Department of Defense (DoD)

Freedom of Information Act

Program Report

for

Fiscal Year (FY) 2003

_No-":

Prepared By:

The Directorate for Freedom of Information

and Security Review (DFOISR)
FREEDOM OF INFORMATION ACT

ANNUAL REPORT

FISCAL YEAR 2003

(Report Period: October 1, 2002 through September 30, 2003)

EXECUTIVE SUMMARY

During fiscal year (FY) 2003, a total of 73,814 public requests for records under the Freedom of

Information Act (FOIA) were completed by the Department of Defense (DoD). In the processing of

these cases, the Department of Defense fully denied 2,173 and partially denied 10,276 out - of 73,814

requests on the basis of FOIA exemptions. Of those exemptions, 8% were for classified information; 9%

for internal rules and practices; 8% for statutory exemptions; 8% for proprietary data; 7% for deliberative

material; 33% for privacy information; and 26% for law enforcement investigations. Twenty three

thousand, five hundred and sixty three (23,563) 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 749 actions taken on appeals of denied requests (41 granted, 104 partially

denied, 289 fully denied, and 315 not filled for other reasons, as mentioned earlier).

The total DoD operating cost associated with the processing of requests during this report period

was $42,890,626. The average cost of processing a single case during this period was approximately

$581.06. Fee collections for records provided to the public amounted to $518,814.88 (1.2% of total

program cost).

i
Table of Contents

11

Basic Report Page

Item I. Basic Information Regarding the Report 1

Item II. How to Make a FOIA Request 1

Item III. Definitions of Terms and Acronyms Used in the Report 2

Item IV. Exemption 3 Statutes 5

Item V. Initial FOIA/PA Requests 8

Part A. Numbers of Initial Requests 8

Part B. Disposition of Initial Requests 8

Part B. Number 1. Exemptions Invoked on Initial Denials 9

Part B. Number 2. Other Reasons Cited on Initial Determinations for

Nondisclosure

9

Item VI. Appeals of Initial Denials of FOIA/PA Requests 9

Part A. Numbers of Appeals 9

Part B. Disposition of Appeals 9

Part B. Number 1. Exemptions Invoked on Appeal Denials 10

Part B. Number 2. Other Reasons Cited on Initial Determinations for

Nondisclosure

10

Item VII. Compliance with Time Limits/Status of Pending Requests 11

Part A. Median Processing Times for Initial Requests Processed During the Year 11

Part B. Status of Pending Requests 11

Item VIII. Comparison With Previous Year 12

Item IX. FOIA Staffing/Costs 12

Item X. Fees Collected From Public 13

Item XI. FOIA Regulation, Including Fee Schedule 13
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: Chief,. FOIA Division

Directorate for Freedom of Information & Security Review

1155 Defense Pentagon

Washington, DC 20301-1155

Telephone: (703) 697-1160

Name of Incumbent Chief, FOIA Division: 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/03report/

C. You may obtain a paper copy of DoD's Annual FOIA Report for Fiscal Year 2003 by writing

to the above address and asking for a copy. A FOIA request is not necessary. Please include

a mailing address.

Item II.

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

times, 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

1
Item III.

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 to enable the DoD Component to locate it

by conducting a reasonable search.

6. Not a Proper FOIA Request for Some Other Reason. The requester has failed

unreasonably to comply with legitimate procedural requirements which are not not feerelated.

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

of the FOIA.

2
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.

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. 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 FOIA 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 denial: 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.

3
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).

12. 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).

13. "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.

14. 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).

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

median number is 7.

16. 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.

4
Item IV.

Exemption 3 Statutes Invoked

5

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

Yes2 18 USC §798(a) Communications Intelligence

Yes 3 18 USC §5038 Interviews of Juveniles in Criminal Defense

No 22 USC §2778(e) Sec

38(e) of the Arms Export

Control Act

Control of Arms Exports
Item IV. Endnotes

' Chenkin v. Department of the Army, 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 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).

2 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 gathering and thus protected).

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

scope of statute).

4 Meeropol 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 (7u' Cir. 1984) (concluding that provision concerning technical information furnished by license applicants

lacked sufficient specificity to qualify as Exemption 3 statute).

5

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).

6

-

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 4 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 5 50 USC §402 Note Sec NSA Functions and Information

6, P.L. 86-36

Yes 6 50 USC §403-3(c)(6),

National Security Act of

1947, Subsection

102(d)(3), as amended

Intelligence Sources and Methods

Yes

?

