97-16742. DoD Freedom of Information Act Program Regulation  

  • [Federal Register Volume 62, Number 126 (Tuesday, July 1, 1997)]
    [Rules and Regulations]
    [Pages 35351-35385]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 97-16742]
    
    
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    DEPARTMENT OF DEFENSE
    
    Office of the Secretary
    
    32 CFR Part 286
    
    [DoD 5400.7-R]
    RIN 0790-AG
    
    
    DoD Freedom of Information Act Program Regulation
    
    AGENCY: Department of Defense.
    
    ACTION: Final rule.
    
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    SUMMARY: This revision provides substantive and administrative changes 
    to conform to the requirements of the Electronic Freedom of Information 
    Act Amendments of 1996, 5 U.S.C. 552, as amended by Public Law 104-231. 
    It also provides guidance to the Department of Defense on 
    implementation of this amended law.
    
    EFFECTIVE DATE: May 22, 1997.
    
    FOR FURTHER INFORMATION CONTACT: Mr. C. Talbott, 703-697-1171.
    
    SUPPLEMENTARY INFORMATION: On February 19, 1997 (62 FR 7398), the 
    Department of Defense published a proposed rule for comment. DoD 
    received a response from two commentors. Seven of the comments received 
    were accepted and incorporated into this final rule.
    
    Executive Order 12866, ``Regulatory Planning and Review''
    
        It has been determined that 32 CFR part 286 is not a significant 
    regulatory action. The rule does not:
        (1) Have an annual effect to the economy of $100 million or more or 
    adversely affect in a material way the economy; a section of the 
    economy; productivity; competition; jobs; the environment; public 
    health or safety; or State, local, or tribal governments or 
    communities;
        (2) Create a serious inconsistency or otherwise interfere with an 
    action taken or planned by another Agency;
        (3) Materially alter the budgetary impact of entitlements, grants, 
    user fees, or loan programs, or the rights and obligations of 
    recipients thereof; or
        (4) Raise novel legal or policy issues arising out of legal 
    mandates, the President's priorities, or the principles set forth in 
    this Executive Order.
    
    Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
    
        It has been certified that this rule is not subject to the 
    Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
    promulgated, have a significant economic impact on a substantial number 
    of small entities. This rule implements the Freedom of Information Act 
    (5 U.S.C. 552), a statute concerning the release of Federal Government 
    records, and does not economically impact Federal Government relations 
    with the private sector.
    
    Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 
    35)
    
        It has been certified that this part does not impose any reporting 
    or recordkeeping requirements under the Paperwork Reduction Act of 
    1995.
    
    List of Subjects in 32 CFR Part 286
    
        Freedom of information.
    
        Accordingly, 32 CFR part 286 is revised to read as follows:
    
    PART 286--DOD FREEDOM OF INFORMATION ACT PROGRAM REGULATION
    
    Sec.
    
    Subpart A--General Provisions
    
    286.1  Purpose and applicability.
    286.2  Public information.
    286.3  Definitions.
    286.4  Policy.
    
    Subpart B--FOIA Reading Rooms
    
    286.7  Requirements.
    286.8  Indexes.
    
    Subpart C--Exemptions
    
    286.11  General provisions
    286.12  Exemptions.
    
    Subpart D--For Official Use Only
    
    286.15  General provisions.
    286.16  Markings.
    286.17  Dissemination and transmission.
    286.18  Safeguarding FOUO information.
    286.19  Termination, disposal and unauthorized disclosure.
    
    Subpart E--Release and Processing Procedures
    
    286.22  General provisions.
    286.23  Initial determinations.
    286.24  Appeals.
    286.25  Judicial actions.
    
    Subpart F--Fee Schedule
    
    286.28  General provisions.
    286.29  Collection of fees and fee rates.
    286.30  Collection of fees and fee rates for technical data.
    
    Subpart G--Reports
    
    286.33  Reports control.
    286.34  Annual report content.
    
    Subpart H--Education and Training
    
    286.37  Responsibility and purpose.
    Appendix A to Part 286--Combatant Commands--Processing Procedures 
    for FOIA Appeals
    Appendix B to Part 286--Addressing FOIA Requests
    Appendix C to Part 286--Other Reason Categories
    Appendix D to Part 286--Record of Freedom of Information (FOI) 
    Processing Cost
    Appendix E to Part 286--Record of Freedom of Information (FOI) 
    Processing Cost for Technical Data
    Appendix F to Part 286--Annual Report Freedom of Information Act
    Appendix G to Part 286--DoD Freedom of Information Act Program 
    Components
    
        Authority: 5 U.S.C. 552.
    
    Subpart A--General Provisions
    
    
    Sec. 286.1  Purpose and applicability.
    
        (a) Purpose. This part provides policies and procedures for the DoD 
    implementation of the Freedom of Information Act (5 U.S.C. 552) and DoD 
    Directive 5400.7,\1\ and promotes uniformity in the DoD Freedom of 
    Information Act (FOIA) Program.
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        \1\ Copies may be obtained, at cost, from the National Technical 
    Information Service, 5285 Port Royal Road, Springfield, VA 22121.
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        (b) Applicability. This part applies to the Office of the Secretary 
    of Defense (OSD), the Military Departments, the
    
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    Chairman of the Joint Chiefs of Staff, the Combatant Commands, the 
    Inspector General of the Department of Defense (IG DoD), the Defense 
    Agencies, and the DoD Field Activities (hereafter referred to 
    collectively as ``the DoD Components''). This part takes precedence 
    over all DoD Component publications that supplement and implement the 
    DoD FOIA Program. A list of DoD Components is at appendix G to this 
    part.
    
    
    Sec. 286.2  Public information.
    
        (a) The public has a right to information concerning the activities 
    of its Government. DoD policy is to conduct its activities in an open 
    manner and provide the public with a maximum amount of accurate and 
    timely information concerning its activities, consistent always with 
    the legitimate public and private interests of the American people. A 
    record requested by a member of the public who follows rules 
    established by proper authority in the Department of Defense shall not 
    be withheld in whole or in part unless the record is exempt from 
    mandatory partial or total disclosure under the FOIA. As a matter of 
    policy, DoD Components shall make discretionary disclosures of exempt 
    records or information whenever disclosure would not foreseeably harm 
    an interest protected by a FOIA exemption, but this policy does not 
    create any right enforceable in court. In order that the public may 
    have timely information concerning DoD activities, records requested 
    through public information channels by news media representatives that 
    would not be withheld if requested under the FOIA should be released 
    upon request. Prompt responses to requests for information from news 
    media representatives should be encouraged to eliminate the need for 
    these requesters to invoke the provisions of the FOIA and thereby 
    assist in providing timely information to the public. Similarly, 
    requests from other members of the public for information that would 
    not be withheld under the FOIA should continue to be honored through 
    appropriate means without requiring the requester to invoke the FOIA.
        (b) Within the OSD, the Assistant Secretary of Defense for Command, 
    Control, Communications, and Intelligence, as Chief Information 
    Officer, in conjunction with the Assistant Secretary of Defense for 
    Public Affairs is responsible for ensuring preparation of reference 
    material or a guide for requesting records or information from the 
    Department of Defense, subject to the nine exemptions of the FOIA. This 
    part shall also include an index of all major information systems, and 
    a description of major information and record locator systems, as 
    defined by the Office of the Assistant Secretary of Defense for 
    Command, Control, Communications, and Intelligence. DoD FOIA Components 
    shall coordinate with the appropriate office(s) to insure that this is 
    also accomplished within their department or organization.
        (c) DoD Components shall also prepare, in addition to normal FOIA 
    regulations, a handbook for the use of the public in obtaining 
    information from their organization. This handbook should be a short, 
    simple explanation to the public of what the FOIA is designed to do, 
    and how a member of the public can use it to access government records. 
    Each DoD Component should explain the types of records that can be 
    obtained through FOIA requests, why some records cannot, by law, be 
    made available, and how the DoD Component determines whether the record 
    can be released. The handbook should also explain how to make a FOIA 
    request, how long the requester can expect to wait for a reply, and 
    explain the right of appeal. The handbook should supplement other 
    information locator systems, such as the Government Information Locator 
    Service (GILS), and explain how a requester can obtain more information 
    about those systems. The handbook should be available on paper and 
    through electronic means, and identify how a requester can access DoD 
    Components' Freedom of Information Act Annual Reports. Similarly, the 
    DoD Components' Freedom of Information Act Annual Reports should refer 
    to the handbook and how to obtain it.
        (d) Control system. A request for records that invokes the FOIA 
    shall enter a formal control system designed to ensure accountability 
    and compliance with the FOIA. Any request for DoD records that either 
    explicitly or implicitly cites the FOIA shall be processed under the 
    provisions of this part, unless otherwise required by Sec. 286.4(m).
    
    
    Sec. 286.3  Definitions.
    
        As used in this part, the following terms and meanings shall be 
    applicable.
        Administrative appeal. A request by a member of the general public, 
    made under the FOIA, asking the appellate authority of a DoD Component 
    to reverse a decision to: withhold all or part of a requested record; 
    deny a fee category claim by a requester; deny a request for expedited 
    processing due to demonstrated compelling need under Sec. 286.4(d)(3); 
    deny a request for waiver or reduction of fees; deny a request to 
    review an initial fee estimate; and confirm that no records were 
    located during the initial search.
        Agency record. (1) The products of data compilation, such as all 
    books, papers, maps, and photographs, machine readable materials, 
    inclusive of those in electronic form or format, or other documentary 
    materials, regardless of physical form or characteristics, made or 
    received by an agency of the United States Government under Federal law 
    in connection with the transaction of public business and in Department 
    of Defense possession and control at the time the FOIA request is made. 
    Care should be taken not to exclude records from being considered 
    agency records, unless they fall within one of the categories of 
    paragraph (2) of this definition.
        (2) The following are not included within the definition of the 
    word ``record''.
        (i) Objects or articles, such as structures, furniture, vehicles 
    and equipment, whatever their historical value, or value as evidence.
        (ii) Anything that is not tangible or documentary record, such as 
    an individual's memory or oral communication.
        (iii) Personal records of an individual not subject to agency 
    creation or retention requirements, created and maintained primarily 
    for the convenience of an agency employee, and not distributed to other 
    agency employees for their official use. Personal papers fall into 
    three categories: those created before entering Government service; 
    private materials brought into, created, or received in the office that 
    were not created or received in the course of transacting Government 
    business; and work-related personal papers that are not used in the 
    transaction of Government business (see ``Personal Papers of Executive 
    Branch Officials: A Management Guide,'' National Archives and Records 
    Administration, Office of Records Administration, Washington, DC, 1992 
    \2\).
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        \2\ Available from the Records Administration Center, Agency 
    Services Division (NIA), Washington, DC 20408.
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        (3) A record must exist and be in the possession and control of the 
    Department of Defense at the time of the request to be considered 
    subject to this part and the FOIA. There is no obligation to create, 
    compile, or obtain a record to satisfy a FOIA request. See 
    Sec. 286.4(g)(2) creating a record in the electronic environment.
        (4) Hard copy of electronic records, that are subject to FOIA 
    requests under 5 U.S.C. 552(a)(3), and that are available to the public 
    through an established distribution system, or through the Federal 
    Register, the National Technical Information Service, or the Internet, 
    normally need not be processed under the provisions of the FOIA. If a 
    request is received for such information, DoD
    
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    Components shall provide the requester with guidance, inclusive of any 
    written notice to the public, on how to obtain the information. 
    However, if the requester insists that the request be processed under 
    the FOIA, then the request shall be processed under the FOIA. If there 
    is any doubt as to whether the request must be processed, contact the 
    Directorate for Freedom of Information and Security Review.
        Appellate authority. The Head of the DoD Component or the Component 
    head's designee having jurisdiction for this purpose over the record, 
    or any of the other adverse determinations outlined in the definitions 
    initial denital authority and administrative appeal in this section.
        DoD Component. An element of the Department of Defense, as defined 
    in Sec. 286.2(b), authorized to receive and act independently on FOIA 
    requests. (See Appendix G to this part). A DoD Component has its own 
    initial denial authority (IDA), appellate authority, and legal counsel.
        Electronic record. Records (including e-mail) that are created, 
    stored, and retrievable by electronic means.
        Federal agency. As defined by 5 U.S.C. 552(f)(1), a Federal agency 
    is any executive department, military department, Government 
    corporation, Government controlled corporation, or other establishment 
    in the executive branch of the Government (including the Executive 
    Office of the President), or any independent regulatory agency
        FOIA request. A written request for DoD records, made by any 
    person, including a member of the public (U.S. or foreign citizen), an 
    organization, or a business, but not including a Federal Agency or a 
    fugitive from the law, that either explicitly or implicitly invokes the 
    FOIA, DoD Directive 5400.7, this part, or DoD Component supplementing 
    regulations or instructions. Written requests may be received by postal 
    service or other commercial delivery means, by facsimile, or 
    electronically.
        Initial Denial Authority (IDA). An official who has been granted 
    authority by the head of a DoD component to withhold records requested 
    under the FOIA for one or more of the nine categories of records exempt 
    from mandatory disclosure. IDA's may also deny a fee category claim by 
    a requester; deny a request for expedited processing due to 
    demonstrated compelling need under Sec. 286.4(d)(3), deny a request for 
    a waiver or reduction of fees; review a fee estimate; and confirm that 
    no records were located in response to a request.
        Public interest. The interest in obtaining official information 
    that sheds light on an agency's performance of its statutory duties 
    because the information falls within the statutory purpose of the FOIA 
    to inform citizens about what their Government is doing. That statutory 
    purpose, however, is not fostered by disclosure of information about 
    private citizens accumulated in various governmental files that reveals 
    nothing about an agency's official's own conduct.
    
    
    Sec. 286.4  Policy.
    
        (a) Compliance with the FOIA. DoD personnel are expected to comply 
    with the FOIA, this part, and DoD FOIA policy in both letter and 
    spirit. This strict adherence is necessary to provide uniformity in the 
    implementation of the DoD FOIA Program and to create conditions that 
    will promote public trust.
        (b) Openness with the public. The Department of Dense shall conduct 
    its activities in an open manner consistent with the need for security 
    and adherence to other requirements of law and regulation. Records not 
    exempt from disclosure under the Act shall, upon request, be made 
    readily accessible to the public in accordance with rules promulgated 
    by competent authority, whether or not the Act is invoked.
        (c) Avoidance of procedural obstacles. DoD Components shall ensure 
    that procedural matters do not unnecessarily impede a requester from 
    obtaining DoD records promptly. Components shall provide assistance to 
    requesters to help them understand and comply with procedures 
    established by this part and any supplemental regulations published by 
    the DoD Components.
        (d) Prompt action on requests. (1) Generally, when a member of the 
    public complies with procedures established in this part and DoD 
    Component regulations or instructions for obtaining DoD records, and 
    after the request is received by the official designated to respond, 
    DoD Components shall endeavor to provide a final response determination 
    within the statutory 10 working days (20 working days effective October 
    2, 1997). If a significant number of requests, or the complexity of the 
    requests prevent a final response determination within the statutory 
    time period, DoD Components shall advise the requester of this fact, 
    and explain how the request will be responded to within its multitrack 
    processing system (see paragraph (d)(2) of this section). A final 
    response determination is notification to the requester that the 
    records are released, or will be released on a certain date, or the 
    records are denied under the appropriate FOIA exemption, or the records 
    cannot be provided for one or more of the other reasons in Sec. 286.23. 
    Interim responses acknowledging receipt of the request, negotiations 
    with the requester concerning the scope of the request, the response 
    timeframe, and fee agreements are encouraged; however, such actions do 
    not constitute a final response determination pursuant to the FOIA.
        (2) Multitrack processing. When a Component has a significant 
    number of pending requests that prevents a response determination being 
    made within 10 working days (20 working days effective October 2, 
    1997), the requests shall be processed in a multitrack processing 
    system, based on the date of receipt, the amount of work and time 
    involved in processing the requests, and whether the request qualifies 
    for expedited processing as described in paragraph (d)(3) of this 
    section. DoD Components may establish as many processing queues as they 
    wish; however, as a minimum, three processing tracks shall be 
    established, all based on a first-in, first-out concept, and rank 
    ordered by the date of receipt of the request. One track shall be a 
    processing queue for simple requests, one track for complex requests, 
    and one track shall be a processing queue for expedited processing as 
    described in paragraph (d)(3) of this section. Determinations as to 
    whether a request is simple or complex shall be made by each DoD 
    Component. DoD Components shall provide a requester whose request does 
    not qualify for the fastest queue (except for expedited processing as 
    described in paragraph (d)(3) of this section), an opportunity to limit 
    in writing by hard copy, facsimile, or electronically, the scope of the 
    request in order to qualify for the fastest queue. This multitrack 
    processing system does not obviate components' responsibility to 
    exercise due diligence in processing requests in the most expeditious 
    manner possible.
        (3) Expedited processing. A separate queue shall be established for 
    requests meeting the test for expedited processing. Expedited 
    processing shall be granted to a requester after the requester requests 
    such and demonstrates a compelling need for the information. Notice of 
    the determination as to whether to grant expedited processing in 
    response to a requester's compelling need shall be provided to the 
    requester within 10 calendar days after receipt of the request in the 
    DoD Component's office that will determine whether to grant expedited 
    processing. Once the DoD Component has determined to grant expedited 
    processing, the request shall be processed as soon as practicable.
    
