AOMINISTRATlON AND

MANAGEMENT

OFFICE OF THE SECRETARY OF DEFENSE

1950 DEFENSE PENTAGON

WASHINGTON, DC 20301·1950

AUG 32012

MEMORANDUM FOR SECRETARIES OF THE MILITARY DEPARTMENTS

CHAIRMAN OF THE JOINT CHIEFS OF STAFF

UNDER SECRETARIES OF DEFENSE

DEPUTY CHIEF MANAGEMENT OFFICER

COMMANDERS OF THE COMBATANT COMMANDS

CHIEF OF THE NATIONAL GUARD BUREAU

DlRECTOR, COST ASSESSMENT AND PROGRAM EVALUATION

DIRECTOR, OPERATIONAL TEST AND EVALUATION

GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE

INSPECTOR GENERAL OF THE DEPARTMENT OF DEFENSE

ASSISTANT SECRETARIES OF DEFENSE

DEPARTMENT OF DEFENSE CHIEF INFORMAnON OFFICER

ASSISTANTS TO THE SECRETARY OF DEFENSE

DIRECTOR, NET ASSESSMENT

DlRECTORS OF THE DEFENSE AGENCIES

DIRECTORS OF THE DoD FIELD ACTIVITIES

SUBJECT: Processing of Freedom of Information Act (FOIA) Exemption Determinations

Pursuant to 10 USC §I30e and 10 USC § 2254a

On May 2, 2012, the Deputy Secretary of Defense delegated to the Director of

Administration and Management (DA&M) the authority to exempt certain Department of

Defense (DoD) information from release under Exemption 3 ofthe FOIA (attached).

Specifically, 10 USC §130e permits the DA&M to exempt critical infrastructure security

information, and 10 USC §2254a permits the DA&M to exempt data files ofthe military flight

operations quality assurance system.

This memorandum provides guidance to DoD Components to request a determination by

the DA&M that information meets the criteria to exempt it from release pursuant to these two

statutes. When DoD Components identify information responsive to a FOIA request and

determine that it qualifies for withholding under either ofthese two statutes, they shall submit a

package to the DA&M reconunending exemption ofthe requested information. The package

must, at a minimum, contain:

• A copy ofthe initial FOIA request.

• A copy ofthe responsive documents. The documents should be in electronic (.pdf)

format with only the information reconunended for exemption under these statutes

clearly marked as such. Do not indicate information that will be denied under any

other exemption.

• Details on how the information reconunended for exemption meets the threshold of

qualifying as critical infrastructure security information or as a data file of the

military flight operations quality assurance system.

I1I111111111111111111111111111111111111111111111111111III

080009634-12
• A thorough explanation ofthe harm that could reasonably result ifthe information is

released. This explanation must be as specific as possible to allow the DA&M to

make a fully informed determination. An explanation could be an attachment signed

by a subject matter expert. All explanations and statements of basis for determination

should be considered publicly releasable as they will be made available on the

Defense Freedom of Information Policy Office (DFOIPO) website.

• Any documentation ofthe public interest in the release ofthe information. This could

be provided to the Component by the FOIA requester or other interested parties

supporting the request.

When the package is ready, the 000 Component will contact DFOLPO at 571-372-0462

or dfoipo@whs.mil for delivery instructions based on package classification. Upon receipt ofthe

package, DFOlPO will:

• Review it to determine ifthe Component's recommendations meet the requirements

ofthe FOIA, the Exemption 3 statutes, and relevant case law.

• Contact the FOIA requester advising himlher that the Component is asking the

DA&M to exempt information responsive to hislher FOlA request. The FOlA

requester will be provided with an opportunity to provide a statement to the DA&M

detailing the public interest in the release ofthe information. The requester also will

be advised that this statement will be made available to the public (minus 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.

• Prepare all documentation for review by selected OSD Components and the 000

Office of General Counsel (OGC). The package will be returned to the Component

for further processing and resubmission should any deficiencies be identified.

• Once the review is complete, forward the package to the DA&M for determination.

Once made, DFOIPO will provide the DA&M's determination to the Component. The

Component will provide a copy ofthis dctermination to the requester with the final response.

The Component shall notify the requester ofthe Component's initial denial authority (IDA) (the

DA&M should not be indicatcd as the IDA) and the requester's right to appeal to the

Component's appellate authority.

To meet the rcquirement for the DA&M to publicly release the exemption determinations

and the statements ofthe basis for the determinations, DFOIPO will post this information on the

DFOIPO website. This guidance is effective immediately and will be incorporated into DoD

5400.07-M, DoD Freedom of Information Act (FOIA) Program. My point of contact for this

action is Jim Hogan, 571-243-0462, or dfoipo@whs.mil.

Mic ael L. Rhodes

Director

Attachment:

As stated

2
DEPUTY SECRETARY OF DEFENSE

1010 DEFENSE PENTAGON

WASHINGTON, DC 20301·1010

MAY 02 2012

MEMORANDUM FOR SECRETARIES OF THE MILITARY DEPARTMENTS

CHAIRMAN OF THE JOINT CHIEFS OF STAFF

UNDER SECRETARIES OF DEFENSE

DEPUTY CHIEF MANAGEMENT OFFICER

CO~ERSOFTHECOMBATANTCO~S

DIRECTOR, COST ASSESSMENT AND PROGRAM EVALUAnON

DIRECTOR, OPERAnONAL TEST AND EVALUATION

GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE

INSPECTOR GENERAL OF THE DEPARTMENT OF DEFENSE

ASSISTANT SECRETARIES OF DEFENSE

DEPARTMENT OF DEFENSE CHIEF INFORMATION OFFICER

ASSISTANTS TO THE SECRETARY OF DEFENSE

DIRECTOR, ADMINISTRATION AND MANAGEMENT

DIRECTOR, NET ASSESSMENT

DIRECTORS OF THE DEFENSE AGENCIES

DIRECTORS OF THE DOD FIELD ACTIVITIES

SUBJECT: Delegation ofAuthority to Exempt Information Under the Freedom of Information

Act (FOIA)

The authority to exempt information under the FOIA (section 552 oftitle 5, U.S.C.)

pursuant to sections 130e and 2254a oftitle 10, United States Code, is delegated to the Director of

Administration and Management (DA&M). This delegation of authority shall be incorporated in

the chartering Directive for DA&M, DoD Directive 5105.53.

OSD0021 BO-12