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[Federal Register Volume 79, Number 170 (Wednesday, September 3, 2014)]
[Proposed Rules]
[Pages 52499-52524]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-19747]

[[Page 52499]]

Vol. 79

Wednesday,

No. 170

September 3, 2014

Part III

Department of Defense

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32 CFR Part 286

DoD Freedom of Information Act (FOIA) Program; Proposed Rule

Federal Register / Vol. 79 , No. 170 / Wednesday, September 3, 2014 / 
Proposed Rules

[[Page 52500]]

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DEPARTMENT OF DEFENSE BILLING CODE

Office of the Secretary

32 CFR Part 286

[DoD-2007-OS-0086; 0790-AI24]

DoD Freedom of Information Act (FOIA) Program

AGENCY: Department of Defense.

ACTION: Proposed rule.

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SUMMARY: The rule updates DoD policy and procedures that implement the 
Freedom of Information Act (FOIA) and incorporate the provisions of the 
executive order directing agencies to improve the disclosure of 
information. This part promotes uniformity in the DoD FOIA Program. It 
takes precedence over all DoD Component publications that supplement 
and implement the DoD FOIA Program.

DATES: Comments must be received by November 3, 2014.

FOR FURTHER INFORMATION CONTACT: James Hogan, 571-372-0463.

SUPPLEMENTARY INFORMATION: This rule is part of DoD's retrospective 
plan, completed in August 2011, under Executive Order 13563, 
``Improving Regulation and Regulatory Review.'' DoD's full plan and 
updates can be accessed at: http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR;rpp=10;po=0;D=DOD-2011-OS-0036.

Executive Summary

I. Purpose of This Regulatory Action

    a. This rule revises 32 CFR part 286 in accordance with the 
authority in 32 CFR part 285 to implement 5 U.S.C. 552 and incorporate 
the provisions of Executive Order 13392. This part promotes uniformity 
in the DoD FOIA Program.
    b. Authority: The Freedom of Information Act (FOIA) (5 U.S.C. 552), 
as amended, provides that any person has a right, enforceable in court, 
to obtain access to federal agency records, except to the extent that 
such records (or portions of them) are protected from public disclosure 
by one of nine exemptions or by one of three special law enforcement 
record exclusions. Furthermore, the FOIA requires agency to promulgate 
regulations to carry out some of its provisions.

II. Summary of the Major Provisions of This Regulatory Action

    This rule implements changes to conform to the requirements of the 
Electronic Freedom of Information Act Amendments of 1996, Public Law 
104-231, and the OPEN Government Act of 2007, Public Law 110-175.

III. Costs and Benefits of This Regulatory Action

    This regulatory action imposes no monetary costs to the Agency or 
public. The benefit to the public is the accurate reflection of the 
Agency's FOIA Program to ensure that policies and procedures are known 
to the public.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    We have consulted with the Office of Management and Budget (OMB) 
and determined this NPRM meets the criteria for a significant 
regulatory action under Executive Order 12866, as supplemented by 
Executive Order 13563, and was subject to OMB review.

Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
(Pub. L. 104-4) requires agencies assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. This 
document will not mandate any requirements for State, local, or tribal 
governments, nor will it affect private sector costs.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that 32 CFR part 286 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. The rule implements the procedures for processing 
FOIA requests within the Department of Defense. Therefore, the 
Regulatory Flexibility Act, as amended, does not require us to prepare 
a regulatory flexibility analysis.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    This proposed rule do not create any new or affect any existing 
collections, and therefore, do not require OMB approval under the 
Paperwork Reduction Act

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This document will not have a substantial effect on State 
and local governments.

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 (FOIA) PROGRAM

Subpart A--General
Sec.
286.1 Purpose.
286.2 Applicability.
286.3 Definitions.
286.4 Policy.
286.5 Responsibilities.
Subpart B--General Provisions
286.6 Public access to DoD information.
286.7 FOIA requester service center.
286.8 FOIA Public Liaisons.
286.9 Unofficial release of DoD information.
286.10 Description of requested record.
286.11 Combatant Commands.
286.12 Security clearances and access.
286.13 Use of contractors in FOIA administration.
286.14 Records management.
286.15 Relationship between the FOIA and the Privacy Act.
286.16 Non-responsive information.
286.17 Honoring form or format requests.
286.18 Annual report.
286.19 Dispute resolution and the Office of Government Information 
Services (OGIS).
Subpart C--FOIA Libraries
286.20 Requirements.
286.21 Record availability.
286.22 Indexes.
286.23 Section (a)(1) records.
Subpart D--Exemptions
286.24 General provisions.
286.25 Applying the FOIA exemptions.
286.26 Exclusions.
Subpart E--FOIA Request Processing
286.27 General provisions.
286.28 Processing procedures.
286.29 Initial determinations.
286.30 Referrals and consultations.
286.31 Appeals.
286.32 FOIA litigation.
Subpart F--Fee Schedule
286.33 General provisions.
286.34 Fees for technical data.
286.35 Fees for research data.
Subpart G--Education and Training
286.36 Purpose.
286.37 Responsibility.
286.38 Scope and principles.
286.39 Implementation.
Appendix A to Part 286--DoD FOIA Program Components and Addresses

    Authority:  5 U.S.C. 552.

[[Page 52501]]

Subpart A--General

Sec.  286.1  Purpose.

    This part is in accordance with the authority in DoD Directive 
5105.53, ``Director of Administration and Management (DA&M)'' 
(available from http://www.dtic.mil/whs/directives/corres/pdf/510553p.pdf) and the guidelines and responsibilities in 32 CFR part 285 
to implement 5 U.S.C. 552 (also known and hereinafter referred to as 
``The Freedom of Information Act (FOIA), as amended'') and incorporate 
the provisions of Executive Order 13392. This part promotes uniformity 
in the DoD FOIA Program. It takes precedence over all DoD Component 
publications that supplement and implement the DoD FOIA Program.

Sec.  286.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments, the Office of the Chairman of the Joint 
Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office 
of the Inspector General of the Department of Defense, the Defense 
Agencies, the DoD Field Activities, and all other organizational 
entities within the Department of Defense (referred to collectively in 
this part as the ``DoD Components'').

Sec.  286.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
this part.
    Administrative appeal. A request by a member of the public, made 
pursuant to the FOIA, asking the appellate authority of a DoD Component 
to reverse any adverse determination by an initial denial authority 
(IDA).
    Adverse determination. A decision by an IDA to withhold all or part 
of a requested record pursuant to an exemption, deny a fee category 
claim by a FOIA requester, deny a request for waiver or reduction of 
fees, deny a request to review an initial fee estimate, deny a request 
for expedited processing, confirm that no records were located during 
the initial search, or make any determination that a FOIA requester 
believes is adverse in nature.
    Agency record. (1) Includes all documents or records created or 
obtained by an agency of the Government that are in an agency's 
possession and control at the time a FOIA request is received. Four 
factors determine an agency's control:
    (i) The intent of the creator of the document to retain control 
over the record;
    (ii) The ability of the agency to use and dispose of the record as 
it sees fit;
    (iii) The extent to which agency personnel have read or relied upon 
the document;
    (iv) The degree to which the document was integrated into the 
agency's record systems or files. Information maintained by an entity 
pursuant to government contract for a DoD Component for records 
management is considered in the DoD Component's possession. Records 
created by an agency employee during employment, including emails, may 
be either agency records or personal files.
    (A) Examples include:
    (1) Research data produced during the performance of a federal 
grant used by the Government in developing an agency action that has 
the force and effect of law in accordance with OMB Circular No. A-110 
(available at http://www.whitehouse.gov/omb/circularsa110/).
    (2) Books, papers, maps, photographs, machine-readable materials 
inclusive of those in electronic form or format, and other documentary 
materials, regardless of physical form or characteristics. Form or 
format refers to physical media type or transmission mode desired by 
the FOIA requester, e.g., computer disk, computer tape, file transfer 
protocol, photographs, videotape, and microfiche.
    (B) Examples do not include:
    (1) Objects or articles such as structures, furniture, vehicles, 
and equipment, whatever their historical value or value as evidence.
    (2) Anything that is not a tangible or documentary record, such as 
an individual's memory or oral communication.
    (3) Personal files.
    (2) The definition of an agency record under the FOIA is more 
expansive than the definition of a federal record. Documents such as 
drafts and working files need not be official records as defined as 
official records, but are still agency records responsive to FOIA 
requests.
    Appellate authority. The DoD Component head, or designee, having 
jurisdiction to review and possibly reverse, remand, or amend any 
adverse determination made by an IDA. Every DoD Component listed in 
Appendix A to this part must have an appellate authority.
    Critical Infrastructure Security Information (CISI). Defined in 10 
U.S.C. 130e(c).
    Commercial request. A FOIA 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 FOIA requester or the person on whose 
behalf the FOIA request is made.
    Compelling need. A state that exists when the failure to obtain 
requested records on an expedited basis could reasonably be expected to 
pose an imminent threat to the life or physical safety of an 
individual, or when the information is urgently needed by an individual 
primarily engaged in disseminating information in order to inform the 
public concerning actual or alleged government activity and the value 
of the information would be lost if it is disseminated at a later time.
    Consultation. The process whereby a federal agency transfers a FOIA 
responsive document to another federal agency or non-government entity, 
in certain situations, to obtain recommendations on the releasability 
of the document. After review, the document is returned to the original 
agency for response to the FOIA requester or further review.
    Deliberative information. Internal advice, recommendations, or 
subjective evaluations that are reflected in records relied upon in the 
decision-making process of an agency, whether within or among agencies.
    Demonstration of a compelling need. A statement certified to be 
true and correct to the best of a FOIA requester's knowledge and 
belief. This statement must be with the FOIA request in order for it to 
be considered and responded to within the 10 calendar days required for 
decisions on expedited access.
    Direct costs. Those expenditures a DoD Component makes in searching 
for, reviewing, and duplicating documents to respond to a FOIA request. 
For example, direct costs may include the salary of the employee 
performing the work (the basic rate of pay 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 in Table 
1 of Sec.  286.33.) Not included in direct costs are overhead expenses 
such as the cost of space, heating, or lighting the facility where the 
records are stored.
    Duplication. The process of making a copy of a document in response 
to a FOIA request. Such copies can take the form of paper, microfiche, 
audiovisual or machine-readable documentation (e.g., magnetic tape or 
CD), among others. Time spent programming or querying a computer system 
to output information in a particular digital form or format for a FOIA 
requester is considered search time.
    Educational institution. A pre-school, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education,

[[Page 52502]]

or an institution of vocational education that operates a program or 
programs of scholarly research.
    Electronic records. Records (including email) created, stored, and 
retrievable by electronic means.
    Federal agency. Defined in 5 U.S.C. 551(1) and 552(f)(1). A federal 
agency cannot make a FOIA request.
    Fee waiver. Defined in 5 U.S.C. 552(a)(4)(A)(iii).
    Final response determination. The response from the DoD Component, 
at the completion of the processing of an initial FOIA request, to the 
FOIA requester reflecting the final release determination made by the 
DoD Component.
    FOIA Public Liaison. A supervisory official to whom a FOIA 
requester can raise concerns about the service the FOIA requester 
receives from a FOIA Requester Center, and who is responsible for 
assisting in reducing delays, increasing transparency and understanding 
of the status of requests, and assisting in the resolution of disputes. 
All DoD Components listed in Appendix A to this part must have a FOIA 
Public Liaison.
    FOIA request. A written request for DoD records that reasonably 
describes the record(s) sought, enabling a DoD Component employee 
familiar with the files to locate the record(s) with a reasonable 
amount of effort.
    (1) A commercial requester asking for contract-related documents 
must indicate a willingness to pay fees equal to or greater than the 
minimum fees established by the DoD Component for commercial 
requesters.
    (2) Written FOIA requests may be submitted by U.S. Postal Service 
or other commercial delivery means, by facsimile, or electronically, to 
an address provided for submission of FOIA requests and must include 
the FOIA requester's postal mailing address. Commercial delivery is 
acceptable; however, due to security concerns, the DoD Components may 
refuse to accept commercial delivery of FOIA requests.
    FOIA requester. Any person, including a partnership, corporation, 
association, State or State agency, foreign government, foreign 
national, or a lawyer or other representative acting on behalf of any 
person, who submits a FOIA request. This definition specifically 
excludes agencies within the Executive Branch of the government.
    FOIA Requester Service Center. A DoD Component office that receives 
FOIA requests from and responds directly to the public. It also is the 
first place a FOIA requester can contact to seek information concerning 
the status of that person's FOIA request and appropriate information 
about the agency's FOIA response.
    Form. The storage media that hold content in digital form on which 
responsive information is provided to FOIA requesters. Examples are 
electronic documents, audiovisual material on tape, and all storage 
media that hold content in digital form and that are written and read 
by a laser; these media include all the various CD and DVD variations. 
Paper documents are typically an example of non-digital storage media.
    Format. A pre-established layout for data. A computer program 
accepts data as input in a certain format, processes it, and provides 
it as output in the same or another format. All digital data is stored 
in some format with the expectation that it will be processed by a 
program that knows how to handle that format. Usually, data formats 
tend to fall into bitmaps (strings of 0s and 1s) that describe images 
or sound patterns (or both), text formats (where each byte value 
usually is mapped to a character), and numeric data formats (used by 
spreadsheet and other database programs). Examples include a pre-
established arrangement of data for computer input or output, such as 
the number and size of data fields in a record or the spacing and 
punctuation of information in a report.
    Glomar. The term applied to a type of response to a FOIA request 
where the DoD Component neither confirms nor denies the existence or 
nonexistence of records responsive to the FOIA request.
    IDA. An official who has been granted authority by the DoD 
Component head to withhold records requested pursuant to the FOIA for 
one or more of the nine categories of records exempt from mandatory 
disclosure. An IDA may also deny a fee category claim by a FOIA 
requester, deny a request for expedited processing, 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 FOIA request.
    Individual primarily engaged in disseminating information. A person 
or entity whose primary activity involves publishing or otherwise 
disseminating information to the public. To qualify, a person or entity 
must establish that information dissemination is their principal 
professional activity or occupation, and not an incidental or secondary 
activity
    Military Flight Operations Quality Assurance (MFOQA) system data 
file. Defined in 10 U.S.C. 2254(a)(2).
    Misdirected FOIA request. A FOIA request that is mistakenly 
addressed to a FOIA Requester Service Center of a DoD Component that is 
not the proper DoD Component to process the request.
    News. Information that is about current events or that would be of 
current interest to the public.
    Non-commercial scientific institution. An institution that is not 
operated on a commercial basis and that is operated solely for 
conducting scientific research, the results of which are not intended 
to promote any particular product or industry.
    Perfected FOIA request. A request that meets the definition of a 
FOIA request and that arrives at the FOIA Requester Service Center of 
the DoD Component in possession of the records. The statutory time 
limit for responding to a FOIA request does not begin until it is 
perfected.
    Personal file. Documents unrelated to the conduct of agency 
business, or indirectly related to agency business but outside the 
scope of agency records. A personal file is not subject to the FOIA. 
FOIA case law predominantly refers to personal files as personal 
records. Examples include:
    (1) Business or professional files created before entering 
government service; files created during or relating to previously held 
positions, political materials, and reference files.
    (2) Private files brought into, created, or received in the office; 
family and personal correspondence and materials documenting 
professional activities and outside business or political pursuits, 
including manuscripts and drafts for articles and books and volunteer 
and community service records that are considered personal, even if 
created or received while in office, because they do not relate to 
agency business.
    (3) Work-related personal files including emails, diaries, 
journals, notes, and personal calendars and appointment schedules. 
Though work-related, these files may be personal if they are used only 
as reminders and personal observations on work-related topics, not for 
the transaction of government business.
    Pre-decisional information. Information created before the decision 
maker reached a final decision.
    Privacy Act request. As defined in 32 CFR part 310.
    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 government activities.
    Referral. The process whereby a DoD Component receiving the FOIA 
request locates documents originating with another DoD Component or 
federal

[[Page 52503]]

agency. Accordingly, the FOIA request and documents are transferred to 
the originating DoD Component or federal agency for response directly 
to the FOIA requester.
    Representative of the news media. A person or entity that gathers 
information of potential interest to a segment of the public, uses its 
editorial skills to turn the raw materials into a distinct work, and 
distributes that work to an audience.
    Review. The time taken to conduct the initial examination of 
responsive documents located to determine whether one or more of the 
statutory exemptions permit withholding. Additionally, the time taken 
to redact, either manually or electronically, the documents to prepare 
them for release would be considered review time, as is the time to 
prepare and provide submitter notification and review submitter 
responses in accordance with E.O. 12600. Review does not include the 
time spent resolving general legal or policy issues regarding the 
application of exemptions.
    Search time. Includes all time spent looking, both manually and 
electronically, for records responsive to a FOIA request. Electronic 
searches would include searching for responsive email or electronic 
documents whether they are located on personal computers, network 
servers, databases, or easily accessible storage media. The time taken 
by a programmer to create a program to run a requested report from a 
database is search time. The term ``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 of it, are responsive to the 
FOIA request.
    Submitter. A person or entity outside of the government providing 
commercial or financial information or trade secrets to the government.
    Technical data. Recorded information related to experimental, 
developmental, or engineering works that can be used to define an 
engineering or manufacturing process or to design, procure, produce, 
support, maintain, operate, repair, or overhaul material.
    Toll. To delay, suspend, or hold off the effects of a statute.
    Urgently needed. Information requested has a particular value that 
will be lost if not disseminated quickly, such as a breaking story of 
general public interest. Information of historical interest only, or 
information sought for litigation or commercial activities, would not 
qualify as ``urgently needed,'' nor would a news media publication or 
broadcast deadline unrelated to the news-breaking nature of the 
information.