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    Actions by DoD Components to initially deny or affirm the initial 
    denial on appeal of a request for expedited processing, and failure to 
    respond in a timely manner shall be subject to judicial review.
        (i) Compelling need. The failure to obtain the records on an 
    expedited basis could reasonably be expected to pose an imminent threat 
    to the life or physical safety of an individual.
        (ii) Compelling need also means that the information is urgently 
    needed by an individual primarily engaged in disseminating information 
    in order to inform the public concerning actual or alleged Federal 
    Government activity. An individual primarily engaged in disseminating 
    information means a person whose primary activity involves publishing 
    or otherwise disseminating information to the public. Representatives 
    of the news media (see Sec. 286.28(e)(7)(i)) would normally qualify as 
    individuals primarily engaged in disseminating information. Other 
    persons must demonstrate that their primary activity involves 
    publishing or otherwise disseminating information to the public. 
    ``Urgently needed'' information has a particular value that will be 
    lost if not disseminated quickly. Ordinarily this means a breaking news 
    story of general public interest. However, information of historical 
    interest only, or information sought for litigation or commercial 
    activities would not qualify, nor would a news media publication or 
    broadcast deadline unrelated to the news breaking nature of the 
    information.
        (iii) A demonstration of compelling need by a requester shall be 
    made by a statement certified by the requester to be true and correct 
    to the best of their knowledge. This statement must accompany the 
    request in order to be considered and responded to within the 10 
    calendar days required for decisions on expedited access.
        (iv) Other reasons for expedited processing. Other reasons that 
    merit expedited processing by DoD Components are an imminent loss of 
    substantial due process rights and humanitarian need. A demonstration 
    of imminent loss of substantial due process rights shall be made by a 
    statement certified by the requester to be true and correct to the best 
    of his or her knowledge. Humanitarian need means that disclosing the 
    information will promote the welfare and interests of mankind. A 
    demonstration of humanitarian need shall be also made by a statement 
    certified by the requester to be true and correct to the best of his or 
    her knowledge. Both statements mentioned above must accompany the 
    request in order to be considered and responded to within the 10 
    calendar days required for decisions on expedited access. Once the 
    decision has been made to expedite the request for either of these 
    reasons, the request may be processed in the expedited processing queue 
    behind those requests qualifying for compelling need.
        (v) These same procedures also apply to requests for expedited 
    processing of administrative appeals.
        (e) Use of exemptions. It is DoD policy to make records publicly 
    available, unless the record qualifies for exemption under one or more 
    of the nine exemptions. It is DoD policy that DoD Components shall make 
    discretionary releases whenever possible; however, a discretionary 
    release is normally not appropriate for records clearly exempt under 
    exemptions 1, 3, 4, 6, 7(C) and 7(F) (see subpart C of this part). 
    Exemptions 2, 5, and 7(A)(B)(D) and (E) (see subpart C of this part) 
    are discretionary in nature, and DoD Components are encouraged to 
    exercise discretionary releases whenever possible. Exemptions 4, 6 and 
    7(C) cannot be claimed when the requester is the submitter of the 
    information.
        (f) Public domain. Nonexempt records released under the authority 
    of this part are considered to be in the public domain. Such records 
    may also be made available in Components' reading rooms in paper form, 
    as well as electronically, to facilitate public access. Discretionary 
    releases to FOIA requesters constitute a waiver of the FOIA exemptions 
    that may otherwise apply. Disclosure to a properly constituted advisory 
    committee, to Congress, or to other Federal Agencies does not waive the 
    exemption. (See Sec. 286.22(d)). Exempt records disclosed without 
    authorization by the appropriate DoD official do not lose their exempt 
    status. Also, while authority may exist to disclose records to 
    individuals in their official capacity, the provisions of this part 
    apply if the same individual seeks the records in a private or personal 
    capacity.
        (g)  Creating a record. (1) A record must exist and be in the 
    possession and control of Department of Defense at the time of the 
    research to be considered subject to this part and the FOIA. There is 
    no obligation to create, compile, or obtain a record to satisfy a FOIA 
    request. A DoD Component, however, may compile a new record when so 
    doing would result in a more useful response to the requester, or be 
    less burdensome to the agency than providing existing records, and the 
    requester does not object. Cost of creating or compiling such a record 
    may not be charged to the requester unless the fee for creating the 
    record is equal to or less than the fee which would be charged for 
    providing the existing record. Fee assessments shall be in accordance 
    with subpart F of this part.
        (2) About electronic data, the issue of whether records are 
    actually created or merely extracted from an existing database is not 
    always readily apparent. Consequently, when responding to FOIA requests 
    for electronic data where creation of a record, programming, or 
    particular format are questionable, Components should apply a standard 
    of ``reasonableness.'' In other words, if the capability exists to 
    respond to the request, and the effort would be a ``business as usual'' 
    approach, then the request should be processed. However, the request 
    need not be processed where the capability to respond does not exist 
    without a significant expenditure of resources, thus not being a normal 
    ``business as usual'' approach. As used in this sense, a significant 
    expenditure of resources in both time and manpower, that would cause a 
    significant interference with the operation of the Components' 
    automated information system would not be a business as usual approach.
        (h) Description of requested record. (1) Identification of the 
    record desired is the responsibility of the requester. The requester 
    must provide a description of the desired record, that enables the 
    Government to locate the record with a reasonable amount of effort. In 
    order to assist DoD Components in conducting more timely searches, 
    requesters should endeavor to provide as much identifying information 
    as possible. When a DoD Component receives a request that does not 
    reasonably describe the requested record, it shall notify the requester 
    of the defect in writing. The requester should be asked to provide the 
    type of information outlined in paragraph (h)(2) of this section. DoD 
    Components are to obligated to act on the request until the requester 
    responds to the specificity letter. When practicable, DoD Components 
    shall offer assistance to the requester in identifying the records 
    sought and in reformulating the request to reduce the burden on the 
    agency in complying with the Act.
        (2) The following guidelines are provided to deal with generalized 
    requests and are based on the principle of reasonable effort 
    (Descriptive information about a record may be divided into two broad 
    categories.):
        (i) Category I is file-related and includes information such as 
    type of record (for example, memorandum), title, index citation, 
    subject area, date the record was created, and originator.
    
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        (ii) Category II is event-related and includes the circumstances 
    that resulted in the record being created or the date and circumstances 
    surrounding the event the record covers.
        (3) Generally, a record is not reasonably described unless the 
    description contains sufficient Category I information to permit the 
    conduct of an organized, non random search based on the DoD Component's 
    filing arrangements and existing retrieval systems, or unless the 
    record contains sufficient Category II information to permit inference 
    of the Category I elements needed to conduct such a search.
        (4) The following guidelines deal with requests for personal 
    records: Ordinarily, when personal identifiers are provided only in 
    connection with a request of records concerning the requester, only 
    records in a Privacy Act system of records that can be retrieved by 
    personal identifiers need be searched. However, if a DoD Component has 
    reason to believe that records on the requester may exist in a recoded 
    system other than a Privacy Act system, the DoD Component shall search 
    that system under the provisions of the FOIA. In either case, DoD 
    Components may request a reasonable description of teh records desired 
    before searching for such records under the provisions of the FOIA and 
    the Privacy Act. If the record is required to be released under the 
    FOIA, 5 U.S.C. 552a does not bar its disclosure. See paragraph (m) of 
    this section for the relationship between the FOIA and the Privacy Act.
        (5) The precious guidelines notwithstanding, the decision of the 
    DoD Component concerning reasonableness of description must be based on 
    knowledge of its files. If the description enables DoD Component 
    personnel to locate the record with reasonable effort, the description 
    is adequate. The fact that a FOIA request is broad or burdensome in its 
    magnitude does not, in and of itself, entitle a DoD Component to deny 
    the request on the ground that it does not reasonably describe the 
    records sought. The key factor is the ability of the DoD Component's 
    staff to reasonably ascertain and locate which records are being 
    requested.
        (i) Referrals. (1) The DoD FOIA referral policy is based upon the 
    concept of the originator of a record making a release determination on 
    its information. If a DoD Component receives a request for records 
    originated by another DoD Component, it shall contact the DoD Component 
    to determine if it also received the request, and if not, obtain 
    concurrence from the other DoD Component to refer the request. In 
    either situation, the requester shall be advised of the action taken, 
    unless exempt information would be revealed. While referrals to 
    originators of information result in obtaining the best possible 
    decision on release of the information, the policy does not relieve DoD 
    Components from the responsibility of making a release decision on a 
    record should the requester object to referral of the request and the 
    record. Should this situation occur, DoD Components shall still 
    coordinate with the originator of the information prior to making a 
    release determination. A request received by a DoD Component having no 
    records responsive to a request shall be referred routinely to another 
    DoD Component, if the other DoD Component has reason to believe it has 
    the requested record. Prior to notifying a requester of a referral to 
    another DoD Component, the DoD Component receiving the initial request 
    shall consult with the other DoD Component to determine if that DoD 
    Component's association with the material is exempt. If the association 
    is exempt, the DoD Component receiving the initial request will protect 
    the association and any exempt information without revealing the 
    identity of the protected DoD Component. The protected DoD Component 
    shall be responsible for submitting the justifications required in any 
    litigation. Any DoD Component receiving a request that has been 
    misaddressed shall refer the request to the proper address and advise 
    the requester. DoD Components making referrals of requests or records 
    shall include with the referral, a point of contact by name, a 
    telephone number, and an e-mail address.
        (2) A DoD Component shall refer for response directly to the 
    requester, a FOIA request for a record that it holds to another DoD 
    Component or agency outside the DoD, if the record originated in the 
    other DoD Component or outside agency. Whenever a record or a portion 
    of a record is refered to another DoD Component or to a Government 
    Agency outside of the DoD for a release determination and direct 
    response, the requester shall be informed of the referral, unless it 
    has been determined that notification would reveal exempt information. 
    Referred records shall only be identified to the extent consistent with 
    security requirements.
        (3) A DoD Component may refer a request for a record that it 
    originated to another DoD Component or agency when the other DoD 
    Component or agency has a valid interest in the record, or the record 
    was created for the use of the other DoD Component or agency. In such 
    situations, provide the record and a release recommendation on the 
    record with the referral action. An example of such a situation is a 
    request for audit reports prepared by the Defense Contract Audit 
    Agency. These advisory reports are prepared for the use of contracting 
    officers and their release to the audited contractor shall be at the 
    discretion of the contracting officer. A FOIS request shall be referred 
    to the appropriate DoD Component and the requester shall be notified of 
    the referral, unless exempt information would be revealed. Another 
    example is a record originated by a DoD Component or agency that 
    involves foreign relations, and could affect a DoD Component or 
    organization in a host foreign country. Such a request and any 
    responsive records my be referred to the affected DoD Component or 
    organization for consultation prior to a final release determination 
    within the Department of Defense. See also Sec. 286.22(e).
        (4) Within the Department of Defense, a DoD Component shall 
    ordinarily refer a FOIA request and a copy of the record it holds, but 
    that was originated by another DoD Component or that contains 
    substantial information obtained from another DoD Component, to the 
    Component for direct response, after direct coordination and obtaining 
    concurrence from the Component. The requester then shall be notified of 
    such referral. DoD Components shall not, in any case, release or deny 
    such records without prior consultation with the other DoD Component, 
    except as provided in Sec. 286.22(e).
        (5) DoD Components that receive referred requests shall answer them 
    in accordance with the time limits established by the FOIA, this part, 
    and their multitrack processing queues, based upon the date of initial 
    receipt of the request at the referring component or agency.
        (6) Agencies outside the Department of Defense that are subject to 
    the FOIA.
        (i) A DoD Component may refer a FOIA request for any record that 
    originated in an agency outside the Department of Defense or that is 
    based on information obtained from an outside agency to the agency for 
    direct response to the requester after coordination with the outside 
    agency, if that agency is subject to FOIA. Otherwise, the DoD Component 
    must respond to the request.
        (ii) A DoD Component shall refer to the agency that provided the 
    record any FOIA request for investigative, intelligence, or any other 
    type of records that are on loan to the Department of Defense for a 
    specific purpose, if the
    
    [[Page 35356]]
    
    records are restricted from further release and so marked. However, if 
    for investigative or intelligence purposes, the outside agency desires 
    anonymity, a DoD Component may only respond directly to the requester 
    after coordination with the outside agency.
        (7) DoD Components that receive requests for records of the 
    National Security Council (NSC), the White House, or the White House 
    Military Office (WHMO) shall process the requests. DoD records in which 
    the NSC or White House has a concurrent reviewing interest, and NSC, 
    White House, or WHMO records discovered in DoD Components' file shall 
    be forwarded to the Office of the Assistant Secretary of Defense 
    (Public Affairs) (OASD(PA)), Attn: Directorate For Freedom of 
    Information and Security Review (DFOISR). The DFOISR shall coordinate 
    with the NSC, White House, or WHMO and return the records to the 
    originating agency after coordination.
        (8) To the extent referrals are consistent with the policies 
    expressed by this paragraph (i) referrals between offices of the same 
    DoD Component are authorized.
        (9) On occasion, the Department of Defense receives FOIA requests 
    for General Accounting Office (GAO) records containing DoD information. 
    Even though the GAO is outside the Executive Branch, and not subject to 
    the FOIA, all FOIA requests for GAO documents containing DoD 
    information received either from the public, or on referral from the 
    GAO, shall be processed under the provisions of the FOIA.
        (j) Authentication. Records provided under this part shall be 
    authenticated with an appropriate seal, whenever necessary, to fulfill 
    an official Government or other legal function. This service, however, 
    is in addition to that required under the FOIA and is not included in 
    the FOIA fee schedule. DoD Components may charge for the service at a 
    rate of $5.20 for each authentication.
        (k) Combatant Commands. (1) The Combatant Commands are placed under 
    the jurisdiction of the OSD, instead of the administering Military 
    Department or the Chairman of the Joint Chiefs of Staff, only for the 
    purpose of administering the DoD FOIA Program. This policy represents 
    an exception to the policies directed in DoD Directive 5100.3,\3\ it 
    authorizes and requires the Combatant Commands to process FOIA requests 
    in accordance with DoD Directive 5400.7 and this part. The Combatant 
    Commands shall forward directly to the OASD(PA) all correspondence 
    associated with the appeal of an initial denial for records under the 
    provisions of the FOIA. Procedures to effect this administrative 
    requirement are outlined in appendix A to this part.
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        \3\ See footnote 1 to Sec. 286.1(a).
    ---------------------------------------------------------------------------
    
        (2) Combatant Commands shall maintain an electronic reading room 
    for FOIA-processed 5 U.S.C. 552(a)(2)(D) records in accordance with 
    subpart B of this part. Records qualifying for this means of public 
    access also shall be maintained in hard copy for public access at 
    Combatant Commands' respective locations.
        (l) Records management. FOIA records shall be maintained and 
    disposed of in accordance with the National Archives and Records 
    Administration General Records Schedule, and DoD Component records 
    schedules.
        (m) Relationship between the FOIA and the Privacy Act (PA). Not all 
    requesters are knowledgeable of the appropriate statutory authority to 
    cite when requesting records. In some instances, they may cite neither 
    Act, but will imply one or both Acts. For these reasons, the following 
    guidelines are provided to ensure that requesters receive the greatest 
    amount of access rights under both Acts:
        (1) If the record is required to be released under the FOIA, the 
    Privacy Act does not bear its disclosure. Unlike the FOIA, the Privacy 
    Act applies only to U.S. citizens and aliens admitted for permanent 
    residence.
        (2) Requesters who seek records about themselves contained in a 
    Privacy Act system of records and who cite or imply only the Privacy 
    Act, will have their requests processed under the provisions of both 
    the Privacy Act and the FOIA. If the Privacy Act system of records is 
    exempt from the provisions of 5 U.S.C. 552a(d)(1), the requester shall 
    be so advised with the appropriate Privacy Act exemption, and then 
    further advised that the information was therefore reviewed for release 
    under the FOIA.
        (3) Requesters who seek records about themselves that are not 
    contained in a Privacy Act system of records and who cite or imply the 
    Privacy Act will have their requests processed under the provisions of 
    the FOIA, since the Privacy Act does not apply to these records.
        (4) Requesters who seek records about themselves that are contained 
    in a Privacy Act system of records and who cite or imply the FOIA or 
    both Acts will have their requests processed under the provisions of 
    both the Privacy Act and the FOIA. If the Privacy Act system of records 
    is exempt from the provisions of 5 U.S.C. 552a(d)(1) the requester 
    shall be so advised with the appropriate Privacy Act exemption, and 
    then further advised that the information was therefore reviewed for 
    release under the FOIA.
        (5) Requesters who seek access to agency records that are not part 
    of a Privacy Act system of records, who cite or imply the Privacy Act 
    and FOIA, will have their requests processed under the FOIA since the 
    Privacy Act does not apply to these records.
        (6) Requesters who seek access to agency records and who cite or 
    simply the FOIA will have their requests processed under the FOIA.
        (7) Requesters shall be advised in final response which Act was 
    used.
        (n) Non-responsive information in responsive records. DoD 
    Components shall interpret FOIA requests liberally when determining 
    which records are responsive to the requests, and may release non-
    responsive information. However, should DoD Components desire to 
    withhold non-responsive information, the following steps shall be 
    accomplished.
        (1) Consult with the requester, and ask if the requester views the 
    information as responsive, and if not, seek the requester's concurrence 
    to deletion of non-responsive information without a FOIA exemption. 
    Reflect this concurrence in the response letter.
        (2) If the responsive record ``unclassified,'' and the requester 
    does not agree to deletion of non-responsive information without a FOIA 
    exemption, release all non-responsive and responsive information which 
    is not exempt. For non-responsive information that is exempt, notify 
    the requester that even if the information were determined responsive, 
    it would likely be exempt under (state appropriate exemption(s)). 
    Advise the requester of the right to request this information under a 
    separate FOIA request. The separate request shall be placed in the same 
    location within the processing queue as the original request.
        (3) If the responsive record is ``classified,'' and the requester 
    does not agree to deletion of non-responsive information without a FOIA 
    exemption, release all unclassified responsive and non-responsive 
    information which is not exempt. If the non-responsive information is 
    exempt, follow the procedures in paragraph (n)(2) of this section. The 
    classified, non-responsive information need not be reviewed for 
    declassification at this point. Advise the requester than even if the 
    classified information were determined responsive, it would likely be 
    exempt under 5 U.S.C. 552(b)(1), and other
    
    [[Page 35357]]
    
    exemptions if appropriate. Advise the requester of the right to request 
    this information under separate FOIA request. The separate request 
    shall be placed in the same location within the processing queue as the 
    original request.
        (o) Honoring form or format requests. DoD Components shall provide 
    the record in any form or format requested by the requester if the 
    record is readily reproducible in that form or format. DoD Components 
    shall make reasonable efforts to maintain their records in forms or 
    formats that are reproducible. In responsiding to requests for records, 
    DoD Components shall make reasonable efforts to search for records in 
    electronic form or format, except when such efforts would significantly 
    interfere with the operation of the DoD Components' automated 
    information system. Such determinations shall be made on a case by case 
    basis. See also paragraph (g)(2) of this section
    
    Subpart B--FOIA Reading Rooms
    
    
    Sec. 286.7  Requirements.
    
