[Federal Register Volume 73, Number 197 (Thursday, October 9, 2008)]
[Proposed Rules]
[Pages 59579-59582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23998]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 288

[DoD-2008-OS-0059; RIN 0790-AI29]


Office of the Secretary of Defense and Joint Staff Freedom of 
Information Act Program

AGENCY: Department of Defense.

ACTION: Proposed rule.

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SUMMARY: This part establishes Office of the Secretary of Defense (OSD) 
policy, assigns responsibilities, and prescribes procedures for the 
effective administration of the Freedom of Information Act (FOIA) 
Program in OSD and the Joint Staff. This part supplements and 
implements part 286 of 32 CFR, the DoD Freedom of Information Act 
Regulation.

DATES: Comments must be received by December 8, 2008.

ADDRESSES: You may submit comments, identified by docket number and/or 
RIN number and title, by any of the following methods:
    <bullet> Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Dave Henshall, 703-696-3243.

SUPPLEMENTARY INFORMATION: 

[[Page 59580]]

Executive Order 12866, ``Regulatory Planning and Review''

    It has been certified that 32 CFR part 288 does not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribunal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order 12866, as amended by Executive Order 13422.

Sec. 202, Pub. L. 104-4, ``Unfunded Mandates Reform Act''

    It has been certified that 32 CFR part 288 does not contain a 
Federal mandate that may result in the expenditure by State, local and 
tribunal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

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

    It has been certified that 32 CFR part 288 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 OSD and JS components.

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

    It has been certified that 32 CFR part 288 does not impose 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995.

Executive Order 13132, ``Federalism''

    It has been certified that 32 CFR part 288 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    1. The States;
    2. The relationship between the National Government and the States; 
or
    3. The distribution of power and responsibilities among the various 
levels of Government.

List of Subjects in 32 CFR Part 288

    Freedom of information.

    Accordingly, title 32 of the Code of Federal Regulations, Chapter 
I, Subchapter N is proposed to be amended by adding part 288 as 
follows:

PART 285--OFFICE OF THE SECRETARY OF DEFENSE AND JOINT STAFF 
FREEDOM OF INFORMATION ACT (FOIA) PROGRAM

Sec
288.1 Purpose.
288.2 Applicability.
288.3 Definitions.
288.4 Policy.
288.5 Responsibilities.
288.6 Procedures.
288.7 Information requirements.

Appendix to Part 288--DoD Agencies and Field Activities, And Other 
Defense Organizations Served by the Freedom of Information Division

     Authority: 5 U.S.C. 552.


Sec.  288.1  Purpose.

    This part establishes Office of the Secretary of Defense (OSD) 
policy, assigns responsibilities, and prescribes procedures for the 
effective administration of the Freedom of Information Act (FOIA) 
Program in OSD and the Joint Staff (JS). This part supplements and 
implements part 286 of 32 CFR, the DoD Freedom of Information Act 
Regulation.


Sec.  288.2  Applicability.

    This part applies to OSD, the Office of the Chairman of the Joint 
Chiefs of Staff and the Joint Staff, and the Defense Agencies and DoD 
Field Activities listed in the appendix to this part. They will 
hereafter be referred to collectively as the ``OSD and JS Components.''


Sec.  288.3  Definitions.

    Appeal. A request by a member of the general public, made under the 
FOIA, asking the appellate authority to reverse an initial denial 
authority (IDA) decision to withhold all or part of a requester record 
or to deny a request for a fee waiver, reduction of fees, or expedited 
processing, or any other adverse determination.
    Consultation. The process whereby a DoD Component transfers a FOIA 
responsive document to another Component, Federal agency, or non-U.S. 
government entity to obtain recommendations on the releasability of the 
document. After review, the document is returned to the original 
Component for response to the requester or further review.
    FOIA request. A written request for records, made by a person, 
including a member of the public (U.S. or foreign citizen), an 
organization, or a business, but not including a Federal agency or a 
fugitive from the law, that either explicitly or implicitly invokes the 
FOIA. A request must reasonably describe the records sought and be 
submitted in compliance with this part 286 of 32 CFR.
    IDA. An individual granted the authority to make initial 
determinations as to the releasability of records to the public.
    Privacy Act request. A written request from a U.S. citizen or alien 
lawfully admitted for permanent residence seeking records on himself or 
herself that are contained within a Privacy Act system of records.
    Referral. The process whereby a DoD Component transfers a request 
to another DoD Component or Federal agency for one of two reasons. 1. 
The DoD Component that receives the request determines that responsive 
records are with another DoD Component or Federal agency, and therefore 
transfers that request to the other DoD Component or agency for 
processing and direct response to the requester. 2. The DoD Component 
that receives the request locates documents that originated with 
another DoD Component or Federal agency. In this case, the request and 
documents are transferred to the originating DoD Component or Federal 
agency for response directly to the requester. This also applies to the 
situation where a responsive document is transferred to a higher-level 
authority for response to the requester.