Sec.  286.4  Policy.

    It is DoD policy, pursuant to 32 CFR part 285, to promote 
government transparency and accountability by adopting a presumption in 
favor of disclosure in all decisions involving the FOIA and responding 
promptly to FOIA requests in a spirit of cooperation.

Sec.  286.5  Responsibilities.

    The OSD and DoD Component heads implement the procedures prescribed 
in this part and ensure that supplemental guidance and procedures are 
in accordance with 32 CFR part 285 and this part.

Subpart B--General Provisions

Sec.  286.6  Public access to DoD information.

    (a) The public has a right to information concerning U.S. 
Government activities.
    (1) A DoD record (referred to in this part as ``record'') requested 
by a member of the public who follows rules established by this part 
must not be withheld in whole or in part unless the record is exempt 
from partial or total disclosure by the FOIA.
    (2) The applicability of a FOIA exemption to withhold information 
does not preclude the DoD Component from making a discretionary release 
in accordance with Sec.  286.24(b).
    (b) Executive Order 13392 directs agencies to emphasize a new 
citizen-centered approach to the FOIA with a results-oriented focus. 
Because FOIA requesters are seeking a service from the government, the 
DoD Components must respond courteously and appropriately to FOIA 
requesters. Additionally, the DoD Components must provide the public 
with citizen-centered ways to learn about the FOIA process, information 
about agency records that are publicly available, and information about 
the status of a person's FOIA request and appropriate information about 
the agency's response.
    (c) The Defense Freedom of Information Policy Office (DFOIPO) 
maintains a handbook for the public to use in obtaining information 
from the Department of Defense as required by section (g)(3) of the 
FOIA and section 2(b)(v) of Executive Order 13392. This handbook is a 
short, simple explanation of what the FOIA is designed to do and how 
the public can use it to access DoD records. This handbook will be 
posted on the DFOIPO Web site and the FOIA Web site of each DoD FOIA 
Component listed in Appendix A to this part must have a link to it.
    (d) Individuals seeking DoD information should address their FOIA 
requests to one of the FOIA Requester Service Center addresses listed 
in Appendix A to this part. If a FOIA requester is uncertain where to 
send a FOIA request for DoD information, the FOIA requester can call 1-
866-574-4970 (toll-free) for assistance.

Sec.  286.7  FOIA requester service center.

    (a) Each DoD FOIA Program Component listed in Appendix A to this 
part must establish one or more FOIA Requester Service Centers.
    (b) Each FOIA Requester Service Center will have a Web site that 
serves to educate the public on the FOIA process. These Web sites will 
comply with DoD Instruction 8550.01. At a minimum, each Web site will 
have:
    (1) The address, telephone number, facsimile number, and 
organizational email address to which FOIA requests can be sent.
    (2) A link to the DoD FOIA handbook.
    (3) A description of the types of records that can be requested.
    (4) The name and contact information of the DoD Component's FOIA 
public liaison.
    (5) Information on how a FOIA requester can obtain the status of a 
FOIA request (either by telephone or through the FOIA Requester Service 
Center Web site).
    (6) A FOIA library as described in Sec.  286.20(b) or a link to the 
DoD Component's FOIA library if the library is centralized.
    (c) The Web sites of DoD Component Headquarters FOIA Requester 
Service Centers will link to the Web sites of the other FOIA Requester 
Service Centers within their Components.
    (d) The Internet home page of every DoD Component will link to the 
FOIA Requester Service Center for that DoD Component.

Sec.  286.8  FOIA Public Liaisons.

    The DoD Components listed in Appendix A to the part will submit to 
the Director of Administration and Management (DA&M) the names of 
personnel to serve as DoD Component FOIA Public Liaisons. Each DoD 
Component will have at least one FOIA Public Liaison. Intermediate 
level public liaisons may be named by those DoD Components that have a 
large number of FOIA Requester Service Centers.
    (a) The FOIA Public Liaisons are responsible for:
    (1) Ensuring that the FOIA Requester Service Centers' Web sites 
comply with the requirements in Sec.  286.7(b) through (d).

[[Page 52504]]

    (2) Assisting in the reduction of any delays in responding to FOIA 
requests.
    (3) Increasing transparency and understanding of request's 
statuses.
    (4) Assisting in dispute resolution.
    (b) The FOIA Public Liaison for the DoD Components listed in 
Appendix A to this part will be appointed from DFOIPO.

Sec.  286.9  Unofficial release of DoD information.

    Records released by the authority of this part or under 
circumstances in which a DoD official with the appropriate authority 
has authorized the release of the information to the public are 
considered to be in the public domain. The disclosure of exempt 
records, without authorization by the appropriate DoD official, is not 
an official release of information; accordingly, it is not a FOIA 
release. Such a release does not waive the authority of the Department 
of Defense to assert FOIA exemptions to withhold the same records in 
response to a FOIA request. Also, while the 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.

Sec.  286.10  Description of requested record.

    The requester is responsible for providing a description of the 
desired record that enables the DoD Component to locate the record with 
a reasonable amount of effort. A reasonable description contains 
sufficient information to permit an organized, non-random search for 
the record based on the DoD Component's filing arrangements and 
existing retrieval systems. The DoD Component's decision on the 
reasonableness of the description must be based on knowledge of its 
files, and not on the potential volume of records that may be located 
and the concurrent review effort to determine releasability. The fact 
that a FOIA request appears broad or burdensome (e.g. a large volume of 
potentially responsive information) does not necessarily entitle the 
DoD Component to deny the FOIA request on the grounds that it does not 
reasonably describe the record sought.

Sec.  286.11  Combatant Commands.

    The Combatant Commands FOIA programs are placed under OSD 
jurisdiction instead of the administering Military Department or the 
Chairman of the Joint Chiefs of Staff. This is an exception to DoD 
Directive 5100.03 (available at http://www.dtic.mil/whs/directives/corres/pdf/510003p.pdf) in that it authorizes and requires the 
Combatant Commands to process FOIA requests in accordance with 32 CFR 
part 285 and this part.
    (a) The appellate authority for the Combatant Commands is the DA&M 
in accordance with 32 CFR part 285. When requested, the Combatant 
Commands will forward directly to DFOIPO the administrative record 
associated with the appeal of an initial denial for records pursuant to 
the FOIA. The Combatant Commands will advise FOIA requesters that they 
have the right to appeal any adverse determinations to the DA&M.
    (b) Documents originated by the Military Service components of the 
Combatant Commands, while performing joint exercises or operations 
under Combatant Command authority, are joint in nature and are under 
the cognizance of the Combatant Commands.
    (1) Each Combatant Command will establish processing procedures 
that address coordinating FOIA requests for these joint documents 
between the Combatant Command and the Military Service component.
    (2) These procedures should include the determination as to whether 
the IDA responsibility would be at the Combatant Command or 
decentralized to the Military Service component; however, appellate 
authority remains with the DA&M for these documents.
    (3) As an exception, if the responsive documents are located within 
a Defense Criminal Investigative Organization (such as the Air Force 
Office of Special Investigations) or accident investigation file at the 
Military Service component, then the release, initial denial, and 
appellate authorities may remain with the Service or the appropriate 
Defense Criminal Investigative Organization. However, the Military 
Service Component will consult with the responsible Combatant Command 
during the review process before release.
    (c) The FOIA Public Liaison for the Combatant Commands will be 
assigned from DFOIPO.

Sec.  286.12  Security clearances and access.

    FOIA personnel require access to all records requested through 
their respective activities, regardless of the sensitivity or 
classification of the information due to the nature of their duties and 
responsibilities. The DoD Components must ensure that FOIA personnel 
have the appropriate clearances and accesses to perform their duties.

Sec.  286.13  Use of contractors in FOIA administration.

    Pursuant to DoD Instruction 1100.22 (Available at http://www.dtic.mil/whs/directives/corres/pdf/110022p.pdf) and Office of 
Management and Budget (OMB) Circular No. A-76 (available at http://
www.whitehouse.gov/omb/
circularsa076a76incltechcor
rection), certain functions known as inherently governmental activities 
must not be outsourced to a contractor. The DoD Components will not 
outsource inherently governmental FOIA functions. Primarily, activities 
that require the exercise of substantial discretion in applying 
government authority or in making decisions for the government are 
inherently governmental.
    (a) Inherently governmental FOIA functions include:
    (1) Formulating or approving FOIA policies and procedures.
    (2) Making final determinations regarding whether to treat incoming 
correspondence as a FOIA or Privacy Act request.
    (3) Making denial or release determinations of information 
requested pursuant to the FOIA.
    (4) Deciding any issues regarding the scope or interpretation of a 
FOIA request.
    (5) Determining the appropriateness of claimed exemptions.
    (6) Approving the approach taken in negotiations or discussions 
with the FOIA requester.
    (7) Deciding administrative appeals.
    (8) Conducting final review of all outgoing correspondence, 
memorandums, and release packages.
    (9) Making final determinations of requests for expedited 
processing, fee category, and fee waivers.
    (10) Executing documents for filing in litigation pursuant to the 
FOIA if the documents assert an official position of the Department of 
Defense, any DoD Components, or any other federal agencies. Contractors 
may prepare and execute documents describing their own actions while 
processing FOIA requests.
    (b) Examples of FOIA functions and duties that contractors may 
perform (this list is not all inclusive):
    (1) Redact documents.
    (2) Prepare correspondence for signature by a government official.
    (3) Communicate with a FOIA requester concerning the status of the 
FOIA request.
    (4) Make recommended redactions.
    (5) Enter relevant information into the DoD Component's FOIA 
tracking system.

[[Page 52505]]

Sec.  286.14  Records management.

    FOIA records, including all correspondence and responsive records, 
must be maintained and disposed of in accordance with the National 
Archives and Records Administration, General Records Schedule 14 and 
DoD Component records schedules.

Sec.  286.15  Relationship between the FOIA and the Privacy Act.

    (a) Requesters seeking records about themselves contained only in a 
Privacy Act system of records will have their requests processed 
pursuant to the 5 U.S.C. 552a (also known as the ``Privacy Act of 
1974,'' as amended, and referred to in this part as the ``Privacy Act'' 
implemented within the DoD by 32 CFR part 310).
    (1) If the Privacy Act system of records is exempt from the 
provisions of section (d)(1) of the Privacy Act, and if the records, or 
any portion thereof, are exempt pursuant to FOIA, the requester will be 
so advised with the appropriate Privacy Act and FOIA exemption(s). 
Appeals must be processed pursuant to both the FOIA and the Privacy 
Act.
    (2) If the Privacy Act system of records is not an exempt system, a 
FOIA exemption cannot be claimed on the information and all information 
will be released to the requester. However, privacy-related information 
about a third party within the requester's Privacy Act file may be 
withheld from the requester. Case law supports the DoD Components 
advising the requester that information was withheld that is ``not 
about you.''
    (b) Requesters seeking records about themselves not in a Privacy 
Act system of records and who cite or imply the Privacy Act will have 
their requests processed pursuant to the FOIA, since the Privacy Act 
does not apply to these records. Appeals must be processed pursuant to 
the FOIA.
    (c) Requesters who seek both records about themselves in a Privacy 
Act system of records and records contained outside a Privacy Act 
system of records will have their requests processed pursuant to both 
the Privacy Act and the FOIA.
    (d) Requesters will be advised in the final response letter which 
statutory authorities were used, inclusive of appeal rights.

Sec.  286.16  Non-responsive information.

    (a) The DoD Components will interpret FOIA requests liberally when 
determining which records are responsive, and may release non-
responsive information. Responsive multiple-subject documents may 
contain a significant amount of non-responsive information, the review 
of which may cause delays in responding to the FOIA requester. A 
determination that information is non-responsive should be made only 
when the DoD Component has a firm basis for concluding that the 
information is clearly beyond the scope of the requester's evident 
interest in the request. In cases where it appears highly likely that 
the non-responsive information may be exempt from release (e.g. the 
document is classified), these procedures apply.
    (1) The DoD Component must contact the FOIA requester, explain that 
the responsive documents are multi-subject and contain a significant 
amount of non-responsive information, and seek the FOIA requester's 
concurrence to the deletion of the non-responsive information without a 
FOIA exemption. If the FOIA requester concurs, these redactions will be 
annotated on the provided document as non-responsive, and the 
concurrence will be reflected in the response letter.
    (2) If the FOIA requester does not agree to deletion of non-
responsive information without a FOIA exemption, the DoD Component will 
process all non-responsive and responsive information for release.
    (b) The DoD Components will not apply the procedures in paragraph 
(a)(1) of this section to documents that have a relatively small 
percentage of non-responsive information. Additionally, non-responsive 
information will not be redacted on less than a page-by-page basis. 
That is, a non-responsive paragraph within an otherwise responsive page 
will not be redacted as non-responsive.

Sec.  286.17  Honoring form or format requests.

    (a) The DoD Components will make reasonable efforts to:
    (1) Provide the record in any form or format requested if the 
record is readily reproducible in that form or format in the 
Component's automated system.
    (2) Provide records in a form that is reasonably usable.
    (3) Maintain records in forms and formats that are reproducible.
    (4) Use available office equipment to digitally reproduce hard copy 
records onto digital media.
    (b) The readily reproducible criterion is not met if a DoD 
Component must outsource or expend significant resources to reproduce a 
record into the requested format. In responding to FOIA requests for 
records, the DoD Components will make reasonable efforts to search for 
records in electronic form or format if maintained in automated 
systems, except when such efforts would significantly interfere with 
the operation of the automated systems. Such determinations will be 
made on a case-by-case basis.

Sec.  286.18  Annual report.

    The DoD Annual FOIA Report to the Attorney General is mandated by 
section (e)(1) of the FOIA and completed on a fiscal-year basis. 
Because of the magnitude of the requested statistics and the need for 
accuracy, the DoD Components will track the annual report data as FOIA 
requests are processed. This facilitates accurate compilation of the 
statistics in completing the report. Each September, DFOIPO provides 
instructions to the DoD Components concerning Component input for the 
Annual FOIA Report. Using the current edition of DD Form 2564, ``Annual 
Freedom of Information Act Report'' (available at http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd2564.pdf), the DoD Components 
will forward their report to DFOIPO no later than October 31. In turn, 
the DA&M submits a consolidated report to the Attorney General, and 
places a copy of this report on the Internet for public access.

Sec.  286.19  Dispute resolution and the Office of Government 
Information Services (OGIS).

    DoD FOIA Public Liaisons will work to resolve disputes with FOIA 
requesters. When a FOIA requester seeks OGIS assistance in resolving 
any disputes, DoD FOIA Public Liaisons will work with OGIS to resolve 
the dispute. If during this informal dispute resolution process it is 
determined that the disputed issue is a candidate for mediation, this 
process will proceed as follows:
    (a) OGIS will advise DFOIPO of the possibility of mediation.
    (b) The applicable DoD Component will accept or reject the offer of 
mediation services in accordance with the component's Alternate Dispute 
Resolution (ADR) policy and issuances after consulting with DFOIPO.
    (c) DFOIPO will contact the DoD ADR Liaison to identify a shared 
neutral for the mediation process.

Subpart C--FOIA Libraries

Sec.  286.20  Requirements.

    (a) General. The FOIA requires records described in section 
552(a)(2) of the FOIA and created on or after November 1, 1996, to be 
available electronically to the public. This is known as the FOIA 
library. In addition to these records, the DoD Components may elect to 
place other records in their libraries.

[[Page 52506]]

    (b) DoD Component FOIA libraries. Each DoD Component will establish 
one or more FOIA libraries. The DoD Components that have only one FOIA 
Requester Service Center will meet this requirement by having a FOIA 
library on its FOIA Web site. The DoD Components with more than one 
FOIA Requester Service Center will meet this requirement by either 
having one FOIA library on its primary FOIA Web site or having a FOIA 
library on each FOIA Requester Service Center Web site. All DoD FOIA 
libraries and the documents posted in the DoD FOIA libraries will meet 
the requirements DoD Instruction 8550.01.
    (1) Final opinions. Section (a)(2)(A) of the FOIA requires agencies 
to make final opinions available to the public. This requirement is met 
by the Defense Office of Hearings and Appeals Web site. DoD Components 
are not required to post or link to these documents in their FOIA 
libraries.
    (2) Statements of policy. Section (a)(2)(B) of the FOIA requires 
agencies to make statements of policy and interpretations available to 
the public that have been adopted by the agencies and are not published 
in the Federal Register. This requirement is met by the publication of 
DoD issuances on the DoD Issuances Web site. DoD Components are not 
required to post or link to these documents in their FOIA libraries.
    (3) Administrative staff manuals or instructions. Section (a)(2)(C) 
of the FOIA requires agencies to make administrative staff manuals and 
instructions that establish policy or interpretations that affect the 
public available to the public. Each DoD Component FOIA library will 
link to its respective Component's publicly available issuance 
publication Web page. For example, the Air Force FOIA Web site will 
link to the Air Force e-Publishing Web site, and the OSD/Joint Staff 
FOIA Requester Service Center will link to the DoD Issuances Web site.
    (4) Frequently requested documents. Section (a)(2)(D) of the FOIA 
requires agencies to make available to the public records that are or 
are likely to become the subject of frequent (three or more) FOIA 
requests. Each DoD Component FOIA library will post documents meeting 
this requirement.
    (5) Index. Section (a)(2)(E) of the FOIA requires an index of the 
documents posted in accordance with Section (a)(2)(D). This requirement 
is met by the DoD Components arranging these documents in its FOIA 
library by topical or descriptive words, rather than by case name or 
numbering system, so that the public can readily locate material. Case 
name and numbering arrangements may also be included for DoD Component 
convenience.
    (6) Proactive releases. DoD Components will post other documents in 
this section of their FOIA library, such as proactive releases, 
documents released in accordance with the Mandatory Declassification 
Review program, and other documents released in accordance with the 
FOIA. This section may also contain links to other component offices 
proactively releasing documents.
    (c) Exemptions. All information that qualifies for withholding 
pursuant to one or more of the FOIA exemptions described in subpart D 
of this part will be redacted from all records in FOIA libraries.