        (a) Reading room. Each DoD Component shall provide an appropriate 
    facility or facilities where the public may inspect and copy or have 
    copied the records described in paragraph (b) of this section and 
    Sec. 286.8(a). In addition to the records described in paragraph (b) of 
    this section and Sec. 286.8(a), DoD Components may elect to place other 
    records in their reading room, and also make them electronically 
    available to the public. DoD Components may share reading room 
    facilities if the public is not unduly inconvenienced, and also may 
    establish decentralized reading rooms. When appropriate, the cost of 
    copying may be imposed on the person requesting the material in 
    accordance with the provisions of subpart F of this part.
        (b) Record availability. The FOIA requires that records described 
    in 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) created on or after 
    November 1, 1996, shall be made available electronically by November 1, 
    1997, as well as in hard copy in the FOIA reading room for inspection 
    and copying, unless such records are published and copies are offered 
    for sale. Personal privacy information, that if disclosed to a third 
    party requester, would result in an invasion of the first party's 
    personal privacy, and contractor submitted information, that if 
    disclosed to a competing contractor, would result in competitive harm 
    to the submitting contractor shall be deleted from all 5 U.S.C. 
    552(a)(2) records made available to the general public. In every case, 
    justification for the deletion must be fully explained in writing, and 
    the extent of such deletion shall be indicated on the record which is 
    made publicly available, unless such indication would harm an interest 
    protected by an exemption under which the deletion was made. If 
    technically feasible, the extent of the deletion in electronic records 
    or any other form of record shall be indicated at the place in the 
    record where the deletion was made. However, a DoD Component may 
    publish in the Federal Register a description of the basis upon which 
    it will delete identifying details of particular types of records to 
    avoid clearly unwarranted invasions of privacy, or competitive harm to 
    business submitters. In appropriate cases, the DoD Component may refer 
    to this description rather than write a separate justification for each 
    deletion. 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) records are:
        (1) (a)(2)(A) records. Final opinions, including concurring and 
    dissenting opinions, and orders made in the adjudication of cases, as 
    defined in 5 U.S.C. 552, that may be cited, used, or relied upon as 
    precedents in future adjudications.
        (2) (a)(2)(B) records. Statements of policy and interpretations 
    that have been adopted by the agency and are not published in the 
    Federal Register.
        (3) (a)(2)(C) records. Administrative staff manuals and 
    instructions, or portions thereof, that establish DoD policy or 
    interpretations of policy that affect a member of the public. This 
    provision does not apply to instructions for employees on tactics and 
    techniques to be used in performing their duties, or to instructions 
    relating only to the internal management of the DoD Component. Examples 
    of manuals and instructions not normally made available are:
        (i) Those issued for audit, investigation, and inspection purposes, 
    or those that prescribe operational tactics, standards of performance, 
    or criteria for defense, prosecution, or settlement of cases.
        (ii) Operations and maintenance manuals and technical information 
    concerning munitions, equipment, systems, and intelligence activities.
        (4) (a)(2)(D) records. Those 5 U.S.C. 552(a)(3) records, which 
    because of the nature of the subject matter, have become or are likely 
    to become the subject of subsequent requests for substantially the same 
    records. These records are referred to as ``FOIA-processed (a)(2) 
    records.''
        (i) DoD Components shall decide on a case by case basis whether 
    records fall into this category, based on the following factors:
        (A) Previous experience of the DoD Component with similar records.
        (B) Particular circumstances of the records involved, including 
    their nature and the type of information contained in them.
        (C) The identity and number of requesters and whether there is 
    widespread press, historic, or commercial interest in the records.
        (ii) This provision is intended for situations where public access 
    in a timely manner is important, and it is not intended to apply where 
    there may be a limited number of requests over a short period of time 
    from a few requesters. DoD Components may remove the records from this 
    access medium when the appropriate officials determine that access is 
    no longer necessary.
        (iii) Should a requester submit a FOIA request for FOIA-processed 
    (a)(2) records, and insist that the request be processed, DoD 
    Components shall process the FOIA request. However, DoD Components have 
    no obligation to process a FOIA request for 5 U.S.C. 552 (a)(2) (A), 
    (B), and (C) records because these records are required to be made 
    public and not FOIA-processed under paragraph (a)(3) of the FOIA.
        (iv) DoD Components have no obligation to provide electronic or 
    hard copy reading room access to any (a)(2) record (inclusive of FOIA-
    processed (a)(2) records) originating outside their respective 
    organizations.
    
    
    Sec. 286.8  Indexes.
    
        (a) ``(a)(2)'' Materials. (1) Each DoD Component shall maintain in 
    each facility prescribed in Sec. 286.7(a), an index of materials 
    described in Sec. 286.7(b), that are issued, adopted, or promulgated, 
    after July 4, 1967. No ``(a)(2)'' materials issued, promulgated, or 
    adopted after July 4, 1967, that are not indexed and either made 
    available or published may be relied upon, used or cited as precedent 
    against any individual unless such individual has actual and-timely 
    notice of the contents of such materials. Such materials issued, 
    promulgated, or adopted before July 4, 1967, need not be indexed, but 
    must be made available upon request if not exempted under this part.
        (2) Each DoD Component shall promptly published quarterly or more 
    frequently, and distribute, by sale or otherwise, copies of each index 
    of ``(a)(2)'' materials or supplements thereto unless it publishes in 
    the Federal Register an order containing a determination that 
    publication is unnecessary and impracticable. A copy
    
    [[Page 35358]]
    
    of each index or supplement not published shall be provided to a 
    requester at a cost not to exceed the direct cost of duplication as set 
    forth in subpart F of this part.
        (3) Each index of ``(a)(2)'' materials or supplement thereto shall 
    be arranged topical or by descriptive words rather than by case name or 
    numbering system so that members of the public can readily locate 
    material. Case name and numbering arrangements, however, may also be 
    included for DoD Components convenience.
        (4) A general index of FOIA-processed (a)(2) records referred to in 
    Sec. 286.7(b)(4), shall be made available to the public, both in hard 
    copy and electronically by December 31, 1999.
        (b) Other materials. (1) Any available index of DoD Component 
    material published in the Federal Register, such as material required 
    to be published by Section 552(a)(1) of the FOIA, shall be made 
    available in DoD Component FOIA reading rooms, and electronically to 
    the public.
        (2) Although not required to be made available in response to FOIA 
    requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials 
    shall, when feasible, be made available to the public in FOIA reading 
    rooms for inspection and copying, and by electronic means. Examples of 
    ``(a)(1)'' materials are: descriptions of any agency's central and 
    field organization, and to the extent they affect the public, rules of 
    procedures, descriptions of forms available, instruction as to the 
    scope and contents of papers, reports, or examinations, and any 
    amendment, revision, or report of the aforementioned.
    
    Subpart C--Exemptions
    
    
    Sec. 286.11  General provisions.
    
        Records that meet the exemption criteria of the FOIA may be 
    withheld from public disclosure and need not be published in the 
    Federal Register, made available in a library reading room, or provided 
    in response to a FOIA request.
    
    
    Sec. 286.12  Exemptions.
    
        FOIA exemptions. The following types of records may be withheld in 
    whole or in part from public disclosure under the FOIA, unless 
    otherwise prescribed by law: (A discretionary release of a record (see 
    also Sec. 286.4(e)) to one requester shall prevent the withholding of 
    the same record under a FOIA exemption if the record is subsequently 
    requested by someone else. However, a FOIA exemption may be invoked to 
    withhold information that is similar or related that has been the 
    subject of a discretionary release. In applying exemptions, the 
    identity of the requester and the purpose for which the record is 
    sought are irrelevant with the exception that an exemption may not be 
    invoked where the particular interest to be protected is the 
    requester's interest.)
        (a) Number 1 (5 U.S.C. 552(b)(1)). Those properly and currently 
    classified in the interest of national defense or foreign policy, as 
    specifically authorized under the criteria established by Executive 
    Order and implemented by regulations, such as DoD 5200.1-R.\4\ Although 
    material is not classified at the time of the FOIA request, a 
    classification review may be undertaken to determine whether the 
    information should be classified. The procedures in DoD 5200.1-R apply. 
    If the information qualifies as exemption 1 information, there is no 
    discretion regarding its release. In addition, this exemption shall be 
    invoked with the following situations are apparent:
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        \4\ See footnote 1 to Sec. 286.1(a).
    ---------------------------------------------------------------------------
    
        (1) The fact if the existence or nonexistence of a record would 
    itself reveal classified information. In this situation, Components 
    shall neither confirm nor deny the existence or nonexistence of the 
    record being requested. A ``refusal to confirm or deny'' response must 
    be used consistently, not only when a record exists, but also when a 
    record does not exist. Otherwise, the pattern of using a ``no record'' 
    response when a record does not exist, and a ``refusal to confirm or 
    deny'' when a record does exist will itself disclose national security 
    information.
        (2) Compilations of items of information that are individually 
    unclassified may be classified it the compiled information reveals 
    additional association or relationship that meets the standard for 
    classification under existing executive order for classification and 
    DoD 5200.1-R, and is not otherwise revealed in the individual items of 
    information.
        (b) Number 2 (5 U.S.C. 552(b)(2)). Those related solely to the 
    internal personnel rules and practice of the Department of Defense or 
    any of its Components. This exemption is entirely discretionary. This 
    exemption has two profiles, high (b)(2) and low (b)(2). Paragraph 
    (b)(2) of this section contains a brief discussion on the low (b)(2) 
    profile; however. that discussion is for information purposes only. 
    When only a minimum Government interest would be affected 
    (administrative burden), there is a great potential for discretionary 
    disclosure of the information. Consequently, DoD Components shall not 
    invoke the low (b)(2) profile.
        (1) Records qualifying under high (b)(2) are those containing or 
    constituting statutes, rules, regulations, orders, manuals, directives, 
    instructions, and security classification guides the release of which 
    would allow circumvention of these records thereby substantially 
    hindering the effective performance of a significant function of the 
    Department of Defense. Examples include:
        (i) Those operating rules, guidelines, and manuals for DoD 
    investigators, inspectors, auditors, or examiners that must remain 
    privileged in order for the DoD Component to fulfill a legal 
    requirement.
        (ii) Personnel and other administrative matters, such as 
    examination questions and answers used in training courses or in the 
    determination of the qualifications of candidates for employment, 
    entrance on duty, advancement, or promotion.
        (iii) Computer software, the release of which would allow 
    circumvention of a statute or DoD rules, regulations, orders, manuals, 
    directives, or instructions. In this situation, the use of the software 
    must be closely examined to ensure a circumvention possibility exists.
        (2) Records qualifying under the low (b)(2) profile are those that 
    are trivial and housekeeping in nature for which there is not 
    legitimate public interest or benefit to be gained by release, and it 
    would constitute an administrative burden to process the request in 
    order to disclose the records. Examples include rules of personnel's 
    use of parking facilities or regulation of lunch hours, statements of 
    policy as to sick leave, and administrative data such as file numbers, 
    mail routing stamps, initials, data processing notations, brief 
    references to previous communications, and other like administrative 
    markings. DoD Components shall not invoke the low (b)(2) profile.
        (c) Number 3 (5 U.S.C. 552 (b)(3)). Those concerning matters that a 
    statute specifically exempts from disclosure by terms that permit no 
    discretion on the issue, or in accordance with criteria established by 
    that statute for withholding or referring to particular types of 
    matters to be withheld. The Directorate for Freedom of information and 
    Security Review, Office of the Assistant Secretary of Defense for 
    Public Affairs maintains a list of (b)(3) statutes used within the 
    Department of Defense, and provides updated lists of these statutes to 
    DoD Components on a periodic basis. A few examples of such statutes 
    are:
    
    [[Page 35359]]
    
        (1) Patent Secrecy, 35 U.S.C. 181-188. Any records containing 
    information relating to inventions that are the subject of patent 
    applications on which Patent Secrecy Orders have been issued.
        (2) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162.
        (3) Communication Intelligence, 18 U.S.C. 798.
        (4) Authority to Withhold From Public Disclosure Certain Technical 
    Data, 10 U.S.C. 130 and DoD Directive 5230.25.\5\
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        \5\ See footnote 1 Sec. 286.1(a).
    ---------------------------------------------------------------------------
    
