[Federal Register Volume 72, Number 243 (Wednesday, December 19, 2007)]
[Proposed Rules]
[Pages 71847-71868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-24359]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[DoD-2007-OS-0086; 0790-AI24]

32 CFR Part 286


DoD Freedom of Information Act (FOIA) Program Regulation

AGENCY: Department of Defense.

ACTION: Proposed rule.

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SUMMARY: The Department of Defense is proposing to update current 
policies and procedures to reflect the DoD FOIA Program as prescribed 
by Executive Order 13392. The proposed changes will ensure appropriate 
agency disclosure of information, and offer consistency with the goals 
of section 552 of title 5, United States Code.

DATES: Comments must be received by February 19, 2008.

ADDRESSES: You may submit comments, identified by docket number and/or 
RIN number and title, by any of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the Internet at http://regulations.gov 
as they are received without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: James Hogan (703) 696-4495.

SUPPLEMENTARY INFORMATION: 

Executive Order 13132, ``Federalism''

    It has been certified that 32 CFR part 286 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of Government.

Executive Order 12866, ``Regulatory Planning and Review''

    It has been certified that 32 CFR part 286 does not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

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

    It has been certified that 32 CFR part 286 does not contain a 
Federal mandate that may result in expenditure by State, local and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that 32 CFR part 286 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.

Public Law 96-511, ``Paperwork Reduction Act '' (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR part 286 does not impose 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995.

List of Subjects in 32 CFR Part 286

    Freedom of information.
    Accordingly, 32 CFR part 286 is proposed to be revised to read as 
follows:

PART 286-DOD FREEDOM OF INFORMATION ACT (FOIA) PROGRAM REGULATION

Subpart A--General Provisions

Sec.
286.1 Purpose.
286.2 Definitions.
286.3 Public access to DoD information.
286.4 Procedures.

Subpart B--FOIA Reading Rooms

286.7 Requirements.
286.8 Record availability.
286.9 Indexes.
286.10 ``(a)(1)'' records.

Subpart C--Exemptions

286.13 General provisions.
286.14 Applying the FOIA exemptions.

Subpart D--FOIA Request Processing

286.17 General provisions.
286.18 Processing procedures.
286.19 Initial determinations.
286.20 Appeals.
286.21 Judicial actions.

Subpart E--Fee Schedule

286.24 General provisions.
286.25 Collection of fees and fee rates.
286.26 Fees for technical data.
286.27 Fees for research data.

Subpart F--Education and Training

286.30 Purpose and responsibility.
286.31 Implementation.

[[Page 71848]]

Appendix A to Part 286--DoD FOIA Program Components

Appendix B to Part 286--Addressing FOIA Requests

     Authority: 5 U.S.C. 552.

Subpart A--General Provisions


Sec.  286.1  Purpose.

    This part promotes uniformity in the DoD FOIA Program. It shall 
take precedence over all DoD Component publications that supplement and 
implement the DoD FOIA Program. A list of the DoD FOIA Program 
Components is at Appendix A to this part.


Sec.  286.2  Definitions.

    The following terms and meanings shall apply for the purposes of 
this part:
    Administrative appeal. A request by a member of the public, made 
under the FOIA, asking the appellate authority of the DoD Component to 
reverse any adverse determination by an Initial Denial Authority (IDA). 
A requester may also appeal the failure of an agency to respond within 
the statutory time limits.
    Adverse determination. A decision by an IDA to withhold all or part 
of a requested record, deny a fee category claim by a requester, deny a 
request for waiver or reduction of fees, deny a request to review an 
initial fee estimate, deny a request for expedited processing, confirm 
that no records were located during the initial search, or any 
determination that a requester believes is adverse in nature.
    Agency record. (1) Includes: (i) All products of data compilation 
made or received by an agency of the U.S. Government under Federal law 
in connection with the transaction of public business and in DoD 
possession and control at the time the search in response to a FOIA 
request is made. Examples include books, papers, maps, photographs, 
machine-readable materials inclusive of those in electronic form or 
format, and other documentary materials, regardless of physical form or 
characteristics.
    (ii) Research data produced under a Federal grant used by the 
Federal Government in developing an agency action that has the force 
and effect of law (Office of Management and Budget Circular (OMB) A-
110).
    (2) Does not include:
    (i) Objects or articles, such as structures, furniture, vehicles, 
and equipment, whatever their historical or evidentiary value.
    (ii) Anything that is not a tangible or documentary record, such as 
an individual's memory or an oral communication.
    (iii) Personal records of an individual not subject to agency 
creation or retention requirements, created and maintained primarily 
for the convenience of an agency employee and not distributed to other 
agency employees for their official use. Personal papers fall into 
three categories:
    (A) Those created before entering Government service.
    (B) Private materials brought into, created, or received in the 
office that were not created or received in the course of transacting 
Government business.
    (C) Work-related personal papers that are not used in the 
transaction of Government business.
    (iv) A record that is not in the possession and control of the 
Department of Defense when the search is conducted in response to a 
FOIA request. (There is no obligation to create, compile, or obtain a 
record to satisfy a FOIA request.)
    Appellate authority. The Head of the DoD Component, or designee, 
having jurisdiction to review and possibly reverse or amend any adverse 
determination by an IDA.
    Direct costs. Those expenditures the DoD Component makes in 
searching for, reviewing, 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 plus 16 percent of 
that rate to cover benefits) and the costs of operating duplicating 
machinery. (These factors have been included in the fee rates 
prescribed at Sec.  286.25. Not included in direct costs are overhead 
expenses such as the cost of space, heating, or lighting the facility 
in which the records are stored.
    Electronic records. Records (including e-mail) created, stored, and 
retrievable by electronic means.
    Federal agency. Defined in 5 U.S.C. 551(1) and 552(f)(1). (A 
Federal agency cannot make FOIA requests.)
    FOIA office. The DoD Component office that receives FOIA requests 
from and responds directly to the public.
    FOIA public liaison. Defined in E.O. 13392.
    FOIA request. A written request for DoD records that reasonably 
describes the record(s) sought. The request should also indicate a 
willingness to pay processing fees even if it contains a request for a 
fee waiver. Written requests may be received by postal service or other 
commercial delivery means, by facsimile, or electronically. All 
requests must have a postal mailing address included, even if they are 
received by facsimile or electronically.
    FOIA requester. Any person, including a partnership, corporation, 
association, State or State agency, foreign government, foreign 
national, or a lawyer or other representative acting on behalf of any 
person, who submits a FOIA request. This definition specifically 
excludes agencies within the Executive Branch of the Federal 
Government.
    FOIA requester service center. Defined in E.O. 13392.
    IDA. An official who has been granted authority by the Head of the 
DoD Component to withhold information requested under the FOIA for one 
or more of the 9 categories of records exempt from mandatory 
disclosure. An IDA may also deny a fee category claim by a requester, 
deny a request for expedited processing, deny a request for a waiver or 
reduction of fees, review a fee estimate, and confirm that no records 
were located in response to a request.
    Perfected FOIA request. A FOIA request that meets the conditions 
identified in definition ``FOIA request'' and arrives at the FOIA 
office of the DoD Component in possession of the records. Also referred 
to as a ``correct'' request.
    Privacy Act system of records. Defined in DoD 5400.11-R \1\.
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    \1\ Copies of unclassified DoD issuances may be obtained at 
http://www.dtic.mil/whs/directives/.
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    Public interest. The interest in obtaining official information 
that sheds light on an agency's performance of its statutory duties 
because the information falls within the statutory purpose of the FOIA 
to inform citizens about their Government's activities.
    Search. Includes all time spent looking, both manually and 
electronically, for records that are responsive to a FOIA request. The 
term ``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 of it, are responsive to the request. Time spent 
reviewing documents to determine whether to apply one or more of the 
statutory exemptions is not search time; it is review time.
    (1) Duplication. The process of making a copy of a document in 
response to a FOIA request. Such copies can take the form of paper, 
microfiche, or audiovisual or machine-readable documentation (e.g., 
magnetic tape or disc), among others.
    (2) Review. The examination of documents located in response to a 
FOIA request to determine whether one

[[Page 71849]]

or more of the statutory exemptions permit withholding. Review 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.
    Submitter. A person or persons outside of the Government providing 
commercial or financial information or trade secrets to the Government.
    Submitter notice. The process required by E.O. 12600 whereby when a 
Component receives a FOIA request for confidential commercial 
information, it asks the submitter of the information to advise the 
Component as to the information it considers exempt from release.


Sec.  286.3  Public access to DoD information.

    (a) The public has a right to information concerning the activities 
of its Government. DoD policy (32 CFR part 285) is to conduct DoD 
activities in an open manner and to provide the public a maximum of 
accurate and timely information concerning DoD activities, consistent 
with the need for security, public and private interests of the 
American people, and adherence to other requirements of law and 
regulation. A record requested by a member of the public who follows 
rules established by proper authority in the Department of Defense 
shall not be withheld in whole or in part unless the record is exempt 
from mandatory, partial or total disclosure under the FOIA. The 
existence of a sound legal basis to withhold information does not 
preclude the DoD Component from making a discretionary release if 
release of that information would serve the public interest. Records 
requested through public affairs channels by news media representatives 
that would not be withheld if requested under the FOIA should be 
released promptly upon request. 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) The DoD FOIA Program Components shall prepare, in addition to 
normal FOIA regulations, a guide, or handbook for the use of the public 
in obtaining information from their Components as required by 5 U.S.C. 
552(g) and section 2(b)(v) of E.O. 13392. This guide should be a short, 
simple explanation of what the FOIA is designed to do and how the 
public can use it to access Government records. Within OSD, DFOIPO is 
responsible for preparing this guide. Each guide shall be available on 
paper and electronically and shall include:
    (1) An index of all major information systems and a description of 
major information and record locator systems.
    (2) The types and categories of records that can be obtained 
through FOIA requests.
    (3) A concise description of the FOIA exemptions and how the 
Component determines whether the record can be released.
    (4) An explanation of how to make a FOIA request, how long the 
requester can expect to wait for a reply, and the right of appeal.
    (5) The location of the FOIA reading rooms(s) within the Component.
    (6) The location of the Component's Web site.
    (7) A reference to the Component's FOIA regulation and how to 
obtain a copy.


Sec.  286.4  Procedures.

    (a) Compliance with the FOIA. DoD personnel shall comply with the 
FOIA, this part, and DoD FOIA policy (32 CFR part 285) in both letter 
and spirit. This strict adherence is necessary to assure uniformity in 
implementation of the DoD FOIA Program and to create conditions that 
promote public trust.
    (b) Customer service. (1) In signing E.O. 13392, the President 
ordered agencies to emphasize a new citizen-centered approach to the 
FOIA with a results-oriented focus. Because FOIA requesters are seeking 
a service from the Federal Government, the DoD Components shall respond 
courteously and appropriately to FOIA requesters. Additionally, the 
Components shall provide the public with citizen-centered ways to learn 
about the FOIA process, information about agency records that are 
publicly available, and information about the status of a person's FOIA 
request and appropriate information about the agency's response.
    (2) To meet the objectives of E.O. 13392, the DoD Components shall:
    (i) Establish one or more FOIA Requester Service Centers. Normally, 
every DoD Component FOIA office that responds directly to the public is 
a FOIA Requester Service Center; however, the Components have the 
discretion to assign more than one FOIA Office under a FOIA Requester 
Service Center.
    (A) Each FOIA Requester Service Center shall have an internet Web 
site that serves to educate the public on the FOIA process. At a 
minimum, each Web site shall have the address, telephone number, 
facsimile number, and electronic mail address to which FOIA requests 
can be sent; a link to the Component's FOIA handbook or guide; a 
description of the types of records that can be requested; the name and 
contact information of the Component's FOIA Public Liaison; and 
information on how a requester can obtain the status of a request. 
Additionally, each FOIA Requester Service Center Web site will have an 
electronic FOIA reading room as described in Subpart B to this part.
    (B) The Web sites of DoD Component Headquarters FOIA Requester 
Service Centers shall link to the Web sites of the other Requester 
Service Centers within their Components.
    (C) The Internet home page of every DoD Component shall link to the 
FOIA Requester Service Center for that activity.
    (ii) Submit to the Director of Administration and Management 
(DA&M), OSD, the names of personnel to serve as DoD Component FOIA 
Public Liaisons. Each Component shall have at least one FOIA Public 
Liaison. Intermediate level Public Liaisons may be named within those 
Components that have a large number of FOIA Requester Service Centers. 
The FOIA Public Liaisons are responsible to ensure that the FOIA 
Requester Service Centers' Web sites comply with Sec.  286.4 
(b)(2)(i)(A). Additionally, the FOIA Public Liaisons are responsible 
for the Component's compliance with the objectives of E.O. 13392, to 
include the reduction or elimination of FOIA backlogs.
    (c) Prompt action on requests. (1) When a member of the public 
complies with the procedures in this part and DoD Component 
supplementing regulations for obtaining DoD records, and the request is 
received by the official designated to respond, the DoD Component shall 
endeavor to provide a final response determination within the statutory 
20 working days (5 U.S.C. 552(a)(6)(A)(i)). If unusual circumstances 
prevent a final response determination within the statutory time 
period, the Component shall advise the requester of this in writing, 
and provide a new completion date, which shall be not later than an 
additional 10 working days. If the Component needs more than this 10-
day extension, it will provide the requester an opportunity to narrow 
the scope of the request, or arrange for an alternative timeframe.
    (i) Unusual circumstances are:
    (A) The responsive documents are located at a facility 
geographically separated from the office processing the FOIA request.
    (B) The responsive documents are voluminous.

