The information was withheld at the request of the FBI, as they do have an ongoing investigation
regarding the plaintiff, and the information on the two-page document is also contained in their
investigatory files. The Navy should be dismissed asa party defendant since the record is not a
Navy “agency record.” A motion for summary judgment was granted. Plaintiff has appealed to the
seventh circuit from the Entry and Memorandum of Decision entered on 21 September 1983. The
appeal is pending seventh circuit action.

Hayes International Ve tment of the Ni No. 86-T-1129-S (MD Ala.). Plaintiff brought
action against Navy on 1 October 1986 seeking release of various documents related to an aviation
mishap. We contend that plaintiff failed to show that he had appealed and exhausted his
administrative remedies. Plaintitts conducting discovery which was to be completed by 2
September 1987. Motion to supplement the record was filed on 18 December 1987. The case is
decisional. : -

Lind v. Department of the Navy, No. 80-0338 (D. HI.). Plaintiffs, representatives of various public
interest groups,.seeks three Navy Weapons Evaluation Facility, Albuquerque, NM, reports of.
accidents and incidents involving nuclear weapons. Navy maintains they are classified and exempt
from disclosure. In February 1984, the Navy moved for summary judgment. This motion was denied
in April 1985 and the case was set for trial in November. In September 1985, after additional review
by the Navy of the requested documents, portions were released and a motion was made to vacate
trial date. This motion, along with summary judgment as to a segment of the material, was granted
in October 1985. Navy was ordered to prepare a detailed Vaughn index of the reports, indicating
application of FOIA exemptions to the remaining withheld portions. Upon review, Naval Sea
Systems Command authorized total release and Navy entered into a settlement agreement. Upon
further review by the Vice Chief of Naval Operations, documents were still deemed to be classified
and the Navy attempted to rescind the settlement. On 18 December 1985, plaintiff moved for
specific performance. On 10 February 1986, the court denied plaintiff's motion and allowed the
Navy to rescind the settlement. in June 1986, the court granted, in part, the Navy's motion for
summary judgment and required additional submission conceming remainder of the document.
The plaintiffs:moved for award of attorney's fees, and $15,000.00 was granted on 20 January 1987.
The Government will seek an appeal.

Badhwar v. United States Air Force, et. 2 Civil No. 84-0154 (D.D.C.). Case invoives a Freedom of
Information Act request by jates of columnist Jack Anderson, who seek a large quantity of a
Mishap Investigation Report (MIR) related to information from the military services. At issue is the
obligation to release three particular portions of the MIR: (1) statements of witnesses, (2) findings,
conclusions, and recommendations, and (3) segregable factual material from documents found to
be otherwise exempt. Cross motions for summary judgment were filed. The court held that
findings, recommendations, conclusions, confidential witness statements and facts derived from
confidential witness statements are exempt under b(5). The judge ordered the release of all other
factual information. The Vice Chiet of Naval Operations ordered no Navy appeal. The plaintiffs
appealed. The Navy response was filed on 3 October 1986. The argument was held on 23 Febru:
1987, and the court awarded plaintiff $30,000.00 in attorney fees. .

Vietnam Veterans of America et al., v. Department of Navy et. al., No. 86-0357 (D.D.C.). FOIA
litigation commenced by two veterans organizations (represented by Bart Stichman) against Navy
and Army. Action seeks publication or indexing of JAG opinions promulgated since 4 July 1967
that are subject to 5 U.S.C: 552(a)(1) or (a)(2). Plaintiffs contend that certain opinions are either
statements of general policy, final opinions, or policy and interpretations that have been adopted by
the Navy/Army and, therefore, under that'statute, must be published in the Federal Register or
made available in a public reading room. .

A motion for summary judgment was filed 27 October 1986, contending that only documents
promulgated concerning subject matters under the JAG’s specific cognizance can be subject to
FOIA (a)(1) or (a)(2). Of those categories of documents, most opinions are predecisional, internal,
and advisory, having no precendential or authoritative value. Cognizant JAG divisions have
reviewed their documents to extract those that are subject to the provision. The motion was denied
on 8 June 1987.

Limited discovery was held in September 1987 of 180 select opinions. Depositions were held in
November of RADM Flynn, former Judge Advocate General, and four others. Plaintiff appears
ready to seek summary judgment against both Army and Navy, although no depositions were taken
of any Army personnel.



. OSD/OUNCS

DEPT ARMY

DEPT NAVY

DEPT AF

Item 11
FOIA INSTRUCTIONAL AND EDUCATIONAL EFFORTS

The lack of funds for a Department-wide training/educational program continues
as a major concer and hampers the overall effectiveness and management of the
DoD FOIA Program. The programmed rotation of other personne! demand
constant training/educational efforts. Components are directed, within their
available resources, to conduct their own training/educational programs. The
educational programs are to be targeted toward all members of the Component,
developing a general understanding and appreciation of the DoD FOIA program,
whereas the training programs are to be focused toward those personne! who are
Involved in the day-to-day processing of FO! requests. The overall
training/educational objective, when considering the limitation of funds, is
adequate and the Components’ efforts are essential in maintaining the level of
expertise to efficiently administer the Deferise program.

Newly assigned personnel in the FOIA Program Director's Office routinely attend
conferences sponsered by OPM and other organizations. Briefings, orientations,
and staff visits between Component Agencies encourage the participation of FOI
Personnel to attend FOI conferences, symposia and seminars presented by Federal
and private organizations. During June 1987, the Directorate for Freedom of
Information and Security Review, OASD (Public Affairs) conducted two four-hour
training sessions on FOIA statutory provisions and request processing
requirements for all OSD/OJCS Components.

The Department of the Army FOIA coordinators inform Army personnel of the
provisions of the Act on a continuai basis. FOIA points of contact are available
throughout the Army at all times to answer questions, provide guidance and
resolve problems concerning the Act. Personnel responsible for administering the
FOIA Program attend FOIA seminars and workshops throughout the year. The
FOIA training sessions were attended by Army FOIA personnel as follows:
Drrartment of Justice, 8 hours, 2 Oct 87; Department of Justice, 16 hours, 26 May
87; and Access Professionals, 16 hours, 17-18 Sep 87.

A representative from OP-09B30, in conjunction with a member of the Defense
Privacy Board, conducted PA/FOIA training sessions during the year at naval
activities In Seattle, Washington and for commands in the Washington, DC area.
Naval activities in the Washington, DC area report attendance at FOIA training
seminars sponsored by the Chiet of Naval Operations, American Society for
Access Professionals, Goverment Aftairs Institute, Office of Personne!
Management, and the Department of Justice. Several naval commands have
Fanccted FOIA training designed specifically to their needs. For example, the
Naval Security and Investigative Command conducts periodic training for students
attending the NIS Special Agent School; the Navy Finance Center conducts
periodic FOIA overviews/seminars for its disbursing officers and clerical personnel;
and the Navai Military Justice Schoo! periodically presents a one-hour orientation
on PA/FOIA. Additionally, many naval activities are including PA/FOIA training for
new employees in indoctrination classes and through supervisor training classes.

“A Manager's Guide to FOIA” was prepared and sent to FOIA managers .
throughout the Air Force. Two major commands published orientation booklets on -
FOIA and distributed them within their commands. HQ Military Airlift Command
and HQ AF Communications Command Records Management Staffs at Scott AFB,
IL, in December 1987, and 20 Military Airlift Command base records managers

were briefed on FOIA Reform Act of 1986 and fees. Personnel have attended and
conducted-training workshops and seminars on FO! throughout the year. Those
seminars attended inciude training given by Justice, GSA, OPM, Agriculture, and
the American Society of Access Professionals.

36


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32



Item 5(a)

Exemptions invoked on Appeal Determinations
Exemptions by Number [552(b)]

Reporting Activity

1 2 3 4 5 6 7 8 9 Total*
OsD/OJCS 4 6 2 1 0 () ()) 0 0 13
DEPT ARMY 0 5 2 0 9 10 5 () 0 31
_ DEPT NAVY 39—=C—i«*144 2 9 56 1 0 t) () 121
DEPT AF 29 78 #+13 «+38 «+12 =«29 «(7 0 (1) 326
DCA 1 () 0 0 o 86-O 0 0 0 1
DCAA 0 3 0 3 3 1 () 0 0 10
DIA 40 1 1 0 0 4 0 0 () 46
DIS 0 t) 0 0 0 0 ee ) 0 ()
DLA 0 0 1 10 1 4 1 () 0 4
DMA 1 (') 0 0 1 1 t) 0 0 3
DNA . 6 0 3 2 5 () 0 0 0 16
NSA/CSS 9 0 9 1 0 0 0 0 0 19
DoD Totals 129° 107 33 64 187 47 33 0 0 600
Percent of .
Total 22% 19% 2% 12% 32% 1% 2% () 0 100%

“Totals do not agree with Item 4 because of cases where two or more exemptions were cited.


