[Federal Register Volume 70, Number 133 (Wednesday, July 13, 2005)]
[Proposed Rules]
[Pages 40249-40251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13742]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR 285

[0790-ZA05]


DoD Freedom of Information Act (FOIA) Program (DoDD 5400.7)

AGENCY: Department of Defense.

ACTION: Proposed rule.

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SUMMARY: This proposed rule conforms to the requirements of the 
Electronic Freedom of Information Act Amendments of 1996. It promotes 
public trust by making the maximum amount of information available to 
the public, in both hard copy and electronic formats, on the operation 
and activities of the Department of Defense, consistent with DoD 
responsibility to protect national security and other DoD interests as 
provided by applicable law. It also allows a requester to obtain Agency 
records from the Department of Defense that are available through other 
public information services without invoking the FOIA.

DATES: Comments must be received on September 12, 2005.

FOR FURTHER INFORMATION CONTACT: Mr. David W. Maier, 703-695-6428

SUPPLEMENTARY INFORMATION:

Executive Order 12866

    This proposed regulatory action is not a significant regulatory 
action, as defined by Executive Order 12866.

Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))

    This proposed regulatory action will not have a significant adverse 
impact on a substantial number of small entities.

Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)

    This proposed regulatory action does not contain a Federal mandate 
that will result in the expenditure by State, local, and tribal 
governments, in aggregate, or by the private sector of $100 million or 
more in any one year.

Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)

    This proposed regulatory action will not impose any additional 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act.

Federalism (Executive Order 13132)

    This proposed regulatory action does not have Federalism 
implications, as set forth in Executive Order 13132. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)

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

[[Page 40250]]

the release of Federal Government records, and does not economically 
impact Federal Government relations with the private sector.

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    It has been determined that this rule does not involve a Federal 
mandate that may result in the expenditure by State, local and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more and that such rulemaking will not significantly or 
uniquely affect small governments.

List of Subjects in 32 CFR Part 285

    Freedom of information.

    Accordingly, 32 CFR part 285 is proposed to be revised to read as 
follows:

PART 285--DOD FREEDOM OF INFORMATION ACT (FOIA) PROGRAM

Sec.
285.1 Purpose.
285.2 Applicability and scope.
285.3 Policy.
285.4 Responsibilities.
285.5 Information requirements.

    Authority: 5 U.S.C. 552.


Sec.  285.1  Purpose.

    This part:
    (a) Updates policies and responsibilities for the implementation of 
the DoD Freedom of Information Act (FOIA) Program under 5 U.S.C. 552.
    (b) Continues to delegate authorities and responsibilities for the 
effective administration of the FOIA program and authorize the 
publication of DoD 5400.7-R,\1\ which is the DoD Regulation on the FOIA 
Program.
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    \1\ This Regulation is codified at 32 CFR part 286.
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Sec.  285.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense 
(OSD), the Military Departments, the Chairman of the Joint Chiefs of 
Staff, the Combatant Commands, the Inspector General of the Department 
of Defense, the Defense Agencies, the DoD Field Activities, and all 
other organizational entities in the Department of Defense (hereafter 
referred to collectively as the ``DoD Components'').
    (b) National Security Agency/Central Security Service records are 
subject to this part unless the records are exempt under 50 U.S.C. 402 
note of title 50. The records of the Defense Intelligence Agency, the 
National Reconnaissance Office, and the National Geospatial-
Intelligence Agency are also subject to this Part unless the records 
are exempt under 10 U.S.C. 424.


Sec.  285.3  Policy.

