g. Not an agency record: 4
h. Duplicate request: 2

i, Other? (specify): 41

Item VII.

Compliance With Time Limits/Status of Pending Requests

A. Median processing time for requests processed during the year (FY 2004).
1. Simple requests.
a. Number of requests processed: 63,443
b. Median number of days to process: 17.0
2. Complex requests.
a. Number of requests processed: 12,972
b. Median number of days to process: 59.0
3. Requests accorded expedited processing.
a. Number of rcquests processed: 841

b. Median number of days to process: I

B. Status of pending requests (as of: 30 Sep 04).
1. Number of requests pending: 12,826

2. Median age of above cases in days: 93

* Other reasons were appeals not submitted within required time frame and improper address.

11



Item III.

Definitions of Terms and Acronyms Used in the Report
A. Agency-specific acronyms.
1. Defense Intelligence Agency: DIA.

2. National Geospatial-Intelligence Agency (formerly National Imagery and Mapping Agency
or NIMA): NGIA.

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 rcasonable 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 Withdrawn. The request was withdrawn by the requester.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 {ces associated with the request;
the requester is past due in the payment of fees associated with a previous FOTA request; or
the requester disagrecs 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 to 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 arc not not fee-
related.

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



* 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 I, Supp. at 627-28; Campbeil, 1996 WL 554511, at *6; Kronisch v. United States, No. 83-2458, 1995
WIL. 303625, at **4-6 (S.D.N.Y. May 18, 1995); Hunsberger v. CLA, 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 Lluman

Rights v. INS, 721 F. Supp. 552, 567 (S.D.N.Y. 1989); Pfeiffer v. CIA, 72] F. Supp. 337, 341-42 (D.D.C. 1989).



11.

12.

13.

14.

15.

16.

exemptions; or a decision to disclose some records in their entireties, but to withhold
others in whole or in part.

Denial: An agency decision not to release any part of a record or records in response to
a FOIA request because ali 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 FOTA 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 reccipt of a
"perfected" FOTA request),

"Perfected" request: A FOIA request for records which adcquately describes the records
sought, which has been reccived 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.

Avcrage 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., clectronic mail, facsimile,
mail, courier) at the same or different times.

9. 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.

7.

9.

Freedom of Information Act/Privacy Act (FOLA/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 FOTA requests.

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

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 FOIA determination.

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.

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).

Expedited processing: An agency will process a FOLA request on an expcdited basis
when a requester has shown a compelling nced or urgency for the records which warrants
prioritization of his or her request over other requests that were made earlier.

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

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

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

10. Partial denial: An agency decision to disclose a record in part in response to a FOIA

request, deleting information determined to be excmpt under one or more of the FOIA's


Court

Upheid? | Statute Types of Material Withheld Under Statute |

Yes’ | 50 USC §403-3(c)(7) Intelligence Sources and Methods
National Security Act of
1947, Subsection |
102(d}{3), as amended

Yes® | 50 USC §403(g), Section | CLA Functions and Information }
6 of the CIA Act of 1949

No 50 USC §435 Note Sec | Disclosure of Information Concerning US Personnel Classified as
1082 POW/MIA During Vietnam Conflict (McCain “Truth Bill”)

Item 1V. Endnotes

" Chenkin v. Department of the Armv. No. 93-494, 1994 U.S. Dist. LEXIS 20907, at *8 (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 Navv. 735 I,
Supp. 429, 431 (D.D.C. 1990); see also American Friends Sery. Comm, v. DOD, No. 83-4916, 1986 WL 10659, at
*4(1.D. Pa. Sept. 25, 1986), rev’d on other grounds, 831 F.2d 441 (3d Cir. 1987),

> Winter v. NSA, 569 F. Supp, 545, 548 (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 pathering and thus protected).

> Mceropol v. Smith, No. 75-1121, slip op. at 53-55 (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); Hayden 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, 554 (1" Cir. 1993) (stating that under § 403(d)(3) it is
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 v, CIA, 981 F.2d 1116, £118 (9" Cir. 1992) (upholding agency's “Glomar” response to request on
forcign 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, 1997); Roman 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 eranted, No.
97-5330 (D.C, Cir. May 12, 1998); Andrade v. CIA, No, 95-1215, 1997 WL 527347, at **3-5 (D.D.C. Aug. 18,
1997) (holding intelligence methods used in assessing employee fitness protectible); Earth Pledge Found. v. CLA. 988
F. Supp. 623, 627 (S.D.N.Y. 1996) (finding agency's “Glomar” response proper because acknowledgement of records
would generale “danger of revealing sources”), aff'd per curiam, 128 1.3d 788 (2d Cir. 1997) (unpublished table
deciston); 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 Intelligence’s determination that a classified document could reveal intelligence sources and
methods and endanger national security.”) (non-FOIA case).