Item 9

FEE SCHEDULE AND FEES
COLLECTED

The fee schedule on pages 20 through 28 reprinted from Chapter 6, DoD Regulation 5400.7-R,
June 1987, establishes standard costs collectible by Department of Defense Agencies.

$642,941.60 was collected from the public for making records available during the year 1987 (see
item 10B, Page 30, for Agency totals) .

19


Item 11
FOIA INSTRUCTIONAL AND EDUCATIONAL EFFORTS
(Cont'd)

DCAA Responsible individuals in all regional offices and Headquarters principal staff
elements have access to Headquarters FOIA program manager for purposes of
claritying/understanding Agency-wide policies and procedures, obtaining
additional guidance, 2s well as discussing real or hypothetical situations for
purposes of expanding knowledge. In addition, all field audit managers have
access to responsible individuals in regional offices and Headquarters FOIA
program manager for purposes of clarifying/understanding Headquarters policy
and procedures, obtaining additional guidance, as well as discussing real or

situations for purposes of knowledge. Field Audit Offices
Visited by Regional FOIA Officers to discuss the requirements of the FOIA with the
FAO Managers, FAO FOIA Monitors, and key office personnel.

DCA FOIA Manager and assistant are available to the staff daily for constant FOIA
update and guidance. A sixteen hour training session by Department of Justice
was attended in January 1987, by members of the DCA staff.

DIA ‘The briefing and training of new coordinators and analysts directly involved in
administering actions connected with the FOIA is accomplished on an “as
requested” basis.

bis New agents receive formal instruction regarding the provisions of FOIA and its
by DIS. Headquarters personnel have received detailed on-the-job

organization of the FOIA mission in DIS. Four separate courses, consisting of
nineteen hours were attended by DIS personnel.

DLA Headquarters and field elements attended numerous training programs which
‘included seminars by the Department of Justice, DoD Legal Education Institute,
USDA Graduate School, American for Access Protessionais, and the
Detenae Logiatics Agency. A total of nine FOIA courses were atended by DLA
person

DMA DMA personnel attended four seminars in FOIA conducted by the Department of
Justice and the Office of Personne! Management.

DNA , FOIA briefings are held annusity for DNA personnel Involved in FOIA requests.
‘Additionally, a FOIA briefing is given to new personnel. .

NSA/CSS An FOIA/PA seminar was held by NSA/CSS to update the Agency focal points on

the requirements of the laws. In addition, NSA/CSS case workers and an attorney
attended two Department of Justice training sessions.

37 -



“ttem 1

Item 2

Item 3

Item 4

Item 5

Item 6
Item 7
Item 8
Item 9

Item 10

tem 11

Initial Determinations Resulting in not Providing
All or a Portion of Record Requested
Initial Determinations
A. Exemptions Invoked
B. Statutes Invoked
C. Other Reasons
(Description of "Other Reasons")

initial Denial Officials by Participation

A. Exemption Denials
B. Other Authority Denials

Number of Appeals and Results

Appeal Determinations

A. Exemptions Invoked

B. Statutes Invoked

C. Other Reasons

Participation of Appellate Authorities

Court Opinions and Action Taken

FOIA Implementation Rules and Regulations

Fees Schedule and Fees Collected

Administrative Efforts

A. Availability of Records

B. Calendar Year Costs and Fees Collected

C. Time Limit Extensions by Agency

D. Internal Memoranda (number and availability)

E. Other Information or Recommendations on
Administering FOIA

FOIA Instructional and Education Efforts

- Page

aQrun

10
1

12
14
18

19

29
30
33
34
35

36

84818


Item 10 B*

Calendar Year Costs and Fees Collected

Reporting Activity Annual Cost Fees Collected
OsD/OJCS - $ 512,732.40 $ 4,257.78
ARMY 3,507,635.20 112,844.68
NAVY 3,963,974.74 200,826.16
AIR FORCE 3,952,278.00 168,246.00
DCA 50,391.55 1,567.35
DCAA 50,176.00 4,284.00
DIA 246,902.00 445.00
DIS ~ 10,846.60 485.00
DLA 982,994.31 147,379.38
DMA 22,724.54 . 290.85
DNA 46,031.91 322.40
NSA/CSS 340,387.00 1,993.00
DoD Totals $13,440,155.25 $642,941.60

*Based on reporting procedures established March 16, 1977, to capture a “best estimate"
cost of administering FOIA as amended. The cost outline on the following page provides
a breakdown by DoD reporting agencies.


Todd Shipyards Corporation v. Defense Contract Audit Agency and Naval Sea Systems Command, -
JO. 87-2401T JH, filed 31 August 1987. Plaintiff brought suit requesting the Court to order
defendants to make documents requested under FOIA to plaintiff. NAVSEA processed the audit

reports referred by DCAA. With respect to the request directed to NAVSEA, it has filed a motion to
stay proceedings. Motion is pending. os

Colonial Trading Corp. v. Department of the N: D.D.C. 87-1406 GHR, field 22 May 1987. Plaintiff
Tiled suit to compel release of unclassified Government-owned technical data pursuant to FOIA,

* Small Business Act, and Armed Services Procurement Act. NAVSEA is processing the data
requested and will provide releasable drawings by 15 February 1988. Status call scheduled for 17
February 1988. .

Teresa Faicone v. John Lehman, D. Mass 85-3264WD. Plaintiff field suit after receiving a “no

record” response to her request. The Judge consolidated the tort claim and FOIA case. The

documents subject to the FOIA suit were released through discovery in the tort claim. FOIA case is
closed.

Alan Washburn v. Department of the Navy, D.D.C. 87-2283SSH, filed 17 August 1987. Plaintiff
brought suit all ig Navy failed to respond to his FOIA request. Navy responded that plaintiff
failed to exhaust his administrative remedies, i.e., Navy never received an FOIA request; plaintiff
knew the correct address for his FOIA request; and, the address the plaintiff alleges he sent the
request was improper. Plaintiff submitted a new request to the appropriate address, documents

were released, and the Navy filed Motion to Dismiss. Pending.
Blake Construction Co., Inc. v. United States, et al., D.D.C. Civil Action No. 87-0888 JGP, filed

7 May 1987. Plaintiff filed complaint asking the Court to order the Navy to release documents or

render a decision on its FOIA requests. Case dismissed on 30 June 1987.

Quarles v. Department of.the Navy, Civil No. 85-3395 (D.D.C.). Plaintiff seeks all information
submi to the Secretary of the Navy concerning his decision on Gulf Coast Homeporting.

Government motion for summary judgment was filed 23 December 1985. Plaintiff filed a motion to
compel a Vaughn index of all information considered by the Navy in making the decision. He
asserted that the Navy unilaterally narrowed his request. On 27 May 1987, the court remanded back
to the Navy for reprocessing the request. ~

Faizone v. rtment of the Navy, No. 85-3862 (D.D.C.). Plaintiff, a real estate agent from

Pen: la, Flor challen oD and DON FOIA policy that mandates withholding of names
and duty addresses of active duty service-members stationed overseas or with deployable or
sensitive units. On 16 October 1986, the court granted the Government's motion for summary
judgment recognizing that the potential for terrorist attacks and threats against those service
members justifies such withholding. On 21 November 1986, the court denied plaintiff's motion to
amend the decision and reemphasized that, considering the threat potential to service members,
release of the requested information would constitute an unwarranted invasion of their privacy.
Falzone filed a notice of appeal on 1 December 1986. Stay is pending decision of two other similar
cases, .

Offutt v. Department of the Naw Civil Action N. R86-796 (D. Md.). Plaintiff sought an injunction
irecting to cease jolding portions of a Personal Injury/Death Report regarding a
fatal accident at David W. Taylor Naval Ship R&D Center, (I.E., the accident investigator's
assessment of cause factors, discussion of possible case factors, and recommendations to prevent
future accidents). Access was denied under exemption (b)(5), since disclosure would reveal the
derperative process of the investigator. Motion for summary judgment was granted on 26 March
7.

