7398 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules

(b) If your undergraduate degree or

certificate program normally requires

more than four academic years, you may

take extra years to complete the

program, but you must finish a degree

in six academic years.

(c) The BIA or tribal organization

administering the program may waive

the time limits for hardship caused by

special circumstances.

(d) To remain eligible for continued

funding, you must submit a grade report

or transcript for each term to the BIA or

tribal organization administering the

program.

§ 40.9 What happens if I withdraw from

school?

(a) You will be required to pay back

any portion of the grant you receive if

you, without mitigating circumstances,

fail to enroll, withdraw or are expelled

before the completion of a term.

(b) Within ten days of your failure to

enroll or withdrawal or expulsion you

will be required to submit to the BIA or

tribal organization administering the

program:

(1) The date of your failure to enroll,

withdrawal or expulsion;

(2) A written statement with

supporting documentation stating your

reasons for a failure to enroll,

withdrawal or expulsion including

mitigating circumstances; and

(3) A copy of your request to the

institution that all remaining grant

funds be returned to the BIA.

(c) The Bureau of Indian Affairs or

tribal organization administering the

program will notify you in writing of

arrangements to pay the balance of

funds based upon a Certificate of

Agreement between you and the

organization awarding your grant or

grant you a waiver from repayment

based upon mitigating circumstances.

§ 40.10 How do I appeal a grant decision?

You may appeal the decisions of any

BIA official by following the procedures

in 25 CFR part 2, Appeals from

Administrative Actions.

§ 40.11 What records are kept for the grant

program?

(a) The Higher Education Office will

maintain your files, a ledger of all costs,

and related records necessary to identify

all transactions involving expenditure of

funds made available to you under this

program. These records:

(1) Identify your award and status;

(2) Demonstrate your eligibility;

(3) Document the amount of your award

and the manner in which your

unmet need was calculated and

met;

(4) Identify whether your enrollment

was terminated;

(5) Identify collections based upon

Certificates of Agreement; and

(6) Identify waivers from repayment.

(b) By November 1 of each year, the

Education Line Officer will submit a

Higher Education Grant Program

Annual Report for the preceding

academic year to the Director of the

Office of Indian Education Programs.

§ 40.12 How does a tribe estimate

allowable administrative costs?

Tribes and tribal organizations that do

not have a negotiated an indirect cost

rate with the Federal Government may

use no more than 15 percent of available

program funds to pay for indirect

program costs chargeable to the

program.

§ 40.13 May a tribe prioritize its higher

education grant program?

Yes.

(a) A tribe operating a higher

education program may set program

priorities for categories of applicants.

These priorities in order to be given

effect must be set out in the application

materials provided to grant applicants,

and attached to the tribe’s contract or

annual funding agreement. This tribal

program priority plan may include a

listing of priorities, the reasons and

supporting documentation.

(b) If a tribe desires to set a higher

academic standard by increasing the

minimum grade point average, designate

academic hours needed in order to be

classified as a full time student, set

priorities to first serve students residing

near or within the exterior boundaries of

the reservation or on trust or restricted

lands, the tribe may do so.

§ 40.14 Are there requirements for

information collection?

The information collection

requirement contained in this part has

been approved by the Office of

Management and Budget under the

Paperwork Reduction Act of 1995, 44

U.S.C. 3507(d), and assigned clearance

number 1076–0106.

Dated: January 28, 1997.

Ada E. Deer,

Assistant Secretary—Indian Affairs.

[FR Doc. 97–4000 Filed 2–18–97; 8:45 am]

BILLING CODE 4310–02–P

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 286

[DoD 5400.7–R]

DoD Freedom of Information Act

Program Regulation

AGENCY: Department of Defense

ACTION: Proposed rule.

SUMMARY: This proposed revision

provides substantive and administrative

changes to conform to the requirements

of the Electronic Freedom of

Information Act Amendments of 1996, 5

U.S.C. 552, as amended by Public Law

104–231. It also provides guidance to

the Department of Defense on

implementation of this amended law.

DATES: Comments must be received by

April 21, 1997.

ADDRESSES: Forward copies to ASD(PA),

Room 2C757, 1400 Defense Pentagon,

Washington, DC 20301–1400

FOR FURTHER INFORMATION CONTACT: Mr.

C. Talbott, 703–697–1171.

SUPPLEMENTARY INFORMATION:

Executive Order 12866, ‘‘Regulatory

Planning and Review’’

It has been determined that 32 CFR

part 286 is not a significant regulatory

action. The rule does not:

(1) Have an annual effect to the

economy of $100 million or more or

adversely affect in a material way the

economy; a section of the economy;

productivity; competition; jobs; the

environment; public health or safety; or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another Agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs, or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in this Executive Order.

Public Law 96–354, ‘‘Regulatory

Flexibility Act’’ (5 U.S.C. 601)

It has been certified that this rule is

not subject to the Regulatory Flexibility

Act (5 U.S.C. 601) because it would not,

if promulgated, have a significant

economic impact on a substantial

number of small entities. This rule

implements the Freedom of Information

Act (5 U.S.C. 552), a statute concerning

the release of Federal Government

records, and does not economically
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7399

1 Copies may be obtained, at cost, from the

National Technical Information Service, 5285 Port

Royal Road, Springfield, VA 22161.

impact Federal Government relations

with the private sector.

Public Law 96–511, ‘‘Paperwork

Reduction Act’’ (44 U.S.C. Chapter 35)

It has been certified that this part does

not impose any reporting or

recordkeeping requirements under the

Paperwork Reduction Act of 1995.

List of Subjects in 32 CFR Part 286

Freedom of information.

Accordingly, 32 CFR part 286 is

proposed to be revised to read as

follows:

PART 286—DOD FREEDOM OF

INFORMATION ACT PROGRAM

REGULATION

Subpart A—General Provisions

Sec.

286.1 Purpose and applicability.

286.2 DoD public information.

286.3 Definitions.

286.4 Policy.

Subpart B—FOIA Reading Rooms

286.7 Requirements.

286.8 Indexes.

Subpart C—Exemptions

286.11 General provisions.

286.12 Exemptions.

Subpart D—For Official Use Only

286.15 General provisions.

286.16 Markings.

286.17 Dissemination and transmission.

286.18 Safeguarding FOUO information.

286.19 Termination, disposal and

unauthorized disclosure.

Subpart E—Release and Processing

Procedures

286.22 General provisions.

286.23 Initial determinations.

286.24 Appeals.

286.25 Judicial actions.

Subpart F—Fee Schedule

286.28 General provisions.

286.29 Collection of fees and fee rates.

289.30 Collection of fees and fee rates for

technical data.

Subpart G—Reports

286.33 Reports control.

286.34 Annual report.

Subpart H—Education and Training

286.37 Responsibility and purpose.

Appendix A to Part 286—Unified Combatant

Commands—Processing Procedures for

FOIA Appeals

Appendix B to Part 286—Addressing FOIA

Requests

Appendix C to Part 286—Other Reason

Categories

Appendix D to Part 286—’’Record of

Freedom of Information (FOI) Processing

Cost’’ (DD Form 2086)

Appendix E to Part 286— ‘‘Record of

Freedom of Information (FOI) Processing

Cost for Technical Data’’ (DD Form

2086–1)

Appendix F to Part 286— ‘‘Annual Report

Freedom of Information Act’’ (DD Form

2564)

Appendix G to Part 286—DoD Freedom of

Information Act Program Components

Authority: 5 U.S.C. 552.

Subpart A—General Provisions

§ 286.1 Purpose and applicability.

(a) Purpose. This part provides

policies and procedures for the

Department of Defense (DoD)

implementation of the Freedom of

Information Act (5 U.S.C. 552, as

amended) and DoD Directive 5400.7 1

and promotes uniformity in the DoD

Freedom of Information Act (FOIA)

Program.

(b) Applicability. This part applies to

the Office of the Secretary of Defense

(OSD), the Military Departments, the

Chairman of the Joint Chiefs of Staff, the

Unified Combatant Commands, the

Inspector General of the Department of

Defense (IG DoD), the Defense Agencies,

and the DoD Field Activities (hereafter

referred to collectively as ‘‘the DoD

Components’). This part takes

precedence over all DoD Component

publications that supplement and

implement the DoD FOIA Program. A

list of DoD Components is at appendix

G to this part.

§ 286.2 DoD public information.

(a) The public has a right to

information concerning the activities of

its Government. DoD policy is to

conduct its activities in an open manner

and provide the public with a maximum

amount of accurate and timely

information concerning its activities,

consistent always with the legitimate

public and private interests of the

American people. A record requested by

a member of the public who follows

rules established by proper authority in

the Department of Defense shall not be

withheld unless the record is exempt

from mandatory disclosure under the

FOIA. As a matter of policy, DoD

Components shall make discretionary

disclosures of exempt records or

information whenever disclosure would

not foreseeably harm an interest

protected by a FOIA exemption, but this

policy does not create any right

enforceable in court. In order that the

public may have timely information

concerning DoD activities, records

requested through public information

channels by news media representatives

that would not be withheld if requested

under the FOIA should be released

upon request. Prompt responses to

requests for information from news

media representatives should be

encouraged to eliminate the need for

these requesters to invoke the

provisions of the FOIA and thereby

assist in providing timely information to

the public. Similarly, requests from

other members of the public for

information that would not be withheld

under the FOIA should continue to be

honored through appropriate means

without requiring the requester to

invoke the FOIA.

(b) Within the Office of the Secretary

of Defense, the Chief Information

Officer, who is also the Assistant

Secretary of Defense for Command,

Control, Communications, and

Intelligence is responsible for preparing

reference material or a guide for

requesting records or information from

the DoD, subject to the nine exemptions

of the FOIA. This part shall also include

an index of all major information

systems, and a description of major

information and record locator systems.

DoD FOIA Components shall coordinate

with the appropriate office(s) to insure

that this function is also accomplished

within their department or organization.

(c) DoD Components shall also

prepare, in addition to normal FOIA

regulations, a handbook for obtaining

information from their organization.

This handbook should be a short,

simple explanation to the public of what

the FOIA is designed to do, and how a

member of the public can use it to

access government records. Each DoD

Component should explain the types of

records that can be obtained through

FOIA requests, why some records

cannot, by law, be made available, and

how the DoD Component determines

whether the record can be released. The

handbook should also explain how to

make a FOIA request, how long the

requester can expect to wait for a reply,

and explain the right of appeal. The

handbook should supplement other

information locator systems, such as the

Government Information Locator

System (GILS), and explain how a

requester can obtain more information

about those systems. The handbook

should be available on paper and

through electronic means, and identify

how a requester can access DoD

Components’’ Freedom of Information

Act annual reports. Similarly, the DoD

Components’’ Freedom of Information

Act annual reports should refer to the

handbook and how to obtain it.
7400 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules

(d) Control system. A request for

records that invokes the FOIA shall

enter a formal control system designed

to ensure accountability and compliance

with the FOIA. Any request for DoD

records that either explicitly or

implicitly cites the FOIA shall be

processed under the provisions of this

part, unless otherwise required by

§ 286.4 (m)

§ 286.3 Definitions.

As used in this part, the following

terms and meanings shall be applicable:

Administrative appeal. A request by a

member of the general public, made

under the FOIA, asking the appellate

authority of a DoD Component to

reverse a decision to: Withhold all or

part of a requested record; deny a fee

category claim by a requester; deny a

request for expedited processing due to

demonstrated compelling need under

§ 286.4 (d) (3); deny a request for waiver

or reduction of fees; deny a request to

review an initial fee estimate; and

confirm that no records were located

during the initial search.

Agency record. (1) The products of

data compilation, such as all books,

papers, maps, and photographs,

machine readable materials, inclusive of

those in electronic form or format, or

other documentary materials, regardless

of physical form or characteristics, made

or received by an agency of the United

States Government under Federal law in

connection with the transaction of

public business and in DoD’s possession

and control at the time the FOIA request

is made.

(2) The following are not included

within the definition of the word

‘‘record’’:

(i) Objects or articles, such as

structures, furniture, vehicles and

equipment, whatever their historical

value, or value as evidence.

(ii) Anything that is not a tangible or

documentary record, such as an

individual’s memory or oral

communication.

(iii) Personal records of an individual

not subject to agency creation or

retention requirements, created and

maintained primarily for the

convenience of an agency employee,

and not distributed to other agency

employees for their official use.

(iv) Information stored within a

computer for which there is no existing

computer program for retrieval of the

requested information.

(3) A record must exist and be in the

possession and control of the

Department of Defense at the time of the

request to be considered subject to this

part and the FOIA. There is no

obligation to create, compile, or obtain

a record to satisfy an FOIA request. See

§ 286.4 (g) (2) with respect to creating a

record in the electronic environment.

(4) Hard copy or electronic records,

which are subject to FOIA requests

under 5 U.S.C. 552 (a)(3), and which are

available to the public through an

established distribution system, or

through the Federal Register, the

National Technical Information Service,

or the Internet, normally need not be

processed under the provisions of the

FOIA. If a request is received for such

information, provide the requester with

guidance on how to obtain the

information. However, if the requester

insists that the request be processed

under the FOIA, then process the FOIA

request. If the information sought is not

an agency record pursuant to the FOIA

and this part, there is no obligation to

process the request under the FOIA, and

the requester shall be so notified.

Appellate authority. The Head of the

DoD Component or the Component

head’s designee having jurisdiction for

this purpose over the record, or any of

the other adverse determinations

outlined in definitions ‘‘Initial denial

authority and Administrative appeal.’

DoD Component. An element of the

Department of Defense, as defined in

§ 286.1 (a) of this section authorized to

receive and act independently on FOIA

requests (see appendix G to this part). A

DoD component has its own initial

denial authority (IDA), appellate

authority, and legal counsel.

Electronic data. Records and

information (including e-mail) which

are created, stored, and retrievable by

electronic means.

FOIA request. A written request for

DoD records, made by any person,

including a member of the public (U.S.

or foreign citizen), an organization, or a

business, but not including a Federal

agency or a fugitive from the law, that

either explicitly or implicitly invokes

the FOIA, DoD Directive 5400.7, this

part, or DoD Component supplementing

regulations or instructions. Written

requests may be received by postal

service or other commercial delivery

means, by facsimile, or electronically.

Honoring form or format requests.

DoD Components shall provide the

record in any form or format requested

by the requester if the record is readily

reproducible in that form or format. DoD

Components shall make reasonable

efforts to maintain their records in forms

or formats that are reproducible. In

responding to requests for records, DoD

Components shall make reasonable

efforts to search for records in electronic

form or format, except when such efforts

would significantly interfere with the

operation of the DoD Components’’

automated information system. Such

determinations shall be made on a case

by case basis. See also § 286.4 (g) (2).

Initial denial authority (IDA). An

official who has been granted authority

by the head of a DoD component to:

withhold records requested under the

FOIA for one or more of the nine

categories of records exempt from

mandatory disclosure. IDA’s may also

deny a fee category claim by a requester;

deny a request for expedited processing

due to demonstrated compelling need

under § 286.4 (c) (3); deny a request for

a waiver or reduction of fees; review a

fee estimate; and confirm that no

records were located in response to a

request.

Public interest. The interest in

obtaining official information that sheds

light on an agency’s performance of its

statutory duties because the information

falls within the statutory purpose of the

FOIA to inform citizens about what

their government is doing. That

statutory purpose, however, is not

fostered by disclosure of information

about private citizens accumulated in

various governmental files that reveals

nothing about an agency’s or official’s

own conduct.

§ 286.4 Policy.

(a) Compliance with the FOIA. DoD

personnel are expected to comply with

the FOIA , this part, and DoD FOIA

policy in both letter and spirit. This

strict adherence is necessary to provide

uniformity in the implementation of the

DoD FOIA Program and to create

conditions that will promote public

trust.

(b) Openness with the public. The

Department of Defense shall conduct its

activities in an open manner consistent

with the need for security and

adherence to other requirements of law

and regulation. Records not specifically

exempt from disclosure under the Act

shall, upon request, be made readily

accessible to the public in accordance

with rules promulgated by competent

authority, whether or not the Act is

invoked.

(c) Avoidance of procedural obstacles.

DoD Components shall ensure that

procedural matters do not unnecessarily

impede a requester from obtaining DoD

records promptly. Components shall

provide assistance to requesters to help

them understand and comply with

procedures established by this part and

any supplemental regulations published

by the DoD Components.

(d) Prompt action on requests. (1)

Generally, when a member of the public

complies with the procedures

established in this part and DoD

Component regulations or instructions
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7401

for obtaining DoD records, the request

shall receive prompt attention, and a

response determination shall be

dispatched within 10 working days (20

working days effective October 2, 1997)

unless a significant number of requests

precludes a determination within this

time period. A response determination

is notification to the requester that the

records are released, or will be released

on a certain date, or the records are

denied under the appropriate FOIA

exemption, or the records cannot be

provided for one or more of the other

reasons in paragraph (c) of this section.

Interim responses acknowledging

receipt of the request are encouraged;

however, such responses do not

constitute a response determination

pursuant to the FOIA.

(2) Multitrack processing. When a

Component has a significant number of

requests which precludes a response

determination being made within 10

working days (20 working days effective

October 2, 1997), the requests shall be

processed in a multitrack processing

system, based on the date of receipt, the

amount of work and time involved in

processing the requests, and whether

the request qualifies for expedited

processing as described in paragraph (d)

(3) of this section. DoD Components

may establish as many processing

queues as they wish; however, as a

minimum, three processing tracks shall

be established, all based on a first-in,

first-out concept, and rank ordered by

the date of receipt of the request. One

track shall be a processing queue for

simple requests, one track for complex

requests, and one track shall be a

processing queue for expedited

processing as described in paragraph (d)

(3) of this section. Simple and complex

requests shall be decided by each DoD

Component. DoD Components shall

provide a requester whose request does

not qualify for the fastest queue (except

for expedited processing as described in

paragraph (d) (3) of this section, an

opportunity to limit in writing by hard

copy, facsimile, or electronically, the

scope of the request in order to qualify

for the fastest queue. This multitrack

processing system does not obviate

components’’ responsibility to exercise

due diligence in processing requests in

the most expeditious manner possible.

(3) Expedited processing. A separate

queue shall be established for requests

meeting the test for expedited

processing. Expedited processing shall

be granted to a requester after the

requester requests such and

demonstrates a compelling need for the

information. Notice of the determination

as to whether to grant expedited

processing in response to a requester’s

compelling need shall be provided to

the requester within 10 calendar days

after receipt of the request in the office

which will determine whether to grant

expedited access. Once the

determination has been made to grant

expedited processing, DoD Components

shall process the request as soon as

practicable. Actions by DoD

Components to initially deny or affirm

the initial denial on appeal of a request

for expedited processing, and failure to

respond in a timely manner shall be

subject to judicial review

(i) Compelling need. The failure to

obtain the records on an expedited basis

could reasonably be expected to pose an

imminent threat to the life or physical

safety of an individual.