[[Page 71850]]

    (C) One or more other outside agencies have a substantial interest 
in either the determination or the subject matter of the request, 
requiring the DoD Component processing the request to consult with the 
other agencies. This would include the submitter notice process (Sec.  
286.18(d)(1)(i)(A)).
    (ii) A final response determination is notification to the 
requester that the records are released, or that the records cannot be 
provided for one or more of the reasons in Sec.  286.13. Interim 
responses acknowledging receipt of the request are encouraged, as are 
negotiations with the requester concerning the scope of the request, 
the response timeframe, and the fee agreement. Such communications do 
not, however, constitute a final response determination.
    (2) If a request fails to meet the minimum requirements of this 
part, the DoD Component shall inform the requester how to perfect or 
correct the request. The statutory 20-working day time limit applies 
upon receipt of a perfected or correct FOIA.
    (d) Use of exemptions. It is DoD policy (32 CFR part 285) to make 
records publicly available, unless the record or portions thereof 
qualify for withholding under one or more of the 9 exemptions.
    (e) Waiver of exemptions. Records released under the authority of 
this part are considered to be in the public domain. The disclosure of 
exempt records without authorization by the appropriate DoD official is 
not considered a FOIA release. Such a release does not waive the 
Department of Defense's authority to assert FOIA exemptions to withhold 
the same records in response to a FOIA request. 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.
    (f) Creating a record. (1) A record must exist and be in DoD 
possession and control at the time of the search to be subject to this 
part and the FOIA. The DoD Components are not obligated to create, 
compile, or obtain a record to satisfy a FOIA request. The DoD 
Components, however, may compile a new record when so doing would 
result in a more useful response to the requester or would be less 
burdensome to the agency than providing existing records. Any such 
compilation should be coordinated with and approved by the requester. 
The 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 Sec.  286.25.
    (2) With regards to electronic data, the issue of whether records 
are actually created or merely extracted from an existing database is 
not always readily apparent. Consequently, when processing FOIA 
requests for electronic data where creation of a record, programming, 
or organizing in a particular format is questionable, if the Component 
has the capability to respond to the request, and the effort would be a 
business-as-usual approach then the request should be processed.
    (i) A business as usual approach exists when the Component has the 
capability to process the request without a significant expenditure of 
resources. If processing a request would cause a significant 
interference with the operation of the Component's automated 
information system, then it has a significant expenditure of resources.
    (ii) Creating computer programs and/or purchasing additional 
hardware to extract electronic mail that has been archived for the 
purpose of emergency retrieval normally are not viewed as business as 
usual. This is especially true if extensive resources are needed to 
complete the project.
    (iii) Creating a computer program that produces specific requested 
fields or records contained within a database normally is viewed as 
business as usual. The time to create this program shall be considered 
as ``computer operator'' [clarify] search time for fee assessment 
purposes and the requester may be assessed fees in accordance with 
Sec.  286.25.
    (3) The DoD Components are not required to expend DoD funds to 
establish data links that provide real-time or near-real-time data to a 
FOIA requester. The Components are responsible to provide existing data 
downloaded to electronic media or printed in hard copy at the time the 
FOIA request is received or processed. If the information would serve 
the public interest or need, and is economically feasible, the 
Component may consider posting the information on the Internet.
    (g) Description of a requested record. The requester is responsible 
to provide a description of the desired record that enables the 
Government to locate the record with a reasonable amount of effort. 
Generally, a reasonable description contains sufficient information to 
permit the conduct of an organized, non-random search for the record 
based on the DoD Component's filing arrangements and existing retrieval 
systems. The DoD Component's decision on the reasonableness of the 
description must be based on a knowledge of its files, and not on the 
potential volume of records that may be located and the concurrent 
review effort to determine releasability. The fact that a FOIA request 
appears broad or burdensome does not, in itself, entitle the DoD 
Component to deny the request on the grounds that it does not 
reasonably describe the record sought.
    (h) Consultations and referrals. The DoD FOIA referral procedures 
are based on the concept that the originator of information contained 
within a record shall make a release determination on that information.
    (1) If the DoD Component receives a request for records originated 
by another DoD Component, it should contact that Component to determine 
if it also received the request, and if not, obtain concurrence to 
transfer the request or to advise the requester to send the request to 
the correct Component. If the request is to be transferred, the 
requester shall be advised of the action taken, unless exempt 
information would be revealed by the fact of the referral. Any DoD 
Component receiving a request that has been misaddressed shall transfer 
the request to the proper address and advise the requester. DoD 
Components transferring requests shall include point of contact name, 
telephone number, and e-mail address in the cover memorandum.
    (2) The DoD Component holding a record originated by another DoD 
Component or agency outside the Department of Defense shall refer a 
FOIA request for that record, as well as the record, to the originating 
agency for response directly to the requester. If the DoD Component 
holding the record has an equity in the document, it shall provide an 
opinion on the releasability of the record with the referral. If 
appropriate, the name of the IDA responsible for the decision to 
withhold all or parts of the record should be provided. Whenever a 
record is referred to another DoD Component or to an agency outside of 
the Department of Defense 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. DoD Components referring requests shall include 
point of contact name, telephone number, and e-mail address in the 
cover memorandum.
    (3) At times, a DoD Component may locate a responsive record that 
it

[[Page 71851]]

originated and determine another DoD Component or agency outside the 
Department of Defense to have a valid interest or equity in the record. 
In such situations, the DoD Component shall consult with the other DoD 
Component or agency and obtain its release recommendation. The 
consulted agency will provide its release recommendation back to the 
originating Component, which will then respond to the requester. 
Normally, the requester will not be advised of this consultation unless 
information is withheld by the consulted agency. However, if the record 
was created for the use of the other DoD Component or agency by the 
originating DoD Component (e.g., Defense Contract Audit Agency audit 
reports), then the procedures of Sec.  286.18(a) apply.
    (4) DoD Components receiving transferred or referred requests shall 
answer them in accordance with the time limits established by the FOIA, 
this part, and their multi-track processing systems, based upon the 
date of initial receipt of the request at the referring component or 
agency.
    (5) Prior to notifying a requester of a transfer or referral to 
another DoD Component or agency outside the Department of Defense, the 
DoD Component possessing the initial request shall, as appropriate, 
consult with the other agency to determine if that agency's association 
with the subject of the request is exempt. If the association is 
exempt, the DoD Component possessing the initial request will protect 
the association and any exempt information without revealing the 
identity of the protected agency. The protected agency shall be 
responsible for submitting the justifications required in any 
litigation.
    (6) DoD Components locating records originating with the National 
Security Council (NSC), the White House, or the White House Military 
Office (WHMO) or containing information in which these agencies would 
have a concurrent reviewing interest, shall forward the records to the 
Executive Services Directorate, Office of Freedom of Information 
(OFOI). OFOI is also the FOIA Requester Service Center for the OSD/
Joint Staff. Its address is at Appendix B to this part. The OFOI shall 
coordinate with the NSC, White House, or WHMO and return the records to 
the originating agency after coordination for response to the 
requester.
    (7) On occasion, the Department of Defense receives FOIA requests 
for U.S. Government Accountability Office (GAO) records containing DoD 
information. Even though the GAO is outside the Executive Branch and 
not subject to the FOIA, all FOIA requests for GAO documents containing 
DoD information received either from the public, or on referral from 
the GAO, shall be processed under the provisions of the FOIA.
    (i) Authentication. At the request of a FOIA requester, 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 is in addition to that required under the 
FOIA and is not included in the FOIA fee schedule. The DoD Components 
may charge a fee of $5.20 for each authentication.
    (j) Combatant commands. (1) The Combatant Commands are placed under 
the jurisdiction of the OSD, instead of the administering Military 
Department or the Chairman of the Joint Chiefs of Staff, for the 
purpose of administering the DoD FOIA Program. This policy represents 
an exception to the policies directed in DoD Directive 5100.3; it 
authorizes and requires the Combatant Commands to process FOIA requests 
in accordance with 32 CFR part 285 and this part. When requested, the 
Combatant Commands shall forward directly to the DFOIPO all 
correspondence associated with the appeal of an initial denial for 
records under the provisions of the FOIA. The Combatant Commands will 
advise requesters that they have the right to appeal any adverse 
determinations to the DFOIPO.
    (2) The Combatant Commands shall comply with all provisions of this 
part that apply to the DoD Components except the appointments of an 
appellate authority and a FOIA Public Liaison.
    (k) Security clearances and access for FOIA personnel. Due to the 
nature of their duties and responsibilities, FOIA personnel need access 
to all records requested through their respective offices, regardless 
of the sensitivity or classification of the information. The DoD 
Components shall ensure FOIA personnel have the appropriate clearances 
and accesses to perform their duties.
    (l) Use of Contractors in FOIA Administration. According to DoD 
Instruction 1100.22 and OMB Circular A-76, there are certain functions, 
known as inherently governmental activities that cannot be outsourced 
to a contractor. Since some of the functions of the FOIA Officer are 
inherently governmental, the DoD Components shall be careful not to 
outsource those FOIA functions that are inherently governmental. 
Primarily, activities which require the exercise of substantial 
discretion in applying government authority or in making decisions for 
the government are inherently governmental. Inherently governmental 
FOIA functions include:
    (1) Formulating and/or approving FOIA policies and procedures.
    (2) Making final determinations regarding whether to treat incoming 
correspondence as a FOIA or Privacy Act request.
    (3) Deciding any issues regarding the scope or interpretation of 
the request.
    (4) Determining the appropriateness of claimed exemptions.
    (5) Approving the approach taken in negotiations/discussions with 
the requester.
    (6) Deciding administrative appeals.
    (7) Conducting final review of all outgoing correspondence, 
memoranda, and release packages.
    (8) Drafting court documents for filing in FOIA lawsuit in which 
the government's legal strategy and affirmative defense are determined.
    (9) Conducting FOIA training if it involves issues of DoD policy.
    (10) Making final determination of requests for expedited 
processing, fee category, and fee waivers.
    (m) Records management. FOIA records shall be maintained and 
disposed of in accordance with the National Archives and Records 
Administration General Records Schedule and DoD Component records 
schedules.
    (n) Relationship between the FOIA and the Privacy Act. 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, requesters may cite either the FOIA or 5 
U.S.C. 552a, commonly known as the Privacy Act, or they may cite 
neither the FOIA nor the Privacy Act but will imply one or both. For 
these reasons, the below guidelines are provided to ensure requesters 
receive the greatest access rights under both statutes. Privacy Act 
requests can be made only by requesters asking for information on 
themselves contained within a Privacy Act system of records. If the 
requested information is on another person, the Privacy Act does not 
apply. These requests shall be processed under the FOIA.
    (1) Requesters who seek records about themselves contained in a 
Privacy Act system of records, and who cite or imply the FOIA and/or 
the Privacy Act, will have their requests processed under the 
provisions of both the Privacy Act and the FOIA. If the Privacy Act 
system of records is exempt from the provisions of 5 U.S.C. 552a(d)(1), 
and if the records, or any portion thereof, are

[[Page 71852]]

exempt under the FOIA, the requester shall be so advised with the 
appropriate Privacy Act and FOIA exemption(s). Appeals shall be 
processed under both the FOIA and the Privacy Act.
    (2) Requesters who seek records about themselves that are not 
contained in a Privacy Act system of records and who cite or imply the 
Privacy Act will have their requests processed under the provisions of 
the FOIA, since the Privacy Act does not apply to these records. 
Appeals shall be processed under the FOIA.
    (3) Requesters who seek access to agency records and who cite or 
imply the FOIA will have their requests and appeals processed under the 
FOIA.
    (4) If the record is required to be released under the FOIA, the 
Privacy Act does not bar its disclosure. Unlike the FOIA, the Privacy 
Act applies only to U.S. citizens and aliens admitted for permanent 
residence.
    (5) Requesters shall be advised in the final response letter which 
statutory authorities were used, inclusive of appeal rights.
    (o) Non-responsive information in responsive records. The DoD 
Components shall interpret FOIA requests liberally when determining 
which records are responsive, and may release non-responsive 
information. Responsive documents may contain large amounts of non-
responsive information, the review of which may cause delays in 
responding to the requester. In these cases, the DoD Components should 
identify the information which is non-responsive, redact it, and 
annotate it as non-responsive. The Components shall not apply these 
procedures to documents that have a relatively small percentage of non-
responsive information. Additionally, redactions of non-responsive 
information shall not be made in sections smaller than the paragraph 
level. That is, a non-responsive sentence within an otherwise 
responsive paragraph shall not be redacted as non-responsive.
    (p) Honoring form or format requests. The DoD Components shall 
provide the record in any form or format requested if the record is 
readily reproducible in that form or format in the Component's 
automated system. Every effort will be made to ensure the copy provided 
is in a reasonably usable form. The DoD Components shall make 
reasonable efforts to use available office equipment to digitally 
reproduce hard copy records onto digital media. If a Component must 
outsource to reproduce a record into the requested format, the readily-
reproducible criterion is not met. In responding to requests for 
records, the DoD Components shall make reasonable efforts to search for 
records in electronic form or format if maintained in automated 
systems, except when such efforts would significantly interfere with 
the operation of the automated systems. Such determinations shall be 
made on a case by case basis.
    (q) Annual report. The Annual FOIA Report is mandated by 5 U.S.C. 
552(e)(1) and completed on a fiscal year basis. Additionally, E.O. 
13392 requires additional reporting in the annual report through fiscal 
year 2007. Due to the magnitude of the requested statistics and the 
need to ensure accuracy, the DoD Components shall track this data as 
requests are processed. This will also facilitate quick compilation of 
the statistics in completing the report.
    (1) Each September, DFOIPO shall post on its Web site instructions 
to the Components concerning Component input for the annual report. The 
DoD Components shall forward their report to DFOIPO no later than 
November 30. In turn, the DA&M shall produce a consolidated report for 
submission to the Attorney General, and will place a copy of this 
report on the Internet for public access. The DoD Components shall use 
the current edition of DD Form 2564, ``Annual Report: Freedom of 
Information Act.''
    (2) This reporting requirement is assigned Report Control Symbol 
DD-DA&M(A)1365, Freedom of Information Act Report to Congress.

Subpart B--FOIA Reading Rooms


Sec.  286.7  Requirements.

    (a) Reading room. The FOIA requires records described in 5 U.S.C. 
552(a)(2)(A), (B), (C), and (D) be made available in an appropriate 
facility where the public may inspect or copy them. This facility is 
known as the ``FOIA reading room''. In addition to these records, the 
DoD Components may elect to place other records in their reading rooms. 
The DoD Components shall comply with this provision of the FOIA by 
providing a location accessible to the public for viewing these 
documents. In lieu of paper copies, the Component may digitize the 
documents and have them available on a personal computer in the reading 
room. The DoD Components may share reading room facilities if the 
public is not unduly inconvenienced, and also may establish 
decentralized reading rooms.
    (b) Electronic reading room. The FOIA requires records described in 
5 U.S.C. 552(a)(2)(A), (B), (C), and (D) and created on or after 
November 1, 1996, be made available electronically. The DoD Components 
will meet the electronically available requirement by posting the 
records in an electronic reading room on their FOIA Requester Service 
Center Web sites.
    (1) These electronic reading rooms will have four designated 
sections, each one corresponding to one of the four sections described 
in paragraph (b) of this section. If a Component does not have relevant 
documents to post in any of the four sections of the FOIA Requester 
Service Center electronic reading room, that section of the reading 
room will contain the annotation that no documents apply.
    (2) If a DoD Component has documents that meet the qualifications 
of 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) posted on a separate Web 
site, the Component's FOIA Requester Service Center is not required to 
post these same documents. Instead, the electronic reading room shall 
link to the other Web site. For example, if a Component maintains 
electronic copies of its issuances on a separate Web site, then the 
(a)(2)(C) section of the electronic reading room shall have a link to 
that site.
    (3) Exemptions. All information that qualifies for withholding 
under one or more of the FOIA exemptions described in Sec.  286.14 of 
this part shall be deleted from all 5 U.S.C. 552(a)(2) records that are 
made available to the public.