Wallace-Hoskins Corp. v. Department of the Navy, R86-796 (D.Md.). Plaintiff sought an injunction
directing the Navy to cease withholding portions of a personal injury/death report regarding a 1981
industrial accident at Long Beach Naval Shipyard, (i.e., the accident investigator's assessment of
cause factors and recommendations). Access was denied under exemption (b)(5), since disclosure
would reveal the deliberative process of the investigator. Defendant's motion for summary

judgment is pending.

Kimberlin v. Department of the Navy, No. IP82-1507C (S.D. Ind.). Plaintiff, an inmate at the Federal
Penitentiary in Terre Haute, Indiana, brought suit under the FOIA, seeking a document consisting
of two pages which pertained to him. The information in the document was gathered by the FBI

and furnished to the Naval Security and investigative Command as a part of routine field liaison
between the two agencies. Plaintiff is not now, and has not been, the subject of a NIS investigation.

16



denying relative significance under this factor. It is possible to envisage an informative issue
concerning the current activities of the 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 the DoD.

(ii) The informative value of the information to be disclosed. This factor requires a close
analysis of the substantive contents of a record, or portion of the record, to determine whether
disclosure is meaningful, and will inform the public on the operations or activities of the DoD.
While the subject of a request may contain information which concerns operations or activities of
the 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 heavily redacted record, 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 the 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 the DoD.

(iil) The contribution to an understanding of the subject by the I public likely to
result from disclosure. The key element in determining the applicability of his factor is whether
disclosure will inform, or have the potential to inform the public, rather than simply the individual
requester or smail 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 dissertion work, or indigency are insufficient without
demonstrating the capacity to further disclose the information in a manner which 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) The sigrpacance of the contribution to public understanding. In applying this factor,
components must rentiate the ‘significance or impact of the 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 subjection
determination, and must be applied caretully to determine whether disclosure will likely lead to a
significant public understanding of the issue. Components shall not make value judgments as to
whether the information is important enough to be made pul

2. Disclosure of the information “is not primarily in the commercial interest of the requester.”

(i) The existence and magnitude of a commercial interest. If the request is determined to be
of a commercial interest, Components should address the magnitude of that interest to determine if
the requester’s commercial interest is primary, as opposed to any secondary personal or non-
commercial interest. In addition to profit-making organizations, individual persons or other
organizations may have a commercial interest in obtaining certain records. Where it is difficult to
determine whether the requester is of a commercial nature, Components may draw interence from
the requester’s identity and circumstances of the request. in such situations, the provisions of
paragraph 6-104 apply. Components are reminded that in order to apply the commercial standards
of the FOIA, the requester's commercial benefit must clearly override any personal or non-profit
interest.

(ii) The primary interest in disclosure. Once a requester’s commercial interest has been
determined, ponents 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 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

ory


. ITM8_..
FOIA IMPLEMENTATION RULES OR REGULATIONS

AGENCY

DOCUMENT IDENTIFICATION

CFR REF.

OSD/OJCS

DEPT ARMY
DEPT NAVY

DEPT AF

DIA
DIS

DLA

DNA

NSA/CSS

DoD Regulations 5400.7-R dtd June 1987

AR 340-17, 1 Oct 82

SECNAVINST 5720.42C, 1 Oct 82

(AFR 12-30, 15 Dec 82

DCA Instruction 210-225-1, 19 Dec 80

DCAA Regulation 4510.5, 29 Aug 77 Change 1.

DCAA Instruction 4510.8, 27 Aug 81
DIA Reg 12-39, 24 Aug 81

DIS Reg 01-12, 2 Oct 81

DLA Reg 5400.14, 2 Feb 81

DMA Instruction 5400.7, March 1988
DNA Instruction 5400.7B, 24 Nov 87
NSA/CSS Reg 10-9, 9 Feb 82

18

32 FR 286
Vol 52 No 132
dtd 10 Jul 87
page 25976

Pending Revision
32 CFR 518
1 Jul 80

Pending Revision
32 CFR 701
1 Jul 80

Pending Revision
48 CFR No..69

8 Apr 83

Pending Revision
32 287
1 Jul 80

Pending Revision
32 CFR 290

1 Jul 80
Pending Revision
32 CFR 290

1 Jul 80

P Revision
32 292
1 Jul 85

Pending Revision
32 CFR 298
1 Jul 85

Pending Revision
32 CFR 1285

6 Apr’ 87

32 CFR 295 Vol 53
No 45, 8 Mar 88

32 CFR 291 Vol 53
No 56, 23 Mar 88

Pending Revision
32 CFR 299
1 Jul 85


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ooere’ss =. «0 ' 00'6pS'z o'veL ‘861 ee'00z'1S €9°909'001 ep'bLy'se Buysjoxg 9g Mmaqnay (2).
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31



Item 6

PARTICIPATION OF APPELLATE AUTHORITIES
(Those Responsible for Denials in Whole or in Part)

(Cont) :
No. of Instances

Name Title of Participation
DCAA Exemption Other

John van Santen Assistant Director, Resources 10° t)
DIA

RADM R.W. Schmidt, USN Deputy Director 30 0

Gordon Negus Executive Director 10 0

Lewis Prombain Acting Executive Director 1 )
DIS Chief, Office of Information 0 0
DALE L. Hartig and Public Affairs :
DLA

LTG V.M. Russo, USA Director, Defense Logistics Agency 7

RADM D.W. McKinnon, USN Deputy Director (Acquisition 5

. Management)

"MG S.R. Musser, USA Deputy Director . 1 ft)
DMA - :

Edward J. Obloy, ES-4 General Counsel 2 0
DNA

VADM J.T. Parker, USN Director 1 i)

RADM TA. Almstedt, Jr., USN DFOP “2 t)

LtGen J.L. Pickitt, USAF DIR 1 t'}

Marvin C. Atkins DDIR 2 Q
NSA/CSS

C.R. Lord Deputy Director 10 ()

MG Thomas J. Flynn Chiet of Staff 1 )


“OTHER REASONS” DESCRIBED

Transferred Request (Appeal):

This category applies when responsibility for making a determination or a decision
* on categories listed below is shifted from one Component to another Component/
Agency.

Lack of Records:

This category covers situations wherein the requester is advised the agency has
no record, or has no statutory obligation to create a record.

Failure of Requester to Reasonably Describe Record:
This category is specifically based on Section 552 (a) (3) (A) of the FOIA.
Other Failures by Requesters to Comply with Published Rules and/or Directives:

This category is based on Section 552 (a) (3) (B) of the FOIA and includes instances
of failure to follow published rules concerning time, place, fees and procedures.

Request (Appeal) Withdrawn by Requester:

This category covers situations when the requester asks an agency to disregard
the request (or appeal) or pursues the request outside FOIA channels.

Not an Agency Record:

This category indicates the requested informationis not an agency record.



2. The release of technical data is requested in order to comply with the terms of an
international agreement; or,

3. The Component determines in accordance with paragraph 6-103 a. that such a waiver is in
the interest of the United States.

c. Fee Rates.
1. Search Time
(i) Manual Search . .
Ty Grade Hourly Rate($)
Clerical E9/GS8 and below . 13.
(Minimum Charge) 8.30

Professional (To be established at actual hourly rate prior to search. A minimum charge will be
established at ‘2 hourly rates) ~ .

(ii) Computer search is based on the total cost of the central processing unit, input-output
devices, and memory capacity of the actual computer configuration. The wage (based upon the
scale in (I), above) for the computer operator/programmer determining how to conduct, and
subsequently executing the search will be recorded as part of the computer seach.

2. Duplication
Type. Gost __
Aerial Photographs, Specifications, Permits, $2.50

Charts, Blueprints, and other technical documents
Engineering data (microfilm)
a. Aperture cards .

