i)

. Not an agency record: 2
h. Duplicate request: 13

i, Other’ (specify): 14

Item VII.

Compliance With Time Limits/Status of Pending Requests

A. Median processing time for requests processed during the year (FY 2002).

1. Simple requests.

a. Number of requests processed: 62,875

b. Median number of days to process: 19.5
2. Complex requests.

a. Number of requests processed: 13,391

b. Median number of days to process: 57.5

. Requests accorded expedited processing.

we

a. Number of requests processed: 677

b. Median number of days to process: 1

B. Status of pending requests (as of: 30 Sep 02).
1. Number of requests pending: 12,543

2. Median age of above cases in days: 87

* Other reason was appeals not submitted within required time frame.

~ 12


Item I].

Definitions of Terms and Acronyms Used in the Report

A. Agency-specific acronyms.
1. Defense Intelligence Agency: DIA.
2. National Imagery and Mapping Agency: NIMA.
3. National Security Agency: NSA.
4. National Reconnaissance Office: NRO.
5. Prisoner of War/Missing in Action: POW/MIA.

B. Other agency acronyms.
1. Central Intelligence Ageny: CIA.
C. “Other Reasons” Cited on Initial and Appeal Determinations.

1. No Records. A reasonable search of files failed to identify records responsive to the
request.

2. Referrals. The request was referred to another DoD Component or Federal Agency for
action.

3. Withdrawn. The request was withdrawn by the requester.

4. Fee-Related Reason. The requester is unwilling to pay fees associated with the request;
the requester is past due in the payment of fees associated with a previous FOIA request; or
the requester disagrees with a fee estimate.

5. Records not Reasonably Described. The request could not be acted upon since the record
had not been described with sufficient particularity 10 enable the DoD Component to locate it
by conducting a reasonable search.

6. Nota Proper FOIA Request for Some Other Reason. The requester has failed
unreasonably to comply with legitimate procedural requirements which are not not fee-
related.

7, Notan Agency Record. The requested information was not a record within the meaning
of the FOIA.

i)



responsibility of Director of CIA to determine whether sources or methods should be disclosed): Krikorian v.
Department of State. 984 F.2d 461. 465 (D.C. Cir. 1993) (same); Fitzgibbon v. CIA. 911 F.2d 755, 761 (D.C. Cir.
1990) (same): Hunt. CIA. 981 F.2d 1116, 1118 (9" Cir. 1992) (upholding agency’s “GlomarTM response to request on
foreign national. because acknowledgement of any records would reveal sources and methods); Knight v. CIA, 872
F.2d 660, 663 (8" Cir. 1989) (same); Levy v. CIA. No. 95-1276, slip op. at 14-17 (D.D.C. Nov. 16, 1995) (same).
aff'd, No. 96-5004 (D.C. Cir. Jan. 15, 199 oman v. Dailey, No. 97-1164, 1998 U.S. Dist. LEXIS 6708, at **10-
11 (D.D.C. May 11. 1998) (concluding that agency properly refused to confirm or deny existence of records
pertaining to agency personnel and spy satellite programs); Blazy v. Tenet. 979 F. Supp. 10, 23-24 (D.D.C. 1997)
(protecting intelligence sources and methods located in requester’s personnel file), summary affirmance granted, No.
97-5330 (D.C. Cir. May 12, 1998); Andrade v. CIA. No. 95-1215, 1997 WL 527347. at **3-S (D.D.C. Aug. 18.
1997) (holding intelligence methods used in assessing employee fitness protectible): Earth Pledge Found. v. CIA. 988
F. Supp. 623, 627 (S.D.N.Y. 1996) (finding agency’ s“Glomar” response proper because acknowledgement of records
would generate “danger of revealing sources”), affd per curiam. 128 F.3d 788 (2d Cir. 1997) (unpublished table
decision); Campbell v. United States Dep't of Justice, No. 89-CV-3016, 1996 WL 554511, at *6 (D.D.C. Sept. 19.
1996) (“CIA director is to be afforded “great deference’ by courts determining the propriety of nondisclosure of
intelligence sources”); cf. Linder v. DOD, 133 F.3d 17. 25 (D.C. Cir. 1998) (“[C]ourts must give ‘great deference’ to
the Director of Central Imtelligence’s determination that a classified document could reveal intelligence sources and
methods and endanger national security.) (non-FOIA case).