(ii) It is also the information is

urgently needed by an individual

primarily engaged in disseminating

information in order to inform the

public concerning actual or alleged

Federal Government activity. News

media requesters would normally

qualify; however, other persons must

demonstrate that their primary activity

involves publishing or otherwise

disseminating information to the public,

not just a particular segment or group.

(A) Urgently needed. The information

has a particular value that will be lost

if not disseminated quickly. Ordinarily

this means a breaking news story of

general public interest. However,

information of historical interest only,

or information sought for litigation or

commercial activities would not qualify,

nor would a news media publication or

broadcast deadline unrelated to the

news breaking nature of the

information.

(B) Actual or alleged Federal

government activity. The information

concerns some actions taken,

contemplated, or alleged by or about the

government of the United States, or one

of its components or agencies, including

the Congress.

(iii) A demonstration of compelling

need by a requester shall be made by a

statement certified by the requester to be

true and correct to the best of their

knowledge. This statement must

accompany the request in order to be

considered and responded to within the

10 calendar days required for decisions

on expedited access.

(iv) Other reason for expedited

processing. Another reason which

merits expedited processing by DoD

Components is an imminent loss of

substantial due process rights. A

demonstration of imminent loss of

substantial due process rights shall be

made by a statement certified by the

requester to be true and correct to the

best of their knowledge. This statement

must accompany the request in order to

be considered and responded to within

the 10 calendar days required for

decisions on expedited access. Once the

decision has been made to expedite the

request for this reason, the request may

be processed in the expedited

processing queue behind those requests

qualifying for compelling need.

(v) These same procedures also apply

to requests for expedited processing of

administrative appeals.

(e) Use of exemptions. It is DoD policy

to make records publicly available,

unless the record qualifies for

exemption under one or more of the

nine exemptions. It is DoD policy that

DoD Components shall make

discretionary releases whenever

possible; however, a discretionary

release is normally not appropriate for

records clearly exempt under

exemptions 1, 3, 4, 6, 7 (F) and 7(C).

Exemptions 2, 5, and 7(A)(B)(D) and (E)

are discretionary in nature, and DoD

Components are encouraged to exercise

discretionary releases whenever

possible. Exemptions 4, 6 and 7(C)

cannot be claimed when the requester is

the submitter of the information.

(f) Public domain. Nonexempt records

released under the authority of this part

are considered to be in the public

domain. Such records may also be made

available in Components’ reading rooms

in paper form, as well as electronically

to facilitate public access. Exempt

records released pursuant to the FOIA

may be considered to be in the public

domain only when their release

constitutes a waiver of the FOIA

exemption. Disclosure to a properly

constituted advisory committee, to

Congress, or to other Federal agencies

does not waive the exemption. (See

§ 286.22 (d)). Records disclosed without

authorization by the appropriate DoD

official (‘‘leaks’’) do not lose their

exempt status. Also, while authority

may exist to disclose records to

individuals in their official capacity, the

provisions of this part apply if the same

individual seeks the records in a private

or personal capacity.

(g) Creating a record. (1) A record

must exist and be in the possession and

control of the Department of Defense at

the time of the search to be considered

subject to this part and the FOIA. Unless

the originator or submitter of the record

has imposed restrictions controlling the

dissemination of the record, a DoD

Component has control of a record

when it has possession of the record and

uses it in the conduct of its business.

There is no obligation to create,

compile, or obtain a record to satisfy an

FOIA request. A DoD Component,
7402 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules

however, may compile a new record

when so doing would result in a more

useful response to the requester, or be

less burdensome to the agency than

providing existing records, and the

requester does not object. Cost of

creating or compiling such a record may

not be charged to the requester unless

the fee for creating the record is equal

to or less than the fee which would be

charged for providing the existing

record. Fee assessments shall be in

accordance with subpart F of this part.

(2) With respect to electronic data, the

issue of whether records are actually

created or merely extracted from an

existing data base is not always readily

apparent. Consequently, when

responding to FOIA requests for

electronic data where creation of a

record, programming, or particular

format are questionable, Components

should apply a standard of

reasonableness. In other words, if the

capability exists to respond to the

request, and the effort would be a

business as usual approach, then the

request should be processed. However,

the request need not be processed where

the capability to respond does not exist

without a significant expenditure of

resources, thus not being a normal

business as usual approach. As used in

this sense, a significant expenditure of

resources in both time and manpower,

which would cause a significant

interference with the operation of the

components’ automated information

system would not be a business as usual

approach.

(h) Description of requested record.

(1) Identification of the record desired is

the responsibility of the requester. The

requester must provide a description of

the desired record, that enables the

Government to locate the record with a

reasonable amount of effort. When a

DoD Component receives a request that

does not reasonably describe the

requested record, it shall notify the

requester of the defect. The defect

should be highlighted in a specificity

letter, asking the requester to provide

the type of information outlined below

in paragraph (h)(2) of this section. DoD

Components are not obligated to act on

the request until the requester responds

to the specificity letter. When

practicable, DoD Components shall offer

assistance to the requester in identifying

the records sought and in reformulating

the request to reduce the burden on the

agency in complying with the Act.

(2) The following guidelines are

provided to deal with generalized

requests and are based on the principle

of reasonable effort. Descriptive

information about a record may be

divided into two broad categories.

(i) Category I. File-related and

includes information such as type of

record (for example, memorandum),

title, index citation, subject area, date

the record was created, and originator.

(ii) Category II. Event-related and

includes the circumstances that resulted

in the record being created or the date

and circumstances surrounding the

event the record covers.

(3) Generally, a record is not

reasonably described unless the

description contains sufficient Category

I information to permit the conduct of

an organized, nonrandom search based

on the DoD Component’s filing

arrangements and existing retrieval

systems, or unless the record contains

sufficient Category II information to

permit inference of the Category I

elements needed to conduct such a

search.

(4) The following guidelines deal with

requests for personal records.

Ordinarily, when personal identifiers

are provided only in connection with a

request for records concerning the

requester, only records in a Privacy Act

system of records, retrievable by

personal identifiers need be searched.

However, if a DoD Component has

reason to believe that records on the

requester may exist in a record system

other than a Privacy Act system, the

DoD Component shall search that

system under the provisions of the

FOIA. In either case, DoD Components

may request a reasonable description of

the records desired before searching for

such records under the provisions of the

FOIA and the Privacy Act (5 U.S.C.

552a). If the record is releasable under

the FOIA, the Privacy Act does not bar

its disclosure. See paragraph (m) of this

section for the relationship between the

FOIA and the Privacy Act.

(5) The previous guidelines

notwithstanding, the decision of the

DoD Component concerning

reasonableness of description must be

based on knowledge of its files. If the

description enables DoD Component

personnel to locate the record with

reasonable effort, the description is

adequate. The fact that a FOIA request

is broad or burdensome in its magnitude

does not, in and of itself, entitle a DoD

Component to deny the request on the

ground that it does not reasonably

describe the records sought. The key

factor is the ability of the DoD

Component’s staff to reasonably

ascertain and locate which records are

being requested.

(i) Referrals. (1) The DoD FOIA

referral policy is based upon the

concept of the originator of a record

making a release determination on its

information. If a DoD Component

receives a request for records originated

by another DoD Component, it shall

contact the DoD Component to

determine if it also received the request,

and if not, obtain concurrence to refer

the request. In either situation, the

requester shall be advised of the action

taken. While referrals to originators of

information result in obtaining the best

possible decision on release of the

information, the policy does not relieve

DoD Components from the

responsibility of making a release

decision on a record should the

requester object to referral of the request

and the record. A request received by a

DoD Component having no records

responsive to a request shall be referred

routinely to another DoD Component, if

the other DoD Component confirms that

it has the requested record, and this

belief can be confirmed by the other

DoD Component. Prior to notifying a

requester of a referral to another DoD

Component, the DoD Component

receiving the initial request shall

consult with the other DoD Component

to determine if that DoD Component’s

association with the material is

classified. If the association is classified,

the DoD Component receiving the initial

request will protect the association and

any exempt information without

revealing the identity of the protected

DoD Component. The protected DoD

Component shall be responsible for

submitting the justifications required in

any litigation. Any DoD Component

receiving a request that has been

misaddressed shall refer the request to

the proper address and advise the

requester. DoD Components making

referrals of requests or records shall

include with the referral, a point of

contact by name, a telephone number,

and an e-mail address.

(2) Whenever a record or a portion of

a record is, after prior consultation,

referred to another DoD Component or

to a Government agency outside of the

Department of Defense for a release

determination and direct response, the

requester shall be informed of the

referral. Referred records shall only be

identified to the extent consistent with

security requirements.

(3) A DoD Component shall refer for

response directly to the requester, a

FOIA request for a classified record that

it holds to another DoD Component or

agency outside the Department of

Defense, if the record originated in the

other DoD Component or outside agency

or if the classification is derivative. In

this situation, provide the record and a

release recommendation on the record

with the referral action.

(4) A DoD Component may refer a

request for a record that it originated to
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7403

2See footnote 1 to § 286.1(a).

another DoD Component or agency

when the other DoD Component or

agency has a valid interest in the record,

or the record was created for the use of

the other DoD Component or agency. In

such situations, provide the record and

a release recommendation on the record

with the referral action. An example of

such a situation is a request for audit

reports prepared by the Defense

Contract Audit Agency. These advisory

reports are prepared for the use of

contracting officers and their release to

the audited contractor shall be at the

discretion of the contracting officer. Any

FOIA request shall be referred to the

appropriate DoD Component and the

requester shall be notified of the

referral. Another example is a record

originated by a DoD Component or

agency which involves foreign relations,

and could affect a DoD Component or

organization in a host foreign country.

Such a request and any responsive

records, may be referred to the affected

DoD Component or organization and the

Department of State for consultation

prior to a final release determination

within DoD. See also § 286.22(e).

(5) Within DoD, a DoD Component

shall ordinarily refer a FOIA request and

a copy of the record it holds, but that

was originated by another DoD

Component or that contains substantial

information obtained from another DoD

Component, to that Component for

direct response, after direct

coordination and obtaining concurrence

from the Component. The requester then

shall be notified of such referral. DoD

Components shall not, in any case,

release or deny such records without

prior consultation with the other DoD

Component, except as provided in

§ 286.22(e).

(6) DoD Components that receive

referred requests shall answer them in

accordance with the time limits

established by the FOIA, this part, and

their multitrack processing queues,

based upon the date of initial receipt of

the request at the referring component

or agency.

(7) Agencies outside the Department

of Defense that are subject to the FOIA.

(i) A DoD Component may refer a

FOIA request for any record that

originated in an agency outside the DoD

or that is based on information obtained

from an outside agency to the agency for

direct response to the requester after

coordination with the outside agency, if

that agency is subject to FOIA.

Otherwise, the DoD Component must

respond to the request.

(ii) A DoD Component shall refer to

the agency that provided the record any

FOIA request for investigative,

intelligence, or any other type of records

that are on loan to the Department of

Defense for a specific purpose, if the

records are restricted from further

release and so marked. However, if for

investigative or intelligence purposes,

the outside agency desires anonymity, a

DoD Component may only respond

directly to the requester after

coordination with the outside agency.

(8) DOD Components which receive

requests for records of the National

Security Council (NSC), the White

House, or the White House Military

Office (WHMO) shall process the

requests. DoD records in which the NSC

or White House has a concurrent

reviewing interest, and NSC, White

House, or WHMO records discovered in

DoD Components’ files shall be

forwarded to the Office of the Assistant

Secretary of Defense (Public

Affairs)(OASD(PA)), ATTN: Directorate

for Freedom of Information and Security

Review (DFOISR). The DFOISR shall

coordinate with the NSC, White House,

or WHMO and return the records to the

originating agency after coordination.

(9) To the extent referrals are

consistent with the policies expressed

by this paragraph, referrals between

offices of the same DoD Component are

authorized.

(10) On occasion, the Department of

Defense receives FOIA requests for

General Accounting Office (GAO)

records containing DoD information.

Even though the GAO is outside the

Executive Branch, and not subject to the

FOIA, all FOIA requests for GAO

documents containing DoD information

received either from the public, or on

referral from the GAO, will be processed

under the provisions of the FOIA.

(j) Authentication. Records provided

under this part shall be authenticated

with an appropriate seal, whenever

necessary, to fulfill an official

Government or other legal function.

This service, however, is in addition to

that required under the FOIA and is not

included in the FOIA fee schedule. DoD

Components may charge for the service

at a rate of $5.20 for each

authentication.

(k) Unified Combatant Commands.

The Unified Combatant Commands are

placed under the jurisdiction of the

OSD, instead of the administering

Military Department or the Joint Staff,

only for the purpose of administering

the DoD FOIA Program. This policy

represents an exception to the policies

directed in DoD Directive 5100.3; 2 it

authorizes and requires the Unified

Combatant Commands to process

Freedom of Information Act (FOIA)

requests in accordance with DoD

Directive 5400.7 and this part. The

Unified Combatant Commands shall

forward directly to the OASD(PA), all

correspondence associated with the

appeal of an initial denial for records

under the provisions of the FOIA.

Procedures to effect this administrative

requirement are outlined in appendix A

to this part.

(l) Records management. FOIA

records shall be maintained and

disposed of in accordance with the

National Archives and Records

Administration General Records

Schedule, and DoD Component records

schedules.

(m) Relationship between the FOIA

and the Privacy Act (PA). Not all

requesters are knowledgeable of the

appropriate statutory authority to cite

when requesting records. In some

instances, they may cite neither Act, but

will imply one or both Acts. For these

reasons, the following guidelines are

provided to ensure that requesters

receive the greatest amount of access

rights under both Acts:

(1) If the record is releasable under

the FOIA, the Privacy Act does not bar

its disclosure. Unlike the FOIA, the

Privacy Act applies only to U.S. citizens

and aliens admitted for permanent

residence.

(2) Requesters who seek records about

themselves contained in a PA system of

records and who cite or imply the PA,

will have their requests processed under

the provisions of both the PA and the

FOIA. If the PA system of records is

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

552a(d)(1), the requester shall be so

advised with the appropriate PA

exemption, and then further advised

that the information was therefore

reviewed for release under the FOIA.

(3) Requesters who seek records about

themselves which are not contained in

a PA system of records and who cite or

imply the PA, will have their requests

processed under the provisions of the

FOIA, since the PA does not apply to

these records..

(4) Requesters who seek records about

themselves which are contained in a PA

system of records and who cite or imply

the FOIA or both Acts will have their

requests processed under the provisions

of both the PA and the FOIA. If the PA

system of records is exempt from the

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

requester shall be so advised with the

appropriate PA exemption, and then

further advised that the information was

therefore reviewed for release under the

FOIA.

(5) Requesters who seek access to

agency records that are not part of a PA

system of records, and who cite or

imply the PA and FOIA, will have their
7404 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules

requests processed under the FOIA

since the PA does not apply to these

records.

(6) Requesters who seek access to

agency records and who cite or imply

the FOIA, will have their requests

processed under the FOIA.

(7) Requesters shall be advised in

final responses why their request was

processed under a particular Act.

(n) Non-responsive information in

responsive records. DoD components

shall interpret FOIA requests liberally

when determining which records are

responsive to the requests. DoD

Components shall respond to FOIA

requests which involve non-responsive

information within a responsive record

in the following manner:

(1) Negotiate with the requester, and

ask if the requester views the

information as responsive, and if not,

seek the requester’s concurrence to

deletion of non-responsive information

without a FOIA exemption. Reflect this

concurrence in the response letter.

(2) Should negotiation fail, if the

responsive record is unclassified,

release all non-responsive and

responsive information. For nonresponsive information that is exempt,

notify the requester that even if the

information were determined

responsive, it would likely be exempt

under (state appropriate exemption (s)).

Advise the requester of the right to

request this information under a

separate FOIA request. The separate

request shall be placed in the same

location within the processing queue as

the original request.

(3) Should negotiation fail, if the

responsive record is classified, release

all unclassified responsive and nonresponsive information which is not

otherwise exempt. If the non-responsive

information is exempt, follow the

procedures in (m) (2) of this section.

The classified, non-responsive

information need not be reviewed for

declassification at this point. Advise the

requester that even if the classified

information were determined

responsive, it would likely be exempt

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

exemptions if appropriate. Advise the

requester of the right to request this

information under a separate FOIA

request. The separate request shall be

placed in the same location within the

processing queue as the original request.

Subpart B—FOIA Reading Rooms

§ 286.7 Requirements.

(a) Reading room. (1) Implementation

of 5 U.S.C. 552 (a)(1) and (a)(2) within

the Office of the Secretary of Defense is

a records management responsibility

within Washington Headquarters

Services, Directives and Records

Division. Each DoD Component shall

provide an appropriate facility or

facilities where the public may inspect

and copy or have copied the materials

described in paragraph (b) of this

section. In addition to the materials

described in paragraph (b) of this

section, DoD Components may elect to

place other records in their reading

room, and also make them electronically

available to the public. DoD

Components may share reading room

facilities if the public is not unduly

inconvenienced. When appropriate, the

cost of copying may be imposed on the

person requesting the material in

accordance with the provisions of

subpart F of this part.

(2) The FOIA requires that copies of

all records, regardless of form or format,

which have been released pursuant to a

FOIA request under 5 U.S.C. 552 (a)(3),

and which because of the nature of the

subject matter, have become or are

likely to become the subject of

subsequent requests for substantially the

same records be made publicly

available.

(i) DoD Components shall decide on

a case by case basis whether records fall

into this category, based on the

following factors:

(A) Previous experience of the DoD

Component with similar records.

(B) Particular circumstances of the

records involved, including their nature

and the type of information contained in

them.

(C) The identity and number of

requesters and whether there is

widespread press, historic, or

commercial interest in the records.

(ii) This provision is intended for

situations where public access in a

timely manner is important, and it is not

intended to apply where there may be

a limited number of requests over a

short period of time from a few

requesters. DoD Components may

remove the records from this access

medium when the appropriate officials

determine that access is no longer

necessary.

(b) Material availability. The FOIA

requires that ‘‘(a) (2)’’ materials shall be

made available in the FOIA reading

room for inspection and copying, unless

such materials are published and copies

are offered for sale. Identifying details

that, if revealed, would create a clearly

unwarranted invasion of personal

privacy may be deleted from ‘‘(a) (2)’’

materials made available for inspection

and copying. In every case, justification

for the deletion must be fully explained

in writing, and the extent of such

deletion shall be indicated on the record

which is made publicly available,

unless such indication would harm an

interest protected by an exemption

under which the deletion was made. If

technically feasible, the extent of the

deletion in electronic records or any

other form of record shall be indicated

at the place in the record where the

deletion was made. However, a DoD

Component may publish in the Federal

Register a description of the basis upon

which it will delete identifying details

of particular types of documents to

avoid clearly unwarranted invasions of

privacy. In appropriate cases, the DoD

Component may refer to this description

rather than write a separate justification

for each deletion. For ‘‘(a)(2)’’ records

created after November 1, 1996, such

records shall be made available to the

public in hard copy and by computer

telecommunications or by other

electronic means by November 1, 1997.