(I) Sllver duplicate negative, per card
When key punched and verified, per card

(ii) Diazo duplicate negative, per card
When key punched and verified, per card

b. 35mm roll film, per frame

¢. 16mm roll film, per frame
d. Paper prints (engineering drawings), each a
e. Paper reprints of microfilm indices, each

3. Review Time

aR Ra

S88

Dee Grade : Hourly Rate($)
lerical : E9/GS8 and below 1
(Minimum Charge) 8.30

Professional (To be established at actual hourly rate prior to review. A minimum charge will be
established at ‘2 hourly rates)

d. Other Technical Data Records

Charges for any additional services not specifically provided above, consistent with reference
(1), shall be made by Components at the following rates:

1, Minimum charge for office copy (up to six images) ..... $3.50
2. Each addition image ... . :

3. Each typewritten page . .
4. Certification and validation with seal, each . - 5.20
5. Hand-drawn plots and sketches, each hour or fraction thereot 12.00

28


education, an institution of undergraduate higher education, an institution of professional educa-
tion, and an institution of vocational education, which operates a program or programs of scholarly

e. Non-Commercial Scientific Institution R uesters. Fees shall be limited to only reasonable
ae eater erent duplication (excluding charges tor the first 100 pages) when the
sequest is made by a non-commercial scientific institution whose purpose is scientific research,
Requesters must reesonably describe the records sought (see paragraph 1-507). The term “non
Rediivercial scientific institution” refers to an institution that is not operated on a “commercial”
tosis az defined in subparagraph c., above, and which is operated solely for the purpose of con
casting scientific research, the results of which are not intended to promote any particular product
or industry.

{. Components shall provide documents to requesters in subparagraphs d. and e.. above for the
cost of duplication alone, ‘excluding charges for the first 100 pages. To be eligible for inciusion in
these categories, requesters must show that the request Is being made under the auspices of @
ualtying institution and that the records are not sought for commercial use, but in furtherance of
SSholerly (trom an educational Institution) or scientific (trom a non-commercial scientific institu.
tion) research.

g.R of the news media. Fees shail be limited to only reasonable standard charges
for ee efeination (excluding charges for the first 100 pages) when the request is made by a
represent of he news mec, Requests must ressonaly decrb ne recor 2240 (ee
Paragraph 1-397).

ih
by it. A publication contract would be the clearest proot, but components may also look to the past
publications record of a requester in making this determination.

1. All Other Ri uesters. Components shall charge requesters who do not fit into any of the above
recover the full direct cost of searching for and duplicating records, except

category of requester, as well as the aforementioned categories of requesters may be eligible for a
waiver or reduction of fees if such is in the public interest as defined under paragraph 6-103 a.
(See also paragraph 6-104 c.2.).

6-105 Aggregating Requests

Except for requests that are for a commercial use, a Component 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 fo avoid payment of fees. When a Component reasonably believes that a requester or, 00

2s



Item 2(a)
Exemptions Invoked on Initial Determinations

Exemptions by Number [552(b)]

Reporting Activity i 2 3 4 5 6 7 8 9 Total*
OSD/OJCS 227 34 9 37° «147——is 84 0 0 0 538
DEPT ARMY 275 = =501 10 175 412 611 383 0 0 2368
DEPT NAVY 162114 69 276 433 752 404 0 0 2210
DEPT AF 220 760 110 834 894 508 646 0 0 3972
DCA 12 1 0 12 5 2 0 0 0 32
DCAA 0 20 0 24 25 2 3 0 0 74
DIA 240 21 22 13 4 32 2 0 0 334
DIS 0 13 0 4 8 23 10 0 0 58
DLA 2 6 0 95 56 22 4 O° 0 185
DMA ~ 1 0 0 6 8 8 0 0 0 23
DNA ; 21 2 12 6 6 0 0 0 0 47
DoD Totals 1160 1472 232 1482 1998 2044 1452 0 0 9841
Percent of ; -

Total =i 11% 14% = 4% 15% 20% 20% 15% — 0% 0% - 100%

*Totais may not agree with item 1 because of cases where two or more exemptions were cited.


Item 1

Initial Determinations Resulting in not

Providing all or a Portion of Record Requested

Total Demands Reasons
Completed Completed
Public Reportable Statutory
Reporting Activity Requests _Requests* Exemptions + Other Total
OSD/OJCS 2,562 4,420 428 1,377 1,805
DEPT ARMY 22,234 22,899 1,536 2,379 3,915
DEPT NAVY 28,636 33,203 - 1,727 5,803 7,530
DEPT AF 26,199 29,630 2,859 5,376 - - 8,235
DCA 332 339 22 3 25
-DCAA 297 510 74 209 283
DIA . 1,288 1,752 334 71 505
DIS 337 318 38 13 51
DLA 15,038 16,038 173 629 802
. DMA 147 149 17 40 57
DNA 155 165 47 58 105
NSA/CSS 444 451 228 152 380
DoD Totals 97,669 109,874 7,483 16,210 23,693

* A reportable request Is that portion of an FOI request resulting in a si
subject area being acted upon by one Initial Denial Authority (IDA) who
Example: A single public request that requires the action of three IDAs in determining

released would be counted as three reportable requests.

ingle record or group of records pertaining to one general

concludes that a single type of determination applies.

ita record under their jurisdiction is to be



Item 7

COURT OPINIONS AND ACTIONS TAKEN
OSD/OJCS

Washington Post vs DoD, Civil No. 84-2949 {9.0.6 Plaintiff's request for a a classified report
concerning El ador was denied pursuant to \C 552(b)(1) and 552(b)(5). After-a detailed
Vaughn Index was provided, the court granted defendant's motion for summary judgment on 25,
February 1987.

wayne vs United States of America et al, Civil No. 87-0571 (D.D.C.). Plaintiff brought suit atter

ing informed that defendant had no records pertaining to alleged “harassment, bugging, and
mind control” of plaintiff for last 18 years. Government motion for summary judgment granted on 12
March 1987. .

Belair vs DoD, Civil No. 87-0469 (D.D.C.) Plaintiff requested records concerning illegal export of
helicopters to North Korea. Records were denied pursuant to 5 USC 552(b)(1) and 552(b)(5).
Plaintiff's request for voluntary dismissal without prejudice was accepted by the court on July 1987.

Pasha Publications Inc. vs DoD, Civil No. 86-3168 (D.D.C). Plaintiff requested records concerning
research programs of the Strategi nse Initiative Organization. Unclassified records were
provided to the plaintiff that were believed to be responsive to his request. Plaintiff appealed that
released documents were not responsive and the defendant ruled the appeal moot as documents
were considered responsive. Plaintiff filed instant litigation, during which time defendant realized a
misunderstanding had occurred over responsiveness. The responsive documents were subse-
quently released in redacted form pursuant to 5 USC 552(b)(1) and the case was dismissed with
prejudice on 23 September 1987.

McTigue vs DoD, Civil No 86-2236 (D.D.C.). Plaintiff's request for a classified memorandum from
Mr. Richard Perle, ASD(ISP), to ag General James Plautz (DIA), was denied in part pursuant to
5 USC 552(b)(1) and 552(b)(5). Case was dismissed with prejudice on 27 April 1987.

Overseas Education Association vs DoD, Civil No. 87-2721 {9.0.C) Plaintiff's request for home
-address of the Department of Dependents ' recruits denied pursuant to 5 USC
552(b)(6). During litigation, parties agreed that on a one-time basis, the Department of Defense
Dependents Schools would mail information concerning piaintiff's collective bargaining responsi-
bilities to the Department of Defense Dependents Schools’ recruits. Case dismissed with prejudice
on 4 March 1987.

Cox vs. DoD, State, Commerce, and Agric ture, Civil No. 85-3628 {0.0.62 Plaintiff filed an

FOIA request for documents ing the ing Commi ir Export Controls. The
Department of Defense replied with a ‘no record’ determination and referred the request to the
Department of State. On 12 October 1985, plaintiff filed instant litigation for this ‘no record’ °
determination. On 25 April 1986, plaintiff filed a praecipe voluntarily dismissing the suit against the

Department of Defense. Case dismissed with prejudice on 2 July 1987. .
NAVY

Hewport Aeronautical Sales v. Department of the Navy, D.D.C. No. 86-3409, filed 11 December
1986. Plaintiff brought suit alleging improper denials of FOIA requests by the Naval Sea Systems
Command (NAVSEA). Plaintiff contends technical manuals were not properly classified and were

improperly withheld under Exemption (b)(3) as they are not subject to withholding under 10 U.S.C.
140c, the Technical Data Act. Case presently held in abeyance.