        (5) Confidentiality of Medical Quality Assurance Records: Qualified 
    Immunity for Participants, 10 U.S.C. 1102f.
        (6) Physical Protection of Special Nuclear Material: Limitation on 
    Dissemination of Unclassified Information, 10 U.S.C. 128.
        (7) Protection of Intelligence Sources and Methods, 50 U.S.C. 403-
    3(c)(5).
        (8) Protection of Contractor Submitted Proposals, 10 U.S.C. 
    2305(g).
        (9) Procurement Integrity, 41 U.S.C. 423.
        (d) Number 4 (5 U.S.C. 552(b)(4)). Those containing trade secrets 
    or commercial or financial information that a DoD Component receives 
    from a person or organization outside the Government with the 
    understanding that the information or record will be retained on a 
    privileged or confidential basis in accordance with the customary 
    handling of such records. Records within the exemption must contain 
    trade secrets, or commercial or financial records, the disclosure of 
    which is likely to cause substantial harm to the competitive position 
    of the source providing the information; impair the Government's 
    ability to obtain necessary information in the future; or impair some 
    other legitimate Government interest. Commercial or financial 
    information submitted on a voluntary basis, absent any exercised 
    authority prescribing criteria for submission is protected without any 
    requirement to show competitive harm (see paragraph (d)(8) of this 
    section). If the information qualifies as exemption 4 information, 
    there is no discretion in its release. Examples include:
        (1) Commercial or financial information received in confidence in 
    connection with loans, bids, contracts, or proposals set forth in or 
    incorporated by reference in a contract entered into between the DoD 
    Component and the offeror that submitted the proposal, as well as other 
    information received in confidence or privileged, such as trade 
    secrets, inventions, discoveries, or other proprietary data. See also 
    Sec. 286.23(h)(2). Additionally, when the provisions of 10 U.S.C. 
    2305(g) and 41 U.S.C. 423 are met, certain proprietary and source 
    selection information may be withheld under exemption 3.
        (2) Statistical data and commercial or financial information 
    concerning contract performance, income, profits, losses, and 
    expenditures, if offered and received in confidence from a contractor 
    or potential contractor.
        (3) Personal statements given in the course of inspections, 
    investigations, or--audits, when such statements are received in 
    confidence from the individual and retained in confidence because they 
    reveal trade secrets or commercial or financial information normally 
    considered confidential or privileged.
        (4) Financial data provided in confidence by private employers in 
    connection with locality wage surveys that are used to fix and adjust 
    pay schedules applicable to the prevailing wage rate of employees 
    within the Department of Defense.
        (5) Scientific and manufacturing processes or developments 
    concerning technical or scientific data or other information submitted 
    with an application for a research grant, or with a report while 
    research is in progress.
        (6) Technical or scientific data developed by a contractor or 
    subcontractor exclusively at private expense, and technical or 
    scientific data developed in part with Federal funds and in part at 
    private expense, wherein the contractor or subcontractor has retained 
    legitimate proprietary interests in such data in accordance with 10 
    U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement 
    (DFARS), Chapter 2 of 48 CFR, subpart 227.71-227.72. Technical data 
    developed exclusively with Federal funds may be withheld under 
    Exemption Number 3 if it meets the criteria of 10 U.S.C. 130 and DoD 
    Directive 5230.25 (see paragraph (c)(5) of this section).
        (7) Computer software which is copyrighted under the Copyright Act 
    of 1976 (17 U.S.C. 106), the disclosure of which would have an adverse 
    impact on the potential market value of a copyrighted work.
        (8) Proprietary information submitted strictly on a voluntary 
    basis, absent any exercised authority prescribing criteria for 
    submission. Examples of exercised authorities prescribing criteria for 
    submission are statutes, Executive Orders, regulations, invitations for 
    bids, requests for proposals, and contracts. Submission of information 
    under these authorities is not voluntary. (See also Sec. 286.23(h)(3))
        (e) Number 5 (5 U.S.C. 552 (b)(5)). Those containing information 
    considered privileged in litigation, primarily under the deliberative 
    process privilege. Except as provided in paragraphs (e)(2) through 
    (e)(5) of this section internal advice, recommendations, and subjective 
    evaluations, as contrasted with factual matters, that are reflected in 
    deliberative records pertaining to the decision-making process of an 
    agency, whether within or among agencies (as defined in 5 U.S.C. 
    552(e)), or within or among DoD Components. In order to meet the test 
    of this exemption, the record must be both deliberative in nature, as 
    well as part of a decision-making process. Merely being an internal 
    record in insufficient basis for withholding under this exemption. Also 
    potentially exempted are records pertaining to the attorney-client 
    privilege and the attorney work-product privilege. This exemption is 
    entirely discretionary.
        (1) Examples of the deliberative process include:
        (i) The non factual portions of staff papers, to include after-
    action reports, lessons learned, and situation reports containing staff 
    evaluations, advice, opinions, or suggestions.
        (ii) Advice, suggestions, or evaluations prepared on behalf of the 
    Department of Defense by individual consultants or by boards, 
    committees, councils, groups, panels, conferences, commissions, task 
    forces, or other similar groups that are formed for the purpose of 
    obtaining advice and recommendations.
        (iii) Those non factual portions of evaluations by DoD Component 
    personnel of contractors and their products.
        (iv) Information of a speculative, tentative, or evaluative nature 
    or such matters as proposed plans to procure, lease or otherwise 
    acquire and dispose of materials, real estate, facilities or functions, 
    when such information would provide undue or unfair competitive 
    advantage to private personal interests or would impede legitimate 
    government functions.
        (v) Trade secret or other confidential research development, or 
    commercial information owned by the Government, where premature release 
    is likely to affect the Government's negotiating position or other 
    commercial interest.
        (vi) Records that are exchanged among agency personnel and within 
    and among DoD Components or Agencies as part of the preparation for 
    anticipated administrative proceeding by an Agency or litigation before 
    any Federal, State, or military court, as well as records that quality 
    for the attorney-client privilege.
    
    [[Page 35360]]
    
        (vii) Those portions of official reports of inspection, reports of 
    the Inspector Generals, audits, investigations, or surveys pertaining 
    to safety, security, or the internal management, administration, or 
    operation of one or more DoD Components, when these records have 
    traditionally been treated by the courts as privileged against 
    disclosure in litigation.
        (viii) Planning, programming, and budgetary information that is 
    involved in the defense planning and resource allocation process.
        (2) If any such intra- or inter-agency record or reasonably 
    segregable portion of such record hypothetically would be made 
    available routinely through the discovery process in the course of 
    litigation with the Agency, then it should not be withheld under the 
    FOIA. If, however, the information hypothetically would not be released 
    at all, or would only be released in a particular case during civil 
    discovery where a party's particularized showing of need might override 
    a privilege, then the record may be withheld. Discovery is the formal 
    process by which litigants obtain information from each other for use 
    in the litigation. Consult with legal counsel to determine whether 
    exemption 5 material would be routinely made available through the 
    discover process.
        (3) Intra- or inter-agency memoranda or letters that are factual, 
    or those reasonably segregable portions that are factual, are routinely 
    made available through discovery, and shall be made available to a 
    requester, unless the factual material is otherwise exempt from 
    release, inextricably intertwined with the exemption information, so 
    fragmented as to be uninformative, or so redundant of information 
    already available to the requester as to provide no new substantive 
    information.
        (4) A direction or order from a superior to a subordinate, though 
    contained in an internal communication, generally cannot be withheld 
    from a requester if it constitutes policy guidance or a decision, as 
    distinguished from a discussion of preliminary matters or a request for 
    information or advice that would compromise the decision-making 
    process.
        (5) An internal communication concerning a decision that 
    subsequently has been made a matter of public record must be made 
    available to a requester when the rationale for the decision is 
    expressly adopted or incorporated by reference in the record containing 
    the decision.
        (f) Number 6 (5 U.S.C. 552(b)(6)). Information in personnel and 
    medical files, as well as similar personal information in other files, 
    that, if disclosed to a requester, other than the person about whom the 
    information is about, would result in a clearly unwarranted invasion of 
    personal privacy. Release of information about an individual contained 
    in a Privacy Act System of records that would constitute a clearly 
    unwarranted invasion of privacy is prohibited, and could subject the 
    releaser to civil and criminal penalties. If the information qualifies 
    as exemption 6 information, there is no discretion in its release.
        (1) Examples of other files containing personal information similar 
    to that contained in personnel and medical files include:
        (i) Those compiled to evaluate or adjudicate the suitability of 
    candidates for civilian employment or membership in the Armed Forces, 
    and the eligibility of individuals (civilian, military, or contractor 
    employees) for security clearances, or for access to particularly 
    sensitive classified information.
        (ii) Files containing reports, records, and other material 
    pertaining to personnel matters in which administrative action, 
    including disciplinary action, may be taken.
        (2) Home addresses are normally not releasable without the consent 
    of the individuals concerned. This includes lists of home addresses and 
    military quarters' addresses without the occupant's name. In addition, 
    DoD military and civilian personnel's names and duty addresses who are 
    assigned to units that are sensitive, routinely deployable, or 
    stationed in foreign territories can constitute a clearly unwarranted 
    invasion of personal privacy.
        (i) Privacy Interest. A privacy interest may exist in personal 
    information even though the information has been disclosed at some 
    place and time. If personal information is not freely available from 
    sources other than the Federal Government, a privacy interest exists in 
    its nondisclosure. The fact that the Federal Government expended funds 
    to prepare, index and maintain records on personal information, and the 
    fact that a requester invokes FOIA to obtain these records indicates 
    the information is not freely available.
        (ii) Names and duty addresses published in telephone directories, 
    organizational charts, rosters and similar materials for personnel 
    assigned to units that are sensitive, routinely deployable, or 
    stationed in foreign territories are withholdable under this exemption.
        (3) This exemption shall not be used in an attempt to protect the 
    privacy of a deceased person, but it may be used to protect the privacy 
    of the deceased person's family if disclosure would rekindle grief, 
    anguish, pain, embarrassment, or even disruption of peace of mind of 
    surviving family members. In such situations, balance the surviving 
    family members' privacy against the public's right to know to determine 
    if disclosure is in the public interest. Additionally, the deceased's 
    social security number should be withheld since it is used by the next 
    of kin to receive benefits. Disclosures may be made to the immediate 
    next of kin as defined in DoD Directive 5154.24 \6\.
    ---------------------------------------------------------------------------
    
        \6\ See footnote 1 to Sec. 286.1(a).
    ---------------------------------------------------------------------------
    
        (4) When the subject of an investigative report is the requester of 
    the record and the report is contained in a Privacy Act system of 
    records, it may only be denied to the requester if withholding is both 
    authorized by DoD 5400.11-R \7\, and by exemption 6 of the FOIA.
    ---------------------------------------------------------------------------
    
        \7\ See footnote 1 to Sec. 286.1(a).
    ---------------------------------------------------------------------------
    
        (5) A clearly unwarranted invasion of the privacy of third parties 
    identified in a personnel, medical or similar record constitutes a 
    basis for deleting those reasonably segregable portions of that record. 
    When withholding third party personal information from the subject of 
    the record and the record is contained in a Privacy Act system of 
    records, consult with legal counsel.
        (6) This exemption also applies when the fact of the existence or 
    nonexistence of a responsive record would itself reveal personally 
    private information, and the public interest in disclosure is not 
    sufficient to outweigh the privacy interest. In this situation, DoD 
    Components shall neither confirm nor deny the existence or nonexistence 
    of the record being requested. This is a Glomar response, and exemption 
    6 must be cited in the response. Additionally, in order to insure 
    personal privacy is not violated during referrals, DoD Components shall 
    coordinate with other DoD Components or Federal Agencies before 
    referring a record that is exempt under the Glomar concept.
        (i) A ``refusal to confirm or deny'' response must be used 
    consistently, not only when a record exists, but also when a record 
    does not exist. Otherwise, the pattern of using a ``no records'' 
    response when a record does not exist and a ``refusal to confirm or 
    deny'' when a record does exist will itself disclose personally private 
    information.
        (ii) Refusal to confirm or deny should not be used when:
        (A) The person whose personal privacy is in jeopardy has provided 
    the
    
    [[Page 35361]]
    
    requester a waiver of his or her privacy rights;
        (B) The person initiated or directly participated in an 
    investigation that lead to the creation of an agency record seeks 
    access to that record; or
        (C) the person whose personal privacy is in jeopardy is deceased, 
    the Agency is aware of that fact, and disclosure would not invade the 
    privacy of the deceased's family. See paragraph (f) (3) of this 
    section.
        (g) Number 7 (5 U.S.C. 552(b)(7)). Records or information compiled 
    for law enforcement purposes; i.e., civil, criminal, or military law, 
    including the implementation of Executive Orders or regulations issued 
    pursuant to law. This exemption may be invoked to prevent disclosure of 
    documents not originally created for, but later gathered for law 
    enforcement purposes. With the exception of parts (C) and (F) (see 
    paragraph (g)(1)(iii) of this section) exemption 7 of the FOIA, this 
    exemption is discretionary. If information qualifies as exemption 
    (7)(C) or (7)(F) of the FOIA (see paragraph (g)(1)(iii) of this 
    section) information, there is no discretion in its release.
        (1) This exemption applies, however, only to the extent that 
    production of such law enforcement records or information could result 
    in the following:
        (i) Could reasonably be expected to interfere with enforcement 
    proceedings (5 U.S.C. 552(b)(7)(A)).
        (ii) Would deprive a person of the right to a fair trial or to an 
    impartial adjudication (5 U.S.C. 552(b)(7)(B)).
        (iii) Could reasonably be expected to constitute an unwarranted 
    invasion of personal privacy of a living person, including surviving 
    family members of an individual identified in such a record (5 U.S.C. 
    552(b)(7)(C)).
        (A) This exemption also applies when the fact of the existence or 
    nonexistence of a responsive record would itself reveal personally 
    private information, and the public interest in disclosure is not 
    sufficient to outweigh the privacy interest. In this situation, 
    Components shall neither confirm nor deny the existence or nonexistence 
    of the record being requested. This is a Glomar response, and exemption 
    (7)(C) must be cited in the response. Additionally, in order to insure 
    personal privacy is not violated during referrals, DoD Components shall 
    coordinate with other DoD Components or Federal Agencies before 
    referring a record that is exempt under the Glomar concept.
        (B) A ``refusal to confirm or deny'' response must be used 
    consistently, not only when a record exists, but also when a record 
    does not exist. Otherwise, the pattern of using a ``no records'' 
    response when a record does not exist and a ``refusal to confirm or 
    deny'' when a record does exist will itself disclose personally private 
    information.
        (C) Refusal to confirm or deny should not be used when:
        (1) The person whose personal privacy is in jeopardy has provided 
    the requester with a waiver of his or her privacy rights; or
        (2) The person whose personal privacy is in jeopardy is deceased, 
    and the Agency is aware of that fact.
        (iv) Could reasonably be expected to disclose the identity of a 
    confidential source, including a source within the Department of 
    Defense; a State, local, or foreign agency or authority; or any private 
    institution 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 (5 U.S.C. 552(b)(7)(D)).
        (v) 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 (5 U.S.C. 
    552(b)(7)(E)).
        (vi) Could reasonably be expected to endanger the life or physical 
    safety of any individual (5 U.S.C. 552(b)(7)(F)).
        (2) Some examples of exemption 7 are:
        (i) Statements of witnesses and other material developed during the 
    course of the investigation and all materials prepared in connection 
    with related Government litigation or adjudicative proceedings.
        (ii) The identity of firms or individuals being investigated for 
    alleged irregularities involving contracting with the Department of 
    Defense when no indictment has been obtained nor any civil action filed 
    against them by the United States.
        (iii) Information obtained in confidence, expressed or implied, in 
    the course of a criminal investigation by a criminal law enforcement 
    agency or office within a DoD Component, or a lawful national security 
    intelligence investigation conducted by an authorized agency or office 
    within a DoD Component. National security intelligence investigations 
    include background security investigations and those investigations 
    conducted for the purpose of obtaining affirmative or 
    counterintelligence information.
        (3) The right of individual litigants to investigative records 
    currently available by law (such as, the Jencks Act, 18 U.S.C. 3500) is 
    not diminished.
        (4) When the subject of an investigative report is the requester of 
    the record and the report is contained in a Privacy Act system of 
    records, it may only be denied to the requester if withholding is both 
    authorized by DoD 5400.11R, and by exemption 7 of the FOIA.
        (5) Exclusions. Excluded from the exemption in this paragraph (g), 
    are the following two situations applicable to the Department of 
    Defense (Components considering invoking an exclusion should first 
    consult with the Department of Justice, Office of Information and 
    Privacy.):
        (i) Whenever a request is made that involves access to records or 
    information compiled for law enforcement purposes, and the 
    investigation or proceeding involves a possible violation of criminal 
    law where there is reason to believe that the subject of the 
    investigation or proceeding is unaware of its pendency, and the 
    disclosure of the existence of the records could reasonably be expected 
    to interfere with enforcement proceedings, Components may, during only 
    such times as that circumstance continues, treat the records or 
    information as not subject to the FOIA. In such situation, the response 
    to the requester will state that no records were found.
        (ii) Whenever informant records maintained by a criminal law 
    enforcement organization within a DoD Component under the informant's 
    name or personal identifier are requested by a third party using the 
    informant's name or personal identifier, the Component may treat the 
    records as not subject to the FOIA, unless the informant's status as an 
    informant has been officially confirmed. If it is determined that the 
    records are not subject to 5 U.S.C. 552(b)(7), the response to the 
    requester will state that no records were found.
        (h) Number 8 (5 U.S.C. 552(b)(8)). Those contained in or related to 
    examination, operation or condition reports prepared by, on behalf of, 
    or for the use of any agency responsible for the regulation or 
    supervision of financial institutions.
        (i) Number 9 (5 U.S.C. 552(b)(9)). Those containing geological and 
    geophysical information and data (including maps) concerning wells.
    
    [[Page 35362]]
    
    Subpart D--For Official Use Only
    
    
    Sec. 286.15  General provisions.
    
        (a) General. Information that has not been given a security 
    classification pursuant to the criteria of an Executive Order, but 
    which may be withheld from the public for one or more of the reasons 
    cited in FOIA exemptions 2 through 9 (see subpart C of this part) shall 
    be considered as being for official use only. No other material shall 
    be considered or marked ``For Official Use Only'' (FOUO), and FOUO is 
    not authorized as an anemic form of classification to protect national 
    security interests. Additional information on FOUO and other 
    controlled, unclassified information may be found in DoD 5200.1-R.
        (b) Prior FOUO application. The prior application of FOUO markings 
    is not a conclusive basis for withholding a record that is requested 
    under the FOIA. When such a record is requested, the information in it 
    shall be evaluated to determine whether, under current circumstances, 
    FOIA exemptions apply in withholding the record or portions of it. If 
    any exemptions apply, the record may nonetheless be released as a 
    discretionary matter when it is determined that no governmental 
    interest will be jeopardized by its release.
        (c) Historical papers. Records such as notes, working papers, and 
    drafts retained as historical evidence of DoD Component actions enjoy 
    no special status apart from the exemptions under the FOIA.
        (d) Time to mark records. The marking of records at the time of 
    their creation provides notice of FOUO content and facilitates review 
    when a record is requested under the FOIA. Records requested under the 
    FOIA that do not bear such markings shall not be assumed to be 
    releasable without examination for the presence of information that 
    requires continued protection and qualifies as exempt from public 
    release.
        (e) Distribution statement. Information in a technical document 
    that requires a distribution statement pursuant to DoD Directive 
    5230.24 \8\ shall bear that statement and may be marked FOUO, as 
    appropriate.
    ---------------------------------------------------------------------------
    
        \8\ See footnote 1 to Sec. 286.1(a).
    ---------------------------------------------------------------------------
    
    
    Sec. 286.16  Markings.
    