Sec.  286.8  Record availability.

    5 U.S.C. 552(a)(2)(A), (B), (C), and (D) records are:
    (a) ``(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 on as 
precedents in future adjudications.
    (b) ``(a)(2)(B)'' records. Statements of policy and interpretations 
that have been adopted by the agency and are not published in the 
Federal Register.
    (c) ``(a)(2)(C)'' records. Administrative staff manuals and 
instructions, or portions thereof, that establish DoD policy or 
interpretations of policy that affect the public. This provision does 
not apply to instructions for employees on tactics and techniques to be 
used in performing their duties, or to instructions relating only to 
the internal management of the DoD Component. Examples of manuals and 
instructions not normally made available are:
    (1) Those issued for audit, investigation, and inspection purposes, 
or those that prescribe operational tactics, standards of performance, 
or criteria for defense, prosecution, or settlement of cases.

[[Page 71853]]

    (2) Operations and maintenance manuals and technical information 
concerning munitions, equipment, systems, and intelligence activities.
    (d) ``(a)(2)(D)'' records. Records released to the public pursuant 
to 5 U.S.C. 552(a)(3) 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. Two additional requests satisfy the 
criterion of subsequent requests. These records are referred to as 
``FOIA-processed (a)(2) records.''
    (1) The DoD Components shall decide on a case by case basis whether 
records fall into this category, based on the following factors:
    (i) The previous experience of the DoD Component with similar 
records.
    (ii) The particular circumstances of the records involved, 
including their nature and the type of information they contain.
    (iii) The identity and number of requesters and whether there is 
widespread press, historic, or commercial interest in the records.
    (2) This provision of Sec.  286.8 is intended for situations where 
public access in a timely manner is important. 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. The DoD Components may remove the 
(a)(2)(D) records from their Web site when the appropriate officials 
determine that access is no longer necessary according to the factors 
of Sec.  286.8(d)(1).
    (3) Should a requester submit a FOIA request for FOIA-processed 
``(a)(2)'' records and insist that it be processed, the DoD Components 
shall process the request. However, the DoD Components have no 
obligation to process a FOIA request for 552(a)(2)(A), (B), and (C) 
records because these records are required to be made available to the 
public.


Sec.  286.9  Indexes.

    (a) ``(a)(2)'' records. (1) Each DoD Component shall maintain in 
each FOIA reading room an index of records described in Sec.  286.7 
that are issued, adopted, or promulgated, after July 4, 1967.
    (2) Any ``(a)(2)'' record relied on, used, or cited as precedent by 
an agency against a party that is issued, promulgated, or adopted after 
July 4, 1967, must be indexed and either made available or published, 
or the individual must have actual and timely notice of the contents of 
such records. Such records issued, promulgated, or adopted before July 
4, 1967, need not be indexed, but must be made available upon request 
if not exempted under Sec.  286.13.
    (3) Each DoD Component shall promptly publish quarterly or more 
frequently, and distribute by sale or otherwise, copies of each index 
of ``(a)(2)'' records 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 Sec.  286.24 
of this part.
    (4) Each index of ``(a)(2)'' records or supplement thereto shall be 
arranged by topical or descriptive words, rather than by case name or 
numbering system, so that the public can readily locate material. Case 
name and numbering arrangements may also be included for DoD Component 
convenience.
    (5) Listing of electronically available ``(a)(2)'' documents in a 
Component's electronic reading room satisfies this requirement.
    (b) Major information systems. 5 U.S.C. 552(g)(1) and (2) require 
agencies to make publicly available an index of all major information 
systems and a description of major information and record locator 
systems. This requirement will be met for the entire Department of 
Defense by DFOIPO on its Web site.


Sec.  286.10  ``(a)(1)''records.

    (a) Although (a)(1) records are not required to be made available 
in response to FOIA requests or in FOIA reading rooms, they shall be 
made available when feasible. Examples of ``(a)(1)'' records 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; instructions as to the scope and contents of papers, 
reports, or examinations; and any amendments, revisions, or reports of 
the aforementioned records.
    (b) In accordance with 5 U.S.C. 552(a)(1), each DoD Component shall 
disclose, through publication in the Federal Register, information 
describing its organization, functions, procedures, substantive rules, 
and statements of general policy. Any available index of DoD Component 
records published in the Federal Register, in addition to ``(a)(1)'' 
records, shall be made available to the public in DoD Component FOIA 
reading rooms and electronically.

Subpart C--Exemptions


Sec.  286.13  General provisions.

    (a) Records that meet FOIA exemption criteria may be withheld from 
public disclosure and need not be published in the Federal Register, 
made available in a reading room, or provided in response to a FOIA 
request.
    (b) Nine types of records may be withheld in whole or in part from 
public disclosure unless otherwise prescribed by law. In addition, a 
discretionary release of a record to one requester shall prevent the 
withholding of the same record under a FOIA exemption if the record is 
subsequently requested by someone else. However, a FOIA exemption may 
be invoked to withhold information that is similar or related that has 
been the subject of a discretionary release.
    (c) 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.
    (d) The DoD Components may have a situation where, in responding to 
a FOIA request, admitting the existence or nonexistence of a record 
would itself reveal information protected from release by one of the 9 
Exemptions. In this situation, the DoD Component shall neither confirm 
nor deny the existence or nonexistence of the requested record. This is 
commonly called a ``Glomar'' response (U.S. Attorney General 
Memorandum), and the appropriate exemption must be cited in the 
response. This situation most commonly arises with Exemptions 1, 6, and 
7; however, it could arise with other exemptions. 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. If not used 
consistently, the pattern of 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 exempt information.


Sec.  286.14  Applying the FOIA exemptions.

    The 9 types of exempted records and procedures for applying them 
are as follows:
    (a) Exemption 1. Pursuant to 5 U.S.C. 552(b)(1), records properly 
and currently classified in the interest of national defense or foreign 
policy, as specifically authorized under the criteria established by an 
existing Executive Order establishing classification criteria and 
implemented by regulation, such as DoD 5200.1-R,

[[Page 71854]]

are exempt from disclosure. If the responsive information 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 in this situation. If 
the information qualifies as Exemption 1 information, there is no 
discretion regarding its release. The requester will be advised as to 
which sections of the Executive Order apply in determining the 
information classified. In addition, Exemption 1 shall be invoked when 
the following situations are apparent:
    (1) Individual items of unclassified information, when compiled, 
reveal additional associations or relationships that meet the standard 
for classification under an existing Executive Order and DoD 5200.1-R, 
and are not otherwise revealed in the individual items of information. 
This is known as the ``mosaic,'' or ``compilation'' approach.
    (2) The existence or nonexistence of a record would itself reveal 
classified information.
    (b) Exemption 2. Pursuant to 5 U.S.C. 552(b)(2), records related 
solely to the internal personnel rules and practices of the Department 
of Defense or any of the DoD Components are exempt from disclosure. 
This exemption has two profiles, high ``(b)(2)'' and low ``(b)(2).''
    (1) High ``(b)(2).'' Records qualifying under high ``(b)(2)'' are 
those containing or constituting rules, regulations, orders, manuals, 
directives, instructions, and unclassified portions of security 
classification guides, the release of which would allow circumvention 
of these rules, regulations, and policies, thereby substantially 
hindering the effective performance of the mission of the Department of 
Defense. Examples include:
    (i) Critical infrastructure information that reasonably could be 
expected to enable someone to succeed in causing the harms described in 
Homeland Security Presidential Directive 7.\2\ This exempt information 
could include agency vulnerability assessments or evaluations of items 
of critical infrastructure that are internal to the Government.
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    \2\ Copies of Homeland Security Presidential Directive can be 
viewed at http://www.whitehouse.gov/news/releases/2003/12/20031217-5.html.
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    (ii) Those operating rules, guidelines, and manuals for DoD 
investigators, inspectors, auditors, or examiners that must be 
protected in order for the DoD Component to fulfill a legal 
requirement.
    (iii) 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.
    (iv) Computer software (Government-owned), the release of which 
would allow circumvention of a statute or of DoD rules, regulations, 
orders, manuals, directives, or instructions. In this situation, the 
use of the software must be closely examined to ensure a circumvention 
possibility exists.
    (2) Low ``(b)(2).'' Records qualifying under low ``(b)(2)'' 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 for 
which processing the request would constitute an administrative burden. 
Examples include rules for personnel use of parking facilities or 
regulation of lunch hours, statements of policy as to sick leave, and 
administrative data such as file numbers, mail routing stamps, 
initials, data processing notations, brief references to previous 
communications, and other like administrative markings.
    (c) Exemption 3. Pursuant to 5 U.S.C. 552(b)(3), records concerning 
matters that another statute specifically exempts from disclosure are 
exempt under this exemption. This exemption allows for the withholding 
of information because its release is prohibited by another statute 
only if one of two disjunctive requirements is met: The statute 
requires that the information be withheld from the public in such a 
manner as to leave no discretion on the issue, or the statute 
establishes particular criteria for withholding or refers to particular 
types of matters to be withheld. The DFOIPO maintains on its Web site a 
list of Exemption 3 statutes used within the Department of Defense.
    (d) Exemption 4. Pursuant to 5 U.S.C. 552(b)(4), records containing 
trade secrets or commercial or financial information received by the 
DoD Component from a person or organization outside the Government are 
exempt from release. Information protected by this exemption must be 
trade secrets or commercial or financial records, the disclosure of 
which is likely to cause substantial harm to the competitive position 
of the submitter providing the information; impair the Government's 
ability to obtain necessary information in the future; or impair some 
other legitimate Government interest. If the information qualifies as 
Exemption 4 information, there is no discretion in its release.
    (1) Examples of information protected by Exemption 4 include:
    (i) Commercial or financial information received in confidence in 
connection with loans, bids, contracts, or proposals.
    (ii) Statistical data and commercial or financial information 
concerning contract performance, income, profits, losses, and 
expenditures.
    (iii) Personal statements given in the course of inspections, 
investigations, or audits.
    (iv) Financial data provided by private employers in connection 
with locality wage surveys that are used to fix and adjust pay 
schedules applicable to the prevailing wage rate of employees within 
the Department of Defense.
    (v) 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.
    (vi) Technical or scientific data developed by a contractor or 
subcontractor exclusively at private expense, or developed in part with 
Federal funds and in part at private expense. The contractor or 
subcontractor must retain legitimate proprietary interests in such data 
in accordance with 10 U.S.C. 2320-2321 and DoD Federal Acquisition 
Regulation Supplement, Chapter 2 of title 48 Code of Federal 
Regulations, Subpart 227.71-227.72. Technical data developed 
exclusively with Federal funds may be withheld under Exemption 3, if it 
meets the criteria of 10 U.S.C. 130 and 48 CFR. See Sec.  286.14.
    (vii) Copyrighted information under 17 U.S.C. 106.
    (viii) 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.
    (2) When the Components receive FOIA requests for information that 
could be protected by this Exemption, submitter notice shall be 
provided. See Sec.  286.2.
    (e) Exemption 5. Pursuant to 5 U.S.C. 552(b)(5), inter-agency or 
intra-agency memorandums or letters containing information considered 
privileged in litigation are exempt from disclosure. The courts have 
construed ``privileged in litigation'' to mean information that is 
normally privileged in the civil discovery context (U.S. Department of

[[Page 71855]]

Justice (DOJ) Guide).\3\ Merely being an internal record is an 
insufficient basis for withholding under this exemption. Records that 
are not available routinely through the discovery process in the course 
of litigation with the agency because they are privileged should not be 
withheld under this exemption. The most common discovery privileges 
have been incorporated into Exemption 5. These privileges are the 
deliberative process, the attorney work product, and the attorney 
client privilege.
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    \3\ Copies of U.S. Department of Justice (DOJ) Guide can be 
viewed at http://www.usdoj.gov/oip/.
---------------------------------------------------------------------------

