacy 
Communications System;
    (5) AR 25-400-2 The Army Records Information Management System 
(ARIMS);
    (6) AR 27-20 Claims;
    (7) AR 36-2 Audit Reports and Follow-up;
    (8) AR 40-66 Medical Record Administration and Health Care 
Documentation;
    (9) AR 40-68 Quality Assurance Administration;
    (10) AR 40-400 Patient Administration;
    (11) AR 195-2 Criminal Investigation Activities;
    (12) AR 25-71 The Army Privacy Program;
    (13) AR 360-1 The Army Public Affairs Program;
    (14) AR 380-5 Department of the Army Information Security 
Program;
    (15) AR 381-10 U.S. Army Intelligence Activities;
    (16) AR 381-12 Subversion and Espionage Directed Against The 
U.S. Army (SAEDA);
    (17) AR 381-20 The Army Counterintelligence Program;
    (18) AR 530-1 Operations Security (OPSEC);
    (19) AR 600-85 Army Substance Abuse Program; and
    (20) AR 608-18 The Army Family Advocacy Program.
    (b) Related publications. A related publication is merely a 
source of additional information. The user does not have to read it 
to understand this part.
    (1) AR 10-5 Headquarters, Department of the Army;
    (2) AR 27-10 Military Justice;

[[Page 77867]]

    (3) AR 27-40 Litigation;
    (4) AR 27-60 Intellectual Property;
    (5) AR 60-20 Army and Air Force Exchange Service Operating 
Policies AFR 147-14;
    (6) AR 70-31 Standards for Technical Reporting;
    (7) AR 190-45 Law Enforcement Reporting;
    (8) AR 380-10 Foreign Disclosure and Contacts with Foreign 
Representatives;
    (9) AR 381-45 Investigative Records Repository;
    (10) AR 385-40 Accident Reporting and Records;
    (11) DA Pam 25-30 Consolidated Army Publications and Index 
Forms;
    (12) DA Pam 25-51 The Army Privacy Program--System of Records 
Notices and Exemption Rules;
    (13) DoD Directive 5100.3 Support of the Headquarters of 
Combatant and Subordinate Joint Commands, November 15, 1999;
    (14) DoD Directive 5230.24 Distribution Statements on Technical 
Documents, March 18, 1987;
    (15) DoD Directive 5230.25 Withholding of Unclassified Technical 
Data From Public Disclosure, November 6, 1984;
    (16) DoD Directive 5230.9 Clearance of DoD Information for 
Public Release, April 9, 1996;
    (17) DoD Directive 5400.4 Provision of Information to Congress, 
January 30, 1978;
    (18) DoD Directive 5400.7 DoD Freedom of Information Act (FOIA) 
Program, September 29, 1997;
    (19) DoD Directive 5400.11 DOD Privacy Program, December 13, 
1999;
    (20) DoD Directive 7650.1 General Accounting Office (GAO) and 
Comptroller General Access to Records, September 11, 1997;
    (21) DoD Directive 7650.2 General Accounting Office Reviews and 
Reports, July 13, 2000;
    (22) DoD Directive 8910.1 Management and Control of Information 
Requirements, June 11, 1993;
    (23) DoD Federal Acquisition Regulation Supplement (DFARS), Part 
227--Patents, Data, and Copyrights, See also 48 CFR part 227;
    (24) Department of Defense Financial Management Regulation 
(Reimbursable Operations, Policy and Procedures) Volume 11A, April 
2003 authorized by DoD Instruction 7000.14, DoD Financial Management 
Policy and Procedures, November 15, 1992;
    (25) DoD Instruction 5400.10 OSD Implementation of DoD Freedom 
of Information Act Program, January 24, 1991;
    (26) DoD 5200.1-R Information Security Program, January 1997, 
authorized by DoD Directive 5200.1, December 13, 1996, DoD 
Information Security Program;
    (27) DoD 5400.7-R DoD Freedom of Information Act Program, 
September 4, 1998;
    (28) DoD 5400.11-R Department of Defense Privacy Program, August 
1983, authorized by DoD Directive 5400.11, December 13, 1999, DoD 
Privacy Program;
    (29) Executive Order 12600 Predisclosure Notification Procedures 
for Confidential Commercial Information, June 23, 1987, 52 FR 23781;
    (30) Public Law 86-36 National Security Information Exemption, 
Codified at 50 U.S.C. 402, as amended;
    (31) Public Law 104-191 Health Insurance Portability and 
Accountability Act of 1996, Codified at 42 U.S.C. 1171-1179, as 
amended;
    (32) Section 822 of the National Defense Authorization Act for 
FY 90 and 91 (Pub. L. 101-189, November 29, 1989: 103 Stat. 1382, 
1503);
    (33) 5 U.S.C. 551-559, Administrative Procedures Act;
    (34) 5 U.S.C. 552, as amended: public information; agency rules, 
opinions, orders, records, and proceedings. (FOIA);
    (35) 5 U.S.C. 552a, as amended: records about individuals, (PA 
of 1974);
    (36) 10 U.S.C. 128, Physical Protection of Special Nuclear 
Material: Limitation on Dissemination of Unclassified Information;
    (37) 10 U.S.C. 130, Authority to Withhold from Public Disclosure 
Certain Technical Data;
    (38) 10 U.S.C. 130 (b), Personnel in Overseas, Sensitive, or 
Routinely Deployable Units: nondisclosure of personally identifying 
information;
    (39) 10 U.S.C. 1102 (f), Confidentiality of Medical Quality 
Assurance Records: Qualified Immunity for Participants;
    (40) 10 U.S.C. 2305(g) Prohibition on Release of Contractor 
Proposals;
    (41) 10 U.S.C. 2320-2321, Rights in Technical Data;
    (42) 10 U.S.C. 2328, Release of Technical Data under Freedom of 
Information Act: Recovery of Costs;
    (43) 17 U.S.C. 106, Exclusive Rights in Copyrighted Works;
    (44) 18 U.S.C. 798, Disclosure of Classified Information;
    (45) 18 U.S.C. 3500, The Demands for Production of Statements 
and Reports of Witnesses (The Jencks Act);
    (46) 31 U.S.C. 3717, Interest and Penalty on Claims;
    (47) 32 CFR Part 518, The Army FOIA Program;
    (48) 35 U.S.C. 181-188, Secrecy of Certain Inventions and Filing 
of Application in Foreign Country;
    (49) 41 U.S.C. 423, Restrictions on Disclosing and Obtaining 
Contractor Bid or Proposal Information or Source Selection 
Information;
    (50) 42 U.S.C. 2162, Classification and Declassification of 
Restricted Data;
    (51) 44 U.S.C. 3301-3324, Disposal of Records;
    (52) 45 CFR Part 164, Security and Privacy of Individually 
Identifiable Health Information; and
    (53) 50 U.S.C. 403-3, War and National Defense, Protection of 
Intelligence Sources and Methods.