Solar Turbines, inc. v. Department of the Ni D.D.C. No. 86-2284, filed 19 August 1986. Plaintiff
brought suit because NAVSER tailed to jesue a timely response. On 20 November 1986, the Court
granted a stay until 31 July 1987 to allow NAVSEA to complete administrative processing of the
request. On 29 October 1987, the Court ordered NAVSEA to process certain documents according
to a 90 day schedule. In addition, within 90 days of date of order the parties shall apply to the Court
to set a status conference to deal with the remainder of responsive NAVSEA records.

Todd Shipyards Corp. v. Defense Contract Audit Agency, et al., D.D.C. No. 86-1157, filed 25 April
1986. Plaintiff filed suit to compel release of an audit report, alleging agency failure to respond in a
timely manner. Defendant claimed exemption (b)(7)(A). Court held defendant justified in

withholding the report. Plaintiff filed motion for reconsideration. Defendant did not oppose motion.
Decision pending.

14


Item 2(c)

Other Reasons Cited on Initial Determinations

Category*
Reporting Activity 1 2 3 4 5 6 Total*
OSD/OJCS 653 446112 97 74 4 1,386
DEPT ARMY 732 704215 65175 94 2,085,
DEPT NAVY 2679 1251 «374 514. «‘1285——s«*143 6,246
DEPT AF _ 785 2732 419 682 551 207 5,376
DCA o 1 1 0 1 0 3
DCAA - 39 9 5 2 = 159 0 214
DIA 7. 154 2. 7 1 0 171
DIS 0 613° 0 ) 0 0 13
DLA 170. 239 88 56 71 5 629
DMA 15 1 0 2 7 5 40
DNA 20 22 4 2 8. 2 58
NSA/CSS 6 75 0 66 5 0 152
DoD Totals 5106 5657 1220 1593 2337 ~ 463 16,373
*Types of Categories

1, Transferred Request
2. Lack of Records

3. Failure of Requester to Reasonably Describe Record
4 Other Failures by Requesters to Comply with Published Rules and/or Directives

5. Request Withdrawn by Requester.

6. Not an agency record.

(See following page for description of each category.)



CHAPTER VI
FEE SCHEDULE
Section 1
GENERAL PROVISIONS
6-100 Authorities

The Freedom of Information Act (5 U.S.C. 552), as amended; by the Freedom of Information
Reform Act of 1986; the Paperwork Reduction Act (44 U.S.C. 35); the Privacy Act of 1974 (5 U.S.C.
552a); the Budget and Accounting Act of 1921 (31 U.S.C. 1 et. seq.); the Budget and Accounting
Procedures Act (31 U.S.C. 67 et. seq.); the Defense Authorization Act for FY 87, Section 954, (P.L.
99-661), as amended by the Defense Technical Corrections Act of 1987 (P.L. 100-26).

6-101 Application

a. The fees described in this chapter 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 Instruc-
tion 7230.7 [reference (r)], which does not supersede the collection of fees under the FOIA.
Nothing in this chapter shall supersede fees chargeable under a statute specifically providing for
setting the level of fees for particular types of records” [5 U.S.C. 552 (a)(4)(A)(vi)] means any sta-
tute that enables a government agency such as the Government Printing Office (GPO) or the
National Technical Information Service (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 the GPO or NTIS, they inform
requesters of the steps necessary to obtain records from those sources.

b. The term “direct costs” means those expenditures a component actually makes in searching
for, reviewing (in the case of commercial requesters), and duplicating documents to respond to an
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. These factors have been included in the fee rates prescribed at
Section 2 of this Chapter. Not included in direct costs are overhead expenses such as costs of
space, heating or lighting the facility In which the records are stored.

¢. The term “search” includes ail time spent looking for material that is responsive to a
Search also includes a page-by-page or line-by-line identification (if necessary) of material in the
document to determine if it, or portions thereof are responsive to the request. Components should
ensure that searches are done in the most efficient and least expensive manner so as to minimize
costs for both the Component and the requester. For example, Components should not engage in
line-by-line searches when duplicating an entire document known to contain responsive informa-
tion 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. See paragraph 6-101 e. for the definition of review,
and paragraph 6-201 b. for information pertaining to computer searches.

d. The term “duplication” refers to the process of making a copy of a document in response to
an 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
insure that the copy provided is in a form that is reasonably useable by requesters. If it is not possi-
ble to provide copies which are clearly useable, the requester will be notified that their copy is the
best available and that the agency’s master copy will be made available tor review upon appoint-
ment. For duplication of computer tapes and audiovisual, the actual cost, including the operator's
time, shall be charged. In practice, if a component estimates that assessable duplication charges
are likely to exceed $25.00, it shail notify the requester of the estimate, unless the requester has
indicated in advance his willingness to pay fees as high as those anticipated. Such a notice shall
offer a requester the opportunity to confer with Component personne! with the object of reformulat-
ing the request to meet his or her needs at a lower cost.

e. The term “review” refers to the process of examining documents located in response to an
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

on -


DEPARTMENT OF DEFENSE

FREEDOM
OF
INFORMATION ACT
PROGRAM
CY 1987

SUMMARY OF THE REPORT
TO CONGRESS

PREPARED BY:

OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE
(PUBLIC AFFAIRS)
DIRECTORATE FOR FREEDOM OF INFORMATION
AND SECURITY REVIEW



Item 3

Initial Denial Officials by Participation
(Agency Reports List Names and Titles)

(cont'd)
B. Other Authority Denials*
Number of Officials Categorized Total
Agency by Instances of Participation Officials*
Number of Instances
1 2-3 45 6-10 11-40 41+
OspD/OUCS : 5 5 4 3 3 1 21
DEPT ARMY 13 6 2 4 4 3 32
DEPT NAVY 9 15 1 10 20 5 80
DEPT AF 0 2 2 1 4 7 26
DCA 0 1 0 0 () 0 1.
DCAA 0 0 0 1. 5 1 7
DIA 0 t) 0 ~ 0 0 1 1
DIS 0 0 t) 0 1 ti) 1
DLA 1 1 2 3 5 7 19
DMA 3 4 0 1 2 0 7
DNA 0 () () 0 2 0 2
NSA/CSS 0 0 0 0 0 1 1
DoD Totals 31 31 21 23 46 ‘46 198
*Other category determination processing is not limited to statutory exemption denial authorities.


A. Exemption Denials

Item 3

Initial Denial Officials by Participation
(Agency Reports List Names and Titles)

Number of Officials Categorized Total
Agency by Instances of Participation Officials*
Officials Number of Instances
Authorized 1 2-3 45 6-10 11-40 41+

OSD/OJCS 128 7 2 2 6 0 2 19
DEPT ARMY 78 3 7 7 7 7 7 48
DEPT NAVY 315 7 24 4 16 22 7 100
DEPT AF 132 18 22 7 18 20 22 117
DCA 1 o .o0 0 Q 1 () 1
DCAA 7 1 2 1 O- () 1 5
DIA 1 0 2 0 () 0 2 4
DIS 1 0 0 () 0 0 1 1
DLA 44 6 8 3 2 7 t) 26
DMA 13 2 0 0 0 1 t) . 3
DNA 1 0 0 0 1 a) 1 2
NSA/CSS 1 0 0 0 0 0 1 1
DoD Totals 722 64 67 44 50 58 44 327

“Total officials may exceed number authorized due to personnel turnover.



6-203 Review Time (in the case of commercial requesters)

pp Grade Hourty Rate($)
ES/GS8 and below

Professional 01-06/GS9-GS15 25

Executive 07/GS16/ES1 and above 45

6-204 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 materiais
provided to a requester need not be in reproducible format or quality.

6-205 Other Records

Direct search and duplication cost for any record not described above shall be computed
the manner described for audiovisual documentary material. ,

6-206 Costs for Special Services

Complying with requests for special services is at the discretion of the Components. Neither
the FOIA, nor its fee structure cover these kinds of services. Components may, therefore, recover
the costs of special services requested by the requester after agreement has been obtained in writ-
ing from the requester to pay for one or more of the following services: .

a. Certifying that records are true copies.
b. Sending records by special methods such as express mail, etc.