    (1) Threshold. (i) A document must meet the threshold requirement 
of being an inter- or intra-agency document before the proper privilege 
can be identified in any given case. Because in many instances the 
Government must seek expert advice from external entities (or 
consultants), the courts developed an ``outside consultant'' test which 
helps in determining whether such an external entity qualifies as an 
``agency'' for the purposes of this exemption. If an entity meets the 
test, then documents it originates may be protected by Exemption 5.
    (ii) The Components should be careful to ensure that the outside 
consultant is not an interested party in the agency decision-making 
process. In 2001, the U.S. Supreme Court ruled that the threshold of 
Exemption 5 does not encompass communications between an outside 
consultant (in this case, several Indian tribes) and the Government 
(the U.S. Department of the Interior (DOI)). In this case, the outside 
consultants offered an expert opinion on an issue under consideration 
by DOI. The Supreme Court found that the tribes had an interest in the 
outcome of the DOI final decision; therefore, the DOI communications 
did not meet the threshold of Exemption 5. (DOJ FOIA Post Web site)
    (2) The privileges and types of information protected by Exemption 
5 include:
    (i) Deliberative process privilege. To withhold information under 
this privilege, the information must be both deliberative and 
predecisional, and part of the decision-making process. Deliberative 
means the information is internal advice, recommendations, or 
subjective evaluations, as contrasted with factual matters, that are 
reflected in records relied upon in the decision-making process of an 
agency, whether within or among agencies. Predecisional means the 
information was created before the decision maker reached a final 
decision. Factual information cannot be withheld from a requester under 
Exemption 5 except under one of two circumstances. The first 
circumstance is when the author of a document selects specific facts 
out of a larger group of facts and this very act is deliberative in 
nature. This information qualifies for withholding because its release 
would reveal the author's internal thought processes. The second 
circumstance exists when the factual information is so inextricably 
connected to the deliberative material that its disclosure would expose 
or cause harm to the agency's deliberations. A direction or order from 
a superior to a subordinate generally does not qualify as a 
deliberative process document if it constitutes policy guidance or a 
decision. However, correspondence from a superior to a subordinate may 
qualify if it constitutes a discussion of preliminary matters or a 
request for information or advice that would be relied upon in the 
decision-making process. An agency's final decision cannot be withheld 
under the privilege unless it becomes part of another, higher-level 
decision-making process (such as the agency budgetary process). The 
deliberative process privilege is temporal in nature because once the 
final agency decision is made the privilege cannot be used to withhold 
the final decision or any post-decisional documents related to the 
decision. Examples of deliberative process documents include:
    (A) Staff papers, to include after-action reports, inspection 
reports, lessons learned, and situation reports containing staff 
evaluations, advice, opinions, or suggestions.
    (B) Advice, suggestions, or evaluations prepared on behalf of the 
Department of Defense by individual consultants or by boards, 
committees, councils, groups, panels, conferences, commissions, task 
forces, or other similar groups that are formed for the purpose of 
obtaining advice and recommendations.
    (C) Evaluations by DoD Component personnel of contractors and their 
products.
    (D) 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.
    (E) Agency materials underlying the President's budget decisions as 
described in OMB Circular No. A-11. This includes planning, 
programming, and budgetary information that is involved in the defense 
planning and resource allocation process and outyear discretionary 
data.
    (ii) Attorney client privilege. This privilege protects 
confidential communications between an attorney and a client relating 
to legal matters for which the client has sought professional advice. 
The information the client supplies to the attorney and the advice the 
attorney gives to the client in return are protected under this 
privilege. Courts extend the ``confidential'' element of this privilege 
to lower echelon Government employees because it is recognized when the 
Government is seeking legal advice it usually involves more than one 
client and one attorney. This privilege cannot be used if 
confidentiallity is compromised.
    (iii) Attorney work product privilege. This privilege protects 
documents prepared by an attorney or at an attorney's direction in 
reasonable anticipation of litigation. Unlike the deliberative process 
privilege, under the attorney work product privilege all of the 
information can be withheld, including the facts. Similarly, this 
privilege has no time limit. This privilege can be used after the 
litigation is complete.
    (iv) Government trade secret privilege. This privilege protects 
trade secrets 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.
    (v) Aircraft accident witness statements privilege. This privilege 
protects witness statements generated during military aircraft accident 
investigations.
    (vi) Presidential communications privilege. This privilege protects 
communications among the President and his advisors created within an 
agency to assist the President in the exercise of his nondelegable 
constitutional duties.
    (f) Exemption 6. Pursuant to 5 U.S.C. 552(b)(6), information in 
personnel and medical files, as well as similar in other files, that if 
disclosed to a requester other than the person whom the information is 
about, would result in a clearly unwarranted invasion of personal 
privacy is exempt from disclosure. If the information qualifies as 
Exemption 6 information, there is no discretion in its release.
    (1) When applying this exemption, an agency must balance the public 
interest in disclosure and the individual's privacy interest. When 
there is no public interest in the requested

[[Page 71856]]

information, the information can be withheld even if there is only a 
negligible privacy interest. The public interest to be considered when 
applying this exemption is whether the information sheds light on the 
operations or activities of the Federal government. The requester has 
the burden to show there is a public interest in disclosure.
    (2) A privacy interest may exist in personal information even 
though the information has been disclosed at some place and time. This 
is known as the concept of practical obscurity. For example, 
information that was once publicly known (a court-martial trial 40 
years ago) may no longer be in the public's eye and has faded from 
memory. In this case, the privacy interest in this type of situation 
may have increased over time, the public interest may have decreased 
over time, and therefore an agency can now withhold the once public 
information.
    (3) Examples of other files containing personal information similar 
to that contained in personnel and medical files include:
    (i) Those files compiled to evaluate or adjudicate the suitability 
of candidates for civilian employment or membership in the Armed 
Forces, and the eligibility of individuals (civilian, military, or 
contractor employees) for security clearances or for access to 
particularly sensitive classified information.
    (ii) Files containing reports, records, and other material 
pertaining to personnel matters in which administrative action, 
including disciplinary action may be taken.
    (4) On November 9, 2001, subsequent to the President declaring a 
national emergency, the DA&M issued a memorandum authorizing the DoD 
Components to withhold lists of personally identifying information of 
DoD personnel, to include active duty military personnel, civilian 
employees, contractors, members of the National Guard and Reserves, and 
military dependents. Additionally, personally identifying information 
of DoD military and civilian personnel who are assigned to overseas, 
sensitive, or routinely deployable, units is exempt from release under 
Exemption 3, with section 130b of 10 U.S.C. as the withholding statute. 
Names and duty addresses (postal and/or e-mail) published in telephone 
directories, organizational charts, rosters, and similar materials for 
personnel are considered ``lists of personally identifying 
information;'' and therefore qualify for withholding under Exemption 6 
(and Exemption 3 if applicable).
    (5) Home addresses, telephone numbers, and private e-mail addresses 
are normally protected by this exemption. This includes lists of home 
addressees and military quarters' addressees that do not include the 
occupants' names.
    (6) This exemption shall not be used in an attempt to protect the 
privacy of a deceased person. It may be used to protect the privacy of 
the deceased person's surviving family members if disclosure would 
rekindle grief, anguish, pain, embarrassment, or even disruption of 
peace of mind of surviving family members. In such situations, the DoD 
Components shall balance the surviving family members' privacy 
interests and the public's interest to determine its releasability.
    (7) This exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal information in 
which a privacy interest exists, and the public interest in disclosure 
is not sufficient to outweigh the privacy interest. In this situation, 
the DoD Components shall neither confirm nor deny the existence or 
nonexistence of the record being requested. This is known as a ``Glomar 
response'', and Exemption 6 must be cited in the response. Refusal to 
confirm or deny should not be used when:
    (i) The person whose personal privacy is in jeopardy has provided 
the requester with a privacy waiver.
    (ii) The person seeking access to an agency record initiated or 
directly participated in an investigation that leads to the creation of 
that record.
    (iii) 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) Exemption 7. Pursuant to 5 U.S.C. 552(b)(7), records or 
information compiled for law enforcement purposes are exempt from 
disclosure upon the identification of one of the six harms delineated 
in the 6 subparts of Exemption 7. Law enforcement purposes include 
civil, criminal, military, regulatory, and administrative law, 
including the implementation of Executive Orders or regulations issued 
pursuant to law. This exemption may be invoked to prevent disclosure of 
documents not originally created for, but later gathered for, law 
enforcement purposes.
    (1) Conditions under which exception 7 applies. Exemption 7 applies 
only when production of such law enforcement records or information:
    (i) Exemption 7A. This applies when the disclosure of law 
enforcement records could reasonably be expected to interfere with 
enforcement proceedings (5 U.S.C. 552(b)(7)(A)).
    (ii) Exemption 7B. This applies when the disclosure of law 
enforcement records 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) Exemption 7C. This applies when the disclosure of law 
enforcement records could reasonably be expected to constitute an 
unwarranted invasion of the personal privacy of a living person, 
including surviving family members of an individual identified in such 
a record (5 U.S.C 552(b)(7)(C)).
    (iv) Exemption 7D. This applies when the disclosure of law 
enforcement records could reasonably be expected to disclose the 
identity of a confidential source, including a source within the 
Department of Defense; a state, local, or foreign agency or authority; 
or any private institution that furnishes the information on a 
confidential basis; and could disclose information furnished from a 
confidential source and obtained by a criminal law enforcement 
authority in a criminal investigation or by an agency conducting a 
lawful national security intelligence investigation (section 5 U.S.C. 
552(b)(7)(D)).
    (v) Exemption 7E. This applies when the disclosure of law 
enforcement records 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)).
    (vi) Exemption 7F. This applies when the disclosure of law 
enforcement records could reasonably be expected to endanger the life 
or physical safety of any individual (5 U.S.C. 552(b)(7)(F)).
    (2) Examples of Exemption 7 applications. (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 may be exempt from 
disclosure pursuant to Exemptions 7A, 7C, and/or 7D.
    (ii) The identity of firms or individuals being investigated for 
alleged irregularities involving contracting with the Department of 
Defense when no indictment has been obtained nor any civil action filed 
against them by the United States may be exempt from disclosure 
pursuant to Exemptions 7A and/or 7C.
    (iii) Information obtained in confidence, expressed or implied, in 
the course of a criminal investigation by a criminal law enforcement 
agency or a lawful national security intelligence

[[Page 71857]]

investigation, may be exempt from disclosure pursuant to Exemptions 7A, 
7C and/or 7D. National security intelligence investigations include 
background security investigations and those investigations conducted 
for the purpose of obtaining affirmative or counterintelligence 
information.
    (iv) Emergency action plans, guidelines for response to terrorist 
attacks, analyses of security procedures, and other sensitive 
information that could prove deadly if obtained by those seeking to do 
harm to the public on a large scale may be exempt from disclosure 
pursuant to Exemptions 7E and/or 7F. The Components should also assert 
Exemption 2 in conjunction with Exemption 7E to withhold this type of 
law enforcement information.
    (3) Exclusions. The FOIA contains 3 special protection provisions 
referred to as record ``exclusions.'' Of these exclusions, only 2 are 
used by the Department of Defense. These exclusions expressly authorize 
Department of Defense law enforcement agencies to treat especially 
sensitive records under certain specified circumstances as not subject 
to the requirements of the FOIA. The DoD Component considering invoking 
one of these exclusions shall first consult with legal counsel and with 
DFOIPO. In turn, DFOIPO will consult with the Office of Information and 
Privacy, Department of Justice. If the records are determined to be 
excluded, the response to the requester will state that no records were 
found.
    (i) Exclusion 1. The DoD Components may treat records requested as 
not subject to the FOIA when the following circumstance applies:
    (A) The request involves access to records or information compiled 
for law enforcement purposes.
    (B) 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 the pending investigation 
or proceeding.
    (C) The disclosure of the existence of the records could reasonably 
be expected to interfere with enforcement proceedings.
    (ii) Exclusion 2. The DoD Components may treat records requested as 
not subject to the FOIA when a third party uses an informant's name or 
personal identifier to request informant records maintained by a 
criminal law enforcement organization within the DoD Component, and the 
informant's status as an informant has not been officially confirmed.
    (h) Exemption 8. Pursuant to 5 U.S.C. 552(b)(8) of Reference (b), 
records 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 
are exempt from disclosure.
    (i) Exemption 9. Pursuant to 5 U.S.C. 552(b)(9), records containing 
geological and geophysical information and data (including maps) 
concerning wells are exempt from disclosure.

Subpart D--FOIA Request Processing


Sec.  286.17  General provisions.

    (a) Release of agency records. 5 U.S.C. 552(a) mandates release of 
agency records in response to a written request, unless:
    (1) The record is subject to one or more FOIA exemptions.
    (2) The record has not been described well enough to enable the DoD 
Component to locate it with a reasonable amount of effort by an 
employee familiar with the files.
    (3) The requester has failed to comply with procedural 
requirements, including failure to comply with a written agreement to 
pay any required fee incurred in processing previous requests.
    (b) Requests from private parties. (1) The provisions of the FOIA 
are reserved for members of the public as opposed to U.S. Federal 
agencies seeking official information. Requests may be submitted in 
person, by mail, facsimile, or electronically. Commercial delivery is 
acceptable; however, due to security concerns, the DoD Components may 
refuse to accept commercial delivery of requests.
    (2) Individuals seeking DoD information should address their FOIA 
requests to one of the FOIA Requester Service Center addresses listed 
in Appendix B to this part. If a requester is not sure where to send a 
FOIA for DoD information, the request can be sent to the OSD/Joint 
Staff FOIA Requester Service Center.
    (3) The subject of a FOIA request may involve documents located at 
multiple Federal Government agencies. When this is the case, the DoD 
Components should try to determine whether the requester sent the 
request to the other relevant agencies. The requester should be 
contacted by the Component if the request does not mention any other 
agencies to which the request was sent.
    (4) When personally-identifying information in a record is 
requested by the subject of the record or the subject's representative 
and the information is contained within a Privacy Act system of 
records, it will be processed under both the FOIA and the Privacy Act. 
The Components shall comply with the provisions of DoD 5400.11-R to 
confirm the identity of the requester.
    (c) Requests from government officials, Congress, and foreign 
governments. (1) State or local Government officials, foreign officials 
requesting on behalf of their government, foreign individuals, or 
foreign organizations requesting DoD Component records under the FOIA 
shall be considered the same as any other FOIA requester. The 
provisions of the FOIA do not apply to requests from a non-U.S. 
government entity or representative for records of the DoD Component 
that is an element of the intelligence community as defined in 50 
U.S.C. 401a(4).
    (2) Requests from members of Congress who are not seeking records 
on behalf of a Congressional committee or subcommittee, or on behalf of 
the House of Representatives or the Senate sitting as a whole, shall be 
processed as FOIA requests.
    (3) Requests submitted by members of Congress for Congressional 
business that are received by the DoD Component's FOIA office shall be 
referred to the appropriate office that handles legislative inquiries 
for processing under DoD Directive 5400.4 or supplementing component 
directives. Such requests will not be processed under the FOIA.
    (4) Requests from officials of foreign governments that do not 
invoke the FOIA shall be referred to the appropriate office authorized 
to disclose official DoD information to foreign governments, and the 
requester shall be so notified.
    (5) Because it is a Component of the Department of Defense, 
requests from Stars and Stripes should not be processed under the FOIA. 
A Federal Agency cannot make a FOIA request.
    (d) Privileged release outside of the FOIA to U.S. government 
officials. (1) Records exempt from release to the public under the FOIA 
may be disclosed in accordance with DoD Component regulations to 
agencies of the Federal Government, whether legislative, executive, or 
administrative, as follows:
    (i) To other Federal agencies, both executive and administrative, 
as determined by the Head of the DoD Component or designee.
    (ii) In response to a State or Federal court order. The DoD 
Components shall release this information along with a description of 
the restrictions on its release to the public.
    (2) The DoD Components shall inform officials receiving records 
under the provisions of this paragraph that those records are exempt 
from public release

[[Page 71858]]

under the FOIA. The DoD Components also shall advise officials of any 
special handling instructions. Classified information is subject to the 
provisions of DoD 5200.1-R. Information contained in a Privacy Act 
system of records is subject to DoD 5400.11-R.