Minier, 88 F.3d at 801; Roman, 1998 U.S. Dist. LEXIS 6708, at **10-11: Blazy. 979 F. Supp. at 23-24; Earth Pledge
Found.. 988 F. Supp. at 627-28; Campbell, 1996 WL 55451}, at *6; Kronisch v United States, No. 83-2458, 1995
WL 303625, at **4-6 (S.D.N.Y. May 18, 1995); Hunsberger v. CIA, No. 92-2186, slip op. at 3 (D.D.C. Apr. 5,
1995); Rothschild v. CIA, No. 91-1314, 1992 WL 71393, at *2 (D.D.C. Mar. 25, 1992); Lawyers Comm. for Human
Rights v. INS, 721 F. Supp. 552, 567 (S.D.N.Y. 1989); Pfeiffer v. CIA. 721 F. Supp. 337, 341-42 (D.D.C. 1989).



11.

Denial: An agency decision not to release any part of a record or records in response to
a FOIA request because all the information in the requested records is determined by the
agency to be exempt under one or more of the FOIA's exemptions, or for some
procedural reason (such as because no record is located in response to a FOIA request).

Time limits: The time period in the Freedom of Information Act for an agency to
respond to a FOIA request (ordinarily 20 working days from proper receipt of a
"perfected" FOIA request).

. “Perfected” request: A FOIA request for records which adequately describes the records

sought, which has been received by the FOIA office of the agency or agency component
in possession of the records, and for which there is no remaining question about the
payment of applicable fees.

Exemption 3 statute: A separate federal statute prohibiting the disclosure of a certain
type of information and authorizing its with holding under FOIA subsection (b)(3).

Median number: The middle, not average, number. For example, of 3, 7, and 14, the
median number is 7.

Average number: The number obtained by dividing the sum of a group of numbers by
the quantity of numbers in the group. For example. of 3, 7, and 14, the average number

is 8.


8. Duplicate Request. A request for the same information by the same requester. This
includes identical requests received via different means (e.g., electronic mail, facsimile.
mail, courier) at the same or different times.

9i. Other. Any other reason a requester does not comply with published rules. other than
those mentioned above.

D. Basic terms, expressed in common terminology.

1. Freedom of Information Act/Privacy Act (FOIA/PA) request: A FOIA request is
generally a request for access to records concerning a third party, an organization, or a
particular topic of interest. A Privacy Act request is a request for records concerning
oneself: such requests are also treated as FOIA requests.

2. Initial Request: A request to a federal agency for access to records under the Freedom of
Information Act (FOIA).

3. Appeal: A request to a federal agency asking that it review at a higher administrative
level a full denial or partial denial of access to records under the Freedom of Information

Act, or any other adverse FOJA determination.

4. Processed Request or Appeal: A request or appeal for which an agency has taken a final
action on the request or the appeal in all respects.

5. Multi-track processing: A system in which simple requests requiring relatively minimal
review are placed in one processing track and more voluminous and complex requests are
placed in one or more other tracks. Requests in each track are processed on a first-in/first
out basis. A requester who has a compelling need for records may request expedited

processing (see below).

6. Expedited processing: An agency will process a FOIA request on an expedited basis
when a requester has shown a compelling need or urgency for the records which warrants

prioritization of his or her request over other requests that were made earlier.

7. Simple request: A FOIA request that an agency using multi-track processing places in its
fastest (nonexpedited) track based on the volume and/or simplicity of records requested.

8. Complex request: A FOIA request that an agency using multi-track processing places in
a slower track based on the volume and/or complexity of records requested.

9. Grant: An agency decision.to disclose all records in full in response to a FOIA request.

10. Partial grant: An agency decision to disclose a record in part in response to a FOIA
request. deleting information determined to be exempt under one or more of the FOIA's
exemptions; or a decision to disclose some records in their entireties, but to withhold
others in whole or in part.

ww



Court

Upheld? | Statute Types of Material Withheld Under Statute

No 31 USC §3729(d) False Claims Act

No 35 USC §205 Confidentiality of Inventions Informaiton

No 41 USC §253 (b)(1)(m) Disclosure of Contractor Proposals

No 41 USC §423 Procurement Integrity

No 42 USC §290dd-2 Confidentiality of Patient Records

Yes’ | 42 USC §2162(a) Restricted Data (Atomic Energy), Atomic Energy Act of 1954