Sec.  286.21  Record availability.

    The DoD Components should consider enhancing their FOIA libraries 
with search engines and document categories to provide the public 
easier access.

Sec.  286.22  Indexes.

    Sections 552(g)(1) and (2) of the FOIA require agencies to make 
publicly available an index of all major information systems and a 
description of major information and record locator systems.
    (a) Major information systems. The DFOIPO Web site satisfies this 
requirement for the DoD. The DoD Components are not required to post or 
link to this index in their FOIA libraries.
    (b) Record locator system. The DFOIPO Web site satisfies this 
requirement for the DoD. The DoD Components are not required to post or 
link to this index in their FOIA libraries.

Sec.  286.23  Section (a)(1) records.

    (a) Although (a)(1) records are not required to be made available 
in response to FOIA requests or in FOIA libraries, they must be made 
available when feasible. Examples of (a)(1) records 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; instructions as to the scope and contents of papers, 
reports, or examinations; and any amendments, revisions, or reports of 
the aforementioned records.
    (b) In accordance with section (a)(1) of the FOIA, each DoD 
Component will disclose, through publication in the Federal Register, 
information describing its organization, functions, procedures, 
substantive rules, and statements of general policy.

Subpart D--Exemptions

Sec.  286.24  General provisions.

    (a) This section is not a thorough or exhaustive explanation of the 
applicability of the FOIA exemptions. The DoD Components may consult 
the Department of Justice Guide to the Freedom of Information Act 
(Available at http://www.usdoj.gov/oip/foia-guide.html) for more 
detailed explanations.
    (b) The DoD Components will make discretionary disclosures of 
exempt information, if appropriate. A discretionary release is not 
appropriate for information determined to be exempt pursuant to 
Exemptions 1, 3, 4, 6, 7(C), and 7(F) of the FOIA as set out in Sec.  
286.25(a), (c), (d), (f), and (g)(1)(iii) and (vi). As for the other 
exemptions, which primarily protect governmental interests, a 
discretionary release is appropriate unless the DoD Component can 
reasonably identify a foreseeable harm that would result from release 
of the information. In making this determination, the DoD Components 
will consider the sensitivity of the document's content and its age.
    (c) As described in this section, nine types of exempt information 
in records may be withheld, in whole or in part, from public disclosure 
unless otherwise prescribed by law. In general, a discretionary release 
of a record to one FOIA requester prevents the withholding of the same 
record pursuant to a FOIA exemption if the record is later requested by 
someone else. However, a FOIA exemption may be invoked to withhold 
information that is similar or related to information that has been the 
subject of a discretionary release.
    (d) In applying exemptions, the identity of the FOIA requester and 
the purpose for the FOIA request are irrelevant; however, an exemption 
may not be invoked when the particular interest to be protected is the 
FOIA requester's interest.
    (e) If a FOIA requester requests information that is about that 
FOIA requester, Exemption 6 as set out in Sec.  286.25(f) should not be 
used to deny the information. However, if another FOIA requester 
requests the same information, it should be denied under Exemption 6.
    (f) If admitting the fact of the existence or nonexistence of a 
record responsive to a FOIA request would itself reveal information 
protected from release by one of the nine exemptions, the DoD 
Components must neither confirm nor deny the existence or nonexistence 
of the requested record.

[[Page 52507]]

    (1) This is commonly called a ``Glomar'' response (for detailed 
guidance on using this type of response, see Volume VII, Number I of 
the U.S. Department of Justice, ``FOIA Update,'' (available at: http://
www.justice.gov/oip/foiaupdates/VolVII1/
page5.htm), and the appropriate exemption must be cited by the DoD 
Component in the response. This situation most commonly arises with 
Exemptions 1, 6, and 7 as set out in Sec.  286.25(a), (f), and (g); 
however, it could arise with other exemptions.
    (2) A ``refusal to confirm or deny'' response must be used 
consistently by the DoD Components, not only when a record exists, but 
also when a record does not exist. If not used consistently, the 
pattern of a ``no record'' response when a record does not exist, and a 
``refusal to confirm or deny'' when a record does exist, risks 
disclosing exempt information.

Sec.  286.25  Applying the FOIA exemptions.

    This section describes the nine types of exempt information in 
records and procedures for applying them.
    (a) Exemption 1. Pursuant to section (b)(1) of the FOIA, records 
properly and currently classified in the interest of national defense 
or foreign policy, as specifically authorized pursuant to the criteria 
established by an existing Executive order establishing classification 
criteria and implemented by regulation, such as DoD Manual 5200.01 
Volume 1 (available at http://www.dtic.mil/whs/directives/corres/pdf/
520001vol1.pdf), are exempt from disclosure. If the responsive 
information is not classified when the FOIA request is submitted, a 
classification review may be undertaken by the DoD Component to 
determine whether the information should be classified. The procedures 
in DoD Manual 5200.01 Volume 1 apply in this situation. If the 
information qualifies as Exemption 1 information under this paragraph 
(a), there is no discretion regarding its release. The FOIA requester 
will be advised which sections of the Executive order apply in 
determining that the information is classified. Exemption 1 also is 
invoked when:
    (1) Individual items of unclassified information, when compiled, 
reveal additional associations or relationships that meet the standard 
for classification pursuant to an existing Executive Order and DoD 
Manual 5200.01 Volume 1, and are not otherwise revealed in the 
individual items of information. This is known as the ``mosaic'' or 
``compilation'' approach.
    (2) The fact of the existence or nonexistence of a record would 
itself reveal classified information.
    (b) Exemption 2. Pursuant to section (b)(2) of the FOIA, records 
related solely to the internal personnel rules and practices of the 
Department of Defense or any of the DoD Components are exempt from 
disclosure. DoD Components should be aware that the U.S. Supreme Court 
effectively eliminated the formulation of this exemption that was 
previously referred to as Exemption 2 (High).
    (c) Exemption 3. Pursuant to section (b)(3) of the FOIA, records 
concerning matters that another statute specifically exempts are exempt 
from disclosure. This exemption allows for the withholding of 
information because its release is prohibited by another statute only 
if one of two disjunctive requirements is met. The statute requires 
that the information be withheld from the public in such a manner as to 
leave no discretion on the issue, or the statute establishes particular 
criteria for withholding or refers to particular types of matters to be 
withheld. For any statute enacted after October 28, 2009, in order to 
qualify as an Exemption 3 statute under this paragraph (c) it must cite 
to section (b)(3) of the FOIA. DFOIPO maintains on its Web site a list 
of Exemption 3 statutes used within the Department of Defense.
    (1) Personally identifying information of DoD personnel. Title 10 
U.S.C. 130b authorizes the withholding of names, ranks, duty addresses, 
official titles, and pay information of DoD personnel (civilian and 
military) in overseas, sensitive, or routinely deployable units when 
this information is requested pursuant to the FOIA. The United States 
Special Operations Command and its components qualify as sensitive 
units pursuant to 10 U.S.C. 130b. Initial denial authorities (IDAs) 
within the Department of Defense should withhold this information 
pursuant to Exemption 3 under this paragraph (c) subject to the 
exceptions listed in paragraphs (c)(1)(i) and (ii) of this section. 
Information withheld pursuant to Exemption 3 and this statute also 
should be withheld pursuant to Exemption 6 as set out in paragraph (f) 
of this section, and, depending on the type of records where the 
information is located, Exemption 7(C) as set out in paragraph 
(g)(1)(iii) of this section.
    (i) Civilian and military officials whose duties make them known to 
the public. The DoD Components may make a discretionary release of 
names and duty information of personnel in overseas, sensitive, or 
routinely deployable units who, by the nature of their position and 
duties, frequently interact with the public. Officials whose identities 
may be released include general and flag officers, public affairs 
officers (PAOs), other personnel designated as official command 
spokespersons, and other senior officials whose identities are known to 
the public through the performance of their duties.
    (ii) Release of information by DoD PAOs. This provision does not 
change DoD instructions for PAOs and the rules used by public affairs 
offices to release information to the general public and the media. 
Public affairs offices should continue to release information in 
accordance with current DoD issuances, Privacy Act restrictions, and 
security classifications.
    (2) Sensitive information of foreign governments and international 
organizations. Title 10 U.S.C. 130c authorizes the withholding of 
unclassified sensitive information of a foreign government or 
international organization. IDAs within the Department of Defense must 
withhold this information pursuant to Exemption 3 under this paragraph 
(c) as specified in this paragraph (c)(2) (for procedural instructions, 
see Sec.  286.28(e)(2)) when they make all three of these 
determinations concerning the requested information:
    (i) The information was provided to the Department of Defense by 
(or produced in cooperation with) a foreign government or international 
organization.
    (ii) The information is withheld from public disclosure by the 
foreign government or international organization (the foreign 
government or international organization should make this 
representation in writing).
    (iii) Any of these three conditions are met:
    (A) The foreign government or international organization requests 
in writing that the information be withheld.
    (B) The foreign government or international organization provides 
the information to the Department of Defense on the condition that it 
is not released to the public.
    (C) DoD regulations specify the release of the requested 
information would have an adverse effect on the ability of the 
Department of Defense to obtain the same or similar information in the 
future.
    (3) CISI. In accordance with 10 U.S.C. 130e, the Secretary of 
Defense and the DA&M may exempt CISI from release under the FOIA. IDAs 
must obtain this written determination in accordance with the 
procedures in Sec.  286.28(k) before withholding CISI from a FOIA 
requester.

[[Page 52508]]

    (4) Military Flight Operations Quality Assurance (MFOQA) system 
data file. In accordance with 10 U.S.C. 2254a, the Secretary of Defense 
and the DA&M may exempt MFOQA system data files from release under the 
FOIA. IDAs must obtain this written determination in accordance with 
the procedures in subpart E of this part before withholding MFOQA 
system data file information from a FOIA requester.
    (d) Exemption 4. Pursuant to section (b)(4) of the FOIA, certain 
non-government financial information exempt from disclosure.
    (1) This exemption protects:
    (i) Trade secrets; or
    (ii) Information that is:
    (A) Commercial or financial.
    (B) Obtained from a person or entity outside of the Federal 
Government.
    (C) Privileged or confidential.
    (2) Commercial or financial information that is voluntarily 
submitted to the U.S. government, absent any exercised authority 
prescribing criteria for submission, may be categorically protected 
provided it is not customarily disclosed to the public by the 
submitter. Examples of exercised authorities prescribing criteria for 
submission are statutes, Executive orders, regulations, invitations for 
bids, requests for proposals, and contracts. Submission of information 
pursuant to these authorities should be analyzed in accordance with 
paragraph (d)(3) of this section and Sec.  286.28(f)(1).
    (3) Commercial or financial information that is not voluntarily 
provided to the government is considered ``confidential'' for Exemption 
4 under this paragraph (d) if its disclosure is likely to:
    (i) Impair the government's ability to obtain necessary information 
in the future (known as the ``impairment prong'');
    (ii) Harm an identifiable private or governmental interest; or
    (iii) Cause substantial harm to the competitive position of the 
person providing the information.
    (4) Examples of information that may be protected by Exemption 4 
under this paragraph (d) include:
    (i) Commercial or financial information received in connection with 
loans, bids, contracts, or proposals.
    (ii) Statistical data and commercial or financial information 
concerning contract performance, income, profits, losses, and 
expenditures.
    (iii) Personal statements given during inspections, investigations, 
or audits.
    (iv) Financial data provided 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.
    (v) 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.
    (vi) Technical or scientific data developed by a contractor or 
subcontractor exclusively at private expense, or developed in part with 
federal funds and in part at private expense. The contractor or 
subcontractor must retain legitimate proprietary interests in such data 
in accordance with 10 U.S.C. 2320-2321 and 48 CFR 227.71 and 227.72. 
Technical data developed exclusively with federal funds may be withheld 
pursuant to Exemption 3 as set out in paragraph (c) of this section if 
it meets the criteria of 10 U.S.C. 130 and 48 CFR 227.71 and 227.72.
    (vii) Information copyrighted pursuant to 17 U.S.C. 106 if release 
of copyrighted material otherwise meets the standards of Exemption 4 
under this paragraph (d).
    (5) When the DoD Components receive FOIA requests for information 
that could be protected by this exemption, they will notify the 
submitter of the information (see Sec.  286.28(f)(1) for notification 
procedures). Submitters having any objections to disclosure must submit 
a detailed written statement that specifies all grounds for withholding 
any portion of the information pursuant to Exemption 4 under this 
paragraph (d). This statement must explain why the information is a 
trade secret or commercial or financial information that is privileged 
or confidential (e.g., how release would cause substantial competitive 
harm).
    (e) Exemption 5. Pursuant to section (b)(5) of the FOIA, inter- or 
intra-agency memorandums or letters containing information considered 
privileged in civil litigation are exempt from disclosure. Information 
that has been considered privileged in civil litigation is information 
that is usually privileged in the civil discovery context. Merely being 
an internal record is an insufficient basis for withholding pursuant to 
this exemption. Records that are not available routinely through the 
discovery process during litigation with the agency because they are 
privileged can be withheld pursuant to this exemption. The most common 
discovery privileges incorporated into Exemption 5 under this paragraph 
(e) are the deliberative process, the attorney work product, and the 
attorney-client privilege.
    (1) Threshold. A document must meet the threshold requirement of 
being an inter- or intra-agency document before the proper privilege 
can be identified in any given case. Because in many instances the U.S. 
government must seek expert advice from external entities (or 
consultants), the courts developed an ``outside consultant'' test that 
helps in determining whether such an external entity qualifies as an 
``agency'' for this exemption. If an entity meets the test, then 
documents that it originates may be protected by Exemption 5 under this 
paragraph (e). If the outside consultant is an interested party in the 
decision-making process, then this threshold is not met.
    (2) Privileges. The privileges and types of information protected 
by Exemption 5 under this paragraph (e) include, but are not limited 
to:
    (i) Deliberative process privilege. (A) To qualify for this 
privilege, the information must be both deliberative and pre-decisional 
(see Sec.  286.3), and be part of the decision-making process. 
Information that is factual cannot be withheld from a FOIA requester 
pursuant to this privilege except when:
    (1) The author of a document selects specific facts out of a larger 
group of facts and this very act is deliberative in nature. This 
information qualifies for withholding because its release would reveal 
the author's internal thought processes; or
    (2) The factual information is so inextricably connected to the 
deliberative material that its disclosure would expose or cause harm to 
the agency's deliberations.
    (B) A direction or order from a superior to a subordinate usually 
does not qualify as a deliberative process document if it constitutes 
policy guidance or a decision. However, correspondence from a superior 
to a subordinate may qualify if it discusses preliminary matters or 
requests information or advice relied upon in the decision-making 
process.
    (C) An agency's final decision and post-decisional documents 
related to the decision cannot be withheld pursuant to the deliberative 
process privilege.
    (D) Examples of deliberative process documents include:
    (1) Staff papers, including after-action reports, inspection 
reports, lessons learned, and situation reports containing staff 
evaluations, advice, opinions, or suggestions.
    (2) Advice, suggestions, or evaluations prepared on behalf of the 
Department of Defense by individual consultants or by internal boards, 
committees, councils, groups, panels, conferences, commissions, task 
forces, or other