Sec.  286.18  Processing procedures.

    (a) Receipt and control. When a request for records is received, 
DoD FOIA Offices shall open a file in a formal control system designed 
to ensure accountability and compliance with the FOIA. The control 
system should include the data elements needed to compile the 
statistics required in the annual FOIA report or other reports required 
by another authority. Each request shall be assigned a unique tracking 
number.
    (b) Multi-track processing. (1) When a FOIA Office has a 
significant number of pending requests, the requests shall be processed 
in a multi-track system.
    (2) DoD FOIA Offices shall establish a minimum of three processing 
tracks, all based on a first-in/first-out concept and with requests 
ranked by date of receipt. One track shall be for simple requests, one 
for complex requests, and one for expedited requests. Each FOIA Office 
shall determine whether a request is simple or complex. Requesters 
whose requests are categorized as ``complex'' shall be given an 
opportunity to limit in writing the scope of the request in order to 
qualify for the simple track.
    (c) Expedited processing. Two circumstances merit expedited 
processing according to the procedures that follow. These same 
procedures apply to requests for expedited processing of administrative 
appeals.
    (1) Compelling need. Expedited processing shall be granted to a 
requester upon a specific request for such and demonstration of a 
compelling need for the information. The DoD Component shall respond to 
the requester with the determination whether to grant or deny expedited 
processing within 10 calendar days after receipt of the request. Once 
the DoD Component decides to grant expedited processing, the request 
shall be processed as soon as practicable. Actions by the DoD 
Components to initially deny or affirm the initial denial on appeal of 
a request for expedited processing, and failure to respond in a timely 
manner shall be subject to judicial review if the requester seeks 
relief in United States District Court.
    (i) ``Compelling need'' is 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, or 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.
    (A) ``An individual primarily engaged in disseminating 
information'' is a person whose primary activity involves publishing or 
otherwise disseminating information to the public. To meet this 
criterion, an organization or person must establish that information 
dissemination is their principal professional activity or occupation, 
and not an incidental or secondary activity.
    (B) ``Urgently needed'' means the information has a particular 
value that will be lost if not disseminated quickly, such as a breaking 
story of general public interest. Information of historical interest 
only, or information sought for litigation or commercial activities, 
would not qualify as ``urgently needed,'' nor would a news media 
publication or broadcast deadline unrelated to the news-breaking nature 
of the information. The burden of demonstrating that the requested 
information has a particular value that will be lost if not 
disseminated quickly is on the requester.
    (ii) A ``demonstration of compelling need'' means a statement 
certified to be true and correct to the best of the requester's 
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.
    (2) Imminent loss of due process rights. Expedited processing shall 
also be granted to a requester if loss of substantial due process 
rights is imminent. A demonstration of imminent loss of substantial due 
process rights by the requester shall include a description of the due 
process rights that would be lost and a statement certified to be true 
and correct to the best of the requester's 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. 
If the DoD Component decides to expedite the request for this reason, 
the request may be processed in the expedited track behind those 
requests qualifying for compelling need.
    (d) Consultation and referrals. The DoD Component shall take 
appropriate action as described in Sec.  286.4(h)(2) when the record is 
not under its release authority because it requires consultation with 
another DoD Component or non-DoD agency, because the record was not 
originated by the Component, or because the record is not in the 
Component's system of records but is likely to be held by another DoD 
Component or non-DoD agency. The following actions are necessary when 
the record was originated by a non-Government source:
    (1) When a request is received for a record that arguably contains 
information exempt from release under Exemption 4, the provisions of 
E.O. 12600 apply.
    (i) When a FOIA request is received for records that may contain 
confidential commercial information (e.g., government contracts), the 
submitter shall be notified promptly of that request and afforded 
reasonable time (e.g., 20 calendar days) to present any objections 
concerning release. This practice of giving submitter notice is 
required by E.O. 12600 for those FOIA requests for data not deemed 
clearly exempt from disclosure under Exemption 4. The submitter notice 
letter should include, as an attachment, a copy of the requested 
information. Any objections to release provided by the submitter shall 
be evaluated. The final decision to disclose information claimed to be 
exempt under Exemption 4 shall be made by an official equivalent in 
rank to the official who would make the decision to withhold that 
information under the FOIA. When a substantial issue has been raised or 
when the objections submitted lack specificity, the DoD Component may 
seek additional information from the submitter and afford the submitter 
a reasonable opportunity to present arguments on the legal and 
substantive issues involved prior to making an agency determination. If 
the Component and submitter cannot come to agreement as to what 
information is exempt from release under Exemption 4, the Component 
shall provide the submitter a date on which the information in question 
will be released to the FOIA requester. This date should provide the 
submitter sufficient time to block the release of the information by 
obtaining an injunction in Federal Court (which is known as a reverse 
FOIA lawsuit), if the submitter so chooses. If no response is 
forthcoming the component shall release the information on the date 
provided to the submitted.
    (ii) The requester shall be notified when:
    (A) The Component notifies the submitter of the FOIA request and 
asks for comments.
    (B) The Component advises the submitter that the requested 
information will be released over the submitter's objections.
    (iii) The submitter shall be notified immediately whenever the 
requester

[[Page 71859]]

brings suit seeking to compel disclosure of the submitter's 
information.
    (iv) If the submitted information is a proposal provided in 
response to a solicitation for a competitive proposal, and the proposal 
is in DoD possession and control and meets the requirements of 10 
U.S.C. 2305(g), the proposal shall not be disclosed, and no submitter 
notification and subsequent analysis is required. The proposal shall be 
withheld from public disclosure pursuant to Reference (m) and Exemption 
3. This statute does not apply to bids, unsolicited proposals, or any 
proposal that is set forth or incorporated by reference in a contract 
between the DoD Component and the offeror that submitted the proposal. 
In such situations, normal submitter notice and analysis shall be 
conducted in accordance with Sec.  286.18 (l) except 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. The term 
``proposal'' does not include an offeror's name, total price, or unit 
prices when set forth in a record other than the proposal itself.
    (v) If the record or information was submitted on a strictly 
voluntary basis, absent any exercised authority that prescribes 
criteria for submission, and it is absolutely clear that the record or 
information would customarily not be released to the public the 
submitter need not be notified. The Component shall withhold this 
information under Exemption 4.
    (2) The coordination provisions of this paragraph apply to the 
release of responsive information received 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, foreign governments, or 
international organizations (e.g., the International Committee of the 
Red Cross).
    (i) Coordination with foreign governments under the provisions of 
this paragraph may be made through the Department of State, the 
specific foreign embassy, or any other coordination channel the 
Component has established. OFOI has established a coordination channel 
with the United Kingdom Ministry of Defence (MOD). If the DoD Component 
has MOD-originated information within its files, it shall be forwarded 
to OFOI, which shall coordinate with the MOD for release. The MOD 
release recommendation will be forwarded by OFOI back to the Component 
for direct response to the requester. Coordination with most 
international organizations may be made directly with those 
organizations. However, for NORAD coordination the Components shall 
refer the documents to the FOIA Office at the United States Northern 
Command, which will consult with NORAD.
    (ii) If an international organization or foreign government asks 
the Department of Defense to withhold classified information originated 
by the multi-national organization or foreign government, it will be 
withheld under the provisions of Exemption 1.
    (iii) If the DoD Component is asked to withhold sensitive 
unclassified information originated by the multi-national organization 
or foreign government, then the Component will withhold it under the 
provisions of Exemption 3, and shall reference the relevant statute as 
10 U.S.C. 130c. To qualify for withholding under this statute, the 
Component IDA must make the three following determinations concerning 
the requested foreign information:
    (A) The information was provided by or produced in cooperation with 
a foreign government or international organization.
    (B) The information is withheld from public disclosure by the 
foreign government or international organization (the foreign 
government or international organization should make this 
representation in writing).
    (C) Any of the following three conditions are met:
    (1) The foreign government or international organization requests 
in writing that the information be withheld.
    (2) The foreign government or international organization provides 
the information to the U.S. Government on the condition that it not 
released to the public.
    (3) The requested information is specified in agency regulations as 
being information the release of which would have an adverse effect on 
the ability of the Government to obtain the same or similar information 
in the future.
    (D) To qualify for withholding, the information must meet the 
following limitations:
    (1) If the information came into the possession or under the 
control of the U.S. Government prior to October 30, 2000, and more than 
25 years prior to receipt of the FOIA request, the DoD Component shall 
notify the foreign government or international organization of the 
request for disclosure. The information then qualifies for withholding 
only if the foreign government or international organization requests 
in writing that the information not be disclosed for a specific period 
of time. This date can be extended with a later request by the foreign 
government or international organization.
    (2) If the information came into the possession or under the 
control of the U.S. Government after October 30, 2000, the information 
cannot be withheld after the release date specified by the foreign 
government or international organization. In the case where one or more 
foreign governments or international organizations provided the 
information, the latest date specified by any of them will be used. If 
no release date was specified, and the information came into the 
possession of the DoD Component more than 10 years prior to receipt of 
the FOIA request, the procedures set forth in Sec.  286.18(d)(1)(i) 
apply.


Sec.  286.19  Initial determinations.

    (a) IDA. (1) The determination whether to withhold information 
responsive to a FOIA request shall be made by any suitable official 
designated in writing as an IDA by the DoD Component. In designating 
IDAs, the DoD Component shall balance the goals of centralization of 
authority to promote uniform decisions, and decentralization to 
facilitate responding to each request within the time limitations of 
the FOIA. The IDA shall review all withheld information to determine 
whether it meets the criteria for withholding under one or more of the 
FOIA exemptions. This determination may be made upon the recommendation 
of a review official.
    (2) IDAs and review officials shall not use the existence of 
classification markings, distribution limiting statements, such as 
``For Official Use Only'' markings, as justification to withhold 
information. Information so marked must be reviewed after the receipt 
of a FOIA request to determine if the markings still apply.
    (3) To deny, in whole or in part, a requested record that is in the 
possession and control of the DoD Component, the IDA must determine 
that one or more of the FOIA exemptions justify withholding all or part 
of the record.
    (4) The IDA should consult with public affairs officers (PAOs) to 
become familiar with subject matter considered to be newsworthy at the 
local or national level, and advise PAOs of all requests from news 
media representatives. In addition, the IDA should inform PAOs in 
advance when they intend to withhold or partially

[[Page 71860]]

withhold a record if it appears the withholding action may be a media 
issue.
    (b) Reasons for not releasing a record. The following are reasons 
for not complying with a request for a record pursuant to 5 U.S.C. 
552(a)(3). These reasons are data items that should be maintained in 
the control system database for ease of retrieval and reporting in the 
Annual FOIA Report.
    (1) No records. A reasonable search of files failed to identify 
responsive records.
    (2) Referrals. The request is transferred to another DoD Component 
or Federal agency.
    (3) Request withdrawn. The request is withdrawn by the requester.
    (4) Fee-related reason. The requester is unwilling to pay fees 
associated with a request; the requester is past due in the payment of 
fees from a previous FOIA request; or the requester disagrees with the 
fee estimate.
    (5) Records not reasonably described. A record has not been 
described with sufficient particularity to enable the DoD Component to 
locate it by conducting a reasonable search.
    (6) Not a proper FOIA request for some other reason. The requester 
has failed to comply with procedural requirements, other than fee-
related requirements, imposed by this part or by DoD Component 
supplementing regulations.
    (7) Not an agency record. The information requested is not a record 
within the meaning of the FOIA and this part.
    (8) Duplicate request. The request is a duplicate request (e.g., a 
requester asks for the same information more than once). This includes 
identical requests received through different means (e.g., electronic 
mail, facsimile, mail, courier) at the same or different times.
    (9) Other (Specify). Any other reason a requester does not comply 
with published rules other than those outlined in paragraph (b) of this 
section.
    (10) Partial or total denial. The record is denied in whole or in 
part in accordance with procedures set forth in the FOIA.
    (c) Reasonably segregable portions. Although portions of some 
records may be denied, the remaining reasonably segregable portions 
must be released to the requester. Unless disclosing 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. 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 was made. This may be done by use of brackets, 
shaded areas, or some other identifiable technique that will clearly 
show the limits of the deleted information.
    (d) Response to requester. (1) When a decision is made to release a 
record, a copy should be made available promptly to the requester.
    (2) When a request for a record is denied in whole or in part, the 
official designated to respond shall provide the requester a written 
explanation of the substantive basis for denial including specific 
citation of the statutory exemption applied under provisions of this 
part (e.g., 5 U.S.C. 552 (b)(1)) and advise the requester of their 
appeal rights, including the address to which any appeal should be 
mailed. The basis for the determination shall be in sufficient detail 
to permit the requester to make a decision concerning an appeal. If the 
IDA does not sign the response letter, the name and duty title of the 
IDA will be specified in the letter. The official also shall advise the 
requester that any appeal to the adverse determination must be 
postmarked no later than 60 days after the date of the initial denial 
letter.
    (3) The DoD Component shall make a reasonable effort to estimate 
the volume of the records denied and provide this estimate to the 
requester, unless providing such an estimate would harm an interest 
protected by an exemption of the FOIA. This estimate should be in 
number of pages or in some other reasonable form of estimation.
    (4) When a denial is based on a statute qualifying as a FOIA 
Exemption 3 statute, the DoD Components shall state the particular 
statute relied upon to deny the information.
    (5) When a requester is assessed fees for processing a request, the 
requester's fee category shall be specified in the final response 
letter. The DoD Components also shall provide the requester with a 
complete cost breakdown (e.g., 15 pages of office reproduction at $.15 
per page; three hours of professional level search at $53.00 per hour, 
etc.) in the response letter.
    (e) File of initial denials. Copies of all initial denials shall be 
maintained by each DoD Component in a form suitable for rapid 
retrieval, periodic statistical compilation, and management evaluation. 
Records denied for any of the reasons contained in Sec.  286.14 (for 
which no appeal was filed) shall be maintained for a period of 6 years 
to meet the statute of limitations requirement.
    (f) Special mail services. The DoD Components are authorized to use 
registered mail, certified mail, certificates of mailing, and return 
receipts. However, their use should be limited to instances where it 
appears advisable to establish proof of dispatch or receipt of FOIA 
correspondence. The requester shall be notified that they are 
responsible for the full costs of special services. A commercial 
delivery service may be used provided the requester asks for such 
service to receive the requested information in a timelier manner and 
the requester pays directly for the service.
    (g) Receipt account. The Treasurer of the United States has 
established an account for FOIA receipts. This account, receipt account 
3210, shall be used for depositing all FOIA receipts, except receipts 
for ``Working Capital'' and non appropriated funded activities. 
Components are reminded that the account number must be preceded by the 
appropriate disbursing office two-digit prefix. ``Working Capital'' and 
non-appropriated funded activity FOIA receipts shall be deposited to 
the applicable fund. All money orders or checks remitting FOIA fees 
should be made payable to the U.S. Treasurer.