Sec.  288.4  Policy.

    It is OSD policy that OSD and JS Components shall promote the 
public trust by making the maximum amount of information available to 
the public on the operation and activities of the Department of 
Defense, consistent with the Department's responsibility to protect 
national security and other sensitive DoD information.


Sec.  288.5  Responsibilities.

    (a) The Chief, Freedom of Information Division (FOID), Executive 
Services Directorate, Washington Headquarters Services (WHS), shall 
organize, direct, and manage the Office of Freedom of Information 
(OFOI), the Defense Freedom of Information Policy Office (DFOIPO), and 
the OSD/JS Privacy Office, and ensure their mutually supported 
functions are integrated to promote maximum efficiency.
    (b) Additionally, the Chief, FOID, shall:
    (1) Direct and administer the DoD FOIA Program within the OSD and 
JS Components.

[[Page 59581]]

    (2) Execute policies and establish procedures to ensure compliance 
with 32 CFR parts 285 and 286.
    (3) Maintain the OSD/JS FOIA Requester Service Center (RSC).
    (4) Serve as the central point of contact (POC) within the OSD and 
JS Components for the receipt of all FOIA initial requests for records 
of the OSD Components.
    (5) Forward FOIA and Privacy Act requests for records from the 
public to the OSD Components having possession, control, and/or 
equities in the requested record.
    (6) Respond to FOIA and Privacy Act requesters concerning OSD/JS 
records.
    (7) Maintain a document management system of FOIA and Privacy Act 
requests.
    (8) Conduct educational training for the OSD Components on the 
requirements and implementation of the FOIA, 5 U.S.C. 552, in 
accordance with 32 CFR part 286.
    (9) Administer the OSD/JS FOIA RSC Web Site. This includes OSD and 
JS compliance with 5 U.S.C. 552(a)(2).
    (10) Receive processing fees for deposit in the U.S. Treasury FOIA.
    (11) Serve concurrently as Chief, DFOIPO, and shall:
    (i) Receive, process, and review all FOIA appeals for the OSD and 
JS Components and the Combatant Commands and make recommendations to 
the appellate authority for final adjudication of these FOIA appeals.
    (ii) Provide FOIA litigation support to the Office of the General 
Counsel, Department of Defense.
    (c) The General Counsel, WHS, shall provide assistance and advice 
to the Pentagon Force Protection Agency (PFPA) and WHS components in 
the processing of initial denials of requested PFPA and WHS records.
    (d) The General Counsel, Department of Defense, shall:
    (1) Provide assistance and advice to the OSD Components in the 
processing of initial denials of requested records.
    (2) Coordinate with the Department of Justice on all final appeals 
for requested records when litigation is likely.
    (3) Through the Office of Legislative Counsel, provide assistance 
and advice to OFOI in the processing and final review of Secretary and 
Deputy Secretary-level records.
    (e) The Heads of OSD and JS Components shall:
    (1) Process FOIA requests received from the OFOI in accordance with 
this part and 32 CFR part 286.
    (2) Serve as the IDA, who is authorized to make initial 
determinations on initial requests for records under 5 U.S.C. 552. This 
responsibility may be delegated to a representative authorized to deny 
information on their behalf.
    (3) Designate an office and an individual(s) as the POC for FOIA 
matters. Provide written notice to OFOI of delegated IDAs and POCs, 
including notice of changes.
    (4) Coordinate with legal counsel as necessary on proposed denials 
of records.
    (5) Provide OFOI with a brief statement of the reasons for the 
denial, including the identification of any exemptions applied.
    (6) Alert OFOI when the issues raised by a FOIA request are of 
unusual significance, precedent setting, or otherwise require special 
guidance from OFOI.
    (7) Forward all FOIA requests that are received directly from the 
requester (known as ``out-of-channels requests'') to OFOI for entry 
into the FOIA case tracking system.
    (8) Establish procedures to mark record copies and to notify 
holders of classified records that have been downgraded, declassified, 
or reclassified as a result of a review under 5 U.S.C. 552.
    (9) Provide instructions to employees who administer FOIA matters 
under this part and 32 CFR parts 285 and 286.
    (10) Include a ``FOIA'' link on Component Web sites to the OSD/JS 
FOIA RSC (http://www.dod.mil/pubs/foi/) to assist requesters in 
properly directing their FOIA requests to the correct office for 
processing.