No 42 USC §2168(a)(1)(C) | Formerly Restricted Data (Atomic Energy), Atomic Energy Act of

1954

Yes 50 USC §402 Note Sec NSA Functions and Information

6, P.L. 86-36

Yes® | 50 USC §403-3(c)(6) Intelligence Sources and Methods

National Security Act of
1947, Subsection
102(d)(3), as amended

Yes’ | 50 USC §403(g), Section | CIA Functions and Information

6 of the CIA Act of 1949

No 50 USC §435 Note Sec | Disclosure of Information Conceming US Personnel Classified as
1082, P.L. 102-190 POW/MIA During Vietnam Conflict (McCain “Truth Bill”)

No 50 USC §2411 (c) Export License application Information

Item IV
" Chenkin

ndnotes
_ Department of the Army, No. 93-494, 1994 U.S. Dist. LEXIS 20907, at *§ (E.D. Pa. Jan. 14, 1994), aff'd.

61 F.3d 894 (3d Cir. 1995) (unpublished table decision); Colonial Trading Corp. v. Department of the Navy. 735 F.
Supp. 429, 431 (D.D.C. 1990): see also American Friends Serv. Comm. v. DOD. No. 83-4916, 1986 WL 10659, at
*4(E.D. Pa. Sept. 25, 1986), rev'd on other grounds, 831 F.2d 441 (3d Cir. 1987).

Winter v. NSA. 569 F. Supp. 545. S48 (S.D, Cal. 1983): see also Gilmore v. NSA. No. C 92-3646. 1993 U.S. Dist.
LEXIS 7694, at **26-27 (N.D. Cal. May 3, 1993) (finding that information on cryptography currently used by NSA
“integrally related” to function and activity of intelligence gathering and thus protected).

McDonnell v. United States, 4 F.3d 1227, 1251 (3d Cir. 1993) (holding state juvenile delinquincy records outside
scope of statute).

Meeropol v. Smith. No. 75-1121, slip op. at $3-55 (D.D.C. Feb. 29. 1984), aff'd in relevant part & remanded in part
sub nom. Meeropol v. Meese, 790 F.2d 942 (D.C. Cir. 1986). But see General Elec. Co. v. NRC, 750 F.2d 1394.
1401 (7" Cir. 1984) (concluding that provision concerning technical information furnished by license applicants
lacked sufficient specificity to qualify as Exemption 3 statute).

Founding Church of Scientology v. NSA, 610 F.2d 824. 828 (D.C. Cir. 1979); Havden v. NSA, 452 F. Supp. 247.252
(D.D.C. 1978). aff'd, 608 F.2d 1381 (D.C. Cir. 1979).

CIA v. Sims, 471 U.S. 159, 167 (1985): see also Minier v. CIA. 88 F.3d 796. 801 (9" Cir. 1996) (finding that agency
properly refused to confirm or deny existence of records concerning deceased person's alleged employment
relationship with CIA); Maynard v. CIA, 986 F.2d 547. $54 (1" Cir, 1993) (stating that under § 403(d)(3) it is



Department of Defense (DoD)

Freedom of Information Act
Program Report
for

Fiscal Year (FY) 2002

pom

Prepared By:

The Directorate for Freedom of Information
/ and Security Review (DFOISR)


(11) Exemption 7(E): 93

(12) Exemption 7(F): 162

(13) Exemption 8: 0
(14) Exemption 9: 0
4. Other reasons for nondisclosure (total): 22,953
a. No records: 6,346
b. Referrals: 7,489
c. Request withdrawn: 2,639
d. Fee-related reason: 746
e. Records not reasonably described: 836
f. Not a proper FOIA request for some other reason: 1,290
g. Not an agency record: 1,573
h. Duplicate request: 1,064
i. Other °(specify): 970

Item VI.

Appeals of Initial Denials of FOIA/PA Requests

A. Numbers of appeals.
1, Number of appeals received during fiscal year (FY 2002): 708
2. Number of appeals processed during fiscal year (FY 2002): 928
B. Disposition of appeals.

1. Number denied in full: 354

* Other reasons are: electronic referral, insufficient address/info, lacked 3 party waiver, and publicly sold
documents. :

10


Item V.

