77836 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

DEPARTMENT OF DEFENSE

Department of the Army 

32 CFR Part 518 

RIN 0702–AA45 

The Freedom of Information Act 

Program

AGENCY: Department of the Army, DoD.

ACTION: Proposed rule; request for 

comments. 

SUMMARY: The Department of the Army 

is proposing to revise our rules in 

support of the Freedom of Information 

Act as required by public law and 

updates the provisions for access and 

release of information from all Army 

information systems (automated and 

manual) that further supports the 

Army’s Records Management Program.

DATES: Comments submitted to the 

address below on or before February 28, 

2005 will be considered.

ADDRESSES: You may submit comments, 

identified by ‘‘32 CFR Part 518 and RIN 

0702–AA45’’ in the subject line, by any 

of the following methods: 

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: 

Brenda.Carter@rmda.belvoir.army.mil.

Include ‘‘32 CFR Part 518 and RIN 

0702–AA45’’ in the subject line of the 

message. 

• Mail: U.S. Army Records 

Management and Declassification 

Agency, Freedom of Information and 

Privacy Office, ATTN: AHRC–PDD–FP, 

(Ms. Carter), Casey Bldg., Suite 144, 

7701 Telegraph Road, Alexandria, VA 

22315–3905.

FOR FURTHER INFORMATION CONTACT:

Brenda Carter (703) 428–6503.

SUPPLEMENTARY INFORMATION: 

A. Background 

This proposed revision prescribes 

procedures and responsibilities of the 

Freedom of Information Act, in 

accordance with the Electronic Freedom 

of Information Act (FOIA) Amendments 

of 1996. The Electronic Freedom of 

Information Act Amendments of 1996 

changed the response time from 10 to 20 

days, required Multitrack processing of 

FOIA requests, required an Electronic 

FOIA Reading Room, and changed the 

requirements for the Annual Report and 

the timetable for that report from 

calendar to fiscal year. 

B. Regulatory Flexibility Act 

The Department of the Army has 

determined that the Regulatory 

Flexibility Act does not apply because 

the proposed rule does not have a 

significant economic impact on a 

substantial number of small entities 

within the meaning to the Regulatory 

Flexibility Act, 5 U.S.C. 601–612. 

C. Paperwork Reduction Act

The Department of the Army has 

determined that the Paperwork 

Reduction Act does not apply because 

the proposed rule does not impose 

recordkeeping or information collection 

requirements from contractors or 

members of the public. 

D. Executive Order 12866 

The Department of the Army has 

determined that according to the criteria 

defined in Executive Order 12866, this 

proposed rule is not a significant 

regulatory action.

Bruno C. Leuyer, 

Chief, Freedom of Information and Privacy 

Office.

List of Subjects in 32 CFR part 518 

Freedom of Information Act, 

Administrative practices and 

procedures.

For the reasons stated in the 

preamble, the Department of the Army 

proposes to revise 32 CFR part 518—

The Army Freedom of Information Act 

Program as follows:

PART 518—THE FREEDOM OF 

INFORMATION ACT PROGRAM

Subpart A—General provisions 

Sec. 

518.1 Purpose. 

518.2 References. 

518.3 Explanation of abbreviations and 

terms. 

518.4 Responsibilities. 

518.5 Authority. 

518.6 Public information. 

518.7 FOIA terms defined. 

518.8 Freedom of Information 

requirements.

Subpart B—FOIA Reading Rooms 

518.9 Reading room. 

518.10 ‘‘(a)(2)’’ materials. 

518.11 Other materials.

Subpart C—Exemptions 

518.12 General. 

518.13 FOIA exemptions.

Subpart D—For Official Use Only 

518.14 General.

Subpart E—Release and Processing 

Procedures 

518.15 General provisions. 

518.16 Initial determinations. 

518.17 Appeals. 

518.18 Judicial actions.

Subpart F—Fee Schedule 

518.19 General provisions. 

518.20 Collection of fees and fee rates. 

518.21 Collection of fees and fee rates for 

technical data.

Subpart G—Reports 

518.22 Reports control. 

518.23 Annual report content.

Appendices to Part 518 

Appendix A to Part 518—References. 

Appendix B to Part 518—Addressing FOIA 

Requests.

Authority: 5 U.S.C. 551, 552, 552a, 5101–

5108, 5110–5113, 5115, 5332–5334, 5341–42, 

5504–5509, 7154; 10 U.S.C. 130, 1102, 2320–

2321, 2328; 18 U.S.C. 798, 3500; 31 U.S.C. 

3710; 35 U.S.C. 181–188; 42 U.S.C. 2162; 44 

U.S.C. 33; and Executive Order 12600.

PART 518—THE ARMY FREEDOM OF 

INFORMATION ACT PROGRAM

Subpart A—General provisions

§ 518.1 Purpose. 

This part provides policies and 

procedures for implementation of the 

Freedom of Information Act (5 U.S.C. 

552, as amended) and Department of 

Defense Directive (DoDD) 5400.7 and 

promotes uniformity in the Department 

of Defense (DoD) Freedom of 

Information Act (FOIA) Program (AR25–

55). This Army regulation implements 

provisions for access and release of 

information from all Army information 

systems (automated and manual) in 

support of Army Information 

Management (AR 25–1).

§ 518.2 References. 

Required and related publications are 

listed in Appendix A of this part.

§ 518.3 Explanation of abbreviations and 

terms. 

Abbreviations and special terms used 

in this part are explained in the glossary 

of AR 25–55.

§ 518.4 Responsibilities. 

(a) The Deputy Chief of Staff for 

Personnel (DCS, G–1) is responsible for 

issuing policy and establishing guidance 

for the Army FOIA Program. DCS, G–1 

has the responsibility to approve 

exceptions to this part that are 

consistent with controlling law and 

regulations. DCS, G–1 may delegate the 

approval authority, in writing, to a 

division chief, under its supervision, 

within that agency in the grade of O6 or 

civilian equivalent. 

(b) The U.S. Army Human Resources 

Command, (AHRC), The Adjutant 

General (TAG), Records Management 

and Declassification Agency (RMDA), is 

responsible for developing and 

recommending policy to DCS, G–1 

concerning the Army FOIA program and 

overall execution of the program under 

the policy and guidance of DCS, G–1.

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77837

(c) The Chief of Information Officer 

(CIO), G6 will provide oversight of the 

FOIA program as necessary in 

compliance with Federal Statutes, 

regulations, Office of Management and 

Budget (OMB), and the Office of 

Secretary of Defense (OSD). 

(d) Heads of Army Staff agencies, field 

operating agencies, major Army 

commands (MACOMS), and subordinate 

commands are responsible for the 

supervision and execution of the FOIA 

program in functional areas and 

activities under their command. 

(e) Heads of Joint Service agencies or 

commands for which the Army is the 

Executive Agent, or otherwise has 

responsibility for providing fiscal, 

logistical, or administrative support, 

will adhere to the policies and 

procedures in this part. 

(f) Commander, Army and Air Force 

Exchange Service (AAFES), is 

responsible for the supervision of the 

FOIA program within that command 

pursuant to this part.

§ 518.5 Authority. 

(a) This part governs written FOIA 

requests from members of the public. It 

does not preclude the release of 

personnel or other records to agencies or 

individuals in the Federal Government 

for use in official work. 

(b) Soldiers and civilian employees of 

the Department of the Army (DA) may, 

as private citizens, request DA or other 

agencies’ records under the FOIA. They 

must prepare requests at their own 

expense and on their own time. They 

may not use Government equipment, 

supplies, or postage to prepare personal 

FOIA requests. It is not necessary for 

soldiers or civilian employees to go 

through the chain of command to 

request information under the FOIA. 

(c) Requests for DA records processed 

under the FOIA may be denied only in 

accordance with the FOIA (5 U.S.C. 

552(b)), as implemented by this part. 

Guidance on the applicability of the 

FOIA is also found in the Federal 

Acquisition Regulation (FAR). 

(d) Release of some records may also 

be affected by the programs that created 

them. They are discussed in the 

following regulations: 

(1) AR 20–1 (Inspector General 

activities and procedures); 

(2) AR 27–10 (military justice); 

(3) AR 27–20 (claims); 

(4) AR 27–40 (litigation: release of 

information and appearance of 

witnesses); 

(5) AR 27–60 (intellectual property); 

(6) AR 36–2 (Government Accounting 

Office audits); 

(7) AR 40–66, AR 40–68, and AR 40–

400 (medical records); 

(8) AR 70–31 (technical reports); 

(9) AR 20–1, AR 385–40 and DA Pam 

385–40 (aircraft accident investigations); 

(10) AR 195–2 (criminal investigation 

activities); 

(11) AR 190–45 (Military Police 

records and reports); 

(12) AR 360–1 (Army public affairs: 

public information, general policies on 

release of information to the public); 

(13) AR 380–5 and DoD 5200.1–R 

(national security classified 

information);

(14) AR 380–5 paragraph 7–101e 

(policies and procedures for allowing 

persons outside the Executive Branch to 

do unofficial historical research in 

classified Army records); 

(15) AR 380–10 (Technology Transfer 

for disclosure of information and 

contacts with foreign representatives; 

(16) AR 381–45 (U.S. Army 

Intelligence and Security Command 

investigation files); 

(17) AR 385–40 (safety reports and 

records); 

(18) AR 600–8–104 (military 

personnel information management 

records); 

(19) AR 600–85 (alcohol and drug 

abuse records); 

(20) AR 608–19 (family advocacy 

records); and 

(21) AR 690 (series civilian personnel 

records, FAR, DoD Federal Acquisition 

Regulation Supplement (DFARS) and 

the Army Federal Acquisition 

Regulation Supplement (AFARS) 

procurement matters).

§ 518.6 Public information. 

(a) Public information. The public has 

a right to information concerning the 

activities of its Government. Army 

policy is to conduct its activities in an 

open manner and provide the public 

with a maximum amount of accurate 

and timely information concerning its 

activities, consistent always with the 

legitimate public and private interests of 

the American people. A record 

requested by a member of the public 

who follows rules established by proper 

authority in DA shall not be withheld in 

whole or in part unless the record is 

exempt from mandatory partial or total 

disclosure under the FOIA. As a matter 

of policy, Army activities shall make 

discretionary disclosures of exempt 

records or information only after full 

and deliberate consideration of the 

institutional, commercial, and personal 

privacy interests that could be 

implicated by disclosure of the 

information. Activities must be 

prepared to present a sound legal basis 

in support of their determinations. In 

order that the public may have timely 

information concerning Army activities, 

records requested through public 

information channels by news media 

representatives that would not be 

withheld if requested under the FOIA 

should be released upon request. 

Prompt responses to requests for 

information from news media 

representatives should be encouraged to 

eliminate the need for these requesters 

to invoke the provisions of the FOIA 

and thereby assist in providing timely 

information to the public. Similarly, 

requests from other members of the 

public for information that would not be 

withheld under the FOIA should 

continue to be honored through 

appropriate means without requiring the 

requester to invoke the FOIA. 

(b) FOIA handbook. The Department 

of the Army Freedom of Information 

Act/Privacy Act (DA FOIA/PA) Office 

shall prepare, in addition to FOIA 

regulations, a handbook for the use of 

the public in obtaining information from 

its organizations. This handbook will be 

a short, simple explanation of what the 

FOIA is designed to do, and how a 

member of the public can use it to 

access government records. The DA 

FOIA/PA Office handbook will explain 

the types of records that can be obtained 

through FOIA requests, why some 

records cannot, by law, be made 

available, and how the Army activity 

determines whether or not the record 

can be released. The handbook will also 

explain how to make a FOIA request, 

how long the requester can expect to 

wait for a reply, and appeal rights. The 

handbook will supplement other 

information locator systems, such as the 

Government Information Locator 

Service (GILS), and explain how a 

requester can obtain more information 

about those systems. The handbook will 

be available on paper and through 

electronic means and contain the 

following additional information, 

complete with electronic links to the 

below elements: The location of reading 

room and the types and categories of 

information available; the location of 

the World Wide Web page; a reference 

to the Army FOIA regulation and how 

to obtain a copy; a reference to the Army 

FOIA annual report and how to obtain 

a copy; and the location of the GILS 

page. The DA FOIA handbook, ‘‘A 

Citizen’s Guide to Request Army 

Records Under the Freedom of 

Information Act (FOIA),’’ can be 

accessed on-line at http://

www.rmda.belvoir.army.mil/. ‘‘The 

Major Automated Information Systems 

Descriptions’’ can be accessed at 

www.defenselink.mil/pubs/foi.

(c) Control system. A request for 

records that invokes the FOIA shall 

enter a formal control system designed 

77838 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

to ensure accountability and compliance 

with the FOIA. Any request for Army 

records that either explicitly or 

implicitly cites the FOIA shall be 

processed under the provisions of this 

part, unless otherwise required.

§ 518.7 FOIA terms defined. 

(a) FOIA request. A written request for 

Army records that reasonably describes 

the record(s) sought, made by any 

person, including a member of the 

public (U.S. or foreign citizen/entity), an 

organization, or a business, but not 

including a Federal Agency or a fugitive 

from the law, that either explicitly or 

implicitly invokes the FOIA, DoDD 

5400.7, DoD 5400.7–R, this part, or 

Army Activity supplementing 

regulations or instructions. All 

requesters should also indicate a 

willingness to pay fees associated with 

the processing of their request. 

Requesters may ask for a waiver of fees, 

but should also express a willingness to 

pay fees in the event of a waiver denial. 

Written requests may be received by 

postal service or other commercial 

delivery means, by facsimile, or 

electronically (such as e-mail). Requests 

received by facsimile or electronically 

must have a postal mailing address 

included since it may not be practical to 

provide a substantive response 

electronically. The request is considered 

properly received, or perfected, when 

the conditions in this paragraph have 

been met and the request arrives at the 

FOIA office of the Activity in possession 

of the records. 

(b) Agency record. The products of 

data compilation, such as all books, 

papers, maps, photographs, and 

machine readable materials, inclusive of 

those in electronic form or format, or 

other documentary materials, regardless 

of physical form or characteristics, made 

or received by an agency of the United 

States Government under Federal law in 

connection with the transaction of 

public business and in DA possession 

and control at the time the FOIA request 

is made. 

(1) The following are not included 

within the definition of the word 

‘‘record’’: Objects or articles, such as 

structures, furniture, vehicles and 

equipment, whatever their historical 

value, or value as evidence; Anything 

that is not a tangible or documentary 

record, such as an individual’s memory 

or oral communication; Personal records 

of an individual not subject to agency 

creation or retention requirements, 

created and maintained primarily for 

the convenience of an agency employee, 

and not distributed to other agency 

employees for their official use. 

Personal papers fall into three 

categories: Those created before entering 

Government service; private materials 

brought into, created, or received in the 

office that were not created or received 

in the course of transacting Government 

business; and work-related personal 

papers that are not used in the 

transaction of Government business in 

accordance with Public Law 86–36, 

National Security Information 

Exemption. 

(2) A record must exist and be in the 

possession and control of DA at the time 

of the request to be considered subject 

to this part and the FOIA. There is no 

obligation to create or compile a record 

to satisfy a FOIA request. 

(3) Hard copy or electronic records 

that are subject to FOIA requests under 

5 U.S.C. 552(a)(3), and that are available 

to the public through an established 

distribution system such as the 

Government Printing Office (GPO), 

Federal Register, National Technical 

Information Service (NTIS), or the 

Internet, normally need not be 

processed under the provisions of the 

FOIA. If a request is received for such 

information, Army Activities shall 

provide the requester with guidance, 

inclusive of any written notice to the 

public, on how to obtain the 

information. However, if the requester 

insists that the request be processed 

under the FOIA, then the request shall 

be processed under the FOIA. If there is 

any doubt as to whether the request 

must be processed, contact DA, FOIA/

PA Office.

(c) Army activity. A specific area of 

organizational or functional 

responsibility within DA, authorized to 

receive and act independently on FOIA 

requests. 

(d) Initial denial authority (IDA). An 

official who has been granted authority 

by the Secretary of the Army to deny 

records requested under the FOIA based 

on one or more of the nine categories of 

exemptions from mandatory disclosure. 

An IDA also: Denies a fee category claim 

by a requester; denies a request for 

expedited processing due to 

demonstrated compelling need; denies a 

request for a waiver or reduction of fees; 

reviews a fee estimate; and confirms 

that no records were located in response 

to a request. 

(e) Appellate authority. The Secretary 

of the Army or designee having 

jurisdiction for this purpose over the 

record, or any of the other adverse 

determinations. The DA appellate 

authority is the Office of the Army 

General Counsel (OGC). 

(f) Administrative appeal. A request 

by a member of the general public, made 

under the FOIA, asking the appellate 

authority of the Army to reverse a 

decision to: Withhold all or part of a 

requested record; deny a fee category 

claim by a requester; deny a request for 

expedited processing due to 

demonstrated compelling need; deny a 

request for waiver or reduction of fees; 

deny a request to review an initial fee 

estimate; and confirm that no records 

were located during the initial search. 

Requesters also may appeal the failure 

to receive a response determination 

within the statutory time limits, a fee 

estimate, and any determination that the 

requester believes is adverse in nature. 

(g) Public interest. The interest in 

obtaining official information that sheds 

light on an activity’s performance of its 

statutory duties because the information 

falls within the statutory purpose of the 

FOIA to inform citizens about what 

their Government is doing. That 

statutory purpose, however, is not 

fostered by disclosure of information 

about private citizens accumulated in 

various governmental files that reveals 

nothing about an agency’s or official’s 

own conduct. 

(h) Electronic record. Records 

(including e-mail) that are created, 

stored, and retrievable by electronic 

means. 

(i) Federal agency. As defined by 5 

U.S.C. 552(f)(1), a Federal agency is any 

executive department, military 

department, Government corporation, 

Government controlled corporation, or 

other establishment in the executive 

branch of the Government (including 

the Executive Office of the President), or 

any independent regulatory agency. 

(j) Law enforcement investigation. An 

investigation conducted by a command 

or activity for law enforcement purposes 

relating to crime, waste, fraud or 

national security. Such investigations 

may include gathering evidence for 

criminal prosecutions and for civil or 

regulatory proceedings.

§ 518.8 Freedom of Information 

requirements. 

(a) Compliance with the FOIA. Army 

personnel are expected to comply with 

the FOIA, this part, and Army FOIA 

policy in both letter and spirit. This 

strict adherence is necessary to provide 

uniformity in the implementation of the 

Army FOIA Program and to create 

conditions that will promote public 

trust.

(b) Openness with the public. The DA 

shall conduct its activities in an open 

manner consistent with the need for 

security and adherence to other 

requirements of law and regulation. 

Records not specifically exempt from 

disclosure under the Act shall, upon 

request, be made readily accessible to 

the public in accordance with rules 

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77839

promulgated by competent authority, 

whether or not the Act is invoked. 

(1) Operations Security (OPSEC). DA 

officials who release records under the 

FOIA must also consider OPSEC. The 

Army implementing directive is AR 

530–1. 

(2) DA Form 4948–R. This form lists 

references and information frequently 

used for FOIA requests related to 

OPSEC. Persons who routinely deal 

with the public (by telephone or letter) 

on such requests should keep the form 

on their desks as a guide. 

(c) Avoidance of procedural obstacles.

Army Activities shall ensure that 

procedural matters do not unnecessarily 

impede a requester from obtaining DA 

records promptly. The Army shall 

provide assistance to requesters to help 

them understand and comply with 

procedures established by this part and 

any supplemental regulations published 

by the Army Activities. Coordination of 

referral of requests with DA FOIA/PA 

Office should be made telephonically in 

order to respond to the requester in a 

timelier manner. Requests will not be 

mailed to the DA FOIA/PA Office for 

disposition or coordination with other 

IDAs. 

(d) Prompt action on requests and 

final response determinations.

Generally, when a member of the public 

complies with the procedures 

established in this part or instructions 

for obtaining DA records, and after the 

request is received by the official 

designated to respond, Army Activities 

shall endeavor to provide a final 

response determination within the 

statutory 20 working days. If a 

significant number of requests, or the 

complexity of the requests prevent a 

final response determination within the 

statutory time period, Army Activities 

shall advise the requester of this fact, 

and explain how the request will be 

responded to within its multitrack 

processing system. A final response 

determination is notification to the 

requester that the records are released or 

partially released, or will be released on 

a certain date, or the records are 

withheld under an appropriate FOIA 

exemption, or the records cannot be 

provided for one or more of the other 

reasons. Interim responses 

acknowledging receipt of the request, 

negotiations with the requester 

concerning the scope of the request, the 

response timeframe, and fee agreements 

are encouraged; however, such actions 

do not constitute a final response 

determination pursuant to the FOIA. If 

a request fails to meet minimum 

requirements as set forth, Activities 

shall contact the requester and inform 

the requester what would be required to 

perfect or correct the request, or to limit 

the scope to allow for the most 

expeditious response. The statutory 20 

working day time limit applies upon 

receipt of a perfected or correct FOIA 

request. Before mailing a final response 

determination and those records or 

portions thereof deemed releasable, 

records custodians will obtain a written 

legal opinion from their servicing judge 

advocate concerning the releasibility of 

the requested records. The legal opinion 

must cite specific exemptions, 

appropriate justification, and identify if 

the records were processed under the 

FOIA, PA (including the applicable 

systems notice), or both. 

(1) Multi-track processing. When an 

Army Activity has a significant number 

of pending requests that prevents a 

response determination being made 

within 20 working days, the requests 

shall be processed in a multitrack 

processing system, based on the date of 

receipt, the amount of work and time 

involved in processing the requests, and 

whether the request qualifies for 

expedited processing. Army Activities 

may establish as many processing 

queues as they wish; however, as a 

minimum, three processing tracks shall 

be established, all based on a first-in, 

first-out concept, and rank ordered by 

the date of receipt of the request. One 

track shall be a processing queue for 

simple requests, one track for complex 

requests, and one track shall be a 

processing queue for expedited 

processing. Determinations as to 

whether a request is simple or complex 

shall be made by each Army Activity. 

Army Activities shall provide a 

requester whose request does not 

qualify for the fastest queue an 

opportunity to limit the scope of the 

request in order to qualify for the fastest 

queue. This multitrack processing 

system does not obviate an Activity’s 

responsibility to exercise due diligence 

in processing requests in the most 

expeditious manner possible. 

(2) Expedited processing. A separate 

queue shall be established for requests 

meeting the test for expedited 

processing. Expedited processing shall 

be granted to a requester after the 

requester requests such and 

demonstrates a compelling need for the 

information. Notice of the determination 

as to whether to grant expedited 

processing in response to a requester’s 

compelling need shall be provided to 

the requester within 10 calendar days 

after receipt of the request in the Army 

Activity’s office that will determine 

whether to grant expedited processing. 

Once the Army Activity has determined 

to grant expedited processing, the 

request shall be processed as soon as 

practicable. Actions by Army Activities 

to initially deny or affirm the initial 

denial on appeal of a request for 

expedited processing and a failure to 

respond in a timely manner shall be 

subject to judicial review. Initial 

determination of denials of expedited 

processing will be immediately 

forwarded to the IDA for action. If the 

IDA upholds the denial, the requester 

will be informed of his or her right to 

appeal. 

(i) Imminent threat. Compelling need 

means that the failure to obtain the 

records on an expedited basis could 

reasonably be expected to pose an 

imminent threat to the life or physical 

safety of an individual. 

(ii) Alleged Federal Government 

activity. Compelling need also means 

that the information is urgently needed 

by an individual primarily engaged in 

disseminating information in order to 

inform the public concerning actual or 

alleged Federal Government activity. An 

individual primarily engaged in 

disseminating information means a 

person whose primary activity involves 

publishing or otherwise disseminating 

information to the public. 

Representatives of the news media 

would normally qualify as individuals 

primarily engaged in disseminating 

information. Other persons must 

demonstrate that their primary activity 

involves publishing or otherwise 

disseminating information to the public.

(iii) General public interest. Urgently 

needed means that the information has 

a particular value that will be lost if not 

disseminated quickly. Ordinarily this 

means a breaking news story of general 

public interest. However, information of 

historical interest only or information 

sought for litigation or commercial 

activities would not qualify, nor would 

a news media publication or broadcast 

deadline unrelated to the news breaking 

nature of the information. 

(iv) Certified statement. A 

demonstration of compelling need by a 

requester shall be made by a statement 

certified by the requester to be true and 

correct to the best of his or her 

knowledge. This statement must 

accompany the request in order to be 

considered and responded to within the 

10 calendar days required for decisions 

on expedited access. 

(v) Other reasons for expedited 

processing. Another reason that merits 

expedited processing by Army FOIA 

offices is an imminent loss of 

substantial due process rights. A 

demonstration of imminent loss of 

substantial due process rights shall be 

made by a statement certified by the 

requester to be true and correct to the 

best of his or her knowledge. The 

77840 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

statement mentioned in paragraph 

(c)(2)(iv) of this section must 

accompany the request in order to be 

considered and responded to within the 

10 calendar days required for decisions 

on expedited access. Once the decision 

has been made to expedite the request 

for this reason, the request may be 

processed in the expedited processing 

queue behind those requests qualifying 

for compelling need. 

(vi) Administrative appeals. These 

same procedures also apply to requests 

for expedited processing of 

administrative appeals. 

(e) Use of exemptions. It is Army 

policy to make records publicly 

available, unless the record qualifies for 

exemption under one or more of the 

nine exemptions. Discretionary releases 

of information protected under the 

FOIA should be made only after full and 

deliberate consideration of the 

institutional, commercial, and personal 

privacy interests that could be 

implicated by disclosure of the 

information. When Army activities 

determine to withhold information 

using one of the nine exemptions, the 

Department of Justice (DOJ) will defend 

the position unless it is found to be 

lacking a Sound Legal Basis for denial. 

(1) Parts of a requested record may be 

exempt from disclosure under the FOIA. 

The proper DA official may delete 

exempt information and release the 

remainder to the requester. The proper 

official also has the discretion under the 

FOIA to release exempt information 

when appropriate; he or she must 

exercise this discretion in a reasonable 

manner, within regulations consistent 

with current policy considerations. The 

excised copies shall clearly reflect the 

denied information by the use of 

brackets, indicating the removal of 

information. Bracketed areas must be 

sufficiently removed so as to reveal no 

information. The best means to ensure 

illegibility is to cut out the information 

from a copy of the document and 

reproduce the appropriate pages. 