Sec.  286.20  Appeals

    (a) General. If the DoD Component IDA denies a record for any of 
the reasons contained in Sec.  286.14 the DoD Component shall advise 
the requester that the decision may be appealed in writing to a 
designated appellate authority. The Component will further advise the 
requester that the appeal should be accompanied by a copy of the denial 
letter. In addition to appeal rights associated with the denial of 
information, the following are adverse determinations and are subject 
to appeal:
    (1) The disapproval of a fee category claim by a requester, the 
disapproval of a request for waiver or reduction of fees, and a dispute 
regarding fee estimates.
    (2) A determination not to grant expedited processing.
    (3) Not providing a response determination to a FOIA request within 
the statutory time limits.
    (4) Any determination found to be adverse in nature by the 
requester.
    (b) FOIA/Privacy Act appeals. When denials have been made under the 
provisions of the Privacy Act and the

[[Page 71861]]

FOIA and the denied information is contained in a Privacy Act system of 
records, appeals shall be processed under both the Privacy Act and the 
FOIA. If the denied information is not maintained in a Privacy Act 
system of records, the appeal shall be processed under the FOIA.
    (c) Time of receipt. A FOIA appeal has been received by the DoD 
Component when it reaches the office of an appellate authority having 
jurisdiction. Misdirected appeals should be referred expeditiously to 
the proper appellate authority.
    (d) Time limits. (1) If the requester submits an appeal after the 
conclusion of the 60-day time established by the date of the initial 
denial letter, the appeal may be considered closed. However, the 
Components are encouraged to make exceptions on a case by case basis. 
In cases where the requester is provided several incremental 
determinations for a single request, the time period for the appeal 
shall not begin until the date of the final response. Denied records 
shall be retained for a period of 6 years after final adjudication to 
meet the statute of limitations requirement.
    (2) Final determinations on appeals normally shall be made within 
20 working days after receipt. When the DoD Component has a significant 
number of appeals preventing a response determination within 20 working 
days, the appeals shall be processed in a multi-track system, based at 
a minimum, on the three processing tracks established for initial 
requests according to Sec.  286.18(b). The provisions of Sec.  
286.18(b) also apply to appeals of initial determinations, to include 
establishing additional processing tracks as needed.
    (e) Delay in responding to an appeal. If a determination cannot be 
made and the requester notified within 20 working days, the appellate 
authority or the appellate authority's representative shall acknowledge 
to the requester, in writing, the date of receipt of the appeal, the 
circumstances surrounding the delay, and the anticipated date for 
substantive response. Requesters shall be advised that, if the delay 
exceeds the statutory extension provision or is for reasons other than 
the unusual circumstances identified in Sec.  286.4(b)(2)(ii)(C), they 
may consider their administrative remedies exhausted. They may, 
however, without prejudicing their right of judicial remedy, await a 
substantive response.
    (f) Response to the requester. (1) When an appellate authority 
makes a final determination to release all or a portion of records 
withheld by an IDA, a written response and a copy of the records 
released should be forwarded promptly to the requester. If the 
requester owes outstanding fees from the initial request, and these 
fees were not appealed, the final appellate response will not be made 
until the fees are paid.
    (2) Final denial of an appeal must be made in writing and signed by 
the appellate authority. The response shall include the following:
    (i) The basis for the denial, to include an explanation of the 
applicable statutory exemption or exemptions invoked under provisions 
of the FOIA, and of other appeal matters set forth in Sec.  286.20(a).
    (ii) A determination that the record meets the cited criteria and 
rationale of the governing Executive Order if the final refusal is 
based in whole or in part on Exemption 1.
    (iii) A statement that the information being denied does not 
contain meaningful portions that are reasonably segregable in the case 
of appeals for total denial of records.
    (iv) The requester's right to judicial review.
    (g) Consultation. (1) Final denial of access involving issues not 
previously resolved or that the DoD Component knows to be inconsistent 
with rulings of other DoD Components ordinarily should not be made 
before consultation with the DoD Office of the General Counsel.
    (2) Tentative decisions to deny records that raise new or 
significant legal issues of potential significance to other Government 
agencies shall be discussed with the DoD Office of the General Counsel.


Sec.  286.21  Judicial actions.

    (a) General. (1) This paragraph 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 
Department of Defense to particular judicial interpretations or 
procedures.
    (2) A requester may seek an order from a U.S. District Court to 
compel release of a record after administrative remedies have been 
exhausted; i.e., when the requester has filed an administrative appeal 
from the denied access to a record by the Head of the DoD Component or 
an appellate designee, or when the DoD Component has failed to respond 
within the time limits prescribed by the FOIA and in this part.
    (b) Venue. The requester may bring suit in the U.S. District Court 
in the district in which the requester resides, the district where the 
requester's place of business is located, the district in which the 
record is located, or the District of Columbia.
    (c) Burden of proof. The burden of proof is on the DoD Component to 
justify its refusal to provide a record. The court shall evaluate the 
case de novo (anew) and may elect to examine any requested record in 
camera (in private) to determine whether the denial was justified.
    (d) Actions by the court. (1) The U.S. District Court for the 
District of Columbia has ruled that, when the DoD Component has failed 
to make a determination within the statutory time limits but can 
demonstrate due diligence in exceptional circumstances, to include 
negotiating with the requester to modify the scope of their request, 
the court may retain jurisdiction and allow the Component additional 
time to complete its review of the records (Department of Justice FOIA 
Update Web site). The Component must request that the Court retain 
jurisdiction by seeking an ``Open America'' stay (Department of Justice 
FOIA Update Web site).
    (2) If the Court determines that the plaintiff substantially 
prevails, it may require the United States to pay reasonable attorney 
fees and other litigation costs.
    (3) When the Court orders the release of denied records, it may 
also issue a written finding that the circumstances surrounding the 
withholding raise questions as to whether DoD Component personnel acted 
arbitrarily and capriciously. In these cases, the special counsel of 
the Merit System Protection Board shall conduct an investigation to 
determine whether or not disciplinary action is warranted. The DoD 
Component is obligated to take the action recommended by the special 
counsel.
    (4) The Court may punish the responsible official for contempt when 
the DoD Component fails to comply with the court order to produce 
records that it determines have been withheld improperly, or to 
otherwise comply with a court order.
    (e) Non-United States Government source information (business 
information). A requester may bring suit in a U.S. District Court to 
compel the release of records obtained from a submitter or records 
based on information obtained from a submitter. The submitter shall be 
notified promptly of the court action pursuant to E.O. 12600. When the 
submitter advises that it is seeking court action to prevent release, 
the DoD Component shall defer answering or otherwise pleading to the

[[Page 71862]]

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. Whenever a complaint is filed in a U.S. District Court under 
the FOIA, the DoD Component named in the complaint shall forward a copy 
of the complaint to DFOIPO with an information copy to the DoD Office 
of the General Counsel, ATTN: Office of Legal Counsel.

Subpart E--Fee Schedule


Sec.  286.24  General provisions.

    (a) Application. (1) The fees described in this subpart apply to 
requests submitted pursuant to 5 U.S.C. 551, 552, and 552(a) and 
conform to the OMB Uniform Freedom of Information Act Fee Schedule and 
Guidelines S. They reflect direct costs for search, review (in the case 
of commercial requesters), and duplication of documents.
    (2) The fees are neither intended to imply they must be charged in 
connection with providing information to the public pursuant to the 
FOIA request nor are they meant to substitute for any other charges 
established by the Department of Defense, such as DoD 7000.14-R, to 
recoup direct costs of authorized services provided by DoD Components 
that are not FOIA related.
    (3) Nothing in this subpart shall supersede fees chargeable under a 
statute specifically providing for setting the level of fees for 
particular types of records, such as the GPO or the National Technical 
Information Service. The Components should ensure documents responsive 
to a request are maintained for distribution by agencies operating 
statutory-based fee schedule programs and inform requesters of the 
steps necessary to obtain records from those sources.
    (b) Fee restrictions. (1) No fees may be charged by any DoD 
Component if the total assessable fees are less than or equal $25.00. 
For requesters in the educational institution, noncommercial scientific 
institution, or news media categories, the Components shall provide all 
search time and the first 100 pages of duplication without charge. For 
requesters in the ``all other'' category, the Components shall provide 
the first 2 hours of search time, and the first 100 pages of 
duplication without charge. The Components shall provide all review 
time without charge except for requesters in the commercial category. 
Time expended shall be computed to the nearest 15 minutes.
    (2) Requesters receiving the first 2 hours of search and the first 
100 pages of duplication without charge are entitled to such only once 
per request. Therefore, if the Component, after completing its portion 
of a request, finds it necessary to refer the request to a subordinate 
office, another DoD Component, or another Federal agency for action on 
their portion of the request, the referring Component shall inform the 
recipient of the referral of the expended amount of search time and 
duplication cost to date.
    (3) 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.
    (4) In the case of computer searches, the first 2 free hours will 
be determined against the salary scale of the individual operating the 
computer for the purposes of the search. As an example, when the direct 
costs of the computer central processing unit, input-output devices, 
and memory capacity equal $40.00 (2 hours of equivalent search at the 
clerical level), amounts of computer costs in excess of that amount are 
chargeable as computer search time. In the event the direct operating 
cost of the hardware configuration cannot be determined, computer 
search shall be based on the salary scale of the operator executing the 
computer search. See Sec.  286.25(b)(1) for further details regarding 
fees for computer searches.
    (c) Fee waivers. (1) When assessable costs for a FOIA request total 
$25.00 or less, fees shall be waived automatically for all requesters, 
regardless of category.
    (2) Documents shall be furnished without charge, or at a reduced 
charge, when the Component determines that waiver or reduction of the 
fees is in the public interest because furnishing the information is 
likely to contribute significantly to public understanding of the 
operations or activities of the Department of Defense and is not 
primarily in the commercial interest of the requester. Decisions to 
waive or reduce fees that exceed the automatic waiver threshold shall 
be made on a case-by-case basis and after a search for responsive 
records is completed, consistent with the following factors:
    (i) Disclosure of the information ``is in the public interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the Government.'' The 
factors identified must be met to some degree to warrant waiving or 
reducing assessable fees in the ``public interest.''
    (A) The subject of the request. The Components should analyze 
whether the subject matter of the request involves issues will 
significantly contribute to the public understanding of the operations 
or activities of the Department of Defense. Requests for records in the 
possession of the Department of Defense that were originated by non-
government organizations and are sought for their intrinsic content, 
rather than informative value, will likely not contribute to public 
understanding of the operations or activities of the Department of 
Defense. An example of such records might be press clippings, magazine 
articles, or records forwarding a particular opinion or concern from a 
member of the public regarding a DoD activity. Similarly, disclosures 
of records of considerable age may or may not bear directly on the 
current activities of the Department of Defense; however, the age of a 
particular record shall not be the sole criterion for denying relative 
significance under this factor. It is possible to envisage an 
informative issue concerning the current DoD activities, based on 
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 DoD 
operations and activities.
    (B) The informative value of the information to be disclosed. This 
factor requires a close analysis of the substantive contents of a 
record, or portion of the record, to determine whether disclosure is 
meaningful, and shall inform the public on the operations or activities 
of the Department of Defense. While the subject of a request may 
contain information that concerns the Department of Defense, it may not 
always hold great potential for contributing to a meaningful 
understanding of these operations or activities. An example of such 
would be a previously released record that has been heavily redacted, 
the balance of which may contain only random words, fragmented 
sentences, or paragraph headings. A determination as to whether a 
record in this situation will contribute to the public understanding of 
DoD operations or activities 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

[[Page 71863]]