[[Page 52509]]

similar groups that are formed for obtaining advice and 
recommendations.
    (3) Drafts of final records.
    (4) 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 U.S. government functions.
    (5) Agency materials underlying the President's budget decisions as 
described in OMB Circular No. A-11 (available at http://
www.whitehouse.gov/omb/
circularsa11currentyeara11t
oc/). This includes planning, programming, and budgetary information 
that is involved in the defense planning and resource allocation 
process and out-year discretionary data.
    (ii) Attorney-client privilege. This privilege protects 
confidential communications between an attorney and a client (or 
multiple clients that share a common interest) relating to legal 
matters for which the client has sought professional advice. The 
information that the client supplies to the attorney, the advice that 
the attorney gives to the client in return, and communications between 
attorneys that reflect client-supplied information are protected by 
this privilege. Unlike the deliberative process privilege, with the 
attorney-client privilege all the information should be withheld, 
including the facts, unless the client waives the privilege.
    (iii) Attorney work product privilege. This privilege protects 
documents prepared by an attorney or at an attorney's direction in 
reasonable anticipation of litigation. Unlike the deliberative process 
privilege, with the attorney work product privilege all the information 
can be withheld, including the facts. This privilege still can be used 
after the litigation is complete.
    (iv) Government trade secret privilege. This privilege protects 
trade secrets or other confidential research, development, or 
commercial information owned by the government, premature release of 
which is likely to affect the government negotiating position or other 
commercial interest.
    (v) Safety investigation privilege. This privilege protects 
privileged safety information as defined in DoD Instruction 6055.07 
(available at http://www.dtic.mil/whs/directives/corres/pdf/605507p.pdf).
    (vi) Presidential communications privilege. This privilege protects 
communications among the President and Presidential advisors created to 
assist the President in the exercise of non-delegable constitutional 
duties.
    (f) Exemption 6. Pursuant to section (b)(6) of the FOIA, 
information in personnel and medical files and similar files, the 
disclosure of which would constitute a clearly unwarranted invasion of 
personnel privacy, is exempt from disclosure. If the information 
qualifies as Exemption 6 under this paragraph (f) information, there is 
no discretion in its release.
    (1) When considering applying this exemption, an agency must 
balance the public interest in disclosure and the individual's privacy 
interest. When there is no public interest in the requested 
information, the information can be withheld even if there is only a 
negligible privacy interest. The public interest to be considered when 
applying this exemption is whether the information sheds light on the 
operations or activities of the government. The FOIA requester has the 
burden to show that there is a public interest in disclosure.
    (2) A privacy interest may exist in personal information even 
though the information has been disclosed at some place and time. This 
is known as the concept of practical obscurity. For example, 
information that was once publicly known (e.g. a court-martial trial 40 
years ago) may no longer be in the public's eye and has faded from 
memory. In this case, the privacy interest in this type of situation 
may have increased over time, the public interest may have decreased 
over time, and therefore an agency should now withhold the once-public 
information, since the balance of interests has now shifted in favor of 
privacy.
    (3) Examples of other files containing personal information similar 
to that in personnel and medical files include:
    (i) Files compiled to evaluate or adjudicate the suitability of 
candidates for civilian employment or membership in the Military 
Services, 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 where administrative action, including 
disciplinary action, may be taken.
    (4) Because of the national emergency declared by the President on 
September 14, 2001, the DoD Components are authorized to withhold lists 
of personally identifying information of DoD personnel, including 
active duty military personnel, civilian employees, contractors, 
members of the Reserve Components, and military dependents under 
Exemption 6 under this paragraph (f). Additionally, personally 
identifying information of DoD military and civilian personnel who are 
assigned to overseas, sensitive, or routinely deployable units is 
exempt from release pursuant to Exemption 3 as set out in paragraph (c) 
of this section, with 10 U.S.C. 130b as the withholding statute. Names 
and duty addresses (postal and email) published in telephone 
directories, organizational charts, rosters, and similar materials for 
personnel are considered ``lists of personally identifying 
information,'' and therefore qualify for withholding pursuant to 
Exemption 6 (and Exemption 3 as set out in paragraph (c) of this 
section if applicable).
    (5) Home addresses, telephone numbers, and private email addresses 
are usually protected by this exemption. This includes home addresses 
and military quarters addresses not associated with the occupants' 
names.
    (6) This exemption must not be used in an attempt to protect the 
privacy of a deceased person. It may be used to protect the privacy of 
the deceased person's surviving family members if disclosure would 
rekindle grief, anguish, pain, embarrassment, or result in a disruption 
of their peace of mind. In such situations, the DoD Components must 
balance the surviving family members' privacy interests and the 
public's interest to determine its releasability.
    (7) This exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal information 
containing a privacy interest, and the public interest in disclosure 
does not outweigh the privacy interest. In this situation, the DoD 
Components must neither confirm nor deny the existence or nonexistence 
of the record being requested (Glomar response) and Exemption 6 under 
this paragraph (f) must be cited.
    (g) Exemption 7. Pursuant to section (b)(7) of the FOIA, records or 
information compiled for law enforcement purposes are exempt from 
disclosure upon the identification of one of the six conditions 
delineated in paragraphs (g)(1)(i) through (vi) of this section. Law 
enforcement purposes include civil, criminal, military, and regulatory, 
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.

[[Page 52510]]

    (1) Conditions where Exemption 7 applies--(i) Exemption 7(A). This 
exemption applies to records compiled for law enforcement purposes when 
disclosure could reasonably be expected to interfere with enforcement 
proceedings (section (b)(7)(A) of the FOIA). The DoD Components can use 
Exemption 7(A) under this paragraph (g)(1)(i) during the course of law 
enforcement proceedings, when there is a prospective law enforcement 
proceeding and during any subsequent or pending proceedings resulting 
from the original proceeding.
    (ii) Exemption 7(B). This exemption applies to records compiled for 
law enforcement purposes when disclosure would deprive a person of the 
right to a fair trial or to an impartial adjudication (section 
(b)(7)(B) of the FOIA).
    (iii) Exemption 7(C). This exemption applies to records compiled 
for law enforcement purposes when disclosure could reasonably be 
expected to constitute an unwarranted invasion of the personal privacy 
of a living person, including surviving family members of an individual 
identified in such a record (section (b)(7)(C) of the FOIA).
    (iv) Exemption 7(D). This exemption applies to records compiled for 
law enforcement purposes when disclosure 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 that furnishes the information on 
a confidential basis, and 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 (section (b)(7)(D) 
of the FOIA).
    (v) Exemption 7(E). This exemption applies to records compiled for 
law enforcement purposes when disclosure 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 (section (b)(7)(E) of the FOIA).
    (vi) Exemption 7(F). This exemption applies to records compiled for 
law enforcement purposes when disclosure could reasonably be expected 
to endanger the life or physical safety of any individual (section 
(b)(7)(F) of the FOIA).
    (2) Examples of Exemption 7 applications. (i) Statements of 
witnesses and other material developed during the course of an 
investigation and all materials prepared in connection with related 
government litigation or adjudicative proceedings may be exempt from 
disclosure pursuant to Exemptions 7(A), 7(C), and 7(D) as set out in 
paragraphs (g)(1)(i), (iii), and (iv) of this section.
    (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 may be exempt from disclosure 
pursuant to Exemptions 7(A) and 7(C) as set out in paragraphs (g)(1)(i) 
and (iii) of this section.
    (iii) Information obtained in confidence, expressed or implied, 
during a criminal investigation by a criminal law enforcement agency or 
a lawful national security intelligence investigation may be exempt 
from disclosure pursuant to Exemptions 7(A), 7(C), and 7(D) as set out 
in paragraphs (g)(1)(i), (iii), and (iv) of this section. National 
security intelligence investigations include background security 
investigations and those investigations conducted to obtain affirmative 
or counterintelligence information.
    (iv) Emergency action plans, guidelines for response to terrorist 
attacks, analyses of security procedures, and other sensitive 
information that could prove deadly if obtained by those seeking to do 
harm to the public on a large scale may be exempt from disclosure 
pursuant to Exemptions 7(E) and 7(F) as set out in paragraphs (g)(1)(v) 
and (vi) of this section.
    (h) Exemption 8. Pursuant to section (b)(8) of the FOIA, records 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 are exempt from 
disclosure.
    (i) Exemption 9. Pursuant to section (b)(9) of the FOIA, records 
containing geological and geophysical information and data (including 
maps) concerning wells are exempt from disclosure.

Sec.  286.26  Exclusions.

    Section (c) of the FOIA contains three special protection 
provisions referred to as record exclusions. Of these exclusions, only 
two are applicable to the Department of Defense. These exclusions 
expressly authorize DoD law enforcement components to treat especially 
sensitive records under certain specified circumstances as not subject 
to the requirements of the FOIA. The DoD Component considering invoking 
one of these exclusions must first consult with legal counsel and with 
DFOIPO. In turn, DFOIPO will consult with the Office of Information 
Policy, Department of Justice. Because of the possibility of the 
existence of excluded records, DoD law enforcement components will 
respond to all FOIA requests when no records are located or when 
located records fall within an exclusion by stating that no records 
responsive to the FOIA were found. The instances where a FOIA request 
involves excluded records are:
    (a) The records or information are described in section (b)(7)(A) 
of the FOIA and the following two conditions are met:
    (1) The investigation or proceeding involves a possible violation 
of criminal law, and
    (2) There is reason to believe that the subject of the 
investigation or proceeding is unaware of the pending investigation or 
proceeding and the disclosure of the existence of the records could 
reasonably be expected to interfere with law enforcement proceedings.
    (b) Informant records maintained by a DoD law enforcement component 
under an informant's name or personal identifier are requested by a 
third party using the informant's name or personal identifier unless 
the informant's status as an informant has been officially confirmed.

Subpart E--FOIA Request Processing

Sec.  286.27  General provisions.

    (a) Requests from private parties. (1) The provisions of the FOIA 
are reserved for members of the public and are not to be used by 
government agencies seeking official information.
    (2) When personally identifying information in a record is 
requested by the subject of the record or the subject's representative, 
and the information is contained within a Privacy Act system of 
records, it is processed pursuant to the Privacy Act. If a Privacy Act 
exemption applies to the system of records, then the request is 
processed pursuant to the FOIA. The DoD Components must comply with 32 
CFR part 310 to confirm the identity of the requester.
    (b) Requests from local or State government officials, Congress, 
and foreign governments. (1) Local or State government officials, 
foreign officials requesting on behalf of their government, foreign 
individuals, or foreign organizations requesting DoD Component records 
pursuant to the FOIA are considered the same as any other FOIA 
requester.

[[Page 52511]]

    (2) The FOIA does not apply to the records of a DoD Component that 
is an element of the Intelligence Community as defined in 50 U.S.C. 
401a(4) if the FOIA request is from a non-U.S. government entity or 
representative.
    (3) Requests from members of Congress who are not seeking records 
on behalf of a congressional committee or subcommittee, or on behalf of 
the House of Representatives or the Senate sitting as a whole, should 
not be processed through FOIA channels; however, any release of 
information will be consistent with a release to any individual 
pursuant to the FOIA and its withholding exemptions. In these cases, 
the member will not be provided with FOIA appeal rights.
    (4) Requests submitted by members of Congress on behalf of a 
congressional committee or subcommittee or on behalf of the House of 
Representatives or the Senate sitting as a whole that are received by 
the DoD Component's FOIA Requester Service Center are referred to the 
appropriate office that handles legislative inquiries for processing 
pursuant to DoD Instruction 5400.04 (available at http://www.dtic.mil/whs/directives/corres/pdf/540004p.pdf) or supplementing DoD Component 
directives. Such requests are not processed pursuant to the FOIA.
    (5) If a member of Congress chooses to request DoD records pursuant 
to the FOIA, then the provisions of this part apply.
    (6) Constituent requests for DoD records that are forwarded by 
members of Congress are processed as FOIA or Privacy Act requests, as 
applicable. The member forwarding the request will be advised of these 
circumstances.
    (7) The Office of the Assistant Secretary of Defense for 
Legislative Affairs will be notified of every instance when a member of 
Congress objects that the DoD has not responded to a congressional 
request for information in the form it was originally requested, 
whether that request is made by an individual member or a congressional 
committee.
    (8) Requests from officials of foreign governments that do not 
invoke the FOIA are referred to the appropriate office authorized to 
disclose official DoD information to foreign governments, and the 
requester is so notified.
    (c) Privileged release outside of the FOIA to U.S. Government 
officials. (1) Records exempt from release to the public pursuant to 
the FOIA may be disclosed in accordance with DoD Component regulations 
to another federal agency in response to an official request from the 
other federal agency in accordance with applicable law and regulations, 
as determined by the DoD Component head or designee. Such disclosures 
are not official releases to the public under the FOIA.
    (2) The DoD Components will inform officials receiving records in 
accordance with the provisions of this paragraph that those records are 
exempt from public release pursuant to the FOIA. The DoD Components 
also will advise officials of any special handling instructions. 
Classified information is subject to the provisions of Volumes 2 and 3 
of DoD Manual 5200.01. Information contained in a Privacy Act system of 
records is subject to 32 CFR part 310.

Sec.  286.28  Processing procedures.

    (a) Receipt and control. When it receives a FOIA request, a FOIA 
Requester Service Center must open a file in a formal control system 
designed for accountability and compliance with the FOIA. The control 
system should include the data elements needed to compile the 
statistics required in the Annual FOIA Report and other reports 
required by another authority. Each request is assigned a unique 
tracking number which is included in all correspondence with the 
requester.
    (b) Prompt action on FOIA requests. (1) When unusual or exceptional 
circumstances prevent a FOIA Requester Service Centers from making a 
final response determination within the statutory time period, it will 
advise the FOIA requester in writing and provide the FOIA requester an 
opportunity to narrow the scope of the FOIA request or arrange for an 
alternative timeframe. FOIA Requesters Service Centers will, as a 
matter of good practice, be available to assist requesters in the 
formulating of requests.
    (i) Unusual circumstances are:
    (A) The responsive documents are located at a facility 
geographically separated from the FOIA Requester Service Center 
processing the FOIA request.
    (B) The responsive documents are voluminous.
    (C) One or more other agencies or DoD Components have a substantial 
interest in either the determination or the subject matter of the FOIA 
request, requiring the FOIA Requester Service Center processing the 
FOIA request to consult with the other agencies or DoD Components.
    (ii) Exceptional circumstances are not affirmatively defined in the 
FOIA; however, a predictable agency workload of requests may be 
considered an exceptional circumstance if the DoD Component can 
demonstrate reasonable progress in reducing its backlog of pending 
requests.
    (2) DoD Components receiving a misdirected FOIA request for records 
originating with another DoD Component will refer the FOIA request to 
the correct DoD Component and inform the receiving DoD Component of the 
date the FOIA request was originally received. Additionally, it will 
advise the FOIA requester of this transfer. This routing requirement 
only applies to those FOIA requests directed to a DoD Component that 
seek documents for which the DoD is responsible. If responsibility for 
the requested records rests with a non-DoD agency (e.g., Department of 
State), then the DoD Component need only advise the FOIA requester to 
submit the FOIA request to the proper agency. Misdirected FOIA requests 
will not be transferred to a law enforcement or Intelligence Community 
agency or DoD Component. Instead, the FOIA Requester Service Center 
receiving the request will contact the for guidance if there is reason 
to believe that the law enforcement or Intelligence Community agency or 
DoD Component would have responsive records.
    (3) DoD Components will provide interim responses when they are 
unable to make a final determination within 20 working days and are 
encouraged to further communicate with the FOIA requester before the 
final response, if appropriate. These communications may include 
acknowledging receipt of the FOIA request and negotiating with the FOIA 
requester concerning the scope of the FOIA request, the response 
timeframe, and fee agreement. However, such communications do not 
constitute a final response determination. The initial interim response 
will include as a minimum:
    (i) The date the 20-day statutory time period started for the FOIA 
request.
    (ii) The tracking number for the FOIA request.
    (iii) Contact information on how the FOIA requester can obtain 
information about the processing of the FOIA request.
    (4) The statutory time period to make a release determination on a 
FOIA request usually begins on the date when the FOIA Requester Service 
Center responsible for the requested records receives the FOIA request. 
However, if the FOIA request was originally misdirected to another FOIA 
Requester Service Center within the same Component, the statutory time 
period begins on the day the appropriate DoD Component FOIA Requester 
Service Center receives the FOIA request, or 10 working days after it 
was received by the FOIA Requester Service Center