‘‘ (a) (2)’’ materials are:

(1) Final opinions, including

concurring and dissenting opinions, and

orders made in the adjudication of

cases, as defined in 5 U.S.C. 551, that

may be cited, used, or relied upon as

precedents in future adjudications.

(2) Statements of policy and

interpretations that have been adopted

by the agency and are not published in

the Federal Register.

(3) Administrative staff manuals and

instructions, or portions thereof, that

establish DoD policy or interpretations

of policy that affect a member of the

public. This provision does not apply to

instructions for employees on tactics

and techniques to be used in performing

their duties, or to instructions relating

only to the internal management of the

DoD Component. Examples of manuals

and instructions not normally made

available are:

(i) Those issued for audit,

investigation, and inspection purposes,

or those that prescribe operational

tactics, standards of performance, or

criteria for defense, prosecution, or

settlement of cases.

(ii) Operations and maintenance

manuals and technical information

concerning munitions, equipment,

systems, and foreign intelligence

operations.

§ 286.8 Indexes.

(a) ‘‘(a) (2)’’ materials. (1) Each DoD

Component shall maintain in each

facility prescribed in § 286.7 (a), an

index of materials described in § 286.7

(b), that are issued, adopted, or

promulgated, after July 4, 1967. No ‘‘(a)

(2)’’ materials issued, promulgated, or

adopted after July 4, 1967, that are not

indexed and either made available or

published may be relied upon, used or
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7405

3 See footnote 1 to § 286.1 (a).

cited as precedent against any

individual unless such individual has

actual and timely notice of the contents

of such materials. Such materials

issued, promulgated, or adopted before

July 4, 1967, need not be indexed, but

must be made available upon request if

not exempted under this part.

(2) Each DoD Component shall

promptly publish quarterly or more

frequently, and distribute, by sale or

otherwise, copies of each index of ‘‘(a)

(2)’’ materials or supplements thereto

unless it publishes in the Federal

Register an order containing a

determination that publication is

unnecessary and impracticable. A copy

of each index or supplement not

published shall be provided to a

requester at a cost not to exceed the

direct cost of duplication as set forth in

subpart F of this part.

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

supplement thereto shall be arranged

topically or by descriptive words rather

than by case name or numbering system

so that members of the public can

readily locate material. Case name and

numbering arrangements, however, may

also be included for DoD Component

convenience.

(4) A general index of records referred

to in § 286.7(b)(4) shall be made

available to the public, both in hard

copy and electronically by December 31,

1999.

(b) Other materials. (1) Any available

index of DoD Component material

published in the Federal Register, such

as material required to be published by

section 552(a)(1) of the FOIA, shall be

made available in DoD Component

FOIA reading rooms, and electronically

to the public.

(2) Although not required to be made

available in response to FOIA requests

or made available in FOIA reading

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

feasible, be made available to the public

in FOIA reading rooms for inspection

and copying, and by electronic means.

Examples of ‘‘(a)(1)’’ materials are:

descriptions of an agency’s central and

field organization, and to the extent they

affect the public, rules of procedures,

descriptions of forms available,

instruction as to the scope and contents

of papers, reports, or examinations, and

any amendment, revision, or report of

the aforementioned.

Subpart C—Exemptions

§ 286.11 General provisions.

Records that meet the exemption

criteria of the FOIA may be withheld

from public disclosure and need not be

published in the Federal Register, made

available in a library reading room, or

provided in response to an FOIA

request.

§ 286.12 Exemptions.

The following types of records may be

withheld in whole or in part from

public disclosure under the FOIA,

unless otherwise prescribed by law. A

discretionary release (see also § 286.4(e))

to one requester may preclude the

withholding of the same record under a

FOIA exemption if the record is

subsequently requested by someone

else. In applying exemptions, the

identity of the requester and the

purpose for which the record is sought

are irrelevant with the exception that an

exemption may not be invoked where

the particular interest to be protected is

the requester’s interest.

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

Those properly and currently classified

in the interest of national defense or

foreign policy, as specifically authorized

under the criteria established by

executive order and implemented by

regulations, such as DoD 5200.1–R3.

Although material is not classified at the

time of the FOIA request, a

classification review may be undertaken

to determine whether the information

should be classified. The procedures in

DoD 5200.1–R apply. If the information

qualifies as exemption 1 information,

there is no discretion regarding its

release. In addition, this exemption

shall be invoked when the following

situations are apparent:

(1) The fact of the existence or

nonexistence of a record would itself

reveal classified information. In this

situation, Components shall neither

confirm nor deny the existence or

nonexistence of the record being

requested. A ‘‘refusal to confirm or

deny’’ response must be used

consistently, not only when a record

exists, but also when a record does not

exist. Otherwise, the pattern of using a

‘‘no record’’ response when a record

does not exist, and a ‘‘refusal to confirm

or deny’’ when a record does exist will

itself disclose national security

information.

(2) Compilations of items of

information which are individually

unclassified may be classified if the

compiled information reveals additional

association or relationship that meets

the standard for classification under an

existing executive order for

classification and DoD 5200.1-R, and is

not otherwise revealed in the individual

items of information.

(b) Number 2 (5 U.S.C. 552(b)(2)).

Those related solely to the internal

personnel rules and practices of DoD or

any of its Components. This exemption

is entirely discretionary. This

exemption has two profiles, high b2 and

low b2. Paragraph (b)(2) of this section,

contains a brief discussion on the low

b2 profile; however, that discussion is

for information purposes only. When

only a minimum government interest

would be affected (administrative

burden), there is a great potential for

discretionary disclosure of the

information. Consequently, DoD

Components shall not invoke the low b2

profile.

(1) Records qualifying under high b2

are those containing or constituting

statutes, rules, regulations, orders,

manuals, directives, and instructions

the release of which would allow

circumvention of these records thereby

substantially hindering the effective

performance of a significant function of

the DoD. Examples include:

(i) Those operating rules, guidelines,

and manuals for DoD investigators,

inspectors, auditors, or examiners that

must remain privileged in order for the

DoD Component to fulfill a legal

requirement.

(ii) Personnel and other

administrative matters, such as

examination questions and answers

used in training courses or in the

determination of the qualifications of

candidates for employment, entrance on

duty, advancement, or promotion.

(iii) Computer software, the release of

which would allow circumvention of a

statute or DoD rules, regulations, orders,

manuals, directives, or instructions. In

this situation, the use of the software

must be closely examined to ensure a

circumvention possibility exists.

(2) Records qualifying under the low

b2 profile are those that are trivial and

housekeeping in nature for which there

is no legitimate public interest or benefit

to be gained by release, and it would

constitute an administrative burden to

process the request in order to disclose

the records. Examples include; rules of

personnel’s use of parking facilities or

regulation of lunch hours, statements of

policy as to sick leave, and trivial

administrative data such as file

numbers, mail routing stamps, initials,

data processing notations, brief

references to previous communications,

and other like administrative markings.

DoD Components shall not invoke the

low b2 profile.

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

Those concerning matters that a statute

specifically exempts from disclosure by

terms that permit no discretion on the

issue, or in accordance with criteria

established by that statute for

withholding or referring to particular

types of matters to be withheld. The
7406 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules

4 See footnote 1 to § 286.1 (a).

Directorate for Freedom of Information

and Security Review, Office of the

Assistant Secretary of Defense for Public

Affairs maintains a list of ‘‘(b)(3)’’

statutes used within DoD, and provides

updated lists of these statutes to DoD

Components on a periodic basis. A few

examples of such statutes are:

(1) Patent Secrecy, 35 U.S.C. 181–188.

Any records containing information

relating to inventions that are the

subject of patent applications on which

Patent Secrecy Orders have been issued.

(2) Restricted Data and Formerly

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

(3) Communication Intelligence, 18

U.S.C. 798.

(4) Authority to withhold from public

disclosure certain technical data, 10

U.S.C. 130 and DoD Directive 5230.25. 4

(5) Confidentiality of medical quality

assurance records: Qualified Immunity

for Participants, 10 U.S.C. 1102 f.

(6) Physical protection of special

nuclear material: Limitation on

Dissemination of Unclassified

Information, 10 U.S.C. 128.

(7) Protection of intelligence sources

and methods, 50 U.S.C. 403–3(c)(5).

(8) Protection of Contractor Submitted

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

(9) Procurement Integrity, 41 U.S.C.

423.

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

Those containing trade secrets or

commercial or financial information

that a DoD Component receives from a

person or organization outside the

Government with the understanding

that the information or record will be

retained on a privileged or confidential

basis in accordance with the customary

handling of such records. Records

within the exemption must contain

trade secrets, or commercial or financial

records, the disclosure of which is likely

to cause substantial harm to the

competitive position of the source

providing the information; impair the

Government’s ability to obtain necessary

information in the future; or impair

some other legitimate government

interest. If the information qualifies as

exemption 4 information, there is no

discretion in its release. Examples

include:

(1) Commercial or financial

information received in confidence in

connection with loans, bids, contracts,

or proposals set forth in or incorporated

by reference in a contract entered into

between the DoD Component and the

offeror that submitted the proposal, as

well as other information received in

confidence or privileged, such as trade

secrets, inventions, discoveries, or other

proprietary data. See also § 286.23(h)(2).

Additionally, when the provisions of 10

U.S.C. 2305(g), and 41 U.S.C. 423 are

met, certain proprietary and source

selection information may be withheld

under exemption 3.

(2) Statistical data and commercial or

financial information concerning

contract performance, income, profits,

losses, and expenditures, if offered and

received in confidence from a contractor

or potential contractor.

(3) Personal statements given in the

course of inspections, investigations, or

audits, when such statements are

received in confidence from the

individual and retained in confidence

because they reveal trade secrets or

commercial or financial information

normally considered confidential or

privileged.

(4) Financial data provided in

confidence by private employers in

connection with locality wage surveys

that are used to fix and adjust pay

schedules applicable to the prevailing

wage rate of employees within the

Department of Defense.

(5) Scientific and manufacturing

processes or developments concerning

technical or scientific data or other

information submitted with an

application for a research grant, or with

a report while research is in progress.

(6) Technical or scientific data

developed by a contractor or

subcontractor exclusively at private

expense, and technical or scientific data

developed in part with Federal funds

and in part at private expense, wherein

the contractor or subcontractor has

retained legitimate proprietary interests

in such data in accordance with 10

U.S.C. 2320–2321 and DoD Federal

Acquisition Regulation Supplement

(DFARS), Chapter 2 of 48 CFR, part 227,

subpart 227.71–227.72. Technical data

developed exclusively with Federal

funds may be withheld under

Exemption Number 3 if it meets the

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

Directive 5230.25 (see § 286.12(b)(3)(v)).

(7) Computer software which is

copyrighted under the Copyright Act of

1976 (17 U.S.C. 106), the disclosure of

which would have an adverse impact on

the potential market value of a

copyrighted work.

(8) Proprietary information submitted

strictly on a voluntary basis, absent any

exercised authority prescribing criteria

for submission. Examples of exercised

authorities prescribing criteria for

submission are statutes, executive

orders, regulations, invitations for bids,

requests for proposals, and contracts.

Submission of information under these

authorities is not voluntary (see also

§ 286.23(h)(3)).

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

Those containing information

considered privileged in litigation,

primarily under the deliberative process

privilege. Except as provided in

paragraphs (e)(2) through (e)(5) of this

section, internal advice,

recommendations, and subjective

evaluations, as contrasted with factual

matters, that are reflected in deliberative

records pertaining to the decisionmaking process of an agency, whether

within or among agencies (as defined in

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

DoD Components. In order to meet the

test of this exemption, the record must

be both deliberative in nature, as well as

part of a decision-making process.

Merely being an internal record is

insufficient basis for withholding under

this exemption. Also potentially

exempted are records pertaining to the

attorney-client privilege and the

attorney work-product privilege. This

exemption is entirely discretionary.

(1) Examples of the deliberative

process include:

(i) The non factual portions of staff

papers, to include after-action reports,

lessons learned, and situation reports

containing staff evaluations, advice,

opinions, or suggestions.

(ii) Advice, suggestions, or

evaluations prepared on behalf of the

Department of Defense by individual

consultants or by boards, committees,

councils, groups, panels, conferences,

commissions, task forces, or other

similar groups that are formed for the

purpose of obtaining advice and

recommendations.

(iii) Those non factual portions of

evaluations by DoD Component

personnel of contractors and their

products.

(iv) Information of a speculative,

tentative, or evaluative nature or such

matters as proposed plans to procure,

lease or otherwise acquire and dispose

of materials, real estate, facilities or

functions, when such information

would provide undue or unfair

competitive advantage to private

personal interests or would impede

legitimate government functions.

(v) Trade secret or other confidential

research development, or commercial

information owned by the Government,

where premature release is likely to

affect the Government’s negotiating

position or other commercial interest.

(vi) Records that are exchanged

among agency personnel and within and

among DoD Components or agencies as

part of the preparation for anticipated

administrative proceeding by an agency

or litigation before any Federal, state, or

military court, as well as records that

qualify for the attorney-client privilege.
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7407

5See footnote 1 to § 286.1 (a).

6See footnote 1 to § 286.1 (a).

(vii) Those portions of official reports

of inspection, reports of the Inspector

Generals, audits, investigations, or

surveys pertaining to safety, security, or

the internal management,

administration, or operation of one or

more DoD Components, when these

records have traditionally been treated

by the courts as privileged against

disclosure in litigation.

(viii) Planning, programming, and

budgetary information which is

involved in the defense planning and

resource allocation process.

(2) If any such intra or inter-agency

record or reasonably segregable portion

of such record hypothetically would be

made available routinely through the

discovery process in the course of

litigation with the agency, then it

should not be withheld under the FOIA.

If, however, the information

hypothetically would not be released at

all, or would only be made through the

discovery process by special order of the

court based on agency maintaining its

confidentiality, then the record may be

withheld. Discovery is the formal

process by which litigants obtain

information from each other for use in

the litigation. Consult with legal counsel

to determine whether exemption 5

material would be routinely made

available through the discovery process.

(3) Intra or inter-agency memoranda

or letters that are factual, or those

reasonably segregable portions that are

factual, are routinely made available

through discovery, and shall be made

available to a requester, unless the

factual material is otherwise exempt

from release, inextricably intertwined

with the exempt information, so

fragmented as to be uninformative, or so

redundant of information already

available to the requester as to provide

no new substantive information.

(4) A direction or order from a

superior to a subordinate, though

contained in an internal

communication, generally cannot be

withheld from a requester if it

constitutes policy guidance or a

decision, as distinguished from a

discussion of preliminary matters or a

request for information or advice that

would compromise the decision-making

process.

(5) An internal communication

concerning a decision that subsequently

has been made a matter of public record

must be made available to a requester

when the rationale for the decision is

expressly adopted or incorporated by

reference in the record containing the

decision.

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

Information in personnel and medical

files, as well as similar personal

information in other files, that, if

disclosed to the requester would result

in a clearly unwarranted invasion of

personal privacy. Release of information

about an individual contained in a

Privacy Act System of records that

would constitute a clearly unwarranted

invasion of privacy is prohibited, and

could subject the releaser to civil and

criminal penalties. If the information

qualifies as exemption 6 information,

there is no discretion in its release.

(1) Examples of other files containing

personal information similar to that

contained in personnel and medical

files include:

(i) Those compiled to evaluate or

adjudicate the suitability of candidates

for civilian employment or membership

in the Armed Forces, and the eligibility

of individuals (civilian, military, or

contractor employees) for security

clearances, or for access to particularly

sensitive classified information.

(ii) Files containing reports, records,

and other material pertaining to

personnel matters in which

administrative action, including

disciplinary action, may be taken.

(2) Home addresses are normally not

releasable without the consent of the

individuals concerned. In addition, DoD

military and civilian personnel’s names

and duty addresses who are assigned to

units that are sensitive, routinely

deployable, or stationed in foreign

territories can constitute a clearly

unwarranted invasion of personal

privacy.

(i) Privacy interest. A privacy interest

may exist in personal information even

though the information has been

disclosed at some place and time. If

personal information is not freely

available from sources other than the

Federal Government, a privacy interest

exists in its nondisclosure. The fact that

the Federal Government expended

funds to prepare, index and maintain

records on personal information, and

the fact that a requester invokes FOIA to

obtain these records indicates the

information is not freely available.

(ii) Names and duty addresses

published in telephone directories,

organizational charts, rosters and

similar materials for personnel assigned

to units that are sensitive, routinely

deployable, or stationed in foreign

territories are withholdable under this

exemption.

(iii) This exemption shall not be used

in an attempt to protect the privacy of

a deceased person, but it may be used

to protect the privacy of the deceased

person’s family if disclosure would

rekindle grief, anguish, pain,

embarrassment, or even disruption of

peace of mind of surviving family

members. In such situations, balance the

surviving family members’ privacy

against the public’s right to know to

determine if disclosure is in the public

interest. Additionally, the deceased’s

social security number should be

withheld as it used by the next of kin

to receive benefits. Disclosures may be

made to the immediate next of kin as

defined in DoD Directive 5154.24.5

(4) Individuals’ personnel, medical, or

similar file may be withheld from them

or their designated legal representative

only to the extent consistent with DoD

Directive 5400.11.6

(5) A clearly unwarranted invasion of

the privacy of the persons identified in

a personnel, medical or similar record

may constitute a basis for deleting those

reasonably segregable portions of that

record, even when providing it to the

subject of the record. When withholding

personal information from the subject of

the record, first review the Privacy Act

and then consult with legal counsel.

(6) This exemption also applies when

the fact of the existence or nonexistence

of a responsive record would itself

reveal personally private information,

and the public interest in disclosure is

not sufficient to outweigh the privacy

interest. In this situation, DoD

Components shall neither confirm nor

deny the existence or nonexistence of

the record being requested. This is a

Glomar response, and exemption 6 must

be cited in the response. Additionally,

in order to insure personal privacy is

not violated during referrals, DoD

Components shall coordinate with other

DoD Components or Federal agencies

before referring a record which is

exempt under the Glomar concept.

(i) A ‘‘refusal to confirm or deny’’

response must be used consistently, not

only when a record exists, but also

when a record does not exist.

Otherwise, the pattern of using a ‘‘no

records’’ response when a record does

not exist and a ‘‘refusal to confirm or

deny’’ when a record does exist will

itself disclose personally private

information.

(ii) Refusal to confirm or deny should

not be used when:

(A) The person whose personal

privacy is in jeopardy has provided the

requester a waiver of his or her privacy

rights; or

(B) The person whose personal

privacy is in jeopardy is deceased, the

agency is aware of that fact, and

disclosure would not invade the privacy

of the deceased’s family. See paragraph

(f) (3) of this section.
7408 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules

7 See footnote 1 to § 286.1 (a).

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

Records or information compiled for

law enforcement purposes; i.e., civil,

criminal, or military law, including the

implementation of executive orders or

regulations issued pursuant to law. This

exemption may be invoked to prevent

disclosure of documents not originally

created for, but later gathered for law

enforcement purposes. With the

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

exemption, this exemption is

discretionary. If information qualifies as

exemption (7)(C) or (7)(F) information,

there is no discretion in its release. This

exemption applies, however, only to the

extent that production of such law

enforcement records or information

could result in the following:

(1) Could reasonably be expected to

interfere with enforcement proceedings.