. Section 3
COLLECTION OF FEES AND FEE RATES FOR TECHNICAL DATA
6-300 Fees for Technical Data :

a. 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 incidenta! to contract administration such as financial and/or management information.
Department of Defense Components shail 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 trom 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
cost shail 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 under
Section 2 for other types of information released under the FOIA. .

b. Waiver. Components shail waive the payment of costs required in paragraph a. above, which
are greater than the costs that would be required for release of this same information under Section
2 of this Chapter if:

1. The request is made by a citizen of the United States or a United States corporation, and
such citizen or corporation certifies that the technical data requested is required to enable it to
submit an offer, or determine whether it is capable of submitting an offer to provide the product to
which the technical data relates to the United States or a contractor with the United States.
However, Components may require the citizen or corporation to pay a deposit in an amount equal
to not more than the cost of complying with the request, which will be refunded upon submission
of an offer by the citizen or corporation;



would be reasonabie to presume that multipie 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

tion becomes harder to sustain and Components should have a solid basis for determining that
aggregation is warranted in such cases. Components are cautioned that before aggregating
requests from more than one requester, they must have a concrete basis on which to conclude that
the requesters are acting in concert and are acting specificially to avoid payment of fees. In no case
may Components aggregate multiple requests on unrelated subjects from one requester.

6-106 Effect of the Debt Collection Act of 1982 (P.L. 97-365).

The Debt Collection Act of 1982 (P.L. 97-365) provides for a minimum annual rate of interest to
be charged on overdue debts owed the Federal Government. Components may levy this interest
penaity 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 shail be as prescribed in
Section 3717 of Title 31 U.S.C.A. Components should verify the current interest rate with respective
Finance and Accounting Offices. After one demand letter has been sent, and 30 calendar days have
lapsed with no payment, Components may submit the debt to respective Finance and Accounting
Offices for collection pursuant to the Debt Collection Act of 1982.

6-107 Computation of Fees .

The fee schedule in this chapter 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 shail be computed on time actually spent. Neither time-based nor dollar-based minimum
charges for search, review and duplication are authorized.

Section 2

COLLECTION OF FEES AND FEE RATES

6-200 Collection of Fees

Collection of fees will be made at the time of providing the documenis to the requester or
recipient when the requester specifically states that the costs invoived shall be acceptable or
table up to specified limit that covers the anticipated costs. Collection of fees may not be made in
advance uniess the requester has failed to pay previously assessed fees within 30 calendar days
from the date of the billing by the DoD Component, or the Component has determined that the fee
will be in excess of $250 (see paragraph 6-104).

6-201 Search Time

a. Manual Search
Type Grade Hourly Rate($)_
Clerical E9/GS8 and below 12
Professional 01-06/GS9-GS/GM15 2
Executive 07/GS/GM16/ES1 and above 4

b. Computer Search ,

Computer search is based on direct cost of the central processing unit, input-output devices,
and memory capacity of the actual computer configuration. The salary scale (equating to para-
graph a. above) for the computer operator/programmer determining how to conduct and subse-
quently executing the search will be recorded as part of the computer. search.

6-202 Duplication

Type. Cost per Page (¢)
Pre-Printed material
Office copy 15

Microfiche 25

Computer copies Actual cost of duplicating the tape

(tapes or printouts) or printout (includes operator's time and
- cost of the tape)

- 26



Statute

dtem 2(b)
Statutes Invoked on Initial Determinations

Number of Times by Agency

Total*

OSD/JCS

ARMY
AIR FORCE

NAVY
DLA
DNA
NSA

DOD TOTALS

10 USC 130
-10 USC 140(c), as
as added by Public
Law 98-94,
Section 1217
10 USC 618 (f)
10 USC 1102
18 USC 798
21 USC 1175
42 USC 2162
42 USC 4582
50 USC 403(d)(3)
~50 USC 402 note,
Section 6, Public
Law 86-36
50 USC 2411

2

o
=
>

= o
=
>

Ba
NOAO=ANO
ao

21 1

o 8

Agency Totals

10 69 110 22 12 292

“Total may not agree with 552(b)(3) exemptions because of cases where two or more statutes were cited.


Paul Goldstein v. Office of independent Counsel, et al., Civil No. 87-2028 (D.D.C.). The case
involves Lyndon LaRouche. The plaintiff filed action ‘on 12 August 1987, seeking expedited
treatment. The Naval Security and Investigative Command responded to the FOIA request on 4
August 1987, advising that they had no records responsive to the request. The Department of
Justice filed a motion to dismiss the expedited treatment. No action is required by the Navy.

Sherry A. Sullivan v. Department. of Navy, Civil No. 87-0305-B (N.D. Me.). Plaintiff filed action on
25 September 1987, which seeks access to information maintained in Federal Bureau of Investiga-
tion, Central Intelligence Agency, Department of State, Department of the Treasury/U.S. Customs,
U.S. Air Force, Immigration and Naturalization Service, Defense Security and Investigative
Command files, concerning the disappearance of her father, while piloting a plane to Central
America. Navy files contained one pertinent document which mentioned plaintiffs father. A portion
of this document was withheld which consisted of a name and service number for another person.
The Navy was unable to contact the person for a release. A litigation report was provided to the
Department of Justice on 2 November 1987. The Assistant U.S. Attorney assigned will attempt to
delete the Navy from the action when the answer is filed. A second delay in responding was
granted since so many agencies were involved.

Pototsky v. BGEN Cates, Department of the Navy, Civil No. 87-0833 (D. Hi.). Plaintiff filed instant
‘action on 13 November 1987, seeking access to an “investigation to inquire into the circumstances
connected with allegations made by Captain Peter G. Pototsky against Major Roy N. Sifers
regarding violations of the UCMJ which occurred during the month of September 1984,” A motion
to dismiss was filed on 3 December 1987, for lack of proper service of the parties. The plaintiff filed
a memorandum in opposition on 18 December 1987. A draft answer to the complaint was provided
to tne U.S. Attomey, which claimed the documents are exempt from disclosure under (b)(5), (6),

and (7).

AIR FORCE

Christiana E. Hayden v. United States Air Force, NGB, USDS Ed VA, Civil No. 87-0630 Plaintiff,

ig ‘all records to ‘she is en’ itled in this case, hereby stipulates to a dismissal of
this action, pursuant to Rule 41(a)(1), Federal Rules of Civil Procedure, with prejudice and without
costs. Dismissed 27 Oct 87. . : :

Heckman v. Executive Branch, USDC Ed Ny Civil No 86-0132. Plaintiff sought relief under the
United States Constitution and a variety of statutes. Suit contained a demand for 5 million dollars
against the Executive Branch of the United States Government and nine federal agencies, the
Smithsonian institution, the National Science Foundation and the President of the United States.
District Court dismissed plaintiffs complaint concluding that he had failed adequately to allege
entitiement to relief under any of the statutory and case law cited in his moving papers. We affirm
substantially for the reasons stated by Judge Platt in his thorough opinion of 29 Jan 87. The order
of the district court is affirmed. : .

Judith Kyle v. The USA, FAA, ANG and USAF USDC WD NY Civil No. 80-1038E. This negligence
‘action as commenced sought monetary damages in connection with the crash of an Air National
Guard F-101 Voodoo Airplane. Plaintiff's motion for summary judgment was granted.

No Gwen Alliance of Eu v. USAF, USDC OR Civil No. 86-6240. Based upon the stipulation of
the parties, judgment is hereby entered dismissing this matter with prejudice and without costs to
either party. . .

Pacific Sky Supply, Inc. v. USAF, USDC DC Civil No. 86-1305. Plaintiff, through its attorneys
‘withdrew its motion for attorney fees and expenses filed with the court on 5 Nov 86, Plaintiff has
determined that it will not pursue recovery of its attorney fees and expenses in this case.
NSA/CSS

Johnson v, NSA, DDC Judge dismissed the case with prejudice on 29 Jun 87. Plaintiff filed a

‘motion for rehearing on 9 Jul 87. Case pending.

17


Item 10 D

Internal Memoranda
(Including Directives not Published in Federal Register)

Reporting Activity

- No. of
Memoranda

No. Available
to Public

OsD/OJCS
DEPT ARMY
DEPT NAVY
DEPT AF
DCA

DCAA

DIA

DIS

DLA

DMA

DNA
NSA/CSS _

eooAnoo0o0cocoon

oo-coococcon—

DoD Totals



Item 10E (Optional)

Other Information (Opinions) or Recommendations on
Administering FOIA

Of the 2209 requests completed in the Office of the Secretary of Defense, the following
table categorizes the requesters by percentage of total case load:

Category , Percentage

Business Firms 15
Congress 1
Foreign 1
Individual 38
Law Firms 4
News Media 8
Research 2
Special Interest 7
Students 1
Other 3
100


fee charge would be inappropriate. Conversely, data brokers or others who merely compile
government information tor marketing can normally be presumed to have an interest primarily of a
commercial nature.

d. Components are reminded that the above factors and-exampies are not all inclusive. Each
fee decision must be considered on a case-by-case basis and upon the merits of the information
provided in each request. When the element of doubt as to whether to charge or waive the fee
cannot be clearly resolved, Components should rule in favor of the requester.

e. In addition, the following additional circumstances describe situations where waiver or
reduction of fees are most likely to be warranted:

1. A record is voluntarily created to preclude an otherwise burdensome effort to provide
voluminous amounts of available records, including additional information not requested.