        Location of markings:
        (a) An unclassified document containing FOUO information shall be 
    marked ``For Official Use Only'' at the bottom on the outside of the 
    front cover (if any), on each page containing FOUO information, and on 
    the outside of the back cover (if any).
        (b) Within a classified document, an individual page that contains 
    both FOUO and classified information shall be marked at the top and 
    bottom with the highest security classification of information 
    appearing on the page. Individual paragraphs shall be marked at the 
    appropriate classification level, as well as unclassified or FOUO, as 
    appropriate.
        (c) Within a classified document, an individual page that contains 
    FOUO information but no classified information shall be marked ``For 
    Official Use Only'' at the top and bottom of the page.
        (d) Other records, such as photographs, films, tapes, or slides, 
    shall be marked ``For Official Use Only'' or ``FOUO'' in a manner that 
    ensures that a recipient or viewer is aware of the status of the 
    information therein.
        (e) FOUO material transmitted outside the Department of Defense 
    requires application of an expanded marking to explain the significance 
    of the FOUO marking. This may be accomplished by typing or stamping the 
    following statement on the record prior to transfer.
    
        This document contains information EXEMPT FROM MANDATORY 
    DISCLOSURE under the FOIA. Exemption(s) . . . . . applies/apply.
    
    
    Sec. 286.17   Dissemination and transmission.
    
        (a) Release and transmission procedures. Until FOUO status is 
    terminated, the release and transmission instructions that follow 
    apply:
        (1) FOUO information may be disseminated within DoD Components and 
    between officials of DoD Components and DoD contractors, consultants, 
    and grantees to conduct official business for the Department of 
    Defense. Recipients shall be made aware of the status of such 
    information, and transmission shall be by means that preclude 
    unauthorized public disclosure. Transmittal documents shall call 
    attention to the presence of FOUO attachments.
        (2) DoD holders of FOUO information are authorized to convey such 
    information to officials in other Departments and Agencies of the 
    Executive and Judicial Branches to fulfill a government function, 
    except to the extent prohibited by the Privacy Act. Records thus 
    transmitted shall be marked ``For Official Use Only,'' and the 
    recipient shall be advised that the information may qualify for 
    exemption from public disclosure, pursuant to the FOIA, and that 
    special handling instructions do or do not apply.
        (3) Release of FOUO information to Members of Congress is governed 
    by DoD Directive 5400.4.\9\ Release to the GAO is governed by DoD 
    Directive 7650.1.\10\ Records released to the Congress or GAO should be 
    reviewed to determine whether the information warrants FOUO status. If 
    not, prior FOUO markings shall be removed or effaced. If withholding 
    criteria are met, the records shall be marked FOUO and the recipient 
    provided an explanation for such exemption and marking. Alternatively, 
    the recipient may be requested, without marking the record, to protect 
    against its public disclosure for reasons that are explained.
    ---------------------------------------------------------------------------
    
        \9\ See footnote 1 to Sec. 286.1(a).
        \10\ See footnote 1 to Sec. 286.1(a).
    ---------------------------------------------------------------------------
    
        (b) Transporting FOUO information. Records containing FOUO 
    information shall be transported in a manner that prevents disclosure 
    of the contents. When not commingled with classified information, FOUO 
    information may be sent via first-class mail or parcel post. Bulky 
    shipments, such as distributions of FOUO Directives or testing 
    materials, that otherwise qualify under postal regulations, may be sent 
    by fourth-class mail.
        (c) Electronically and facsimile transmitted messages. Each part of 
    electronically and facsimile transmitted messages containing FOUO 
    information shall be marked appropriately. Unclassified messages 
    containing FOUO information shall contain the abbreviation ``FOUO'' 
    before the beginning of the text. Such messages and facsimiles shall be 
    transmitted in accordance with communications security procedures 
    whenever practicable.
    
    
    Sec. 286.18   Safeguarding FOUO information.
    
        (a) During duty hours. During normal working hours, records 
    determined to be FOUO shall be placed in an out-of-sight location if 
    the work area is accessible to non-government personnel.
        (b) During nonduty hours. At the close of business, FOUO records 
    shall be stored so as to prevent unauthorized access. Filing such 
    material with other unclassified records in unlocked files or desks, 
    etc., is adequate when normal U.S. Government or Government-contractor 
    internal building security is provided during nonduty hours. When such 
    internal security control is not exercised, locked buildings or rooms 
    normally provide adequate after-hours protection. If such protection is 
    not considered adequate, FOUO material shall be stored in locked 
    receptacles such as file cabinets, desks, or bookcases. FOUO records 
    that are
    
    [[Page 35363]]
    
    subject to the provisions of 50 U.S.C. 402 note shall meet the 
    safeguards outlined for that group of records.
    
    
    Sec. 286.19   Termination, disposal and unauthorized disclosure.
    
        (a) Termination. The originator or other competent authority; e.g., 
    initial denial and appellate authorities, shall terminate ``For 
    Official Use Only'' markings or status when circumstances indicate that 
    the information no longer requires protection from public disclosure. 
    When FOUO status is terminated, all known holders shall be notified, to 
    the extent practical. Upon notification, holders shall efface or remove 
    the ``For Official Use Only'' markings, but records in file or storage 
    need not be retrieved solely for that purpose.
        (b) Disposal. (1) Nonrecord copies of FOUO materials may be 
    destroyed by tearing each copy into pieces to prevent reconstructing, 
    and placing them in regular trash containers. When local circumstances 
    or experience indicates that this destruction method is not 
    sufficiently protective of FOUO information, local authorities may 
    direct other methods but must give due consideration to the additional 
    expense balanced against the degree of sensitivity of the type of FOUO 
    information contained in the records.
        (2) Record copies of FOUO documents shall be disposed of in 
    accordance with the disposal standards established under 44 U.S.C. 
    3301-3314, as implemented by DoD Component instructions concerning 
    records disposal.
        (c) Unauthorized disclosure. The unauthorized disclosure of FOUO 
    records does not constitute an unauthorized disclosure of DoD 
    information classified for security purposes. Appropriate 
    administrative action shall be taken, however, to fix responsibility 
    for unauthorized disclosure whenever feasible, and appropriate 
    disciplinary action shall be taken against those responsible. 
    Unauthorized disclosure of FOUO information that is protected by the 
    Privacy Act may also result in civil and criminal sanctions against 
    responsible persons. The DoD Component that originated the FOUO 
    information shall be informed of its unauthorized disclosure.
    
    Subpart E--Release and Processing Procedures
    
    
    Sec. 286.22  General provisions.
    
        (a) Public information. (1) Since the policy of the Department of 
    Defense is to make the maximum amount of information available to the 
    public consistent with its other responsibilities, written requests for 
    a DoD record made under the provisions of 5 U.S.C. 552(a)(3) of the 
    FOIA may be denied only when:
        (i) Disclosure would result in a foreseeable harm to an interest 
    protected by a FOIA exemption, and the record is subject to one or more 
    of the exemptions of the FOIA.
        (ii) The record has not been described well enough to enable the 
    DoD Component to locate it with a reasonable amount of effort by an 
    employee familiar with the files.
        (iii) The requester has failed to comply with the procedural 
    requirements, including the written agreement to pay or payment of any 
    required fee imposed by the instructions of the DoD Component 
    concerned. When personally identifiable information in a record is 
    requested by the subject of the record or his attorney, notarization of 
    the request, or a statement certifying under the penalty of perjury 
    that their identity is true and correct may be required. Additionally, 
    written consent of the subject of the record is required for disclosure 
    from a Privacy Act System of records, even to the subject's attorney.
        (2) Individuals seeking DoD information should address their FOIA 
    requests to one of the addresses listed in Appendix B to this part.
        (b) Requests from private parties. The provisions of the FOIA are 
    reserved for persons with private interests as opposed to U.S. Federal 
    Agencies seeking official information. Requests from private persons 
    will be made in writing, and should clearly show all other addressees 
    within the Federal Government to which the request was also sent. This 
    procedure will reduce processing time requirements, and ensure better 
    inter- and intra-agency coordination. However, if the requester does 
    not show all other addressees to which the request was also sent, DoD 
    Components shall still process the request. DoD Components should 
    encourage requesters to send requests by mail, facsimile, or by 
    electronic means. Disclosure of records to individuals under the FOIA 
    is considered public release of information, except as provided for in 
    Sec. 286.4(f) and Sec. 286.12.
        (c) Requests from government officials. Requests from officials of 
    State or local Governments for DoD Component records shall be 
    considered the same as any other requester. Requests from members of 
    Congress not seeking records on behalf of a Congressional Committee, 
    Subcommittee, either House sitting as a whole, or made on behalf of 
    their constituents shall be considered the same as any other requester 
    (see also Sec. 286.4(f) and paragraph (d) of this section). Requests 
    from officials of foreign governments shall be considered the same as 
    any other requester. Requests from officials of foreign governments 
    that do not invoke the FOIA shall be referred to appropriate foreign 
    disclosure channels and the requester so notified.
        (d) Privileged release to U.S. government officials. (1) Records 
    exempt from release to the public under the FOIA may be disclosed in 
    accordance with DoD Component regulations to agencies of the Federal 
    Government, whether legislative, executive, or administrative, as 
    follows:
        (i) In response to a request of a Committee or Subcommittee of 
    Congress, or to either House sitting as a whole in accordance with DoD 
    Directive 5400.4;
        (ii) To other Federal Agencies, both executive and administrative, 
    as determined by the head of a DoD Component or designee;
        (iii) In response to an order of a Federal court, DoD Components 
    shall release information along with a description of the restrictions 
    on its release to the public.
        (2) DoD Components shall inform officials receiving records under 
    the provisions of this paragraph that those records are exempt from 
    public release under the FOIA. DoD Components also shall advise 
    officials of any special handling instructions. Classified information 
    is subject to the provisions of DoD 5200.1-R, and information contained 
    in Privacy Act systems of records is subject to DoD 5400.11-R.
        (e) Consultation with affected DoD component. (1) When a DoD 
    Component receives a FOIA request for a record in which an affected DoD 
    organization (including a Combatant Command) has a clear and 
    substantial interest in the subject matter, consultation with that 
    affected DoD organization is required. As an example, where a DoD 
    Component receives a request for records related to DoD operations in a 
    foreign country, the cognizant Combatant Command for the area involved 
    in the request shall be consulted before a release is made. 
    Consultations may be telephonic, electronic, or in hard copy.
        (2) The affected DoD Component shall review the circumstances of 
    the request for host-nation relations, and provide, where appropriate, 
    FOIA processing assistance to the responding DoD Component regarding 
    release of information. Responding DoD
    
    [[Page 35364]]
    
    Components shall provide copies of responsive records to the affected 
    DoD Component when requested by the affected DoD Component. The 
    affected DoD Component shall receive a courtesy copy of all releases in 
    such circumstances.
        (3) Nothing in paragraphs (e)(1) and (e)(2) of this section shall 
    impede the processing of the FOIA request initially received by a DoD 
    Component.
    
    
    Sec. 286.23  Initial determinations.
    
        (a) Initial denial authority. (1) Components shall limit the number 
    of IDAs appointed. In designating its IDAs, a DoD Component shall 
    balance the goals of centralization of authority to promote uniform 
    decisions and decentralization to facilitate responding to each request 
    within the time limitations of the FOIA.
        (2) The initial determination whether to make a record available 
    upon request may be made by any suitable official designated by the DoD 
    Component in published regulations. The presence of the marking ``For 
    Official Use Only'' does not relieve the designated official of the 
    responsibility to review the requested record for the purpose of 
    determining whether an exemption under the FOIA is applicable.
        (3) The officials designated by DoD Components to make initial 
    determinations should consult with public affairs officers (PAOs) to 
    become familiar with subject matter that is considered to be 
    newsworthy, and advise PAOs of all requests from news media 
    representatives. In addition, the officials should inform PAOs in 
    advance when they intend to withhold or partially withhold a record, if 
    it appears that the withholding action may be challenged in the media.
        (b) Reasons for not releasing a record. There are seven reasons for 
    not complying with a request for a record under 5 U.S.C. 552(a)(3):
        (1) The request is transferred to another DoD Component, or to 
    another Federal Agency.
        (2) The DoD Component determines through knowledge of its files and 
    reasonable search efforts that it neither controls nor otherwise 
    possesses the requested record.
        (3) A record has not been described with sufficient particularity 
    to enable the DoD Component to locate it by conducting a reasonable 
    search.
        (4) The requester has failed unreasonably to comply with procedural 
    requirements, including payment of fees, imposed by this part or DoD 
    Component supplementing regulations.
        (5) The request is withdrawn by the requester.
        (6) The information requested is not a record within the meaning of 
    the FOIA and this part.
        (7) The record is denied in whole or in part in accordance with 
    procedures set forth in the FOIA and this part.
        (c) Denial tests. To deny a requested record that is in the 
    possession and control of a DoD Component, it must be determined that 
    disclosure of the record would result in a foreseeable harm to an 
    interest protected by a FOIA exemption, and the record is exempt under 
    one or more of the exemptions of the FOIA. An outline of the FOIA's 
    exemptions is contained in subpart C of this part.
        (d) Reasonably segregable portions. Although portions of some 
    records may be denied, the remaining reasonably segregable portions 
    must be released to the requester when it reasonably can be assumed 
    that a skillful and knowledgeable person could not reconstruct the 
    excised information. Unless indicating the extent of the deletion would 
    harm an interest protected by an exemption, the amount of deleted 
    information shall be indicated on the released portion of paper records 
    by use of brackets or darkened areas indicating removal of information. 
    In no case shall the deleted areas be left ``white'' without the use of 
    brackets to show the bounds of deleted information. In the case of 
    electronic deletion, or deletion in audiovisual or microfiche records, 
    if technically feasible, the amount of redacted information shall be 
    indicated at the place in the record such deletion was made, unless 
    including the indication would harm an interest protected by the 
    exemption under which the deletion is made. This may be done by use of 
    brackets, shaded areas, or some other identifiable technique that will 
    clearly show the limits of the deleted information. When a record is 
    denied in whole, the response advising the requester of that 
    determination will specifically state that it is not reasonable to 
    segregate portions of the record for release.
        (e) Response to requester. (1) Whenever possible, initial 
    determinations to release or deny a record normally shall be made and 
    the decision reported to the requester within 10 working days (20 
    working days effective October 2, 1997) after receipt of the request by 
    the official designated to respond. When a DoD Component has a 
    significant number of pending requests which prevent a response 
    determination within the 10 working day period (20 working days 
    effective October 2, 1997), the requester shall be so notified in an 
    interim response, and advised whether their request qualifies for the 
    fast track or slow track within the DoD Components' multitrack 
    processing system. Requesters who do not meet the criteria for fast 
    track processing shall be given the opportunity to limit the scope of 
    their request in order to qualify for fast track processing. See also 
    Sec. 286.4(d) for greater detail on multitrack processing and 
    compelling need meriting expedited processing.
        (2) When a decision is made to release a record, a copy should be 
    made available promptly to the requester once he has complied with 
    preliminary procedural requirements.
        (3) When a request for a record is denied in whole or in part, the 
    official designated to respond shall inform the requester in writing of 
    the name and title or position of the official who made the 
    determination, and shall explain to the requester the basis for the 
    determination in sufficient detail to permit the requester to make a 
    decision concerning appeal. The requester specifically shall be 
    informed by the exemptions on which the denial is based, inclusive of a 
    brief statement describing what the exemption(s) cover. When the 
    initial denial is based in whole or in part on a security 
    classification, the explanation should include a summary of the 
    applicable Executive Order criteria for classification, as well as an 
    explanation, to the extent reasonably feasible, of how those criteria 
    apply to the particular record in question. The requester shall also be 
    advised of the opportunity and procedures for appealing an unfavorable 
    determination to a higher final authority within the DoD Component.
        (4) The final response to the requester should contain information 
    concerning the fee status of the request, consistent with the 
    provisions of subpart F of this part.
        (5) The explanation of the substantive basis for a denial shall 
    include specific citation of the statutory exemption applied under 
    provisions of this part; e.g., 5 U.S.C. 552(b)(1). Merely referring to 
    classification; to a ``For Official Use Only'' making on the requested 
    record; or to this part or a DoD Component's regulation does not 
    constitute a proper citation or explanation of the basis for invoking 
    an exemption.
        (6) When the time for response becomes an issue, the official 
    responsible for replying shall acknowledge to the requester the date of 
    the receipt of the request.
        (7) When denying a request for records, in whole or in part, a DoD 
    Component shall make a reasonable
    