public domain may not add meaningful new information concerning the 
operations and activities of the Department of Defense.
    (C) The contribution to an understanding of the subject by the 
general public likely to result from disclosure. The key element in 
determining the applicability of this factor is whether disclosure will 
inform, or have the potential to inform the public, rather than simply 
the individual requester or small segment of interested persons. The 
identity of the requester is essential in this situation in order to 
determine whether such requester has the capability and intention to 
disseminate the information to the public. Mere assertions of plans to 
author a book, researching a particular subject, doing doctoral 
dissertation work, or indigence are insufficient without demonstrating 
the capacity to further disclose the information in a manner that will 
be informative to the general public. Requesters should be asked to 
describe their qualifications, the nature of their research, the 
purpose of the requested information, and their intended means of 
dissemination to the public.
    (D) The significance of the contribution to public understanding. 
In applying this factor, the Components must differentiate the relative 
significance or impact of the disclosure against the current level of 
public knowledge, or understanding which exists before the disclosure. 
In other words, will disclosure on a current subject of wide public 
interest be unique in contributing 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. The Components 
shall not make value judgments as to whether the information is 
important enough to be made public.
    (ii) Disclosure of the information ``is not primarily in the 
commercial interest of the requester.'' Determining ``commercial 
interest'' requires consideration of the following issues:
    (A) The existence and magnitude of a commercial interest. If the 
request is determined to be of a commercial interest, the Components 
should address the magnitude of that interest to determine if the 
requester's commercial interest is primary, as opposed to any secondary 
personal or non-commercial interest. In addition to 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, the 
Components may draw inference from the requester's identity and 
circumstances of the request. The Components 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.
    (B) The primary interest in disclosure. Once a requester's 
commercial interest has been determined, the Components should then 
determine if the disclosure would be primarily in that interest. This 
requires a balancing test between the commercial interest of the 
request against any public benefit to be derived as a result of that 
disclosure. Where the public interest is served above and beyond that 
of the requester's commercial interest, a waiver or reduction of fees 
would be appropriate. Conversely, even if a significant public interest 
exists, and the relative commercial interest of the requester is 
determined to be greater than the public interest, then a waiver or 
reduction of fees would be inappropriate. As examples, news media 
organizations have a commercial interest as business organizations; 
however, their inherent role of disseminating news to the general 
public can ordinarily be presumed to be of a primary interest. 
Therefore, any commercial interest becomes secondary to the primary 
interest in serving the public. Similarly, scholars writing books or 
engaged in other forms of academic research may recognize a commercial 
benefit, either directly, or indirectly (through the institution they 
represent); however, normally such pursuits are primarily undertaken 
for educational purposes, and the application of a fee charge would be 
inappropriate. Conversely, data brokers or others who merely compile 
Government information for marketing can normally be presumed to have 
an interest primarily of a commercial nature.
    (3) Components are reminded that the factors and examples used in 
this paragraph 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 
charging or waiving the fee cannot be clearly resolved, Components 
should rule in favor of the requester.
    (4) In addition, the following additional circumstances describe 
situations where waivers or reductions of fees are most likely to be 
warranted:
    (i) A record is voluntarily created to prevent an otherwise 
burdensome effort to provide voluminous amounts of available records, 
including additional information not requested.
    (ii) A previous denial of records is reversed in total, or in part, 
and the assessable costs are not substantial (e.g. $25.00-$50.00).
    (d) Fee assessment. (1) Fees may not be used to discourage 
requesters. Assessable FOIA fees are limited to standard charges for 
direct search, review (in the case of commercial requesters), and 
duplication.
    (2) Fees are assessed based on the category determined to be 
appropriate for the requester's status and the FOIA request should 
contain a willingness to pay fees appropriate to that category. The 
categories are identified below:
    (i) Commercial. Requesters should indicate a willingness to pay all 
search, review, and duplication costs when the records are requested 
for commercial use.
    (A) The term ``commercial use'' request refers to a request from, 
or on behalf of one who seeks information for a use or purpose that 
furthers the commercial, trade, or profit interest of the requester or 
the person on whose behalf the request is made. In determining whether 
a requester properly belongs in this category, Components must 
determine the use to which a requester will put the documents 
requested. Moreover, where a Component has reasonable cause to doubt 
the use to which a requester will put the records sought, or where that 
use is not clear from the request itself, Components should seek 
additional clarification from the requester before assigning the 
request to a specific category.
    (B) When the Components receive a request for documents for 
commercial use, they should assess charges which recover the full 
direct costs of searching for, reviewing for release, and duplicating 
the records sought. Accordingly, commercial requesters are not entitled 
to 2 hours of free search time and 100 free pages of reproduction.
    (C) 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 
criterion, 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

[[Page 71864]]

use. Such situations must be addressed on a case-by-case basis.
    (ii) Educational, non-commercial scientific institution, or news 
media. Requesters should indicate a willingness to pay duplication 
charges in excess of 100 pages if more than 100 pages of records are 
desired.
    (A) Educational institution. 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. The term ``educational 
institution'' refers to a pre-school, a public or private elementary or 
secondary school, an institution of undergraduate higher education, an 
institution of graduate 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 fee waiver criteria 
are met.
    (B) Non-commercial scientific institution. 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. 
The term ``non-commercial scientific institution'' refers to an 
institution that is not operated on a ``commercial'' basis as defined 
in Sec.  286.24(d)(2)(i)(A), and is operated solely for the purpose of 
conducting scientific research, the results of which are not intended 
to promote any particular product or industry. Fees shall be waived or 
reduced in the public interest if the fee waiver criteria are met.
    (C) Representatives of the news media. Fees shall be limited to 
only reasonable standard charges for document duplication (excluding 
charges for the first 100 pages). Fees shall be waived or reduced if 
the fee waiver criteria are met.
    (1) 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 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 and the Internet), such alternative media 
might be included in this category.
    (2) To be eligible for inclusion in this category, a requester must 
meet the criteria in the preceding paragraph, and his or her request 
must not be made for commercial use. 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 though 
that organization, even though not actually employed by it. A 
publication contract would be the clearest proof, but the Components 
may also look to the past publication record of a requester in making 
this determination. 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.
    (3) ``Representative of the news media'' does not include private 
libraries, private repositories of Government records, information 
vendors, data brokers or similar marketers of information whether to 
industries and businesses, or other entities.
    (D) All others. Requesters who do not fit into any of the 
categories described above should indicate a willingness to pay 
assessable search and duplication costs if more than 2 hours of search 
effort or 100 pages of records are desired. Fees shall be waived or 
reduced if the fee waiver criteria are met.
    (E) The fee provisions of E.O. 12600 apply when requesters ask for 
information about themselves under the Privacy Act of 1974. In these 
cases, the only assessable processing fees are for duplication. 
Components are reminded in these cases requesters may also be eligible 
for a waiver or reduction of fees if the fee waiver criteria are met.
    (3) To be as responsive as possible to FOIA requests while 
minimizing unwarranted costs to the taxpayer, the Components shall 
adhere to the following procedures:
    (i) Analyze each request to determine the category of the 
requester. If the Component determination regarding the category of the 
requester is different than that claimed by the requester, the 
Component shall:
    (A) Notify the requester to provide additional justification to 
warrant the category claimed, and that a search for responsive records 
will not be initiated until agreement has been attained relative to the 
category of the requester. Absent further category justification from 
the requester, and within a reasonable period of time (e.g., 30 
calendar days), the Component shall render a final category 
determination and notify the requester of such determination, to 
include normal administrative appeal rights of the determination.
    (B) Advise the requester, notwithstanding any appeal, a search for 
responsive records will not be initiated until the requester indicates 
a willingness to pay assessable costs appropriate for the category 
determined by the Component.
    (ii) If these conditions are not met the request need not be 
processed and the requester shall be so informed.
    (iii) The Components must be prepared to provide an estimate of 
assessable fees if desired by the requester. While it is recognized 
that search situations will vary among Components, and that an estimate 
is often difficult to obtain prior to an actual search, requesters who 
desire estimates are entitled to such before committing to a 
willingness to pay. If Components' actual costs exceed the amount of 
the estimate or the amount agreed to by the requester, the amount in 
excess of the estimate or the requester's agreed amount shall not be 
charged without the requester's agreement. Even though Components do 
not need to advise requesters of their appeal rights when provided fee 
estimates, such estimates may be appealed and litigated by the 
requester.
    (iv) No DoD Component may require advance payment of any fee; i.e., 
payment before work starts or continued on a request, unless either of 
the following conditions are met:
    (A) The requester has a history of failing to pay fees in a timely 
fashion (within 30 days of the billing date) on a previous request
    (B) The Component determines that the fee will exceed $250.00.
    (iv) Where the Component estimates or determines that allowable 
charges that a requester may be required to pay are likely to exceed 
$250.00, the Component shall notify the requester of the likely cost 
and obtain satisfactory assurance of full payment. The Component may 
ask for an advance payment of an amount up to the full estimated 
charges in the case of requesters with no history of payment or a 
history of late payments. If the Component learns that a requester has 
an outstanding overdue debt with any other DoD Component or other 
Federal agency, the Component may administratively close all of the 
requester's requests after giving notice to the requester.

[[Page 71865]]

    (v) Where a requester has previously failed to pay a fee charged in 
a timely fashion to any Federal agency, the Component may require the 
requester to pay the full amount owed, plus any applicable interest, 
before the Component begins to process a new or pending request from 
the requester. Interest will be at the rate prescribed in 32 U.S.C. 
3717, and confirmed with respective Finance and Accounting Offices.
    (vi) When the Components dispute a requester's fee category 
assertion, the administrative time limits of the FOIA will begin only 
after the Component has received a willingness to pay fees and 
satisfaction as to category determination, or fee payments (if 
appropriate).
    (vii) The Components may charge for time spent searching for 
records, even if that search fails to locate records responsive to the 
request. The Components may also charge search and review (in the case 
of commercial requesters) time if records located are determined to be 
exempt from disclosure.
    (viii) If the Component estimates processing charges are likely to 
exceed what the requester is willing to pay, it shall notify the 
requester of the estimate of fees. Such a notice shall offer the 
requester the opportunity to confer with Component personnel with the 
object of reformulating the request to meet his or her needs at a lower 
cost.
    (e) Aggregating requests. Except requests that are for a commercial 
use, the Component may not charge for the first 2 hours of search time 
or for the first 100 pages of reproduction. However, a requester may 
not file multiple requests at the same time, each seeking portions of a 
document or documents, solely in order to avoid payment of fees. When a 
Component 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 Component may aggregate any such requests and 
charge accordingly. One element to be considered in determining whether 
this belief would be reasonable is the time period in which the 
requests have occurred. For example, it would be reasonable to presume 
that multiple requests of this type made within a 30 day period had 
been made to avoid fees. For requests made over a longer period 
however, such a presumption becomes harder to sustain and Components 
should have a solid basis for determining that aggregation is warranted 
in such cases. Components are cautioned that before aggregating 
requests from more than one requester, they must have a concrete basis 
on which to conclude that the requesters are acting in concert and are 
acting specifically to avoid payment of fees. In no case may Components 
aggregate multiple requests on unrelated subjects from one requester.
    (f) Effect of the ``Debt Collection Act of 1982'' (Pub. L. 97-365). 
The Debt Collection Act of 1982 provides for a minimum annual rate of 
interest to be charged on overdue debts owed the Federal Government. 
Components may levy this interest penalty for any fees that remain 
outstanding 30 calendar days from the date of billing (the first demand 
notice) to the requester of the amount owed. The interest rate shall be 
as prescribed in DoD 7000.14-R, Volume 11A. Components should verify 
the current interest rate with respective Finance and Accounting 
Offices. After one demand letter has been sent, and 30 calendar days 
have lapsed with no payment, Components may submit the debt to 
respective Finance and Accounting Offices for collection pursuant to 
the Debt Collection Act of 1982.
    (g) Computation of fees. The fee schedule in this subchapter shall 
be used to compute the assessable fees based upon the time actually 
spent on the search, review (in the case of commercial requesters) and 
duplication costs associated with processing a given FOIA request. 
Neither time-based nor dollar-based minimum charges for search, review 
and duplication are authorized. The appropriate fee category of the 
requester shall be determined before computing fees. All time 
computations will be to the nearest 15 minutes or quarter hour.
    (h) Refunds. In the event a Component discovers it has overcharged 
a requester or a requester has overpaid, the Component shall promptly 
refund the charge to the requester by reimbursement methods that are 
agreeable to the requester and the Component.


Sec.  286.25  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 the costs involved shall be acceptable or 
acceptable up to a specified limit that covers the anticipated costs.
    (b) Fees for search time. (1) Manual search fees. This table shows 
FOIA hourly processing fees.

------------------------------------------------------------------------
             Type                       Grade           Hourly rate ($)
------------------------------------------------------------------------
Clerical......................  E9/GS8 and below/NSPS              27.00
                                 pay band 1.
Professional..................  O1-O6/W01-05/GS9-GS15/             53.00
                                 NSPS pay bands 2 and
                                 3.
Executive.....................  O7/GS16/SES and above             108.00
Contractor....................  .....................              53.00
------------------------------------------------------------------------

    (2) Computer search. Fee assessments for computer search consists 
of 2 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. This includes the time spent to create a 
program to extract specific fields out of a database. 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 the DoD Components lease computers, the services 
charged by the lessor shall not be passed to the requester under the 
FOIA.
    (c) Duplication. This table shows duplication costs.

[[Page 71866]]



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

    (d) Review Fees. See paragraph (b)(1) of this section.
    (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. If the duplication is performed by a contractor, then the actual 
cost charged to the government by the contractor is passed on to the 
requester. Audiovisual materials provided to a requester need not be in 
reproducible format or quality.
    (f) Other records. Direct search and duplication cost for any 
record not described in this paragraph shall be computed in the manner 
described for audiovisual documentary material.
    (g) Costs for special services. Complying with requests for special 
services is at the discretion of the Components. Neither the FOIA nor 
its fee structure covers these kinds of services. Therefore, Components 
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.
    (2) Sending records by special methods such as express mail, etc.


Sec.  286.26  Fees for technical data.

    (a) Technical data is recorded information related to experimental, 
developmental, or engineering works that can be used to define an 
engineering or manufacturing process or to design, procure, produce, 
support, maintain, operate, repair, or overhaul material. The data may 
be graphic or pictorial delineations in media, such as drawings or 
photographs, text in specification or related performance or design 
type documents, or computer printouts. Examples of tech data include 
research and engineering data, engineering drawings, and associated 
lists, specifications, standards, process sheets, manuals, technical 
reports, catalog item identification, and related information and 
computer software documentation.
    (b) Unless technical data qualifies for withholding from public 
release under one or more of the FOIA exemptions, it shall be released 
to the requester after all reasonable costs attributed to search, 
duplication, and review are paid as authorized by 10 U.S.C. 2328. All 
reasonable costs are the full costs to the Federal Government for 
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 geographic area. In the absence of a 
known market value, charges will be based on recovery of all direct and 
indirect costs to conduct the search, review, and duplicate the 
documents. This cost is to be differentiated from the direct costs 
allowable under Sec.  286.24 for other types of information released 
under the FOIA.
    (1) The DoD Components shall retain the amounts received by such a 
release, and it shall be merged with and available for the same purpose 
and the same time period as the appropriation from which the costs were 
incurred in complying with request.
    (2) The DoD Components that process FOIA requests for technical 
data and are eligible to recoup the direct costs for providing the 
records shall establish an appropriate fee schedule taking into account 
the prevailing commercial rates.
    (c) Waiver. The DoD Components shall waive the payment of costs 
required in Sec.  286.24(a) which are greater than the costs that would 
be required for release of this same information under Sec.  186.25(a) 
of this subchapter if:
    (1) The request is made by a citizen of the United States or a 
United States corporation, and such citizen or corporation certifies 
that the technical data requested is required to enable it to submit an 
offer, or determine whether it is capable of submitting an offer to 
provide the product to which the technical data relates to the United 
States or a contractor with the United States. However, DoD Components 
may require the citizen or corporation to pay a deposit in an amount 
equal to not more than the cost of complying with the request, which 
will be refunded upon submission of an offer by the citizen or 
corporation;
    (2) The release of technical data is requested in order to comply 
with the terms of an international agreement; or,
    (3) The Component determines in accordance with Sec.  
286.24(c)(4)(i)(D) that such a waiver is in the interest of the United 
States.


Sec.  286.27  Fees for research data.