(2) Would deprive a person of the

right to a fair trial or to an impartial

adjudication.

(3) Could reasonably be expected to

constitute an unwarranted invasion of

personal privacy of a living person,

including surviving family members of

an individual identified in such a

record.

(i) This exemption also applies when

the fact of the existence or nonexistence

of a responsive record would itself

reveal personally private information,

and the public interest in disclosure is

not sufficient to outweigh the privacy

interest. In this situation, Components

shall neither confirm nor deny the

existence or nonexistence of the record

being requested. This is a Glomar

response, and exemption 7C must be

cited in the response. Additionally, in

order to insure personal privacy is not

violated during referrals, DoD

Components shall coordinate with other

DoD Components or Federal agencies

before referring a record which is

exempt under the Glomar concept.

(ii) A ‘‘refusal to confirm or deny’’

response must be used consistently, not

only when a record exists, but also

when a record does not exist.

Otherwise, the pattern of using a ‘‘no

records’’ response when a record does

not exist and a ‘‘refusal to confirm or

deny’’ when a record does exist will

itself disclose personally private

information.

(iii) Refusal to confirm or deny should

not be used when:

(A) The person whose personal

privacy is in jeopardy has provided the

requester with a waiver of his or her

privacy rights; or

(B) The person whose personal

privacy is in jeopardy is deceased, and

the agency is aware of that fact.

(iv) Could reasonably be expected to

disclose the identity of a confidential

source, including a source within the

Department of Defense, a State, local, or

foreign agency or authority, or any

private institution which furnishes the

information on a confidential basis.

(v) Could disclose information

furnished from a confidential source

and obtained by a criminal law

enforcement authority in a criminal

investigation or by an agency

conducting a lawful national security

intelligence investigation.

(vi) Would disclose techniques and

procedures for law enforcement

investigations or prosecutions, or would

disclose guidelines for law enforcement

investigations or prosecutions if such

disclosure could reasonably be expected

to risk circumvention of the law.

(vii) Could reasonably be expected to

endanger the life or physical safety of

any individual.

(4) Examples include:

(i) Statements of witnesses and other

material developed during the course of

the investigation and all materials

prepared in connection with related

government litigation or adjudicative

proceedings.

(ii) The identity of firms or

individuals being investigated for

alleged irregularities involving

contracting with the Department of

Defense when no indictment has been

obtained nor any civil action filed

against them by the United States.

(iii) Information obtained in

confidence, expressed or implied, in the

course of a criminal investigation by a

criminal law enforcement agency or

office within a DoD Component, or a

lawful national security intelligence

investigation conducted by an

authorized agency or office within a

DoD Component. National security

intelligence investigations include

background security investigations and

those investigations conducted for the

purpose of obtaining affirmative or

counterintelligence information.

(5) The right of individual litigants to

investigative records currently available

by law (such as, the Jencks Act, 18

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

(6) When the subject of an

investigative report is the requester of

the record and the report is contained in

a Privacy Act system of records, it may

only be denied to the requester if

withholding is both authorized by DoD

5400.11-R7, and by exemption seven of

the FOIA.

(7) Exclusions. Excluded from the

previously identified exemption, are the

below two situations applicable to the

Department of Defense. Components

considering invoking an exclusion

should first consult with the

Department of Justice, Office of

Information and Privacy.

(i) Whenever a request is made which

involves access to records or

information compiled for law

enforcement purposes, and the

investigation or proceeding involves a

possible violation of criminal law where

there is reason to believe that the subject

of the investigation or proceeding is

unaware of its pendency, and the

disclosure of the existence of the

records could reasonably be expected to

interfere with enforcement proceedings,

Components may, during only such

times as that circumstance continues,

treat the records or information as not

subject to the FOIA. In such situation,

the response to the requester will state

that no records were found.

(ii) Whenever informant records

maintained by a criminal law

enforcement organization within a DoD

Component under the informant’s name

or personal identifier are requested by a

third party using the informant’s name

or personal identifier, the Component

may treat the records as not subject to

the FOIA, unless the informant’s status

as an informant has been officially

confirmed. If it is determined that the

records are not subject to exemption 7,

the response to the requester will state

that no records were found.

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

Those contained in or related to

examination, operation or condition

reports prepared by, on behalf of, or for

the use of any agency responsible for the

regulation or supervision of financial

institutions.

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

Those containing geological and

geophysical information and data

(including maps) concerning wells.

Subpart D—For Official Use Only

§ 286.15 General provisions.

(a) General. Information that has not

been given a security classification

pursuant to the criteria of an Executive

Order, but which may be withheld from

the public for one or more of the reasons

cited in FOIA exemptions 2 through 9

shall be considered as being for official

use only. No other material shall be

considered or marked ‘‘For Official Use

Only’’ (FOUO) and FOUO is not

authorized as an anemic form of

classification to protect national

security interests.

(b) Prior FOUO application. The prior

application of FOUO markings is not a

conclusive basis for withholding a

record that is requested under the FOIA.

When such a record is requested, the

information in it shall be evaluated to
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7409

8 See footnote 1 to § 286.1 (a).

9 See footnote 1 to § 286.1 (a).

10 See footnote 1 to § 286.1 (a).

11 Not for general public distribution. Available

to Military Components only. Components contact

MCEB.

determine whether, under current

circumstances, FOIA exemptions apply

in withholding the record or portions of

it. If any exemptions apply, it may

nonetheless be released when it is

determined that no governmental

interest will be jeopardized by its

release.

(c) Historical papers. Records such as

notes, working papers, and drafts

retained as historical evidence of DoD

Component actions enjoy no special

status apart from the exemptions under

the FOIA.

(d) Time to mark records. The

marking of records at the time of their

creation provides notice of FOUO

content and facilitates review when a

record is requested under the FOIA.

Records requested under the FOIA that

do not bear such markings, shall not be

assumed to be releasable without

examination for the presence of

information that requires continued

protection and qualifies as exempt from

public release.

(e) Distribution statement.

Information in a technical document

that requires a distribution statement

pursuant to DoD Directive 5230.24 8

shall bear that statement and may be

marked FOUO, as appropriate.

§ 286.16 Markings.

(a) An unclassified document

containing FOUO information shall be

marked ‘‘For Official Use Only’’ at the

bottom on the outside of the front cover

(if any), on each page containing FOUO

information, and on the outside of the

back cover (if any).

(b) Within a classified document, an

individual page that contains both

FOUO and classified information shall

be marked at the top and bottom with

the highest security classification of

information appearing on the page.

Individual paragraphs shall be marked

at the appropriate classification level, as

well as unclassified or FOUO, as

appropriate.

(c) Within a classified document, an

individual page that contains FOUO

information but no classified

information shall be marked ‘‘For

Official Use Only’’ at the bottom of the

page.

(d) Other records, such as,

photographs, films, tapes, or slides,

shall be marked ‘‘For Official Use Only’’

or ‘‘FOUO’’ in a manner that ensures

that a recipient or viewer is aware of the

status of the information therein.

(e) FOUO material transmitted outside

the Department of Defense requires

application of an expanded marking to

explain the significance of the FOUO

marking. This may be accomplished by

typing or stamping the following

statement on the record prior to transfer:

This document contains information

EXEMPT FROM MANDATORY

DISCLOSURE under the FOIA.

Exemptions, apply.

§ 286.17 Dissemination and transmission.

(a) Release and transmission

procedures. Until FOUO status is

terminated, the release and transmission

instructions that follow apply:

(1) FOUO information may be

disseminated within DoD Components

and between officials of DoD

Components and DoD contractors,

consultants, and grantees to conduct

official business for the Department of

Defense. Recipients shall be made aware

of the status of such information, and

transmission shall be by means that

preclude unauthorized public

disclosure. Transmittal documents shall

call attention to the presence of FOUO

attachments.

(2) DoD holders of FOUO information

are authorized to convey such

information to officials in other

departments and agencies of the

executive and judicial branches to fulfill

a government function, except to the

extent prohibited by the Privacy Act.

Records thus transmitted shall be

marked ‘‘For Official Use Only’’, and the

recipient shall be advised that the

information has been exempted from

public disclosure, pursuant to the FOIA,

and that special handling instructions

do or do not apply.

(3) Release of FOUO information to

Members of Congress is governed by

DoD Directive 5400.4 9. Release to the

GAO is governed by DoD Directive

7650.1 10. Records released to the

Congress or GAO should be reviewed to

determine whether the information

warrants FOUO status. If not, prior

FOUO markings shall be removed or

effaced. If withholding criteria are met,

the records shall be marked FOUO and

the recipient provided an explanation

for such exemption and marking.

Alternatively, the recipient may be

requested, without marking the record,

to protect against its public disclosure

for reasons that are explained.

(b) Transporting FOUO information.

Records containing FOUO information

shall be transported in a manner that

precludes disclosure of the contents.

When not commingled with classified

information, FOUO information may be

sent via first-class mail or parcel post.

Bulky shipments, such as distributions

of FOUO Directives or testing materials,

that otherwise qualify under postal

regulations may be sent by fourth-class

mail.

(c) Electronically and facsimile

transmitted messages. Each part of

electrically and facsimile transmitted

messages containing FOUO information

shall be marked appropriately.

Unclassified messages containing FOUO

information shall contain the

abbreviation ‘‘FOUO’’ before the

beginning of the text. Such messages

and facsimiles shall be transmitted in

accordance with communications

security procedures in Allied

Communications Publication (ACP–

121 11) for FOUO information.

§ 286.18 Safeguarding FOUO information.

(a) During duty hours. During normal

working hours, records determined to be

FOUO shall be placed in an out-of-sight

location if the work area is accessible to

non-government personnel.

(b) During nonduty hours. At the close

of business, FOUO records shall be

stored so as to preclude unauthorized

access. Filing such material with other

unclassified records in unlocked files or

desks, etc., is adequate when normal

U.S. Government or governmentcontractor internal building security is

provided during nonduty hours. When

such internal security control is not

exercised, locked buildings or rooms

normally provide adequate after-hours

protection. If such protection is not

considered adequate, FOUO material

shall be stored in locked receptacles

such as file cabinets, desks, or

bookcases. FOUO records that are

subject to the provisions of 50 U.S.C.

402 note shall meet the safeguards

outlined for that group of records.

§ 286.19 Termination, disposal and

unauthorized disclosure.

(a) Termination. The originator or

other competent authority, e.g., initial

denial and appellate authorities, shall

terminate ‘‘For Official Use Only’’

markings or status when circumstances

indicate that the information no longer

requires protection from public

disclosure. When FOUO status is

terminated, all known holders shall be

notified, to the extent practical. Upon

notification, holders shall efface or

remove the ‘‘For Official Use Only’’

markings, but records in file or storage

need not be retrieved solely for that

purpose.

(b) Disposal. (1) Nonrecord copies of

FOUO materials may be destroyed by

tearing each copy into pieces to

preclude reconstructing, and placing
7410 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules

them in regular trash containers. When

local circumstances or experience

indicates that this destruction method is

not sufficiently protective of FOUO

information, local authorities may direct

other methods but must give due

consideration to the additional expense

balanced against the degree of

sensitivity of the type of FOUO

information contained in the records.

(2) Record copies of FOUO documents

shall be disposed of in accordance with

the disposal standards established

under 44 U.S.C. Chapter 33, as

implemented by DoD Component

instructions concerning records

disposal.

(c) Unauthorized disclosure. The

unauthorized disclosure of FOUO

records does not constitute an

unauthorized disclosure of DoD

information classified for security

purposes. Appropriate administrative

action shall be taken, however, to fix

responsibility for unauthorized

disclosure whenever feasible, and

appropriate disciplinary action shall be

taken against those responsible.

Unauthorized disclosure of FOUO

information that is protected by the

Privacy Act may also result in civil and

criminal sanctions against responsible

persons. The DoD Component that

originated the FOUO information shall

be informed of its unauthorized

disclosure.

Subpart E—Release and Processing

Procedures

§ 286.22 General provisions.

(a) Public information. (1) Since the

policy of the Department of Defense is

to make the maximum amount of

information available to the public

consistent with its other

responsibilities, written requests for a

DoD record made under the provisions

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

be denied only when:

(i) The record is subject to one or

more of the exemptions of the FOIA.

(ii) The record has not been described

well enough to enable the DoD

Component to locate it with a

reasonable amount of effort by an

employee familiar with the files.

(iii) The requester has failed to

comply with the procedural

requirements, including the written

agreement to pay or payment of any

required fee imposed by the instructions

of the DoD Component concerned.

When personally identifiable

information in a record is requested by

the subject of the record or his attorney,

notarization of the request, or a

statement certifying under the penalty

of perjury that their identity is true and

correct may be required. Additionally,

written consent of the subject of the

record is required for disclosure from a

Privacy Act System of records, even to

the subject’s attorney.

(2) Individuals seeking DoD

information should address their FOIA

requests to one of the addresses listed in

Appendix B to this part.

(b) Requests from private parties. The

provisions of the FOIA are reserved for

persons with private interests as

opposed to U.S. federal agencies seeking

official information. Requests from

private persons will be made in writing,

and will clearly show all other

addressees within the Federal

Government to whom the request was

also sent. This procedure will reduce

processing time requirements, and

ensure better inter and intra-agency

coordination. DoD Components are

under no obligation to establish

procedures to receive hand delivered

requests; and they should encourage

requesters to send requests by mail,

facsimile, or by electronic means.

Disclosure of records to individuals

under the FOIA is considered public

release of information, except as

provided for in §§ 286.4(f) and 286.12.

(c) Requests from Government

officials. Requests from officials of State,

or local Governments for DoD

Component records shall be considered

the same as any other requester.

Requests from members of Congress not

seeking records on behalf of a

Congressional Committee,

Subcommittee, either House sitting as a

whole, or made on behalf of their

constituents shall be considered the

same as any other requester (See also

§ 286.4 (f) and paragraph (d) of this

section). Requests from officials of

foreign governments shall be considered

the same as any other requester.

Requests from officials of foreign

governments that do not invoke the

FOIA shall be referred to appropriate

foreign disclosure channels and the

requester so notified.

(d) Privileged release to U.S.

Government officials. (1) Records

exempt from release to the public under

the FOIA may be disclosed in

accordance with DoD Component

regulations to agencies of the Federal

government, whether legislative,

executive, or administrative, as follows:

(i) In response to a request of a

Committee or Subcommittee of

Congress, or to either House sitting as a

whole in accordance with DoD Directive

5400.4;

(ii) To other Federal Agencies, both

executive and administrative, as

determined by the head of a DoD

Component or designee;

(iii) In response to an order of a

Federal court, DoD Components shall

release information along with a

description of the restrictions on its

release to the public.

(2) DoD Components shall inform

officials receiving records under the

provisions of this paragraph that those

records are exempt from public release

under the FOIA. DoD Components also

shall advise officials of any special

handling instructions. Classified

information is subject to the provisions

of DoD 5200.1–R, and information

contained in Privacy Act systems of

records is subject to DoD 5400.11–R.

(e) Coordination with affected DoD

component. (1) When a DoD Component

receives a FOIA request for a record in

which an affected DoD organization

(including a Unified or Subunified

Combatant Command) has a substantial

interest in the subject matter, or the DoD

Component receives a FOIA request

from a foreign government, a foreign

citizen, or an individual or entity with

a foreign address, the DoD component

receiving the request shall provide the

request to the affected DoD component.

(2) Upon receiving the request, the

affected DoD Component shall review

the request for host nation relations,

coordinate with Department of State as

appropriate, and if necessary, provide a

copy of the request to the appropriate

foreign disclosure office for review.

Upon request by the affected DoD

component, the DoD component

receiving the initial request shall

provide a copy of releasable records to

the affected DoD component. The

affected DoD component may further

release the records to its host nation

after coordination with Department of

State if release is in the best interest of

the United States Government. If the

record is released to the host nation

government, the affected DoD

Component shall notify the DoD

Component which initially received the

request of the release to the host nation.

(3) Nothing in the previous

paragraphs of this section shall impede

the processing of the FOIA request

initially received by a DoD component.

§ 286.23 Initial determinations.

(a) Initial denial authority. (1)

Components shall limit the number of

IDAs appointed. In designating its IDAs,

a DoD Component shall balance the

goals of centralization of authority to

promote uniform decisions and

decentralization to facilitate responding

to each request within the time

limitations of the FOIA.

(2) The initial determination whether

to make a record available upon request

may be made by any suitable official
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7411

designated by the DoD Component in

published regulations. The presence of

the marking ‘‘For Official Use Only’’

does not relieve the designated official

of the responsibility to review the

requested record for the purpose of

determining whether an exemption

under the FOIA is applicable.

(3) The officials designated by DoD

Components to make initial

determinations should consult with

public affairs officers (PAOs) to become

familiar with subject matter that is

considered to be newsworthy, and

advise PAOs of all requests from news

media representatives. In addition, the

officials should inform PAOs in advance

when they intend to withhold or

partially withhold a record, if it appears

that the withholding action may be

challenged in the media.

(b) Reasons for not releasing a record.

There are seven reasons for not

complying with a request for a record

under 5 U.S.C. 552(a)(3) of the FOIA:

(1) The request is transferred to

another DoD Component, or to another

federal agency.

(2) The DoD Component determines

through knowledge of its files and

reasonable search efforts that it neither

controls nor otherwise possesses the

requested record.

(3) A record has not been described

with sufficient particularity to enable

the DoD Component to locate it by

conducting a reasonable search.

(4) The requester has failed

unreasonably to comply with

procedural requirements, including

payment of fees, imposed by this part or

DoD Component supplementing

regulations.

(5) The request is withdrawn by the

requester.

(6) The information requested is not a

record within the meaning of the FOIA

and this part.

(7) The record is denied in whole or

in part in accordance with procedures

set forth in the FOIA and this part.

(c) Denial tests. To deny a requested

record that is in the possession and

control of a DoD Component, it must be

determined that the record is exempt

under one or more of the exemptions of

the FOIA. An outline of the FOIA’s

exemptions is contained in subpart C of

this part.

(d) Reasonably segregable portions.

Although portions of some records may

be denied, the remaining reasonably

segregable portions must be released to

the requester when it reasonably can be

assumed that a skillful and

knowledgeable person could not

reconstruct the excised information. The

amount of deleted information shall be

indicated on the released portion of

paper records by use of brackets or

darkened areas indicating removal of

information. In no case shall the deleted

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

brackets to show the bounds of deleted

information. In the case of electronic

deletion, or deletion in audiovisual or

microfiche records, if technically

feasible, the amount of redacted

information shall be indicated at the

place in the record such deletion was

made. This may be done by use of

brackets, shaded areas, or some other

identifiable technique which will

clearly show the limits of the deleted

information. When a record is denied in

whole, the response advising the

requester of that determination will

specifically state that it is not reasonable

to segregate portions of the record for

release.

