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 ofFreedom ofInformation Act (FOIA) Exemption Determinations Pursuant to 10 USC 

### §I30e and 10 USC 

### § 2254a

On 

### May 2, 2012, the Deputy Secretary ofDefense 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 §2254apermits 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 ofthe 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 allowthe DA&M to make a fully informed determination. An explanation could be an attachment signed by a subject matter expert. All explanations and statements ofbasis for determination should be considered publicly releasable as they will be made available on the Defense Freedom ofInformation Policy Office (DFOIPO) website.

• Any documentation ofthe public interest in the release ofthe information. This could be provided to the Component bythe FOIA requester orother 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 requesteradvising 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 statementto 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 ofthe requirement to make publicly available the statement ofthe basis for the determination.

• Prepare all documentation for review by selected OSD Components and the 000 Office ofGeneral 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 ofInformation Act (FOIA) Program. My point ofcontact for this action is Jim Hogan, 571-243-0462, ordfoipo@whs.mil.

Mic ael L. Rhodes Director

Attachment: As stated 

### 2DEPUTY SECRETARY OF DEFENSE 1010 DEFENSE PENTAGON WASHINGTON, DC 20301·1010



## MAY 

## 02 2012

MEMORANDUM FOR SECRETARIES OFTHE MILITARYDEPARTMENTS CHAIRMAN OFTHEJOINTCHIEFS OF STAFF UNDERSECRETARIES OFDEFENSE DEPUTY CHIEF MANAGEMENT OFFICER**CO~ERSOFTHECOMBATANTCO~S** 

### DIRECTOR, COSTASSESSMENTAND PROGRAM EVALUAnON DIRECTOR, OPERAnONALTESTAND EVALUATION GENERAL COUNSELOFTHE DEPARTMENTOFDEFENSE INSPECTORGENERAL OFTHE DEPARTMENTOF DEFENSE ASSISTANT SECRETARIES OF DEFENSE DEPARTMENTOFDEFENSE CHIEF INFORMATION OFFICER ASSISTANTS TO THE SECRETARY OF DEFENSE DIRECTOR, ADMINISTRATION AND MANAGEMENT DIRECTOR, NETASSESSMENT DIRECTORS OFTHE DEFENSEAGENCIES DIRECTORS OFTHE DOD FIELD ACTIVITIES
SUBJECT: DelegationofAuthority to Exempt InformationUnderthe Freedom ofInformation Act (FOIA)
The authority to exempt informationunderthe FOIA (section 552 oftitle 5, U.S.C.)
pursuantto sections 130e and 2254a

### oftitle 10, United States Code, is delegated to the Directorof
Administration and Management (DA&M). This delegationofauthority shall be incorporated in


### the chartering Directive forDA&M, DoD Directive5105.53.

OSD0021 BO-12