[[Page 52512]]

originally receiving the FOIA request, whichever date is earlier. When 
a FOIA request is sent directly to a DoD Component office not 
designated to receive FOIA requests, the statutory time period does not 
begin until it is received by a FOIA Requester Service Center.
    (5) The 20-working-day statutory period for responding to a FOIA 
request begins only when a perfected FOIA request (see Sec.  286.3) is 
received. After this time, a DoD Component FOIA Requester Service 
Center may toll the statutory time period for only two reasons. In both 
situations, the FOIA requester's response to the agency's request ends 
the tolling period.
    (i) The time period may be tolled one time when the FOIA Requester 
Service Center goes back to the FOIA requester and reasonably asks for 
additional information (not connected to the assessment of fees).
    (ii) The time period may be tolled if it is necessary for the FOIA 
Requester Service Center to clarify issues regarding fee assessment 
with the FOIA requester. There is no limit given for the number of 
times an agency may go back to a FOIA requester to clarify fee 
assessment issues, which sometimes may need to be done in stages as the 
records are located and processed.
    (c) Estimated completion date. When a FOIA Requester Service Center 
receives an inquiry regarding the status of a request, it will provide 
the requester an estimated date when the FOIA request is expected to be 
completed.
    (d) Multi-track processing. (1) FOIA Requester Service Centers will 
establish a minimum of three processing tracks, all based on a first-in 
and first-out concept and with FOIA requests ranked by date of receipt. 
One track is for simple FOIA requests, one for complex FOIA requests, 
and one for expedited FOIA requests. Additional tracks may be 
established by FOIA Requester Service Centers. Each FOIA Requester 
Service Center determines which processing track a FOIA request is 
placed. FOIA requesters whose FOIA requests do not qualify for the 
simple processing track should be given an opportunity to limit the 
scope of the FOIA request in writing in order to qualify for it.
    (2) FOIA Requester Service Centers will place received referrals 
and consultations in processing tracks based on the date that the FOIA 
request was received by the agency that received the initial FOIA 
request. Separate processing queues dedicated only to consultations may 
be established FOIA Requester Service Centers.
    (e) Expedited processing. Section (a)(6)(E) of the FOIA establishes 
two circumstances that merit expedited processing of FOIA requests: 
Compelling need and other cases determined by the agency. The same 
criteria apply to FOIA requests for expedited processing of 
administrative appeals. The DoD Components must make expedited 
processing determinations within 10 calendar days after receipt of the 
FOIA request. Once the DoD Component decides to grant expedited 
processing, the FOIA request is processed as soon as practicable. 
Actions by the DoD Components to initially deny or affirm the initial 
denial on appeal of a FOIA request for expedited processing, and 
failure to respond in a timely manner, are subject to judicial review.
    (1) Compelling need. Expedited processing is granted to a FOIA 
requester upon a specific request for such and demonstrations of a 
compelling need (see Sec.  286.3) for the information.
    (i) It is the responsibility of the FOIA requester to demonstrate 
that the requested information is urgently needed.
    (ii) The requester must include with the request a demonstration of 
a compelling need that the FOIA requester must certify as true and 
correct to the best of the FOIA requester's knowledge and belief.
    (2) Imminent loss of due process rights. Expedited processing is 
granted to a FOIA requester if loss of substantial due process rights 
is imminent. A demonstration of imminent loss of substantial due 
process rights by the FOIA requester includes a description of the due 
process rights that would be lost and a statement certified to be true 
and correct to the best of the FOIA requester's knowledge. This 
statement must be with the FOIA request for it to be considered and 
responded to within the 10 calendar days required for decisions on 
expedited access. If the DoD Component decides to expedite the FOIA 
request for this reason, it may be processed in the expedited track 
behind those requests qualifying for compelling need.
    (3) Humanitarian need. Expedited processing is granted when the 
failure to obtain the requested information on an expedited basis could 
reasonably be expected to harm substantial humanitarian interests.
    (f) Responsive documents originated by a non-government source--(1) 
Commercial or financial information. The provisions of E.O. 12600 apply 
when a FOIA request is received for a record that arguably contains 
information exempt from release pursuant to Exemption 4 of the FOIA as 
set out in Sec.  286.25(d). A government contract is an example of this 
type of record.
    (i) The submitter of the confidential commercial information must 
be notified promptly of a FOIA request for this information and 
afforded reasonable time to present any objections concerning release. 
If the submitter does not respond by the specified time, he or she will 
be considered to have no objection to the disclosure of the 
information. The submitter notice letter should include, as an 
attachment, a copy of the requested information. If notification of a 
voluminous number of submitters is required, such notification may be 
done by posting or publishing the notice in a place that would 
reasonably fulfill the notification requirement.
    (ii) If the submitter objects to disclosure, he or she must submit 
a detailed written statement that specifies all grounds for withholding 
any portion of the information pursuant to Exemption 4 of the FOIA as 
set out in Sec.  286.25(d). This statement must show why the 
information is a trade secret or commercial or financial information 
that is privileged or confidential (i.e., release would cause 
substantial competitive harm). Submitter objections are evaluated by 
the DoD Component and the final decision to disclose information 
claimed to be exempt pursuant to Exemption 4 will be made by an 
appropriate official.
    (iii) When a substantial issue has been raised by the submitter, 
the DoD Component may seek additional information and afford the 
submitter a reasonable opportunity to present arguments on the legal 
and substantive issues involved prior to making an agency 
determination.
    (iv) If a DoD Component decides to disclose commercial business 
information over the objection of a submitter, the Component must 
provide the submitter written notice, which includes:
    (A) A statement of the reasons why each of the submitter's 
disclosure objections were not sustained;
    (B) A copy of the information to be disclosed;
    (C) A specified disclosure date, which must be a reasonable time 
after the notice.
    (v) The FOIA requester is notified when:
    (A) The DoD Component notifies the submitter of the FOIA request 
and asks for comments.
    (B) The DoD Component advises the submitter that the requested 
information will be released over the submitter's objections.

[[Page 52513]]

    (vi) The submitter is notified immediately if the FOIA requester 
brings suit seeking to compel disclosure of the submitter's 
information.
    (vii) If the submitted information is a proposal provided in 
response to a solicitation for a competitive proposal, and the proposal 
is in DoD possession and control and meets the requirements of 10 
U.S.C. 2305(g), the proposal will not be disclosed, and no submitter 
notification or analysis are required. The proposal must be withheld 
from public disclosure pursuant to 10 U.S.C. 2305(g) and Exemption 3 of 
the FOIA as set out in Sec.  286.25(c). This statute does not apply to 
bids, unsolicited proposals, or any proposal that is set forth or 
incorporated by reference in a contract between the DoD Component and 
the submitter of the proposal. In these situations, paragraphs 
(f)(1)(i) through (vi) of this section are followed except for sealed 
bids that are opened and read to the public.
    (viii) If the record or information was submitted on a strictly 
voluntary basis, absent any exercised authority that prescribes 
criteria for submission, and the record or information would 
customarily not be released to the public, the submitter need not be 
notified. The DoD Component withholds this information pursuant to 
Exemption 4 of the FOIA as set out in Sec.  286.25(d).
    (ix) In anticipation of future FOIA requests, the DoD Components 
may establish procedures whereby submitters are asked to provide their 
written comments on the releasability of the submitted information at 
the time the information is submitted. However, this procedure does not 
alleviate the DoD Components of the responsibility of evaluating the 
submitter's response before the information is released or denied 
pursuant to the FOIA.
    (2) Foreign government or international organization information. 
The coordination provisions of this paragraph (f)(2) apply to the 
release of responsive information received from foreign governments or 
international organizations, such as the North Atlantic Treaty 
Organization, United Nations Commands, the North American Aerospace 
Defense Command (NORAD), the Inter-American Defense Board, or the 
International Committee of the Red Cross.
    (i) DoD Components should coordinate directly with their foreign 
government counterparts when processing foreign government information 
responsive to a FOIA request. Coordination also may be made through the 
Department of State or the specific foreign embassy.
    (ii) The Office of Freedom of Information (OFOI), which is also the 
OSD/Joint Staff FOIA Requester Service Center, has a coordination 
channel with the United Kingdom Ministry of Defence (UK MOD). (See the 
Appendix A to this part for the OSD/Joint Staff FOIA Requester Service 
Center address.) When a DoD Component locates UK MOD-originated 
information responsive to a FOIA request and it is unable to coordinate 
with a UK MOD counterpart it may forward the information to OFOI for 
consultation, which will coordinate with the UK MOD for release. The UK 
MOD release recommendation will be forwarded by OFOI back to the DoD 
Component for direct response to the FOIA requester.
    (iii) When the DoD Components locate NORAD documents in their files 
responsive to a FOIA request, they will refer the documents to the 
United States Northern Command FOIA Requester Service Center, which 
will consult with NORAD.
    (iv) Coordination with most international organizations may be made 
directly with those organizations.
    (v) When a foreign government or international organization asks 
the Department of Defense to withhold classified information originated 
by that foreign government or international organization, it is 
withheld pursuant to Exemption 1 of the FOIA as set out in Sec.  
286.25(a).
    (vi) If the DoD Component is asked to withhold sensitive 
unclassified information originated by a multinational organization or 
foreign government, then the DoD Component withholds it pursuant to 
Exemption 3 of the FOIA as set out in Sec.  286.25(c) and references 
the relevant statute as 10 U.S.C. 130c. To qualify for withholding, the 
information must meet these limitations.
    (A) If the information came into possession or control of the 
Department of Defense prior to October 30, 2000, and more than 25 years 
prior to receipt of the FOIA request, the DoD Component notifies the 
foreign government or international organization of the request for 
disclosure. The information then qualifies for withholding only if the 
foreign government or international organization requests in writing 
that the information not be disclosed for a specific period of time. 
This date can be extended with a later request by the foreign 
government or international organization.
    (B) If the information came into possession or control of the 
Department of Defense on or after October 30, 2000, the information 
cannot be withheld after the release date specified by the foreign 
government or international organization. When one or more foreign 
governments or international organizations provided the information, 
the latest date specified by any of them will be used. If no release 
date was specified, and the information came into the possession of the 
DoD Component more than 10 years prior to receipt of the FOIA request, 
the procedures set forth in paragraph (f)(2)(vi)(A) of this section 
apply.
    (g) File of initial denials. Copies of all initial denials are 
maintained by each DoD Component in a form suitable for rapid 
retrieval, periodic statistical compilation, and management evaluation. 
Records denied for any of the reasons contained in Sec.  286.25 must be 
maintained for a period of 6 years to meet the statute of limitations 
requirement.
    (h) Processing the receipt of FOIA fees. The Treasurer of the 
United States has established an account for FOIA receipts, Receipt 
Account 3210. When depositing the receipts, the account number must be 
preceded by the appropriate disbursing office 2-digit prefix. This 
account will be used for depositing all FOIA receipts except for those 
of working capital and non-appropriated funded activities. Those 
activities must establish their own procedures for depositing FOIA 
receipts to the applicable fund. All checks or money orders remitting 
FOIA fees should be made payable to the U.S. Treasurer. For more 
information on technical data fees, see Sec.  286.34.
    (i) Creating a record. A record must exist and be in DoD possession 
and control at the time of the search to be subject to this part and 
the FOIA. The DoD Components are not obligated to create, compile, or 
answer questions to satisfy a FOIA request. However, the DoD Components 
may compile a new record when so doing would result in a more useful 
response to the FOIA requester or would be less burdensome to the DoD 
Component than providing existing records. This could be the case when 
a FOIA requester wants, for example, a list of all travel locations for 
a single senior official. Instead of processing the large number travel 
documents, the DoD Component may wish to compile a list of travel 
locations extracted from the documents. Any such compilation should be 
coordinated with and approved by the FOIA requester. The cost of 
creating or compiling such a record may not be charged to the FOIA 
requester unless the fee for creating the record is equal to or less 
than the fee that would be charged for providing the existing record. 
Fee assessments must

[[Page 52514]]

be in accordance with subpart F of this part.
    (j) Electronic records and searches--(1) Significant interference. 
Section (a)(3)(C) of the FOIA allows DoD Components to not conduct a 
search for responsive documents if the search would cause significant 
interference with the operation of the DoD Component's automated 
information system.
    (2) Business as usual approach. A ``business as usual'' approach 
exists when the DoD Component has the capability to process a FOIA 
request for electronic records without a significant expenditure of 
monetary or personnel resources. DoD Components are not required to 
conduct a search that does not meet this business as usual criterion.
    (i) Creating computer programs or purchasing additional hardware to 
extract email that has been archived for emergency retrieval usually 
are not considered business as usual if extensive monetary or personnel 
resources are needed to complete the project.
    (ii) Creating a computer program that produces specific requested 
fields or records contained within a well-defined database structure 
usually is considered business as usual. The time to create this 
program is considered as programmer or operator search time for fee 
assessment purposes and the FOIA requester may be assessed fees in 
accordance with subpart F of this part. However, creating a computer 
program to merge files with disparate data formats and extract specific 
elements from the resultant file is not considered business as usual, 
but a special service.
    (3) Data links. The DoD Components are not required to expend DoD 
funds to establish data links that provide real-time or near-real-time 
data to a FOIA requester.
    (k) CISI and MFOQA data files. IDAs may deny CISI and MFOQA system 
data files from release under Exemption 3 of the FOIA as set out in 
Sec.  286.25(c) after the DA&M has made a written determination that 
the information is exempt.
    (1) When DoD Components have reason to believe that information 
responsive to a FOIA request is CISI or MFOQA system data file 
information, they will submit a package to the DA&M, through DFOIPO, 
recommending exemption of the requested information. The package will 
contain, at a minimum:
    (i) A copy of the initial FOIA request.
    (ii) A copy of the documents in electronic format, with only the 
CISI or MFOQA system data file information marked. Do not indicate 
information that will be denied under any other exemption.
    (iii) Details on how the information recommended for exemption 
meets the threshold of qualifying as CISI or as MFOQA system data file.
    (iv) A thorough explanation of the harm that could reasonably be 
expected to result if the information is released. This explanation 
must be as specific as possible to allow the DA&M to make a fully 
informed determination; however, it should contain only publicly 
releasable information since the DA&M's determination, accompanied by a 
statement of the basis for determination, will be made available on the 
DFOIPO Web site. An explanation could be an attachment from a subject 
matter expert;
    (v) Any documentation of the public interest in the release of the 
information. This could be provided to the DoD Component by the FOIA 
requester or other interested parties supporting the FOIA request.
    (2) Upon receipt of the package, DFOIPO will:
    (i) Review it to determine whether the DoD Component's 
recommendations meet the requirements of the FOIA and the applicable 
Exemption 3 of the FOIA as set out in Sec.  286.25(c) statute(s).
    (ii) Contact the FOIA requester advising him or her that the 
Component is asking the DA&M to exempt information responsive to his or 
her FOIA request. The FOIA requester will be provided with an 
opportunity to provide a statement to the DA&M detailing the public 
interest in the release of the information. The FOIA requester also 
will be advised that this statement will be made available to the 
public (without personally identifying information such as a home 
mailing address) as part of the requirement to make publicly available 
the statement of the basis for the determination.
    (iii) Prepare all documentation for review by selected OSD 
Components and the Office of the General Counsel of the Department of 
Defense (OGC, DoD). The package will be returned to the Component for 
further processing and resubmission should any deficiencies be 
identified.
    (iv) Upon complete review, forward the package to the DA&M for 
determination.
    (3) After the DA&M determination is made, DFOIPO will provide it to 
the DoD Component and post it, along with a statement of the basis for 
determination, on its Web site. The DoD Component will then deny the 
information determined to be exempt by the DA&M by providing a copy of 
the determination to the FOIA requester, advising the FOIA requester of 
the DoD Component's IDA (the DA&M should not be indicated as the IDA), 
and advising the FOIA requester of the right to appeal to the DoD 
Component's appellate authority.

Sec.  286.29  Initial determinations.

    (a) Denials of information. (1) The determination whether to 
withhold information responsive to a FOIA request must be made by an 
IDA. In designating IDAs, the DoD Component will balance the goals of 
centralization of authority to promote uniform decisions, and of 
decentralization to facilitate responding to each FOIA request within 
the time limitations of the FOIA. The IDA will review all withheld 
information to determine whether it meets the criteria for withholding 
pursuant to one or more of the FOIA exemptions. This determination may 
be made upon the recommendation of a review official.
    (2) IDAs and review officials will not use the existence of 
classification markings or distribution limiting statements, such as 
``For Official Use Only'' markings, as justification to withhold 
information. Information so marked must be reviewed after the receipt 
of a FOIA request to determine if a FOIA exemption allows the 
withholding of the information.
    (3) To deny information in a requested record that is in the 
possession and control of the DoD Component, the IDA must determine 
that one or more of the FOIA exemptions justify withholding all or part 
of the record.
    (4) The IDA should consult with PAOs to become familiar with 
subject matter that is considered to be newsworthy, and advise PAOs of 
FOIA requests from news media representatives. The IDA also should 
inform PAOs in advance when they intend to withhold or partially 
withhold a record if it appears the withholding action may be a media 
issue.
    (b) Reasons for denying a FOIA request other than exemptions. The 
following are reasons, other than using one or more exemptions, for 
denying a FOIA request. The DoD Components will track each reason in 
its control system database for ease of retrieval and reporting in the 
Annual FOIA Report.
    (1) Partial or total denial. The record is denied in whole or in 
part in accordance with procedures set forth in the FOIA. A Glomar 
response (see Sec.  286.12(e)) is a total denial.
    (2) No records. A reasonable search of files failed to identify 
responsive records or where no search is