(e) Response to requester. (1)

Whenever possible, initial

determinations to release or deny a

record normally shall be made and the

decision reported to the requester

within 10 working days (20 working

days effective October 2, 1997) after

receipt of the request by the official

designated to respond. When a DoD

Component has a significant number of

requests which preclude a response

determination within the 10 working

day period (20 working days effective

October 2, 1997), the requester shall be

so notified in an interim response, and

advised whether their request qualifies

for the fast track or slow track within

the DoD Components’’ multitrack

processing system. Requesters who do

not meet the criteria for fast track

processing shall be given the

opportunity to limit the scope of their

request in order to qualify for fast track

processing. See also § 286.4(d) for

greater detail on multitrack processing

and compelling need meriting expedited

processing.

(2) When a decision is made to release

a record, a copy should be made

available promptly to the requester once

he has complied with preliminary

procedural requirements.

(3) When a request for a record is

denied in whole or in part, the official

designated to respond shall inform the

requester in writing of the name and

title or position of the official who made

the determination, and shall explain to

the requester the basis for the

determination in sufficient detail to

permit the requester to make a decision

concerning appeal. The requester

specifically shall be informed of the

exemptions on which the denial is

based, inclusive of a brief statement

describing what the exemption(s) cover.

When the initial denial is based in

whole or in part on a security

classification, the explanation should

include a summary of the applicable

Executive Order criteria for

classification, as well as an explanation,

to the extent reasonably feasible, of how

those criteria apply to the particular

record in question. The requester shall

also be advised of the opportunity and

procedures for appealing an unfavorable

determination to a higher final authority

within the DoD Component.

(4) The final response to the requester

should contain information concerning

the fee status of the request, consistent

with the provisions of subpart F, this

part.

(5) The explanation of the substantive

basis for a denial shall include specific

citation of the statutory exemption

applied under provisions of this part,

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

to a classification; to a ‘‘For Official Use

Only’’ marking on the requested record;

or to this part or a DoD component’s

regulation does not constitute a proper

citation or explanation of the basis for

invoking an exemption.

(6) When the time for response

becomes an issue, the official

responsible for replying shall

acknowledge to the requester the date of

the receipt of the request.

(7) In denying a request for records, in

whole or in part, a DoD Component

shall make a reasonable effort to

estimate the volume of the records

denied and provide this estimate to the

requester, unless providing such an

estimate would harm an interest

protected by an exemption of the FOIA.

(f) Extension of time. (1) In unusual

circumstances, when additional time is

needed to respond to the initial request,

the DoD Component shall acknowledge

the request in writing within the 10 day

period (20 days effective October 2,

1997), describe the circumstances

requiring the delay, and indicate the

anticipated date for a substantive

response that may not exceed 10

additional working days, except as

provided in the following:

(2) With respect to a request for which

a written notice has extended the time

limits by 10 additional working days,

and the component determines that it

cannot make a response determination

within that additional 10 working day

period, the requester shall be notified

and provided an opportunity to limit

the scope of the request so that it may

be processed within the extended time

limit, or an opportunity to arrange an

alternative time frame for processing the

request or a modified request. Refusal

by the requester to reasonably modify

the request or arrange for an alternative

time frame shall be considered a factor

in determining whether exceptional
7412 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules

circumstances exist with respect to DoD

Components’ request backlogs.

Exceptional circumstances do not

include a delay that results from

predictable component backlogs, unless

the DoD Component demonstrates

reasonable progress in reducing its

backlog.

(3) Unusual circumstances that may

justify delay are:

(i) The need to search for and collect

the requested records from other

facilities that are separate from the

office determined responsible for a

release or denial decision on the

requested information.

(ii) The need to search for, collect,

and examine a voluminous amount of

separate and distinct records which are

requested in a single request.

(iii) The need for consultation, which

shall be conducted with all practicable

speed, with other agencies having a

substantial interest in the determination

of the request, or among two or more

DoD Components having a substantial

subject-matter interest in the request.

(4) DoD Components may aggregate

certain requests by the same requester,

or by a group of requesters acting in

concert, if the DoD Component

reasonably believes that such requests

actually constitute a single request,

which would otherwise satisfy the

unusual circumstances set forth above,

and the requests involve clearly related

matters. Multiple requests involving

unrelated matters shall not be

aggregated. If the requests are aggregated

under these conditions, the requester or

requesters shall be so notified.

(5) In cases where the statutory time

limits cannot be met and no informal

extension of time has been agreed to, the

inability to process any part of the

request within the specified time should

be explained to the requester with a

request that he agree to await a

substantive response by an anticipated

date. It should be made clear that any

such agreement does not prejudice the

right of the requester to appeal the

initial decision after it is made. DoD

Components are reminded that the

requester still retains the right to treat

this delay as a defacto denial with full

administrative remedies.

(6) As an alternative to the taking of

formal extensions of time as described

previously, the negotiation by the

cognizant FOIA coordinating office of

informal extensions in time with

requesters is encouraged where

appropriate.

(g) Misdirected requests. Misdirected

requests shall be forwarded promptly to

the DoD Component or other Federal

agency with the responsibility for the

records requested. The period allowed

for responding to the request

misdirected by the requester shall not

begin until the request is received by the

DoD Component that manages the

records requested.

(h) Records of Non-U.S. Government

source. (1) When a request is received

for a record that falls under exemption

4, that was obtained from a non-U.S.

Government source, or for a record

containing information clearly

identified as having been provided by a

non-U.S. Government source, the source

of the record or information [also known

as ‘‘the submitter’’ for matters pertaining

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

Exemption (b)(4)] [§ 286.12] shall be

notified promptly of that request and

afforded reasonable time (e.g., 30

calendar days) to present any objections

concerning the release, unless it is clear

that there can be no valid basis for

objection. This practice is required for

those FOIA requests for data not

deemed clearly exempt from disclosure

under Exemption (b)(4). If, for example,

the record or information was provided

with actual or presumptive knowledge

of the non-U.S. Government source and

established that it would be made

available to the public upon request,

there is no obligation to notify the

source. Any objections shall be

evaluated. The final decision to disclose

information claimed to be exempt under

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

official equivalent in rank to the official

who would make the decision to

withhold that information under the

FOIA. When a substantial issue has

been raised, the DoD Component may

seek additional information from the

source of the information and afford the

source and requester reasonable

opportunities to present their arguments

on the legal and substantive issues

involved prior to making an agency

determination. When the source advises

it will seek a restraining order or take

court action to prevent release of the

record or information, the requester

shall be notified, and action on the

request normally shall not be taken until

after the outcome of that court action is

known. When the requester brings court

action to compel disclosure, the

submitter shall be promptly notified of

this action.

(2) If the submitted information is a

proposal in response to a solicitation for

a competitive proposal, and the

proposal is in the possession and

control of DoD, and meets the

requirements of 10 U.S.C. 2305(g), the

proposal shall not be disclosed, and no

submitter notification and subsequent

analysis is required. The proposal shall

be withheld from public disclosure

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

exemption ‘‘(b)(3)’’ of the FOIA. This

statute does not apply to bids,

unsolicited proposals, or any proposal

that is set forth or incorporated by

reference in a contract between a DoD

Component and the offeror that

submitted the proposal. In such

situations, normal submitter notice shall

be conducted in accordance with

paragraph (h)(1) of this section, except

for sealed bids which are opened and

read to the public. The term proposal

means any proposal, including a

technical, management, or cost proposal

submitted by an offeror in response to

solicitation for a competitive proposal.

Submitter notice, and analysis as

appropriate, are required for exemption

‘‘(b)(4)’’ matters which are not

specifically incorporated in 10 U.S.C.

2305(g).

(3) If the record or information was

submitted on a strictly voluntary basis,

absent any exercised authority which

prescribes criteria for submission, and it

is absolutely clear that the record or

information would customarily not be

released to the public, the submitter

need not be notified. Examples of

exercised authorities prescribing criteria

for submission are statutes, executive

orders, regulations, invitations for bids,

requests for proposals, and contracts.

Records or information submitted under

these authorities are not voluntary in

nature. When it is not clear whether the

information was submitted on a

voluntary basis, absent any exercised

authority, and whether it would

customarily be released to the public by

the submitter, notify the submitter and

ask that it describe its treatment of the

information, and render an objective

evaluation. If the decision is made to

release the information over the

objection of the submitter, notify the

submitter and afford the necessary time

to allow the submitter to seek a

restraining order, or take court action to

prevent release of the record or

information.

(4) The coordination provisions of

this paragraph (h) also apply to any nonU.S. Government record in the

possession and control of the

Department of Defense from multinational organizations, such as the

North Atlantic Treaty Organization

(NATO), United Nations Commands, the

North American Aerospace Defense

Command (NORAD), the Inter-American

Defense Board, or foreign governments.

Coordination with foreign governments

under the provisions of this paragraph

(h) may be made through Department of

State, or the specific foreign embassy.

(i) File of initial denials. Copies of all

initial denials shall be maintained by
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7413

each DoD Component in a form suitable

for rapid retrieval, periodic statistical

compilation, and management

evaluation. Records denied at the initial

stage shall be maintained for a period of

six years to meet the statute of

limitations requirement.

(j) Special mail services. Components

are authorized to use registered mail,

certified mail, certificates of mailing and

return receipts. However, their use

should be limited to instances where it

appears advisable to establish proof of

dispatch or receipt of FOIA

correspondence.

(k) Receipt accounts. The Treasurer of

the United States has established two

accounts for FOIA receipts, and all

money orders or checks remitting FOIA

fees should be made payable to the U.S.

Treasurer. These accounts, which are

described in the following paragraphs,

shall be used for depositing all FOIA

receipts, except receipts for industrially

funded and non appropriated funded

activities. Components are reminded

that the below account numbers must be

preceded by the appropriate disbursing

office two digit prefix. Industrially

funded and non appropriated funded

activity FOIA receipts shall be

deposited to the applicable fund.

(1) Receipt account 3210 sale of

publications and reproductions,

Freedom of Information Act. This

account shall be used when depositing

funds received from providing existing

publications and forms that meet the

receipt account series description found

in Federal account symbols and titles.

(2) Receipt account 3210 fees and

other charges for services, freedom of

information act. This account is used to

deposit search fees, fees for duplicating

and reviewing (in the case of

commercial requesters) records to

satisfy requests that could not be filled

with existing publications or forms.

§ 286.24 Appeals

(a) General. If the official designated

by the DoD Component to make initial

determinations on requests for records

declines to provide a record because the

official considers it exempt under one or

more of the exemptions of the FOIA,

that decision may be appealed by the

requester, in writing, to a designated

appellate authority. The appeal should

be accompanied by a copy of the letter

denying the initial request. Such

appeals should contain the basis for

disagreement with the initial refusal.

Appeal procedures also apply to the

disapproval of a fee category claim by a

requester, disapproval of a request for

waiver or reduction of fees, disputes

regarding fee estimates, review on an

expedited basis a determination not to

grant expedited access to agency

records, and for no record

determinations when the requester

considers such responses adverse in

nature. Appeals of Office of the

Secretary of Defense and Joint Staff

determinations may be sent to the

address in paragraph 2.a. of Appendix B

to this part. If a request is merely

misaddressed, and the receiving DoD

Component simply advises the requester

of such and refers the request to the

appropriate DoD Component, this shall

not be considered a no record

determination.

(b) Time of receipt. An FOIA appeal

has been received by a DoD Component

when it reaches the office of an

appellate authority having jurisdiction.

Misdirected appeals should be referred

expeditiously to the proper appellate

authority.

(c) Time limits. (1) The requester shall

be advised to file an appeal so that it

reaches the appellate authority no later

than 60 calendar days after the date of

the initial denial letter. At the

conclusion of this period, the case may

be considered closed; however, such

closure does not preclude the requester

from filing litigation. In cases where the

requester is provided several

incremental determinations for a single

request, the time for the appeal shall not

begin until the requester receives the

last such notification. Records which

are denied shall be retained for a period

of six years to meet the statute of

limitations requirement.

(2) Final determinations on appeals

normally shall be made within 20

working days after receipt. When a DoD

Component has a significant number of

appeals precluding a response

determination within 20 working days,

the appeals shall be processed in a

multitrack processing system, based at a

minimum, on the three processing

tracks established for initial requests.

See § 286.4(c). All of the provisions of

§ 286.4(c) apply also to appeals of initial

determinations, to include establishing

additional processing queues as needed.

(d) Delay in responding to an appeal.

(1) If additional time is needed due to

the unusual circumstances described in

paragraph § 286.24(g), the final decision

may be delayed for the number of

working days (not to exceed 10), that

were not used as additional time for

responding to the initial request.

(2) If a determination cannot be made

and the requester notified within 20

working days, the appellate authority

shall acknowledge to the requester, in

writing, the date of receipt of the appeal,

the circumstances surrounding the

delay, and the anticipated date for

substantive response. Requesters shall

be advised that, if the delay exceeds the

statutory extension provision or is for

reasons other than the unusual

circumstances identified in § 286.24(g),

they may consider their administrative

remedies exhausted. They may,

however, without prejudicing their right

of judicial remedy, await a substantive

response. The DoD Component shall

continue to process the case

expeditiously, whether or not the

requester seeks a court order for release

of the records, but a copy of any

response provided subsequent to filing

of a complaint shall be forwarded to the

Department of Justice.

(e) Response to the requester. (1)

When an appellate authority makes a

final determination to release all or a

portion of records withheld by an IDA,

a written response and a copy of the

records so released should be forwarded

promptly to the requester after

compliance with any preliminary

procedural requirements, such as

payment of fees.

(2) Final refusal of an appeal must be

made in writing by the appellate

authority or by a designated

representative. The response, at a

minimum, shall include the following:

(i) The basis for the refusal shall be

explained to the requester in writing,

both with regard to the applicable

statutory exemption or exemptions

invoked under provisions of the FOIA,

and with respect to other appeal matters

as set forth in paragraph (a) of this

section.

(ii) When the final refusal is based in

whole or in part on a security

classification, the explanation shall

include a determination that the record

meets the cited criteria and rationale of

the governing Executive Order, and that

this determination is based on a

declassification review, with the

explanation of how that review

confirmed the continuing validity of the

security classification.

(iii) The final denial shall include the

name and title or position of the official

responsible for the denial.

(iv) In the case of appeals for denial

of records, the response shall advise the

requester that the information being

denied does not contain meaningful

portions that are reasonably segregable.

(v) The response shall advise the

requester of the right to judicial review.

(f) Consultation. (1) Final refusal

involving issues not previously resolved

or that the DoD Component knows to be

inconsistent with rulings of other DoD

Components ordinarily should not be

made before consultation with the

Office of the General Counsel of the

Department of Defense.
7414 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules

12 See footnote 1 to § 286.1 (a).

(2) Tentative decisions to deny

records that raise new or significant

legal issues of potential significance to

other agencies of the Government shall

be provided to the Department of

Defense Office of General Counsel

(Office of Legal Counsel).

§ 286.25 Judicial actions.

(a) General. (1) This section states

current legal and procedural rules for

the convenience of the reader. The

statements of rules do not create rights

or remedies not otherwise available, nor

do they bind the Department of Defense

to particular judicial interpretations or

procedures.

(2) A requester may seek an order

from a United States District Court to

compel release of a record after

administrative remedies have been

exhausted; i.e., when refused a record

by the head of a Component or an

appellate designee or when the DoD

Component has failed to respond within

the time limits prescribed by the FOIA

and in this part.

(b) Jurisdiction. The requester may

bring suit in the United States District

Court in the district in which the

requester resides or is the requesters

place of business, in the district in

which the record is located, or in the

District of Columbia.

(c) Burden of proof. The burden of

proof is on the DoD Component to

justify its refusal to provide a record.

The court shall evaluate the case de

novo (anew) and may elect to examine

any requested record in camera (in

private) to determine whether the denial

was justified.

(d) Actions by the court. (1) When a

DoD Component has failed to make a

determination within the statutory time

limits but can demonstrate due

diligence in exceptional circumstances,

the court may retain jurisdiction and

allow the Component additional time to

complete its review of the records.

(2) If the court determines that the

requester’s complaint is substantially

correct, it may require the United States

to pay reasonable attorney fees and

other litigation costs.

(3) When the court orders the release

of denied records, it may also issue a

written finding that the circumstances

surrounding the withholding raise

questions whether DoD Component

personnel acted arbitrarily and

capriciously. In these cases, the special

counsel of the Merit System Protection

Board shall conduct an investigation to

determine whether or not disciplinary

action is warranted. The DoD

Component is obligated to take the

action recommended by the special

counsel.

(4) The court may punish the

responsible official for contempt when a

DoD Component fails to comply with

the court order to produce records that

it determines have been withheld

improperly.

(e) Non-United States Government

source information. A requester may

bring suit in a U.S. District Court to

compel the release of records obtained

from a non government source or

records based on information obtained

from a non government source. Such

source shall be notified promptly of the

court action. When the source advises

that it is seeking court action to prevent

release, the DoD Component shall defer

answering or otherwise pleading to the

complainant as long as permitted by the

Court or until a decision is rendered in

the court action of the source,

whichever is sooner.

(f) FOIA litigation. Personnel

responsible for processing FOIA

requests at the DoD Component level

shall be aware of litigation under the

FOIA. Such information will provide

management insights into the use of the

nine exemptions by Component

personnel. Whenever a complaint under

the FOIA is filed in a U.S. District Court,

the DoD Component named in the

complaint shall forward a copy of the

complaint by any means to the

OASD(PA), ATTN: DFOISR, with an

information copy to the General

Counsel, Department of Defense, ATTN:

Office of Legal Counsel.

Subpart F—Fee Schedule

§ 286.28 General provisions.

(a) 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, (10 U.S.C. 2328), as amended by

the Defense Technical Corrections Act

of 1987 (10 U.S.C. 101 note).

(b) Application. (1) The fees described

in this subpart apply to FOIA requests,

and conform to the Office of

Management and Budget Uniform

Freedom of Information Act Fee

Schedule and Guidelines. They reflect

direct costs for search, review (in the

case of commercial requesters); and

duplication of documents, collection of

which is permitted by the FOIA. They

are neither intended to imply that fees

must be charged in connection with

providing information to the public in

the routine course of business, nor are

they meant as a substitute for any other

schedule of fees, such as DoD

Instruction 7230.7 12, which does not

supersede the collection of fees under

the FOIA. Nothing in this subpart shall

supersede fees chargeable under a

statute specifically providing for setting

the level of fees for particular types of

records. A ‘‘statute specifically

providing for setting the level of fees for

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

552 (a)(4)(a)(vi)) means any statute 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.

(2) 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

§ 286.29. Not included in direct costs

are overhead expenses such as costs of

space, heating or lighting the facility in

which the records are stored.

(3) The term ‘‘search’’ includes all

time spent looking, both manually and

electronically for material that is

responsive to a request. Search also

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

identification (if necessary) of material

in the record to determine if it, or

portions thereof are responsive to the

request. 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 lineby-line searches when duplicating an

entire document known to contain

responsive information would prove to

be the less expensive and quicker

method of complying with the request.