Sec.  288.6  Procedures.

    (a) General. A request to the OSD/JS RSC for access to information 
under the provisions of 32 CFR part 286 may be denied upon the 
determination that:
    (1) The requested information is exempt under 5 U.S.C. 552.
    (2) The requester has failed to comply with the procedural 
requirements imposed by 32 CFR parts 285 and 286.
    (b) Processing FOIA Requests Within The OSD and JS Components. (1) 
The OFOI receives two types of FOIA requests: Direct requests from a 
member of the public asking for access to DoD, OSD, or JS information; 
and referrals or consultations from other DoD and non-DoD agencies that 
contain OSD or JS documents or other agency documents with OSD or JS 
equities. In each case, OFOI shall forward the FOIA request (and 
responsive documents if a referral or consultation) to the OSD or JS 
Component having responsibility for the requested information. Any FOIA 
request received by an OSD or JS Component out of channels from a 
source other than OFOI shall be directed to OFOI without delay for 
formal entry into the case tracking system. The OSD or JS Component 
should commence work on the request, pending its return from the OFOI.
    (2) FOIA requests shall be sent by OFOI to the OSD or JS Component 
having responsibility for the information, along with SD Form 466, 
``Freedom of Information Action (Cover Sheet);'' SD Form 472, ``Request 
Information Sheet;'' and DD Form 2086, ``Record of Freedom of 
Information (FOI) Processing Cost.'' The SD Form 472 and the DD Form 
2086 shall be completed and returned to OFOI when processing is 
complete along with the documents located as a result of the search. 
OSD or JS Components shall forward information denied in total or in 
part to OFOI at the initial request stage. The OSD and JS Components 
shall conduct document searches at the Federal Records Center, 
Suitland, Maryland, if the documents have been retired to that center. 
Documents that have been transferred to the National Archives and 
Records Administration (NARA) are considered the property of NARA and 
are not subject to OSD and JS Component searches.
    (3) If an OSD or JS Component believes that a FOIA request is 
forwarded to them by OFOI for processing in error the OSD or JS 
Component's IDA will explain on the SD Form 472 why the OSD or JS 
Component is not the appropriate office and identify the specific 
component or other agency of the Government that is likely to have 
responsibility for the information.
    (4) OFOI shall assign a suspense date to each request tasked to the 
OSD and JS Components by which the receiving component must respond to 
OFOI. Requests for extensions shall be made to OFOI at least 3 working 
days before the suspense date. Extensions of time shall be made by OFOI 
and granted on a case-by-case basis depending on whether the reasons 
provided qualify as ``unusual circumstances'' as defined by the FOIA.
    (5) When a request requires a search by an OSD or JS Component and 
the requested record is released in full or denied in its entirety, one 
copy of the requested record, a completed SD Form 472, and DD Form 2086 
shall be delivered to OFOI. If the located record is denied in part, 
two copies of the requested record shall be delivered to OFOI. One copy 
will indicate the denied information with red pencil brackets, and the 
other copy will be ``clean,'' with no brackets. Those Components using 
electronic redaction software may indicate denied information by 
electronic brackets or

[[Page 59582]]