(2) If the document is declassified, all 

classification markings shall be lined 

through with a single black line, which 

will allow the markings to be read. The 

document shall then be stamped 

‘‘Unclassified.’’

(f) Public domain. Nonexempt records 

released under the authority of this part 

are considered to be in the public 

domain. Such records may also be made 

available in the DA reading room in 

paper form, as well as electronically, to 

facilitate public access. Exempt records 

disclosed without authorization by the 

appropriate Army FOIA official do not 

lose their exempt status. Also, while 

authority may exist to disclose records 

to individuals in their official capacity, 

the provisions of this part apply if the 

same individual seeks the records in a 

private or personal capacity. 

(g) Creating a record. A record must 

exist and be in the possession and 

control of DA at the time of the search 

to be considered subject to this part and 

the FOIA. There is no obligation to 

create or compile a record to satisfy a 

FOIA request. An Army Activity, 

however, may compile a new record 

when so doing would result in a more 

useful response to the requester, or be 

less burdensome to the agency than 

providing existing records, and the 

requester does not object. Cost of 

creating or compiling such a record may 

not be charged to the requester unless 

the fee for creating the record is equal 

to or less than the fee that would be 

charged for providing the existing 

record. Fee assessments shall be in 

accordance with Subpart F of this part. 

(1) Concerning electronic data, the 

issue of whether records are actually 

created or merely extracted from an 

existing database is not always readily 

apparent. Consequently, when 

responding to FOIA requests for 

electronic data where creation of a 

record, programming, or particular 

format are questionable, Army Activities 

should apply a standard of 

reasonableness. 

(2) If the capability exists to respond 

to the request, and the effort would be 

a business as usual approach, then the 

request should be processed. However, 

the request need not be processed where 

the capability to respond does not exist 

without a significant expenditure of 

resources, thus not being a normal 

business as usual approach. As used in 

this sense, a significant expenditure of 

resources in both time and/or 

manpower that would cause a 

significant interference with the 

operation of the Army Activity’s 

automated information system would 

not be a business as usual approach. 

(h) Description of requested record.

Identification of the record desired is 

the responsibility of the requester. The 

requester must provide a description of 

the desired record that enables the 

Government to locate the record with a 

reasonable amount of effort. In order to 

assist Army Activities in conducting 

more timely searches, requesters should 

endeavor to provide as much identifying 

information as possible. When an Army 

Activity receives a request that does not 

reasonably describe the requested 

record, it shall contact the requester and 

afford the requester the opportunity to 

perfect the request. Army Activities are 

not obligated to act on the request until 

the requester perfects the request. When 

practicable, Army Activities shall 

contact the requester to aid in 

identifying the records sought and in 

reformulating the request to reduce the 

burden on the agency in complying with 

the Act. DA FOIA officials will reply to 

unclear requests by: Describing the 

defects in the requests; explaining the 

types of information described below, 

and ask the requester for such 

information; and explaining that no 

action will be taken on the request until 

the requester replies to the letter. 

(1) The following guidelines are 

provided to deal with generalized 

requests and are based on the principle 

of reasonable effort. Descriptive 

information about a record may be 

divided into two broad categories: 

Category I is file-related and includes 

information such as type of record (for 

example, memorandum), title, index 

citation, subject area, date of record 

creation, and originator; Category II is 

event-related and includes the 

circumstances that resulted in the 

record being created or the date and 

circumstances surrounding the event 

the record covers. 

(2) Generally, a record is not 

reasonably described unless the 

description contains sufficient Category 

I information to permit an organized, 

non random search based on the Army 

Activity’s filing arrangements and 

existing retrieval systems, or unless the 

record contains sufficient Category II 

information to permit an inference of 

the Category I elements needed to 

conduct such a search. 

(3) The following guidelines deal with 

requests for personal records. 

Ordinarily, when personal identifiers 

are provided only in connection with a 

request for records concerning the 

requester, only records in a PA system 

of records that can be retrieved by 

personal identifiers need be searched. 

However, if an Army Activity has 

reason to believe that records on the 

requester may exist in a record system 

other than a PA system, the Army 

Activity shall search that system under 

the provisions of the FOIA. In either 

case, Army Activities may request a 

reasonable description of the records 

desired before searching for such 

records under the provisions of the 

FOIA and the PA. If the record is 

required to be released under the FOIA, 

the Privacy Act does not bar its 

disclosure.

(4) The previous guidelines 

notwithstanding, the decision of the 

Army Activity concerning 

reasonableness of description must be 

based on knowledge of its files. If the 

description enables Army Activity 

personnel to locate the record with 

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reasonable effort, the description is 

adequate. The fact that a FOIA request 

is broad or burdensome in its magnitude 

does not, in and of itself, entitle an 

Army Activity to deny the request on 

the ground that it does not reasonably 

describe the records sought. The key 

factor is the ability of the Army 

Activity’s staff to reasonably ascertain 

and locate which records are being 

requested. 

(i) Referrals. The Army FOIA referral 

policy is based upon the concept of the 

originator of a record making a release 

determination on its information. If an 

Army Activity receives a request for 

records originated by another Army 

Activity, it will contact the Army 

Activity to determine if it also received 

the request, and if not, obtain 

concurrence from the other Army 

Activity to refer the request. An Army 

Activity shall refer a FOIA request for a 

classified record that it holds to another 

Army Activity, DoD Component, or 

agency outside the DoD, if the record 

originated in another Army Activity or 

DoD Component or outside agency, or if 

the classification is derivative. In this 

situation, provide the record and a 

release recommendation on the record 

with the referral action. In either 

situation, the requester shall be advised 

of the action taken, unless exempt 

information would be revealed. While 

referrals to originators of information 

result in obtaining the best possible 

decision on release of the information, 

the policy does not relieve Army 

Activities from the responsibility of 

making a release decision on a record 

should the requester object to referral of 

the request and the record. Should this 

situation occur, Army Activities shall 

still coordinate with the originator of 

the information prior to making a 

release determination. A request 

received by an Army Activity having no 

records responsive to a request shall be 

referred routinely to another Army 

Activity, if the other Army Activity has 

reason to believe it has the requested 

records. Prior to notifying a requester of 

a referral to another Army Activity, the 

Army Activity receiving the initial 

request shall consult with the other 

Army Activity to determine if that Army 

Activity’s association with the material 

is exempt. If the association is exempt, 

the Army Activity receiving the initial 

request will protect the association and 

any exempt information without 

revealing the identity of the protected 

Army Activity. The protected Army 

Activity should be responsible for 

submitting the justifications required in 

any litigation. Any Army Activity 

receiving a request that has been 

misaddressed shall refer the request to 

the proper address and advise the 

requester. Army Activities making 

referrals of requests for records shall 

include with the referral, a point of 

contact by name, a telephone number, 

and an e-mail address. If the office 

receiving the FOIA request does not 

know where the requested records are 

located, that activity will contact the 

DA, FOIA/PA Office, to determine the 

office where the request should be 

referred. 

(1) An Army Activity shall refer for 

response directly to the requester a 

FOIA request for a record that it holds 

to another Army Activity or agency 

outside the Army, if the record 

originated in the other Army Activity or 

outside agency. Whenever a record or a 

portion of a record is referred to another 

Army Activity or to a Government 

Agency outside of the Army for a release 

determination and direct response, the 

requester shall be informed of the 

referral, unless it has been determined 

that notification would reveal exempt 

information. Referred records shall only 

be identified to the extent consistent 

with security requirements. 

(2) An Army Activity may refer a 

request for a record that it originated to 

another Army Activity or agency when 

the other Army Activity or agency has 

a valid interest in the record, or the 

record was created for the use of the 

other Army Activity or agency. In such 

situations, provide the record and a 

release recommendation on the record 

with the referral action. Include a point 

of contact with the telephone number. 

An example of such a situation is a 

request for audit reports prepared by the 

U.S. Army Audit Agency. These 

advisory reports are prepared for the use 

of contracting officers and their release 

to the audited contractor shall be at the 

discretion of the contracting officer. A 

FOIA request shall be referred to the 

appropriate Army Activity and the 

requester shall be notified of the 

referral, unless exempt information 

would be revealed. Another example is 

a record originated by an Army Activity 

or agency that involves foreign relations, 

and could affect an Army Activity or 

organization in a host foreign country. 

Such a request and any responsive 

records may be referred to the affected 

Army Activity or organization for 

consultation prior to a final release 

determination within DA. 

(3) Within DA, an Army Activity shall 

ordinarily refer a FOIA request and a 

copy of the record it holds but that 

originated with another Army Activity 

or that contains substantial information 

obtained from another Army Activity, to 

that Activity for direct response, after 

direct coordination and obtaining 

concurrence from the Activity. The 

requester then shall be notified of such 

referral. Army Activities shall not, in 

any case, release or deny such records 

without prior consultation with the 

other Army Activity.

(4) Army Activities that receive 

referred requests shall answer them in 

accordance with the time limits 

established by the FOIA, this part, and 

their multitrack processing queues, 

based upon the date of initial receipt of 

the request at the referring Activity or 

agency. 

(5) Agencies outside DA that are 

subject to the FOIA. 

(i) An Army Activity may refer a 

FOIA request for any record that 

originated in an agency outside DA or 

that is based on information obtained 

from an outside agency to the agency for 

direct response to the requester after 

coordination with the outside agency, if 

that agency is subject to FOIA. 

Otherwise, the Army Activity must 

respond to the request. 

(ii) An Army Activity shall refer to the 

agency that provided the record any 

FOIA request for investigative, 

intelligence, or any other type of records 

that are on loan to DA for a specific 

purpose, if the records are restricted 

from further release and so marked. 

However, if for investigative or 

intelligence purposes, the outside 

agency desires anonymity, an Army 

Activity may only respond directly to 

the requester after coordination with the 

outside agency. 

(6) Army Activities that receive 

requests for records of the National 

Security Council (NSC), the White 

House, or the White House Military 

Office (WHMO) shall process the 

requests. Army records in which the 

NSC or White House has a concurrent 

reviewing interest, and NSC, White 

House, or WHMO records discovered in 

Army Activity’s files shall be forwarded 

through DA, FOIA/PA Office, to the 

Washington Headquarters Services, 

Office For Freedom of Information and 

Security Review (OFOISR). The OFOISR 

shall coordinate with the NSC, White 

House, or WHMO and return the records 

to the originating agency after 

coordination. 

(7) To the extent referrals are 

consistent with the policies expressed 

by this section, referrals between offices 

of the same Army Activity are 

authorized. 

(8) On occasion, the DA receives 

FOIA requests for General Accounting 

Office (GAO) records containing Army 

information. Even though the GAO is 

outside the Executive Branch, and not 

subject to the FOIA, all FOIA requests 

77842 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

for GAO documents containing Army 

information received either from the 

public or on referral from the GAO shall 

be processed under the provisions of the 

FOIA. 

(j) Authentication. Records provided 

under this part shall be authenticated 

with an appropriate seal, whenever 

necessary, to fulfill an official 

Government or other legal function. 

This service, however, is in addition to 

that required under the FOIA and is not 

included in the FOIA fee schedule. 

Army Activities may charge for the 

service at a rate of $5.20 for each 

authentication. 

(k) Records management. FOIA 

records shall be maintained and 

disposed of in accordance with the 

National Archives and Records 

Administration (NARA) General 

Records Schedule and DoD Component 

records schedules. 

(l) Record-keeping requirements in 

accordance with the Army Records 

Information Management System 

(ARIMS). The records listed below are 

required by ARIMS in the conduct of 

the daily business of the Army to 

provide adequate and proper 

documentation to protect the rights and 

interests of individuals and the Federal 

Government. The full description of the 

records and their disposition is found at 

https://www2.arims.army.mil.

(1) FOIA requests, access, and denials; 

(2) FOIA administrative files; 

(3) FOIA appeals; 

(4) FOIA controls; 

(5) FOIA reports; 

(6) Access to information files; 

(7) Safeguarded nondefense 

information releases; 

(8) Nonsafeguarded information 

releases; 

(9) Unauthorized disclosure reports; 

(10) Acknowledgement; and 

(11) Initial Denial Authority 

designations/appointments. 

(m) Relationship between the FOIA 

and the Privacy Act (PA). Not all 

requesters are knowledgeable of the 

appropriate statutory authority to cite 

when requesting records, nor are all of 

them aware of appeal procedures. In 

some instances, they may cite neither 

Act, but will imply one or both Acts. 

For these reasons, the below guidelines 

are provided to ensure that requesters 

receive the greatest amount of access 

rights under both Acts.

(1) If the record is required to be 

released under the FOIA, the PA does 

not bar its disclosure. Unlike the FOIA, 

the PA applies only to U.S. citizens and 

aliens lawfully admitted for permanent 

residence. 

(2) Requesters who seek records about 

themselves contained in a PA system of 

records and who cite or imply only the 

PA, will have their requests processed 

under the provisions of both the PA and 

the FOIA. If the PA system of records is 

exempt from the provisions of 5 U.S.C. 

552a(d)(1) and if the records, or any 

portion thereof, are exempt under the 

FOIA, the requester shall be so advised 

with the appropriate PA and FOIA 

exemption. Appeals shall be processed 

under both Acts. 

(3) Requesters who seek records about 

themselves that are not contained in a 

Privacy Act system of records and who 

cite or imply the PA will have their 

requests processed under the provisions 

of the FOIA, since the PA does not 

apply to these records. Appeals shall be 

processed under the FOIA. 

(4) Requesters who seek records about 

themselves that are contained in a PA 

system of records and who cite or imply 

the FOIA or both Acts will have their 

requests processed under the provisions 

of both the PA and the FOIA. If the PA 

system of records is exempt from the 

provisions of 5 U.S.C. 552a(d)(1) and if 

the records, or any portion thereof, are 

exempt under the FOIA, the requester 

shall be so advised with the appropriate 

PA and FOIA exemption. Appeals shall 

be processed under both Acts. 

(5) Requesters who seek access to 

agency records that are not part of a PA 

system of records, and who cite or 

imply the PA and FOIA, will have their 

requests processed under the FOIA 

since the PA does not apply to these 

records. Appeals shall be processed 

under the FOIA. Requesters who seek 

access to agency records and who cite 

or imply the FOIA will have their 

requests and appeals processed under 

the FOIA. 

(6) Requesters shall be advised in the 

final response letter, which Act(s) was 

(were) used, inclusive of appeal rights 

as outlined in paragraphs (m)(1) through 

(5) of this section. 

(n) Non-responsive information in 

responsive records. Army Activities 

shall interpret FOIA requests liberally 

when determining which records are 

responsive to the requests, and may 

release non-responsive information. 

However, should Army Activities desire 

to withhold non-responsive 

information, the following steps shall be 

accomplished: 

(1) Consult with the requester, and 

ask if the requester views the 

information as responsive, and if not, 

seek the requester’s concurrence to 

delete the non-responsive information 

without a FOIA exemption. Reflect this 

concurrence in the response letter. 

(2) If the responsive record is 

unclassified, and the requester does not 

agree to deletion of non-responsive 

information without a FOIA exemption, 

release all non-responsive and 

responsive information that is not 

exempt. For non-responsive information 

that is exempt, notify the requester that 

even if the information were determined 

responsive, it would likely be exempt 

under (state appropriate exemption(s)). 

Advise the requester of the right to 

request this information under a 

separate FOIA request. The separate 

request shall be placed in the same 

location within the processing queue as 

the original request. 

(3) If the responsive record is 

classified, and the requester does not 

agree to deletion of non-responsive 

information without a FOIA exemption, 

release all unclassified responsive and 

non-responsive information that is not 

exempt. The classified, non-responsive 

information need not be reviewed for 

declassification at this point. Advise the 

requester that even if the classified 

information were determined 

responsive, it would likely be exempt 

under 5 U.S.C. 552(b)(1), and other 

exemptions if appropriate. Advise the 

requester of the right to request this 

information under a separate FOIA 

request. The separate request shall be 

placed in the same location within the 

processing queue as the original request. 

(o) Honoring form or format requests.

Army Activities shall provide the record 

in any form or format requested by the 

requester if the record is readily 

reproducible in that form or format. 

Army Activities shall make reasonable 

efforts to maintain their records in forms 

or formats that are reproducible. In 

responding to requests for records, 

Army Activities shall make reasonable 

efforts to search for records in electronic 

form or format, except when such efforts 

would significantly interfere with the 

operation of the Army Activities’

automated information system. Such 

determinations shall be made on a caseby-case basis.

Subpart B—FOIA Reading Rooms

§ 518.9 Reading room.

(a) Reading room location. The DA 

shall provide an appropriate facility or 

facilities where the public may inspect 

and copy or have copied the records 

described in paragraphs (b)(1) through 

(4) of this section. In addition to the 

records described, DA may elect to 

place other records in their reading 

room, and also make them electronically 

available to the public. The Army may 

share reading room facilities with DoD 

Components if the public is not unduly 

inconvenienced, and also may establish 

decentralized reading rooms. When 

appropriate, the cost of copying may be 

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imposed on the person requesting the 

material in accordance with the 

provisions of Subpart F of this part. The 

Army FOIA Public Reading Room is 

operated by the DA, FOIA/PA Office. 

(b) Record availability. The FOIA 

requires that records described in 5 

U.S.C. 552(a)(2)(A), (B), (C), and (D) 

created on or after November 1, 1996, 

shall be made available electronically, 

as well as in hard copy in the FOIA 

reading room for inspection and 

copying, unless such records are 

published and copies are offered for 

sale. All portions determined to be 

exempt in accordance with 5 U.S.C. 552 

(reference (a)) shall be deleted from all 

5 U.S.C. 552(a)(2) records made 

available to the general public. In every 

case, justification for the deletion must 

be fully explained in writing, and the 

extent of such deletion shall be 

indicated on the record that is made 

publicly available, unless such 

indication would harm an interest 

protected by an exemption under which 

the deletion was made. If technically 

feasible, the extent of the deletion in 

electronic records or any other form of 

record shall be indicated at the place in 

the record where the deletion was made. 

However, the Army may publish in the 

Federal Register a description of the 

basis upon which it will delete 

identifying details of particular types of 

records to avoid clearly unwarranted 

invasions of privacy, or competitive 

harm to business submitters. In 

appropriate cases, the Army may refer to 

this description rather than write a 

separate justification for each deletion. 

5 U.S.C. 552(a)(2)(A), (B), (C), and (D) 

records are: 

(1) (a)(2)(A) records. Final opinions, 

including concurring and dissenting 

opinions, and orders made in the 

adjudication of cases, as defined in 5 

U.S.C. 551, that may be cited, used, or 

relied upon as precedents in future 

adjudications; 

(2) (a)(2)(B) records. Statements of 

policy and interpretations that have 

been adopted by the agency that are not 

published in the Federal Register; and 

(3) (a)(2)(C) records. Administrative 

staff manuals and instructions, or 

portions thereof that establish Army 

policy or interpretations of policy that 

affect a member of the public. This 

provision does not apply to instructions 

for employees on tactics and techniques 

to be used in performing their duties, or 

to instructions relating only to the 

internal management of the Army. 

Examples of manuals and instructions 

not normally made available are: 

(i) Those issued for audit, 

investigation, and inspection purposes, 

or those that prescribe operational 

tactics, standards of performance, or 

criteria for defense, prosecution, or 

settlement of cases; and 

(ii) Operations and maintenance 

manuals and technical information 

concerning munitions, equipment, 

systems, and intelligence activities. 

(4) (a)(2)(D) records. Those 5 U.S.C. 

552(a)(3) records, which because of the 

nature of the subject matter, have 

become or are likely to become the 

subject of subsequent requests for 

substantially the same records. These 

records are referred to as FOIAprocessed (a)(2) records. 

(i) Army Activities shall decide on a 

case by case basis whether records fall 

into this category, based on previous 

experience of the Army Activity with 

similar records; particular 

circumstances of the records involved, 

including their nature and the type of 

information contained in them; or the 

identity and number of requesters and 

whether there is widespread press, 

historic, or commercial interest in the 

records. 

(ii) This provision is intended for 

situations where public access in a 

timely manner is important, and it is not 

intended to apply where there may be 

a limited number of requests over a 

short period of time from a few 

requesters. Army Activities may remove 

the records from this access medium 

when the appropriate officials 

determine that access is no longer 

necessary. 

(iii) Should a requester submit a FOIA 

request for FOIA-processed (a)(2) 

records, and insist that the request be 

processed, Army Activities shall process 

the FOIA request. However, Army 

Activities have no obligation to process 

a FOIA request for 5 U.S.C. 552(a)(2)(A), 

(B), and (C) records because these 

records are required to be made public 

and not FOIA-processed under 

paragraph (a)(3) of the FOIA.

§ 518.10 ‘‘(a)(2)’’ materials.

(a) The DA FOIA/PA Office shall 

maintain in the facility an index of 

materials described in paragraphs (b)(1) 

through (4) of § 518.9, that are issued, 

adopted, or promulgated after July 4, 

1967. No ‘‘(a)(2)’’ materials issued, 

promulgated, or adopted after July 4, 

1967 that are not indexed and either 

made available or published may be 

relied upon, used or cited as precedent 

against any individual unless such 

individual has actual and timely notice 

of the contents of such materials. Such 

materials issued, promulgated, or 

adopted before July 4, 1967 need not be 

indexed, but must be made available 

upon request if not exempted under this 

part. 

(b) The DA FOIA/PA Office shall 

promptly publish quarterly or more 

frequently, and distribute, by sale or 

otherwise, copies of each index of 

‘‘(a)(2)’’ materials or supplements 

thereto unless it publishes in the 

Federal Register an order containing a 

determination that publication is 

unnecessary and impracticable. A copy 

of each index or supplement not 

published shall be provided to a 

requester at a cost not to exceed the 

direct cost of duplication as set forth in 

Subpart F of this part. 

(c) Each index of ‘‘(a)(2)’’ materials or 

supplement thereto shall be arranged 

topically or by descriptive words rather 

than by case name or numbering system 

so that members of the public can 

readily locate material. Case name and 

numbering arrangements, however, may 

also be included for Army convenience. 

(d) A general index of FOIA-processed 

(a)(2) records shall be made available to 

the public, both in hard copy and 

electronically.

§ 518.11 Other materials. 

(a) Any available index of Army 

material published in the Federal 

Register, such as material required to be 

published by Section 552(a)(1) of the 

FOIA, shall be made available in the 

Army FOIA Public Reading Room, and 

electronically to the public. 

(b) Although not required to be made 

available in response to FOIA requests 

or made available in FOIA Reading 

Rooms, ‘‘(a)(1)’’ materials shall, when 

feasible, be made available to the public 

in FOIA reading rooms for inspection 

and copying, and by electronic means. 

Examples of ‘‘(a)(1)’’ materials are 

descriptions of an agency’s central and 

field organization, and to the extent they 

affect the public, rules of procedures, 

descriptions of forms available, 

instruction as to the scope and contents 

of papers, reports, or examinations, and 

any amendment, revision, or report of 

the aforementioned.

Subpart C—Exemptions

§ 518.12 General. 

Records that meet the exemption 

criteria of the FOIA may be withheld 

from public disclosure and need not be 

published in the Federal Register, made 

available in a library reading room, or 

provided in response to a FOIA request.

§ 518.13 FOIA exemptions. 

The following types of records may be 

withheld in whole or in part from 

public disclosure under the FOIA, 

unless otherwise prescribed by law. A 

discretionary release of a record to one 

requester shall prevent the withholding 

77844 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

of the same record under a FOIA 

exemption if the record is subsequently 

requested by someone else. However, a 

FOIA exemption may be invoked to 

withhold information that is similar or 

related to that which has been the 

subject of a discretionary release. In 

applying exemptions, the identity of the 

requester and the purpose for which the 

record is sought are irrelevant with the 

exception that an exemption may not be 

invoked where the particular interest to 

be protected is the requester’s interest. 

However, if the subject of the record is 

the requester for the record and the 

record is contained in a PA system of 

records, it may only be denied to the 

requester if withholding is both 

authorized by AR 25–71 and by a FOIA 

exemption. 

(a) Number 1 (5 U.S.C. 552 (b)(1)).

Those properly and currently classified 

in the interest of national defense or 

foreign policy, as specifically authorized 

under the criteria established by 

Executive Order and implemented by 

regulations, such as DoD 5200.1–R. 

Although material is not classified at the 

time of the FOIA request, a 

classification review may be undertaken 

to determine whether the information 

should be classified. The procedures in 

DoD 5200.1–R apply. If the information 

qualifies as exemption 1 information, 

there is no discretion regarding its 

release. In addition, this exemption 

shall be invoked when the following 

situations are apparent: 

(1) The fact of the existence or 

nonexistence of a record would itself 

reveal classified information. In this 

situation, Army Activities shall neither 

confirm nor deny the existence or 

nonexistence of the record being 

requested. A ‘‘refusal to confirm or 

deny’’ response must be used 

consistently, not only when a record 

exists, but also when a record does not 

exist. Otherwise, the pattern of using a 

‘‘no record’’ response when a record 

does not exist, and a ‘‘refusal to confirm 

or deny’’ when a record does exist will 

itself disclose national security 

information.

(2) Compilations of items of 

information that are individually 

unclassified may be classified if the 

compiled information reveals additional 

association or relationship that meets 

the standard for classification under an 

existing executive order for 

classification and DoD 5200.1–R, and is 

not otherwise revealed in the individual 

items of information. 

(b) 5 U.S.C. 552(b)(2). Those related 

solely to the internal personnel rules 

and practices of the DoD or any of its 

Components. This exemption has two 

profiles, high (b)(2) and low (b)(2). 

Activities are encouraged to consult the 

DA, FOIA/PA Office, and the U.S. DoJ 

‘‘Freedom of Information Act Guide & 

Privacy Act Overview’’ for a more in 

depth discussion on the legal history of 

the use of the low (b)(2) exemption. 