Time spent reviewing documents in

order to determine whether to apply one

or more of the statutory exemptions is

not search time, but review time. See

paragraph (b) (5) of this section for the

definition of review, and paragraph (c)
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7415

(5) of this section and § 286.29 (b) (2) for

information pertaining to computer

searches.

(4) 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

ensure that the copy provided is in a

form that is reasonably useable, the

requester shall be notified that the copy

provided is the best available and that

the agency’s master copy shall be made

available for review upon appointment.

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 shall notify the

requester of the estimate, unless the

requester has indicated in advance his

or her willingness to pay fees as high as

those anticipated. Such a notice shall

offer a requester the opportunity to

confer with Component personnel with

the object of reformulating the request to

meet his or her needs at a lower cost.

(5) 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

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.

(c) Fee restrictions. (1) 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.

(2) 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.

(3) 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 Department of Treasury’s

special account. The cost to the

Department of Treasury to handle such

remittance is negligible and shall not be

considered in Components’

determinations.

(4) For the purposes of these

restrictions, the word ‘‘pages’’ refers to

paper copies of a standard size, which

will normally be ‘‘81⁄2 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.

(5) In the case of computer searches,

the first two free hours will be

determined against the salary scale of

the individual operating the computer

for the purposes of the search. As an

example, when the direct costs of the

computer central processing unit, inputoutput devices, and memory capacity

equal $24.00 (two hours of equivalent

search at the clerical level), amounts of

computer costs in excess of that amount

are chargeable as computer search time.

In the event the direct operating cost of

the hardware configuration cannot be

determined, computer search shall be

based on the salary scale of the operator

executing the computer search. See

§ 286.29 for further details regarding

fees for computer searches.

(d) Fee waivers. (1) Documents shall

be furnished without charge, or at a

charge reduced below fees assessed to

the categories of requesters in paragraph

(e) of this section 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.

(2) When assessable costs for an FOIA

request total $15.00 or less, fees shall be

waived automatically for all requesters,

regardless of category.

(3) Decisions to waive or reduce fees

that exceed the automatic waiver

threshold shall be made on a case-bycase basis, consistent with the following

factors:

(i) 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.’’

(A) The subject of the request.

Components should analyze whether

the subject matter of the request

involves issues which will significantly

contribute to the public understanding

of the operations or activities of the

Department of Defense. Requests for

records in the possession of the

Department of Defense 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

Department of Defense. An example of

such records might be press clippings,

magazine articles, or records forwarding

a particular opinion or concern 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 Department of Defense;

however, the age of a particular record

shall not be the sole criteria for denying

relative significance under this factor. It

is possible to envisage an informative

issue concerning the current activities of

the Department of Defense, 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

Department of Defense.

(B) 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

shall inform the public on the

operations or activities of the

Department of Defense. While the
7416 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules

subject of a request may contain

information which concerns operations

or activities of the Department of

Defense, 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 Department of

Defense 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

Department of Defense.

(C) The contribution to an

understanding of the subject by the

general public likely to result from

disclosure. The key element in

determining the applicability of this

factor is whether disclosure will inform,

or have the potential to inform the

public, rather than simply the

individual requester or small segment of

interested persons. The identity of the

requester is essential in this situation in

order to determine whether such

requester has the capability and

intention to disseminate the information

to the public. Mere assertions of plans

to author a book, researching a

particular subject, doing doctoral

dissertation work, or indigence are

insufficient without demonstrating the

capacity to further disclose the

information in a manner 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.

(D) The significance of the

contribution to public understanding. In

applying this factor, Components must

differentiate the relative significance or

impact of the disclosure against the

current level of public knowledge, or

understanding which exists before the

disclosure. In other words, will

disclosure on a current subject of wide

public interest be unique in contributing

previously unknown facts, thereby

enhancing public knowledge, or will it

basically duplicate what is already

known by the general public. A decision

regarding significance requires objective

judgment, rather than subjective

determination, and must be applied

carefully to determine whether

disclosure will likely lead to a

significant public understanding of the

issue. Components shall not make value

judgments as to whether the information

is important enough to be made public.

(ii) Disclosure of the information ‘‘is

not primarily in the commercial interest

of the requester.’’

(A) 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 inference from the requester’s

identity and circumstances of the

request. In such situations, the

provisions of paragraph (e) of this

section 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 nonprofit interest.

(B) The primary interest in disclosure.

Once a requester’s commercial interest

has been determined, Components

should then determine if the disclosure

would be primarily in that interest. This

requires a balancing test between the

commercial interest of the request

against any public benefit to be derived

as a result of that disclosure. Where the

public interest is served above and

beyond that of the requester’s

commercial interest, a waiver or

reduction of fees would be appropriate.

Conversely, even if a significant public

interest exists, and the relative

commercial interest of the requester is

determined to be greater than the public

interest, then a waiver or reduction of

fees would be inappropriate. As

examples, news media organizations

have a commercial interest as business

organizations; however, their inherent

role of disseminating news to the

general public can ordinarily be

presumed to be of a primary interest.

Therefore, any commercial interest

becomes secondary to the primary

interest in serving the public. Similarly,

scholars writing books or engaged in

other forms of academic research, may

recognize a commercial benefit, either

directly, or indirectly (through the

institution they represent); however,

normally such pursuits are primarily

undertaken for educational purposes,

and the application of a fee charge

would be inappropriate. Conversely,

data brokers or others who merely

compile government information for

marketing can normally be presumed to

have an interest primarily of a

commercial nature.

(iii) Components are reminded that

the previously mentioned factors and

examples are not all inclusive. Each fee

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

information provided in each request.

When the element of doubt as to

whether to charge or waive the fee

cannot be clearly resolved, Components

should rule in favor of the requester.

(4) In addition, the following

additional circumstances describe

situations where waiver or reduction of

fees are most likely to be warranted:

(i) A record is voluntarily created to

preclude an otherwise burdensome

effort to provide voluminous amounts of

available records, including additional

information not requested.

(ii) A previous denial of records is

reversed in total, or in part, and the

assessable costs are not substantial (e.g.

$15.00—$30.00).

(e) Fee assessment. (1) 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.

(2) In order to be as responsive as

possible to FOIA requests while

minimizing unwarranted costs to the

taxpayer, Components shall adhere to

the following procedures:

(i) 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 shall:

(A) Notify the requester to provide

additional justification to warrant the

category claimed, and that a search for

responsive records will not be initiated

until agreement has been attained

relative to the category of the requester.

Absent further category justification

from the requester, and within a

reasonable period of time (i.e., 30

calendar days), the Component shall

render a final category determination,

and notify the requester of such

determination, to include normal

administrative appeal rights of the

determination.

(B) 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
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7417

appropriate for the category determined

by the Component.

(ii) Requesters should submit a fee

declaration appropriate for the below

categories.

(A) Commercial. Requesters should

indicate a willingness to pay all search,

review and duplication costs.

(B) Educational or noncommercial

scientific institution or news media.

Requesters should indicate a

willingness to pay duplication charges

in excess of 100 pages if more than 100

pages of records are desired.

(C) All others. Requesters should

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.

(iii) If the previous conditions are not

met, then the request need not be

processed and the requester shall be so

informed.

(iv) In the situations described by

paragraphs (e)(2)(i) and (e)(2)(ii) of this

section, 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 that an

estimate is often difficult to obtain prior

to an actual search, requesters who

desire estimates are entitled to such

before committing to a willingness to

pay. Should 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.

(v) 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.

(vi) 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.

(vii) 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 or she has paid the fee, and to make

an advance payment of the full amount

of the estimated fee before the

Component begins to process a new or

pending request from the requester.

Interest will be at the rate prescribed in

31 U.S.C. 3717, and confirmed with

respective Finance and Accounting

Offices.

(viii) After all work is completed on

a request, and the documents are ready

for release, Components may request

payment before forwarding the

documents if there is no payment

history 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 paragraph (e) (2) (vii) of

this section. Components may not hold

documents ready for release pending

payment from requesters with a history

of prompt payment.

(ix) When Components act under

paragraphs (e) (2) (i) through (vii) of this

section, the administrative time limits of

the FOIA will begin only after the

Component has received a willingness

to pay fees and satisfaction as to

category determination, or fee payments

(if appropriate).

(x) Components may charge for time

spent searching for records, even if that

search fails to locate records responsive

to the request. Components may also

charge search and review (in the case of

commercial requesters) time if records

located are determined to be exempt

from disclosure. In practice, if the

Component estimates that search

charges are likely to exceed $25.00 it

shall notify the requester of the

estimated amount of fees, unless the

requester has indicated in advance his

or her willingness to pay fees as high as

those anticipated. Such a notice shall

offer the requester the opportunity to

confer with Component personnel with

the object of reformulating the request to

meet his or her needs at a lower cost.

(3) Commercial requesters. Fees shall

be limited to reasonable standard

charges for document search, review

and duplication when records are

requested for commercial use.

Requesters must reasonably describe the

records sought (see § 286.4 (h)).

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

refers to a request from, or on behalf of

one who seeks information for a use or

purpose that furthers the commercial,

trade, or profit interest of the requester

or the person on whose behalf the

request is made. In determining whether

a requester properly belongs in this

category, Components must determine

the use to which a requester will put the

documents 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 before assigning the request

to a specific category.

(ii) 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

duplicating the records sought.

Commercial requesters (unlike other

requesters) are not entitled to two hours

of free search time, nor 100 free pages

of reproduction of documents.

Moreover, commercial requesters are

not normally entitled to a waiver or

reduction of fees based upon an

assertion that disclosure would be in the

public interest. However, because use is

the exclusive determining criteria, it is

possible to envision a commercial

enterprise making a request that is not

for commercial use. It is also possible

that a non-profit organization could

make a request that is for commercial

use. Such situations must be addressed

on a case-by-case basis.

(4) Educational Institution requesters.

Fees shall be limited to only reasonable

standard charges for document

duplication (excluding charges for the

first 100 pages) when the request is

made by an educational institution

whose purpose is scholarly research.

Requesters must reasonably describe the

records sought (see § 286.4 (h)). The

term ‘‘educational institution’’ refers to

a pre-school, a public or private

elementary or secondary school, an

institution of graduate high education,

an institution of undergraduate higher

education, an institution of professional

education, and an institution of

vocational education, which operates a

program or programs of scholarly

research. Fees shall be waived or

reduced in the public interest if the

criteria of § 286.28 (d).

(5) Non-commercial scientific

institution requesters. Fees shall be

limited to only reasonable standard

charges for document duplication

(excluding charges for the first 100

pages) when the request is made by a

non-commercial scientific institution

whose purpose is scientific research.

Requesters must reasonably describe the

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

to an institution that is not operated on

a ‘‘commercial’’ basis as defined in

§ 286.28(e)(3) and which is operated

solely for the purpose of conducting

scientific research, the results of which
7418 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules

are not intended to promote any

particular product or industry. Fees

shall be waived or reduced in the public

interest if the criteria of § 286.28 (d)

have been met.

(6) Components shall provide

documents to requesters in

§ 286.28(e)(2) and (e)(5) for the cost of

duplication alone, excluding charges for

the first 100 pages. To be eligible for

inclusion in these categories, requesters

must show that the request is being

made under the auspices of a qualifying

institution and that the records are not

sought for commercial use, but in

furtherance of scholarly (from an

educational institution) or scientific

(from a non-commercial scientific

institution) research.

(7) Representatives of the news media.

Fees shall be limited to only reasonable

standard charges for document

duplication (excluding charges for the

first 100 pages) when the request is

made by a representative of the news

media. Requesters must reasonably

describe the records sought (see § 286.4

(h)). Fees shall be waived or reduced if

the criteria of § 286.28(d) have been met.

(i) The term ‘‘representative of the

news media’’ refers to any person

actively gathering news for an entity

that is organized and operated to

publish or broadcast news to the public.

The term ‘‘news’’ means information

that is about current events or that

would be of current interest to the

public. Examples of news media entities

include television or radio stations

broadcasting to the public at large, and

publishers of periodicals (but only in

those instances when they can qualify

as disseminators of ‘‘news’’) who make

their products available for purchase or

subscription by the general public.

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

methods of news delivery evolve (e.g.,

electronic dissemination of newspapers

through telecommunications services),

such alternative media would be

included in this category. In the case of

‘‘freelance’’ journalists, they may be

regarded as working for a news

organization if they can demonstrate a

solid basis for expecting publication

though that organization, even through

not actually employed by it. A

publication contract would be the

clearest proof, but Components may also

look to the past publication record of a

requester in making this determination.

(ii) To be eligible for inclusion in this

category, a requester must meet the

criteria in § 286.28(e)(7)(i) and his or her

request must not be made for

commercial use. A request for records

supporting the news dissemination

function of the requester shall not be

considered to be a request that is for a

commercial use. For example, a

document request by a newspaper for

records relating to the investigation of a

defendant in a current criminal trial of

public interest could be presumed to be

a request from an entity eligible for

inclusion in this category, and entitled

to records at the cost of reproduction

alone (excluding charges for the first

100 pages).

(iii) ‘‘Representative of the news

media’’ does not include private

libraries, private repositories of

Government records, or middlemen,

such as information vendors or data

brokers.

(8) All other requesters. Components

shall charge requesters who do not fit

into any of the previous categories, fees

which recover the full direct cost of

searching for and duplicating records,

except that the first two hours of search

time and the first 100 pages of

duplication shall be furnished without

charge. Requesters must reasonably

describe the records sought (see § 286.4

(h)). Requests from subjects about

themselves will continue to be treated

under the fee provisions of the Privacy

Act of 1974, which permit fees only for

duplication. Components are reminded

that this category of requester may also

be eligible for a waiver or reduction of

fees if disclosure of the information is

in the public interest as defined under

§ 286.28(d)(1). (See also § 286.28(e)(2)).

(f) 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 to avoid

payment of fees. When a Component

reasonably believes that a requester or,

on rare occasions, a group of requesters

acting in concert, is attempting to break

a request down into a series of requests

for the purpose of avoiding the

assessment of fees, the agency may

aggregate any such requests and charge

accordingly. One element to be

considered in determining whether a

belief would be reasonable is the time

period in which the requests have

occurred. For example, it would be

reasonable to presume that multiple

requests of this type made within a 30

day period had been made to avoid fees.

For requests made over a longer period;

however, such a presumption becomes

harder to sustain and 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

specifically to avoid payment of fees. In

no case may Components aggregate

multiple requests on unrelated subjects

from one requester.

(g) Effect of the Debt Collection Act of

1982 (5 U.S.C. 5514 note). The Debt

Collection Act of 1982 (5 U.S.C. 5514

note) provides for a minimum annual

rate of interest to be charged on overdue

debts owed the Federal Government.

Components may levy this interest

penalty for any fees that remain

outstanding 30 calendar days from the

date of billing (the first demand notice)

to the requester of the amount owed.

The interest rate shall be as prescribed

in 31 U.S.C. 3717. 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.

(h) Computation of fees. The fee

schedule in this subpart shall be used to

compute the search, review (in the case

of commercial requesters) and

duplication costs associated with

processing a given FOIA request. Costs

shall be computed on time actually

spent. Neither time-based nor dollarbased minimum charges for search,

review and duplication are authorized.

§ 286.29 Collection of fees and fee rates.

(a) Collection of fees. Collection of

fees will be made at the time of

providing the documents to the

requester or recipient when the

requester specifically states that the

costs involved shall be acceptable or

acceptable up to a specified limit that

covers the anticipated costs. Collection

of fees may not be made in advance

unless the requester has failed to pay

previously assessed fees within 30

calendar days from the date of the

billing by the DOD Component, or the

Component has determined that the fee

will be in excess of $250 (see § 286.28

(e)).

(b) Search time—(1) Manual search.

Type Grade

Hourly

rate

(dollars)

Clerical ....... E9/GS8 and below 12

Professional 01–06/GS9-GS15 ... 25

Executive .... 07/GS16/ES1 and

above.

45
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7419

(2) Computer search. Fee assessments

for computer search consists of two

parts; individual time (hereafter referred

to as human time), and machine time.

(i) Human time. Human time is all the

time spent by humans performing the

necessary tasks to prepare the job for a

machine to execute the run command.

If execution of a run requires monitoring

by a human, that human time may be

also assessed as computer search. The

terms ‘‘programmer/operator’’ shall not

be limited to the traditional

programmers or operators. Rather, the

terms shall be interpreted in their

broadest sense to incorporate any

human involved in performing the

computer job (e.g. technician,

administrative support, operator,

programmer, database administrator, or

action officer).

(ii) Machine time. Machine time

involves only direct costs of the Central

Processing Unit (CPU), input/output

devices, and memory capacity used in

the actual computer configuration. Only

this CPU rate shall be charged. No other

machine related costs shall be charged.

In situations were the capability does

not exist to calculate CPU time, no

machine costs can be passed on to the

requester. When CPU calculations are

not available, only human time costs

shall be assessed to requesters. Should

DoD Components lease computers, the

services charged by the lessor shall not

be passed to the requester under the

FOIA.

(c) Duplication.

Type Cost per page (cents)

Pre-Printed material .. 02.

Office copy ................ 15.

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

Computer copies

(tapes, discs or

printouts).

Actual cost of duplicating the tape,

disc or printout (includes operator’s

time and cost of the

medium).

(d) Review time (in the case of

commercial requesters).

Type Grade

Hourly

rate

(dollars)

Clerical ............. E9/GS8 and

below.

12

Professional ...... 01–06/GS9-

GS15.

25

Executive .......... 07/GS16/ES1

and above.

45

(e) Audiovisual documentary

materials. Search costs are computed as

for any other record. Duplication cost is

the actual direct cost of reproducing the

material, including the wage of the

person doing the work. Audiovisual

materials provided to a requester need

not be in reproducible format or quality.

(f) Other records. Direct search and

duplication cost for any record not

described above shall be computed in

the manner described for audiovisual

documentary material.

(g) Costs for special services.

Complying with requests for special

services is at the discretion of the

Components. Neither the FOIA, nor its

fee structure cover these kinds of

services. Therefore, Components may

recover the costs of special services

requested by the requester after

agreement has been obtained in writing

from the requester to pay for one or

more of the following services:

(1) Certifying that records are true

copies.

(2) Sending records by special

methods such as express mail, etc.

§ 286.30 Collection of fees and fee rates

for technical data.

(a) Fees for technical data. (1)

Technical data, other than technical

data that discloses critical technology

with military or space application, if

required to be released under the FOIA,

shall be released after the person

requesting such technical data pays all

reasonable costs attributed to search,

duplication and review of the records to

be released. Technical data, as used in

this section, means recorded

information, regardless of the form or

method of the recording of a scientific

or technical nature (including computer

software documentation). This term

does not include computer software, or

data incidental to contract

administration, such as financial and/or

management information. DoD

Components shall retain the amounts

received by such a release, and it shall

be merged with and available for the

same purpose and the same time period

as the appropriation from which the

costs were incurred in complying with

request. All reasonable costs as used in

this sense are the full costs to the

Federal Government of rendering the

service, or fair market value of the

service, whichever is higher. Fair

market value shall be determined in

accordance with commercial rates in the

local geographical area. In the absence

of a known market value, charges shall

be based on recovery of full costs to the

Federal Government. The full costs shall

include all direct and indirect costs to

conduct the search and to duplicate the

records responsive to the request. This

cost is to be differentiated from the

direct costs allowable under § 286.29 for

other types of information released

under the FOIA.