    It is DoD policy to:
    (a) Promote public trust by making the maximum amount of 
information available to the public, in both hard copy and electronic 
formats, on the operation and activities of the Department of Defense, 
consistent with DoD responsibility to protect national security and 
other DoD interests as provided by applicable law.
    (b) Allow a requester to obtain Agency records from the Department 
of Defense that are available through other public information services 
without invoking the FOIA.
    (c) Make available, under the procedures established by DoD 5400.7-
R, those Agency records that are requested by a member of the public 
who explicitly or implicitly cites the FOIA.
    (d) Answer promptly all other requests for Agency information and 
records under established procedures and practices.
    (e) Release Agency records to the public unless those records are 
exempt from mandatory disclosure as outlined in 5 U.S.C. 552.
    (e) Process requests by individuals for access to records about 
themselves contained in a Privacy Act system of records under 
procedures set forth in DoD 5400.11-R \2\ and guidance outlined in this 
part, as amplified by DoD 5400.7-R.
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    \2\ Copies may be obtained via Internet at http://www.dtic.mil/whs/directives/corres/pub1.html.
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Sec.  285.4  Responsibilities.

    (a) The Director, Administration and Management (DA&M) shall:
    (1) Serve as the appellate authority for appeals to decisions of 
respective Initial Denial Authorities within the OSD, the Chairman of 
the Joint Chiefs of Staff, the Combatant Commands, select Defense 
Agencies, and the DoD Field Activities. The DA&M may delegate this 
responsibility to an appropriate member of the DA&M or Washington 
Headquarters Services' staff.
    (2) Issue a DoD FOIA regulation and other discretionary 
instructions and guidance to ensure timely and reasonably uniform 
implementation of the FOIA in the Department of Defense.
    (b) The Director, Washington Headquarters Services, under the DA&M, 
shall:
    (1) Direct and administer the DoD FOIA Program to ensure compliance 
with policies and procedures that govern the administration of the 
program.
    (2) Internally administer the FOIA Program, inclusive of training, 
for the OSD, the Chairman of the Joint Chiefs of Staff and, as an 
exception to DoD Directive 5100.3,\3\ the Commanders of the Combatant 
Commands.
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    \3\ See footnote 2 to Sec.  285.3(e).
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    (c) The General Counsel of the Department of Defense shall provide 
uniformity in the legal interpretation of this Part. The General 
Counsel shall also ensure that affected legal advisors, public affairs 
officers, and legislative affairs officers are aware of releases 
through litigation channels which may be of significant public, media, 
or Congressional interest, or of interest to senior DoD officials.
    (d) The Heads of the DoD Components shall:
    (1) Internally administer the FOIA Program and publish any 
instructions that are not prescribed by this Part or by other issuances 
of the DA&M which have a major impact on the public. The information 
specified in Section 552(a)(1) of 5 U.S.C. 552 shall be published in 
accordance with Administrative Instruction 102.\4\
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    \4\ See footnote 2 to Sec.  285.3(e).
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    (2) Ensure that respective chains of command, affected legal 
advisors, public affairs officers and legislative affairs officers are 
aware of releases through the FOIA, inclusive of releases through 
litigation channels, which may be of significant public, media, or 
Congressional interest, or of interest to senior DoD officials.
    (3) Conduct training on the provisions of this part, 5 U.S.C. 552, 
and DoD 5400.7-R for officials and employees who implement the FOIA.
    (4) Submit the Annual Report prescribed in Chapter 7 of DoD 5400.7-
R.
    (5) Make available for public inspection and copying in an 
appropriate facility or facilities, in accordance with rules published 
in the Federal Register, the records specified in 5 U.S.C. 552(a)(2), 
unless such records are published and copies are offered for sale. 
These records shall be made available to the public in hard copy, by 
computer telecommunications, or other electronic means.
    (6) Maintain and make available for public inspection and copying 
current indices of all (a)(2) records as required by 5 U.S.C. 552(a)(2)


Sec.  285.5  Information requirements.

    The reporting requirements in Chapter 7 of DoD 5400.7-R have been 
assigned Report Control Symbol DD-DA&M(A)1365.


[[Page 40251]]


    Dated: July 7, 2005.
Jeannette Owings-Ballard,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 05-13742 Filed 7-12-05; 8:45 am]
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