[[Page 52515]]

undertaken because the DoD Component determines that no records 
responsive to the request would be located.
    (3) Referrals. All responsive records have been transferred to 
another DoD Component or federal agency.
    (4) Request withdrawn. The FOIA request is withdrawn by the FOIA 
requester.
    (5) Fee-related reason. The FOIA requester is unwilling to pay fees 
associated with a FOIA request; the FOIA requester is past due in the 
payment of fees from a previous FOIA request; or the FOIA requester 
disagrees with the fee estimate.
    (6) Records not reasonably described. A record has not been 
described with sufficient particularity to enable the DoD Component to 
locate it by conducting a reasonable search.
    (7) Not a proper FOIA request for some other reason. The FOIA 
requester has failed unreasonably to comply with procedural 
requirements, other than fee-related requirements, imposed by this part 
or by DoD Component supplementing regulations. This would include not 
having a return mailing address.
    (8) Not an agency record. The information requested is not a record 
within the meaning of the FOIA and this part.
    (9) Duplicate request. The FOIA request is a duplicate request 
(e.g., a FOIA requester asks for the same information more than once). 
This includes identical requests received from the same requester for 
the same information through different means (e.g., email, facsimile, 
mail, courier) at the same or different times.
    (10) Other. Any other reason why requested records are not provided 
other than those outlined in paragraphs (b)(1) through (9) of this 
section. The reasons the DoD Components will use are:
    (i) Misdirected request.
    (ii) Records publicly available. Records are available on a U.S. 
government Internet Web site (for FOIA requesters with Internet access) 
or at some other government agency (e.g., the Government Printing 
Office or the National Technical Information Service).
    (iii) Litigation. The FOIA request is administratively closed 
because the FOIA requester has filed a complaint in federal court. If 
this is the case, the DoD Component FOIA Requester Service Center 
should consult legal counsel to determine whether they should continue 
processing the FOIA request.
    (iv) Administrative. The FOIA request is closed for any reason not 
covered by this subsection (e.g. the FOIA requester moves and leave no 
forwarding address). The DoD Components should use this reason in very 
few cases.
    (c) Responding to FOIA requesters. All correspondence with FOIA 
requesters must include the FOIA request tracking number.
    (1) When a decision is made to release a record, a copy should be 
made available promptly to the FOIA requester.
    (2) When a FOIA request for a record is denied in whole or in part, 
the official designated to respond will provide the FOIA requester in 
writing an explanation of the substantive basis for denial, including 
specific citation of the statutory exemption applied (e.g., section 
(b)(1) of the FOIA), a brief explanation of the exemption, why it is 
being used to withhold information, and the address where the appeal 
should be mailed. The basis for the determination will be in sufficient 
detail to permit the FOIA requester to make a decision concerning an 
appeal. If the IDA does not sign the response letter, the name and duty 
title of the IDA must be specified in the letter. The official also 
will advise the FOIA requester that any appeal to the adverse 
determination must be postmarked no later than 30 calendar days after 
the date of the initial denial letter.
    (3) The DoD Component will make a reasonable effort to estimate the 
volume of the records denied in their entirety and provide this 
estimate to the FOIA requester, unless providing such an estimate would 
harm an interest protected by a FOIA exemption. This estimate should be 
in number of pages or in some other reasonable form of estimation.
    (4) When a denial is based on a statute qualifying as a FOIA 
Exemption 3 of the FOIA as set out in Sec.  286.25(c) statute, the DoD 
Components must state the particular statute relied upon to deny the 
information along with a short description of the statute.
    (5) When a FOIA requester is assessed fees for processing a FOIA 
request, the FOIA requester's fee category will be specified in the 
final response letter. The DoD Components also will provide the FOIA 
requester with a complete cost breakdown (e.g., 15 pages of office 
reproduction at $0.15 per page; 3 hours of professional level search at 
$56.00 per hour) in the response letter.
    (d) Providing documents to FOIA requesters. This paragraph (d) 
applies when a FOIA requester is provided with documents in which some 
information is withheld.
    (1) Although portions of some records may be denied, the remaining 
reasonably segregable non-exempt portions must be released to the FOIA 
requester. The DoD Components are encouraged to use onscreen electronic 
redaction capabilities when redacting documents. If a DoD Component 
does not have this capability, it must not use black magic markers for 
document redaction because their use does not adequately block the 
exempt information. Acceptable manual methods of redaction include 
black or white tape that completely blocks out the information below it 
or manually cutting the exempt information out of a copy of the 
responsive document. The last step when using a manual redaction method 
is making a photocopy of the final product to verify that all exempt 
information is deleted.
    (2) The amount of deleted information must be indicated on the 
released portion of paper records, or electronic copies of paper 
records, by use of brackets or darkened areas. In no case will 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 will be indicated at the place in 
the record such deletion was made.
    (3) When a DoD Component withholds information within a partially 
releasable document, the exemption pursuant to which a withholding is 
made must be indicated on the document. This marking of the exemption 
will be located within the redacted portion or next to it. Figures 1, 
2, and 3 of this section demonstrate several possible approaches to 
marking documents to specify the exemption being asserted.
    (4) An exception to this requirement to indicate the amount and 
location of redacted information pertains to those instances when 
revealing the amount and location of the redacted information would 
harm an interest protected by the asserted exemption(s). This exception 
includes the situation in which revealing the exemption itself on the 
face of the released-in-part document would harm an interest protected 
by the exemption. In such rare circumstances, the DoD Components need 
not indicate the exemption used on the released document.
BILLING CODE 5001-06-P

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BILLING CODE 5001-06-C
    (e) Commercial delivery services. A commercial delivery service may 
be used if FOIA requester asks for the service to receive the requested 
information in a timelier manner and the FOIA requester pays directly 
for the service.

Sec.  286.30  Referrals and consultations.

    Referral and consultation procedures are based upon the concept 
that the originators of information within a record must make release 
determinations on that information.
    (a) Referrals. (1) DoD Components locating responsive documents 
originating with another DoD Component or agency outside the DoD will 
refer the documents, along with a copy of the FOIA request, to the 
originator for response directly to the FOIA requester. The DoD 
Components referring FOIA requests will include point of contact's 
name, telephone number, and an email address in the cover memorandum.
    (2) If the DoD Component locating the record has an equity interest 
in the document, it will provide an opinion on its releasability with 
the referral. The name and duty title of the IDA responsible for the 
decision to withhold the information will be provided.
    (3) Referrals of records will not be made to non-federal agency 
entities (e.g., a city government). In these cases, the non-federal 
agency entity may be consulted for a release recommendation (e.g., a 
foreign government or international organization (see paragraph Sec.  
286.28 (e)(2)); however, response to the FOIA requester remains the 
responsibility of the DoD Component locating the record.

[[Page 52517]]

    (4) The standard referral procedure is not appropriate where 
disclosure of the identity of the DoD Component or agency to which the 
referral would be made could harm an interest protected by an 
applicable exemption, such as the exemptions that protect personal 
privacy and national security interests. For example, if a non-law 
enforcement DoD Component responding to a request for records on a 
living third party locates within its files records originating with a 
law enforcement agency, and if the existence of that law enforcement 
interest in the third party was not publicly known, then to disclose 
that law enforcement interest could cause an unwarranted invasion of 
the personal privacy of the third party. Similarly, if a DoD Component 
locates material originating with an Intelligence Community agency, and 
the involvement of that agency in the matter is classified, then to 
disclose or give attribution to the involvement of that Intelligence 
Community agency could cause national security harms. In all instances 
when records originating with a law enforcement or Intelligence 
Community agency are located, in order to avoid harm to an interest 
protected by an applicable exemption, the DoD Component locating the 
records should contact the originating DoD component or agency to seek 
its views on the disclosability of the records. The originating DoD 
Component or agency will then direct the DoD Component locating the 
records on the procedures that should be followed. These procedures may 
involve referring the records or conveying the release determination of 
the originating entity without attribution.
    (5) DoD Components will inform FOIA requesters of all referrals 
except in the instances described in Sec.  286.30(a)(3). DoD Components 
receiving referrals will advise FOIA requesters of the date of receipt, 
the tracking number for the FOIA request, and contact information on 
how the FOIA requester can obtain information about the processing of 
the FOIA request.
    (6) An exception to this process is when a DoD Component locates 
responsive records that it created solely for the use of another DoD 
Component or agency, and it has no objections to their release. The 
originating DoD Component will refer the record to the other DoD 
Component or agency for a release determination and direct response to 
the FOIA requester, who will be notified of the referral. An common 
example of this exception is contract audits created by the Defense 
Contract Audit Agency for another DoD Component.
    (b) Consultations. When a DoD Component locates a responsive record 
that it originated and determines that another DoD Component or an 
agency outside the Department of Defense has an interest or equity in 
the record, the DoD Component must consult with the other entity and 
obtain its release recommendation. The consulted entity will provide 
its release recommendation back to the originating DoD Component, which 
will then respond to the FOIA requester. The FOIA requester should not 
be advised of this consultation unless information is withheld by the 
consulted agency. DoD Components seeking a release determination by 
consulting with another agency will keep the FOIA request open until it 
responds to the FOIA requester.
    (c) Processing tracks. The DoD Components that receive referrals or 
consultations must process them in their multi-track processing 
systems, based upon the date of initial receipt of the perfected FOIA 
request by the government.
    (d) White House information. DoD Components locating records 
originating with the National Security Staff (NSS), the White House, or 
the White House Military Office (WHMO), or containing information that 
these agencies would have an equity interest, will forward the records 
to OFOI, which serves as the OSD/Joint Staff FOIA Requester Service 
Center. (See Appendix A to this part for the OSD/Joint Staff FOIA 
Requester Service Center address.) OFOI will coordinate with NSS, the 
White House, or WHMO and return the records to the originating agency 
after coordination for response to the FOIA requester.
    (e) Government Accountability Office (GAO) information. The GAO is 
outside the Executive Branch and not subject to the FOIA. FOIA requests 
for GAO documents within DoD files will be processed pursuant to the 
FOIA. If necessary, the DoD Components will consult with the GAO on the 
releasability of the requested information. The final response will be 
made by the DoD Component.

Sec.  286.31  Appeals.

    (a) General. When an IDA makes an adverse determination, the DoD 
Components must advise the FOIA requester that the decision may be 
appealed in writing to a designated appellate authority. The DoD 
Components will further advise the FOIA requester that copies of the 
initial FOIA request and the denial letter should be submitted with the 
appeal.
    (b) FOIA and Privacy Act appeals. When denials have been made 
pursuant to the Privacy Act and the FOIA, and the denied information is 
in a Privacy Act system of records, appeals will be processed pursuant 
to the Privacy Act and the FOIA. If the denied information is not 
maintained in a Privacy Act system of records, the appeal will be 
processed pursuant to the FOIA.
    (c) Time of receipt. A FOIA appeal has been received by the DoD 
Component when it reaches the office of the appellate authority having 
jurisdiction. Misdirected appeals should be referred to the proper 
appellate authority.
    (d) Time Limits. (1) If the FOIA requester submits an appeal after 
the conclusion of the 30-day time period established by the date of the 
initial denial letter, the appeal may be considered untimely and closed 
for that reason. However, the DoD Components may make exceptions on a 
case-by-case basis. When a FOIA requester is provided several 
incremental determinations for a single FOIA request, the 30-day time 
period for the appeal will not begin until the date of the final 
response.
    (2) Final determinations on appeals should be made within 20 
working days after receipt. When the DoD Component has a significant 
number of appeals preventing a response determination within 20 working 
days, the appeals must be processed in a multi-track system based at a 
minimum on the three processing tracks established for initial FOIA 
requests according to Sec.  286.29.
    (e) Delay in responding to an appeal. If a determination cannot be 
made within 20 working days, the appellate authority or the appellate 
authority's representative will acknowledge to the FOIA requester, in 
writing, the date of receipt of the appeal and the circumstances 
surrounding the delay.
    (f) Response to FOIA requester. (1) When an appellate authority 
makes a final determination to release all or portions of records 
withheld by an IDA, a written response and a copy of the records so 
released will be forwarded promptly to the FOIA requester. If the FOIA 
requester owes outstanding fees from the initial FOIA request, and 
these fees were not appealed, the appellate authority will advise the 
FOIA requester that the appeal will be administratively closed until 
the owed fees are received. The final appellate response will not be 
made until the fees are paid.
    (2) Final denial of an appeal must be made in writing and signed by 
the appellate authority. The response must include:
    (i) The basis for the denial, to include an explanation of the 
applicable statutory exemption or exemptions invoked pursuant to the 
FOIA, and of

[[Page 52518]]

other appeal matters set forth in Sec.  286.19.
    (ii) A determination that the denied information meets the cited 
criteria and rationale of the governing Executive order if the final 
refusal is based in whole or in part on Exemption 1 of the FOIA as set 
out in Sec.  286.25(a).
    (iii) A statement that the information being denied does not 
contain meaningful portions that are reasonably segregable in the case 
of appeals for total denial of records.
    (iv) The FOIA requester's right to judicial review.
    (3) The appeal is closed with the final appellate response.
    (g) Consultation with the Office of the General Counsel (OGC), DoD. 
(1) Final denial of access 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 
OGC, DoD.
    (2) Tentative decisions to deny records that raise new or 
significant legal issues of potential significance to other government 
agencies must be discussed with OGC, DoD.

Sec.  286.32  FOIA litigation.

    (a) General. FOIA requesters may seek an order from a U.S. District 
Court to compel release of information after administrative remedies 
have been exhausted; e.g., when the FOIA requester has filed an 
administrative appeal of an adverse action, or when the DoD Component 
has failed to respond within the time limits prescribed by the FOIA. 
The U.S. Department of Justice, ``Freedom of Information Act Guide'' 
provides more detailed guidance on FOIA litigation.
    (1) If a DoD Component is served a complaint for a FOIA request 
that is still open, the DoD Component will administratively close the 
FOIA request.
    (2) FOIA officers should confer with legal counsel or Department of 
Justice attorneys on whether administrative processing should continue 
and whether it is appropriate to communicate directly with the FOIA 
requester or requester's counsel.
    (b) Non-government source information (commercial and financial 
information withheld pursuant to Exemption 4 of the FOIA as set out in 
Sec.  286.25(d)). A FOIA requester may bring suit in a U.S. District 
Court to compel the release of records obtained from a submitter or 
records based on information obtained from a submitter. The submitter 
must be notified promptly of the court action pursuant to Executive 
Order 12600.
    (c) FOIA litigation notification. DoD Components served directly 
with a complaint is filed in a U.S. District Court pursuant to the FOIA 
will immediately forward copies of the complaint to OGC, DoD and 
DFOIPO.

Subpart F--Fee Schedule

Sec.  286.33  General provisions.

    (a) Application. (1) The fees described in this section apply to 
FOIA requests submitted pursuant to 32 CFR part 285, and conform to the 
Federal Register, Volume 52, pages 10012-10020.
    (2) The fees are not meant to substitute for any other charges 
established by the Department of Defense, such as Volume 11a of DoD 
7000.14-R (available at http://www.defenselink.mil/comptroller/fmr/), 
to recoup direct costs of authorized services provided by the DoD 
Components that are not FOIA related.
    (3) This section does not supersede fees chargeable pursuant to a 
statute specifically providing for setting the level of fees for 
particular types of records, such as the Government Printing Office, 
the National Technical Information Service, or the Defense Logistics 
Information Service. The DoD Components will inform FOIA requesters of 
the steps necessary to obtain records from those sources if they are 
requested.
    (b) Fee assessment. (1) Fees may not be used to discourage FOIA 
requesters. Assessable FOIA fees are limited to standard charges for 
direct search, review (in the case of commercial requesters), and 
duplication.
    (2) Fees are assessed based on the category determined to be 
appropriate for the FOIA requester's status. The fee status of a FOIA 
requester who is an attorney representing a client is determined by the 
fee status of the attorney's client. If the fee status of the client is 
not clear, then the DoD Components should ask the FOIA requester for 
clarification. The attorney does not need to reveal the identity of the 
client, only the client's fee status. If the attorney does not provide 
enough information to determine the fee status, then the DoD Component 
may assign commercial fee status to the FOIA requester.
    (3) FOIA requests should contain a willingness to pay fees 
appropriate to that category. The DoD Components will not require a 
willingness to pay fees if it is determined before processing, based on 
what is requested and the FOIA requester's fee category, that fees will 
not be assessed. In those instances where a FOIA requester asks for a 
fee waiver, in order to facilitate the processing of the request FOIA 
requesters are encouraged to provide a willingness to pay fees in the 
event the fee waiver is denied. This commitment does not impact the 
FOIA requester's right to file an appeal concerning the fee waiver 
denial. The categories are:
    (i) Commercial use. FOIA requesters should indicate a willingness 
to pay all search, review, and duplication costs when the records are 
requested for commercial use. Commercial requesters are not entitled to 
2 hours of free search time and 100 free pages of reproduction.
    (A) In determining whether a FOIA requester properly belongs in 
this category, the DoD Components must determine how a FOIA requester 
will use the documents requested. When a DoD Component has reasonable 
cause to doubt the use of the records sought, or when that use is not 
clear from the FOIA request itself, the Component should seek 
additional clarification from the FOIA requester before assigning the 
FOIA request to a specific category.
    (B) Commercial requesters are not entitled to a waiver or reduction 
of fees based on an assertion that disclosure would be in the public 
interest. However, because use is the exclusive determining criterion, 
it is possible that a commercial enterprise may make a FOIA request 
that is not for commercial use. It is also possible that a non-profit 
organization or a representative of the news media could make a FOIA 
request that is for commercial use (e.g., a magazine publisher asking 
for duty addresses of DoD personnel to solicit them to buy 
subscriptions to the magazine). Such situations must be addressed on a 
case-by-case basis.
    (ii) Educational, noncommercial scientific institution, or news 
media. FOIA requesters should indicate a willingness to pay duplication 
charges in excess of 100 pages if more than 100 pages of records are 
desired.
    (A) Educational institution. Fees are limited to only reasonable 
standard charges for document duplication (excluding charges for the 
first 100 pages) when the FOIA request is made by an educational 
institution whose purpose is scholarly research. Fees are waived or 
reduced in the public interest if the fee waiver criteria are met. A 
FOIA request made by a faculty or staff member or a student of an 
educational institution that serves an individual research goal and not 
a scholarly research goal of the institution would not qualify for this 
fee category. For example, a FOIA request from a student or faculty 
member of a law school for records related to a person that the school 
is also representing in court