Appendix B to Part 518--Addressing FOIA Requests

    (a) General. Army records may be requested from those Army 
officials who are listed in 32 CFR Part 518 (see appendix A of this 
part). Contact the DA FOIA/PA Office, to coordinate the referral of 
requests if there is uncertainty as to which Army activity may have 
the records. Send requests to particular installations or 
organizations as follows:
    (1) Current publications and records of DA field commands, 
installations, and organizations. See also: http://books.army.mil/.
    (2) Send the request to the commander of the command, 
installation, or organization, to the attention of the FOIA 
Official.
    (3) Consult AR 25-400-2 (ARIMS) for more detailed listings of 
all record categories kept in DA offices.
    (4) Contact the installation or organization public affairs 
officer for help if you cannot determine the official within a 
specific organization to whom your request should be addressed.
    (b) Department of the Army publications. Send requests for 
current administrative, training, technical, and supply publications 
to the National Technical Information Service, U.S. Department of 
Commerce, 5285 Port Royal Road, Springfield, VA 22161. NTIS handles 
general public requests for unclassified, uncopyrighted, and 
nondistribution-restricted Army publications not sold through the 
Superintendent of Documents.
    (c) Military personnel records. Send requests for military 
personnel records of information as follows:
    (1) Army Reserve personnel not on active duty and retired 
personnel--Commander, U.S. Army Human Resources Command, St. Louis, 
1 Reserve Way, St. Louis, MO 63132-5200; commercial.
    (2) Army officer personnel discharged or deceased after July 1, 
1917 and Army enlisted personnel discharged or deceased after 
November 1, 1912--Director, National Personnel Records Center, 9700 
Page Ave., St. Louis, MO 63132-5100.
    (3) Army personnel separated before the dates specified in 
paragraph (2), above--Old Military and Civilian Records Unit 
(Archives 1), National Archives and Records Administration, 
Washington, DC 20408-0001.
    (4) Army National Guard officer personnel--Chief, National Guard 
Bureau. Army National Guard enlisted personnel--Adjutant General of 
the proper State.
    (5) Active duty commissioned and warrant officer personnel--
Commander, U.S. Army Human Resources Command, ATTN: AHRC-FOI, 
Alexandria, VA 22332-0404; commercial. Active duty enlisted 
personnel--Commander, U.S. Army Enlisted Records and Evaluation 
Center, ATTN: PCRE-RP, 8899 East 56th Street, Indianapolis, IN 
46249-5301; commercial.
    (d) Medical records. (1) Medical records of non-active duty 
military personnel. Use the same addresses as for military personnel 
records.
    (2) Medical records of military personnel on active duty. 
Address the medical treatment facility where the records are kept. 
If necessary request locator service.
    (3) Medical records of civilian employees and all dependents. 
Address the medical treatment facility where the records are kept. 
If the records have been retired, send requests to the Director, 
National Personnel Records Center, Civilian Records Facility, 111 
Winnebago St., St. Louis, MO 63118-4199.
    (e) Legal records. (1) Records of general courts-martial and 
special courts-martial in