50 USC §403(g), Section

6 of the CIA Act of 1949

CIA Functions and Information

No 50 USC §421 Protection of Identities of US Undercover Intelligence Officers,

Agents, Informants and Sources

No 50 USC §435 Note Sec

1082, P.L. 102-190

Disclosure of Information Concerning US Personnel Classified as

POW/MIA During Vietnam Conflict (McCain "Truth Bill")

No 50 USC §2411 (c) Export License application Information
6

7

CIA v. Sims, 471 U.S. 159, 167 (1985); see also Minier v. CIA, 88 F.3d 796, 801 (9`s

Cir. 1996) (fording 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 S` 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, 1118 (9`s

Cir. 1992) (upholding agency's "Glomar" 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 t' Cir. 1989) (same); Levy v. CIA, No. 95-1276, slip op. at 14-17 (D.D.C. Nov. 16, 1995) (same),

affd, 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 granted, 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. 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"), aff d per curiam, 128 Fad 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 Intelligence'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 554511, 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).

7
Item V.

Initial FOIA/PA Access Requests

A. Numbers of initial requests.

1. Number of requests pending as of end of preceding fiscal year (1 Oct 02): 12,543

2. Number of requests received during current fiscal year (FY 2003): 74,399

3. Number of requests processed during current fiscal year (FY 2003): 73,814

4. Number of requests pending as of end of current fiscal year (30 Sep 03): 13,128

B. Disposition of initial requests.

1. Number of grants: 37,802

2. Number of partial denials: 10,276

3. Number of total denials: 2,173

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

request).

8

(1) Exemption 1: 1,477

(2) Exemption 2: 1,689

(3) Exemption 3: 1,618

(4) Exemption 4: 1,583

(5) Exemption 5: 1,432

(6) Exemption 6: 6,345

(7) Exemption 7(A): 371

(8) Exemption 7(B): 15

(9) Exemption 7(C): 4,339

(10) Exemption 7(D): 327

(11) Exemption 7(E): 80
4. Other reasons for nondisclosure (total):

a. No records:

b. Referrals:

c. Request withdrawn:

d. Fee-related reason: 786

e. Records not reasonably described: 823

f. Not a proper FOIA request for some other reason: 1,307

g. Not an agency record: 586

h. Duplicate request: 1,055

i. Other '(specify): 1,856

Item VI.

Appeals of Initial Denials of FOIA/PA Requests

9

23,563

5,889

8,804

2,457

' Other reasons are: electronic referral, insufficient address/info, lacked 3` d party waiver, and publicly sold

documents.

A. Numbers of appeals.

1. Number of appeals received during fiscal year (FY 2003): 616

2. Number of appeals processed during fiscal year (FY 2003): 749

B. Disposition of appeals.

1. Number denied in full: 289

2. Number denied in part: 104

(12) Exemption 7(F): 19

(13) Exemption 8: 0

(14) Exemption 9: 1
3. Number completely reversed (granted): 41

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

appeal).

4. Other reasons for nondisclosure (total): 315

a. No records: 113

b. Referrals: 38

c. Appeal withdrawn: 74

d. Fee-related reason: 7

e. Records not reasonably described: 3

f. Not a proper FOIA request for some other reason: 7

g. Not an agency record: 2

1 0

(1) Exemption 1: 41

(2) Exemption 2: 33

(3) Exemption 3: 39

(4) Exemption 4: 19

(5) Exemption 5: 105

(6) Exemption 6: 110

(7) Exemption 7(A): 14

(8) Exemption 7(B): 1

(9) Exemption 7(C): 82

(10) Exemption 7(D): 4

(11) Exemption 7(E): 9

(12) Exemption 7(F): 1

(13) Exemption 8: 0

(14) Exemption 9: 0
Item VII.

Compliance With Time Limits/Status of Pending Requests

A. Median processing time for requests processed during the year (FY 2003).

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

1 1

1. Simple requests.

a. Number of requests processed: 62,180

b. Median number of days to process: 20.5

2. Complex requests.

a. Number of requests processed: 10,817

b. Median number of days to process: 64.0

3. Requests accorded expedited processing.

a. Number of requests, processed: 817

b. Median number of days to process: 1

B. Status of pending requests (as of: 30 Sep 03).

1. Number of requests pending: 13,128

2. Median age of above cases in days: 90

h. Duplicate request:. 7

i. Other' (specify): 64
Item VIII.

Item IX.

Costs/FOIA Staffing

1 2

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

1. FOIA processing (including appeals): $42,536,165

2. Litigation-related activities (estimated): $354,461

3. Total costs: $42,890,626

Comparison With Previous Year

A. Number of initial expedited requests received (FY 03) 1358

B. Number of initial expedited requests processed (FY 03) 817

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

1. Number of full-time FOIA personnel: 314.47

2. Number of personnel with part-time or occasional FOIA duties: 389.13

3. Total number of personnel: 703.6
Item XI.

FOIA Regulations (Including Fee Schedule)

A. 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/html/54007r.htm

B. The Fee Schedule is Chapter 6 of the above regulation and as modified at

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

C. Additional Department of Defense FOIA documents and hyperlinks can be found by

accessing the following Universal Resource Locator (URL):

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

1 3

Item X.

Fees

A. Total amount of fees collected by the agency for processing requests: $518,814.88

B. Percentage of total costs:' 1.2%