When only a minimal Government 

interest would be affected 

(administrative burden), Army 

Activities shall apply the sound legal 

basis standard regarding disclosure of 

the information. Army Activities shall 

apply the low 2 exemption as 

applicable. 

(1) Records qualifying under high 

(b)(2) are those containing or 

constituting statutes, rules, regulations, 

orders, manuals, directives, 

instructions, security classification 

guides, and sensitive but unclassified 

information related to America’s 

homeland security and critical 

infrastructure information the release of 

which would allow circumvention of 

these records thereby substantially 

hindering the effective performance or 

present an unwarranted risk of adverse 

impact on the ability of other agencies 

to protect other important records of a 

significant function of the DA. Examples 

include: 

(i) Those operating rules, guidelines, 

and manuals for Army investigators, 

inspectors, auditors, or examiners that 

must remain privileged in order for the 

Army Activity to fulfill a legal 

requirement; 

(ii) Personnel and other 

administrative matters, such as 

examination questions and answers 

used in training courses or in the 

determination of the qualifications of 

candidates for employment, entrance on 

duty, advancement, or promotion; and 

(iii) Computer software, the release of 

which would allow circumvention of a 

statute, DoD or Army rules, regulations, 

orders, manuals, directives, or 

instructions. In this situation, the use of 

the software must be closely examined 

to ensure a circumvention possibility 

exists. 

(2) Records qualifying under the low 

(b)(2) profile are those that are trivial 

and housekeeping in nature for which 

there is no legitimate public interest or 

benefit to be gained by release, and it 

would constitute an administrative 

burden to process the request in order 

to disclose the records. Examples 

include rules of personnel’s use of 

parking facilities or regulation of lunch 

hours, statements of policy as to sick 

leave, and administrative data such as 

file numbers, mail routing stamps, 

initials, data processing notations, brief 

references to previous communications, 

and other like administrative markings. 

Army Activities shall apply the low 2 

exemption as applicable. 

(c) Number 3 (5 U.S.C. 552(b)(3)).

Those concerning matters that a statute 

specifically exempts from disclosure by 

terms that permit no discretion on the 

issue, or in accordance with criteria 

established by that statute for 

withholding or referring to particular 

types of matters to be withheld. The DA, 

FOIA/PA Office, maintains a list of 

(b)(3) statutes used within the DoD, and 

provides updated lists of these statutes 

to Army Activities on a periodic basis. 

A few examples of such statutes are: 

(1) Personnel in Overseas, Sensitive, 

or Routinely Deployable Units: 

nondisclosure of personally identifying 

information, 10 U.S.C. 130(b). 

Additionally, the names and duty 

addresses (postal and/or e-mail) of 

Army military and civilian personnel 

who are assigned to units that are 

sensitive, routinely deployable, or 

stationed in foreign territories can 

constitute a clearly unwarranted 

invasion of personal privacy and may 

also be withheld in accordance with 

FOIA Exemption 3. Names and duty 

addresses (postal and/or e-mail) 

published in telephone directories, 

organizational charts, rosters and 

similar materials for personnel assigned 

to units that are sensitive, routinely 

deployable, or stationed in foreign 

territories are withholdable under this 

exemption, in accordance with 10 

U.S.C. 130 ‘‘Personnel in Overseas, 

Sensitive, or Routinely Deployable 

Units;’’

(2) Classification and Declassification 

of Restricted Data, 42 U.S.C. 2162; 

(3) Disclosure of Classified 

Information, 18 U.S.C. 798(a); 

(4) Authority to Withhold from Public 

Disclosure Certain Technical Data, 10 

U.S.C. 130 and DoDD 5230.25;

(5) Confidentiality of Medical Quality 

Assurance Records: Qualified Immunity 

for Participants, 10 U.S.C. 1102(f); 

(6) Physical Protection of Special 

Nuclear Material: Limitation on 

Dissemination of Unclassified 

Information, 10 U.S.C. 128; 

(7) Protection of Intelligence Sources 

and Methods, 50 U.S.C. 403–3(c)(6); 

(8) Prohibition on Release of 

Contractor Submitted Proposals, 10 

U.S.C. 2305(g); 

(9) Restrictions on Disclosing and 

Obtaining Contractor Bid or Proposal 

Information or Source Selection 

Information, 41 U.S.C. 423; and 

(10) Secrecy of Certain Inventions and 

Filing Applications in a Foreign 

Country, 35 U.S.C. 181–188. Any 

records containing information relating 

to inventions that are the subject of 

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77845

patent applications on which Patent 

Secrecy Orders have been issued. 

(d) Number 4 (5 U.S.C. 552 (b)(4)).

Those containing trade secrets or 

commercial or financial information 

that an Army Activity receives from a 

person or organization outside the 

Government with the understanding 

that the information or record will be 

retained on a privileged or confidential 

basis in accordance with the customary 

handling of such records. Records 

within the exemption must contain 

trade secrets, or commercial or financial 

records, the disclosure of which is likely 

to cause substantial harm to the 

competitive position of the source 

providing the information, impair the 

Government’s ability to obtain necessary 

information in the future, or impair 

some other legitimate Government 

interest. Commercial or financial 

information submitted on a voluntary 

basis, absent any exercised authority 

prescribing criteria for submission is 

protected without any requirement to 

show competitive harm. If the 

information qualifies as exemption 4 

information, there is no discretion in its 

release. Examples include: 

(1) Commercial or financial 

information received in confidence in 

connection with loans, bids, contracts, 

or proposals set forth in or incorporated 

by reference in a contract entered into 

between the Army Activity and the 

offeror that submitted the proposal, as 

well as other information received in 

confidence or privileged, such as trade 

secrets, inventions, discoveries, or other 

proprietary data. Additionally, when the 

provisions of 10 U.S.C. 2305(g) and 41 

U.S.C. 423 are met, certain proprietary 

and source selection information may be 

withheld under exemption 3; 

(2) Statistical data and commercial or 

financial information concerning 

contract performance, income, profits, 

losses, and expenditures, if offered and 

received in confidence from a contractor 

or potential contractor; 

(3) Personal statements given in the 

course of inspections, investigations, or 

audits, when such statements are 

received in confidence from the 

individual and retained in confidence 

because they reveal trade secrets or 

commercial or financial information 

normally considered confidential or 

privileged; 

(4) Financial data provided in 

confidence by private employers in 

connection with locality wage surveys 

that are used to fix and adjust pay 

schedules applicable to the prevailing 

wage rate of employees within the DA;

(5) Scientific and manufacturing 

processes or developments concerning 

technical or scientific data or other 

information submitted with an 

application for a research grant, or with 

a report while research is in progress; 

(6) Technical or scientific data 

developed by a contractor or 

subcontractor exclusively at private 

expense, and technical or scientific data 

developed in part with Federal funds 

and in part at private expense, wherein 

the contractor or subcontractor has 

retained legitimate proprietary interests 

in such data in accordance with 10 

U.S.C. 2320–2311 and DoD Federal 

Acquisition Regulation Supplement 

(DFARS), Subpart 27.4. Technical data 

developed exclusively with Federal 

funds may be withheld under 

Exemption Number 3 if it meets the 

criteria of 10 U.S.C. 130 and DoDD 

5230.25; 

(7) Computer software, which is 

copyrighted in accordance with 17 

U.S.C. 106, ‘Exclusive rights in 

Copyrighted Works, the disclosure of 

which would have an adverse impact on 

the potential market value of a 

copyrighted work; and 

(8) Proprietary information submitted 

strictly on a voluntary basis, absent any 

exercised authority prescribing criteria 

for submission. Examples of exercised 

authorities prescribing criteria for 

submission are statutes, Executive 

Orders, regulations, invitations for bids, 

requests for proposals, and contracts. 

Submission of information under these 

authorities is not voluntary. 

(e) Number 5 (5 U.S.C. 552 (b)(5)).

Those containing information 

considered privileged in litigation, 

primarily under the deliberative process 

privilege. Except as provided in 

paragraphs (e) (1) through (5) of this 

section, internal advice, 

recommendations, and subjective 

evaluations, as contrasted with factual 

matters that are reflected in deliberative 

records pertaining to the decisionmaking process of an agency, whether 

within or among agencies (as defined in 

5 U.S.C. 552(e)), or within or among 

Army Activities. In order to meet the 

test of this exemption, the record must 

be both deliberative in nature, as well as 

part of a decision-making process. 

Merely being an internal record is 

insufficient basis for withholding under 

this exemption. Also potentially 

exempted are records pertaining to the 

attorney-client privilege and the 

attorney work-product privilege. 

Discretionary disclosure decisions 

should be made only after full and 

deliberate consideration of the 

institutional, commercial, and personal 

privacy interests that could be 

implicated by disclosure of the 

information. 

(1) Examples of the deliberative 

process include: 

(i)The non-factual portions of staff 

papers, to include after-action reports, 

lessons learned, and situation reports 

containing staff evaluations, advice, 

opinions, or suggestions; 

(ii) Advice, suggestions, or 

evaluations prepared on behalf of the 

DA by individual consultants or by 

boards, committees, councils, groups, 

panels, conferences, commissions, task 

forces, or other similar groups that are 

formed for the purpose of obtaining 

advice and recommendations.; 

(iii) Those non-factual portions of 

evaluations by DoD Component 

personnel of contractors and their 

products; 

(iv) Information of a speculative, 

tentative, or evaluative nature or such 

matters as proposed plans to procure, 

lease or otherwise acquire and dispose 

of materials, real estate, facilities or 

functions, when such information 

would provide undue or unfair 

competitive advantage to private 

personal interests or would impede 

legitimate government functions; 

(v) Trade secret or other confidential 

research development, or commercial 

information owned by the Government, 

where premature release is likely to 

affect the Government’s negotiating 

position or other commercial interest; 

(vi) Those portions of official reports 

of inspection, reports of the Inspector 

Generals, audits, investigations, or 

surveys pertaining to safety, security, or 

the internal management, 

administration, or operation of one or 

more Army Activities, when these 

records have traditionally been treated 

by the courts as privileged against 

disclosure in litigation; and 

(vii) Planning, programming, and 

budgetary information that is involved 

in the defense planning and resource 

allocation process. 

(2) If any such intra-or inter-agency 

record or reasonably segregable portion 

of such record hypothetically would be 

made available routinely through the 

discovery process in the course of 

litigation with the Army, then it should 

not be withheld under the FOIA. If, 

however, the information hypothetically 

would not be released at all, or would 

only be released in a particular case 

during civil discovery where a party’s 

particularized showing of need might 

override a privilege, then the record 

may be withheld. Discovery is the 

formal process by which litigants obtain 

information from each other for use in 

the litigation. Consult with legal counsel 

to determine whether exemption 5 

material would be routinely made 

available through the discovery process.

77846 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

(3) Intra- or inter-agency memoranda 

or letters that are factual, or those 

reasonably segregable portions that are 

factual, are routinely made available 

through discovery, and shall be made 

available to a requester, unless the 

factual material is otherwise exempt 

from release, inextricably intertwined 

with the exempt information, so 

fragmented as to be uninformative, or so 

redundant of information already 

available to the requester as to provide 

no new substantive information. 

(4) A direction or order from a 

superior to a subordinate, though 

contained in an internal 

communication, generally cannot be 

withheld from a requester if it 

constitutes policy guidance or a 

decision, as distinguished from a 

discussion of preliminary matters or a 

request for information or advice that 

would compromise the decision-making 

process. 

(5) An internal communication 

concerning a decision that subsequently 

has been made a matter of public record 

must be made available to a requester 

when the rationale for the decision is 

expressly adopted or incorporated by 

reference in the record containing the 

decision. 

(f) Number 6 (5 U.S.C. 552 (b)(6)).

Information in personnel and medical 

files, as well as similar personal 

information in other files, and lists of 

personally identifying information of 

Army personnel, that, if disclosed to a 

requester, other than the person about 

whom the information is about, would 

result in a clearly unwarranted invasion 

of personal privacy. Release of 

information about an individual 

contained in a Privacy Act System of 

Records that would constitute a clearly 

unwarranted invasion of privacy is 

prohibited, and could subject the 

releaser to civil and criminal penalties. 

If the information qualifies as 

exemption 6 information, there is no 

discretion regarding its release. 

(1) Examples of other files containing 

personal information similar to that 

contained in personnel and medical 

files include: 

(i) Those compiled to evaluate or 

adjudicate the suitability of candidates 

for civilian employment or membership 

in the Armed Forces, and the eligibility 

of individuals (civilian, military, or 

contractor employees) for security 

clearances, or for access to particularly 

sensitive classified information; and 

(ii) Files containing reports, records, 

and other material pertaining to 

personnel matters in which 

administrative action, including 

disciplinary action, may be taken. 

(2) Army components shall ordinarily 

withhold lists of names (including 

active duty military, civilian employees, 

contractors, members of the National 

Guard and Reserves, and military 

dependents) and other personally 

identifying information, including lists 

of e-mail addresses of personnel 

currently or recently assigned within a 

particular component, unit, 

organization, or office within the Army. 

Home addresses, including private email addresses, are normally not 

releasable without the consent of the 

individuals concerned. This includes 

lists of home addresses and military 

quarters’ addressees without the 

occupant’s name. 

(i) Privacy interest. A privacy interest 

may exist in personal information even 

though the information has been 

disclosed at some place and time. If 

personal information is not freely 

available from sources other than the 

Federal Government, a privacy interest 

exists in its nondisclosure. The fact that 

the Federal Government expended 

funds to prepare, index and maintain 

records on personal information, and 

the fact that a requester invokes FOIA to 

obtain these records indicates the 

information is not freely available. 

(ii) The right to privacy of deceased 

persons is not entirely settled, but the 

majority rule is that death extinguishes 

their privacy rights. However, 

particularly sensitive, graphic, personal 

details about the circumstances 

surrounding an individual’s death may 

be withheld when necessary to protect 

the privacy interests of surviving family 

members. Even information that is not 

particularly sensitive in and of itself 

may be withheld to protect the privacy 

interests of surviving family members if 

disclosure would rekindle grief, 

anguish, pain, embarrassment, or cause 

a disruption of their peace of minds. 

Additionally, the deceased’s social 

security number should be withheld 

since it is used by the next of kin to 

receive benefits. Disclosures of the 

deceased’s social security number may 

be made to the immediate next of kin. 

(iii) A clearly unwarranted invasion of 

the privacy of third parties identified in 

a personnel, medical or similar record 

constitutes a basis for deleting those 

reasonably segregable portions of that 

record. When withholding third party 

personal information from the subject of 

the record and the record is contained 

in a Privacy Act system of records, 

consult with legal counsel. 

(iv) This exemption also applies when 

the fact of the existence or nonexistence 

of a responsive record would itself 

reveal personally private information, 

and the public interest in disclosure is 

not sufficient to outweigh the privacy 

interest. In this situation, Army 

Activities shall neither confirm nor 

deny the existence or nonexistence of 

the record being requested. This is a 

‘‘Glomar’’ response, and exemption 6 

must be cited in the response. 

Additionally, in order to ensure 

personal privacy is not violated during 

referrals, Army Activities shall 

coordinate telephonically or in person 

with other Army Activities or DoD 

Components or Federal Agencies before 

referring a record that is exempt under 

the ‘‘Glomar’’ concept. See Phillippi v. 

CIA, 546 F.2d 1009 (D.C. Cir. 1976).

(v) A ‘‘refusal to confirm or deny’’

response must be used consistently, not 

only when a record exists, but also 

when a record does not exist. 

Otherwise, the pattern of using a ‘‘no 

records’’ response when a record does 

not exist and a ‘‘refusal to confirm or 

deny’’ when a record does exist will 

itself disclose personally private 

information. Refusal to confirm or deny 

should not be used when: 

(A) The person whose personal 

privacy is in jeopardy has provided the 

requester a waiver of his or her privacy 

rights; 

(B) The person initiated or directly 

participated in an investigation that lead 

to the creation of an agency record seeks 

access to that record; or 

(C) The person whose personal 

privacy is in jeopardy is deceased, the 

Agency is aware of that fact, and 

disclosure would not invade the privacy 

of the deceased’s family. 

(g) Number 7 (5 U.S.C. 552 (b)(7)).

Records or information compiled for 

law enforcement purposes, i.e., civil, 

criminal, or military, including the 

implementation of Executive Orders or 

regulations issued pursuant to law. This 

exemption may be invoked to prevent 

disclosure of documents not originally 

created for, but later gathered for law 

enforcement purposes. With the 

exception of parts (C) and (F), this 

exemption is discretionary. If 

information qualifies as exemption 

(7)(C) or (7)(F) information, there is no 

discretion in its release. 

(1) This exemption applies, however, 

only to the extent that production of 

such law enforcement records or 

information could result in the 

following: 

(i) Could reasonably be expected to 

interfere with law enforcement 

proceedings (5 U.S.C. 552(b)(7)(A)); 

(ii) Would deprive a person of the 

right to a fair trial or to an impartial 

adjudication (5 U.S.C. 552(b)(7)(B)); 

(iii) Could reasonably be expected to 

constitute an unwarranted invasion of 

the personal privacy of a living person, 

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77847

or to surviving family members of an 

individual identified in such a record (5 

U.S.C. 552(b)(7)(C)); 

(iv) This exemption also applies when 

the fact of the existence or nonexistence 

of a responsive record would itself 

reveal personally private information, 

and the public interest in disclosure is 

not sufficient to outweigh the privacy 

interest. In this situation, Activities 

shall neither confirm nor deny the 

existence or nonexistence of the record 

being requested. This is a ‘‘Glomar’’

response, and exemption (7)(C) must be 

cited in the response. Additionally, in 

order to ensure personal privacy is not 

violated during referrals, Army 

Activities shall coordinate with other 

Army Activities or DoD Components or 

Federal Agencies before referring a 

record that is exempt under the 

‘‘Glomar’’ concept; 

(v) A ‘‘refusal to confirm or deny’’

response must be used consistently, not 

only when a record exists, but also 

when a record does not exist. 

Otherwise, the pattern of using a ‘‘no 

records’’ response when a record does 

not exist and a ‘‘refusal to confirm or 

deny’’ when a record does exist will 

itself disclose personally private 

information; 

(vi) Refusal to confirm or deny should 

not be used when the person whose 

personal privacy is in jeopardy has 

provided the requester with a waiver of 

his or her privacy rights; or the person 

whose personal privacy is in jeopardy is 

deceased, and the Agency is aware of 

that fact and disclosure would not 

invade the privacy of the deceased’s 

family; 

(vii) Could reasonably be expected to 

disclose the identity of a confidential 

source, including a source within DoD, 

a State, local, or foreign agency or 

authority, or any private institution that 

furnishes the information on a 

confidential basis; and could disclose 

information furnished from a 

confidential source and obtained by a 

criminal law enforcement authority in a 

criminal investigation or by an agency 

conducting a lawful national security 

intelligence investigation (5 U.S.C. 

552(b)(7)(D)); 

(viii) Would disclose techniques and 

procedures for law enforcement 

investigations or prosecutions, or would 

disclose guidelines for law enforcement 

investigations or prosecutions if such 

disclosure could reasonably be expected 

to risk circumvention of the law (5 

U.S.C. 552(b)(7)(E)); or 

(ix) Could reasonably be expected to 

endanger the life or physical safety of 

any individual (5 U.S.C. 552(b)(7)(F)). 

(2) Some examples of exemption 7 

are:

(i) Statements of witnesses and other 

material developed during the course of 

the investigation and all materials 

prepared in connection with related 

Government litigation or adjudicative 

proceedings; 

(ii) The identity of firms or 

individuals being investigated for 

alleged irregularities involving 

contracting with the DoD when no 

indictment has been obtained or any 

civil action filed against them by the 

United States; and 

(iii) Information obtained in 

confidence, expressed or implied, in the 

course of a criminal investigation by a 

criminal law enforcement agency or 

office within an Army Activity or a DoD 

Component, or a lawful national 

security intelligence investigation 

conducted by an authorized agency or 

office within an Army Activity or a DoD 

Component. National security 

intelligence investigations include 

background security investigations and 

those investigations conducted for the 

purpose of obtaining affirmative or 

counterintelligence information. 

(3) The right of individual litigants to 

investigative records currently available 

by law (such as, the Jencks Act, 18 

U.S.C. 3500), is not diminished. 

(4) Excluded from exemption 7 are 

two situations applicable to DoD. 

(Activities considering invoking an 

exclusion based on the following 

scenarios should first consult through 

legal counsel, to the DoJ, Office of 

Information and Privacy (DoJ OIP). 

(i) Whenever a request is made that 

involves access to records or 

information compiled for law 

enforcement purposes, and the 

investigation or proceeding involves a 

possible violation of criminal law where 

there is reason to believe that the subject 

of the investigation or proceeding is 

unaware of its pendency, and the 

disclosure of the existence of the 

records could reasonably be expected to 

interfere with enforcement proceedings, 

Activities may, during only such times 

as that circumstance continues, treat the 

records or information as not subject to 

the FOIA. In such a situation, the 

response to the requester will state that 

no records were found. 

(ii) Whenever informant records 

maintained by a criminal law 

enforcement organization within an 

Army Activity or a DoD Component 

under the informant’s name or personal 

identifier are requested by a third party 

using the informant’s name or personal 

identifier, the Activity may treat the 

records as not subject to the FOIA, 

unless the informant’s status as an 

informant has been officially confirmed. 

If it is determined that the records are 

not subject to 5 U.S.C. 552(b)(7), the 

response to the requester will state that 

no records were found. 

(h) Number 8 (5 U.S.C. 552(b)(8)).

Those contained in or related to 

examination, operation or condition 

reports prepared by, on behalf of, or for 

the use of any agency responsible for the 

regulation or supervision of financial 

institutions. 

(i) Number 9 (5 U.S.C. 552(b)(9)).

Those containing geological and 

geophysical information and data 

(including maps) concerning wells.

Subpart D—For Official Use Only

§ 518.14 General. 

Information that has not been given a 

security classification pursuant to the 

criteria of an Executive Order, but 

which may be withheld from the public 

because disclosure would cause harm to 

an interest protected by one or more 

FOIA exemptions 2 through 9 (see 

Subpart C of this part) shall be 

considered as being for official use only 

(FOUO). No other material shall be 

considered FOUO and FOUO is not 

authorized as an additional form of 

classification to protect national 

security interests. Additional 

information on FOUO and other 

controlled, unclassified information 

may be found in DoD 5200.1–R, 

‘‘Information Security Program’’ or by 

contacting the DA FOIA/PA Office.

Subpart E—Release and Processing 

Procedures

§ 518.15 General provisions. 

(a) Since the policy of the DoD is to 

make the maximum amount of 

information available to the public 

consistent with its other 

responsibilities, written requests for an 

Army record made under the provisions 

of 5 U.S.C. 552(a)(3) of the FOIA may be 

denied only when: 

(1) The record is subject to one or 

more of the exemptions of the FOIA; 

(2) The record has not been described 

well enough to enable the Army 

Activity to locate it with a reasonable 

amount of effort by an employee 

familiar with the files; or 

(3) The requester has failed to comply 

with the procedural requirements, 

including the written agreement to pay 

or payment of any required fee imposed 

by the instructions of the Army Activity 

concerned. When personally 

identifiable information in a record is 

requested by the subject of the record or 

his attorney, notarization of the request, 

or a statement certifying under the 

penalty of perjury that their identity is 

true and correct may be required. 

77848 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

Additionally, written consent of the 

subject of the record is required for 

disclosure from a PA system of records, 

to include the subject’s attorney. 

(4) Release of information under the 

FOIA can have an adverse impact on 

OPSEC. The Army implementing 

directive for OPSEC is AR 530–1. It 

requires that OPSEC points of contact be 

named for all HQDA staff agencies and 

for all commands down to battalion 

level. The FOIA official for the staff 

agency or command will use DA Form 

4948–R to announce the OPSEC/FOIA 

advisor for the command. Persons 

named as OPSEC points of contact will 

be OPSEC/FOIA advisors. Command 

OPSEC/FOIA advisors should 

implement the policies and procedures 

in AR 530–1, consistent with this part 

and with the following considerations: 

(i) Documents or parts of documents 

properly classified in the interest of 

national security must be protected. 

Classified documents may be released in 

response to a FOIA request only under 

AR 380–5, Chapter III. AR 380–5 

provides that if parts of a document are 

not classified and can be segregated 

with reasonable ease, they may be 

released, but parts requiring continued 

protection must be clearly identified. 

(ii) The release of unclassified 

documents could violate national 

security. When this appears possible, 

OPSEC/FOIA advisors should request a 

classification evaluation of the 

document by its proponent under AR 

380–5, paragraphs 2–204, 2–600, 2–800, 

and 2–801. In such cases, other FOIA 

exemptions may also apply.

(iii) A combination of unclassified 

documents, or parts of them, could 

combine to supply information that 

might violate national security if 

released. When this appears possible, 

OPSEC/FOIA advisors should consider 

classifying the combined information 

per AR 380–5, paragraph 2–211. 

(iv) A document or information may 

not be properly or currently classified 

when a FOIA request for it is received. 

In this case, the request may not be 

denied on the grounds that the 

document or information is classified 

except in accordance with Executive 

Order 12958 as amended, Section 1.6(d), 

and AR 380–5, paragraph 2–204, and 

with approval of the Army OGC. 

(5) OPSEC/FOIA advisors will; advise 

persons processing FOIA requests on 

related OPSEC requirements; help 

custodians of requested documents 

prepare requests for classification 

evaluations; and help custodians of 

requested documents identify the parts 

of documents that must remain 

classified under this section and AR 

380–5. 

(6) OPSEC/FOIA advisors do not, by 

their actions, relieve FOIA personnel 

and custodians processing FOIA 

requests of their responsibility to protect 

classified or exempted information. 

(b) The provisions of the FOIA are 

reserved for persons with private 

interests as opposed to U.S. Federal 

Agencies seeking official information. 

Requests from private persons will be 

made in writing, and should clearly 

show all other addressees within the 

Federal Government to which the 

request was also sent. This procedure 

will reduce processing time 

requirements, and ensure better interand intra-agency coordination. 