(2) Waiver. Components shall waive

the payment of costs required in

paragraph (a)(1) of this section which

are greater than the costs that would be

required for release of this same

information under § 286.29 if:

(i) 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;

(ii) The release of technical data is

requested in order to comply with the

terms of an international agreement; or

(iii) The Component determines in

accordance with § 286.28(d)(1) that such

a waiver is in the interest of the United

States.

(b) Fee rates.

(1) Search time.—(i) Manual search.

Type Grade

Hourly

rate

(dollars)

Clerical ............. E9/GS8 and

below.

13.25

(Minimum

charge).

8.30

(ii) Professional and executive (To be

established at actual hourly rate prior to

search. A minimum charge will be

established at 1/2 hourly rates).

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 paragraph (a) (3) (I) (A) of

this section) for the computer operator

and/or programmer determining how to

conduct, and subsequently executing

the search will be recorded as part of the

computer search. See § 286.29 (b) (2) for

further details regarding computer

search.

(2) Duplication.

Type Cost

Aerial photographs, specifications,

permits, charts, blueprints, and

other technical documents Engineering data (mircofilm) Aperture

cards ............................................ $2.50

Silver duplicate negative, per

card .......................................... .75
7420 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules

13See footnote 1 to § 286.1 (a).

Type Cost

When key punched and verified,

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

Diazo duplicate negative, per

card .......................................... .65

When key punched and verified,

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

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

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

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

Paper reprints of microfilm indices,

each ............................................. .10

(3) Review time.

Type Grade

Hourly

rate

(dollars)

Clerical ............. E9/GS8 and

below.

13.25

(Minimum

Charge).

8.30

(4) Professional and executive (To be

established at actual hourly rate prior to

review. A minimum charge will be

established at 1⁄2 hourly rates).

(5) Other technical data records.

Charges for any additional services not

specifically provided paragraph (c) of

this section, consistent with DoD

Instruction 7230.7, shall be made by

Components at the following rates:

Minimum charge for office copy (up to

six images) .........................................$3.50

Each additional image ...............................0.10

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

Certification and validation with seal,

each ......................................................5.20

Hand-drawn plots and sketches, each

hour or fraction thereof .....................12.00

Subpart G—Reports

§ 286.33 Reports control.

(a) Each DoD component shall

compile Freedom of Information Act

statistics on a fiscal year basis beginning

October 1, 1997, and report same to

DFOISR, OASD(PA) no later than

November 30 following the fiscal year’s

close. In turn, DFOISR, OASD(PA) will

produce a consolidated DoD report for

submission to the Attorney General.

(b) Existing DoD standards and

registered data elements are to be

utilized to the greatest extent possible in

accordance with the provisions of DoD

8320.1–M,13 ‘‘Data Administration

Procedures’’.

(c) The reporting requirement

outlined in this subpart will be assigned

Report Control Symbol DD–PA(A)1365.

§ 286.34 Annual report.

Annual report content. DD Form 2564

will be used to submit component

input. Instructions for completion

follows:

(a) Item 1. Initial request

determinations.

(1) Total requests processed. Enter the

total number of initial FOIA requests

responded to during the fiscal year.

(2) Granted in full. Enter the total

number of initial FOIA requests

responded to that were granted in full

during the fiscal year. (This may include

requests granted by your office, yet still

requiring action by another office.)

(3) Denied in part. Enter the total

number of initial FOIA requests

responded to and denied in part based

on one or more of the nine FOIA

exemptions. (Do not report denial of fee

waivers.)

(4) Denied in full. Enter the total

number of initial FOIA requests

responded to and denied in full based

on one or more of the nine FOIA

exemptions. (Do not report denial of fee

waivers.)

(5) ‘‘Other reason’’ responses. Enter

the total number of initial FOIA requests

in which you were unable to provide all

or part of the requested information

based on an ‘‘other reason’’ response.

Paragraph (b)(2) of this section explains

the six possible ‘‘other reasons’’.

(6) Total actions. Enter the total

number of FOIA actions taken during

the fiscal year. This number will be the

sum of paragraphs (a)(2) through (a)(5)

of this section.

(b) Item 2. (1) Exemptions invoked on

initial request determinations. Enter the

number of times an exemption was

claimed for each request that was

denied in full or in part. Since more

than one exemption may be claimed

when responding to a single request,

this number will be equal to or greater

than the sum of paragraph (a)(3) and

(a)(4) of this section.

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

determinations. Identify the ‘‘Other

Reason’’ response cited when

responding to a FOIA request and enter

the number of times each was claimed.

(i) Transferred request. Enter the

number of times a request was

transferred to another DoD component

or Federal Agency for action.

(ii) Lack of records. Enter the number

of times a search of files failed to

identify records responsive to subject

request and there was no statutory

obligation to create a record.

(iii) Failure of requester to reasonably

describe record. Enter the number of

times a FOIA request could not be acted

upon since the requester failed to

reasonably describe the record(s) being

sought.

(iv) Other failures by requester to

comply with published rules and/or

directives. Enter the number of times a

requester failed to follow published

rules concerning time, place, fees, and

procedures.

(v) Request withdrawn by requester.

Enter the number of times a requester

withdrew a request and/or appeal.

(vi) Not an agency record. Enter the

number of times a requester was

provided a response indicating the

requested information was not an

agency record.

(vii) Total. Enter the sum of

paragraphs (b) (2) (i) through (b) (2) (vi)

of this section. This number will be

equal to or greater than the number in

paragraph (a) (5) of this section since

more than one reason may be claimed

for each ‘‘other reason’’ response.

(c) Item 3. Appeal determinations.

(1) Total appeal responses. Enter the

total number of FOIA appeals

responded to during the fiscal year.

(2) Granted in full. Enter the total

number of FOIA appeals responded to

and granted in full during the year.

(3) Denied in part. Enter the total

number of FOIA appeals responded to

and denied in part based on one or more

of the nine FOIA exemptions.

(4) Denied in full. Enter the total

number of FOIA appeals responded to

and denied in full based on one or more

of the nine FOIA exemptions.

(5) ‘‘Other reason’’ responses. Enter

the total number of FOIA appeals in

which you were unable to provide the

requested information based on an

‘‘other reason’’ response. Item (b) (2) of

this section explains the six possible

‘‘other reasons’’.

(6) Total actions. Enter the total

number of FOIA appeal actions taken

during the fiscal year. This number will

be the sum of paragraphs (b) (2) through

(b) (5) (vi) of this section.

(d) Item 4. (1) Exemptions invoked on

appeal determinations. Enter the

number of times an exemption was

claimed for each appeal that was denied

in full or in part. Since more than one

exemption may be claimed when

responding to a single request, this

number will be equal to or greater than

the sum of paragraphs (c) (3) and (c) (4)

of this section.

(2) ‘‘Other reasons’’ cited on appeal

determinations. Identify the ‘‘other

reason’’ response cited when

responding to a FOIA appeal and enter

the number of times each was claimed.

See paragraph (b) (3) of this section for

description of ‘‘other reasons’’.

(e) Item 5. Statutes invoked on initial

and appeal determinations. Identify the

number of times you have used a

specific statute to support each (b)(3)

exemption identified in paragraphs (b)

(1) and (d) (1) of this section. List the
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7421

14See footnote 1 to § 286,1 (a).

statutes used to support each ‘‘(b) (3)’’

exemption; the number of instances in

which the statute was cited; note

whether or not the statute has been

upheld in a court hearing; and provide

a concise description of the material

withheld in each individual case by the

statute’s use. Ensure you cite specific

sections of acts invoked. To qualify as

a ‘‘(b) (3)’’ exemption, the statute must

contain clear wording that the

information covered will not be

disclosed. The total number of instances

reported above will be equal to or

greater than the total number of ‘‘(b) (3)’’

exemptions listed in paragraphs (b) (1)

and (d) (1) of this section.

(f) Item 6. Number and median age of

cases pending as of September 30 of the

preceding year.

(1) Total number of initial requests

pending as of September 30, preceding

year. Enter the total number of initial

FOIA requests pending (open) as of the

day before the current reporting period

began (September 30 previous to the

reported period, fiscal year).

(2) Median age of requests pending as

of September 30 of the preceding year.

Enter the median age of pending FOIA

requests as of the day before the current

reporting period began (September 30

previous to the reported period, fiscal

year).

(3) Examples. (i) Given five cases aged

10, 25, 35, 65, and 100 days from date

of receipt as of the previous September

30th. The total requests pending is five

(5). The median age (days) of open

requests is the middle, not average

value, in this set of numbers (10, 25, 35,

65, and 100), 35 (the middle value in the

set).

(ii) Given six pending cases, aged 10,

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

of receipt, as of the previous September

30th. The total requests pending is six

(6). The median age (days) of open

requests 40 days (the mean (average) of

the two middle numbers in the set, in

this case the average of middle values

30 and 50).

(g) Item 7. Number of initial requests

received during the fiscal year. Enter the

total number of initial FOIA requests

received during the reporting period

(fiscal year being reported).

(h) Item 8. Types of requests

processed and median age. Information

is reported for three types of initial

requests completed during the reporting

period: simple; complex; and expedited

processing. The following items of

information are reported for these

requests:

(1) Total number of initial requests.

Enter the total number of initial requests

processed during the reporting period

(fiscal year) by type (simple, complex

and expedited processing) in the

appropriate row on the form.

(2) Median age (days). Enter the

median number of days required to

process each type of case (simple,

complex and expedited processing)

during the period in the appropriate row

on the form.

(3) Example. Given seven initial

requests, multitrack—Simple completed

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

65, 79, 90 and 400 days when

completed. The total number of requests

completed was seven (7). The median

age (days) of completed requests is 65,

the middle value in the set.

(i) Item 9. Fees collected from the

public. Enter the total amount of fees

collected from the public during the

fiscal year. This includes search, review

and reproduction costs only.

(j) Item 10—(1) FOI program costs.

(i) Personnel costs. Paragraphs (j) (1)

(i) (A) and (j) (1) (i) (B) of this section

are used to capture man-years and

salary costs of personnel primarily

involved in planning, program

management and/or administrative

handling of FOIA requests. Determine

salaries for military personnel by using

the Composite Standard Pay Rates (DoD

7220.9-M).14 For civilian personnel use

Office of Personnel Management salary

table and add 16% for benefits. A

sample computation is shown:

Grade Number of

personnel Salary % of time Costs

O–5 ................................................................................................................... 1 $90,707 10 $9,071

O–1 ................................................................................................................... 1 37,545 10 3,755

E–7 ................................................................................................................... 1 44,375 50 22,188

Totals ..................................................................................................... 3 ........................ 70 35,014

(A) Estimated man-years. Add the

total percentages of time for personnel

involved in administering the FOI

program and divide by 100. In the

example shown above, (10+10+50)/

100=.7 man-years.

(B) Man-year costs. Total costs

associated with salaries of individuals

involved in administering FOIA

program. In the example shown, the

total cost is $35,014.

(C) Estimated man-hour costs by

category. This section accounts for all

other personnel not reported in

paragraphs (j)(1)(i)(A) and (j)(1)(i) (B) of

this section who are involved in

processing FOIA requests. Enter the

total hourly cost for each of the five

areas described.

(1) Search time. This includes only

those direct costs associated with time

spent looking for material that is

responsive to a request, including lineby-line identification of material within

a document to determine if it is

responsive to the request. Searches may

be done manually or by computer using

existing programming.

(2) Review and excising. This includes

all direct costs incurred during the

process of examining documents located

in response to a request to determine

whether any portion of any document

located is permitted to be withheld. It

also includes excising documents to

prepare them for release. It does not

include time spent resolving general

legal or policy issues regarding the

application of exemptions.

(3) Coordination and approval. This

includes all costs involved in

coordinating the release/denial of

documents requested under the FOIA.

(4) Correspondence/form preparation.

This includes all costs involved in

typing responses, filling out forms, etc.,

to respond to a FOIA request.

(5) Other activities. This includes all

other processing costs not covered

above, such as processing time by the

mail room.

(6) Total. Enter the sum of paragraphs

(j)(1)(i)(C)(1) through (j)(1)(i)(C)(5) of

this section.

(D) Overhead. This is the cost of

supervision, space, and administrative

support. It is computed as 25% of the

sum of paragraphs (j)(1)(i)(B) and

(j)(1)(i)(C) of this section.

(E) Total. Enter the sum of paragraphs

(j)(1)(i)(B), (j)(1)(i)(C), and (j)(1)(i)(D) of

this section.

(ii) Other case-related costs. Using the

fee schedule, enter the total amounts
7422 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules

1Copies may be obtained, at cost, from the

National Technical Information Service, 5285 Port

Royal Road, Springfield, VA 22161.

2See footnote 1 of section 1.a. of this appendix.

3See footnote 1 of section 1.a. of this appendix.

incurred in each of the areas in the

following paragraphs:

(A) Computer search time. This

includes cost of central processing unit,

input/output devices, memory, etc. of

the computer system used, as well as

the wage of the machine’s operator/

programmer.

(B) Office copy reproduction. This is

the cost of reproducing normal

documents with office copying

equipment.

(C) Microfiche reproduction. This is

the cost of reproducing records and

providing microfiche.

(D) Printed records. This is the cost of

providing reproduced copies of forms,

publications, or reports.

(E) Computer copy. This is the actual

cost of duplicating magnetic tapes,

floppy diskettes, computer printouts,

etc.

(F) Audiovisual materials. This is the

actual cost of duplicating audio or video

tapes or like materials, to include the

wage of the person doing the work.

(G) Other. Report all other costs

which are easily identifiable, such as

per diem, operation of courier vehicles,

training courses, printing (indexes and

forms), long distance telephone calls,

special mail services, use of indicia, etc.

(H) Subtotal. Enter the sum of

paragraphs (j)(1)(ii)(A) through

(j)(1)(ii)(G) of this section

(I) Overhead. This is the cost of

supervision, space, and administrative

support. It is computed as 25% of

paragraph (j) (1) (ii) (H) of this section.

(J) Total. Enter the sum of paragraphs

(j) (1) (ii) (H) and (j) (1) (i) (I) of this

section.

(iii) Cost of routine requests

processed. This item is optional. Some

reporting activities may find it

economical to develop an average cost

factor for processing repetitive routine

requests rather than tracking costs on

each request as it is processed. Care

should be exercised so that costs are

comprehensive to include a 25%

overhead, yet are not duplicated

elsewhere in the report. Multiply the

number of routine requests processed

times the cost factor to compute this

amount.

(iv) Total costs. Enter the sum of

paragraphs (j) (1) (i) through (j) (1) (iii)

of this section.

(2) Number of full time staff. Enter the

number of people in your agency that

process FOIA actions full time.

(k) Item 11. Date report prepared.

Enter the date the report was completed

and signed by an approving official.

(l) Item 12. Name, address & phone

number of agency. Enter data for the

agency or activity that prepared the

report.

(m) Item 13. Signature, typed name,

and title of approving official. Enter the

name and title of the individual

approving the report. Approval of the

report is indicated by the official’s

signature.

Subpart H—Education and Training

§ 286.37 Responsibility and purpose.

(a) Responsibility. The Head of each

DoD Component is responsible for the

establishment of educational and

training programs on the provisions and

requirements of this part. The

educational programs should be targeted

toward all members of the DoD

Component, developing a general

understanding and appreciation of the

DoD FOIA Program; whereas, the

training programs should be focused

toward those personnel who are

involved in the day-to-day processing of

FOI requests, and should provide a

thorough understanding of the

procedures outlined in this part.

(b) Purpose. The purpose of the

educational and training programs is to

promote a positive attitude among DoD

personnel and raise the level of

understanding and appreciation of the

DoD FOIA Program, thereby improving

the interaction with members of the

public and improving the public trust in

the Department of Defense.

(c) Scope and principles. Each

Component shall design its FOIA

educational and training programs to fit

the particular requirements of personnel

dependent upon their degree of

involvement in the implementation of

this part. The program should be

designed to accomplish the following

objectives:

(1) Familiarize personnel with the

requirements of the FOIA and its

implementation by this part.

(2) Instruct personnel, who act in

FOIA matters, concerning the provisions

of this part, advising them of the legal

hazards involved and the strict

prohibition against arbitrary and

capricious withholding of information.

(3) Provide for the procedural and

legal guidance and instruction, as may

be required, in the discharge of the

responsibilities of initial denial and

appellate authorities.

(4) Advise personnel of the penalties

for noncompliance with the FOIA.

(d) Implementation. To ensure

uniformity of interpretation, all major

educational and training programs

concerning the implementation of this

part should be coordinated with the

Director, Freedom of Information and

Security Review, OASD(PA).

(e) Uniformity of legal interpretation.

In accordance with DoD Directive

5400.7, the General Counsel of the

Department of Defense shall ensure

uniformity in the legal position and

interpretation of the DoD FOIA Program.

Appendix A to Part 286—Unified

Combatant commands—Processing

Procedures for FOIA Appeals

1. General

a. In accordance with DoD Directive

5400.7 1 and this part, the Unified Combatant

Commands are placed under the jurisdiction

of the Office of the Secretary of Defense,

instead of the administering Military

Department, only for the purpose of

administering the Freedom of Information

Act (FOIA) Program. This policy represents

an exception to the policies in DoD Directive

5100.3 2.

b. The policy change above authorizes and

requires the Unified Combatant Commands

to process FOIA requests in accordance with

DoD Directive 5400.7 and DoD Instruction

5400.10 3 and to forward directly to the

OASD(PA) all correspondence associated

with the appeal of an initial denial for

information under the provisions of the

FOIA.

2. Responsibilities of Commands

Unified Combatant Commanders in Chief

shall:

a. Designate the officials authorized to

deny initial FOI requests for records.

b. Designate an office as the point-ofcontact for FOI matters.

c. Refer FOIA cases to the OASD(PA) for

review and evaluation when the issues raised

are of unusual significance, precedent

setting, or otherwise require special attention

or guidance.

d. Consult with other OSD and DoD

Components that may have a significant

interest in the requested record prior to a

final determination. Coordination with

agencies outside of the Department of

Defense, if required, is authorized.

e. Coordinate proposed denials of records

with the appropriate Unified Combatant

Command’s Office of the Staff Judge

Advocate.

f. Answer any request for a record within

10 working days of receipt. The requester

shall be notified that his request has been

granted or denied. In unusual circumstances,

such notification may state that additional

time, not to exceed 10 working days, is

required to make a determination.

g. Provide to the OASD(PA) when the

request for a record is denied in whole or in

part, a copy of the response to the requester

or his representative, and any internal

memoranda that provide background

information or rationale for the denial.

h. State in the response that the decision

to deny the release of the requested

information, in whole or in part, may be

appealed to the Assistant Secretary of

Defense (Public Affairs), the Pentagon,

Washington, DC 20301–1400.
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7423

i. Upon request, submit to OASD(PA) a

copy of the records that were denied.