Department of Defense (DoD)

Freedom of Information Act

Program Report
for

Fiscal Year (FY) 2004

Prepared By:

alg iw7if, +The Office of Freedom of Information

and Security Review (OFOISR)



(11) Exemption 7(E): 107

(12) Exemption 7(F): = 22

(13) Exemption 8: 3

(14) Exemption 9: 180
4. Other reasons for nondisclosure (total): 25,223
a. No records: 6,709
b. Referrals: 9,084
c. Request withdrawn: 2,806
d. Fee-related reason: 792
c. Records not reasonably descnbed: . 1,071
f. Nota proper FOIA request for some other reason: 763
g. Not an agency record: 616
h. Duplicate request: 1,073
i. Other *(specify): 2,309

Item VI.

Appeals of Initial Denials of FOIA/PA Requests

A. Numbers of appeals.
1. Number of appeals received during fiscal year (FY 2004): 624
2. Number of appeals processed during fiscal year (FY 2004): 933
B. Disposition of appcals. .

1. Number denied in full: ; 433

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


Item V.

Initial FOIA/PA Access Requests

A. Numbers of initial requests.

|. Number of requests pending as of end of preceding fiscal year (1 Oct 03): 12,941!

2. Number of requests received during current fiscal year (FY 2004): 77,141
3. Number of requests processed during current fiscal year (FY 2004): 77,256
4. Number of requests pending as of end of current fiscal year (30 Sep 03): 12,826

B. Disposition of mitial requests.
1. Number of grants: 37,914
2. Number of partial denials: 11,779
3, Number of total denials: 2,340

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

request).

(1) Exemption 1: 1,132
(2) Exemption 2: 1,944
(3) Exemption 3: 1,627
(4) Exemption 4: 1,268
(5) Exemption 5: 1,411
(6) Exemption 6: 8,990

(7) Exemption 7(A): 458
(8) Exemption 7(B): 14
(9) Exemption 7(C): 4,738

(10) Excmplion 7(D): 245

' This number differs from the number reported al the end of the 2003 report due to more sophisticated counting
methods. This figure is believed to be more accurate than that reported last year.


Court
Upheld?

No
No

Yes!

No
No

No

No
No
No
No
No

No

No
Yes”

3
Yes

No

Yes’

Item IV.

Exemption 3 Statutes Invoked

Statute
5 USC §552 Note
10 USC §128

10 USC §130

10 USC §130(b)
10 USC §130(c)

10 USC §424

10 USC §457
10 USC §618(f)
10 USC §1102

10 USC §2305(g)
10 USC §2371(i)

12 USC §3403

16 USC §470w-3
18 USC §798(a)
41 USC §423

42 USC §2162(a)

42 USC §2168(a)(1)(C)

50 USC §402 Note Sec 6

Types of Material Withheld Under Statute
Protection of Certain Open Skies Treaty Information

Authority to Withhold Unclassified Special Nuclear Weapons
Information

Authority to Withhold Unclassified Technical Data with Military |
or Space Application

Personnel in Overseas, Sensitive or Routinely Deployable Units

Nondisclosure of Information: Certain Sensitive Information on
Forcign Governments and International Organizations

Protection of Organizational and Personnel Information for DIA,
NRO, and NGIA

NGIA Operational Files

Action on Reports of Selection, Gencrally for Promotion, Boards
Confidentiality of Medical Records

Protection of Contractor Proposals

Research Projects: Transactions Other Than Contracts and Grants

Confidentiality of Financial Records

National Historic Preservation
Communications Intelligence
Procurement Integrity

Restricted Data (Atomic Energy), Atomic Energy Act of 1954

Formerly Restricted Data (Atomic Energy), Atomic Energy Act of
1954

NSA Functions and Information



Item I,

Basic Information Regarding the Report

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

report:

Write to: Chicf, FOIA Appeals/Policy Branch
Office of Freedom of Information & Security Review
1155 Defense Pentagon
Washington, DC 20301-1155

Telephone: (703) 697-1160

Name of Incumbent Chief, FOTA Appeals/Policy Branch: Mr. William T. Kammer

Name of Person who prepared this Report: Mr. David W. Maier

B. The electronic address (Universal Resource Line, URL) for this report is:
http://www.defenselink. mil/pubs/foi/

C. You may obtain a paper copy of DoD’s Annual FOIA Report for Fiscal Year 2004 by writing
to the above address and asking for a copy. A FOLA rcquest is not necessary, Please include
a mailing address.