However, if the requester does not show 

all other addressees to which the 

request was also sent, Army Activities 

shall still process the request. Army 

Activities should encourage requesters 

to send requests by mail, facsimile, or 

by electronic means. Disclosure of 

records to individuals under the FOIA 

is considered public release of 

information, except as provided in this 

paragraph. DA officials will release the 

following records, upon request, to the 

persons specified below, even though 

these records are exempt from release to 

the general public. The statutory 20 

working day limit applies. 

(1) Medical records. Commanders or 

chiefs of medical treatment facilities 

will release information—

(i) On the condition of sick or injured 

patients to the patient’s relatives to the 

extent permitted by law and regulation. 

(ii) That a patient’s condition has 

become critical to the nearest known 

relative or to the person the patient has 

named to be informed in an emergency. 

(iii) That a diagnosis of psychosis has 

been made to the nearest known relative 

or to the person named by the patient. 

(iv) On births, deaths, and cases of 

communicable diseases to local officials 

(if required by local laws). 

(v) Copies of records of present or 

former soldiers, dependents, civilian 

employees, or patients in DA medical 

facilities will be released to the patient 

or to the patient’s representative on 

written request. The attending physician 

can withhold records if he or she thinks 

that release may injure the patient’s 

mental or physical health; in that case, 

copies of records will be released to the 

patient’s next of kin or legal 

representative or to the doctor or dentist 

chosen by the patient. If the patient is 

adjudged insane, or dies, the copies will 

be released, on written request, to the 

patient’s next of kin or legal 

representative. 

(vi) Copies of records may be given to 

a Federal or State hospital or penal 

institution if the person concerned is an 

inmate or patient there. 

(vii) Copies of records or information 

from them may be given to authorized 

representatives of certain agencies. The 

National Academy of Sciences, the 

National Research Council, and other 

accredited agencies are eligible to 

receive such information when they are 

engaged in cooperative studies, with the 

approval of The Surgeon General of the 

Army. However, certain information on 

drug and alcohol use cannot be released. 

AR 600–85 covers the Army’s substance 

abuse program. 

(viii) Copies of pertinent parts of a 

patient’s records can be furnished to the 

staff judge advocate or legal officer of 

the command in connection with the 

Government’s collection of a claim. If 

proper, the legal officer can release this 

information to the tortfeasor’s insurer 

without the patient’s consent.

Note: Information released to third parties 

must be accompanied by a statement of the 

conditions of release. The statement will 

specify that the information not be disclosed 

to other persons except as privileged 

communication between doctor and patient.

(2) Military personnel records.

Military personnel records will be 

released under these conditions:

(i) DA must provide specific 

information about a person’s military 

service (statement of military service) in 

response to a request by that person or 

with that person’s written consent to his 

or her legal representative; 

(ii) Papers relating to applications for, 

designation of beneficiaries under, and 

allotments to pay premiums for, 

National Service Life Insurance or 

Serviceman’s Group Life Insurance will 

be released to the applicant or to the 

insured. If the insured is adjudged 

insane (evidence of an insanity 

judgment must be included) or dies, the 

records will be released, on request, to 

designated beneficiaries or to the next of 

kin; 

(iii) Copies of DA documents that 

record the death of a soldier, a 

dependent, or a civilian employee will 

be released, on request, to that person’s 

next of kin, life insurance carrier, and 

legal representative. A person acting on 

behalf of someone else concerned with 

the death (e.g., the executor of a will) 

may also obtain copies by submitting a 

written request that includes evidence 

of his or her representative capacity. 

That representative may give written 

consent for release to others; or 

(iv) Papers relating to the pay and 

allowances or allotments of a present or 

former soldier will be released to the 

soldier or his or her authorized 

representative. If the soldier is deceased, 

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77849

these papers will be released to the next 

of kin or legal representatives. 

(3) Civilian personnel records.

Civilian Personnel Officers (CPO) with 

custody of papers relating to the pay 

and allowances or allotments of current 

or former civilian employees will 

release them to the employee or his or 

her authorized representative. If the 

employee is deceased, these records will 

be released to the next of kin or legal 

representative. However, a CPO cannot 

release statements of witnesses, medical 

records, or other reports or documents 

pertaining to compensation for injuries 

or death of a DA civilian employee. 

(4) Accused persons. Release of 

information to the public concerning 

accused persons before determination of 

the case. Such release may prejudice the 

accused’s opportunity for a fair and 

impartial determination of the case. The 

following procedures apply: 

(i) The following information 

concerning persons accused of an 

offense may be released by the 

convening authority to public news 

agencies or media. The accused’s name, 

grade or rank, unit, regular assigned 

duties, and other information as allowed 

by AR 25–71, paragraph 3–3a. The 

substance or text of the offense of which 

the person is accused. The identity of 

the apprehending or investigating 

agency and the length or scope of the 

investigation before apprehension. The 

factual circumstances immediately 

surrounding the apprehension, 

including the time and place of 

apprehension, resistance, or pursuit. 

The type and place of custody, if any; 

(ii) Information that will not be 

released. Before evidence has been 

presented in open court, subjective 

observations or any information not 

incontrovertibly factual will not be 

released. Background information or 

information relating to the 

circumstances of an apprehension may 

be prejudicial to the best interests of the 

accused, and will not be released unless 

it serves a law enforcement function. 

The following kinds of information will 

not be released: Observations or 

comments on an accused’s character 

and demeanor, including those at the 

time of apprehension and arrest or 

during pretrial custody. Statements, 

admissions, confessions, or alibis 

attributable to an accused, or the fact of 

refusal or failure of the accused to make 

a statement. Reference to confidential 

sources, investigative techniques and 

procedures, investigator notes, and 

activity files. This includes reference to 

fingerprint tests, polygraph 

examinations, blood tests, firearms 

identification tests, or similar laboratory 

tests or examinations. Statements as to 

the identity, credibility, or testimony of 

prospective witnesses. Statements 

concerning evidence or argument in the 

case, whether or not that evidence or 

argument may be used at the trial. Any 

opinion on the accused’s guilt. Any 

opinion on the possibility of a plea of 

guilty to the offense charged, or of a plea 

to a lesser offense; 

(iii) Other considerations.

Photographing or televising the accused. 

DA personnel should not encourage or 

volunteer assistance to news media in 

photographing or televising an accused 

or suspected person being held or 

transported in military custody. DA 

representatives should not make 

photographs of an accused or suspect 

available unless a law enforcement 

function is served. Requests from news 

media to take photographs during 

courts-martial are governed by AR 360–

1; 

(iv) Fugitives from justice. This 

section does not restrict the release of 

information to enlist public aid in 

apprehending a fugitive from justice; or 

(v) Exceptional cases. Permission to 

release information from military 

personnel records to public news 

agencies or media may be requested 

from The Judge Advocate General 

(TJAG). Requests for information from 

military personnel records will be 

processed according to this part.

(5) Litigation, tort claims, and 

contract disputes. Release of 

information or records under this 

section are subject to the time 

limitations prescribed by the FOIA. The 

requester must be advised of the reasons 

for nonrelease or referral. 

(i) Litigation. Each request for a record 

related to pending litigation involving 

the United States will be referred to the 

staff judge advocate or legal officer of 

the command. He or she will promptly 

inform the Litigation Division, U.S. 

Army Legal Services Agency (USALSA), 

of the substance of the request and the 

content of the record requested. 

(Mailing address: U.S. Army Litigation 

Center, 901 N. Stuart Street, Arlington, 

VA 22203–1837. If information is 

released for use in litigation involving 

the United States, the Chief, Army 

Litigation Division (AR 27–40, para 1–

4d) must be advised of the release. He 

or she will note the release in such 

investigative reports. Information or 

records normally exempted from release 

(i.e., personnel and medical records) 

may be releasable to the judge or court 

concerned, for use in litigation to which 

the United States is not a party. Refer 

such requests to the local staff judge 

advocate or legal officer, who will 

coordinate it with the Litigation Center, 

USALSA. 

(ii) Tort claims. A claimant or a 

claimant’s attorney may request a record 

that relates to a pending administrative 

tort claim filed against the DA. Refer 

such requests promptly to the claims 

approving or settlement authority that 

has monetary jurisdiction over the 

pending claim. These authorities will 

follow AR 27–20. The request may 

concern an incident in which the 

pending claim is not as large as a 

potential claim; in such a case, refer the 

request to the authority that has 

monetary jurisdiction over the potential 

claim. A potential claimant or his or her 

attorney may request information under 

circumstances clearly indicating that it 

will be used to file a tort claim, though 

none has yet been filed. Refer such 

requests to the staff judge advocate or 

legal officer of the command. That 

authority, when subordinate, will 

promptly inform the Chief, U.S. Army 

Claims Service (USACS), of the 

substance of the request and the content 

of the record. (Mailing address: U.S. 

Army Claims Service, ATTN: JACS–

TCC, Fort George G. Meade, MD 20755–

5360. IDA officials who receive requests 

will refer them directly to the Chief, 

USACS. They will also advise the 

requesters of the referral and the basis 

for it. The Chief, USACS, will process 

requests according to this part and AR 

27–20, paragraph 1–10. 

(iii) Contract disputes. Each request 

for a record that relates to a potential 

contract dispute or a dispute that has 

not reached final decision by the 

contracting officer will be treated as a 

request for procurement records and not 

as litigation. However, the officials will 

consider the effect of release on the 

potential dispute. Those officials may 

consult with the USALSA, Contract 

Appeals Division. (Mailing address: U.S. 

Army Legal Services Agency, ATTN: 

JALS–CA, 901 North Stuart Street, 

Arlington, VA 22203. If the request is 

for a record that relates to a pending 

contract appeal to the Armed Services 

Board of Contract Appeals, or to a final 

decision that is still subject to appeal 

(i.e., 90 days have not lapsed after 

receipt of the final decision by the 

contractor) then the request will be: 

Treated as involving a contract dispute; 

and referred to the USALSA, Contract 

Appeals Division. 

(6) Special nuclear material.

Dissemination of unclassified 

information concerning physical 

protection of special nuclear material. 

(i) Unauthorized dissemination of 

unclassified information pertaining to 

security measures, including security 

plans, procedures, and equipment for 

the physical protection of special 

77850 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

nuclear material, is prohibited under 10 

U.S.C. 128. 

(ii) This prohibition shall be applied 

by the Deputy Chief of Staff, G–3 as the 

IDA, to prohibit the dissemination of 

any such information only if and to the 

extent that it is determined that the 

unauthorized dissemination of such 

information could reasonably be 

expected to have a significant adverse 

effect on the health and safety of the 

public or the common defense and 

security by significantly increasing the 

likelihood of illegal production of 

nuclear weapons, theft, diversion, or 

sabotage of special nuclear materials, 

equipment, or facilities. 

(iii) In making such a determination, 

Army personnel may consider what the 

likelihood of an illegal production, 

theft, diversion, or sabotage would be if 

the information proposed to be 

prohibited from dissemination were at 

no time available for dissemination. 

(iv) Army personnel shall exercise the 

foregoing authority to prohibit the 

dissemination of any information 

described so as to apply the minimum 

restrictions needed to protect the health 

and safety of the public or the common 

defense and security, and upon a 

determination that the unauthorized 

dissemination of such information 

could reasonably be expected to result 

in a significant adverse effect on the 

health and safety of the public or the 

common defense and security by 

significantly increasing the likelihood of 

illegal production of nuclear weapons, 

theft, diversion, or sabotage of special 

nuclear materials, equipment, or 

facilities. 

(v) Army employees shall not use this 

authority to withhold information from 

the appropriate committees of Congress. 

(7) Names and duty addresses. Lists 

of names, including telephone 

directories, organizational charts, and/or 

staff directories published by 

installations or activities, and other 

personally identifying information will 

ordinarily be withheld when requested 

under the FOIA. This does not preclude 

a discretionary release of names and 

duty information of personnel who, by 

the nature of their position and duties, 

frequently interact with the public, such 

as general officers, public affairs 

officers, and other personnel designated 

as official command spokespersons. The 

IDA for telephone directories is 

delegated to the DA, FOIA/PA Office. 

Public Affairs Offices may, after careful 

analysis, release information 

determined to have legitimate news 

value, such as notices of personnel 

reassignments to new units or 

installations within the continental 

United States, results of selection/

promotion boards, school graduations/

completions, and awards and similar 

personal achievements. They may 

release the names and duty addresses of 

key officials, if such release is 

determined to be in the interests of 

advancing official community relation’s 

functions.

(c) Requests from government 

officials. Requests from officials of State 

or local Governments for Army Activity 

records shall be considered the same as 

any other requester. Requests from 

members of Congress not seeking 

records on behalf of a Congressional 

Committee, Subcommittee, either House 

sitting as a whole, or made on behalf of 

their constituents shall be considered 

the same as any other requester. 

Requests from officials of foreign 

governments shall be considered the 

same as any other requester; however, 

Army Intelligence elements are 

statutorily prohibited from releasing 

records responsive to requests made by 

any foreign government or a 

representative of a foreign government. 

Requests from officials of foreign 

governments that do not invoke the 

FOIA shall be referred to appropriate 

foreign disclosure channels and the 

requester so notified. 

(d) Privileged release outside of the 

FOIA to U.S. government officials.

Records exempt from release to the 

public under the FOIA may be disclosed 

in accordance with Army regulations to 

agencies of the Federal Government, 

whether legislative, executive, or 

administrative, as follows: 

(1) In response to a request of a 

Committee or Subcommittee of 

Congress, or to either House sitting as a 

whole in accordance with DoDD 5400.4. 

The Army implementing directive is AR 

1–20. Commanders or chiefs will notify 

the Chief of Legislative Liaison of all 

releases of information to members of 

Congress or staffs of congressional 

committees. Organizations that in the 

normal course of business are required 

to provide information to Congress may 

be excepted. Handle requests by 

members of Congress (or staffs of 

congressional committees) for 

inspection of copies of official records 

as follows: 

(i) National security classified 

records, follow AR 380–5; 

(ii) Civilian personnel records, 

members of Congressional Committees, 

Subcommittees, or Joint Committees 

may examine official personnel folders 

to the extent that the subject matter falls 

within their established jurisdictions, as 

permitted by 5 CFR 297.401(i); 

(iii) Information related to 

disciplinary action. This paragraph 

refers to records of trial by courtsmartial; nonjudicial punishment of 

military personnel under the Uniform 

Code of Military Justice, Article 15; 

nonpunitive measures such as 

administrative reprimands and 

admonitions; suspensions of civilian 

employees; and similar documents. If 

DA has specific instructions on the 

request, the following will apply. 

Subordinate commanders will not 

release any information without 

securing the consent of the proper 

installation commander. The 

installation commander may release the 

information unless the request is for a 

classified or ‘‘FOUO’’ document. In that 

case the commander will refer the 

request promptly to the Chief of 

Legislative Liaison for action, including 

the recommendations of the 

transmitting agency and copies of the 

requested records with the referral. 

(iv) Military personnel records. Only 

HQDA can release information from 

these records. Custodians will refer all 

requests from Congress directly and 

promptly to the Chief of Legislative 

Liaison, HQDA, Washington, DC 20310–

1600.

(v) Criminal investigation records.

Only the Commanding General, U.S. 

Army Criminal Investigation Command 

(USACIDC), can release any USACIDCoriginated criminal investigation file. 

For further information, see AR 195–2. 

(vi) Other exempt records.

Commanders or chiefs will refer 

requests for all other categories of 

exempt information directly to the Chief 

of Legislative Liaison. They will include 

a copy of the material requested and, as 

appropriate, recommendations 

concerning release or denial. 

(vii) All other records. The 

commander or chief with custody of the 

records will furnish all other 

information promptly; to other Federal 

Agencies, both executive and 

administrative, as determined by the 

head of an Army Activity or designee; 

or in response to an order of a Federal 

court, Army Activities shall release 

information along with a description of 

the restrictions on its release to the 

public; 

(viii) Disciplinary actions and 

criminal investigations. Requests for 

access to, or information from, the 

records of disciplinary actions or 

criminal investigations will be honored 

if proper credentials are presented. 

Representatives of the Office of 

Personnel Management may be given 

information from personnel files of 

employees actually employed at 

organizations or activities. Each such 

request will be considered on its merits. 

The information released will be the 

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77851

minimum required in connection with 

the investigation being conducted. 

(ix) Other types of requests. All other 

official requests received by DA 

elements from agencies of the executive 

branch (including other military 

departments) will be honored, if there 

are no compelling reasons to the 

contrary. If there are reasons to 

withhold the records, the requests will 

be submitted for determination of the 

propriety of release to the appropriate 

addresses shown in Appendix B of this 

part. 

(2) Army Activities shall inform 

officials receiving records under the 

provisions of this section that those 

records are exempt from public release 

under the FOIA. Army Activities also 

shall advise officials of any special 

handling instructions. Classified 

information is subject to the provisions 

of DoD 5200.1–R, and information 

contained in Privacy Act systems of 

records is subject to DoD 5400.11–R. 

(e) Consultation with affected DoD 

component. (1) When an Army Activity 

receives a FOIA request for a record in 

which an affected Army or DoD 

organization (including a Combatant 

Command) has a clear and substantial 

interest in the subject matter, 

consultation with that affected Army or 

DoD organization is required. As an 

example, where an Army Activity 

receives a request for records related to 

DoD operations in a foreign country, the 

cognizant Combatant Command for the 

area involved in the request shall be 

consulted before a release is made. 

Consultations may be telephonic, 

electronic, or in hard copy. 

(2) The affected Activity shall review 

the circumstances of the request for 

host-nation relations, and provide, 

where appropriate, FOIA processing 

assistance to the responding DoD 

Component regarding release of 

information. Responding Army 

Activities shall provide copies of 

responsive records to the affected DoD 

Component when requested. The 

affected DoD Component shall receive a 

courtesy copy of all releases in such 

circumstances. 

(3) Nothing in § 518.19 shall impede 

the processing of the FOIA request 

initially received by an Army Activity.

§ 518.16 Initial determinations. 

(a) Initial denial authority. The DA 

officials are designated as the Army’s 

only IDAs. Only an IDA, his or her 

delegate, or the Secretary of the Army 

can deny FOIA requests for DA records. 

Each IDA will act on direct and referred 

requests for records within his or her 

area of functional responsibility. (See 

the proper AR in the 10 series for full 

discussions of these areas. Included are 

records created or kept within the IDA’s 

area of responsibility; records retired by, 

or referred to, the IDA’s headquarters or 

office; and records of predecessor 

organizations. If a request involves the 

areas of more than one IDA, the IDA to 

whom the request was originally 

addressed will normally respond to it; 

however, the affected IDAs may consult 

on such requests and agree on 

responsibility for them. IDAs will 

complete all required coordination at 

initial denial level. This includes 

classified records retired to the NARA 

when a mandatory declassification 

review is necessary. Requests and/or 

responsive documents should not be 

sent to the DA FOIA/PA Office for 

initial denial authority or to forward to 

other offices within the DA. 

(b) FOIA requesters may ultimately 

appeal if they are dissatisfied with 

adverse determinations. It is crucial to 

forward complete packets to the IDAs. 

Ensure cover letters list all attachments 

and describe from where the records 

were obtained, i.e., a PA system of 

records (including the applicable 

systems notice), or other. If a FOIA 

action is complicated, include a 

chronology of events to assist the IDA in 

understanding what happened in the 

course of processing the FOIA request. 

If a file does not include documentation 

described below, include the tab, and 

insert a page marked ‘‘not applicable’’ or 

‘‘not used.’’ The order and contents of 

FOIA file attachments follow: (Tab A or 

1) The original FOIA request and 

envelope (if applicable); (Tab B or 2) 

The response letter; (Tab C or 3) Copies 

of all records entirely released, singlesided; (Tab D or 4) Copies of 

administrative processing documents, 

including extension letters and ‘‘no 

records’’ certificates, in chronological 

order; (Tab E or 5) Copies of all records 

partially released or entirely denied, 

single-sided. For partially released 

records, mark in yellow highlighter (or 

other readable highlighter) those 

portions withheld; and (Tab F or 6) 

Legal opinions(s).

(c) The initial determination of 

whether to make a record available or 

grant a fee waiver upon request may be 

made by any suitable official designated 

by the Army Activity in published 

regulations. The presence of the 

marking ‘‘FOUO’’ does not relieve the 

designated official of the responsibility 

to review the requested record for the 

purpose of determining whether an 

exemption under this part is applicable 

and should be invoked. IDAs may 

delegate all or part of their authority to 

a division chief under its supervision 

within the Agency in the grade of 05/

civilian equivalent. Requests for 

delegation authority below this level 

must be submitted, after coordination, 

to the DA FOIA/PA Office, with detailed 

justification, for approval. Such 

delegations must not slow FOIA actions. 

If an IDA’s delegate denies a FOIA or fee 

waiver request, the delegate must 

clearly state that he or she is acting for 

the IDA and identify the IDA by name 

and position in the written response to 

the requester. IDAs will send only the 

names, offices, and telephone numbers 

of their delegates to the DA, FOIA/PA 

Office. IDAs will keep this information 

current. 

(d) The officials designated by Army 

Activities to make initial determinations 

should consult with public affairs 

officers (PAOs) to become familiar with 

subject matters that are considered to be 

newsworthy, and advise PAOs of all 

requests from news media 

representatives. In addition, the officials 

should inform PAOs in advance when 

they intend to withhold or partially 

withhold a record, if it appears that the 

withholding action may be challenged 

in the media. A FOIA release or denial 

action, appeal, or court review may 

generate public or press interest. In such 

case, the IDA (or delegate) should 

consult the Chief of Public Affairs or the 

command or organization PAO. The IDA 

should inform the PAO contacted of the 

issue and obtain advice and 

recommendations on handling its public 

affairs aspect. Any advice or 

recommendations requested or obtained 

should be limited to this aspect. 

Coordination must be completed within 

the statutory 20 working day FOIA 

response limit. (The point of contact for 

the Army Chief of Public Affairs is 

HQDA (SAPA–OSR), Washington D.C. 

20310–1500). If the request involves 

actual or potential litigation against the 

United States, release must be 

coordinated with The Judge Advocate 

General (TJAG). 

(e) The following officials are 

designated IDAs for the areas of 

responsibility outlined below: 

(1) The Administrative Assistant to 

the Secretary of the Army is authorized 

to act for the Secretary of the Army on 

requests for all records maintained by 

the Office of the Secretary of the Army 

and its serviced activities as well as 

requests requiring the personal attention 

of the Secretary of the Army. This also 

includes civilian Equal Employment 

Opportunity (EEO) actions. (See DCS, 

G–1 for military Equal Opportunity (EO) 

actions). The Administrative Assistant 

to the Secretary of the Army has 

delegated its authority to the Chief 

Attorney and Legal Services Directorate, 

U.S. Army Resources & Programs 

77852 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

Agency. (See DCS, G1 for military Equal 

Opportunity (EO) actions) 

(2) The Assistant Secretary of the 

Army (Financial Management and 

Comptroller) is authorized to act on 

requests for finance and accounting 

records. Requests for CONUS finance 

and accounting records should be 

referred to the Defense Finance and 

Accounting Service (DFAS). The Chief 

Attorney and Legal Services Directorate, 

acts on requests for non-finance and 

accounting records of the Assistant 

Secretary of the Army (Financial 

Management and Comptroller). 

(3) The Assistant Secretary of the 

Army (Acquisition, Logistics, & 

Technology) is authorized to act on 

requests for procurement records other 

than those under the purview of the 

Chief of Engineers and the Commander, 

U.S. Army Materiel Command. The 

Chief Attorney and Legal Services 

Directorate, acts on requests for nonprocurement records of the Assistant 

Secretary of the Army (Acquisition, 

Logistics and Technology). 

(4) The Deputy Assistant Secretary of 

the Army (Civilian Personnel Policy)/

Director of Civilian Personnel, Office of 

the Assistant Secretary of the Army 

(Manpower and Reserve Affairs) is 

authorized to act on requests for civilian 

personnel records, personnel 

administration and other civilian 

personnel matters, except for EEO 

(civilian) matters which will be acted on 

by the Administrative Assistant to the 

Secretary of the Army. The Deputy 

Assistant Secretary of the Army 

(Civilian Personnel Policy)/Director of 

Civilian Personnel has delegated this 

authority to the Chief, Policy and 

Program Development Division. 

(5) The Chief Information Officer, G–

6 is authorized to act on requests for 

records pertaining to Army Information 

Technology, command, control 

communications and computer systems 

and the Information Resources 

Management Program (automation, 

telecommunications, visual information, 

records management, publications and 

printing). 

(6) The Inspector General is 

authorized to act on requests for all 

Inspector General Records. 

(7) The Auditor General is authorized 

to act on requests for records relating to 

audits done by the U.S. Army Audit 

Agency under AR 10–2. This includes 

requests for related records developed 

by the Audit Agency. 

(8) The Director of the Army Staff is 

authorized to act on requests for all 

records of the Chief of Staff and its Field 

Operating Agencies. The Director of the 

Army Staff has delegated its authority to 

the Chief Attorney and Legal Services 

Directorate, U.S. Army Resources & 

Programs Agency. The Chief Attorney 

and Legal Services Director, U.S. Army 

Resources & Programs Agency acts on 

requests for records of the Chief of Staff 

and its Field Operating Agencies. (See 

TJAG for the (GOMO) actions).

(9) The Deputy Chief of Staff, G–3 is 

authorized to act on requests for records 

relating to International Affairs policy, 

planning, integration and assessments, 

strategy formulation, force development, 

individual and unit training policy, 

strategic and tactical command and 

control systems, nuclear and chemical 

matters, use of DA forces. 

(10) The Deputy Chief of Staff, G–8 is 

authorized to act on requests for records 

relating to programming, material 

integration and externally directed 

reviews. 

(11) The Office of the Deputy Chief of 

Staff, G–1 is authorized to act on the 

following records: Personnel board 

actions, Equal Opportunity (military) 

and sexual harassment, health 

promotions, physical fitness and well 

being, command and leadership policy 

records, HIV and suicide policy, 

substance abuse programs except for 

individual treatment records which are 

the responsibility of the Surgeon 

General, retiree benefits, services, and 

programs, (excluded are individual 

personnel records of retired military 

personnel, which are the responsibility 

of the U.S. Army Human Resources 

Command-St. Louis (AHRC–STL), DA 

dealings with Veterans Affairs, U.S. 