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    effort to estimate the volume of the records denied and provide this 
    estimate to the requester, unless providing such an estimate would harm 
    an interest protected by an exemption of the FOIA. This estimate should 
    be in number of pages or in some other reasonable form of estimation, 
    unless the volume is otherwise indicated through deletions on records 
    disclosed in part.
        (8) When denying a request for records in accordance with a statute 
    qualifying as a FOIA exemption 3 statute, DoD Components shall, in 
    addition to stating the particular statute relied upon to deny the 
    information, also state whether a court has upheld the decision to 
    withhold the information under the particular statute, and a concise 
    description of the scope of the information being withheld.
        (f) Extension of time. (1) In unusual circumstances, when 
    additional time is needed to respond to the initial request, the DoD 
    Component shall acknowledge the request in writing within the 10 day 
    period (20 days effective October 2, 1997), describe the circumstances 
    requiring the delay, and indicate the anticipated date for a 
    substantive response that may not exceed 10 additional working days, 
    except as provided in paragraphs (f)(2) through (f)(6) of this section.
        (2) With respect to a request for which a written notice has 
    extended the time limits by 10 additional working days, and the 
    Component determines that it cannot make a response determination 
    within that additional 10 working day period, the requester shall be 
    notified and provided an opportunity to limit the scope of the request 
    so that it may be processed within the extended time limit, or an 
    opportunity to arrange an alternative time frame for processing the 
    request or a modified request. Refusal by the requester to reasonably 
    modify the request or arrange for an alternative time frame shall be 
    considered a factor in determining whether exceptional circumstances 
    exist with respect to DoD Components' request backlogs. Exceptional 
    circumstances do not include a delay that results from predictable 
    component backlogs, unless the DoD Component demonstrates reasonable 
    progress in reducing its backlog.
        (3) Unusual circumstances that may justify delay are:
        (i) The need to search for and collect the requested records from 
    other facilities that are separate from the office determined 
    responsible for a release or denial decision on the requested 
    information.
        (ii) The need to search for, collect, and appropriately examine a 
    voluminous amount of separate and distinct records which are requested 
    in a single request.
        (iii) The need for consultation, which shall be conducted with all 
    practicable speed, with other agencies having a substantial interest in 
    the determination of the request, or among two or more DoD Components 
    having a substantial subject-matter interest in the request.
        (4) DoD Components may aggregate certain requests by the same 
    requester, or by a group of requesters acting in concert, if the DoD 
    Component reasonably believes that such requests actually constitute a 
    single request, which would otherwise satisfy the unusual circumstances 
    set forth above, and the requests involve clearly related matters. 
    Multiple requests involving unrelated matters shall not be aggregated. 
    If the requests are aggregated under these conditions, the requester or 
    requesters shall be so notified.
        (5) In cases where the statutory time limits cannot be met and no 
    informal extension of time has been agreed to, the inability to process 
    any part of the request within the specified time should be explained 
    to the requester with a request that he agree to await a substantive 
    response by an anticipated date. It should be made clear that any such 
    agreement does not prejudice the right of the requester to appeal the 
    initial decision after it is made. DoD Components are reminded that the 
    requester still retains the right to treat this delay as a defacto 
    denial with full administrative remedies.
        (6) As an alternative to the taking of formal extension of time as 
    described in paragraph (f) of this section, the negotiation by the 
    cognizant FOIA coordinating office of informal extensions in time with 
    requesters is encouraged where appropriate.
        (g) Misdirected requests. Misdirected requests shall be forwarded 
    promptly to the DoD Component or other Federal Agency with the 
    responsibility for the records requested. The period allowed for 
    responding to the request misdirected by the requester shall not begin 
    until the request is received by the DoD Component that manages the 
    records requested.
        (h) Records of non-U.S. government source. (1) When a request is 
    received for a record that falls under exemption 4 (see subpart C of 
    this part), that was obtained from a non-U.S. Government source, or for 
    a record containing information clearly identified as having been 
    provided by a non-U.S. Government source, the source of the record or 
    information [also known as ``the submitter'' for matters pertaining to 
    proprietary data under 5 U.S.C. 552, Exemption (b)(4), Sec. 286.12 and 
    E. O. 12600 (3 CFR, 1987 Comp., p. 235), shall be notified promptly of 
    that request and afforded reasonable time (e.g., 30 calendar days) to 
    present any objections concerning the release, unless it is clear that 
    there can be no valid basis for objection. This practice is required 
    for those FOIA requests for data not deemed clearly exempt from 
    disclosure under exemption (b)(4) of 5 U.S.C. 552(a). If, for example, 
    the record or information was provided with actual or presumptive 
    knowledge of the non-U.S. Government source and established that it 
    would be made available to the public upon request, there is no 
    obligation to notify the source. Any objections shall be evaluated. The 
    final decision to disclose information claimed to be exempt under 
    exemption (b)(4) shall be made by an official equivalent in rank to the 
    official who would make the decision to withhold that information under 
    the FOIA. When a substantial issue has been raised, the DoD Component 
    may seek additional information from the source of the information and 
    afford the source and requester reasonable opportunities to present 
    their arguments on the legal and substantive issues involved prior to 
    making an agency determination. When the source advises it will seek a 
    restraining order or take court action to prevent release of the record 
    or information, the requester shall be notified, and action on the 
    request normally shall not be taken until after the outcome of that 
    court action is known. When the requester brings court action to compel 
    disclosure, the submitter shall be promptly notified of this action.
        (2) If the submitted information is a proposal in response to a 
    solicitation for a competitive proposal, and the proposal is in the 
    possession and control of DoD, and meets the requirements of 10 U.S.C. 
    2305(g), the proposal shall not be disclosed, and no submitter 
    notification and subsequent analysis is required. The proposal shall be 
    withheld from public disclosure pursuant to 10 U.S.C. 2305(g) and 
    exemption (b)(3) of 5 U.S.C. 552. This statute does not apply to bids, 
    unsolicited proposals, or any proposal that is set forth or 
    incorporated by reference in a contract between a DoD Component and the 
    offeror that submitted the proposal. In such situations, normal 
    submitter notice shall be conducted in accordance with paragraph (h)(1) 
    of this section except for sealed bids that are opened and read
    
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    to the public. The term proposal means information contained in or 
    originating from any proposal, including a technical, management, or 
    cost proposal submitted by an offeror in response to solicitation for a 
    competitive proposal, but does not include an offeror's name or total 
    price or unit prices when set forth in a record other than the proposal 
    itself. Submitter notice, and analysis as appropriate, are required for 
    exemption (b)(4) matters that are not specifically incorporated in 10 
    U.S.C. 2305(g).
        (3) If the record or information was submitted on a strictly 
    voluntary basis, absent any exercised authority that prescribes 
    criteria for submission, and after consultation with the submitter, it 
    is absolutely clear that the record or information would customarily 
    not be released to the public, the submitter need not be notified. 
    Examples of exercised authorities prescribing criteria for submission 
    are statutes, Executive Orders, regulations, invitations for bids, 
    requests for proposals, and contracts. Records or information submitted 
    under these authorities are not voluntary in nature. When it is not 
    clear whether the information was submitted on a voluntary basis, 
    absent any exercised authority, and whether it would customarily be 
    released to the public by the submitter, notify the submitter and ask 
    that it describe its treatment of the information, and render an 
    objective evaluation. If the decision is made to release the 
    information over the objection of the submitter, notify the submitter 
    and afford the necessary time to allow the submitter to seek a 
    restraining order, or take court action to prevent release of the 
    record or information.
        (4) The coordination provisions of this paragraph (h) also apply to 
    any non-U.S. Government record in the possession and control of the DoD 
    from multi-national organizations, such as the North Atlantic Treaty 
    Organization (NATO), United Nations Commands, the North American 
    Aerospace Defense Command (NORAD), the Inter-American Defense Board, or 
    foreign governments. Coordination with foreign governments under the 
    provisions of this paragraph (h) may be made through Department of 
    State, or the specific foreign embassy.
        (i) File of initial denials. Copies of all initial denials shall be 
    maintained by each DoD Component in a form suitable for rapid 
    retrieval, periodic statistical compilation, and management evaluation. 
    Records denied at the initial stage shall be maintained for a period of 
    six years to meet the statute of limitations requirement.
        (j) Special mail services. Components are authorized to use 
    registered mail, certified mail, certificates of mailing and return 
    receipts. However, their use should be limited to instances where it 
    appears advisable to establish proof of dispatch or receipt of FOIA 
    correspondence.
        (k) Receipt accounts. The Treasurer of the United States has 
    established two accounts for FOIA receipts, and all money orders or 
    checks remitting FOIA fees should be made payable to the U.S. 
    Treasurer. These accounts, which are described in paragraphs (k)(1) and 
    (k)(2) of this section shall be used for depositing all FOIA receipts, 
    except receipts for industrially funded and non appropriated funded 
    activities. Components are reminded that the below account numbers must 
    be preceded by the appropriate disbursing office two digit prefix. 
    Industrially funded and non appropriated funded activity FOIA receipts 
    shall be deposited to the applicable fund.
        (1) Receipt Account 3210 Sale of Publications and Reproductions, 
    Freedom of Information Act. This account shall be used when depositing 
    funds received from providing existing publications and forms that meet 
    the Receipt Account Series description found in Federal Account Symbols 
    and Titles.
        (2) Receipt Account 3210 Fees and Other Charges for Services, 
    Freedom of Information Act. This account is used to deposit search 
    fees, fees for duplicating and reviewing (in the case of commercial 
    requesters) records to satisfy requests that could not be filled with 
    existing publications or forms.
    
    
    Sec. 286.24  Appeals.
    
        (a) General. If the official designated by the DoD Component to 
    make initial determinations on requests for records declines to provide 
    a record because the official considers it exempt under one or more of 
    the exemptions of the FOIA, that decision may be appealed by the 
    requester, in writing, to a designated appellant authority. The appeal 
    should be accompanied by a copy of the letter denying the initial 
    request. Such appeals should contain the basis for disagreement with 
    the initial refusal. Appeal procedures also apply to the disapproval of 
    a fee category claim by a requester, disapproval of a request for 
    waiver or reduction of fees, disputes regarding fee estimates, review 
    on an expedited basis a determination not to grant expedited access to 
    agency records, and for no record determinations when the requester 
    considers such responses adverse in nature. Appeals of Office of the 
    Secretary of Defense and Chairman of the Joint Chiefs of Staff 
    determinations may be sent to the address in Appendix B, paragraph 
    2.a., of this part. If a request is merely misaddressed, and the 
    receiving DoD Component simply advises the requester of such and refers 
    the request to the appropriate DoD Component, this shall not be 
    considered a no record determination.
        (b) Time of receipt. A FOIA appeal has been received by a DoD 
    Component when it reaches the office of an appellate authority having 
    jurisdiction. Misdirected appeals should be referred expeditiously to 
    the proper appellant authority.
        (c) Time limits. (1) The requester shall be advised to file an 
    appeal so that it reaches the appellate authority no later than 60 
    calendar days after the date of the initial denial letter. At the 
    conclusion of this period, the case may be considered closed; however, 
    such closure does not prevent the requester for filing litigation. In 
    cases where the requester is provided several incremental 
    determinations for a single request, the time for the appeal shall not 
    begin until the requester receives the last such notification. Records 
    that are denied shall be retained for a period of six years to meet the 
    statute of limitations requirement.
        (2) Final determinations on appeals normally shall be made within 
    20 working days after receipt. When a DoD Component has a significant 
    number of appeals preventing a response determination with 20 working 
    days, the appeals shall be processed in a multitrack processing system, 
    based at a minimum, on the three processing tracks established for 
    initial requests. See Sec. 286.4(d). All of the provisions of 
    Sec. 286.4(d) apply also to appeals of initial determinations, to 
    include establishing additional processing queues as needed.
        (d) Delay in responding to an appeal. (1) If additional time is 
    needed due to the unusual circumstances described in Sec. 286.23 (f), 
    the final decision may be delayed for the number of working days (not 
    to exceed 10), that were not used are additional time for responding to 
    the initial request.
        (2) If a determination cannot be made and the requester notified 
    within 20 working days, the appellate authority shall acknowledge to 
    the requester, in writing, the date of receipt of the appeal, the 
    circumstances surrounding the delay, and the anticipated date for 
    substantive response. Requesters shall be advised that, if the delay 
    exceeds the statutory extension provision or is for reasons other than 
    the unusual circumstances identified in Sec. 286.23 (f), they may 
    consider their administrative remedies exhausted. They may, however, 
    without prejudicing their right
    
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    of judicial remedy, await a substantive response. The DoD Component 
    shall continue to process the case expeditiously, whether or not the 
    requester seeks a court order for release of the records, but a copy of 
    any response provided subsequent to filing of a complaint shall be 
    forwarded to the Department of Justice.
        (e) Response to the requester. (1) When an appellate authority 
    makes a final determination to release all or a portion of records 
    withheld by an IDA, a written response and a copy of the records so 
    released should be forwarded promptly to the requester after compliance 
    with any preliminary procedural requirements, such as payment of fees.
        (2) Final refusal of an appeal must be made in writing by the 
    appellate authority or by a designated representative. The response, at 
    a minimum, shall include the following:
        (1) The basis for the refusal shall be explained to the requester 
    in writing, both with regard to the applicable statutory exemption or 
    exemptions invoked under provisions of the FOIA and with respect to 
    other appeal matters as set forth in paragraph (1) of this section.
        (ii) When the final refusal is based in whole or in part on a 
    security classification, the explanation shall include a determination 
    that the record meets the cited criteria and rationale of the governing 
    Executive Order, and that this determination is based on a 
    declassification review, with the explanation of how that review 
    confirmed the continuing validity of the security classification.
        (iii) The final denial shall include the name and title or position 
    of the official responsible for the denial.
        (iv) In the case of appeals for total denial of records, the 
    response shall advise the requester that the information being denied 
    does not contain meaningful portions that are reasonably segregable.
        (v) When the denial is based upon an exemption 3 statute (see 
    Sec. 286.12(e)), the response, in addition to citing the statute relied 
    upon to deny the information, shall state whether a court has upheld 
    the decision to withhold the information under the statute, and shall 
    contain a concise description of the scope of the information withheld.
        (vi) The response shall advise the requester of the right of 
    judicial review.
        (f) Consultation. (1) Final refusal involving issues not previously 
    resolved or that the DoD Component knows to be inconsistent with 
    rulings of other DoD Components ordinarily should not be made before 
    consultation with the DoD Office of the General Counsel.
        (2) Tentative decisions to deny records that raise new or 
    significant legal issues of potential significance to other Agencies of 
    the Government shall be provided to the DoD Office of the General 
    Counsel.
    
    
    Sec. 286.25  Judicial actions.
    
        (a) General. (1) This section states current legal and procedural 
    rules for the convenience of the reader. The statements of rules do not 
    create rights or remedies not otherwise available, nor do they bind the 
    Department of Defense to particular judicial interpretations or 
    procedures.
        (2) A requester may seek an order from a U.S. District Court to 
    compel release of a record after administrative remedies have been 
    exhausted; i.e., when refused a record by the head of a Component or an 
    appellate designee or when the DoD Component has failed to respond 
    within the time limits prescribed by the FOIA and in this part.
        (b) Jurisdiction. The requester may bring suit in the U.S. District 
    Court in the district in which the requester resides or is the 
    requesters place of business, in the district in which the record is 
    located, or in the District of Columbia.
        (c) Burden of proof. The burden of proof is on the DoD Component to 
    justify its refusal to provide a record. The court shall evaluate the 
    case de novo (anew) and may elect to examine any requested record in 
    camera (in private) to determine whether the denial was justified.
        (d) Actions by the Court. (1) When a DoD Component has failed to 
    make a determination within the statutory time limits but can 
    demonstrate due diligence in exceptional circumstances, to include 
    negotiating with the requester to modify the scope of their request, 
    the court may retain jurisdiction and allow the Component additional 
    time to complete its review of the records.
        (2) If the court determines that the requester's complaint is 
    substantially correct, it may require the United States to pay 
    reasonable attorney fees and other litigation costs.
        (3) When the court orders the release of denied records, it may 
    also issue a written finding that the circumstances surrounding the 
    withholding raise questions whether DoD Component personnel acted 
    arbitrarily and capriciously. In these cases, the special counsel of 
    the Merit System Protection Board shall conduct an investigation to 
    determine whether or not disciplinary action is warranted. The DoD 
    Component is obligated to take the action recommended by the special 
    counsel.
        (4) The court may punish the responsible official for contempt when 
    a DoD Component fails to comply with the court order to produce records 
    that it determines have been withheld improperly.
        (e) Non-United States Government Source Information. A requester 
    may bring suit in a U.S. District Court to compel the release of 
    records obtained from a non-government source or records based on 
    information obtained from a non-government source. Such source shall be 
    notified promptly of the court action. When the source advises that it 
    is seeking court action to prevent release, the DoD Component shall 
    defer answering or otherwise pleading to the complainant as long as 
    permitted by the Court or until a decision is rendered in the court 
    action of the source, whichever is sooner.
        (f) FOIA litigation. Personnel responsible for processing FOIA 
    requests at the DoD Component level shall be aware of litigation under 
    the FOIA. Such information will provide management insights into the 
    use of the nine exemptions by Component personnel. Whenever a complaint 
    under the FOIA is filed in a U.S. District Court, the DoD Component 
    named in the complaint shall forward a copy of the complaint by any 
    means to the OASD(PA), Attn: DFOISR, with an information copy to the 
    DoD Office of the General Counsel, Attn: Office of Legal Counsel.
    
    Subpart F--Fee Schedule
    
    
    Sec. 286.28  General provisions.
    