Initial FOTA/PA Access Requests

A. Numbers of initial requests.

1. Number of requests pending as of end of preceding fiscal year (1 Oct 01): 12,907!
2. Number of requests received during current fiscal year (FY 2002): 76,579
3. Number of requests processed during current fiscal year (FY 2002): 76,943
4. Number of requests pending as of end of current fiscal year (30 Sep 02): 12,543

B. Disposition of initial requests.

1. Number of grants: 40,458

2. Number of partial grants: 11,133

3. Number of denials: 2,399

a. Number of times each FOIA exemption used (counting each exemption once per

request).
(1) Exemption 1: 1,179
(2) Exemption 2: 1,891
(3) Exemption 3: 1,159
(4) Exemption 4: 1,375
(5) Exemption 5: 1,613
(6) Exemption 6: 6,583

(7) Exemption 7(A): 666

(8

Exemption 7(B): 27
(9) Exemption 7(C): 4,587

(10) Exemption 7(D): 290

‘ The current figure is compiled from the latest database statistics and is believed to be a more accurate figure than
that reported in last year’s report (12,696).


Item IV.

Exemption 3 Statutes Invoked

Court

Upheld? | Statute Types of Material Withheld Under Statute

No 5 USC §574(j) Administrative Dispute Resolution Act

No 10 USC §128 Authority to Withhold Unclassified Special Nuclear Weapons
Information

Yes! 10 USC $130 Authority to Withhold Unclassified Technical Data with Military
or Space Application

No 10 USC §130(b) Personnel in Overseas, Sensitive or Routinely Deployable Units

No 10 USC §130(c) Nondisclosure of Information: Certain Sensitive Information on
Foreign Governments and International Organizations

No 10 USC §424 Protection of Organizational and Personnel Information for DIA,

. NRO, and NIMA

No 10 USC §618(f) Action on Reports, of Selection, Generally for Promotion, Boards

No 10 USC §1102 Confidentiality of Medical Records

No 10 USC §1506(f) Debriefing of a Missing Person Returned to U.S. Control During
the Period Beginning on July 8, 1959, and ending on February 10,
1996

No 10 USC §2305(g) Protection of Contractor Proposals

No 10 USC §2371(i) Research Projects: Transactions Other Than Contracts and Grants

No 12 USC §3403 Confidentiality of Financial Records

No 15 USC §3705(e)(E) Centers for Industrial Technology — Reports of Technology
Innovations

No 16 USC §470w-3 National Historic Preservation

Yes’ 18 USC §798(a) Communications Intelligence

Yes 18 USC §5038 Interviews of Juveniles in Criminal Defense

No 22 USC §2778(e) Sec Control of Arms Exports

38(e) of the Arms Export
Control Act

6



ltem 1.

Basic Information Regarding the Report

A. Title. address. and telephone number of person to be contacted with questions about the

report:
Write to: Chief, Program Management Division (PMD)
Directorate for Freedom of Information & Security Review
1155 Defense Pentagon
Washington. DC 20301-1135
Telephone: (703) 697-3115

Name of Incumbent Chief, PMD: Mrs. Tamara Kk. Parlette

B. The electronic address (Universal Resource Line. URL) for this report is:
hup: ‘www.defenselink.mii pubs foi 02report

C. You may obtain a paper copy of DoD’s Annual FOIA Repon for Fiscal Year 2002 by writing
to the above address and asking for acopy. A FOIA request is nol necessary. Please include

a mailing address.

Item JI.

How to Make a FOIA Request

The Department of Defense (DoD) Freedom of Information Act Handbook provides
basic information about how to make a Freedom of Information Act (FOIA) request and general
information about the Freedom of Information Act Program within the Depanment of Defense
(DoD). This document also contains DoD component addresses. 3 brief description of response
times. and the reason why some requests are not granted. The DoD Freedom of Information Act

Handbook can be found at:

hup: www defenselink.mil pubs foi toapams.pdi



Item VIII.