Soldier’s and Airmen’s Home, retention, 

promotion, and separation; recruiting 

and MOS policy issues, personnel travel 

and transportation entitlements, 

military strength and statistics, The 

Army Librarian, demographics, and 

Manprint. 

(12) The Deputy Chief of Staff, G–4 is 

authorized to act on requests for records 

relating to DA logistical requirements 

and determinations, policy concerning 

materiel maintenance and use, 

equipment standards, and logistical 

readiness. 

(13) The Chief of Engineers is 

authorized to act on requests for records 

involving civil works, military 

construction, engineer procurement, 

and ecology; and the records of the U.S. 

Army Engineer divisions, districts, 

laboratories, and field operating 

agencies. 

(14) The Surgeon General, 

Commander, U.S. Army Medical 

Command, is authorized to act on 

requests for medical research and 

development records, and the medical 

records of active duty military 

personnel, dependents, and persons 

given physical examination or treatment 

at DA medical facilities, to include 

alcohol and drug treatment/test records. 

(15) The Chief of Chaplains is 

authorized to act on requests for records 

involving ecclesiastical relationships, 

rites performed by DA chaplains, and 

nonprivileged communications relating 

to clergy and active duty chaplains’

military personnel files. 

(16) The Judge Advocate General is 

authorized to act on requests for records 

relating to claims, courts-martial, legal 

services, administrative investigations, 

and similar legal records. TJAG is also 

authorized to act on requests for the 

GOMO actions and records described 

elsewhere in this regulation, especially 

if those records relate to litigation in 

which the United States has an interest. 

In addition, TJAG is authorized to act on 

requests for records that are not within 

the functional areas of responsibility of 

any other IDA, including, but not 

limited to requests for records for 

Commands, and activities. 

(17) The Chief, National Guard 

Bureau, is authorized to act on requests 

for all personnel and medical records of 

retired, separated, discharged, deceased, 

and active Army National Guard 

military personnel, including technician 

personnel, unless such records clearly 

fall within another IDA’s responsibility. 

This authority includes, but is not 

limited to, National Guard organization 

and training files; plans, operations, and 

readiness files, policy files, historical 

files, files relating to National Guard 

military support, drug interdiction, and 

civil disturbances; construction, civil 

works, and ecology records dealing with 

armories, facilities within the States, 

ranges, etc.; Equal Opportunity 

investigative records; aviation program 

records and financial records dealing 

with personnel, operation and 

maintenance, and equipment budgets. 

(18) The Chief of Army Reserve is 

authorized to act on requests for all 

personnel and medical records of 

retired, separated, discharged, deceased, 

and reserve component military 

personnel, and all U.S. Army Reserve 

(USAR) records, unless such records 

clearly fall within another IDA’s 

responsibility. Records under the 

responsibility of the Chief of Army 

Reserve include records relating to 

USAR plans, policies, and operations; 

changes in the organizational status of 

USAR units; mobilization and 

demobilization policies, active duty 

tours, and the Individual Mobilization 

Augmentation program. 

(19) The Commander, United States 

Army Materiel Command (AMC) is 

authorized to act on requests for the 

records of AMC headquarters and to 

subordinate commands, units, and 

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77853

activities that relate to procurement, 

logistics, research and development, 

and supply and maintenance 

operations.

(20) The Provost Marshal General 

(PMG) is authorized to act on all 

requests for provost marshal activities 

and law enforcement functions for the 

army, all matters relating to police 

intelligence, physical security, criminal 

investigations, corrections and 

internment (to include confinement and 

correctional programs for U.S. prisoners, 

criminal investigations, provost marshal 

activities, and military police support. 

The PMG is responsible for the Office of 

Security, Force Protection, and Law 

Enforcement Division and is the 

functional proponent for AR 190-series 

(Military Police) and 195-series 

(Criminal Investigation), AR 630–10 

Absent Without Leave, Desertion, and 

Administration of Personnel Involved in 

Civilian Court Proceedings, and AR 

633–30, Military Sentences to 

Confinement. 

(21) The Commander, U.S. Army 

Criminal Investigation Command 

(USACIDC), is authorized to act on 

requests for criminal investigative 

records of USACIDC headquarters, its 

subordinate activities, and military 

police reports. This includes criminal 

investigation records, investigation-inprogress records, and all military police 

records and reports. 

(22) The Commander, United States 

Army Human Resources Command 

(USAHRC), is authorized to act on 

requests for military personnel files 

relating to active duty (other than those 

of reserve and retired personnel) 

military personnel matters, personnel 

locator, physical disability 

determinations, and other military 

personnel administration records; 

records relating to military casualty and 

memorialization activities; heraldic 

activities, voting, records relating to 

identification cards, naturalization and 

citizenship, commercial solicitation, 

Military Postal Service Agency and 

Army postal and unofficial mail service. 

(23) The Commander, USARC-StL has 

been delegated authority to act on behalf 

of the USAHRC for requests concerning 

all personnel and medical records of 

retired, separated, discharged, deceased, 

and reserve component military 

personnel, unless such records clearly 

fall within another IDA’s authority. The 

authority does not include records 

relating to USAR plans, policies, and 

operations; changes in the 

organizational status of USAR units, 

mobilization and demobilization 

policies; active duty tours, and the 

individual mobilization augmentation 

program. 

(24) The Assistant Chief of Staff for 

Installation Management (ACSIM) is 

authorized to act on requests for records 

relating to planning, programming, 

execution and operation of Army 

installations. This includes base 

realignment and closure activities, 

environmental activities other than 

litigation, facilities and housing 

activities, and installation management 

support activities. 

(25) The Commander, United States 

Army Intelligence and Security 

Command, is authorized to act on 

requests for intelligence and security 

records, foreign scientific and 

technological records, intelligence 

training, intelligence threat assessments, 

and foreign liaison information. 

(26) The Commander, U.S. Army 

Safety Center, is authorized to act on 

requests for Army safety records. 

(27) The Commander, United States 

Army Test and Evaluation Command 

(ATEC), is authorized to act on requests 

for the records of ATEC headquarters, 

its subordinate commands, units, and 

activities that relate to test and 

evaluation operations. 

(28) The General Counsel, Army and 

Air Force Exchange Service (AAFES), is 

authorized to act on requests for AAFES 

records, under AR 60–20/AFR 147–14. 

(29) Special IDA authority for timeevent related records may be designated 

on a case-by-case basis. These will be 

published in the Federal Register. You 

may contact the DA, FOIA/PA Office to 

obtain current information on special 

delegations. 

(f) Reasons for not releasing a record.

The following are reasons for not 

complying with a request for a record 

under 5 U.S.C. 552(a)(3). 

(1) No records. A reasonable search of 

files failed to identify responsive 

records. The records custodian will 

prepare a detailed no records certificate. 

This certificate must include, at a 

minimum, what areas or offices were 

searched and how the search was 

conducted (manually, by computer, 

etc.). The certificate will be signed by 

the records custodian and will include 

his or her grade and title. The original 

certificate will be forwarded to the IDA. 

Preprinted ‘‘check-the-block’’ or ‘‘fill-inthe-blank’’ no records certificates are 

not authorized. 

(2) Referrals. The request is 

transferred to another Army Activity or 

DoD Component, or to another Federal 

Agency. 

(3) Request withdrawn. The request is 

withdrawn by the requester. 

(4) Fee-related reason. The requester 

is unwilling to pay fees associated with 

a request; the requester is past due in 

the payment of fees from a previous 

FOIA request; or the requester disagrees 

with the fee estimate.

(5) Records not reasonably described.

A record has not been described with 

sufficient particularity to enable the 

Army or DoD Component to locate it by 

conducting a reasonable search. 

(6) Not a proper FOIA request for 

some other reason. The requester has 

failed unreasonably to comply with 

procedural requirements, other than feerelated, imposed by this part or Army 

Activity supplementing regulations. 

(7) Not an agency record. The 

information requested is not a record 

within the meaning of the FOIA and this 

part. 

(8) Duplicate request. The request is a 

duplicate request (e.g., a requester asks 

for the same information more than 

once). This includes identical requests 

received via different means (e.g., 

electronic mail, facsimile, mail, and 

courier) at the same or different times. 

(9) Other (specify). Any other reason 

a requester does not comply with 

published rules other than those 

outlined in paragraphs (f) (1) through (8) 

of this section. 

(10) Partial or total denial. The record 

is denied in whole or in part in 

accordance with procedures set forth in 

the FOIA. 

(g) Denial tests. To deny a requested 

record that is in the possession and 

control of an Army Activity, it must be 

determined that the record is exempt 

under one or more of the exemptions of 

the FOIA. An outline of the FOIA’s 

exemptions is contained in Subpart C of 

this part. 

(h) Reasonably segregable portions.

Although portions of some records may 

be denied, the remaining reasonably 

segregable portions must be released to 

the requester when it reasonably can be 

assumed that a skillful and 

knowledgeable person could not 

reconstruct the excised information. 

Unless indicating the extent of the 

deletion would harm an interest 

protected by an exemption, the amount 

of deleted information shall be 

indicated on the released portion of 

paper records by use of brackets or 

darkened areas indicating removal of 

information. In no case shall the deleted 

areas be left ‘‘white’’ without the use of 

brackets to show the bounds of deleted 

information. In the case of electronic 

deletion, or deletion in audiovisual or 

microfiche records, if technically 

feasible, the amount of redacted 

information shall be indicated at the 

place in the record such deletion was 

made, unless including the indication 

would harm an interest protected by the 

exemption under which the deletion is 

made. This may be done by use of 

77854 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

brackets, shaded areas, or some other 

identifiable technique that will clearly 

show the limits of the deleted 

information. When a record is denied in 

whole, the response advising the 

requester of that determination will 

specifically state that it is not reasonable 

to segregate portions of the record for 

release. 

(i) Response to requester. Whenever 

possible, initial determinations to 

release or deny a record normally shall 

be made and the decision reported to 

the requester within 20 working days 

after receipt of a proper request by the 

official designated to respond. When an 

Army Activity has a significant number 

of pending requests which prevent a 

response determination within the 20 

working day period, the requester shall 

be so notified in an interim response, 

and advised whether their request 

qualifies for the fast track or slow track 

within the Army Activity’s multitrack 

processing system. Requesters who do 

not meet the criteria for fast track 

processing shall be given the 

opportunity to limit the scope of their 

request in order to qualify for fast track 

processing. 

(1) When a decision is made to release 

a record, a copy should be made 

available promptly to the requester once 

he has complied with preliminary 

procedural requirements. 

(2) When a request for a record is 

denied in whole or in part, the official 

designated to respond shall inform the 

requester in writing of the name and 

title or position of the official who made 

the determination, and shall explain to 

the requester the basis for the 

determination in sufficient detail to 

permit the requester to make a decision 

concerning appeal. The requester 

specifically shall be informed of the 

exemptions on which the denial is 

based, inclusive of a brief statement 

describing what the exemption(s) cover. 

When the initial denial is based in 

whole or in part on a security 

classification, the explanation should 

include a summary of the applicable 

Executive Order criteria for 

classification, as well as an explanation, 

to the extent reasonably feasible, of how 

those criteria apply to the particular 

record in question. The requester shall 

also be advised of the opportunity and 

procedures for appealing an unfavorable 

determination to a higher final authority 

within the Army Activity. The IDA will 

inform the requester of his or her right 

to appeal, in whole or part, the denial 

of the FOIA or fee waiver request and 

that the appeal must be sent through the 

IDA to the Secretary of the Army 

(ATTN: OGC). 

(3) The final response to the requester 

should contain information concerning 

the fee status of the request, consistent 

with the provisions of Subpart F, of this 

part. When a requester is assessed fees 

for processing a request, the requester’s 

fee category shall be specified in the 

response letter. Activities also shall 

provide the requester with a complete 

cost breakdown (e.g., 115 pages of office 

reproduction at $0.15 per page; 5 

minutes of computer search time at 

$43.50 per minute, 3 hours of 

professional level search at $44 per 

hour, etc.) in the response letter.

(4) The explanation of the substantive 

basis for a denial shall include specific 

citation of the statutory exemption 

applied under provisions of this part; 

e.g., 5 U.S.C. 552 (b)(1). Merely referring 

to a classification; to a ‘‘FOUO’’ marking 

on the requested record; or to this part 

or an Army Activity’s regulation does 

not constitute a proper citation or 

explanation of the basis for invoking an 

exemption. 

(5) When the time for response 

becomes an issue, the official 

responsible for replying shall 

acknowledge to the requester the date of 

the receipt of the request. 

(6) When denying a request for 

records, in whole or in part, an Army 

Activity shall make a reasonable effort 

to estimate the volume of the records 

denied and provide this estimate to the 

requester, unless providing such an 

estimate would harm an interest 

protected by an exemption of the FOIA. 

This estimate should be in number of 

pages or in some other reasonable form 

of estimation, unless the volume is 

otherwise indicated through deletions 

on records disclosed in part. 

(7) When denying a request for 

records in accordance with a statute 

qualifying as a FOIA exemption 3 

statute, Army Activities shall, in 

addition to stating the particular statute 

relied upon to deny the information, 

also state whether a court has upheld 

the decision to withhold the 

information under the particular statute, 

and a concise description of the scope 

of the information being withheld. 

(j) Extension of time. In unusual 

circumstances, when additional time is 

needed to respond to the initial request, 

the Army Activity shall acknowledge 

the request in writing within 20 working 

days, describe the circumstances 

requiring the delay, and indicate the 

anticipated date for a substantive 

response that may not exceed 10 

additional working days, except as 

provided below: 

(1) With respect to a request for which 

a written notice has extended the time 

limits by 10 additional working days, 

and the Activity determines that it 

cannot make a response determination 

within that additional 10 working day 

period, the requester shall be notified 

and provided an opportunity to limit 

the scope of the request so that it may 

be processed within the extended time 

limit, or an opportunity to arrange an 

alternative time frame for processing the 

request or a modified request. Refusal 

by the requester to reasonably modify 

the request or arrange for an alternative 

time frame shall be considered a factor 

in determining whether exceptional 

circumstances exist with respect to 

Army Activity’s request backlogs. 

Exceptional circumstances do not 

include a delay that results from 

predictable activity backlogs, unless the 

Army Activity demonstrates reasonable 

progress in reducing its backlog. 

(2) Unusual circumstances that may 

justify delay are: the need to search for 

and collect the requested records from 

other facilities that are separate from the 

office determined responsible for a 

release or denial decision on the 

requested information; the need to 

search for, collect, and appropriately 

examine a voluminous amount of 

separate and distinct records which are 

requested in a single request; and the 

need for consultation, which shall be 

conducted with all practicable speed, 

with other agencies having a substantial 

interest in the determination of the 

request, or among two or more Army 

Activities or DoD Components having a 

substantial subject-matter interest in the 

request. 

(3) Army Activities may aggregate 

certain requests by the same requester, 

or by a group of requesters acting in 

concert, if the Army Activity reasonably 

believes that such requests actually 

constitute a single request, which would 

otherwise satisfy the unusual 

circumstances set forth in paragraph 

(j)(2) of this section, and the requests 

involve clearly related matters. Multiple 

requests involving unrelated matters 

shall not be aggregated. If the requests 

are aggregated under these conditions, 

the requester or requesters shall be so 

notified. 

(4) In cases where the statutory time 

limits cannot be met and no informal 

extension of time has been agreed to, the 

inability to process any part of the 

request within the specified time should 

be explained to the requester with a 

request that he agree to await a 

substantive response by an anticipated 

date. It should be made clear that any 

such agreement does not prejudice the 

right of the requester to appeal the 

initial decision after it is made. Army 

Activities are reminded that the 

requester still retains the right to treat 

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77855

this delay as a defacto denial with full 

administrative remedies. Only the 

responsible IDA can extend it, and the 

IDA must first coordinate with the OGC.

(5) As an alternative to the taking of 

formal extensions of time the 

negotiation by the cognizant FOIA 

coordinating office of informal 

extensions in time with requesters is 

encouraged where appropriate. 

(k) Misdirected requests. Misdirected 

requests shall be forwarded promptly to 

the Army Activity or other Federal 

Agency with the responsibility for the 

records requested. The period allowed 

for responding to the request 

misdirected by the requester shall not 

begin until the request is received by the 

Army Activity that manages the records 

requested. 

(l) Records of non-U.S. Government 

source. When a request is received for 

a record that falls under exemption 4, 

that was obtained from a non-U.S. 

Government source, or for a record 

containing information clearly 

identified as having been provided by a 

non-U.S. Government source, the source 

of the record or information [also known 

as ‘‘the submitter’’ for matters pertaining 

to proprietary data under 5 U.S.C. 552, 

FOIA, Exemption (b)(4)] and E.O. 

12600], shall be notified promptly of 

that request and afforded reasonable 

time (14 calendar days) to present any 

objections concerning the release, 

unless it is clear that there can be no 

valid basis for objection. This practice is 

required for those FOIA requests for 

data not deemed clearly exempt from 

disclosure under exemption (b)(4) of 5 

U.S.C. 552, The FOIA. If, for example, 

the record or information was provided 

with actual or presumptive knowledge 

of the non-U.S. Government source and 

established that it would be made 

available to the public upon request, 

there is no obligation to notify the 

source. Any objections shall be 

evaluated. The final decision to disclose 

information claimed to be exempt under 

exemption (b)(4) shall be made by an 

official equivalent in rank to the official 

who would make the decision to 

withhold that information under FOIA. 

When a substantial issue has been 

raised, the Army Activity may seek 

additional information from the source 

of the information and afford the source 

and requester reasonable opportunities 

to present their arguments on the legal 

and substantive issues involved prior to 

making an agency determination. When 

the source seeks a restraining order or 

take court action to prevent release of 

the record or information, the requester 

shall be notified, and action on the 

request normally shall not be taken until 

after the outcome of that court action is 

known. When the requester brings court 

action to compel disclosure, the 

submitter shall be promptly notified of 

this action. 

(1) If the submitted information is a 

proposal in response to a solicitation for 

a competitive proposal, and the 

proposal is in the possession and 

control of DA (see 10 U.S.C. 2305(g)), 

the proposal shall not be disclosed, and 

no submitter notification and 

subsequent analysis is required. The 

proposal shall be withheld from public 

disclosure pursuant to 10 U.S.C. 2305(g) 

and exemption (b)(3) of the FOIA. This 

statute does not apply to bids, 

unsolicited proposals, or any proposal 

that is set forth or incorporated by 

reference in a contract between an Army 

Activity and the offeror that submitted 

the proposal. In such situations, normal 

submitter notice shall be conducted 

except for sealed bids that are opened 

and read to the public. The term, 

proposal, means information contained 

in or originating from any proposal, 

including a technical, management, or 

cost proposal submitted by an offeror in 

response to solicitation for a 

competitive proposal, but does not 

include an offeror’s name or total price 

or unit prices when set forth in a record 

other than the proposal itself. Submitter 

notice, and analysis as appropriate, are 

required for exemption (b)(4) matters 

that are not specifically incorporated in 

10 U.S.C. 2305(g). 

(2) If the record or information was 

submitted on a strictly voluntary basis, 

absent any exercised authority that 

prescribes criteria for submission, and 

after consultation with the submitter, it 

is absolutely clear that the record or 

information would customarily not be 

released to the public, the submitter 

need not be notified. Examples of 

exercised authorities prescribing criteria 

for submission are statutes, Executive 

Orders, regulations, invitations for bids, 

requests for proposals, and contracts. 

Records or information submitted under 

these authorities are not voluntary in 

nature. When it is not clear whether the 

information was submitted on a 

voluntary basis, absent any exercised 

authority, and whether it would 

customarily be released to the public by 

the submitter, notify the submitter and 

ask that it describe its treatment of the 

information, and render an objective 

evaluation. If the decision is made to 

release the information over the 

objection of the submitter, notify the 

submitter and afford the necessary time 

to allow the submitter to seek a 

restraining order, or take court action to 

prevent release of the record or 

information. 

(3) The coordination provisions of 

this section also apply to any non-U.S. 

Government record in the possession 

and control of the Army or DoD from 

multi-national organizations, such as 

the North Atlantic Treaty Organization 

(NATO), United Nations Commands, the 

North American Aerospace Defense 

Command (NORAD), the Inter-American 

Defense Board, or foreign governments. 

Coordination with foreign governments 

under the provisions of this section may 

be made through Department of State, or 

the specific foreign embassy. 

(m) File of initial denials. Copies of 

all initial withholdings or denials shall 

be maintained by each Army Activity in 

a form suitable for rapid retrieval, 

periodic statistical compilation, and 

management evaluation. Records denied 

for any of the reasons contained in 

§ 518.20 shall be maintained for a 

period of six years to meet the statute 

of limitations requirement. Records will 

be maintained in accordance with AR 

25–400–2. 

(n) Special mail services. Army 

Activities are authorized to use 

registered mail, certified mail, 

certificates of mailing, and return 

receipts. However, their use should be 

limited to instances where it appears 

advisable to establish proof of dispatch 

or receipt of FOIA correspondence. The 

requester shall be notified that they are 

responsible for the full costs of special 

services. 

(o) Receipt accounts. The Treasurer of 

the United States has established two 

accounts for FOIA receipts, and all 

money orders or checks remitting FOIA 

fees should be made payable to the U.S. 

Treasurer. These accounts shall be used 

for depositing all FOIA receipts, except 

receipts for industrially funded and 

non-appropriated funded activities. 

Components are reminded that the 

below account numbers must be 

preceded by the appropriate disbursing 

office two digit prefix. Industrially 

funded and non-appropriated funded 

activity FOIA receipts shall be 

deposited to the applicable fund.

(1) Receipt Account 3210 Sale of 

Publications and Reproductions, FOIA. 

This account shall be used when 

depositing funds received from 

providing existing publications and 

forms that meet the Receipt Account 

Series description found in Federal 

Account Symbols and Titles. Deliver 

collections within 30 calendar days to 

the servicing finance and accounting 

office. 

(2) Receipt Account 3210 Fees and 

Other Charges for Services, FOIA. This 

account is used to deposit search fees, 

fees for duplicating and reviewing (in 

the case of commercial requesters) 

77856 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

records to satisfy requests that could not 

be filled with existing publications or 

forms.

§ 518.17 Appeals. 

(a) General. If the official designated 

by the Army Activity to make initial 

determinations on requests for records 

declines to provide a record because the 

official considers it exempt under one or 

more of the exemptions of the FOIA, 

that decision may be appealed by the 

requester, in writing, to a designated 

appellate authority. The appeal should 

be accompanied by a copy of the letter 

denying the initial request. Such 

appeals should contain the basis for 

disagreement with the initial refusal. 

Appeal procedures also apply to the 

disapproval of a fee category claim by a 

requester, disapproval of a request for 

waiver or reduction of fees, disputes 

regarding fee estimates, review on an 

expedited basis a determination not to 

grant expedited access to agency 

records, for no record determinations 

when the requester considers such 

responses adverse in nature, not 

providing a response determination to a 

FOIA request within the statutory time 

limits, or any determination found to be 

adverse in nature by the requester. Upon 

an IDA’s receipt of a no records 

determination appeal, the IDA will 

direct the records custodian to conduct 

another records search and certify, in 

writing, that is has made a good faith 

effort that reasonably could be expected 

to produce the information requested. If 

no records are again found, the original 

no records certificate will be forwarded 

to the IDA for inclusion in the appeals 

packet. When denials have been made 

under the provisions of the FOIA and 

the PA, and the denied information is 

contained in a PA system of records, 

appeals shall be processed under both 

the FOIA and the PA. If the denied 

information is not maintained in a PA 

system of records, the appeal shall be 

processed under the FOIA. If a request 

is merely misaddressed, and the 

receiving Army Activity or DoD 

Component simply advises the requester 

of such and refers the request to the 

appropriate Army or DoD Component, 

this shall not be considered a no record 

determination. 

(1) Appeals of adverse determinations 

from denial of records or ‘‘no record’’

determination, received by Army IDAs 

must be forwarded through the denying 

IDA to the Secretary of the Army 

(ATTN: OGC). On receipt of an appeal, 

the IDA will—

(i) Send the appeal to the Office of the 

Secretary of the Army, OGC, together 

with a copy of the documents that are 

the subject of the appeal. The cover 

letter will list all attachments and 

describe from where the records were 

obtained, i.e., a PA system of records 

(including the applicable systems 

notice, or other. If a file does not 

include documentation described 

below, include the tab, and insert a page 

marked ‘‘not applicable’’ or ‘‘not used.’’

The order and contents of FOIA file 

attachments follow: (Tab A or 1) The 

original FOIA request and envelope (if 

applicable); (Tab B or 2) The IDA denial 

letter; (Tab C or 3) Copies of all records 

entirely released, single-sided; (Tab D or 

4) Copies of administrative processing 

documents, including extension letters 

and ‘‘no records’’ certificates, in 

chronological order; (Tab E or 5) Copies 

of all records partially denied or 

completely denied, single-sided. For 

records partially denied, mark in yellow 

highlighter (or other readable 

highlighter) those portions withheld; 

and (Tab F or 6) Legal opinions(s); and 

(ii) Assist the OGC as requested 

during his or her consideration of the 

appeal. 

(2) Appeals of denial of records made 

by the OGC, AAFES, shall be made to 

the Secretary of the Army when the 

Commander, AAFES, is an Army officer. 

Appeals of denial of records made by 

the OGC, AAFES, shall be made to the 

Secretary of the Air Force when the 

Commander is an Air Force officer. 

(b) Time of receipt. A FOIA appeal 

has been received by an Army Activity 

when it reaches the office of an 

appellate authority having jurisdiction, 

the OGC. Misdirected appeals should be 

referred expeditiously to the OGC. 

(c) Time limits. The requester shall be 

advised to file an appeal so that it is 

postmarked no later than 60 calendar 

days after the date of the initial denial 

letter. If no appeal is received, or if the 

appeal is postmarked after the 

conclusion of this 60-day period, the 

case may be considered closed. 