        (a) Authorities. The Freedom of Information Act, as amended; the 
    Paperwork Reduction Act (44 U.S.C. Chapter 35), as amended; the Privacy 
    Act of 1974, as amended; the Budget and Accounting Act of 1921 and the 
    Budget and Accounting Procedures Act, as amended (see 31 U.S.C.); and 
    10 U.S.C. 2328.
        (b) Application. (1) The fees described in this subpart apply to 
    FOIA requests, and conform to the Office of Management and Budget 
    Uniform Freedom of Information Act Fee Schedule and Guidelines. They 
    reflect direct costs for search, review (in the case of commercial 
    requesters); and duplication of documents, collection of which is 
    permitted by the FOIA. They are neither intended to imply that fees 
    must be charged in connection with providing information to the public 
    in the routine course of business, nor are they meant as a substitute 
    for any other schedule of fees, such as DoD
    
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    Instruction 7230.7,\11\ which does not supersede the collection of fees 
    under the FOIA. Nothing in this subpart shall supersede fees chargeable 
    under a statute specifically providing for setting the level of fees 
    for particular types of records. A ``statue specifically providing for 
    setting the level of fees for particular types of records'' (5 U.S.C. 
    552 (a)(4)(A)(vi)) means any statute that enables a Government Agency 
    such as the Government Printing Office (GPO) or the National Technical 
    Information Service (NTIS), to set and collect fees. Components should 
    ensure that when documents that would be responsive to a request are 
    maintained for distribution by agencies operating statutory-based fee 
    schedule programs such as the GPO or NTIS, they inform requesters of 
    the steps necessary to obtain records from those sources.
    ---------------------------------------------------------------------------
    
        \11\ See footnote 1 to Sec. 286.1(a).
    ---------------------------------------------------------------------------
    
        (2) The term ``direct costs'' means those expenditures a Component 
    actually makes in searching for, reviewing (in the case of commercial 
    requesters), and duplicating documents to respond to an FOIA request. 
    Direct costs include, for example, the salary of the employee 
    performing the work (the basic rate of pay for the employee plus 16 
    percent of that rate to cover benefits), and the costs of operating 
    duplicating machinery. These factors have been included in the fee 
    rates prescribed at Sec. 286.29. Not included in direct costs are 
    overhead expenses such as costs of space, heating or lighting the 
    facility in which the records are stored.
        (3) The term ``search'' includes all time spent looking, both 
    manually and electronically, for material that is responsive to a 
    request. Search also includes a page-by-page or line-by-line 
    identification (if necessary) of material in the record to determine if 
    it, or portions thereof are responsive to the request. Components 
    should ensure that searches are done in the most efficient and least 
    expensive manner so as to minimize costs for both the Component and the 
    requester. For example, Components should not engage in line-by-line 
    searches when duplicating an entire document known to contain 
    responsive information would prove to be the less expensive and quicker 
    method of complying with the request. Time spent reviewing documents in 
    order to determine whether to apply one or more of the statutory 
    exemptions is not search time, but review time. See paragraph (b)(5) of 
    this section for the definition of review, and paragraph (c)(5) of this 
    section and Sec. 286.29(b)(2) for information pertaining to computer 
    searches.
        (4) The term ``duplication'' refers to the process of making a copy 
    of a document in response to an FOIA request. Such copies can take the 
    form of paper copy, microfiche, audiovisual, or machine readable 
    documentation (e.g., magnetic tape or disc), among others. Every effort 
    will be made to ensure that the copy provided is in a form that is 
    reasonably useable, the requester shall be notified that the copy 
    provided is the best available and that the Agency's master copy shall 
    be made available for review upon appointment. For duplication of 
    computer tapes and audiovisual, the actual costs, including the 
    operator's time, shall be charged. In practice, if a Component 
    estimates that assessable duplication charges are likely to exceed 
    $25.00, it shall notify the requester of the estimate, unless the 
    requester has indicated in advance his or her willingness to pay fees 
    as high as those anticipated. Such a notice shall offer a requester the 
    opportunity to confer with Component personnel with the object of 
    reformulating the request to meet his or her needs at a lower cost.
        (5) The term ``review'' refers to the process of examining 
    documents located in response to an FOIA request to determine whether 
    one or more of the statutory exemptions permit withholding. It also 
    includes processing the documents for disclosure, such as excising them 
    for release. Review does not include the time spent resolving general 
    legal or policy issues regarding the application of exemptions. It 
    should be noted that charges for commercial requesters may be assessed 
    only for the initial review. Components may not charge for reviews 
    required at the administrative appeal level of an exemption already 
    applied. However, records or portions of records withheld in full under 
    an exemption that is subsequently determined not to apply may be 
    reviewed again to determine the applicability of other exemptions not 
    previously considered. The costs for such a subsequent review would be 
    properly assessable.
        (c) Fee restrictions. (1) No fees may be charged by any DoD 
    Component if the costs of routine collection and processing of the fee 
    are likely to equal or exceed the amount of the fee. With the exception 
    of requesters seeking documents for a commercial use, Components shall 
    provide the first two hours of search time, and the first one hundred 
    pages of duplication without charge. For example, for a request (other 
    than one from a commercial requester) that involved two hours and ten 
    minutes of search time, and resulted in one hundred and five pages of 
    documents, a Component would determine the cost of only ten minutes of 
    search time, and only five pages of reproduction. If this processing 
    cost was equal to, or less than, the cost to the Component for billing 
    the requester and processing the fee collected, no charges would 
    result.
        (2) Requesters receiving the first two hours of search and the 
    first one hundred pages of duplication without charge are entitled to 
    such only once per request. Consequently, if a Component, after 
    completing its portion of a request, finds it necessary to refer the 
    request to a subordinate office, another DoD Component, or another 
    Federal Agency to action their portion of the request, the referring 
    Component shall inform the recipient of the referral of the expended 
    amount of search time and duplication cost to date.
        (3) The elements to be considered in determining the ``cost of 
    collecting a fee'' are the administrative costs to the Component of 
    receiving and recording a remittance, and processing the fee for 
    deposit in the Department of Treasury's special account. The cost to 
    the Department of Treasury to handle such remittance is negligible and 
    shall not be considered in Components' determinations.
        (4) For the purposes of these restrictions, the word ``pages'' 
    refers to paper copies of a standard size, which will normally be 
    ``8\1/2\  x  11'' or ``11  x  14''. Thus, requesters would not be 
    entitled to 100 microfiche or 100 computer disks, for example. A 
    microfiche containing the equivalent of 100 pages or 100 pages of 
    computer printout however, might meet the terms of the restriction.
        (5) In the case of computer searches, the first two free hours will 
    be determined against the salary scale of the individual operating the 
    computer for the purposes of the search. As an example, when the direct 
    costs of the computer central processing unit, input-output devices, 
    and memory capacity equal $24.00 (two hours of equivalent search at the 
    clerical level), amounts of computer costs in excess of that amount are 
    chargeable as computer search time. In the event the direct operating 
    cost of the hardware configuration cannot be determined, computer 
    search shall be based on the salary scale of the operator executing the 
    computer search. See Sec. 286.29 for further details regarding fees for 
    computer searches.
        (d) Fee waivers. (1) Documents shall be furnished without charge, 
    or at a charge reduced below fees assessed to the categories of 
    requesters in paragraph (e) of this section when the Component 
    determines that waiver or reduction of the fees is in the public 
    interest because
    
    [[Page 35369]]
    
    furnishing the information is likely to contribute significantly to 
    public understanding of the operations or activities of the Department 
    of Defense and is not primarily in the commercial interest of the 
    requester.
        (2) When assessable costs for a FOIA request total $15.00 or less, 
    fees shall be waived automatically for all requesters, regardless of 
    category.
        (3) Decisions to waive or reduce fees that exceed the automatic 
    waiver threshold shall be made on a case-by-case basis, consistent with 
    the following factors:
        (i) Disclosure of information ``is in the public interest because 
    it is likely to contribute significantly to public understanding of the 
    operations or activities of the Government.''
        (A) The subject of the request. Components should analyze whether 
    the subject matter of the request involves issues that will 
    significantly contribute to the public understanding of the operations 
    or activities of the Department of Defense. Requests for records in the 
    possession of the Department of Defense which were originated by non-
    government organizations and are sought for their intrinsic content, 
    rather than informative value, will likely not contribute to public 
    understanding of the operations or activities of the Department of 
    Defense. An example of such records might be press clippings, magazine 
    articles, or records forwarding a particular opinion or concern from a 
    member of the public regarding a DoD activity. Similarly, disclosures 
    of records of considerable age may or may not bear directly on the 
    current activities of the Department of Defense; however, the age of a 
    particular record shall not be the sole criteria for denying relative 
    significance under this factor. It is possible to envisage an 
    informative issue concerning the current activities of the Department 
    of Defense, based upon historical documentation. Requests of this 
    nature must be closely reviewed consistent with the requester's state 
    purpose for desiring the records and the potential for public 
    understanding of the operations and activities of the Department of 
    Defense.
        (B) The informative value of the information to be disclosed. This 
    factor requires a close analysis of the substantive contents of a 
    record, or portion of the record, to determine whether disclosure is 
    meaningful, and shall inform the public on the operations or activities 
    of the Department of Defense. While the subject of a request may 
    contain information that concerns operations or activities of the 
    Department of Defense, it may not always hold great potential for 
    contributing to a meaningful understanding of these operations or 
    activities. An example of such would be a previously released record 
    that has been heavily redacted, the balance of which may contain only 
    random words, fragmented sentences, or paragraph headings. A 
    determination as to whether a record in this situation will contribute 
    to the public understanding of the operations or activities of the 
    Department of Defense must be approached with caution, and carefully 
    weighed against the arguments offered by the requester. Another example 
    is information already known to be in the public domain. Disclosure of 
    duplicative, or nearly identical information already existing in the 
    public domain may add no meaningful new information concerning the 
    operations and activities of the Department of Defense.
        (C) The contribution to an understanding of the subject by the 
    general public likely to result from disclosure. The key element in 
    determining the applicability of this factor is whether disclosure will 
    inform, or have the potential to inform the public, rather than simply 
    the individual requester or small segment of interested persons. The 
    identity of the requester is essential in this situation in order to 
    determine whether such requester has the capability and intention to 
    disseminate the information to the public. Mere assertions of plans to 
    author a book, researching a particular subject, doing doctoral 
    dissertation work, or indigence are insufficient without demonstrating 
    the capacity to further disclose the information in a manner that will 
    be informative to the general public. Requesters should be asked to 
    describe their qualifications, the nature of their research, the 
    purpose of the requested information, and their intended means of 
    dissemination to the public.
        (D) The significance of the contribution to public understanding. 
    In applying this factor, Components must differentiate the relative 
    significance or impact of the disclosure against the current level of 
    public knowledge, or understanding which exists before the disclosure. 
    In other words, will disclosure on a current subject of wide public 
    interest be unique in contributing previously unknown facts, thereby 
    enhancing public knowledge, or will it basically duplicate what is 
    already known by the general public? A decision regarding significance 
    requires objective judgment, rather than subjective determination, and 
    must be applied carefully to determine whether disclosure will likely 
    lead to a significant public understanding of the issue. Components 
    shall not make value judgments as to whether the information is 
    important enough to be made public.
        (ii) Disclosure of the information ``is not primarily in the 
    commercial interest of the requester.''
        (A) The existence and magnitude of a commercial interest. If the 
    request is determined to be of a commercial interest, Components should 
    address the magnitude of that interest to determine if the requester's 
    commercial interest is primary, as opposed to any secondary personal or 
    non-commercial interest. In addition to profit-making organizations, 
    individual persons or other organizations may have a commercial 
    interest in obtaining certain records. Where it is difficult to 
    determine whether the requester is of a commercial nature, Components 
    may draw inference from the requester's identity and circumstances of 
    the request. In such situations, the provisions of paragraph (e) of 
    this section. Components are reminded that in order to apply the 
    commercial standards of the FOIA, the requester's commercial benefit 
    must clearly override any personal or non-profit interest.
        (B) The primary interest in disclosure. Once a requester's 
    commercial interest has been determined, Components should then 
    determine if the disclosure would be primarily in that interest. This 
    requires a balancing test between the commercial interest of the 
    request against any public benefit to be derived as a result of that 
    disclosure. Where the public interest is served above and beyond that 
    of the requester's commercial interest, a waiver or reduction of fees 
    would be appropriate. Conversely, even if a significant public interest 
    exists, and the relative commercial interest of the requester is 
    determined to be greater than the public interest, then a waiver or 
    reduction of fees would be inappropriate. As examples, news media 
    organizations have a commercial interest as business organizations; 
    however, their inherent role of disseminating news to the general 
    public can ordinarily be presumed to be of a primary interest. 
    Therefore, any commercial interest becomes secondary to the primary 
    interest in serving the public. Similarly, scholars writing books or 
    engaged in other forms of academic research, may recognize a commercial 
    benefit, either directly, or indirectly (through the institution they 
    represent); however, normally such pursuits are primarily undertaken 
    for educational purposes, and the application of a fee charge
    
    [[Page 35370]]
    
    would be inappropriate. Conversely, data brokers or others who merely 
    compile government information for marketing can normally be presumed 
    to have an interest primarily of a commercial nature.
        (4) Components are reminded that the factors and examples used in 
    this subsection 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 request. When the element of doubt as to 
    whether to charge or waive the fee cannot be clearly resolved, 
    Components should rule in favor of the requester.
        (5) In addition, the following additional circumstances describe 
    situations where waiver or reduction of fees are most likely to be 
    warranted:
        (i) A record is voluntarily created to 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. $15.00-$30.00).
        (e) Fee assessment. (1) Fees may not be used to discourage 
    requesters, and to this end, FOIA fees are limited to standard charges 
    for direct document search, review (in the case of commercial 
    requesters) and duplication.
        (2) In order to be as responsive as possible to FOIA requests while 
    minimizing unwarranted costs to the taxpayer, Components shall adhere 
    to the following procedures:
        (i) Analyze each request to determine the category of the 
    requester. If the Component determination regarding the category of the 
    requester is different than that claimed by the requester, the 
    Component shall:
        (A) Notify the requester to provide additional justification to 
    warrant the category claimed, and that a search for responsive records 
    will not be initiated until agreement has been attained relative to the 
    category of the requester. Absent further category justification from 
    the requester, and within a reasonable period of time (i.e., 30 
    calendar days), the Component shall render a final category 
    determination, and notify the requester of such determination, to 
    include normal administrative appeal rights of the determination.
        (B) Advise the requester that, notwithstanding any appeal, a search 
    for responsive records will not be initiated until the requester 
    indicates a willingness to pay assessable costs appropriate for the 
    category determined by the Component.
        (ii) Requesters should submit a fee declaration appropriate for the 
    following categories:
        (A) Commercial. Requesters should indicate a willingness to pay all 
    search, review and duplication costs.
        (B) Educational or noncommercial scientific institution or news 
    media. Requesters should indicate a willingness to pay duplication 
    charges in excess of 100 pages if more than 100 pages of records are 
    desired.
        (C) All others. Requesters should indicate a willingness to pay 
    assessable search and duplication costs if more than two hours of 
    search effort or 100 pages of records are desired.
        (iii) If the conditions are not met as identified in this paragraph 
    (e), then the request need not be processed and the requester shall be 
    so informed.
        (iv) In the situations described by paragraphs (e)(2)(i) and 
    (e)(2)(ii) of this section, Components must be prepared to provide an 
    estimate of assessable fees if desired by the requester. While it is 
    recognized that search situations will vary among Components, and that 
    an estimate is often difficult to obtain prior to an actual search, 
    requesters who desire estimates are entitled to such before committing 
    to a willingness to pay. Should Components' actual costs exceed the 
    amount of the estimate or the amount agreed to by the requester, the 
    amount in excess of the estimate or the requester's agreed amount shall 
    not be charged without the requester's agreement.
        (v) No DoD Component may require advance payment of any fee; i.e., 
    payment before work is commenced or continued on a request, unless the 
    requester has previously failed to pay fees in a timely fashion, or the 
    agency has determined that the fee will exceed $250.00. As used in this 
    sense, a timely fashion is 30 calendar days from the date of billing 
    (the fees have been assessed in writing) by the Component.
        (vi) Where a Component estimates or determines that allowable 
    charges that a requester may be required to pay are likely to exceed 
    $250.00, the Component shall notify the requester of the likely cost 
    and obtain satisfactory assurance of full payment where the requester 
    has a history of prompt payments, or require an advance payment of an 
    amount up to the full estimated charges in the case of requesters with 
    no history of payment.
        (vii) Where a requester has previously failed to pay a fee charged 
    in a timely fashion (i.e., within 30 calendar days from the date of the 
    billing), the Component may require the requester to pay the full 
    amount owed, plus any applicable interest, or demonstrate that he or 
    she has paid the fee, and to make an advance payment of the full amount 
    of the estimated fee before the Component begins to process a new or 
    pending request from the requester. Interest will be at the rate 
    prescribed in 31 U.S.C. 3717 and confirmed with respective Finance and 
    Accounting Offices.
        (viii) After all work is completed on a request, and the documents 
    are ready for release, Components may request payment before forwarding 
    the documents, particularly for those requesters who have no payment 
    history, or for those requesters who have failed previously to pay a 
    fee in a timely fashion (i.e., within 30 calendar days from the date of 
    the billing). In the case of the latter, the previsions of paragraph 
    (e)(2)(vii) of this section apply.
        (ix) When Components act under paragraphs (e)(2)(i) through 
    (e)(2)(vii) of this section, the administrative time limits of the FOIA 
    will begin only after the Component has received a willingness to pay 
    fees and satisfaction as to category determination, or fee payments (if 
    appropriate).
        (x) Components may charge for time spent searching for records, 
    even if that search fails to locate records responsive to the request. 
    Components may also charge search and review (in the case of commercial 
    requesters) time if records located are determined to be exempt from 
    disclosure. In practice, if the Component estimates that search charges 
    are likely to exceed $25.00, it shall notify the requester of the 
    estimated amount of fees, unless the requester has indicated in advance 
    his or her willingness to pay fees as high as those anticipated. Such a 
    notice shall offer the requester the opportunity to confer with 
    Component personnel with the object of reformulating the request to 
    meet his or her needs at a lower cost.
        (3) Commercial requesters. Fees shall be limited to reasonable 
    standard charges for document search, review and duplication when 
    records are requested for commercial use. Requesters must reasonably 
    describe the records sought. (See Sec. 286.4(h))
        (i) The term ``commercial use'' request refers to a request from, 
    or on behalf of one who seeks information for a use or purpose that 
    furthers the commercial, trade, or profit interest of the requester or 
    the person on whose behalf the request is made. In determining whether 
    a requester properly belongs in this category, Components must 
    determine the use to which a requester will put the documents 
    requested. Moreover, where Component has reasonable cause to doubt the 
    use to which a requester will put the records sought, or where that
    