Comparison With Previous Year

A. Number of initial expedited requestes received (FY 02) 1238
B. Number of initial expedited requests processed (FY 02) 677
Item IX.
Costs/FOIA Staffing

A. Staffing levels (expressed in work-years).

1. Number of full-time FOIA personnel: 294.65
2. Number of personnel with part-time or occasional FOIA duties: 424.17
3. Total number of personnel: 718.82

B. Total costs (including staff and all resources).

1, FOIA processing (including appeals): $39,528,693

2. Litigation-related activities (estimated): $521,523.00

3. Total costs: $40,050,216.00
13



Table of Contents

Basic Repori
hem I. Basic Information Regarding the Repori
Item I]. How to Make a FOLA Request

Item III. Definitions of Terms and Acronyms Used in the Repon

Item IV. Exemption 3 Statutes
Item V. Initial FOLA/PA Requests
Part A. Numbers of Initial Requests
Part B. Disposition of Initial Requests
Part B. Number 1. Exemptions Invoked on Initial Denials
Part B. Number 2. Other Reasons Cited on Initial Determinations for
Nondisclosure
Jtem VI. Appeals of Initial Denials of FOLA/PA Requests
Part A. Numbers of Appeals
Part B. Disposition of Appeals
Part B. Number 1. Exemptions Invoked on Appeal Denials
Part B. Number 2. Other Reasons Cited on Initial Determinations for
Nondisclosure

hem VII. Compliance with Time Limits/Status of Pending Requests

Pant A. Median Processing Times for Initial Requests Processed During the Year
Pari B. Status of Pending Requests

em VII. Comparison With Previous Year (Optional. Not Used)
hem IX. FOLA Staffing‘Costs
hem X. Fees Collected From Public

Jtem XJ. FOLA Regulation. Including Fee Schedule

a) te

owunwnw

10
10
11
a8

12

12
12


FREEDOM OF INFORMATION ACT
ANNUAL REPORT
FISCAL YEAR 2002
(Report Period: October 1.2001 through September 30. 2002)

TARY

EXECUTIVE SU

During fiscal year (FY) 2002. a total of 76.750 public requests for records under the Freedom of
Information Act (FOIA) were completed by the Department of Detense (DoD). In the processing of
these cases. the Department of Defense fully denied 2.299 and partially denied 11.133 out of 76.73
requests on the dasis of FOIA exemptions. Of those exemptions. 6°o were for classified information:
10%o for internai rules and practices: 6% for statutory exemptions: 7"o Tor proprietary data: §°« for
deliberative material: 34% for privacy information: and 28%o for law enforcement investigations. Twenty
two thousan¢. nine hundred and sixty (22.960) requests could not be filled in whole or in part for other
reasons. such as lack of records. referral to another agency. or lack of specificity sufficient to identify the
requested records. There were 92§ actions taken on appeals of denied requests (57 granted. 141 partially:
denied. 254 fully denied. and 376 not filled tor other reasons. as mentioned earher).

2 of requests during this report period

The total DoD operating cost associated with the processi
050.216. The average cost of processing a single case during this period was approximately

was S40.
301.42 (1.2% of total

§52].$2. Fee collections for records provided to the public amounted to S52

program cost).



2. Number denied in part: 141
3. Number completely reversed (granted): 57
a. Number of times each FOIA exemption used (counting each exemption once per
appeal).
(1) Exemption 1: 55
(2) Exemption 2: 43
(3) Exemption 3: 31
(4) Exemption 4: 39
(5) Exemption 5: 117
(6) Exemption 6: 186
(7) Exemption 7(A): 8
(8) Exemption 7(B): 1
(9) Exemption 7(C): 102
(10) Exemption 7(D): 4
(11) Exemption 7(E): 6
(12) Exemption 7(F): 1
(13) Exemption 8: 0
(14) Exemption 9: 0
4. Other reasons for nondisclosure (total): 376
a. No records: 106
b. Referrals: 33
c. Appeal withdrawn: 145
d. Fee-related reason: 46
e. Records not reasonably described: 5
f. Nota proper FOIA request for some other reason: 12


Item X.

Fees
. Total amount of fees collected by the agency for processing requests: $522,301.42
. Percentage of total costs: ra 1.3%
Item XI.

FOIA Regulations (Including Fee Schedule)

. The Department of Defense (DoD) Freedom of Information Act Program Regulation, DoD
5400.7-R, September 4, 1998, which provides guidance regarding administration of the
Freedom of Information Act (FOIA) Program within the Department of Defense (DoD), can
be found at:

http://www.dtic.mil/whs/directives/corres/htm1/54007r.htm

. The Fee Schedule is Chapter 6 of the above regulation arid as modified at
http://www.defenselink.mil/pubs/foi/foiafees.pdf

. Additional Department of Defense FOIA documents and hyperlinks can be found by
accessing the following Universal Resource Locator (URL):

http:/Awww.defenselink.mil/pubs/foi/

14