However, exceptions to the above may 

be considered on a case-by-case basis. In 

cases where the requester is provided 

several incremental determinations for a 

single request, the time for the appeal 

shall not begin until the date of the final 

response. Records that are denied shall 

be retained for a period of six years to 

meet the statute of limitations 

requirement. Final determinations on 

appeals normally shall be made within 

20 working days after receipt. When an 

Army Activity has a significant number 

of appeals preventing a response 

determination within 20 working days, 

the appeals shall be processed in a 

multitrack processing system, based at a 

minimum, on the three processing 

tracks established for initial requests. 

All of the provisions of the FOIA apply 

also to appeals of initial determinations, 

to include establishing additional 

processing queues as needed. 

(d) Delay in responding to an appeal.

If additional time is needed due to the 

unusual circumstances the final 

decision may be delayed for the number 

of working days (not to exceed 10), that 

were not used as additional time for 

responding to the initial request. If a 

determination cannot be made and the 

requester notified within 20 working 

days, the appellate authority shall 

acknowledge to the requester, in 

writing, the date of receipt of the appeal, 

the circumstances surrounding the 

delay, and the anticipated date for 

substantive response. Requesters shall 

be advised that, if the delay exceeds the 

statutory extension provision or is for 

reasons other than the unusual 

circumstances they may consider their 

administrative remedies exhausted. 

They may, however, without 

prejudicing their right of judicial 

remedy, await a substantive response. 

The Army Activity will continue to 

process the case expeditiously. 

(e) Response to the requester. When 

the appellate authority (OGC) makes a 

final determination to release all or a 

portion of records withheld by an IDA, 

a written response and a copy of the 

records so released should be forwarded 

promptly to the requester after 

compliance with any preliminary 

procedural requirements, such as 

payment of fees. Final refusal of an 

appeal must be made in writing by the 

appellate authority or by a designated 

representative. The response, at a 

minimum, shall include the following: 

(1) The basis for the refusal shall be 

explained to the requester in writing, 

both with regard to the applicable 

statutory exemption or exemptions 

invoked under provisions of the FOIA, 

and with respect to other appeal 

matters; 

(2) When the final refusal is based in 

whole or in part on a security 

classification, the explanation shall 

include a determination that the record 

meets the cited criteria and rationale of 

the governing Executive Order, and that 

this determination is based on a 

declassification review, with the 

explanation of how that review 

confirmed the continuing validity of the 

security classification; 

(3) The final denial shall include the 

name and title or position of the official 

responsible for the denial; 

(4) In the case of appeals for total 

denial of records, the response shall 

advise the requester that the information 

being denied does not contain 

meaningful portions that are reasonably 

segregable; 

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(5) When the denial is based upon an 

exemption 3 statute, the response, in 

addition to citing the statute relied upon 

to deny the information, shall state 

whether a court has upheld the decision 

to withhold the information under the 

statute, and shall contain a concise 

description of the scope of the 

information withheld; or

(6) The response shall advise the 

requester of the right to judicial review. 

(f) Consultation. Final refusal 

involving issues not previously resolved 

or that the Army Activity knows to be 

inconsistent with rulings of other DoD 

Components ordinarily should not be 

made before consultation with the Army 

OGC. Tentative decisions to deny 

records that raise new or significant 

legal issues of potential significance to 

other Agencies of the Government shall 

be provided to the Army OGC.

§ 518.18 Judicial actions. 

(a) This section states current legal 

and procedural rules for the 

convenience of the reader. The 

statements of rules do not create rights 

or remedies not otherwise available, nor 

do they bind the DA or DoD to 

particular judicial interpretations or 

procedures. A requester may seek an 

order from a U.S. District Court to 

compel release of a record after 

administrative remedies have been 

exhausted; i.e., when refused a record 

by the head of a Component or an 

appellate designee or when the Army 

Activity has failed to respond within the 

time limits prescribed by the FOIA and 

in this part. 

(b) The requester may bring suit in the 

U.S. District Court in the district, in 

which the requester resides or is the 

requester’s place of business, in the 

district in which the record is located, 

or in the District of Columbia. 

(c) The burden of proof is on the 

Army Activity to justify its refusal to 

provide a record. The court shall 

evaluate the case de novo (anew) and 

may elect to examine any requested 

record in camera (in private) to 

determine whether the denial was 

justified. 

(d) When an Army Activity has failed 

to make a determination within the 

statutory time limits but can 

demonstrate due diligence in 

exceptional circumstances, to include 

negotiating with the requester to modify 

the scope of their request, the court may 

retain jurisdiction and allow the 

Activity additional time to complete its 

review of the records. 

(1) If the court determines that the 

requester’s complaint is substantially 

correct, it may require the U. S. to pay 

reasonable attorney fees and other 

litigation costs. 

(2) When the court orders the release 

of denied records, it may also issue a 

written finding that the circumstances 

surrounding the withholding raise 

questions whether Army Activity 

personnel acted arbitrarily and 

capriciously. In these cases, the special 

counsel of the Merit Systems Protection 

Board shall conduct an investigation to 

determine whether or not disciplinary 

action is warranted. The Army Activity 

is obligated to take the action 

recommended by the special counsel. 

(3) The court may punish the 

responsible official for contempt when 

an Army Activity fails to comply with 

the court order to produce records that 

it determines have been withheld 

improperly. 

(e) Non-U. S. Government source 

information. A requester may bring suit 

in an U.S. District Court to compel the 

release of records obtained from a nongovernment source or records based on 

information obtained from a nongovernment source. Such source shall 

be notified promptly of the court action. 

When the source advises that it is 

seeking court action to prevent release, 

the Army Activity shall defer answering 

or otherwise pleading to the 

complainant as long as permitted by the 

Court or until a decision is rendered in 

the court action of the source, 

whichever is sooner. 

(f) FOIA litigation. Personnel 

responsible for processing FOIA 

requests at the DoD Component level 

shall be aware of litigation under the 

FOIA. Such information will provide 

management insights into the use of the 

nine exemptions by Component 

personnel. Whenever a complaint under 

the FOIA is filed in an U.S. District 

Court, the Army Activity named in the 

complaint shall forward a copy of the 

complaint by any means to HQDA, 

OTJAG (DAJA–LT), with an information 

copy to the Army OGC. In the DA, 

HQDA OTJAG (DAJA–LT), WASH D.C. 

20310–2210 is also responsible for 

forwarding this information to the 

Office of the Army OGC and to the DA 

FOIA/PA Office. 

(1) Bases for FOIA lawsuits. In 

general, there are four categories of 

complaints in a FOIA lawsuit; failure to 

respond to a request within time frames 

established in the FOIA statute; 

challenge to the adequacy of search for 

responsive records; challenge to 

application of a FOIA Exemption; and 

procedural challenges, such as 

application of waiver of fees. The 

guidance below is intended to cover all 

categories of complaints. In responding 

to litigation support requests, bear in 

mind the type of complaint that has 

given rise to the lawsuit and provide 

information, which addresses the 

specific reason(s) for the complaint. 

(2) Responsibility for FOIA litigation.

For the Army, under the general 

oversight of the OGC, FOIA litigation is 

the responsibility of the General 

Litigation Branch, Army Litigation 

Division. If you are notified of a FOIA 

lawsuit involving the Army, contact the 

General Litigation Branch immediately 

at: U.S. Army Litigation Center, General 

Litigation Branch (JALS–LTG), 901 

North Stuart Street, Suite 700, Arlington 

VA 22203–1837. The General Litigation 

Branch will provide guidance on 

gathering information and assembling a 

litigation report necessary to respond to 

FOIA litigation. 

(3) Litigation reports for FOIA 

lawsuits. As with any lawsuit, the Army 

Litigation Division and DOJ will require 

a litigation report. This report should be 

prepared with the assistance, and under 

the supervision of, the legal advisor. For 

general guidance on litigation reports, 

see Army Regulation 27–40, paragraph 

3–9. Unlike the usual 60-day time 

period to respond to complaints under 

the Federal Rules of Civil Procedure, 

complaints under the FOIA must be 

answered within 30 days of the service 

of the complaint. Therefore, it is 

imperative to contact the Litigation 

Division immediately and to begin 

preparing the litigation report without 

delay. 

(4) Specific guidance for FOIA 

litigation reports. The following is 

specific guidance for preparing a 

litigation report in FOIA Litigation. The 

required material should be indexed 

and assembled under the following 

categories: 

(i) Statement of facts. (Tab A). Provide 

a chronological statement of all facts 

related to the FOIA request, beginning 

with receipt of the request, responses to 

the request, and searches for responsive 

records. The statement of facts should 

refer to supporting enclosed exhibits 

whenever possible.

(ii) Responses to pleadings. (Tab B). If 

you have been provided a copy of the 

complaint, provide a line-by-line 

answer to the factual statements in the 

pleadings, along with recommendations 

on whether to admit or deny the 

allegation. 

(iii) Memorandum of law. (Tab C). No 

memorandum of law is necessary in 

FOIA lawsuits. If records were 

withheld, provide a written statement 

explaining the FOIA Exemption used to 

withhold the information and the 

rationale for its application in the 

particular facts of your case. Include 

here a copy of any legal review 

77858 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

regarding the withholding of the 

records. 

(iv) Potential witness information.

(Tab D). List the names, addresses, 

telephone number, facsimile number 

and e-mail addresses of all potential 

witnesses. At a minimum, this must 

include all of the following: the FOIA 

Officer or Coordinator or other person 

responsible for processing FOIA 

requests; the individual(s) who actually 

conducted the search for responsive 

records; the legal advisor(s) who 

reviewed or provided advice on the 

request; and the point of contact at any 

office or agency to which the FOIA 

request was referred. 

(v) Exhibits. (Tab E). Provide copies of 

all correspondence regarding the FOIA 

request. This includes all 

correspondence between the agency and 

the requester, including any enclosures; 

any referrals or forwarding of the 

request to other agencies or offices; 

copies of all documents released to the 

requester pursuant to the request in 

litigation. If any information is withheld 

or redacted, provide a complete copy of 

all withheld information. Identify 

withheld information by placing 

brackets around all information 

withheld and note in the margins of the 

document the specific FOIA exemption 

applied to deny release of the 

document; all records and 

correspondence forwarded to the IDA, if 

applicable; all appeals by the requester; 

if the withheld document is classified, 

provide a summary of each document 

withheld. The Summary of classified 

documents should include the 

following: 

(A) The classification of the 

document; 

(B) The date of the document; 

(C) The number of pages of the 

document; 

(D) The author or creator of the 

document; 

(E) The intended or actual recipient of 

the document; 

(F) The subject of the document and 

an unclassified description of the 

document sufficient to inform the court 

of the nature of the contents of the 

document; and 

(G) An explanation of the reason for 

withholding, including the specific 

provision(s) of Executive Order 12,958 

which permit classification of the 

information. 

(vi) Draft declarations. (Tab F). A 

declaration is a statement for use in 

litigation made under penalty of perjury 

pursuant to specific statutory authority 

(28 U.S.C. 1746) which need not be 

notarized. Declarations may be used by 

the Army to support a motion to dismiss 

or to grant summary judgment. 

Depending on the basis for the lawsuit, 

with the assistance of their legal 

advisor, witnesses should prepare a 

draft declaration to be included with the 

litigation report.

(vii) The following is some general 

guidance on the content of a declaration 

in FOIA litigation. Identify the declarant 

and describe his or her qualifications 

and responsibilities as they relate to the 

FOIA; provide a statement indicating 

that the declarant is familiar with the 

specific request and the general subject 

matter of the records; include a 

statement of the searcher’s 

understanding of the exact nature of the 

request, including any modification 

(narrowing or expanding the search 

based on communications with the 

requester); generally, the factual portion 

of the declaration should be organized 

as a chronological statement beginning 

with receipt of the request; provide a 

specific description of the system of 

records searched; and provide a 

description of procedures used to search 

for the requested records, (manual 

search of records, computer database 

search, etc.). This portion of the 

declaration is especially important 

when no records are found. The 

declaration must reflect an adequate and 

reasonable search for records in 

locations where responsive records are 

likely to be found. 

(5) Special guidance for initial denial 

authorities. If any information was 

withheld, the IDA or person with 

specific knowledge of the withholding 

must provide a specific statement of any 

Exemptions to the FOIA, which were 

applied to the records. 

(i) Withheld records. For withheld 

records, describe in reasonably specific 

detail all records or parts of records 

withheld. If the number of records is 

extensive, use an index of the records 

and consider numbering the documents 

to facilitate reference. It is also 

permissible (and frequently helpful) to 

include redacted portions of records 

withheld as attachments or exhibits to 

the declarations. 

(ii) Exemptions. Include in the 

declaration a specific statement 

demonstrating that all the elements of 

each FOIA exemption are met. 

(iii) Segregation. The FOIA requires 

that all information not subject to an 

exemption to the FOIA, which can be 

reasonably segregated from exempt 

information, must be released to FOIA 

requesters. In any instance where an 

entire document is withheld, the 

individual authorizing the withholding 

must specifically address that 

segregation and release of non-exempt 

material was not possible without 

rendering the record essentially 

meaningless. If applicable, this issue 

must be specifically addressed in the 

declaration. 

(iv) Sound legal basis. Army policy 

promotes careful consideration of FOIA 

requests and discretionary decisions to 

disclose information protected under 

the FOIA. Discretionary disclosures 

should be made only after full and 

deliberate consideration of the 

institutional, commercial, and personal 

privacy interests that could be 

implicated by disclosure of the 

information. The decision to withhold 

records, in whole or in part, otherwise 

exempt from disclosure under the FOIA 

must exhibit a sound legal basis or 

present an unwarranted risk of adverse 

impact on the ability of other agencies 

to protect other important records.

Subpart F—Fee Schedule

§ 518.19 General provisions. 

(a) Authorities. The FOIA, as 

amended; the Paperwork Reduction Act 

(44 U.S.C. 35), as amended; the PA of 

1974, as amended; the Budget and 

Accounting Act of 1921 and the Budget 

and Accounting Procedures Act, as 

amended (see 31 U.S.C.); and 10 U.S.C. 

2328). 

(b) Application. The fees described in 

this Subpart apply to FOIA requests, 

and conform to the Office of 

Management and Budget Uniform 

Freedom of Information Act Fee 

Schedule and Guidelines. They reflect 

direct costs for search, review (in the 

case of commercial requesters), and 

duplication of documents, collection of 

which is permitted by the FOIA. They 

are neither intended to imply that fees 

must be charged in connection with 

providing information to the public in 

the routine course of business, nor are 

they meant as a substitute for any other 

schedule of fees, such as DoD 7000.14–

R, which does not supersede the 

collection of fees under the FOIA. 

Nothing in this subpart shall supersede 

fees chargeable under a statute 

specifically providing for setting the 

level of fees for particular types of 

records. A ‘‘statute specifically 

providing for setting the level of fees for 

particular types of records’’ (5 U.S.C. 

552 FOIA, (a)(4)(A)(vi)) means any 

statute that enables a Government 

Agency such as the GPO or the NTIS, to 

set and collect fees. Components should 

ensure that when documents that would 

be responsive to a request are 

maintained for distribution by agencies 

operating statutory-based fee schedule 

programs such as GPO or NTIS, they 

inform requesters of the steps necessary 

to obtain records from those sources. 

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(1) The term ‘‘direct costs’’ means 

those expenditures an Activity actually 

makes in searching for, reviewing (in 

the case of commercial requesters), and 

duplicating documents to respond to a 

FOIA request. Direct costs include, for 

example, the salary of the employee 

performing the work (the basic rate of 

pay for the employee plus 16 percent of 

that rate to cover benefits), and the costs 

of operating duplicating machinery. Not 

included in direct costs are overhead 

expenses such as costs of space, heating 

or lighting the facility in which the 

records are stored.

(2) The term ‘‘search’’ includes all 

time spent looking, both manually and 

electronically, for material that is 

responsive to a request. Search also 

includes a page-by-page or line-by-line 

identification (if necessary) of material 

in the record to determine if it, or 

portions thereof are responsive to the 

request. Activities should ensure that 

searches are done in the most efficient 

and least expensive manner so as to 

minimize costs for both the Activity and 

the requester. For example, Activities 

should not engage in line-by-line 

searches, when duplicating an entire 

document known to contain responsive 

information, would prove to be the less 

expensive and quicker method of 

complying with the request. Time spent 

reviewing documents in order to 

determine whether to apply one or more 

of the statutory exemptions is not search 

time, but review time. 

(3) The term ‘‘duplication’’ refers to 

the process of making a copy of a 

document in response to a FOIA 

request. Such copies can take the form 

of paper copy, microfiche, audiovisual, 

or machine-readable documentation 

(e.g., magnetic tape or disc), among 

others. Every effort will be made to 

ensure that the copy provided is in a 

form that is reasonably useable, the 

requester shall be notified that the copy 

provided is the best available and that 

the Activity’s master copy shall be made 

available for review upon appointment. 

For duplication of computer-stored 

records, the actual cost, including the 

operator’s time, shall be charged. In 

practice, if an Activity estimates that 

assessable duplication charges are likely 

to exceed $25.00, it shall notify the 

requester of the estimate, unless the 

requester has indicated in advance his 

or her willingness to pay fees as high as 

those anticipated. Such a notice shall 

offer a requester the opportunity to 

confer with Activity personnel with the 

object of reformulating the request to 

meet his or her needs at a lower cost. 

(4) The term ‘‘review’’ refers to the 

process of examining documents located 

in response to a FOIA request to 

determine whether one or more of the 

statutory exemptions permit 

withholding. It also includes processing 

the documents for disclosure, such as 

excising them for release. Review does 

not include the time spent resolving 

general legal or policy issues regarding 

the application of exemptions. It should 

be noted that charges for commercial 

requesters may be assessed only for the 

initial review. Activities may not charge 

for reviews required at the 

administrative appeal level of an 

exemption already applied. However, 

records or portions of records withheld 

in full under an exemption, which is 

subsequently determined not to apply, 

may be reviewed again to determine the 

applicability of other exemptions not 

previously considered. The costs for 

such a subsequent review would be 

properly assessable. 

(c) Fee restrictions. No fees may be 

charged by any Army Activity if the 

costs of routine collection and 

processing of the fee are likely to equal 

or exceed the amount of the fee. With 

the exception of requesters seeking 

documents for a commercial use, 

Activities shall provide the first two 

hours of search time, and the first one 

hundred pages of duplication without 

charge. For example, for a request (other 

than one from a commercial requester) 

that involved two hours and fifteen 

minutes of search time, and resulted in 

one hundred and twenty-five pages of 

documents, an Activity would 

determine the cost of only ten minutes 

of search time, and only five pages of 

reproduction. If this processing cost was 

equal to, or less than the cost to the 

Activity for billing the requester and 

processing the fee collected, no charges 

would result. 

(1) Requesters receiving the first two 

hours of search and the first one 

hundred pages of duplication without 

charge are entitled to such only once per 

request. Consequently, if an Activity, 

after completing its portion of a request, 

finds it necessary to refer the request to 

a subordinate office, another Army 

Activity or DoD Component, or another 

Federal Agency for action their portion 

of the request, the referring Activity 

shall inform the recipient of the referral 

of the expended amount of search time 

and duplication cost to date. 

(2) The elements to be considered in 

determining the ‘‘cost of collecting a 

fee’’ are the administrative costs to the 

Activity of receiving and recording a 

remittance, and processing the fee for 

deposit in the Department of Treasury’s 

special account. The cost to the 

Department of Treasury to handle such 

remittance is negligible and shall not be 

considered in the Activity’s 

determinations. 

(3) For the purposes of these 

restrictions, the word ‘‘pages’’ refers to 

paper copies of a standard size, which 

will normally be ′′81⁄2 × 11′′ or ′′11 × 14′′. 

Thus, requesters would not be entitled 

to 100 microfiche or 100 computer 

disks, for example. A microfiche 

containing the equivalent of 100 pages 

or 100 pages of computer printout, 

however, might meet the terms of the 

restriction. 

(4) In the case of computer searches, 

the first two free hours will be 

determined against the salary scale of 

the individual operating the computer 

for the purposes of the search. As an 

example, when the direct costs of the 

computer central processing unit, inputoutput devices, and memory capacity 

equal $40.00 (two hours of equivalent 

search at the clerical level), amounts of 

computer costs in excess of that amount 

are chargeable as computer search time. 

In the event the direct operating cost of 

the hardware configuration cannot be 

determined, computer search shall be 

based on the salary scale of the operator 

executing the computer search. 

(d) Fee waivers. Documents shall be 

furnished without charge, or at a charge 

reduced below fees assessed to the 

categories of requesters when the 

Activity determines that waiver or 

reduction of the fees is in the public 

interest because furnishing the 

information is likely to contribute 

significantly to public understanding of 

the operations or activities of DA and is 

not primarily in the commercial interest 

of the requester. 

(1) When assessable costs for a FOIA 

request total $15.00 or less, fees shall be 

waived automatically for all requesters, 

regardless of category. 

(2) Decisions to waive or reduce fees 

that exceed the automatic waiver 

threshold shall be made on a case-bycase basis. Disclosure of the information 

‘‘is in the public interest because it is 

likely to contribute significantly to 

public understanding of the operations 

or activities of the Government.’’

(i) Activities should analyze whether 

the subject matter of the request 

involves issues that will significantly 

contribute to the public understanding 

of the operations or activities of DA or 

DoD. Requests for records in the 

possession of the Army or DoD, which 

were originated by non-government 

organizations and are sought for their 

intrinsic content, rather than 

informative value, will likely not 

contribute to public understanding of 

the operations or activities of either DA 

or DoD. An example of such records 

might be press clippings, magazine 

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articles, or records forwarding a 

particular opinion or concern from a 

member of the public regarding an 

Army or DoD activity. Similarly, 

disclosures of records of considerable 

age may or may not bear directly on the 

current activities of either DA or DoD; 

however, the age of a particular record 

shall not be the sole criteria for denying 

relative significance under this factor. It 

is possible to envisage an informative 

issue concerning the current activities of 

DA or DoD, based upon historical 

documentation. Requests of this nature 

must be closely reviewed consistent 

with the requester’s stated purpose for 

desiring the records and the potential 

for public understanding of the 

operations and activities of DA or DoD. 

(ii) The informative value of the 

information to be disclosed requires a 

close analysis of the substantive 

contents of a record, or portion of the 

record, to determine whether disclosure 

is meaningful, and shall inform the 

public on the operations or activities of 

DA or DoD. While the subject of a 

request may contain information that 

concerns operations or activities of DA 

or DoD, it may not always hold great 

potential for contributing to a 

meaningful understanding of these 

operations or activities. An example of 

such would be a previously released 

record that has been heavily redacted, 

the balance of which may contain only 

random words, fragmented sentences, or 

paragraph headings. A determination as 

to whether a record in this situation will 

contribute to the public understanding 

of the operations or activities of DA or 

DoD must be approached with caution, 

and carefully weighed against the 

arguments offered by the requester. 

Another example is information already 

known to be in the public domain. 

Disclosure of duplicative, or nearly 

identical information already existing in 

the public domain may add no 

meaningful new information concerning 

the operations and activities of DA or 

DoD. 

(iii) The contribution to an 

understanding of the subject by the 

general public is likely to result from 

disclosure that will inform, or have the 

potential to inform the public, rather 

than simply the individual requester or 

small segment of interested persons. 

The identity of the requester is essential 

in this situation in order to determine 

whether such requester has the 

capability and intention to disseminate 

the information to the public. Mere 

assertions of plans to author a book, 

researching a particular subject, doing 

doctoral dissertation work, or indigence 

are insufficient without demonstrating 

the capacity to further disclose the 

information in a manner that will be 

informative to the general public. 

Requesters should be asked to describe 

their qualifications, the nature of their 

research, the purpose of the requested 

information, and their intended means 

of dissemination to the public. 

(iv) Activities must differentiate the 

relative significance or impact of the 

disclosure against the current level of 

public knowledge, or understanding, 

which exists before the disclosure. In 

other words, will disclosure on a 

current subject of wide public interest 

be unique in contributing previously 

unknown facts, thereby enhancing 

public knowledge, or will it basically 

duplicate what is already known by the 

general public? A decision regarding 

significance requires objective 

judgment, rather than subjective 

determination, and must be applied 

carefully to determine whether 

disclosure will likely lead to a 

significant public understanding of the 

issue. Activities shall not make value 

judgments as to whether the information 

is important enough to be made public. 

(4) Disclosure of the information ‘‘is 

not primarily in the commercial interest 

of the requester.’’

(i) If the request is determined to be 

of a commercial interest, Activities 

should address the magnitude of that 

interest to determine if the requester’s 

commercial interest is primary, as 

opposed to any secondary personal or 

non-commercial interest. In addition to 

profit-making organizations, individual 

persons or other organizations may have 

a commercial interest in obtaining 

certain records. Where it is difficult to 

determine whether the requester is of a 

commercial nature, Activities may draw 

inference from the requester’s identity 

and circumstances of the request. 

Activities are reminded that in order to 

apply the commercial standards of the 

FOIA, the requester’s commercial 

benefit must clearly override any 

personal or non-profit interest. 

(ii) Once a requester’s commercial 

interest has been determined, Activities 

should then determine if the disclosure 

would be primarily in that interest. This 

requires a balancing test between the 

commercial interest of the request 

against any public benefit to be derived 

as a result of that disclosure. Where the 

public interest is served above and 

beyond that of the requester’s 

commercial interest, a waiver or 

reduction of fees would be appropriate. 

Conversely, even if a significant public 

interest exists, and the relative 

commercial interest of the requester is 

determined to be greater than the public 

interest, then a waiver or reduction of 

fees would be inappropriate. As 

examples, news media organizations 

have a commercial interest as business 

organizations; however, their inherent 

role of disseminating news to the 

general public can ordinarily be 

presumed to be of a primary interest. 

Therefore, any commercial interest 

becomes secondary to the primary 

interest in serving the public. Similarly, 

scholars writing books or engaged in 

other forms of academic research, may 

recognize a commercial benefit, either 

directly, or indirectly (through the 

institution they represent); however, 

normally such pursuits are primarily 

undertaken for educational purposes, 

and the application of a fee charge 

would be inappropriate. Conversely, 

data brokers or others who merely 

compile government information for 

marketing can normally be presumed to 

have an interest primarily of a 

commercial nature. 