ASD(PA) shall make such requests when

adjudicating appeals.

3. Fees for FOI requests

The fees charged for requested records

shall be in accordance with subpart F of this

part.

4. Communications

Excellent communication capabilities

currently exist between the OASD(PA) and

the Public Affairs Offices of the Unified

Combatant Commands. This communication

capability shall be used for FOI cases that are

time sensitive.

5. Reporting requirements

a. The Unified Combatant Commands shall

submit to the OASD(PA) an annual report.

The instructions for the report are outlined

in subpart G of this part.

b. The annual report shall be submitted in

duplicate to the OASD(PA) not later than

each November 30. This reporting

requirement is assigned Report Control

Symbol DD–PA(A) 1365.

Appendix B to Part 286—Addressing

FOIA Requests

1. General

a. The Department of Defense includes the

Office of the Secretary of Defense and the

Joint Staff, the Military Departments, the

Unified Combatant Commands, the Defense

Agencies, and the DoD Field Activities.

b. The Department of Defense does not

have a central repository for DoD records.

FOIA requests, therefore, should be

addressed to the DoD Component that has

custody of the record desired. In answering

inquiries regarding FOIA requests, DoD

personnel shall assist requesters in

determining the correct DoD Component to

address their requests. If there is uncertainty

as to the ownership of the record desired, the

requester shall be referred to the DoD

Component that is most likely to have the

record.

2. Listing of DoD Component Addresses for

FOI Requests

a. Office of the Secretary of Defense and

the Joint Staff. Send all requests for records

from the below listed offices to: Office of the

Assistant Secretary of Defense (Public

Affairs), ATTN: Directorate for Freedom of

Information and Security Review, Room

2C757, 1400 Defense Pentagon, Washington,

DC 20301–1400.

(1) Executive Secretariat

(2) Under Secretary of Defense (Policy)

(i) Assistant Secretary of Defense

(International Security Affairs)

(ii) Assistant Secretary of Defense

(International Security Policy)

(iii) Assistant Secretary of Defense (Special

Operations & Low Intensity Conflict)

(iv) Assistant Secretary of Defense (Strategy

& Requirements)

(v) Deputy to the Under Secretary of

Defense (Policy Support)

(vi) Director of Net Assessment Defense

Security Assistance Agency

(viii) Defense Technology Security

Administration

(3) Under Secretary of Defense (Acquisition

& Technology)

(i) Deputy Under Secretary of Defense

(Logistics)

(ii) Deputy Under Secretary of Defense

(Advanced Technology)

(iii) Deputy Under Secretary of Defense

(Acquisition Reform)

(iv) Deputy Under Secretary of Defense

(Environmental Security)

(v) Deputy Under Secretary of Defense

(Space)

(vi) Deputy Under Secretary of Defense

(International & Commercial Programs)

(vii) Deputy Under Secretary of Defense

(Industrial Affairs & Installations)

(viii) Assistant to the Secretary of Defense

(Nuclear, Chemical & Biological Defense

Programs)

(ix) Director, Defense Research &

Engineering

(x) Director, Small & Disadvantaged

Business Utilization

(xi) Director, Defense Procurement

(xii) Director, Test Systems Engineering &

Evaluation

(xiii) Director, Strategic & Tactical Systems

(xiv) Defense Evaluation Support Activity

(xv) DoD Radiation Experiments Command

Center

(xvi) On-Site Inspection Agency

(4) Under Secretary of Defense

(Comptroller)

(5) Director Program Analysis and

Evaluation

(6) Under Secretary of Defense (Personnel

& Readiness)

(i) Assistant Secretary of Defense (Health

Affairs)

(ii) Assistant Secretary of Defense

(Legislative Affairs)

(iii) Assistant Secretary of Defense (Public

Affairs)

(iv) Assistant Secretary of Defense

(Command, Control, Communications &

Intelligence)

(v) Assistant Secretary of Defense (Reserve

Affairs)

(7) General Counsel, Department of

Defense

(8) Director, Operational Test and

Evaluation

(9) Assistant to the Secretary of Defense

(Intelligence Oversight)

(10) Defense Advanced Research Projects

Agency

(11) Ballistic Missile Defense Organization

(12) Defense Systems Management College

(13) National Defense University

(14) Armed Forces Staff College

(15) Department of Defense Dependents

Schools

(16) Uniformed Services University of the

Health Sciences

(17) Armed Forces Radiobiology Research

Institute

(18) Washington Headquarters Services

b. Department of the Army. Army records

may be requested from those Army officials

who are listed in 32 CFR part 518, Appendix

B. Send requests to the Freedom of

Information and Privacy Acts Office, SAIS–

IDP–F/P, Suite 201, 1725 Jefferson Davis

Hwy, Arlington, VA 22202–4102, for records

of the Headquarters, U.S. Army, or if there is

uncertainty as to which Army activity may

have the records.

c. Department of the Navy. Navy and

Marine Corps records may be requested from

any Navy or Marine Corps activity by

addressing a letter to the Commanding

Officer and clearly indicating that it is an FOI

request. Send requests to Chief of Naval

Operations, N–09B30, Room 5E521, 2000

Navy, Pentagon, Washington, DC 20350–

2000, for records of the Headquarters,

Department of the Navy, and to Commandant

of the Marine Corps, (ARAD), Headquarters

U.S. Marine Corps, 2 Navy Annex,

Washington, DC 20380–1775, for records of

the U.S. Marine Corps, or if there is

uncertainty as to which Navy or Marine

activities may have the records.

d. Department of the Air Force. Air Force

records may be requested from the

Commander of any Air Force installation,

major command, or separate operating

agency (ATTN: FOIA Office). For Air Force

records of Headquarters, United States Air

Force, or if there is uncertainty as to which

Air Force activity may have the records, send

requests to OL–P, 11CS/SCSR(FOIA), Room

4A1088C, 1000 Air Force, Pentagon,

Washington, DC 20330–1000.

e. Defense Contract Audit Agency (DCAA).

DCAA records may be requested from any of

its regional offices or from its Headquarters.

Requesters should send FOI requests to the

Defense Contract Audit Agency, ATTN: CMR,

8725 John J. Kingman Road, Suite 2135, Fort

Belvoir, VA 22060–6219, for records of its

headquarters or if there is uncertainty as to

which DCAA region may have the records

sought.

f. Defense Information Systems Agency

(DISA). DISA records may be requested from

any DISA field activity or from its

Headquarters. Requesters should send FOI

requests to Defense Information Systems

Agency, Regulatory/General Counsel, 701

South Courthouse Road, Arlington, VA

22204–2199.

g. Defense Intelligence Agency (DIA). FOI

requests for DIA records may be addressed to

Defense Intelligence Agency, ATTN: SVI–1,

Washington, DC 20340–5100.

h. Defense Investigative Service (DIS). All

FOI requests for DIS records should be sent

to the Defense Investigative Service, Office of

Information and Public Affairs, 1340

Braddock Place, Alexandria, VA 22314–1651.

i. Defense Logistics Agency (DLA). DLA

records may be requested from its

headquarters or from any of its field

activities. Requesters should send FOI

requests to Defense Logistics Agency, ATTN:

DLA/CAAV, 8725 John J. Kingman Road,

Suite 2533, Alexandria, VA 22060–6221.

j. National Imagery and Mapping Agency

(NIMA). FOI requests for NIMA records may

be sent to the National Imagery and Mapping

Agency, General Counsel for Office of

Information & Privacy, Mail Stop A–7, 8613

Lee Highway, Fairfax, VA 22031–2137.

k. Defense Special Weapons Agency

(DSWA). FOI requests for DSWA records may

be sent to the Defense Special Weapons

Agency, Public Affairs Office, Room 113,

6801 Telegraph Road, Alexandria, VA

22310–3398.

l. National Security Agency (NSA). FOI

requests for NSA records may be sent to the

National Security Agency, FOIA/PA Services,
7424 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules

N5P5, 9800 Savage Road, Suite 6248, Fort

George G. Meade, MD 20755–6248.

m. Office of the Inspector General,

Department of Defense (IG, DoD). FOI

requests for IG, DoD records may be sent to

the Department of Defense Office of the

Inspector General, Chief FOI/PA Office, 400

Army Navy Drive, Room 405, Arlington, VA

22202–2884.

n. Defense Finance and Accounting Service

(DFAS). DFAS records may be requested from

any of its regional offices or from its

Headquarters. Requesters should send FOI

requests to Defense Finance and Accounting

Service, Directorate for External Affairs &

Management Support, Crystal Mall 3, Room

416, Arlington, VA 22240–5291, for records

of its Headquarters, or if there is uncertainty

as to which DFAS region may have the

records sought.

o. National Reconnaissance Office (NRO).

FOI requests for NRO records may be sent to

the National Reconnaissance Office, FOIA

Officer, 1040 Defense Pentagon, Room

4C1000, Washington, DC 20301–1040.

3. Other Addresses

Although the below organizations are OSD

and Joint Staff Components for the purposes

of the F0IA, requests may be sent directly to

the addresses indicated:

a. Office of Civilian Health and Medical

Program of the Uniformed Services

(OCHAMPUS). Director, OCHAMPUS,

ATTN: Freedom of Information Officer,

Aurora, CO 80045–6900.

b. Chairman, Armed Services Board of

Contract Appeals (ASBCA). Chairman,

Armed Services Board of Contract Appeals,

Skyline Six Rm 703, 5109 Leesburg Pike,

Falls Church, VA 22041–3208.

c. U.S. Central Command. U.S. Central

Command/CCJ1/AG, MacDill Air Force Base,

FL 33608–7001.

d. U.S. European Command. Headquarters,

U.S. European Command/ECJ1-AA(FOIA)

Unit 30400 Box 1000, APO AE 09128–4209.

e. U.S. Southern Command. U.S.

Commander-in-Chief, Southern Command,

Unit 1110, SCJ1-A, APO AA 34003–0007.

f. U.S. Pacific Command. U.S Commanderin-Chief, Pacific Command, USPACOM FOIA

Coordinator (J042), Administrative Support

Division, Joint Secretariat, Box 28, Camp H.

M. Smith, HI 96861–5025.

g. U.S. Special Operations Command. U.S.

Special Operations Command, Chief,

Command Information Management Branch,

ATTN: SOJ6-SI, 7701 Tampa Point Blvd.,

MacDill Air Force Base FL 33621–5323.

h. U.S. Atlantic Command. Commander-inChief, Atlantic Command, Code J02P,

Norfolk, VA 23511–5100.

i. U.S. Space Command. Commander-inChief, U.S. Space Command, Command

Records Manager/FOIA/PA Officer, 150

Vandenberg Street, Suite 1105, Peterson Air

Force Base, CO 80914–5400.

j. U.S. Transportation Command. U.S.

Commander-in-Chief, Transportation

Command, ATTN: TCIM-F, 508 Scott Drive,

Scott Air Force Base, IL 62225–5357.

k. U.S. Strategic Command. U.S.

Commander-in-Chief, Strategic Command,

Attn: J0734, 901 SAC Blvd., Suite 1E5, Offutt

AFB, NE 68113–6073.

4. National Guard Bureau

FOI requests for National Guard Bureau

records may be sent to the Chief, National

Guard Bureau, ATTN: NGB–ADM, Room

2C363, 2500 Army Pentagon, Washington,

DC 20310–2500.

5. Miscellaneous

If there is uncertainty as to which DoD

Component may have the DoD record sought,

the requester may address a Freedom of

Information request to the Office of the

Assistant Secretary of Defense (Public

Affairs), Directorate for Freedom of

Information and Security Review, Room

2C757, 1400 Defense Pentagon, Washington,

DC 20301–1400.

Appendix C to Part 286—Other Reason

Categories

1. Transferred requests

This category applies when responsibility

for making a determination or a decision on

categories 2, 3, or 4 of this appendix is

shifted from one Component to another, or to

another Federal Agency.

2. Lack of records

This category covers those situations

wherein the requester is advised the DoD

Component has no record or has no statutory

obligation to create a record.

3. Failure of requester to reasonably describe

record.

This category is specifically based on

section 552(a)(3)(a) of the FOIA.

4. Other failures by requesters to comply with

published rules 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.

5. Request withdrawn by requester. This

category covers those situations wherein the

requester asks an agency to disregard the

request (or appeal) or pursues the request

outside FOIA channels.

6. Not an agency record. This category

covers situations where the information

requested is not an agency record within the

meaning of the FOIA and this part.

BILLING CODE 5000–04–P
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7425

Appendix D to Part 286—Record of Freedom of Information (FOI) Processing Cost (DD Form 2086)
7426 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7427

Appendix E to Part 286—Record of Freedom of Information (FOI) Processing Cost for Technical Data (DD Form 2086–

1)
7428 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7429

Appendix F to Part 286—Annual Report Freedom of Information Act (DD Form 2564)
7430 Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules

BILLING CODE 5000–04–C
Federal Register / Vol. 62, No. 33 / Wednesday, February 19, 1997 / Proposed Rules 7431

Appendix G—DoD Freedom of

Information Act Program Components

a. Office of the Secretary of Defense/Joint

Staff/Unified Combatant Commands, Defense

Agencies, and the DoD Field Activities

b. Department of the Army

c. Department of the Navy

d. Department of the Air Force

e. Defense Information Systems Agency

f. Defense Contract Audit Agency

g. Defense Intelligence Agency

h. Defense Investigative Service

i. Defense Logistics Agency

j. National Imagery and Mapping Agency

k. Defense Special Weapons Agency

l. National Security Agency

m. Office of the Inspector General,

Department of Defense

n. Defense Finance and Accounting Service

o. National Reconnaissance Office

Dated: February 6, 1997.

L.M. Bynum,

Alternate OSD Federal Register Liaison

Officer, Department of Defense.

[FR Doc. 97–3412 Filed 2–18–97; 8:45 am]

BILLING CODE 5000–04–P

DEPARTMENT OF THE INTERIOR

Bureau of Reclamation

43 CFR Part 426

[RIN 1006–AA38]

Acreage Limitation Rules and

Regulations

AGENCY: Bureau of Reclamation,

Interior.

ACTION: Notice of public meeting and

extension of comment period.

SUMMARY: On December 18, 1996, the

Bureau of Reclamation (Reclamation)

published in 61 FR 66827, Dec. 18,

1996, an advance notice of proposed

rulemaking requesting public comment

on possible revisions to existing rules

and regulations regarding the acreage

limitation provisions of the Reclamation

Reform Act of 1982 (RRA). During a

recently completed RRA rulemaking

activity, 61 FR 66754, Dec. 18, 1996, the

Department of the Interior (Department)

received a number of comments

regarding the compliance of certain

large trusts with the acreage limitation

provisions of the RRA. Comments

expressed a variety of viewpoints,

including the assertion that some trusts

with landholdings (owned and leased

land) in excess of 960 acres may

circumvent the requirements of Federal

reclamation law. To help facilitate the

examination of the application of the

acreage limitation provisions to trusts

with large landholdings, Reclamation

will host a meeting at which interested

parties will convene in a round table

arrangement to explore this issue. The

public is invited to attend this session.

This meeting is not intended as a formal

hearing for the submission of comments.

Rather, it is intended as an informal

discussion so that those in attendance

will be better prepared to submit

comments on the advance notice of

proposed rulemaking. To further

facilitate the submittal of comments, the

comment period has been extended to

April 17, 1997.

DATES: The public meeting will be held

on March 14, 1997, at 10:00 a.m. The

comment period on the advance notice

of proposed rulemaking is extended to

April 17, 1997.

ADDRESSES: The public meeting will be

held at The Best Western Expo Inn,

1413 Howe Avenue, Sacramento, CA

Written comments are to be mailed to

the Commissioner’s Office, Bureau of

Reclamation, 1849 C Street N.W.,

Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT:

Steven Richardson, Bureau of

Reclamation, Mail Code W–1500, 1849

C Street, N.W., Washington, D.C. 20240,

telephone (202) 208–4291.

SUPPLEMENTARY INFORMATION: In the

December 18, 1996, Federal Register

notice, Reclamation requested

comments and suggestions on:

• Whether to limit nonfull-cost water

deliveries to large trusts with

landholdings in excess of 960 acres (or

other applicable acreage thresholds

under the RRA);

• The criteria used to determine

whether landholdings in excess of 960

acres, operated under a trust

arrangement, should be eligible to

receive nonfull-cost water deliveries;

• Whether nonfull-cost water

deliveries to such landholdings are

consistent with the principles of Federal

reclamation law and sound public

policy and, if not, how to implement a

limit on such deliveries;

• What procedures might ensure

fairness in transition to new rules that

would limit large trusts to 960 acres for

nonfull-cost water, and what safeguards

would be necessary to avoid such trusts

from adopting some other, as yet

unregulated form, to escape acreage

limitations; and

• The extent of the Department’s

statutory authority to address these

issues, including, the extent of the

Department’s legal authority to regulate:

(a) future trusts, (b) trusts established

from 1982 to the present, and (c) trusts

established prior to 1982.

Dated: February 11, 1997.

J. Austin Burke,

Director, Program Analysis Office.

[FR Doc. 97–3962 Filed 2–18–97; 8:45 am]

BILLING CODE 4310–94–M

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 95

[GEN Docket No. 91–2, DA 97–308]

Interactive Video and Data Services

AGENCY: Federal Communications

Commission.

ACTION: Request for comments on waiver

request.

SUMMARY: This action seeks additional

comment on waiver of the three year

construction benchmark that IVDS

lottery license winners must meet by

March 29, 1997. It is necessary for the

Commission to receive comment on the

waiver request in order to determine if

the waiver should be granted. The effect

of the action will be to seek comment

on the requested rule waiver.

DATES: Comments are due February 25,

1997; reply comments are due March 3,

1997.

ADDRESSES: Comments and reply

comments should be sent or delivered

to: Office of the Secretary, Federal

Communications Commission, 1919 M

Street, N.W., Room 222, Washington,

D.C. 20554, Att’n Private Wireless

Division, Wireless Telecommunications

Bureau.

FOR FURTHER INFORMATION CONTACT:

William T. Cross of the Wireless

Telecommunications Bureau at (202)

418–0680.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Public

Notice released February 10, 1997. The

full text of this action is available for

inspection and copying during normal

business hours in the FCC Reference

Center, Room 239, 1919 M Street, NW.,

Washington, DC. The complete text may

be purchased from the Commission’s

copy contractor, ITS, Inc., (202) 857–

3800, 2100 M Street, NW., Suite 140,

Washington, DC 20037.

Summary of Public Notice

1. In the Report and Order in GEN

Docket No. 91–2, the Commission

concluded that a major concern of

potential users of this service was that

an applicant who obtained a license

through the lottery process may not

actually build the IVDS system. The

IVDS rules require, therefore, that

licensees must construct a sufficient