[[Page 52519]]

would not qualify as a FOIA request from an educational institution.
    (B) Non-commercial scientific institution. Fees are limited to only 
reasonable standard charges for document duplication (excluding charges 
for the first 100 pages) when the FOIA request is made by a non-
commercial scientific institution whose purpose is scientific research. 
Fees are waived or reduced in the public interest if the fee waiver 
criteria are met.
    (C) Representatives of the news media. Fees are limited to only 
reasonable standard charges for document duplication (excluding charges 
for the first 100 pages). Fees are waived or reduced if the fee waiver 
criteria are met.
    (1) 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 all-inclusive. Moreover, as traditional methods of news delivery 
evolve (e.g., electronic dissemination of newspapers through 
telecommunications services and the Internet), the DoD Components will 
include such alternative media in this category.
    (2) Freelance journalists may be regarded as working for a news 
organization if they can demonstrate a solid basis for expecting 
publication through that organization, even though not actually 
employed by it. A publication contract would be the clearest proof, but 
the DoD Components may also look to the past publication record of a 
FOIA requester in making this determination.
    (3) Representatives of the news media do not include private 
libraries, private repositories of government records, information 
vendors, data brokers, or similar marketers of information, whether to 
industries and businesses or other entities.
    (4) A person or entity that merely disseminates documents received 
pursuant to the FOIA to an audience would not qualify as a 
representative of the news media because, in this case, the person or 
entity is not using editorial skills to turn raw materials into a 
distinct work. Additionally, applying a label such as ``reporter'' to a 
person on staff of an organization that not otherwise meet the 
definition of a representative of the news media does not create media 
status for FOIA purposes.
    (iii) All others. FOIA requesters who do not fit into any of the 
previous categories should indicate a willingness to pay assessable 
search and duplication costs if more than 2 hours of search effort or 
100 pages of records are required. Fees are waived or reduced if the 
fee waiver criteria are met.
    (4) The fee provisions of 32 CFR part 310 apply when FOIA 
requesters ask for information about themselves pursuant to the Privacy 
Act. In these cases, the only assessable processing fees are for 
duplication.
    (5) In order to be as responsive as possible to FOIA requests while 
minimizing unwarranted costs to the taxpayer, the DoD Components will 
analyze each FOIA request to determine the category of the FOIA 
requester. If the DoD Component determination regarding the category of 
the FOIA requester is different than that claimed, the Component must:
    (i) Notify the FOIA requester to provide additional justification 
to warrant the category claimed, and that a search for responsive 
records will not begin until an agreement has been attained relative to 
the category of the FOIA requester and the FOIA requester indicates a 
willingness to pay assessable costs appropriate for the category 
determined by the DoD Component. The statutory time limit will be 
tolled with this notification and will not continue until the DoD 
Component receives a response from the FOIA requester.
    (ii) Absent further category justification from the FOIA requester 
and within a reasonable period of time, render a final category 
determination and notify the FOIA requester of such determination, to 
include administrative appeal rights of the determination.
    (6) The DoD Components must be prepared to provide an estimate of 
assessable fees if desired by the FOIA requester. While it is 
recognized that search situations will vary among the DoD Components 
and that an estimate is often difficult to obtain prior to an actual 
search, FOIA requesters who desire estimates are entitled to such 
before committing to a willingness to pay.
    (i) If determining a fee estimate involves searching for responsive 
documents, the time to conduct the search is considered ``search'' time 
for fee assessment purposes.
    (ii) Should the DoD Components' actual costs exceed the amount of 
the estimate or the amount agreed to by the FOIA requester, the amount 
in excess of the estimate or the requester's agreed amount will not be 
charged without the FOIA requester's agreement.
    (7) The DoD Components usually will not require advance payment of 
any fee (i.e., payment before work is started or continued on a FOIA 
request). The DoD Components may require advance payment if:
    (i) The FOIA requester has a history of failing to pay fees in a 
timely fashion (within 30 days of the billing date) on a previous FOIA 
request; or
    (ii) The DoD Component determines that the fee will exceed $250.
    (8) When the DoD Component estimates that allowable charges for a 
FOIA request may exceed $250, the DoD Component will notify the FOIA 
requester of the likely cost and obtain a satisfactory assurance of 
full payment. The DoD Component may ask for an advance payment of an 
amount up to the full estimated charges for FOIA requesters with no 
history of payment or a history of late payments.
    (9) When a FOIA requester has an outstanding overdue debt with any 
DoD Component or federal agency, the DoD Component may administratively 
close all the FOIA requester's requests after giving notice to the FOIA 
requester. The FOIA requester will be advised that any administratively 
closed requests may be resubmitted once the full amount owed, plus any 
applicable interest, is paid. Interest will be at the rate prescribed 
in 31 U.S.C. 3717 (also known and referred to in this part as the 
``Debt Collection Act of 1982''), and confirmed with the applicable 
finance and accounting offices.
    (10) When the DoD Components dispute a requester's fee category 
assertion, the administrative time limits of the FOIA will begin only 
after the DoD Component has received a confirmation of willingness to 
pay fees and satisfaction as to category determination, or fee payments 
(if appropriate).
    (11) The DoD Components may charge for time spent searching for 
records, even if that search fails to locate records responsive to the 
FOIA request. The DoD Components may also charge search and review time 
(in the case of commercial requesters) even if the records located are 
determined to be exempt from disclosure.
    (12) If the DoD Component estimates that processing charges are 
likely to exceed what the FOIA requester is willing to pay, it will 
notify the FOIA requester of the estimate of fees broken down by 
search, review, and duplication. This notice will offer the FOIA 
requester the opportunity to confer with DoD Component personnel with 
the object of reformulating the FOIA request to meet his or her needs 
at a lower cost. The FOIA request is not perfected until a confirmation 
of willingness to pay all assessable fees is received.

[[Page 52520]]

    (13) The DoD Components may establish a minimum willingness to pay 
fee estimates for commercial requesters seeking contract-related 
documents. Such estimates will be the average of the previous three 
fiscal years of actual fees charged to commercial requesters seeking 
contract-related documents for the DoD Component, and will be revised 
annually. The DoD Components will notify the public of the minimum fee 
estimate by publishing it within its FOIA issuances or on DoD Component 
FOIA Requester Service Center Internet Web sites. FOIA requests from 
commercial requesters seeking contract-related documents not containing 
a willingness to pay fee agreement equal to or greater than the minimum 
estimated amount will not be considered perfected for fee-related 
reasons.
    (14) DoD FOIA Components will track and assess, if appropriate, 
hourly processing fees for human activity involving search, review, and 
other activity, in accordance with the rates in Table 1 of this 
section.

                                      Table 1--FOIA Hourly Processing Fees
----------------------------------------------------------------------------------------------------------------
                     Type                                             Grade                         Hourly rate
----------------------------------------------------------------------------------------------------------------
Administrative................................  E-9 and GS-8 and below..........................             $28
Professional..................................  Contractor/O-1 to O-6/GS-9 to GS-15.............              56
Executive.....................................  O-7 and above and Senior Executive Service......             112
----------------------------------------------------------------------------------------------------------------

    (15) Search fee assessments would include manual and electronic 
searches. Electronic searches, which include any time spent on a 
computer to conduct a search (including electronic files of documents 
and database files) would include:
    (i) Time spent by a person to create a query or program to conduct 
an electronic search, including the extraction of specific fields out 
of a database.
    (ii) Time spent by a person to search servers or hard drives using 
a keyword or other search method.
    (iii) Time spent by a person to review documents located during an 
electronic search to determine if they are responsive.
    (16) A DoD Component will not pass on to FOIA requesters any costs 
of purchasing or maintaining information technology computers if these 
computers are used in the normal operation of the DoD Component.
    (17) The DoD assessable fee for document reproduction is $0.15 per 
page. This fee applies only to paper copies of documents provided to 
FOIA requesters. DoD Components will not assess a document reproduction 
fee when providing electronic copies of responsive documents to FOIA 
requesters unless the creation of the electronic copies requires unique 
security procedures incurring considerable operator time, costing more 
than printing paper copies. In these cases, assessable fees are 
computed by taking the operator time to create the product times the 
rate in Table 1 of this section.
    (18) When the duplication of responsive documents involves 
duplicating audiovisual materials (e.g., creating a digital video disk 
(DVD)), assessable fees are computed by taking the operator time to 
duplicate the product times the rate in Table 1 of this section. 
Audiovisual materials provided to a FOIA requester need not be in 
reproducible format or quality. Since the cost of audiovisual materials 
such as DVDs are small, the DoD Components will not charge for the use 
of this media, except as provided in Table 2 of this section for 
technical data.

         Table 2--FOIA Document Production Fees--Technical Data
------------------------------------------------------------------------
                            Type                                 Cost
------------------------------------------------------------------------
Aerial Photographs, Specifications, Permits, Charts,               $2.50
 Diagrams, Technical Drawings, Blueprints, and Other
 Technical Documents (per page or copy)....................
Engineering Data:..........................................         3.00
                                                                    3.50
    Aperture Cards, per card...............................         1.00
        Silver Duplicate Negative..........................         3.50
        When Keypunched and Verified.......................         3.00
        Diazo Duplicate Negative...........................         1.00
        When Keypunched and Verified.......................         0.65
    35 mm Roll Film, per frame.............................         0.30
    16 mm Roll Film, per frame.............................         0.10
Paper Prints (engineering drawings), each (per square foot)
Paper Reprints of Microfilm Images, each
Other Technical Data Records:
    Paper Copy (standard size paper up to 8 1/2 x 14,               0.15
     photocopier or printer)...............................
    CD/DVD.................................................         5.00
    Microfiche Produced, each..............................         3.50
    Certification and Validation with Seal, each document..        50.00
------------------------------------------------------------------------

    (c) Fee restrictions. (1) No fees may be charged by any DoD 
Component if the total assessable fees are less than or equal to $25.
    (2) When the DoD Components fails to comply with the 20-day 
statutory time limit and no unusual or exceptional circumstances apply, 
they may not assess search and duplication fees for ``all other'' 
requesters or duplications fees for FOIA requests from educational, 
noncommercial scientific institutions or representatives of the news 
media. (See Sec.  286.3 for an explanation of unusual and exceptional 
circumstances.) When the DoD Components determine a FOIA requester must 
still pay all assessable fees because unusual or exceptional

[[Page 52521]]

circumstances exist, the FOIA requester will be advised of this as 
early as possible during the processing of the FOIA request.
    (3) The DoD Components will not charge more than one FOIA requester 
for the search and review of the same documents. When two or more 
requesters ask for the same documents, only the FOIA requester whose 
FOIA request was first received by the DoD Component can be assessed 
for search or review fees. All FOIA requesters can be assessed 
duplication fees. If the first FOIA requester is not assessed search or 
review fees due to fee status, those fees cannot be passed on to any 
later FOIA requesters.
    (4) FOIA requesters receiving the first 2 hours of search and the 
first 100 pages of duplication without charge are entitled to this only 
once per FOIA request.
    (5) When duplication involves the creation of audiovisual material 
or considerable operator time in the creation of CDs, in the case of 
non-commercial requesters the monetary equivalent of the first 100 free 
pages is subtracted from the actual computed cost of duplication (see 
Table 2 of this section). For example, if the total actual duplication 
cost of a DVD is $75, the FOIA requester is charged only the amount 
above $15 (the first 100 free pages times the paper duplication rate of 
$0.15 in Table 2). In this case, that would be $60.
    (d) Fee waivers. (1) Documents will be furnished without charge, or 
at a reduced charge, when the DoD 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 DoD operations or activities and is not primarily in 
the commercial interest of the FOIA requester. Decisions to waive or 
reduce fees that exceed the minimum chargeable fee established in 
paragraph (b)(1) of this section will be made by the DoD Component on a 
case-by-case basis and after a search for responsive records is 
completed, consistent with these 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. The factors identified in 
paragraphs (d)(1)(i)(A) through (D) of this section must be met to some 
degree to warrant waiving or reducing assessable fees in the public 
interest.
    (A) Subject of the FOIA request. The DoD Components should analyze 
whether the subject matter of the FOIA request involves issues that 
will significantly contribute to the public understanding of DoD 
operations or activities.
    (1) FOIA requests for records in DoD possession that 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 DoD operations or activities. 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.
    (2) Similarly, disclosures of records of considerable age may or 
may not bear directly on current DoD activities; however, the age of a 
particular record will not be the sole criterion for denying relative 
significance consistent with this factor. For instance, an informative 
issue concerning current DoD activities may be based on historical 
documentation. FOIA requests of this nature must be closely reviewed 
consistent with the FOIA requester's stated purpose for desiring the 
records and the potential for public understanding of DoD operations 
and activities.
    (B) Informative value of the information to be disclosed. This 
factor requires a close analysis of the substantive contents of a 
record, or portion of the record, to determine whether disclosure is 
meaningful and will inform the public on DoD operations or activities. 
While the subject of a FOIA request may contain information that 
concerns the Department of Defense, it may not always hold great 
potential for contributing to a meaningful understanding of its 
operations or activities. Examples include:
    (1) A heavily redacted record previously released, containing only 
random words, fragmented sentences, or paragraph headings.
    (2) Identical or nearly identical record in the public domain.
    (C) 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 FOIA requester or a small segment of interested persons. The 
identity of the FOIA requester is essential in this situation in order 
to determine whether such FOIA requester has the capability and 
intention to disseminate the information to the public. Mere assertions 
of plans to author a book, research a particular subject, complete 
doctoral dissertation work, or claims of indigence are insufficient 
without demonstrating the capacity to further disclose the information 
in a manner that will be informative to the general public. FOIA 
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) Significance of the contribution to public understanding. In 
applying this factor, the DoD Components must differentiate the 
relative significance or impact of the disclosure against the current 
level of public knowledge or understanding that 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. The DoD Components must 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 FOIA requester. Determining commercial 
interest requires consideration of two basic issues:
    (A) Existence and magnitude of a commercial interest. If the FOIA 
request is determined to be of a commercial interest, the DoD 
Components should address the magnitude of that interest to determine 
if the FOIA 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 requesting records. When it is 
difficult to determine whether the FOIA requester is of a commercial 
nature, the DoD Components may draw inference from the FOIA requester's 
identity and circumstances of the FOIA request.
    (B) Primary interest in disclosure. Once a FOIA requester's 
commercial interest has been determined, the DoD Components should then 
determine if the disclosure would be primarily in that interest. This 
requires a balancing test between the commercial interests of the FOIA 
request against any public benefit to be derived as a result of that 
disclosure.

[[Page 52522]]

    (1) When the public interest is served above and beyond that of the 
FOIA requester's commercial interest, a waiver or reduction of fees 
would be appropriate.
    (2) Conversely, even if a significant public interest exists, and 
the relative commercial interest of the FOIA requester is determined to 
be greater than the public interest, then a waiver or reduction of fees 
would be inappropriate.
    (3) 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, usually 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 be presumed to have an interest primarily of a commercial 
nature.
    (2) The factors and examples used in paragraph (d)(1) of this 
section are not all inclusive. Each fee decision must be considered on 
a case-by-case basis and upon the merits of the information provided in 
each FOIA request. When there is an element of doubt as to whether to 
charge or waive the fee, the DoD Components should rule in favor of the 
FOIA requester.
    (3) The DoD Components will consider these additional circumstances 
where waiver or reduction of fees are most likely to be warranted:
    (i) A record is voluntarily created to prevent 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., $25 to $50).
    (e) Aggregating FOIA requests. When a DoD Component reasonably 
believes that a FOIA requester or, on rare occasions, a group of FOIA 
requesters acting in concert, is attempting to break a FOIA request 
down into a series of requests to avoid the assessment of fees, the DoD 
Component may aggregate any such FOIA requests and charge accordingly. 
Another example would be if a FOIA requester considered ``other'' for 
fee purposes files multiple FOIA requests at the same time, each 
seeking portions of a document or documents, solely in order to avoid 
payment of fees.
    (1) One element to be considered in determining whether this belief 
would be reasonable is the time period when the FOIA requests are made. 
For example, it would be reasonable to presume that multiple FOIA 
requests of this type made within a 30-day period are made to avoid 
fees. For FOIA requests made over a longer period, however, such a 
presumption becomes harder to sustain and the DoD Components must have 
a solid basis for determining that aggregation is warranted in such 
cases.
    (2) Before aggregating FOIA requests from more than one FOIA 
requester, the DoD Components must have a basis to conclude that the 
FOIA requesters are acting in concert and are acting specifically to 
avoid payment of fees.
    (3) The DoD Components will not aggregate multiple FOIA requests on 
unrelated subjects from one FOIA requester.
    (f) Effect of the Debt Collection Act of 1982. The Debt Collection 
Act of 1982 provides for a minimum annual rate of interest to be 
charged on overdue debts owed the U.S. government. The DoD 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 
FOIA requester of the amount owed. The interest rate will be as 
prescribed in Volume 11A of DoD 7000.14-R. The DoD Components should 
verify the current interest rate with their respective finance and 
accounting offices. After one demand letter has been sent and 30 
calendar days have lapsed with no payment, the DoD Components may 
submit the debt to their respective finance and accounting offices for 
collection pursuant to the Debt Collection Act of 1982.
    (g) Computation of fees. The fee schedules in Tables 1 and 2 of 
this section will be used to compute the assessable fees based on the 
time actually spent on the search, review (in the case of commercial 
requesters), and duplication costs associated with processing a given 
FOIA request. Neither time-based nor dollar-based minimum charges for 
search, review, and duplication are authorized. The appropriate fee 
category of the FOIA requester must be determined before computing 
fees. All time computations will be to the nearest 15 minutes.
    (1) The DoD Components will track processing costs for each FOIA 
request on DD Form 2086, ``Record of Freedom of Information (FOI) 
Processing Cost,'' or by using DD Form 2086-2, ``Freedom of Information 
(FOI) Consultation and Request Summary'' (available at http://www.dtic.mil/whs/directives/infomgt/forms/formsprogram.htm).
    (2) DD Form 2086-2 is designed to capture additional data to 
facilitate the production of the Annual FOIA Report. It is best suited 
for FOIA Requester Service Centers without an automated accounting 
system.
    (h) Refunds. When a DoD Component discovers that it has overcharged 
a FOIA requester or that a FOIA requester has overpaid, the DoD 
Component will promptly refund the charge to the FOIA requester by 
reimbursement methods that are agreeable to the FOIA requester and the 
Component.
    (i) Collection of fees. The DoD Components will advise FOIA 
requesters of assessable fees and provide instructions on fee payment 
with the final determination. The DoD Components will coordinate with 
their servicing finance offices to ensure they are employing proper 
collection procedures.
    (j) Other records. Direct search and duplication cost for any 
record not described in paragraph (b) of this section will be computed 
in the manner described for audiovisual documentary material.
    (k) Costs for Special Services. Complying with FOIA requests for 
special services is at the discretion of the DoD Components. Neither 
the FOIA nor its fee structure covers these kinds of services. 
Therefore, the DoD Components may recover the costs of special services 
after a FOIA requester agrees in writing from the FOIA requester to pay 
for any of these services:
    (1) Certifying that records are true copies.
    (2) Sending records by special methods such as express mail.
    (3) Creating a computer program to merge files with disparate data 
formats and extract specific elements from the resultant file.