(5) Activities are reminded that the 

factors and examples used in this 

section are not all inclusive. Each fee 

decision must be considered on a caseby-case basis and upon the merits of the 

information provided in each request. 

When the element of doubt as to 

whether to charge or waive the fee 

cannot be clearly resolved, Activities 

should rule in favor of the requester.

(6) In addition, the following 

additional circumstances describe 

situations where waiver or reduction of 

fees are most likely to be warranted: 

(i) A record is voluntarily created to 

prevent an otherwise burdensome effort 

to provide voluminous amounts of 

available records, including additional 

information not requested; or 

(ii) A previous denial of records is 

reversed in total, or in part, and the 

assessable costs are not substantial (e.g.

$15.00—$30.00). 

(e) Fee assessment. Fees may not be 

used to discourage requesters, and to 

this end, FOIA fees are limited to 

standard charges for direct document 

search, review (in the case of 

commercial requesters) and duplication. 

(1) In order to be as responsive as 

possible to FOIA requests while 

minimizing unwarranted costs to the 

taxpayer, Activities shall adhere to the 

following procedures: 

(i) Each request must be analyzed to 

determine the category of the requester. 

If the Activity determination regarding 

the category of the requester is different 

than that claimed by the requester, the 

Activity should notify the requester to 

provide additional justification to 

warrant the category claimed, and that 

a search for responsive records will not 

be initiated until agreement has been 

attained relative to the category of the 

requester. Absent further category 

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77861

justification from the requester, and 

within a reasonable period of time (i.e.,

30 calendar days), the Activity shall 

render a final category determination, 

and notify the requester of such 

determination, to include normal 

administrative appeal rights of the 

determination. The requester should be 

advised that, notwithstanding any 

appeal, a search for responsive records 

will not be initiated until the requester 

indicates a willingness to pay assessable 

costs appropriate for the category 

determined by the Activity; 

(ii) Requesters should submit a fee 

declaration appropriate for the below 

categories. Commercial requesters 

should indicate a willingness to pay all 

search, review and duplication costs. 

Educational or Noncommercial 

Scientific Institution or News Media 

requesters should indicate a willingness 

to pay duplication charges, if 

applicable, in excess of 100 pages if 

more than 100 pages of records are 

desired. All other requesters should 

indicate a willingness to pay assessable 

search and duplication costs; 

(iii) Activities must be prepared to 

provide an estimate of assessable fees if 

desired by the requester. While it is 

recognized that search situations will 

vary among Activities, and that an 

estimate is often difficult to obtain prior 

to an actual search, requesters who 

desire estimates are entitled to such 

before committing to a willingness to 

pay. Should Activities’ actual costs 

exceed the amount of the estimate or the 

amount agreed to by the requester, the 

amount in excess of the estimate or the 

requester’s agreed amount shall not be 

charged without the requester’s 

agreement; 

(iv) No Army Activity may require 

advance payment of any fee; i.e.,

payment before work is commenced or 

continued on a request, unless the 

requester has previously failed to pay 

fees in a timely fashion, or the agency 

has determined that the fee will exceed 

$250.00. As used in this sense, a timely 

fashion is 30 calendar days from the 

date of billing (the fees have been 

assessed in writing) by the Activity; 

(v) Where an Activity estimates or 

determines that allowable charges that a 

requester may be required to pay are 

likely to exceed $250.00, the Activity 

shall notify the requester of the likely 

cost and obtain satisfactory assurance of 

full payment where the requester has a 

history of prompt payments, or require 

an advance payment of an amount up to 

the full estimated charges in the case of 

requesters with no history of payment; 

(vi) Where a requester has previously 

failed to pay a fee charged in a timely 

fashion (i.e., within 30 calendar days 

from the date of the billing), the Activity 

may require the requester to pay the full 

amount owed, plus any applicable 

interest, or demonstrate that he or she 

has paid the fee, and to make an 

advance payment of the full amount of 

the estimated fee before the Activity 

begins to process a new or pending 

request from the requester. Interest will 

be at the rate prescribed in 31 U.S.C. 

3717, and confirmed with respective 

Finance and Accounting Offices; 

(vii) After all work is completed on a 

request, and the documents are ready 

for release, Activities may request 

payment before forwarding the 

documents, particularly for those 

requesters who have no payment 

history, or for those requesters who have 

failed previously to pay a fee in a timely 

fashion (i.e., within 30 calendar days 

from the date of the billing;

(viii) The administrative time limits of 

the FOIA will begin only after the 

Activity has received a willingness to 

pay fees and satisfaction as to category 

determination, or fee payments (if 

appropriate); and 

(ix) Activities may charge for time 

spent searching for records, even if that 

search fails to locate records responsive 

to the request. Activities may also 

charge search and review (in the case of 

commercial requesters) time if records 

located are determined to be exempt 

from disclosure. In practice, if the 

Activity estimates that search charges 

are likely to exceed $25.00, it shall 

notify the requester of the estimated 

amount of fees, unless the requester has 

indicated in advance his or her 

willingness to pay fees as high as those 

anticipated. Such a notice shall offer the 

requester the opportunity to confer with 

Activity personnel with the object of 

reformulating the request to meet his or 

her needs at a lower cost. 

(2) Commercial Requesters. Fees shall 

be limited to reasonable standard 

charges for document search, review 

and duplication when records are 

requested for commercial use. 

Requesters must reasonably describe the 

records sought. 

(i) The term ‘‘commercial use’’ request 

refers to a request from, or on behalf of 

one who seeks information for a use or 

purpose that furthers the commercial, 

trade, or profit interest of the requester 

or the person on whose behalf the 

request is made. In determining whether 

a requester properly belongs in this 

category, Activities must determine the 

use to which a requester will put the 

documents requested. Moreover, where 

an Activity has reasonable cause to 

doubt the use to which a requester will 

put the records sought, or where that 

use is not clear from the request itself, 

Activities should seek additional 

clarification before assigning the request 

to a specific category. 

(ii) When Activities receive a request 

for documents for commercial use, they 

should assess charges, which recover 

the full direct costs of searching for, 

reviewing for release, and duplicating 

the records sought. Commercial 

requesters (unlike other requesters) are 

not entitled to two hours of free search 

time, nor 100 free pages of reproduction 

of documents. Moreover, commercial 

requesters are not normally entitled to a 

waiver or reduction of fees based upon 

an assertion that disclosure would be in 

the public interest. However, because 

use is the exclusive determining criteria, 

it is possible to envision a commercial 

enterprise making a request that is not 

for commercial use. It is also possible 

that a non-profit organization could 

make a request that is for commercial 

use. Such situations must be addressed 

on a case-by-case basis. 

(3) Educational institution requesters.

Fees shall be limited to only reasonable 

standard charges for document 

duplication (excluding charges for the 

first 100 pages) when the request is 

made by an educational institution 

whose purpose is scholarly research. 

Requesters must reasonably describe the 

records sought. The term ‘‘educational 

institution’’ refers to a pre-school, a 

public or private elementary or 

secondary school, an institution of 

graduate high education, an institution 

of undergraduate higher education, an 

institution of professional education, 

and an institution of vocational 

education, which operates a program or 

programs of scholarly research. Fees 

shall be waived or reduced in the public 

interest if the criteria above have been 

met. 

(4) Non-commercial scientific 

institution requesters. Fees shall be 

limited to only reasonable standard 

charges for document duplication 

(excluding charges for the first 100 

pages) when the request is made by a 

non-commercial scientific institution 

whose purpose is scientific research. 

Requesters must reasonably describe the 

records sought. The term ‘‘noncommercial scientific institution’’ refers 

to an institution that is not operated on 

a ‘‘commercial’’ basis and that is 

operated solely for the purpose of 

conducting scientific research, the 

results of which are not intended to 

promote any particular product or 

industry. 

(5) Activities shall provide documents 

to requesters for the cost of duplication 

alone, excluding charges for the first 

100 pages. To be eligible for inclusion 

in these categories, requesters must 

77862 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

show that the request is being made 

under the auspices of a qualifying 

institution and that the records are not 

sought for commercial use, but in 

furtherance of scholarly (from an 

educational institution) or scientific 

(from a non-commercial scientific 

institution) research. 

(6) Representatives of the news media.

Fees shall be limited to only reasonable 

standard charges for document 

duplication (excluding charges for the 

first 100 pages) when the request is 

made by a representative of the news 

media. Requesters must reasonably 

describe the records sought. 

(i) The term ‘‘representative of the 

news media’’ refers to any person 

actively gathering news for an entity 

that is organized and operated to 

publish or broadcast news to the public. 

The term ‘‘news’’ means information 

that is about current events or that 

would be of current interest to the 

public. Examples of news media entities 

include television or radio stations 

broadcasting to the public at large and 

publishers of periodicals (but only in 

those instances when they can qualify 

as disseminators of ‘‘news’’) who make 

their products available for purchase or 

subscription by the general public. 

These examples are not meant to be allinclusive. Moreover, as traditional 

methods of news delivery evolve (e.g.,

electronic dissemination of newspapers 

through telecommunications services), 

such alternative media would be 

included in this category. In the case of 

‘‘freelance’’ journalists, they may be 

regarded as working for a news 

organization if they can demonstrate a 

solid basis for expecting publication 

through that organization, even though 

not actually employed by it. A 

publication contract would be the 

clearest proof, but Activities may also 

look to the past publication record of a 

requester in making this determination. 

(ii) To be eligible for inclusion in this 

category, a requester must meet the 

criteria in paragraph (e)(6)(i) of this 

section, and his or her request must not 

be made for commercial use. A request 

for records supporting the news 

dissemination function of the requester 

shall not be considered to be a request 

that is for a commercial use. For 

example, a document request by a 

newspaper for records relating to the 

investigation of a defendant in a current 

criminal trial of public interest could be 

presumed to be a request from an entity 

eligible for inclusion in this category, 

and entitled to records at the cost of 

reproduction alone (excluding charges 

for the first 100 pages).

(iii) ‘‘Representative of the news 

media’’ does not include private 

libraries, private repositories of 

Government records, information 

vendors, data brokers or similar 

marketers of information whether to 

industries and businesses, or other 

entities. 

(7) All Other Requesters. Activities 

shall charge requesters who do not fit 

into any of the categories, fees which 

recover the full direct cost of searching 

for and duplicating records, except that 

the first two hours of search time and 

the first 100 pages of duplication shall 

be furnished without charge. Requesters 

must reasonably describe the records 

sought. Requests from subjects about 

themselves will continue to be treated 

under the fee provisions of the Privacy 

Act of 1974, which permit fees only for 

duplication. Activities are reminded 

that this category of requester may also 

be eligible for a waiver or reduction of 

fees if disclosure of the information is 

in the public interest as defined in 

paragraph (e)(6)(ii) of this section. 

(f) Aggregating requests. Except for 

requests that are for a commercial use, 

an Activity may not charge for the first 

two hours of search time or for the first 

100 pages of reproduction. However, a 

requester may not file multiple requests 

at the same time, each seeking portions 

of a document or documents, solely in 

order to avoid payment of fees. When an 

Activity reasonably believes that a 

requester or, on rare occasions, a group 

of requesters acting in concert, is 

attempting to break a request down into 

a series of requests for the purpose of 

avoiding the assessment of fees, the 

agency may aggregate any such requests 

and charge accordingly. One element to 

be considered in determining whether a 

belief would be reasonable is the time 

period in which the requests have 

occurred. For example, it would be 

reasonable to presume that multiple 

requests of this type made within a 30-

day period had been made to avoid fees. 

For requests made over a longer period, 

however, such a presumption becomes 

harder to sustain and Activities should 

have a solid basis for determining that 

aggregation is warranted in such cases. 

Activities are cautioned that before 

aggregating requests from more than one 

requester, they must have a concrete 

basis on which to conclude that the 

requesters are acting in concert and are 

acting specifically to avoid payment of 

fees. In no case may Activities aggregate 

multiple requests on unrelated subjects 

from one requester.

(g) Debt Collection Act of 1982 (Pub. 

L. 97–365). The Debt Collection Act 

provides for a minimum annual rate of 

interest to be charged on overdue debts 

owed the Federal Government. 

Activities may levy this interest penalty 

for any fees that remain outstanding 30 

calendar days from the date of billing 

(the first demand notice) to the 

requester of the amount owed. The 

interest rate shall be as prescribed in 31 

U.S.C. 3717. Activities should verify the 

current interest rate with respective 

Finance and Accounting Offices. After 

one demand letter has been sent, and 30 

calendar days have lapsed with no 

payment, Activities may submit the debt 

to respective Finance and Accounting 

Offices for collection pursuant to the 

Debt Collection Act. 

(h) Computation of fees. The fee 

schedule shall be used to compute the 

search, review (in the case of 

commercial requesters) and duplication 

costs associated with processing a given 

FOIA request. Costs shall be computed 

on time actually spent. Neither timebased nor dollar-based minimum 

charges for search, review and 

duplication are authorized. The 

appropriate fee category of the requester 

shall be applied before computing fees. 

DD Form 2086 (Record of Freedom of 

Information (FOI) Processing Cost) will 

be used to annotate fees for processing 

FOIA information. 

(i) Refunds. In the event that an 

Activity discovers that it has 

overcharged a requester or a requester 

has overpaid, the Activity shall 

promptly refund the charge to the 

requester by reimbursement methods 

that are agreeable to the requester and 

the Activity.

§ 518.20 Collection of fees and fee rates. 

(a) Collection of fees. Collection of 

fees will be made at the time of 

providing the documents to the 

requester or recipient when the 

requester specifically states that the 

costs involved shall be acceptable or 

acceptable up to a specified limit that 

covers the anticipated costs. Collection 

of fees may not be made in advance 

unless the requester has failed to pay 

previously assessed fees within 30 

calendar days from the date of the 

billing by the Activity, or the Activity 

has determined that the fee will be in 

excess of $250. 

(b) Search time.

(1) Costs for manual searches.

Type Grade Hourly

rate ($) 

Clerical ............ E9/GS 8 and 

below.

20 

Professional .... 01–06/GS 9–GS 

15.

44 

Executive ........ 07/ST/SL/SES–1 

and above.

75 

Contractor ....... 44 

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77863

(2) Computer search. Fee assessments 

for computer search consists of two 

parts; individual time (hereafter referred 

to as human time), and machine time. 

(i) Human time. Human time is all the 

time spent by humans performing the 

necessary tasks to prepare the job for a 

machine to execute the run command. 

If execution of a run requires monitoring 

by a human, that human time may be 

also assessed as computer search. The 

terms ‘‘programmer/operator’’ shall not 

be limited to the traditional 

programmers or operators. Rather, the 

terms shall be interpreted in their 

broadest sense to incorporate any 

human involved in performing the 

computer job (e.g. technician, 

administrative support, operator, 

programmer, database administrator, or 

action officer). 

(ii) Machine time. Machine time 

involves only direct costs of the Central 

Processing Unit (CPU), input/output 

devices, and memory capacity used in 

the actual computer configuration. Only 

this CPU rate shall be charged. No other 

machine related costs shall be charged. 

In situations where the capability does 

not exist to calculate CPU time, no 

machine costs can be passed on to the 

requester. When CPU calculations are 

not available, only human time costs 

shall be assessed to requesters. Should 

Army Activities lease computers, the 

services charged by the lesser shall not 

be passed to the requester under the 

FOIA. 

(c) Duplication costs.

Type 

Cost per 

page 

(cents) 

Pre-printed material ...................... .02 

Office Copy ................................... .15 

Microfiche ..................................... .25 

Computer copies (tapes, discs or 

printouts) ................................... (1) 

1Actual cost of duplicating the tape, disc or 

printout (includes operator’s time and cost of 

the medium). 

(d) Review time costs (in the case of 

commercial requesters).

Type Grade Hourly

rate ($) 

Clerical ............ E9/GS 8 and 

below.

20 

Professional .... 01–06/GS 9–GS 

15.

44 

Executive ........ 07/ST/SL/SES–1 

and above.

75 

Contractor ....... 44 

(e) Audiovisual documentary 

materials. Search costs are computed as 

for any other record. Duplication cost is 

the actual direct cost of reproducing the 

material, including the wage of the 

person doing the work. Audiovisual 

materials provided to a requester need 

not be in reproducible format or quality. 

Army audiovisual materials are referred 

to as ‘‘visual information.’’

(f) Other records. Direct search and 

duplication cost for any record not 

described above shall be computed in 

the manner described for audiovisual 

documentary material. 

(g) Costs for special services.

Complying with requests for special 

services is at the discretion of the 

Activities. Neither the FOIA, nor its fee 

structure cover these kinds of services. 

Therefore, Activities may recover the 

costs of special services requested by 

the requester after agreement has been 

obtained in writing from the requester to 

pay for one or more of the following 

services: 

(1) Certifying that records are true 

copies; and/or 

(2) Sending records by special 

methods such as express mail, etc.

§ 518.21 Collection of fees and fee rates 

for technical data. 

(a) Fees for technical data. Technical 

data, other than technical data that 

discloses critical technology with 

military or space application, if required 

to be released under the FOIA, shall be 

released after the person requesting 

such technical data pays all reasonable 

costs attributed to search, duplication 

and review of the records to be released. 

Technical data, as used in this section, 

means recorded information, regardless 

of the form or method of the recording 

of a scientific or technical nature 

(including computer software 

documentation). This term does not 

include computer software, or data 

incidental to contract administration, 

such as financial and/or management 

information. Army Activities shall 

retain the amounts received by such a 

release, and it shall be merged with and 

available for the same purpose and the 

same time period as the appropriation 

from which the costs were incurred in 

complying with request. All reasonable 

costs as used in this sense are the full 

costs to the Federal Government of 

rendering the service, or fair market 

value of the service, whichever is 

higher. Fair market value shall be 

determined in accordance with 

commercial rates in the local 

geographical area. In the absence of a 

known market value, charges shall be 

based on recovery of full costs to the 

Federal Government. The full costs shall 

include all direct and indirect costs to 

conduct the search and to duplicate the 

records responsive to the request. This 

cost is to be differentiated from the 

direct costs allowable for other types of 

information released under the FOIA. 

DD Form 2086–1 will be used to 

annotate fees for technical data. The 

form is available through normal 

publication channels. 

(b) Waiver. Activities shall waive the 

payment of costs described in paragraph 

(a) of this section, which are greater 

than the costs that would be required for 

release of this same information if the 

request is made by a citizen of the 

United States or a United States 

corporation, and such citizen or 

corporation certifies that the technical 

data requested is required to enable it to 

submit an offer, or determine whether it 

is capable of submitting an offer to 

provide the product to which the 

technical data relates to the United 

States or a contractor with the United 

States. However, Activities may require 

the citizen or corporation to pay a 

deposit in an amount equal to not more 

than the cost of complying with the 

request, which will be refunded upon 

submission of an offer by the citizen or 

corporation; 

(i) The release of technical data is 

requested in order to comply with the 

terms of an international agreement; or, 

(ii) The Activity determines that such 

a waiver is in the interest of the United 

States. 

(c) Fee rates.

(1) Costs for a manual search of 

technical data.

Type Grade Hourly

rate ($) 

Clerical ............ E9/GS 8 and 

below.

13.25 

Minimum 

Charge.

8.30 

Notes: Professional and Executive (To be 

established at actual hourly rate prior to 

search. A minimum charge will be established 

at 1⁄2 hourly rates. 

(2) Computer search is based on the 

total cost of the cpu, input-output 

devices, and memory capacity of the 

actual computer configuration. The 

wage for the computer operator and/or 

programmer determining how to 

conduct, and subsequently executing 

the search will be recorded as part of the 

computer search. 

(d) Duplication costs for technical 

data.

Type Cost ($) 

Aerial photograph, maps, specifications, permits, charts, blueprints, and other technical engineering documents ................... 2.50 

Engineering data (microfilm).

a. Aperture cards 

Silver duplicate negative, per card .75 

When key punched and verified, 

per card ..................................... .85 

77864 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

Type Cost ($) 

Diazo duplicate negative, per card .65 

When key punched and verified, 

per card ..................................... .75 

b. 35 mm roll film, per frame ........ .50 

c. 16 mm roll film, per frame ........ .45 

d. Paper prints (engineering drawings), each ................................ 1.50 

e. Paper reprints of microfilm indices, each ................................... .10 

(e) Review time costs of technical 

data.

Type Grade Hourly

rate ($) 

Clerical ............ E9/GS 8 and 

below.

13.25 

Minimum 

Charge.

8.30 

Notes:Professional and Executive (To be 

established at actual hourly rate prior to 

search. A minimum charge will be established 

at 1⁄2 hourly rates. 

(f) Other technical data records.

Charges for any additional services not 

specifically consistent with Volume 11A 

of DoD 7000.14–R, shall be made by 

Activities at the following rates:

Type Cost ($) 

1. Minimum charge for office copy 

(up to six images) ..................... 3.50 

2. Each additional image .............. .10 

3. Each typewritten page .............. 3.50 

4. Certification and validation with 

seal, each .................................. 5.20 

5. Hand-drawn plots and 

sketches, each hour or fraction 

thereof ....................................... 12.00 

Subpart G—Reports

§ 518.22 Reports control.

(a) General. (1) The Annual FOIA 

Report is mandated by the statute and 

reported on a fiscal year basis. Due to 

the magnitude of the requested statistics 

and the need to ensure accuracy of 

reporting, Army Activities shall track 

this data as requests are processed. This 

will also facilitate a quick and accurate 

compilation of statistics. Army 

Activities shall forward their report to 

DA, FOIA/PA Office, no later than 

October 15 following the fiscal year’s 

close. It may be submitted electronically 

and via hard copy accompanied by a 

computer diskette. In turn, DA and DoD 

will produce a consolidated report for a 

submission to the Attorney General and 

ensure that a copy of the consolidated 

report is placed on the Internet for 

public access. 

(2) Existing Army standards and 

registered data elements are to be 

utilized to the greatest extent possible in 

accordance with the provisions of DoD 

8320.1–M, ‘‘Data Administration 

Procedures.’’

(3) The reporting requirement 

outlined is assigned Report Control 

Symbol DD–DA&M(A)1365, FOIA 

Report to Congress. 

(b) Reporting time. Each DA IDA shall 

prepare statistics and accumulate 

paperwork for the preceding fiscal year 

on those items prescribed for the annual 

report. The IDAs will follow guidelines 

below and submit the information to the 

DA, FOIA/PA Office, on or before the 

15th day of each October. 

(1) Each reporting activity will submit 

the information requested on the DD 

Form 2564,’Annual Report Freedom of 

Information Act.’’ The form is available 

through normal publication channels. 

(2) Each IDA will submit the 

information requested on the DD Form 

2564, excluding items 3, 4, and 9c. 

(3) The Judge Advocate General 

(DAJA) and Chief of Engineers (COE) 

will submit the information requested 

on the Form DD 2564, item 9c. 

(4) The General Counsel (SAGC) will 

submit the information requested on the 

DD Form 2564, items 3 and 4. 

(5) The DA, FOIA/PA Office will 

compile the data submitted in the 

Army’s Annual Report. This report will 

be submitted to the DoD Office for 

Freedom of Information and Security 

Review on or before the 30th day of 

each November.

§ 518.23 Annual report content. 

The current edition of DD Form 2564 

shall be used to submit Activity input. 

Instructions for completion follows: 

(a) ITEM 1 initial request 

determinations. Please note that initial 

PA requests, which are also processed 

as initial FOIA requests, are reported 

here. 

(1) Total requests processed. Enter the 

total number of initial FOIA requests 

responded to (completed) during the 

fiscal year. This should include pending 

cases at the end of the prior fiscal year, 

Total Actions is the sum of Items 1b 

through 1e, on the DD Form 2564. This 

total may exceed Total Requests 

Processed. 

(2) Granted in full. Enter the total 

number of initial FOIA requests 

responded to that were granted in full 

during the fiscal year. (This may include 

requests granted by your office, yet still 

requiring action by another office).

(3) Denied in part. Enter the total 

number of initial FOIA requests 

responded to and denied in part based 

on one or more of the FOIA exemptions. 

(Do not report ‘‘Other Reason 

Responses’’ as a partial denial here, 

unless a FOIA exemption is also used). 

(4) Denied in full. Enter the total 

number of initial FOIA requests 

responded to and denied in full based 

on one or more of the FOIA exemptions. 

(Do not report ‘‘Other Reason 

Responses’’ as denials here, unless a 

FOIA exemption is also used). 

(5) ‘‘Other reason’’ responses. Enter 

the total number of initial FOIA requests 

in which you were unable to provide all 

or part of the requested information 

based on an ‘‘Other Reason’’ response. 

(6) Total actions. Enter the total 

number of FOIA actions taken during 

the fiscal year. This number will be the 

sum of items 1b, through 1e. Total 

Actions must be equal to or greater than 

the number of Total Requests Processed. 

(b) ITEM 2 initial request exemptions 

and other reasons. (1) Exemptions 

invoked on initial request 

determinations. Enter the number of 

times an exemption was claimed for 

each request that was denied in full or 

in part. Since more than one exemption 

may be claimed when responding to a 

single request, this number will be equal 

to or greater than the sum of paragraphs 

(a)(3) and (4), of this section. The (b)(7) 

exemption is reported by subcategories 

(A) through (F): (A) Interfere with 

Enforcement; (B) Fair Trial Right; (C) 

Invasion of Privacy; (D) Protect 

Confidential Source; (E) Disclose 

Techniques, and (F) Endanger Life or 

Safety. 

(2) ‘‘Other reasons’’ cited on initial 

determinations. Identify the ‘‘Other 

Reason’’ response cited when 

responding to a FOIA request and enter 

the number of times each was claimed. 

(i) No records. Enter the number of 

times a reasonable search of files failed 

to identify records responsive to subject 

request. 

(ii) Referrals. Enter the number of 

times a request was referred to another 

DoD Component or Federal Agency for 

action. 

(iii) Request withdrawn. Enter the 

number of times a request and/or appeal 

was withdrawn by a requester. 