[[Page 77868]]

which bad conduct discharge was approved. For cases not yet 
forwarded for appellate review, apply to the staff judge advocate of 
the command having jurisdiction over the case. For cases forwarded 
for appellate review and for old cases, apply to the U. S. Army 
Legal Services Agency, ATTN: JALS-CCO, 901 North Stuart Street, 
Arlington, VA 22203.
    (2) Records of special courts-martial not involving a bad 
conduct discharge. These records are kept for 10 years after 
completion of the case. If the case was completed within the past 
three years, apply to the staff judge advocate of the headquarters 
where it was reviewed. If the case was completed from 3 to 10 years 
ago, apply to the National Personnel Records Center (Military 
Records), 9700 Page Ave., St. Louis, MO 63132-5100. If the case was 
completed more than 10 years ago, the only evidence of conviction is 
the special courts-martial order in the person's permanent records.
    (3) Records of summary courts-martial. Locally maintained 
records are retired 3 years after action of the supervisory 
authority. Request records of cases less than 3 years old from the 
staff judge advocate of the headquarters where the case was 
reviewed. After 10 years, the only evidence of conviction is the 
summary courts-martial order in the person's permanent records.
    (4) Requests submitted under paragraphs (e) (2), and (3), of 
this appendix. These requests will be processed in accordance with 
Subpart E of this part. The IDA is The Judge Advocate General, HQDA 
(DAJA-CL), Washington DC 20310-2200.
    (5) Administrative settlement of claims. Apply to the Chief, 
U.S. Army Claims Service, ATTN: JACS-TC, Building 4411, Llewellyn 
Avenue, Fort George G. Meade, MD 20755-5360.
    (6) Records involving debarred or suspended contractors. Apply 
to U.S. Army Legal Services Agency (JALS-PF), 901 North Stewart 
Street, Arlington, VA 22203.
    (7) Records of all other legal matters (other than records kept 
by a command, installation, or organization staff judge advocate). 
Apply to HQDA (DAJA-AL), Washington D.C. 20310-2200.
    (f) Civil works program records. Civil works records include 
those relating to construction, operation, and maintenance for the 
improvement of rivers, harbors, and waterways for navigation, flood 
control, and related purposes, including shore protection work by 
the Army. Apply to the proper division or district office of the 
Corps of Engineers. If necessary to determine the proper office, 
contact the Commander, U.S. Army Corps of Engineers, 20 
Massachusetts Avenue, ATTN: CECC-K, Washington DC 20314-1000.
    (g) Civilian personnel records. Send requests for personnel 
records of current civilian employees to the employing installation. 
Send requests for personnel records of former civilian employees to 
the Director, National Personnel Records Center, Civilian Records 
Facility, 111 Winnebago St., St. Louis, MO 63118-4199.
    (h) Procurement records. Send requests for information about 
procurement activities to the contracting officer concerned or, if 
not feasible, to the procuring activity. If the contracting officer 
or procuring activity is not known, send inquiries as follows:
    (1) Army Materiel Command procurement: Commander, U.S. Army 
Materiel Command, ATTN: AMCID-F, 5001 Eisenhower Ave., Alexandria, 
VA 22333-0001.
    (2) Corps of Engineers procurement: Commander, U.S. Army Corps 
of Engineers, 20 Massachusetts Avenue, ATTN: CECC-K, WASH DC 20314-
1000.
    (3) All other procurement: HQDA (DAJA-KL), 2200 Army Pentagon, 
Washington, D.C. 20310-2200.
    (i) Criminal investigation files. Send requests involving 
criminal investigation files to the Commander, U.S. Army Criminal 
Investigation Command, ATTN: CICR-FP, 6010 6th St., Bldg. 
1465, Ft. Belvoir, VA 22060-5585. Only the Commanding 
General, USACIDC, can release any USACIDC-originated criminal 
investigation file.
    (j) Personnel security investigation files and general Army 
intelligence records. Send requests for personnel security 
investigation files, intelligence investigation and security 
records, and records of other Army intelligence matters to the 
Commander, U.S. Army Intelligence and Security Command, ATTN: IAMG-
CIC-FOI/PO, 4552 Pike Road, Fort George G. Meade, MD 20755-5995.
    (k) Inspector General records. Send requests involving records 
within the Inspector General system to HQDA (SAIG-ZXL), 1700 Army 
Pentagon, Washington, DC 20310-1700. AR 20-1 governs such records.
    (l) Army records in Government records depositories. Non-current 
Army records are in the National Archives of the United States, 
Washington, DC 20408-0001; in Federal Records Centers of NARA; and 
in other records depositories. Requesters must write directly to the 
heads of these depositories for copies of such records. A list of 
pertinent records depositories is published in AR 25-400-2, table 
10-1.

[FR Doc. 04-27848 Filed 12-27-04; 8:45 am]
BILLING CODE 3710-08-U