Sec.  286.34  Fees for technical data.

    (a) Technical data may be graphic or pictorial delineations in 
media, such as drawings or photographs, text in specification or 
related performance or design-type documents, or computer printouts. 
Examples of technical data include research and engineering data, 
engineering drawings, and associated lists, specifications, standards, 
process sheets, manuals, technical reports, catalog item 
identification, and related information and computer software 
documentation.

[[Page 52523]]

    (b) Unless technical data qualifies for withholding from public 
release pursuant to one or more of the FOIA exemptions, it will be 
released to the FOIA requester after all reasonable costs are paid as 
authorized by 10 U.S.C. 2328.
    (1) All reasonable costs are the full costs to the government for 
rendering the service, as reflected on DD Form 2086-1, ``Record of 
Freedom of Information (FOI) Processing Cost for Technical Data'' 
(available at http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd2086-1.pdf).
    (2) The DoD Components will retain the amounts received by such a 
release, and will merge it with and make it available for the same 
purpose and the same time period as the appropriation from which the 
costs were incurred in complying with the FOIA request.
    (3) For personnel rates, see Table 1 of Sec.  286.33.
    (4) For document production fees, see Table 2 of Sec.  286.33.
    (c) The DoD Components will waive the payment of costs required in 
paragraph (b) of this section that are greater than the costs that 
would be required for release of this same information consistent with 
paragraph (b) of this section if:
    (1) The FOIA request is made by a U.S. citizen or a U.S. 
corporation, and such citizen or corporation certifies that the 
technical data requested is required to enable it to submit an offer, 
or to 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 U.S. contractor. However, the DoD 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 FOIA request, which will be 
refunded upon submission of an offer by the citizen or corporation;
    (2) The release of technical data is requested in order to comply 
with the terms of an international agreement; or
    (3) The DoD Component determines, in accordance with paragraph (c) 
of this section that such a waiver is in the interest of the United 
States.

Sec.  286.35  Fees for research data.

    Research data that is obtained by the DoD Component from a grant 
recipient solely in response to a FOIA request may charge the FOIA 
requester a reasonable fee equaling the full incremental cost of 
obtaining the research data. The fee should reflect costs incurred by 
the DoD Component, grant recipient, and sub-recipients. This fee is in 
addition to any fees the DoD Component may assess pursuant to the FOIA.

Subpart G--Education and Training

Sec.  286.36  Purpose.

    The purpose of the DoD FOIA 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. Fulfilling this 
purpose will improve customer service to members of the public and 
improve the public trust in the Department of Defense.

Sec.  286.37  Responsibility.

    Each DoD Component establishes educational and training programs on 
the provisions and requirements of this part. These programs will 
develop a general understanding and appreciation of the DoD FOIA 
Program in all DoD Component personnel. The training programs will 
provide personnel involved in the day-to-day processing of FOIA 
requests with a thorough understanding of the procedures outlined in 
this part.

Sec.  286.38  Scope and principles.

    Each DoD Component designs its FOIA educational and training 
programs to fit the particular requirements of its personnel, dependent 
upon their degree of involvement in implementing this part. These 
programs will reach for two target audiences: those personnel who are 
involved in the day-to-day processing of FOIA requests, and those staff 
personnel who provide search or review staff-support to the DoD 
Component FOIA process. The programs will:
    (a) Familiarize personnel with the requirements of the FOIA and its 
implementation by this part and respective DoD Component issuances.
    (b) Instruct personnel who act in FOIA matters on the provisions of 
this part; advise them of the legal hazards involved and the strict 
prohibition against arbitrary and capricious withholding of 
information.
    (c) Provide procedural and legal guidance and instruction to 
initial denial and appellate authorities concerning the discharge of 
their responsibilities.
    (d) Emphasize that the processing of FOIA requests must be citizen-
centered and results-oriented.
    (e) Advise personnel of the penalties for noncompliance with the 
FOIA.

Sec.  286.39  Implementation.

    To ensure uniformity of interpretation, the DoD Components will 
coordinate their educational and training programs with DFOIPO.

Appendix A to Part 286--DoD FOIA Program Components and Addresses

    (a) General. (1) The DoD does not have a central repository for 
DoD records. FOIA requesters should address FOIA requests to the 
FOIA Requester Service Center of the DoD Component that has custody 
of the record desired. DFOIPO maintains a current list of links to 
FOIA Requester Service Centers at http://www.dod.mil/pubs/foi/dfoipo/. FOIA Requesters Service Centers may assume that FOIA 
requests addressed to their DoD Component are for their component's 
records only, and they have no obligation to refer the FOIA request 
to another DoD Component unless it is clearly a misdirected FOIA 
request (for example, a Navy FOIA Requester Service Center receives 
a FOIA request for an Air Force contract).
    (2) If uncertain as to the ownership of the record, FOIA 
Requesters Service Centers should contact the OSD/JS FOIA Requester 
Service Center at 1-866-574-4970, to seek assistance on its 
ownership. If it still is undetermined, then the FOIA Requester 
Service Center receiving the request will advise the FOIA requester 
that they do not have cognizance over the record, and will 
administratively close the FOIA request.
    (b) DoD Component FOIA Requester Service Center addresses. Each 
of these DoD Component heads will serve as, or appoint, an appellate 
authority in accordance with 32 CFR part 285.
    (1) OSD and the Office of the Chairman of the Joint Chiefs of 
Staff and Joint Staff. (i) Address all requests to: OSD/Joint Staff 
FOIA Requester Service Center, Office of Freedom of Information, 
1155 Defense Pentagon, Washington, DC 20301-1155.
    (ii) The OSD/Joint Staff FOIA Requester Service Center processes 
FOIA requests for offices, agencies, and activities not listed in 
this Appendix. Table 1 of this appendix lists other organizations, 
activities, or offices serviced by the OSD/Joint Staff FOIA 
Requester Service Center.

  Table 1--Additional Organizations, Activities, or Offices Serviced by
            the OSD/Joint Staff FOIA Requester Service Center
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Criminal Investigation Task Force
Defense Acquisition University
Defense Advanced Research Projects Agency
Defense Equal Opportunity Management Institute
Defense Legal Services Agency
Defense Microelectronics Activity
Defense Media Activity
Defense Prisoner of War/Missing Persons Office
Defense Security Cooperation Agency
Defense Technology Security Administration
Defense Travel Management Office
DoD Human Resources Activity
DoD Test Resources Management Center
Joint Improvised Explosive Device Defeat Organization
Missile Defense Agency

[[Page 52524]]

 
National Defense University
Office of Economic Adjustment
Pentagon Force Protection Agency
Uniform Services University of the Health Sciences
Washington Headquarters Services
White House Military Office
------------------------------------------------------------------------

    (2) Department of the Army. For records from the Headquarters, 
U.S. Army, or if there is uncertainty as to which Army activity may 
have the records, address FOIA requests to: Department of the Army, 
Freedom of Information Act Office, ATTN: AAHS-RDF, 7701 Telegraph 
Road, Suite 144, Alexandria, VA 22315-3905.
    (3) Department of the Navy. Address FOIA requests to the 
Commanding Officer of any Navy or U.S. Marine Corps (USMC) activity. 
Clearly indicate that the request is a FOIA request.
    (i) For Secretary of the Navy and Chief of Naval Operations, or 
if there is uncertainty as to which Navy activity may have the 
records, send FOIA requests to: Department of the Navy, Chief of 
Naval Operations (DNS-36), 2000 Navy Pentagon, Washington, DC 20350-
2000.
    (ii) For Headquarters, USMC Department/Division records, or if 
there is uncertainty as to which USMC unit may have the records, 
send FOIA requests to: Commandant of the Marine Corps, 3000 Marine 
Corps Pentagon, Washington, DC 20380-0001.
    (4) Department of the Air Force. Address FOIA requests to the 
Commander of any Air Force installation, major command, or field 
operating agency to the attention of the FOIA Requester Service 
Center. For records of the Headquarters, U.S. Air Force, or if there 
is uncertainty as to which Air Force activity may have the records, 
send FOIA requests to: Department of the Air Force, ATTN: SAF/AAII 
(FOIA), 1000 Air Force Pentagon, Washington, DC 20330-1000.
    (5) Defense Commissary Agency. Address all FOIA requests to: 
Defense Commissary Agency, FOIA/Privacy Act Officer, 1300 E. Avenue, 
Fort Lee, VA 23801-1800.
    (6) Defense Contract Audit Agency (DCAA). Address FOIA requests 
to any DCAA regional office or to DCAA Headquarters. For records 
from Headquarters, DCAA, or if there is uncertainty as to which DCAA 
region may have the records, send FOIA requests to: Defense Contract 
Audit Agency, ATTN: CMR, FOIA Requester Service Center, 8725 John J. 
Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
    (7) Defense Contract Management Agency (DCMA). Address FOIA 
requests to: Defense Contract Management Agency, Building 10500, 
3901 A Avenue, Fort Lee, VA 23801.
    (8) Defense Finance and Accounting Service (DFAS). Address FOIA 
requests to any DFAS regional office or to Headquarters, DFAS. For 
records from Headquarters, DFAS, or if there is uncertainty as to 
which DFAS region may have the records, address FOIA requests to: 
Defense Finance and Accounting Service, FOIA/PA Program Manager, 
Corporate Communications, DFAS-HKC/IN, 8899 E. 56th Street, 
Indianapolis, IN 46249-0150.
    (9) Defense Health Agency. Address requests to: Defense Health 
Agency FOIA Requester Service Center, 7700 Arlington Boulevard, 
Suite 5101, Falls Church, VA 22042-5101
    (10) Defense Information Systems Agency (DISA). DISA records may 
be requested from any DISA field activity or from its headquarters. 
For records from Headquarters, DISA, or if there is uncertainty as 
to which DISA field activity may have the records, address FOIA 
requests to: Defense Information Systems Agency, ATTN: Headquarters 
FOIA Requester Service Center, P.O. Box 459, Fort George G. Meade, 
MD 20755.
    (11) Defense Intelligence Agency. Address FOIA requests to: 
Defense Intelligence Agency, ATTN: DIAC, DAN-1A (FOIA), Building 
6000, Washington, DC 20340-5100.
    (12) Defense Logistics Agency (DLA). DLA records may be 
requested from its headquarters or from any of its field activities. 
For records from Headquarters, DLA, or if there is uncertainty as to 
which DLA field activity may have the records, address FOIA requests 
to: Defense Logistics Agency, FOIA Desk Officer, ATTN: DG/FOIA & 
Privacy Act Team, 8725 John J. Kingman Road, Suite 1644, Ft. 
Belvoir, VA 22060-6221.
    (13) Defense Security Service. Address FOIA requests to: Defense 
Security Service, Office of FOIA and Privacy, 27130 Telegraph Road, 
Quantico, VA 22134.
    (14) Defense Threat Reduction Agency. Address FOIA requests to: 
Defense Threat Reduction Agency, DIR-COSMI-F FOI/Privacy Office, 
8725 John J. Kingman Road, Fort Belvoir, VA 22060-6201.
    (15) National Geospatial-Intelligence Agency. Address FOIA 
requests to: National Geospatial-Intelligence Agency, FOIA Requester 
Service Center, 7500 GEOINT Drive, MS S71-OGCA, Springfield, VA 
22150-7500.
    (16) National Reconnaissance Office. Address FOIA requests to: 
National Reconnaissance Office, Information Review and Release 
Group, ATTN: FOIA Officer, 14675 Lee Road, Chantilly, VA 20151-1715.
    (17) National Security Agency/Central Security Service. Address 
FOIA requests to: National Security Agency/Central Security Service, 
FOIA/PA Services, DJ4, 9800 Savage Road, Suite 6248, Fort George G. 
Meade, MD 20755-6248.
    (18) Office of the Inspector General of the Department of 
Defense. Address FOIA requests to: Inspector General of the 
Department of Defense, FOIA Requester Service Center/Privacy Act 
Office, 4800 Mark Center Drive, Suite 17F18, Alexandria, VA 22350-
1500.
    (c) DoD Field Activity and Combatant Command addresses. The FOIA 
Requester Service Centers listed in this paragraph (c) respond 
directly to the public on initial FOIA requests; however, the 
appellate authority is the DA&M. Accordingly, initial FOIA requests 
should be sent to the addresses indicated.
    (1) Chairman, Armed Services Board of Contract Appeals. Address 
FOIA requests to: Chairman, Armed Services Board of Contract 
Appeals, Skyline Six Room 703, 5109 Leesburg Pike, Falls Church, VA 
22041-3208.
    (2) Defense Technical Information Center. Address FOIA requests 
to: Defense Technical Information Center, ATTN: FOIA Program 
Manager, 8725 John J. Kingman Road, Suite 0944, Fort Belvoir, VA 
22062-6218.
    (3) DoD Education Activity. Address FOIA requests to: DoD 
Education Activity, Freedom of Information Act Officer, 4800 Mark 
Center Drive, Alexandria, VA 22350-1400.
    (4) Joint Personnel Recovery Agency. Address requests to: Joint 
Personnel Recovery Agency, ATTN: FOIA Requestor Service Center, 
10244 Burbeck Road, Building 358, Fort Belvoir, VA 22060-5805.
    (5) National Guard Bureau. Address FOIA requests to: National 
Guard Bureau, Attn: NGB-JA (FOIA), 1411 Jefferson Davis Highway, 
Suite 11300, Arlington, VA 22202-3231.
    (6) United States Africa Command. Address FOIA requests to: 
United States Africa Command, ATTN: FOIA Requester Service Center, 
Unit 29951, APO AE 09751-9951.
    (7) United States Central Command. Address FOIA requests to: 
United States Central Command, CCJ6-RD (FOIA), 7115 South Boundary 
Boulevard, MacDill Air Force Base, FL 33621-5101.
    (8) United States European Command. Address FOIA requests to: 
United States European Command, FOIA Requester Service Center, Unit 
30400 Box 1000, APO AE 09131.
    (9) United States Northern Command. Address FOIA requests to: 
United States Northern Command, FOIA Requester Service Center, 250 
Vandenberg Street, Suite B016, Peterson Air Force Base, CO 80914-
3804.
    (10) United States Pacific Command. Address FOIA requests to: 
United States Pacific Command, FOIA Requester Service Center, ATTN: 
J0211, Box 64028, Camp H. M. Smith, HI 96861-4028.
    (11) United States Southern Command. Address FOIA requests to: 
HQ USSOUTHCOM, Attn: SCJ224 (FOIA), 9301 NW 33d Street, Doral, FL 
33172.
    (12) United States Special Operations Command. Address FOIA 
requests to: United States Special Operations Command, SOCS-SJS-I/
FOIA Requester Service Center, 7701 Tampa Point Blvd., MacDill Air 
Force Base, FL 33621-5323.
    (13) United States Strategic Command. Address FOIA requests to: 
United States Strategic Command, Attn: J006 (FOIA), 901 SAC Blvd., 
Suite 1A6, Offutt Air Force Base, NE 68113-6000.
    (14) United States Transportation Command. Address FOIA requests 
to: United States Transportation Command, Attn: TCJA-FO, 508 Scott 
Drive, Building 1961, Scott Air Force Base, IL 62225.

    Dated: July 18, 2014.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 2014-19747 Filed 9-2-14; 8:45 am]
BILLING CODE 5001-06-P
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