2. 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).

6-104 Fee Assessment

a. 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.

b. In order to be as responsive as possible to FOIA requests while minimizing unwarranted
costs to the taxpayer, Components shail adhere to the following procedures:

1, Analyze each request to determine the category of the requester. If the Component
determination regarding the category of the requester is different than that claimed by the
requester, the component will:

(i) Notify the requester that he should 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, and within a reasonable period of time (i.e., 30
calendar days), the Component shail render a final category determination, and notify the
requester of such determination, to include normal administrative appeal rights of the

termination.

(il) Advise the requester 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 Component.

2. Requesters must submit a fee declaration appropriate for the below categories.

(i) Commercial. Requesters must indicate a willingness to pay all search, review and
duplication costs.

(ii) Educational or Noncommercial Scientific Institution or News Media. Requesters must
indicate a willingnes to pay duplication charges in excess of 100 pages if more than 100 pages of
records are desired.

(iii) All Others. Requesters must indicate a willingness to pay assessable search and
duplication costs if more than two hours of search effort or 100 pages of records are desired.

3. If the above conditions are not met, then the request need not be processed and the
requester shail be so informed.

4. In the situations described by b. 1. and 2. above, Components must be prepared to provide
an estimate of assessable fees if desired by the requester. While it is recognized that search
situations will vary among Components, and tht 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 Component estimates exceed the actual 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.

3



-Department of Defense

FOI Appeal and Program Officials

Agency Appellate Program
Abbreviation Agency Agency Head
osp/oucs Hon Robert B. Sims Mr. Willlam M. McDonald
Asst SecDef Public Affairs Director, FO! and Security
Review, OASD/PA
Dept. Army General Counsel Mr. Robert C. Ambrose, Acting Chief,
Secretary of the Army Information Branch, HQUSAISC
(AS-OPS-MRA)
Dept. Navy Judge Advocate General/ Mrs. Gwendolyn R. Aitken
General Counsel for PA/FOIA Coordinator
Secretary of the Navy Naval Records Division OPNAV
Dept. Air Force Mr. Robert J. McCormick Mrs. Anne Tumer
- Admin Asst to the Seoretary OPR for Freedom of Information
. of the Air Force Documentation Systems Division
DCA LTG John T. Myers, USA Mr, John T. Wheaien
Director General Counsel
DCAA Mr. John H. van Santen Mrs. Elizabeth Kenny
Asst Director, Resources Records Administrator
DIA Mr. Gordon Negus Mr. Robert C. Hartzog
Executive Director FOIA Officer
DIS Mr. Thomas J. O’Brien Mr. Dale L. Hartig .
Director Chief, Information/Public Affairs
DLA LTG Vincent M. Russo, USA COL James J. Singsank, USA
Director Staff Director, Administration
DMA Mr. Edward Obloy Mr. Del Maikie
General Counsel Director, Public Affairs
DNA ADM John P. Parker LTC Samuel 0. McKinney, USA
USN, Director Public Affairs Officer
NSA/CSS Mr. Charies R. Lord Ms. Julia B. Wetzel

Deputy Director

Director of Policy



Item 5(b)
Statutes Invoked on Appeal Determinations

DoD
Statute Number of Times by Agency Total*
wi
(3)
5
>
= Es ba < <
« Zz c <<.
< z < 2 Fs a z
10 USC 130 2 3 3 18
10 USC 1102 3 3
18 USC 798 7 7
42 USC 2162 2 3 5
50 USC 402 note, 7 7
Section 6, Public
Law 86-36 8
- 50 USC (d)(3) . 7 1 1 8
Rule 6(e), Federal
Rules of Criminal
Procedure
Agency Totals 2 8 13 21 3 1. 1 49

“Total may not agree with 552(b)(3) exemptions because of cases where two or more statutes were cited.

10


Item 6

PARTICIPATION OF APPELLATE AUTHORITIES
(Those Responsible for Denials in Whole or in Part)

No. of Instances
Name Title of Participation"

Exemption Other

OspD/OJcSsS . ;
Robert B. Sims Assistant Secretary of Defense 20 5
. (Public Affairs) :
Fred S. Hoffman Principal Deputy Assistant . 2 0
Secretary Defense (Public Affairs)
William M. McDonald Director, Freedom of information 0 4
and Security Review
DEPARTMENT ARMY ,
Thomas Kranz Principal Deputy General Counsel : 10 0
Darrell Peck Deputy General Counsel 9 t)
COL Larry L. Tech, USA Director Joint Statt : 1 0.
LTC Cragin Shelton, USAF Acting Chief, Admin Sys & Svcs, 1 “0
. National Guard Bureau
“Anthony H. Gambra . Deputy General Counsel 3. t)
DEPARTMENT NAVY :
RADM E.D. Stumbaugh, USN Acting JAG 55 3
RADM H.D. Campbell, USN Judge Advocate General (JAG) 5 ()
RADM RLL. Slater, USN Acting JAG 32 2
CAPT J.L. Hoffman, USN Acting JAG 71 3.
CAPT C.H. Mitchell, USN Deputy JAG (Litigation) 2 0
CDR A.R. Philpott, USN Deputy Assistant JAG 0 30 -
: (Litigation General)
CAPT R.C. Berkley, USN Deputy Assistant JAG (DAJAG) t) 7
General Litigation
CDR S.A. Banks, USN Deputy DAJAG 0 3
CDR R.W. Scholz, USN Acting DAJAG 0 5
LTCOL K.T. Sefton, USMC Acting DAJAG 0 1
W.T. Skallerup, Jr., SES General Counsel 37 53
Mr. O'Neill, SES Acting General Counsel 2 1
J.J. Wilcox, SES © Acting General Counsel 7 9
F.A. Phelps Acting General Counsel 2 4
AIR FORCE
Steven A. Thompson _ Deputy Admin Assistant 203 0
DCA .
RADM T.R.M. Emery, USN Vice Director 1 0

12


Agency
Abbreviation

Department of Defense
Reporting Agencies under the Freedom of Information Act

Agency

Agency Head

osp/OJCS

Dept. Army
Dept. Nevy

Dept. Air Force

DCAA
DIA

DMA
DNA

NSA/CSS

Office of the Secretary of Defense

(including the Organization of the
Joint Chiets of Staff)

Secretary of the Army
Secretary of the Navy
Secretary of the Air Force

Defense Communications Agency

Defense Contract Audit Agency
Defense intelligence Agency
Defense Investigative Service
Defense Logistics Agency
Defense Mapping Agency
Defense Nuclear Agency

National Security Agency
Central Security Service

Hon Frank C. Carlucci, Ill

Hon John O. Marsh, Jr.

Hon James H. Webb, Jr.

Hon Edward C. Aldridge, Jr.
LTG John T. Myers, USA

Mr. William H. Reed

LTG Leonard H. Perroots, USAF
Mr. Thomas J. O’Brien

. LTG Vincent M. Russo, USA

MGEN Robert F. Durkin, USAF
ADM Jonn P. Parker, USN

LTG William E. Odom, USA



Item 10(c)
Time Limit Extensions by Agency

l W& il
Reporting : Unusual Circumstances Court
Activity Location Volume Consultation Involvement Total
OSD/OJCS 65 27 1741 0 1833
DEPT ARMY 0 ) (i) t) 0
DEPT NAVY 41 1877 71 0 1989
DEPT AF ‘62 837 237 0 1126
DCA 5 52 32 ti) 89
DCAA 3 9 3 t) 15
DIA () 0 0 0 0
DIS 0 0 0 0 0
DLA 56 36 78 () 170
DMA | 4 12 0 0 16
DNA : 0 0 () t) 0
NSA/CSS 0 405 10 0 41s
DoD Totals 226 3255 2172 0 5653

33



initial review. Components 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.