highlights. OFOI will redact the document electronically and prepare it 
for release to the requester.
    (6) If OFOI provides the OSD or JS Component with a document for 
review that was located by another agency, the Component will return 
the document tasked for review back to OFOI with its release 
recommendations. The OSD or JS Component will indicate any exempt 
information with red pencil brackets or electronically.
    (7) The FOIA, 5 U.S.C. 552(b) requires the release of segregable 
information not otherwise exempt. At a minimum, review for 
segregability shall be at the paragraph level. If OFOI determines that 
the information is not properly segregated, it will be returned to the 
OSD or JS Component for further review.
    (8) Completed copies of the SD Form 472 and DD Form 2086 shall be 
returned with the packet. When a denial is based on a security 
classification according to the criteria outlined in DoD 5200.1-R,\1\ 
the component's decision rationale shall indicate that a current review 
of the record supports continued classification. The explanation shall 
also contain the specific rationale from Executive Order 12958 that 
supports the decision for continued classification of the requested 
record. All denials of information require the signature of the IDA on 
the SD Form 472.
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    \1\ Available at http://www.dtic.mil/whs/directives/corres/pdf/520001r.pdf.
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    (9) A classified document containing unclassified information may 
not be denied in total under Exemption 1, 5 U.S.C. 552(b)(1), unless 
the unclassified information, when taken in aggregate, would reveal 
classified information. This determination must be made in accordance 
with section 1.7 of Executive Order 12958. Denial of unclassified 
information not meeting that standard may only be accomplished by 
exerting one or more of Exemptions 2 through 9 of 5 U.S.C. 552.
    (10) All documents, regardless of classification, that are 
responsive to a FOIA request must be provided to OFOI for processing. 
This includes Confidential, Secret, Top Secret, and Sensitive 
Compartmented Information records. OSD and JS Components may contact 
the OFOI Security Manager to verify OFOI's clearance level for access 
to classified information.
    (11) When an OSD and JS Component cannot locate a requested record 
and a ``no record'' determination is made, the explanation on the SD 
Form 472 shall so state and be signed by the IDA. Complete copies of 
the SD Form 472 and DD Form 2086 shall be returned with the packet.
    (c) Processing FOIA Appeals Within the OSD and JS Components. (1) 
When an appeal involves documents denied by an OSD or JS Component IDA, 
DFOIPO shall review the entire case file of the initial action to 
determine if the information was properly denied in accordance with 32 
CFR part 286 and 5 U.S.C. 552. If the initial action is deemed proper, 
then DFOIPO will recommend to the appellate authority that the initial 
action be upheld. When DFOIPO determines that the initial denial should 
not be upheld on appeal, it shall make a new release recommendation to 
the OSD or JS Component and return the denied information to OSD or JS 
Component for its reconsideration. Documents will be processed and 
returned to OFOI in accordance with the processing procedures outlined 
in paragraph (b) of this section.
    (2) When an appeal involves an initial ``no record'' response, 
DFOIPO shall review the entire case file to determine if the initial 
search was adequate. If DFOIPO determines that the administrative 
record cannot support the adequacy of the initial search, the OSD or JS 
Component shall be tasked to provide more detailed accounting of the 
initial search, conduct a new search, or both. If it is determined that 
the initial administrative record shows that the initial search was 
adequate, DFOIPO will advise the appellate authority to uphold the 
original determination.
    (3) If the appeal concerns an administrative decision made by 
DFOIPO such as denial of expedited processing, fee waiver, or a fee 
category determination, DFOIPO shall review the original case file, 
along with additional documentary evidence presented by the requester, 
and make a recommendation to the appellate authority for final 
adjudication.
    (4) When the final determination by DFOIPO involves a full grant, 
the Chief, FOID or designee shall notify the requester of that 
determination.


Sec.  288.7  Information requirements.

    The DoD Annual FOIA Report is assigned Report Control Symbol DD-
DA&M(A) 1365 in accordance with the requirements of DoD 8910.1-M.\2\
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    \2\ Available at http://www.dtic.mil/whs/directives/corres/pdf/891001m.pdf.
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Appendix to Part 288--DoD Agencies and Field Activities, and Other 
Defense Organizations Served by the Freedom of Information Division

American Forces Information Service
Armed Forces Radiology Research Institute
Defense Acquisition University
Defense Advanced Research Projects Agency
Defense Business Transformation Agency
Defense Equal Opportunity Management Institute
Defense Legal Services Agency
Defense Media Activity
Defense Microelectronics Activity
Defense Modeling and Simulation Office
Defense Prisoner of War/Missing Persons Office
Defense Security Cooperation Agency
Defense Systems Management College
Defense Technology Security Administration
DoD Counterintelligence Field Activity
DoD Human Resources Activity
Joint Professional Military Education Colleges
Missile Defense Agency
National Defense University
Pentagon Force Protection Agency (PFPA)
Uniformed Services University of the Health Sciences
Washington Headquarters Services (WHS)
White House Military Office

    September 30, 2008.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.

 [FR Doc. E8-23998 Filed 10-8-08; 8:45 am]
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