(iv) Fee-related reason. Requester is 

unwilling to pay the fees associated 

with a request; the requester is past due 

in the payment of fees from a previous 

FOIA request; or the requester disagrees 

with a fee estimate. 

(v) Records not reasonably described.

Enter the number of times a FOIA 

request could not be acted upon since 

the record had not been described with 

sufficient particularity to enable the 

Army Activity to locate it by conducting 

a reasonable search. 

(vi) Not a proper FOIA request for 

some other reason. Enter the number of 

times the requester has failed 

unreasonably to comply with 

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Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77865

related imposed by this part or an Army 

Activity’s supplementing regulation. 

(vii) Not an agency record. Enter the 

number of times a requester was 

provided a response indicating the 

requested information was not a record 

within the meaning of the FOIA and this 

part. 

(viii) Duplicate request. Record 

number of duplicate requests closed for 

that reason (e.g., request for the same 

information by the same requester). This 

includes identical requests received via 

different means (e.g., electronic mail, 

facsimile, mail, and courier) at the same 

or different times. 

(ix) Other (Specify). Any other reason 

a requester does not comply with 

published rules, other than those 

reasons outlined in paragraphs (b) (2) (i) 

through (viii) of this section. 

(x) Total. Enter the sum of paragraphs 

(b) (2) (i) through (ix) of this section, in 

the block provided on the form (total 

other reasons). This number will be 

equal to or greater than the number in 

item 1e on the report form, since more 

than one reason may be claimed for 

each ‘‘Other Reason’’ response. 

(3) (b)(3) Statutes invoked on initial 

determinations. Identify the number of 

times you have used a specific statute to 

support each (b)(3) exemption. List the 

statutes used to support each (b)(3) 

exemption; the number of instances in 

which the statute was cited; note 

whether or not the statute has been 

upheld in a court hearing; and provide 

a concise description of the material 

withheld in each individual case by the 

statute’s use. Ensure you cite the 

specific sections of the acts invoked. 

The total number of instances reported 

will be equal to or greater than the total 

number of (b)(3) exemptions listed in 

Item 2a on the report form. 

(c) ITEM 3 appeal determinations.

Please note that PA appeals, which are 

also processed as FOIA appeals, are 

reported here. 

(i) Total appeal responses. Enter the 

total number of FOIA appeals 

responded to (completed) during the 

fiscal year.

(ii) Granted in full. Enter the total 

number of FOIA appeals responded to 

and granted in full during the year. 

(iii) Denied in part. Enter the total 

number of FOIA appeals responded to 

and denied in part based on one or more 

of the FOIA exemptions. (Do not report 

‘‘Other Reason Responses’’ as a partial 

denial here, unless a FOIA exemption is 

used also.) 

(iv) Denied in full. Enter the total 

number of FOIA appeals responded to 

and denied in full based on one or more 

of the FOIA exemptions. (Do not report 

‘‘Other Reason Responses’’ as denials 

here, unless a FOIA exemption is used 

also). 

(v) ‘‘Other reason’’ responses. Enter 

the total number of FOIA appeals in 

which you were unable to provide the 

requested information based on an 

‘‘Other Reason’’ response. 

(vi) Total actions. Enter the total 

number of FOIA appeal actions taken 

during the fiscal year. This number will 

be the sum of items 3b, through 3e, and 

should be equal to or greater than the 

number of Total Appeal Responses, item 

3a on the report form. 

(d) ITEM 4 Appeal exemptions and 

other reasons. (1) Exemptions Invoked 

on Appeal Determinations. Enter the 

number of times an exemption was 

claimed for each appeal that was denied 

in full or in part. Since more than one 

exemption may be claimed when 

responding to a single request, this 

number will be equal to or greater than 

the sum of items 3c, and 3d on the 

report form. Note that the (b)(7) 

exemption is reported by subcategory 

(A) through (F): (A) Interfere with 

Enforcement; (B) Fair Trial Right; (C) 

Invasion of Privacy; (D) Protect 

Confidential Source; (E) Disclose 

Techniques, and (F) Endanger Life or 

Safety. 

(2) ‘‘Other reasons’’ cited on appeal 

determinations. Identify the ‘‘Other 

Reason’’ response cited when 

responding to a FOIA appeal and enter 

the number of times each was claimed. 

This number may be equal to or 

possibly greater than the number in item 

3e on the report form, since more than 

one reason may be claimed for each 

‘‘Other Reason’’ response. 

(3) (b)(3) Statutes invoked on appeal 

determinations. Identify the number of 

times a specific statute has been used to 

support each (b)(3) exemption identified 

in item 4a on the report form DD 2564. 

List the statutes used to support each 

(b)(3) exemption; the number of 

instances in which the statute was cited; 

note whether or not the statute has been 

upheld in a court hearing; and provide 

a concise description of the material 

withheld in each individual case by the 

statute’s use. Ensure citation to the 

specific sections of the statute invoked. 

The total number of instances reported 

will be equal to or greater than the total 

number of (b)(3) exemptions listed in 

Item 4a on the report form. 

(e) ITEM 5 Number and median age 

of initial cases pending:

(1) Total initial cases pending:

(i) Beginning and ending report 

period: Midnight, 2400 hours, 

September 30,of the Preceding Year -or0001 hours, October 1,is the beginning 

of the report period. Midnight, 2400 

hours, is the close of the reporting 

period.

(ii) The number for the beginning 

report period must be the same number 

reported as of the end of the report 

period from the previous report. 

(2) Median age of initial requests 

pending: Report the median age in days 

(including holidays and weekends) of 

initial requests pending. 

(3) Examples of median calculation.

(i) If given five cases aged 10, 25, 35, 65, 

and 100 days from date of receipt as of 

the previous September 30th, the total 

requests pending is five (5). The median 

age (days) of open requests is the 

middle, not average value, in this set of 

numbers (10, 25, 35, 65, and 100), 35 

(the middle value in the set). 

(ii) If given six pending cases, aged 

10, 20, 30, 50, 120, and 200 days from 

date of receipt, as of the previous 

September 30th, the total requests 

pending is six (6). The median age 

(days) of open requests 40 days (the 

mean [average] of the two middle 

numbers in the set, in this case the 

average of middle values 30 and 50). 

(4) Accuracy of calculations.

Activities must ensure the accuracy of 

calculations. As backup, the raw data 

used to perform calculations should be 

recorded and preserved. This will 

enable recalculation of median [and 

mean values] as necessary. Activities 

may require subordinate elements to 

forward raw data, as deemed necessary 

and appropriate. 

(5) Average. If an Activity believes 

that ‘‘average’’ (mean) processing time is 

a better measure of performance, then 

report ‘‘averages’’ (means) as well as 

median values (e.g., with data reflected 

and plainly labeled on plain bond as an 

attachment to the report). However, 

‘‘average’’ (mean) values will not be 

included in the consolidated Army 

report unless all Activities report it. 

(f) ITEM 6 number of initial requests 

received during the fiscal year. Enter the 

total number of initial FOIA requests 

received during the reporting period 

(fiscal year being reported). 

(g) ITEM 7 types of requests processed 

and median age. Information is reported 

for three types of initial requests 

completed during the reporting period: 

Simple; Complex; and Expedited 

Processing. The following items of 

information are reported for these 

requests: 

(1) Total number of initial requests.

Enter the total number of initial requests 

processed [completed] during the 

reporting period (fiscal year) by type 

(Simple, Complex and Expedited 

Processing) in the appropriate row on 

the form. 

77866 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

(2) Median age (Days). Enter the 

median number of days [calendar days 

including holidays and weekends] 

required to process each type of case 

(Simple, Complex and Expedited 

Processing) during the period in the 

appropriate row on the form. 

(3) Example. Given seven initial 

requests, multitrack—simple completed 

during the fiscal year, aged 10, 25, 35, 

65, 79, 90 and 400 days when 

completed. The total number of requests 

completed was seven (7). The median 

age (days) of completed requests is 65, 

the middle value in the set. 

(h) ITEM 8 Fees collected from the 

public. Enter the total amount of fees 

collected from the public during the 

fiscal year. This includes search, review 

and reproduction costs only.

(i) ITEM 9 FOIA program costs. (1) 

Number of full time staff. Enter the 

number of personnel your agency had 

dedicated to working FOIA full time 

during the fiscal year. This will be 

expressed in work-years [man-years]. 

For example: ‘‘5.1, 3.2, 1.0, 6.5, et al.’’

TABLE 7–1.—SAMPLE COMPUTATION OF WORK YEARS FOR FULL TIME STAFF

Employee 

Number of 

months 

worked 

Work-years Note 

Smith, Jane ........................ 6 .5 Hired full time at middle of fiscal year. 

Public, John Q. .................. 4 .34 Dedicated to full time FOIA processing last quarter of the fiscal year. 

Brown, Tom ....................... 12 1.0 Worked FOIA full time all fiscal year. 

Totals .......................... 22 1.84 

(2) Number of part time staff. Enter 

the number of personnel your agency 

had dedicated to working FOIA part 

time during the fiscal year. This will be 

expressed in work-years [man-years]. 

For example: ‘‘5.1, 3.2, 1.0, 6.5, et al.’’

TABLE 7–2.—COMPUTATION OF WORK YEARS FOR PART TIME STAFF

Employee 

Number of 

months 

worked 

Work-years Note 

Public, John Q. ................. 200 .1 Amount of time devoted to part time FOIA processing before becoming full time 

FOIA processor in previous example. 

White, Sally ....................... 400 .2 Processed FOIAs part time while working as paralegal in General Counsel’s Office. 

Peters, Ron ....................... 1,000 .5 Part time employee dedicated to FOIA processing. 

Totals ......................... *1,600/2,000 ........................

*(hours worked in a year) equals 0.8 work-years. 

(3) Estimated Litigation Cost. Report 

your best estimate of litigation costs for 

the FY. Include all direct and indirect 

expenses associated with FOIA 

litigation in U.S. District Courts, U.S. 

Circuit Courts of Appeals, and the U.S. 

Supreme Court. 

(4) Total Program Cost. Report the 

total cost of FOIA program operation 

within your agency. Include your 

litigation costs in this total. While you 

do not have to report detailed cost 

information as in the past, you should 

be able to explain the techniques by 

which you derived your agency’s total 

cost figures if the need arises. 

(i) Before the close of each fiscal year, 

the DoD OFOISR will dispatch the latest 

OSD Composite Rate Chart for military 

personnel to DoD Components. This 

information may be used in computing 

military personnel costs. 

(ii) Army Activities should compute 

their civilian personnel costs using rates 

from local Office of Personnel 

Management (OPM) Salary Tables and 

shall add 16% for benefits. 

(iii) Data captured on DD Form 2086, 

and DD Form 2086–1, shall be 

summarized and used in computing 

total costs. 

(iv) An overhead rate of 25% shall be 

added to all calculated costs for 

supervision, space, and administrative 

support. 

(j) ITEM 10 authentication. The 

official that approves the agency’s report 

submission to DA will sign and date; 

enter typed name and duty title; and 

provide both the agency’s name and 

phone number for questions about the 

report. The consolidated Annual FOIA 

Report will be made available to the 

public in electronic format by DoD.

Appendix A to Part 518—References 

(a) References. 

(1) AR 1–20 Legislative Liaison; 

(2) AR 20–1 Inspector General Activities 

and Procedures; 

(3) AR 25–1 The Army Information 

Management; 

(4) AR 25–11 Record Communications and 

the Privacy Communications System; 

(5) AR 25–400–2 The Army Records 

Information Management System (ARIMS); 

(6) AR 27–20 Claims; 

(7) AR 36–2 Audit Reports and Follow-up; 

(8) AR 40–66 Medical Record 

Administration and Health Care 

Documentation; 

(9) AR 40–68 Quality Assurance 

Administration; 

(10) AR 40–400 Patient Administration; 

(11) AR 195–2 Criminal Investigation 

Activities; 

(12) AR 25–71 The Army Privacy Program; 

(13) AR 360–1 The Army Public Affairs 

Program; 

(14) AR 380–5 Department of the Army 

Information Security Program; 

(15) AR 381–10 U.S. Army Intelligence 

Activities; 

(16) AR 381–12 Subversion and Espionage 

Directed Against The U.S. Army (SAEDA); 

(17) AR 381–20 The Army 

Counterintelligence Program;

(18) AR 530–1 Operations Security 

(OPSEC); 

(19) AR 600–85 Army Substance Abuse 

Program; and 

(20) AR 608–18 The Army Family 

Advocacy Program. 

(b) Related publications. A related 

publication is merely a source of additional 

information. The user does not have to read 

it to understand this part. 

(1) AR 10–5 Headquarters, Department of 

the Army; 

(2) AR 27–10 Military Justice;

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77867

(3) AR 27–40 Litigation; 

(4) AR 27–60 Intellectual Property; 

(5) AR 60–20 Army and Air Force 

Exchange Service Operating Policies AFR 

147–14; 

(6) AR 70–31 Standards for Technical 

Reporting; 

(7) AR 190–45 Law Enforcement Reporting; 

(8) AR 380–10 Foreign Disclosure and 

Contacts with Foreign Representatives; 

(9) AR 381–45 Investigative Records 

Repository; 

(10) AR 385–40 Accident Reporting and 

Records; 

(11) DA Pam 25–30 Consolidated Army 

Publications and Index Forms; 

(12) DA Pam 25–51 The Army Privacy 

Program—System of Records Notices and 

Exemption Rules; 

(13) DoD Directive 5100.3 Support of the 

Headquarters of Combatant and Subordinate 

Joint Commands, November 15, 1999; 

(14) DoD Directive 5230.24 Distribution 

Statements on Technical Documents, March 

18, 1987; 

(15) DoD Directive 5230.25 Withholding of 

Unclassified Technical Data From Public 

Disclosure, November 6, 1984; 

(16) DoD Directive 5230.9 Clearance of 

DoD Information for Public Release, April 9, 

1996; 

(17) DoD Directive 5400.4 Provision of 

Information to Congress, January 30, 1978; 

(18) DoD Directive 5400.7 DoD Freedom of 

Information Act (FOIA) Program, September 

29, 1997; 

(19) DoD Directive 5400.11 DOD Privacy 

Program, December 13, 1999; 

(20) DoD Directive 7650.1 General 

Accounting Office (GAO) and Comptroller 

General Access to Records, September 11, 

1997; 

(21) DoD Directive 7650.2 General 

Accounting Office Reviews and Reports, July 

13, 2000; 

(22) DoD Directive 8910.1 Management and 

Control of Information Requirements, June 

11, 1993; 

(23) DoD Federal Acquisition Regulation 

Supplement (DFARS), Part 227—Patents, 

Data, and Copyrights, See also 48 CFR part 

227; 

(24) Department of Defense Financial 

Management Regulation (Reimbursable 

Operations, Policy and Procedures) Volume 

11A, April 2003 authorized by DoD 

Instruction 7000.14, DoD Financial 

Management Policy and Procedures, 

November 15, 1992; 

(25) DoD Instruction 5400.10 OSD 

Implementation of DoD Freedom of 

Information Act Program, January 24, 1991; 

(26) DoD 5200.1–R Information Security 

Program, January 1997, authorized by DoD 

Directive 5200.1, December 13, 1996, DoD 

Information Security Program; 

(27) DoD 5400.7–R DoD Freedom of 

Information Act Program, September 4, 1998; 

(28) DoD 5400.11–R Department of Defense 

Privacy Program, August 1983, authorized by 

DoD Directive 5400.11, December 13, 1999, 

DoD Privacy Program; 

(29) Executive Order 12600 Predisclosure 

Notification Procedures for Confidential 

Commercial Information, June 23, 1987, 52 

FR 23781; 

(30) Public Law 86–36 National Security 

Information Exemption, Codified at 50 U.S.C. 

402, as amended; 

(31) Public Law 104–191 Health Insurance 

Portability and Accountability Act of 1996, 

Codified at 42 U.S.C. 1171–1179, as 

amended; 

(32) Section 822 of the National Defense 

Authorization Act for FY 90 and 91 (Pub. L. 

101–189, November 29, 1989: 103 Stat. 1382, 

1503); 

(33) 5 U.S.C. 551–559, Administrative 

Procedures Act; 

(34) 5 U.S.C. 552, as amended: public 

information; agency rules, opinions, orders, 

records, and proceedings. (FOIA); 

(35) 5 U.S.C. 552a, as amended: records 

about individuals, (PA of 1974);

(36) 10 U.S.C. 128, Physical Protection of 

Special Nuclear Material: Limitation on 

Dissemination of Unclassified Information; 

(37) 10 U.S.C. 130, Authority to Withhold 

from Public Disclosure Certain Technical 

Data; 

(38) 10 U.S.C. 130 (b), Personnel in 

Overseas, Sensitive, or Routinely Deployable 

Units: nondisclosure of personally 

identifying information; 

(39) 10 U.S.C. 1102 (f), Confidentiality of 

Medical Quality Assurance Records: 

Qualified Immunity for Participants; 

(40) 10 U.S.C. 2305(g) Prohibition on 

Release of Contractor Proposals; 

(41) 10 U.S.C. 2320–2321, Rights in 

Technical Data; 

(42) 10 U.S.C. 2328, Release of Technical 

Data under Freedom of Information Act: 

Recovery of Costs; 

(43) 17 U.S.C. 106, Exclusive Rights in 

Copyrighted Works; 

(44) 18 U.S.C. 798, Disclosure of Classified 

Information; 

(45) 18 U.S.C. 3500, The Demands for 

Production of Statements and Reports of 

Witnesses (The Jencks Act); 

(46) 31 U.S.C. 3717, Interest and Penalty on 

Claims; 

(47) 32 CFR Part 518, The Army FOIA 

Program; 

(48) 35 U.S.C. 181–188, Secrecy of Certain 

Inventions and Filing of Application in 

Foreign Country; 

(49) 41 U.S.C. 423, Restrictions on 

Disclosing and Obtaining Contractor Bid or 

Proposal Information or Source Selection 

Information; 

(50) 42 U.S.C. 2162, Classification and 

Declassification of Restricted Data; 

(51) 44 U.S.C. 3301–3324, Disposal of 

Records; 

(52) 45 CFR Part 164, Security and Privacy 

of Individually Identifiable Health 

Information; and 

(53) 50 U.S.C. 403–3, War and National 

Defense, Protection of Intelligence Sources 

and Methods.

Appendix B to Part 518—Addressing 

FOIA Requests 

(a) General. Army records may be 

requested from those Army officials who are 

listed in 32 CFR Part 518 (see appendix A of 

this part). Contact the DA FOIA/PA Office, to 

coordinate the referral of requests if there is 

uncertainty as to which Army activity may 

have the records. Send requests to particular 

installations or organizations as follows: 

(1) Current publications and records of DA 

field commands, installations, and 

organizations. See also: http://

books.army.mil/. 

(2) Send the request to the commander of 

the command, installation, or organization, to 

the attention of the FOIA Official. 

(3) Consult AR 25–400–2 (ARIMS) for more 

detailed listings of all record categories kept 

in DA offices. 

(4) Contact the installation or organization 

public affairs officer for help if you cannot 

determine the official within a specific 

organization to whom your request should be 

addressed. 

(b) Department of the Army publications. 

Send requests for current administrative, 

training, technical, and supply publications 

to the National Technical Information 

Service, U.S. Department of Commerce, 5285 

Port Royal Road, Springfield, VA 22161. 

NTIS handles general public requests for 

unclassified, uncopyrighted, and 

nondistribution-restricted Army publications 

not sold through the Superintendent of 

Documents. 

(c) Military personnel records. Send 

requests for military personnel records of 

information as follows: 

(1) Army Reserve personnel not on active 

duty and retired personnel—Commander, 

U.S. Army Human Resources Command, St. 

Louis, 1 Reserve Way, St. Louis, MO 63132–

5200; commercial. 

(2) Army officer personnel discharged or 

deceased after July 1, 1917 and Army 

enlisted personnel discharged or deceased 

after November 1, 1912—Director, National 

Personnel Records Center, 9700 Page Ave., 

St. Louis, MO 63132–5100. 

(3) Army personnel separated before the 

dates specified in paragraph (2), above—Old 

Military and Civilian Records Unit (Archives 

1), National Archives and Records 

Administration, Washington, DC 20408–

0001. 

(4) Army National Guard officer 

personnel—Chief, National Guard Bureau. 

Army National Guard enlisted personnel—

Adjutant General of the proper State. 

(5) Active duty commissioned and warrant 

officer personnel—Commander, U.S. Army 

Human Resources Command, ATTN: AHRC–

FOI, Alexandria, VA 22332–0404; 

commercial. Active duty enlisted 

personnel—Commander, U.S. Army Enlisted 

Records and Evaluation Center, ATTN: 

PCRE–RP, 8899 East 56th Street, 

Indianapolis, IN 46249–5301; commercial.

(d) Medical records. (1) Medical records of 

non-active duty military personnel. Use the 

same addresses as for military personnel 

records. 

(2) Medical records of military personnel 

on active duty. Address the medical 

treatment facility where the records are kept. 

If necessary request locator service. 

(3) Medical records of civilian employees 

and all dependents. Address the medical 

treatment facility where the records are kept. 

If the records have been retired, send 

requests to the Director, National Personnel 

Records Center, Civilian Records Facility, 

111 Winnebago St., St. Louis, MO 63118–

4199. 

(e) Legal records. (1) Records of general 

courts-martial and special courts-martial in 

77868 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

which bad conduct discharge was approved. 

For cases not yet forwarded for appellate 

review, apply to the staff judge advocate of 

the command having jurisdiction over the 

case. For cases forwarded for appellate 

review and for old cases, apply to the U. S. 

Army Legal Services Agency, ATTN: JALS–

CCO, 901 North Stuart Street, Arlington, VA 

22203. 

(2) Records of special courts-martial not 

involving a bad conduct discharge. These 

records are kept for 10 years after completion 

of the case. If the case was completed within 

the past three years, apply to the staff judge 

advocate of the headquarters where it was 

reviewed. If the case was completed from 3 

to 10 years ago, apply to the National 

Personnel Records Center (Military Records), 

9700 Page Ave., St. Louis, MO 63132–5100. 

If the case was completed more than 10 years 

ago, the only evidence of conviction is the 

special courts-martial order in the person’s 

permanent records. 

(3) Records of summary courts-martial. 

Locally maintained records are retired 3 

years after action of the supervisory 

authority. Request records of cases less than 

3 years old from the staff judge advocate of 

the headquarters where the case was 

reviewed. After 10 years, the only evidence 

of conviction is the summary courts-martial 

order in the person’s permanent records. 

(4) Requests submitted under paragraphs 

(e) (2), and (3), of this appendix. These 

requests will be processed in accordance 

with Subpart E of this part. The IDA is The 

Judge Advocate General, HQDA (DAJA–CL), 

Washington DC 20310–2200. 

(5) Administrative settlement of claims. 

Apply to the Chief, U.S. Army Claims 

Service, ATTN: JACS–TC, Building 4411, 

Llewellyn Avenue, Fort George G. Meade, 

MD 20755–5360. 

(6) Records involving debarred or 

suspended contractors. Apply to U.S. Army 

Legal Services Agency (JALS–PF), 901 North 

Stewart Street, Arlington, VA 22203. 

(7) Records of all other legal matters (other 

than records kept by a command, 

installation, or organization staff judge 

advocate). Apply to HQDA (DAJA–AL), 

Washington D.C. 20310–2200. 

(f) Civil works program records. Civil 

works records include those relating to 

construction, operation, and maintenance for 

the improvement of rivers, harbors, and 

waterways for navigation, flood control, and 

related purposes, including shore protection 

work by the Army. Apply to the proper 

division or district office of the Corps of 

Engineers. If necessary to determine the 

proper office, contact the Commander, U.S. 

Army Corps of Engineers, 20 Massachusetts 

Avenue, ATTN: CECC–K, Washington DC 

20314–1000. 

(g) Civilian personnel records. Send 

requests for personnel records of current 

civilian employees to the employing 

installation. Send requests for personnel 

records of former civilian employees to the 

Director, National Personnel Records Center, 

Civilian Records Facility, 111 Winnebago St., 

St. Louis, MO 63118–4199. 

(h) Procurement records. Send requests for 

information about procurement activities to 

the contracting officer concerned or, if not 

feasible, to the procuring activity. If the 

contracting officer or procuring activity is not 

known, send inquiries as follows: 

(1) Army Materiel Command procurement: 

Commander, U.S. Army Materiel Command, 

ATTN: AMCID–F, 5001 Eisenhower Ave., 

Alexandria, VA 22333–0001. 

(2) Corps of Engineers procurement: 

Commander, U.S. Army Corps of Engineers, 

20 Massachusetts Avenue, ATTN: CECC–K, 

WASH DC 20314–1000. 

(3) All other procurement: HQDA (DAJA–

KL), 2200 Army Pentagon, Washington, D.C. 

20310–2200. 

(i) Criminal investigation files. Send 

requests involving criminal investigation 

files to the Commander, U.S. Army Criminal 

Investigation Command, ATTN: CICR–FP, 

6010 6th St., Bldg. #1465, Ft. Belvoir, VA 

22060–5585. Only the Commanding General, 

USACIDC, can release any USACIDCoriginated criminal investigation file. 

(j) Personnel security investigation files 

and general Army intelligence records. Send 

requests for personnel security investigation 

files, intelligence investigation and security 

records, and records of other Army 

intelligence matters to the Commander, U.S. 

Army Intelligence and Security Command, 

ATTN: IAMG–CIC–FOI/PO, 4552 Pike Road, 

Fort George G. Meade, MD 20755–5995. 

(k) Inspector General records. Send 

requests involving records within the 

Inspector General system to HQDA (SAIG–

ZXL), 1700 Army Pentagon, Washington, DC 

20310–1700. AR 20–1 governs such records. 

(l) Army records in Government records 

depositories. Non-current Army records are 

in the National Archives of the United States, 

Washington, DC 20408–0001; in Federal 

Records Centers of NARA; and in other 

records depositories. Requesters must write 

directly to the heads of these depositories for 

copies of such records. A list of pertinent 

records depositories is published in AR 25–

400–2, table 10–1.

[FR Doc. 04–27848 Filed 12–27–04; 8:45 am] 

BILLING CODE 3710–08–U