6-102 Fee Restrictions -

a. No fees may be charged by any DoD component 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, Components 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 ten minutes of
search time, and resulted in one hundred and five pages of documents, a Component 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 Component for billing the requester and
processing the fee collected, no charges would result.

b. 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 a
Component, after completing its portion of a request, finds it necessary to refer the request to a
subordinate office, another DoD Component, or another federal agency to action their portion of
the request, the referring Component shall inform the recipient of the referral of the expended
amount of search time and duplication cost to date.

c. The elements to be considered in determining the “cost of collecting a fee” are the _
administrative costs to the Component of receiving and recording a remittance, and processing the
fee for deposit in the Treasury Department's special account. The cost to the Treasury to handle
such remittance is negligible and shall not be considered in Components’ determinations.

d. For the purposes of these restrictions, the word “pages” refers to paper copies of a standard
size, which will normally be “8% x 11” or “11 x 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.

e. 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, input-output devices, and memory
capacity equal $24.00 (two hours of equivatent search at the clerical level), amounts of computer
costs in excess of that amount are chargeable as computer search time.

6-103 Fee Waivers

a. Documents shall be furnished without charge, or at a charge reduced below fees assessed
to the categories of requesters in paragraph 6-104 when the Component determines that waiver or
reduction of the fees is in the public interest because furnishing the information is likely to
contribute significantly to public understanding of the operations or activities of the Department of
Defense and is not primarily in the commercial interest of the requester.

b. When direct costs for the FOIA request total $15.00 or less, fees shall be waived
automatically for all requesters, regardless of category:

c. Decisions to waive or reduce fees that exceed the automatic waiver threshold shall be made
on a case-by-case basis, consistent with the following factors:

1. 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) The Sublect of the request, Components should analyze whether the subject matter of
the request in issues which will significantly contribute to the public understanding of the

operations or activities of the DoD. Requests for records in the possession of 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
the DoD. An example of such records might be press clippings, magazine articles, or records
forwarding a particular opinion of concem from a member of the public regarding a DoD activity.
Similarly, disclosures of records of considerable age may or may not bear directly on the current
activities of the DoD; however, the age of a particular record shall not be the sole criteria for

a


CY 1987 FREEDOM OF INFORMATION ACT
ANNUAL REPORT
HIGHLIGHTS

A total of 97,669 public requests for records under. the Freedom of Information
Act (FOIA) were processed during 1987 by the Department of Defense. This
compared with an average annual case load of 81,162 for the years 1976-1986,
the reporting period since the act was amended, and is roughly 20% above
average. Five thousand six hundred fifty three case required time limit
extensions - 226 for location, 3255 for volume, 2172 for consultation.

The Department of Defense initially granted approximately 75% of the requests.
There were 7,483 requests denied on the basis of FOIA exemptions. Of these
initially denied requests, 1 of 6 was because continued classification was
_warranted; 1 of 5 was because the record requested was a internal
memorandum; 1 of 32 was because of statutory exemption; 1 of 5 was because
the information requested was considered proprietary data; 1 of 5 was because
the record requested involved investigatory data; and 1 of 4 was because
information requested involved personal privacy. An additional 16,210 requests
could not be filled in whole or in part for other reasons, such as lack of record
requested, transferral to another agency, or lack of specificity sufficient to
identify the requested records. There were 587 appeals of denied requests, 65
appeals were fully granted, 202 partially granted, and 315 again rejected.

Administrative costs associated with these requests were approximately
$13,440,155, somewhat more than the $9,181,823 average for the 1976-1986.
period. The average cost of processing a single case during 1987 was
pase read $140. Fee collections for records provided to the public amounted
to 941.

Questions regarding this report should be addressed to the Director, Freedom of
Information and Security Review OASD (Public Affairs), Room 2C757, The
Pentagon, Washington, DC 20301-1400.



Item 10A

Availability of Records
(New Categories of segregable portions of records now being released)

NONE


5. No DoD Component 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 Component.

6. Where a Component estimates or determines that allowable charges that a requester may
be required to pay are likely to.exceed $250.00, the Component shall notify the requester of the
likely cost and obtain satisfactory assurance of full payment 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.

7. 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 Component may require the requester to
pay the full amount owed, plus any applicable interest, or demonstrate that he has paid the fee, and
to make an advance payment of the full amount of the estimated fee before the Component beings
to process a new or pending request from the requester. Interest will be at the rate prescribed in
Section 3717 of Title 31, U.S.C.A., and confirmed with respective Finance and Accounting Offices.

8. After all work is completed on a request, and the documents are ready for release,
Components may request payment prior to forwarding the documents if there is no payment
histéry on the requester, or if the requester has previously failed to pay a fee in a timely fashion
(i.e., within 30 calendar days from the date of the billing). in the case of the latter, the provisions of
b.7., above apply. Components may not hoid documents ready for release pending payment from
requesters with a history of prompt payment.

9. When Components act under subparagraphs 1-7 above, the administrative time limits of
the FOIA (i.e., 10 working days from receipt of initial requests, and 20 working days from receipt of
appeals, plus permissable extensions of these time limits) will begin only after the Component has
received hehe sitingness to pay fees and satisfaction as to category determination, or fee payments (it
appropt 5

10. Components may charge for time spent searching for records, even if that search fails to
locate records responsive to the request, or if records located are determined to be exempt from
disclosure. In practice, if the Component estimates that search charges are likely to exceed $25.00
it shall notify the requester of the estimated amount of fees, uniess the requester has indicated in
advance his willingness to pay fees as high as those anticipated. Such a notice shall offer the
requester the opportunity to confer with Component personnel with the object of reformulating
request to meet his or her needs at a lower cost. .

c. Commercial Requesters. Fees shall be limited to reasonable standard charges for document
search, ‘and duplication when records are requested for commercial use. Requester must
reasonably describe the records sought (see paragraph 1-507). 7

1. 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 behaif the request is made. In determining whether a requester
property belongs in this category, Components must determine the use to which a requester will
put thedocuments requested. Moreover, where a Component has reasonable cause to doubt the
use to which a requester will put the records sought, or where that use is not clear from the request
itself, Components should seek additional clarification betore assigning the request to a specific

2. When Components receive a request for documents for commercial use, they should
assess charges which recover the full direct costs of searching for, reviewing for release, and dupli-
cating the records sought. Commercial requesters (unlike otfier 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 commer-
cial use. It is also possible that a non-profit organization could make a request that Is for commer-
cial use. Such situations must be addressed on a case-by-case basis.

d. 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. must reasonably
describe the records sought (see paragraph 1-507). The term “educational institution” refers to a
pre-school, a public or private elementary or secondary school, an institution of graduate higher

2 . .


Item 4

Number of Appeals and Results
Number of Appeals
Reporting Activity Granted Granted in Part Denied Total*
OSD/OJCS 10 1 “16 37
DEPT ARMY t) 2 12 4
DEPT NAVY 24 136 7 237
DEPT AF 18 24 161 203
DCA 0 t) 1 1
DCAA 3 4 2 9
DIA 0 5 26 41
DIS ) 0 0 ti)
DLA 10 6 7 23
DMA 0 0 2 2
DNA . 0 7 2 9
NSA/CSS 0 2 9 1
DoD Totals . 6 207 - 315 587



Item 5(c)
Other Reasons Cited on Appeal Determinations

Category*

Reporting Activity 1 2 3 4 5 6 Total
OSD/OJCS . 19 0 0 2 8 5 34
DEPT ARMY tt) 5 2 0 9 10 26
DEPT NAVY 36 7 8 10 59 51 181
DEPT AF 29 78 aK) 38 12 29 299
DCA 1 0 0 0 0 0 1
DCAA 0 3 0 3 3 0 9
DIA 40 1 1 0 0 4 46
Dis 0 0 0 0 0 0 0
DLA 0 0 1 10 1 1 8
DMA 1 0 0 0 1 1 3
DNA 6 0 3 2 5 0 16
NSA/CSS 9 0 9 1 0 0 19
DoD Totals a | 104 37 66 198 101 647

“Types of Categories :

1. Transterred Appeal
2. Lack of Records
3. Failure of Requester to Reasonably Describe Record

4. Other Failures by Requesters to Comply with Published Rules and/or Directives

5. Request Withdrawn by Requester.
6. Not an agency record.
(See page 5 for full description of “other reasons.”

"1