Item IT.

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 Department of Defense
(DoD). This document also contains DoD component addresses, a brief description of response
limes, and the reason why some requests are not granted. The DoD Freedom of Information Act
Handbook can be found at:

http://www.defenselink.mil/pubs/foi/foiapam3.pdf


Item VIII.

Comparison With Previous Year

Number of initial expedited requests received (FY 03) 1358
Number of initial expedited requests received (FY 04) 1057
Number of initial expedited requests granted (FY 03) 817
Number of initial expedited requests granted (FY 04) 841
Item IX.
Costs/FOIA Staffing

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

1. Number of full-time FOIA personnel: 333.71
2. Number of personnel with part-time or occasional FOLA duties: 387.25
3. Total number of personnel: 720.96

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

1. FOIA processing (including appeals): $46,783,592
2. Litigation-related activities (estimated): $428,202
3. Total costs: $47,211,794

12



Table of Contents

Basic Report
licm I. Basic Information Regarding the Report
Item II. How to Make a FOIA Request
Item III. Definitions of Terms and Acronyms Used in the Report
Item 1V. Exemption 3 Statutes
Item V. Initial FOIA/PA Requests
Part A. Numbers of Initial Requests
Part B. Disposition of Initia] Requests
Part B. Number 1. Exemptions Invoked on Inittal Denials
Part B, Number 2. Other Reasons Cited on Initial Determinations for

Nondisclosure

Item VI. Appeals of Initial Denials of FOIA/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
Item VII. Compliance with Time Limits/Status of Pending Requests

Part A. Median Processing Times tor Initial Requests Processed During the Year
Part B. Status of Pending Requests

Item VHI. Comparison With Previous Year

Iter IX, FOIA Statfing/Costs
Item X. Fees Collected From Public

Item XI. FOIA Regulation, Including Fee Schedule

ii

a")
- i]
Oo co Go oO 60 a th ~ a oD

10

10

1h

11
1]

12

12

13

13


FREEDOM OF INFORMATION ACT
ANNUAL REPORT

FISCAL YEAR 2004
(Report Period: October 1, 2003 through September 30, 2004)

EXECUTIVE SUMMARY

During fiscal year (FY) 2004, a total of 77,256 public requests for records under the Freedom of
Information Act (FOLA) were completed by the Department of Defense (DoD). In the processing of
these cases, the Department of Defense fully denied 2,340 and partially denied 11,779 on the basis of
FOIA exemptions. Of those exemptions, 6% were for classified information; 9% for internal rules and
practices; 7% for statutory exemptions; 6% for proprietary data; 6% for deliberative material; 41% for
privacy information; 24% for law enforcement investigations; and 1% for information concerning wells.
Twenty five thousand, two hundred and twenty three (25,223) 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 933 actions taken on appeals of denied requests (30
granted, 162 partially denied, 433 fully denicd, and 308 not filled for other reasons, as mentioned

carlier),

The total DuD operating cost associated with the processing of requests during this report period
was $47,211,794. The average cost of processing a single case during this period was approximately
$611.11. Fee collections for records provided to the public amounted to $537,741.00 (1.1% of total]

program cost).


2. Number denied in part: 162

3. Number completely reversed (granted): 30
a. Number of times each FOIA exemption used (counting each cxemption once per

appeal).

(1) Exemption 1: 76
(2) Exemption 2: | 47
(3) Exemption 3: 4]
(4) Exemption 4: 33
(5) Exemption 5: 155
(6) Exemption 6: 216
(7) Exemption 7(A): 12
(8) Exemption 7(B): 0

(9) Exemption 7(C): 106

(10) Exemption 7(D): 9

(1) Exemption 7(E): 4
(12) Exemption 7(F):
(13) Exemption 8: ]
(14) Exemption 9: 0.

4. Other reasons for nondisclosure (total): 308
a. No records: | 106
b. Referrals: 55
c. Appeal withdrawn: 77
d. Fee-related reason: 4
e. Records not reasonably descnbed: 0
f. Nota proper FOIA request for some other reason: 19

10


. Total amount of {ces collected by the agency for processing requests: $537,741.00

. Percentage of total costs: 1.1%

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://Awww.dtic.mil/whs/directives/corres/html/54007r.htm

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

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

http://www.defensclink.mil/pubs/foi/

13