    Research data described in Sec.  286.2, definition ``Agency 
record'' obtained by the DoD Component from a grant recipient solely in 
response to a request submitted by a FOIA requester, may charge that 
requester a reasonable fee equaling the full incremental cost of 
obtaining the research data. The fee should reflect costs incurred by 
the Component, grant recipient, and sub-recipients. This fee is in 
addition to any fees the Component may assess under the FOIA.

Subpart F--Education and Training


Sec.  286.30  Purpose and responsibility.

    (a) Purpose. The purpose of the Component FOIA educational and 
training programs is to promote a positive attitude among DoD personnel 
and raise the level of understanding and appreciation of the DoD FOIA 
Program. Fulfilling this purpose will improve customer service with 
members of the public and improve the public trust in the Department of 
Defense.
    (b) Responsibility. Each DoD Component shall establish educational 
and training programs on the provisions and requirements of this part. 
These should be targeted toward developing in all Component personnel a 
general understanding and appreciation of the DoD FOIA Program. The 
training programs should be focused on providing personnel involved in 
the day-to-day processing of FOIA requests with a thorough 
understanding of the procedures outlined in this part.
    (c) Scope and principles. Each DoD Component shall design its FOIA 
educational and training programs to fit the particular requirements of 
its personnel, dependent upon their degree of involvement in 
implementing this part. These programs should be designed for two 
target audiences; those personnel who are involved in the day-to-day 
processing of FOIA requests, and those staff personnel who provide 
search and/or review staff support to the Component FOIA process. The 
programs should be designed to accomplish the following objectives:

[[Page 71867]]

    (1) Familiarize personnel with the requirements of the FOIA and its 
implementation by this part.
    (2) Instruct personnel who act in FOIA matters on the provisions of 
this part; advise them of the legal hazards involved and the strict 
prohibition against arbitrary and capricious withholding of 
information.
    (3) Provide procedural and legal guidance and instruction to 
initial denial and appellate authorities concerning the discharge of 
their responsibilities.
    (4) Emphasize that the processing of FOIA requests must be citizen-
centered and results-oriented.
    (5) Advise personnel of the penalties for noncompliance with the 
FOIA.


Sec.  28.31  Implementation.

    To ensure uniformity of interpretation, the Components should 
coordinate their educational and training programs with DFOIPO.

Appendix A to Part 286--DoD FOIA Program Components

List of DoD FOIA Program Components

Office of the Secretary of Defense
Office of the Chairman of the Joint Chiefs of Staff
Combatant Commands
DoD Field Activities
Department of the Army
Department of the Navy
Department of the Air Force
Defense Commissary Agency
Defense Contract Audit Agency
Defense Contract Management Agency
Defense Finance and Accounting Service
Defense Information Systems Agency
Defense Intelligence Agency
Defense Logistics Agency
Defense Security Service
Defense Threat Reduction Agency
National Geospatial Intelligence Agency
National Reconnaissance Office
National Security Agency
Office of the Inspector General, Department of Defense

Appendix B to Part 286--Addressing FOIA Requests

    AP2.1. General.
    AP2.1.1. The Department of Defense does not have a central 
repository for DoD records. FOIA requests, therefore, should be 
addressed to the FOIA Requester Service Center of the DoD Component 
that has custody of the record desired. DFOIPO maintains a current 
list of links to FOIA Requester Service Centers at http://www.dod.mil/odam/DFOIPO/ServiceCenters.html.
    AP2.1.2. If uncertain as to the ownership of the record, DoD 
personnel shall refer the requester to the FOIA Requester Service 
Center most likely to have the record, or to the OSD/ Joint Staff 
FOIA Requester Service Center.
    AP2.2. DoD Component FOIA Requester Service Center Addresses.
    AP2.2.1. OSD and the Chairman of the Joint Chiefs of Staff.
    AP2.2.1.1. Address all requests to: FOIA Requester Service 
Center, Office of the Secretary of Defense/Joint Staff, 1155 Defense 
Pentagon, Washington, DC 20301-1155. http://www.dod.mil/pubs/foi/index.html. The OSD/Joint Staff FOIA Requester Service Center also 
processes FOIA requests for the activities in paragraph AP2.2.1.2.
    AP2.2.1.2. Activities for Which the OSD/Joint Staff FOIA 
Requester Service Center Processes Requests.

American Forces Information Service
Armed Forces Radiology Research Institute
Defense Acquisition University
Defense Advanced Research Projects Agency
Defense Business Transformation Agency
Defense Prisoner of War/Missing Persons Office
Defense Security Cooperation Agency
Defense Systems Management College
Defense Technology Security Administration
DoD Counterintelligence Field Activity
DoD Human Resources Activity
Joint Professional Military Education Colleges
Missile Defense Agency
National Defense University
Pentagon Force Protection Agency
Uniformed Services University of the Health Sciences
Washington Headquarters Services
White House Military Office

    AP2.2.2. Department of the Army. Address requests for 
Headquarters, U.S. Army, records, or if there is uncertainty as to 
which Army activity may have the records, address requests to: 
Department of the Army, Freedom of Information and Privacy Acts 
Office, TAPC-PDR-PF, 7798 Cissna Road, Suite 205, Springfield, VA 
22150-3166. https://www.rmda.belvoir.army.mil/rmdaxml/rmda/FPHomePage.asp.
    AP2.2.3. Department of the Navy. Address requests to the 
Commanding Officer of any Navy or Marine Corps activity. Clearly 
indicate that the request is a FOIA request. For Secretary of the 
Navy, Chief of Naval Operations, and Naval Historical Center 
records, or if there is uncertainty as to which Navy activity may 
have the records, send requests to: Chief of Naval Operations, DNS-
36, 2000 Navy Pentagon, Washington, DC 20350-2000. Electronic 
requests may be filed at http://foia.navy.mil/. For U.S. Marine 
Corps records, or if there is uncertainty as to which Marine 
activity may have the records, send requests to: Commandant of the 
Marine Corps, HQ USMC (ARSF), 2 Navy Annex, Washington, DC 20380-
0001. http://hqinet001.hqmc.usmc.mil/FOIA/index.htm.
    AP2.2.4. Department of the Air Force. Address requests to the 
Commander of any Air Force installation, major command, or field 
operating agency, to the attention of the FOIA Requester Service 
Center. For Headquarters, United States Air Force, records, or if 
there is uncertainty as to which Air Force activity may have the 
records, send requests to: Department of the Air Force, HAF/ICIOD 
(FOIA), 1000 Air Force Pentagon, Washington, DC 20330-1000. http://www.foia.af.mil/.
    AP2.2.5. Defense Commissary Agency. Defense Commissary Agency, 
FOIA/Privacy Act Officer, 1300 E. Avenue, Fort Lee, VA 23801-1800. 
http://www.commissaries.com/foiainfo.cfm.
    AP2.2.6. Defense Contract Audit Agency (DCAA). Address requests 
to any DCAA regional office or to DCAA Headquarters. For 
Headquarters, DCAA, records, or if there is uncertainty as to which 
DCAA region may have the records, send requests to: Defense Contract 
Audit Agency, ATTN: CMR, FOIA Requester Service Center, 8725 John J. 
Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219. DCAA regional 
office addresses can be found at: http://www.dcaa.mil/foia.htm.
    AP2.2.7. Defense Contract Management Agency. Defense Contract 
Management Agency, Attn: DCMA-DSA, 6350 Walker Lane 300, 
Alexandria, VA 22310-3226. http://www.dcma.mil/foia.htm.
    AP2.2.8. Defense Finance and Accounting Service (DFAS). Address 
requests to any DFAS regional office or to Headquarters, DFAS. For 
Headquarters, DFAS, records, or if there is uncertainty as to which 
DFAS region may have the records, address requests to: Defense 
Finance and Accounting Service, DFAS-HAC/DE, Corporate 
Communications, 6760 East Irvington Place, Denver, CO 80279-8000. 
Addresses for DFAS regional office FOIA Requester Service Centers 
are located at http://www.dfas.mil.
    AP2.2.9. Defense Information Systems Agency (DISA). DISA records 
may be requested from any DISA field activity or from its 
Headquarters. Requesters should send FOIA requests to Defense 
Information Systems Agency, Attn: Headquarters FOIA Requester 
Service Center, P.O. Box 4502, Arlington, VA 22204-4502. http://www.disa.mil/gc/foia/foia.html.
    AP2.2.10. Defense Intelligence Agency. Defense Intelligence 
Agency, Attn: DIAC, DAN-1A (FOIA), Washington, DC 20340-5100. http://www.dia.mil/publicaffairs/Foia/foia.htm.
    AP2.2.11. Defense Logistics Agency (DLA). DLA records may be 
requested from its headquarters or from any of its field activities. 
Requesters should send FOIA requests to Defense Logistics Agency, 
Attn: DP-FOIA, 8725 John J. Kingman Road, Suite 2533, Ft. Belvoir, 
VA 22060-6221. Addresses for DLA field activity FOIA Requester 
Service Centers are located at http://www.dla.mil/public_info/efoia/FOIAPOC.html.
    AP2.2.12. Defense Security Service. Defense Security Service, 
Office of FOIA and Privacy, 1340 Braddock Place, Alexandria, VA 
22314-1651. http://www.dss.mil/foia/foia.html.
    AP2.2.13. Defense Threat Reduction Agency. Defense Threat 
Reduction Agency, COSMI FOI/Privacy Office, 8725 John J. Kingman 
Rd., Fort Belvoir, VA 22060-6201. http://www.dtra.mil/be/FOIA/index.cfm.
    AP2.2.14. National Geospatial-Intelligence Agency. National 
Geospatial-Intelligence Agency, Office of General Counsel, Attn: 
GCP, Mail Stop D-10, 4600 Sangamore Road, Bethesda, MD 20816-5003. 
http://www.nga.mil.
    AP2.2.15. National Reconnaissance Office. National 
Reconnaissance Office, Information Access and Release Center, Attn: 
FOIA Officer, 14675 Lee Road, Chantilly, VA

[[Page 71868]]

20151-1715. http://www.nro.gov/foia/index.html
    AP2.2.16. National Security Agency. National Security Agency/
Central Security Service, FOIA/PA Services, DC34, 9800 Savage Road, 
Suite 6248, Fort George G. Meade, MD 20755-6248. http://www.nsa.gov/foia/index.cfm.
    AP2.2.17. Inspector General of the Department of Defense. 
Inspector General of the Department of Defense, Chief FOIA/PA 
Office, 400 Army Navy Drive, Room 201, Arlington, VA 22202-4704. 
http://www.dodig.osd.mil/fo/Foia/foia.htm.
    AP2.3. DoD Field Activity And Combatant Command Addresses
    Although the below FOIA Requester Service Centers are OSD 
Components for the purposes of the FOIA, these Centers respond 
directly to the public on initial requests. Accordingly, initial 
requests should be sent to the addresses indicated.
    AP2.3.1. DoD TRICARE Management Activity. TRICARE Management 
Activity, Attention: Freedom of Information Act Officer, 16401 East 
Centretech Parkway, Aurora, CO 80011-9043. http://www.tricare.mil/tmaprivacy/foia.cfm.
    AP2.3.2. Chairman, Armed Services Board of Contract Appeals. 
Chairman, Armed Services Board of Contract Appeals, Skyline Six Room 
703, 5109 Leesburg Pike, Falls Church, VA 22041-3208.
    AP2.3.3. Defense Technical Information Center. Defense Technical 
Information Center, Attn: FOIA Program Manager, 8725 John J. Kingman 
Road, Suite 0944, Fort Belvoir, VA 22062-6218. http://www.dtic.mil/dtic/foia/.
    AP2.3.4 DoD Education Activity. DoD Education Activity, Freedom 
of Information Act Officer, 4040 North Fairfax Dr., Arlington, VA 
22203-1635. http://www.dodea.edu/foia/.
    AP2.3.5. U.S. Central Command. U.S. Central Command, CCJ6-RD 
(FOIA), 7115 South Boundary Blvd., MacDill Air Force Base, FL 33621-
5101. http://www.centcom.mil/sites/foia/default.aspx.
    AP2.3.6. U.S. European Command. U.S. European Command, FOIA 
Requester Service Center, Unit 30400 Box 1000, APO AE 09131. http://www.eucom.mil/english/FOIA/main.asp.
    AP2.3.7. U.S. Joint Forces Command. U.S. Joint Forces Command, 
Code J024, 1526 Mitscher Ave., Ste. 200, Norfolk, VA 23511-5100. 
http://www.jfcom.mil/about/foia.htm.
    AP2.3.8. U.S. Northern Command. U.S. Northern Command, FOIA 
Officer, 250 Vandenberg Street, Suite B016, Peterson Air Force Base, 
CO 80914-38040. http://www.northcom.mil/foia/home.htm.
    AP2.3.9. U.S. Pacific Command. U.S. Pacific Command, J151 FOIA, 
Box 64017, Camp H. M. Smith, HI 96861-4017. http://www.pacom.mil/foia/homepage.shtml.
    AP2.3.10. U.S. Southern Command. U.S. Southern Command, SCJ1-A 
(FOIA), 3511 NW .91st Avenue, Miami, FL 33172-1217. http://www.southcom.mil/AppsSC/pages/foia.php.
    AP2.3.11. U.S. Special Operations Command. U.S. Special 
Operations Command, SOCS-SJS-I/FOIA Requester Service Center, 7701 
Tampa Point Blvd., MacDill Air Force Base, FL 33621-5323. http://www.socom.mil/foia/.
    AP2.3.12. U.S. Strategic Command. U.S. Strategic Command, Attn: 
J01031 (FOIA), 901 SAC Blvd., Suite 1E5, Offutt Air Force Base, NE 
68113-6000. http://www.stratcom.mil/foia/.
    AP2.3.13. U.S. Transportation Command. U.S. Transportation 
Command, Attn: TCCS-IM, 508 Scott Drive, Scott Air Force Base, IL 
62225-5357. http://www.transcom.mil/foia.cfm.
    AP2.4. National Guard Bureau
    The National Guard Bureau FOIA Requester Service Center is 
unique in that it processes its own initial FOIA requests; however, 
FOIA appeals are handled either by the Department of the Army or the 
Department of the Air Force. The address is: Chief, National Guard 
Bureau, Attn: NGB-SDA (FOIA), 1411 Jefferson Davis Highway, 
Arlington, VA 22202-3231. http://www.ngb.army.mil/sitelinks/foia.aspx.

    Dated: December 11, 2007.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, DoD.
 [FR Doc. E7-24359 Filed 12-18-07; 8:45 am]
BILLING CODE 5001-06-P