    [[Page 35371]]
    
    use is not clear from the request itself, Components should seek 
    additional clarification before assigning the request to a specific 
    category.
        (ii) When Components receive a request for documents for commercial 
    use, they should assess charges which recover the full direct costs of 
    searching for, reviewing for release, and duplicating the records 
    sought. Commercial requesters (unlike other requesters) are not 
    entitled to two hours of free search time, nor 100 free pages of 
    reproduction of documents. Moreover, commercial requesters are not 
    normally entitled to a waiver or reduction of fees based upon an 
    assertion that disclosure would be in the public interest. However, 
    because use is the exclusive determining criteria, it is possible to 
    envision a commercial enterprise making a request that is not for 
    commercial use. It is also possible that a non-profit organization 
    could make a request that is for commercial use. Such situations must 
    be addressed on a case-by-case basis.
        (4) Education institution requesters. Fees shall be limited to only 
    reasonable standard charges for document duplication (excluding charges 
    for the first 100 pages) when the request is made by an educational 
    institution whose purpose is scholarly research. Requesters must 
    reasonably describe the records sought (see Sec. 286.4(h)). The term 
    ``education institution'' refers to a pre-school, a public or private 
    elementary or secondary school, an institution of graduate higher 
    education, an institution of undergraduate higher education, an 
    institution of professional education, and an institution of vocational 
    education, which operates a program or programs of scholarly research. 
    Fees shall be waived or reduced in the public interest if the criteria 
    of paragraph (d) of this section have been met.
        (5) Non-commercial scientific institution requesters. Fees shall be 
    limited to only reasonable standard charges for document duplication 
    (excluding charges for the first 100 pages) when the request is made by 
    a non-commercial scientific institution whose purpose is scientific 
    research. Requesters must reasonably describe the records sought (see 
    Sec. 286.4(h)). The term ``non-commercial scientific institution'' 
    refers to an institution that is not operated on a ``commercial'' basis 
    as defined in paragraph (e)(3) of this section and that is operated 
    solely for the purpose of conducting scientific research, the results 
    of which are not intended to promote any particular product or 
    industry. Fees shall be waived or reduced in the public interest if the 
    criteria of paragraph (d) of this section have been met.
        (6) Components shall provide documents to requesters in paragraphs 
    (e)(4) and (e)(5) of this section for the cost of duplication alone, 
    excluding charges for the first 100 pages. To be eligible for inclusion 
    in these categories, requesters must show that the request is being 
    made under the auspices of a qualifying institution and that the 
    records are not sought for commercial use, but in furtherance of 
    scholarly (from an educational institution) or scientific (from a non-
    commercial scientific institution) research.
        (7) Representatives of the news media. Fees shall be limited to 
    only reasonable standard charges for document duplication (excluding 
    charges for the first 100 pages) when the request is made by a 
    representative of the news media. Requesters must reasonably describe 
    the records sought (see Sec. 286.4(h)). Fees shall be waived or reduced 
    if the criteria of paragraph (d) of this section have been met.
        (i) The term ``representative of the news media'' refers to any 
    person actively gathering news for an entity that is organized and 
    operated to publish or broadcast news to the public. The term ``news'' 
    means information that is about current events or that would be or 
    current interest to the public. Examples of news media entities include 
    television or radio stations broadcasting to the public at large, and 
    publishers of periodicals (but only in those instances when they can 
    qualify as disseminators of ``news'') who make their products available 
    for purchase or subscription by the general public. These examples are 
    not meant to be all-inclusive. Moreover, as traditional methods of news 
    delivery evolve (e.g., electronic dissemination of newspapers through 
    telecommunications services), such alternative media would be included 
    in this category. In the case of ``freelance'' journalists, they may be 
    regarded as working for a news organization if they can demonstrate a 
    solid basis for expecting publication though that organization, even 
    through not actually employed by it. A publication contract would be 
    the clearest proof, but Components may also look to the past 
    publication record of a requester in making this determination.
        (ii) To be eligible for inclusion in this category, a requester 
    must meet the criteria in paragraph (e)(7)(i) of this section and his 
    or her request must not be made for commercial use. A request for 
    records supporting the news dissemination function of the requester 
    shall not be considered to be a request that is for a commercial use. 
    For example, a document request by a newspaper for records relating to 
    the investigation of a defendant in a current criminal trial of public 
    interest could be presumed to be a request form an entity eligible for 
    inclusion in this category, and entitled to records at the cost of 
    reproduction alone (excluding charges for the first 100 pages).
        (iii) ``Representative of the news media'' does not include private 
    libraries, private repositories of Government records, or middlemen, 
    such as information vendors or data brokers.
        (8) All other requesters. Components shall charge requesters who do 
    not fit into any of the categories described in paragraphs (e)(3), 
    (e)(4), (e)(5), or (e)(7) of this section fees which recover the full 
    direct cost of searching for and duplicating records, except that the 
    first two hours of search time and the first 100 pages of duplication 
    shall be furnished without charge. Requesters must reasonably describe 
    the records sought (see Sec. 286.4(h)). Requests from subjects about 
    themselves will continue to be treated under the fee provisions of the 
    Privacy Act of 1974, which permit fees only for duplication. Components 
    are reminded that this category of requester may also be eligible for a 
    wavier or reduction of fees if disclosure of the information is in the 
    public interest as defined under paragraph (d)(1) of this section. (See 
    also paragraph (e)(3)(ii) of this section)
        (f) Aggregating requests. Except for requests that are for a 
    commercial use, a Component may not charge for the first two hours of 
    search time or for the first 100 pages of reproduction. However, a 
    requester may not file multiple requests at the same time, each seeking 
    portions of a document or documents, solely in order to avoid payment 
    of fees. When a Component reasonably believes that a requester or, on 
    rare occasions, a group of requesters acting in concert, is attempting 
    to break a request down into a series of requests for the purpose of 
    avoiding the assessment of fees, the Agency may aggregate any such 
    requests and charge accordingly. One element to be considered in 
    determining whether a belief would be reasonable is the time period in 
    which the requests have occurred. For example, it would be reasonable 
    to presume that multiple requests of this type made within a 30 day 
    period had been made to avoid fees. For requests made over a longer 
    period however, such a presumption becomes harder to sustain and 
    Components should have a solid basis for determining that aggregation 
    is warranted in such cases. Components
    
    [[Page 35372]]
    
    are cautioned that before aggregating requests from more than one 
    requester, they must have a concrete basis on which to conclude that 
    the requesters are acting in concert and are acting specifically to 
    avoid payment of fees. In no case may Components aggregate multiple 
    requests on unrelated subjects from one requester.
        (g) Effect of the Debt Collection Act of 1982 (5 U.S.C. 5515 note). 
    The Debt Collect Act of 1982 (5 U.S.C. 5515 note) provides for a 
    minimum annual rate of interest to be charged on overdue debts owed the 
    Federal Government Components may levy this interest penalty for any 
    fees that remain outstanding 30 calendar days from the date of billing 
    (the first demand notice) to the requester of the amount owed. The 
    interest rate shall be as prescribed in 31 U.S.C. 3717 U.S.C. 3717. 
    Components should verify the current interest rate with respective 
    Finance and Accounting Offices. After one demand letter has been sent, 
    and 30 calendar days have lapsed with no payment, Components may submit 
    the debt to respective Finance and Accounting Offices for collection 
    pursuant to 5 U.S.C. 5515 note.
        (h) Computation of fees. The fee schedule in this subpart shall be 
    used to compute the search, review (in the case of commercial 
    requesters) and duplication costs associated with processing a given 
    FOIA request. Cost shall be computed on time actually spent. Neither 
    time-based no dollar-minimum charges for search, review and duplication 
    are authorized.
    
    
    Sec. 286.29  Collection of fees and rates.
    
        (a) Collection of fees. Collection of fees will be made at the time 
    of providing the documents to the requester or recipient when the 
    requester specifically states that the costs involved shall be 
    acceptable or acceptable up to a specified limit that covers the 
    anticipated costs. Collection of fees may not be made in advance unless 
    the requester has failed to pay previously assessed fees within 30 
    calendar days from the date of the billing by the DoD Component, or the 
    Component has determined that the fees will be in excess of $250 (see 
    Sec. 286.28 (e)).
        (b) Search time--(1) Manual search.
    
    ------------------------------------------------------------------------
                                                                      Hourly
                    Type                            Grade              rate 
                                                                       ($)  
    ------------------------------------------------------------------------
    Clerical...........................  E9/GS8 and................       12
                                         below.....................         
    Professional.......................  O1-O1/GS9-GS15............       25
    Executive..........................  O7/GS16/ES1 and above.....       45
    ------------------------------------------------------------------------
    
        (2) Computer search. Fee assessments for computer search consists 
    of two parts; individual time (hereafter referred to as human time), 
    and machine time.
        (i) Human time. Human time is all time spent by humans performing 
    the necessary tasks to prepare the job for a machine to execute the run 
    command. If execution of a run requires monitoring by a human, that 
    human time may be also assessed as computer search. The terms 
    ``programmer/operator'' shall not be limited to the traditional 
    programmers or operators. Rather, the terms shall be interpreted in 
    their broadest sense to incorporate any human involved in performing 
    the computer job (e.g. technician, administrative support, operator, 
    programmer, database administrator, or action officer).
        (ii) Machine time. Machine time involves only direct costs of the 
    Central Processing Unit (CPU), input/output devices, and memory 
    capacity used in the actual computer configuration. Only this CPU rate 
    shall be charged. No other machine related costs shall be charged. In 
    situation where the capability does not exist to calculate CPU time, no 
    machine costs can be passed on to the requester. When CPU calculations 
    are not available, only human time costs shall be assessed to 
    requesters. Should DoD Components lease computers, the services charged 
    by the lessor shall not be passed to the requester under the FOIA.
        (c) Duplication.
    
    ------------------------------------------------------------------------
                      Type                        Cost per page (cents)     
    ------------------------------------------------------------------------
    Pre-Printed material...................  02                             
    Office Copy............................  15                             
    Microfiche.............................  25                             
    Computer Copies (tapes, discs or         Actual cost of duplicating the 
     printouts).                              tape, disc or printout        
                                              (includes operator's time and 
                                              cost of the medium).          
    ------------------------------------------------------------------------
    
        (d) Review time (in the case of commercial requesters).
    
                                                                            
    ------------------------------------------------------------------------
                                                                      Hourly
                    Type                            Grade              rate 
                                                                       ($)  
    ------------------------------------------------------------------------
    Clerical...........................  E9/GS8 and below..........       12
    Professional.......................  O1-O6/GS9-GS15............       25
    Executive..........................  O7/GS16/ES1 and above.....       45
    ------------------------------------------------------------------------
    
        (e) Audiovisual documentary materials. Search costs are computed as 
    for any other record. Duplication cost is the actual direct cost of 
    reproducing the material, including the wage of the person doing the 
    work. Audiovisual materials provided to a requester need not be in 
    reproducible format or quality.
        (f) Other records. Direct search and duplication cost for any 
    record not described in this section shall be computed in the manner 
    described for audiovisual documentary material.
        (g) Cost for special services. Complying with requests for special 
    services is at the discretion of the Components. Neither the FOIA, nor 
    its fee structure cover these kinds of services. Therefore, Components 
    may recover the costs of special services requested by the requester 
    after agreement has been obtained in writing from the requester to pay 
    for one or more of the following services:
        (1) Certifying that records are true copies.
        (2) Sending records by special methods such as express mail, etc.
    
    
    Sec. 286.30  Collection of fees and fee rates for technical data.
    
        (a) Fees for technical data. (1) Technical data, other than 
    technical data that discloses critical technology with military or 
    space application, if required to be released under the FOIA, shall be 
    released after the person requesting such technical data pays all 
    reasonable costs attributed to search, duplication and review of the 
    records to be released. Technical data, as used in this section, means 
    recorded information, regardless of the form or method of the recording 
    of a scientific or technical nature (including computer software 
    documentation). This term does not include computer software, or data 
    incidental to contract administration, such as financial an/or 
    management information. DoD Components shall retain the amounts 
    received by such a release, and it shall be merged with and available 
    from which the costs were incurred in complying with request. All 
    reasonable costs as used in this sense are the full costs to the 
    Federal Government of rendering the service, or fair market value of 
    the service, whichever is higher. Fair market value shall be
    
    [[Page 35373]]
    
    determined in accordance with commercial rates in the local 
    geographical area. In the absence of a known market value, charges 
    shall be based on recovery of full costs to the Federal Government. The 
    full costs shall include all direct and indirect costs to conduct the 
    search and to duplicate the records responsive to the request. This 
    cost is to be differentiated from the direct costs allowable under this 
    section for other types of information released under FOIA.
        (2) Waiver. Components shall waive the payment of costs required in 
    paragraph (a)(1) of this section which are greater than the costs that 
    would be required for release of this same information under 
    Sec. 286.29 if:
        (i) The request is made by a citizen of the United States or a 
    United States corporation, and such citizen or corporation certifies 
    that the technical data requested is required to enable it to submit an 
    offer, or determine whether it is capable of submitting an offer to 
    provide the product to which the technical data relates to the United 
    States or a contractor with the United States. However, Components may 
    require the citizen or corporation to pay a deposit in an amount equal 
    to not more than the cost of complying with the request, which will be 
    refunded upon submission of an offer by the citizen or corporation;
        (ii) The release of technical data is requested in order to comply 
    with the terms of an international agreement; or
        (iii) The Component determines in accordance with 
    Sec. 286.28(d)(a), that such a waiver is in the interest of the United 
    States.
        (b) Fee rates--(1) Search time--(i) Manual search.
    
    ------------------------------------------------------------------------
                                                                      Hourly
                    Type                            Grade              rate 
                                                                       ($)  
    ------------------------------------------------------------------------
    Clerical...........................  E9/GS8 and   below........    13.25
    (Minimum charge)...................  ..........................     8.30
    ------------------------------------------------------------------------
    
        (ii) Professional and executive (To be established at actual hourly 
    rate prior to search. A minimum charge will be established at \1/2\ 
    hourly rates). Computer search is based on the total cost of the 
    central processing unit, input-output devices, and memory capacity of 
    the actual computer configuration. The wage (based upon the scale in 
    paragraph (b)(1)(i) of this section) for the computer operator and/or 
    programmer determining how to conduct, and subsequently executing the 
    search will be recorded as part of the computer search. See 
    Sec. 286.29(b)(2) for further details regarding computer search.
        (2) Duplication.
    
    ------------------------------------------------------------------------
                                  Type                                 Cost 
    ------------------------------------------------------------------------
    Aerial photograph maps, specifications, permits, charts,                
     blueprints, and other technical engineering documents.........    $2.50
    Engineering data (microfilm):                                           
      Aperture cards:                                                       
        Silver duplicate negative, per card........................      .75
        When key punched and verified, per card....................      .85
        Diazo duplicate negative, per card.........................      .65
        When key punched and verified, per card....................      .75
    35mm roll film, per frame......................................      .50
    16mm roll film, per frame......................................      .45
    Paper prints (engineering drawings), each......................     1.50
    Paper reprints of microfilm indices, each......................      .10
    ------------------------------------------------------------------------
    
        (3) Review time.
    
    ------------------------------------------------------------------------
                                                                      Hourly
                    Type                            Grade              rate 
                                                                       ($)  
    ------------------------------------------------------------------------
    Clerical...........................  E9/GS8 and   below........    13.25
    (Minimum charge)...................  ..........................     8.30
    ------------------------------------------------------------------------
    
        (4) Professional and executive (To be established at actual hourly 
    rate prior to review. A minimum charge will be established at an hourly 
    rate).
        (5) Other technical data records. Charges for any additional 
    services not specifically provided in paragraph (b)(3) of this section 
    consistent with Volume 11A of DoD 7000.14-R,\12\ shall be made by 
    Components at the following rates:
    
        \12\ See footnote 1 to Sec. 286.1(a).
    
    Minimum charge for office copy (up to six images)..............    $3.50
    Each additional image..........................................       10
    Each typewritten page..........................................     3.50
    Certification and validation with seal, each...................     5.20
    Hand-drawn plots and sketches, each hour or fraction thereof...    12.00
                                                                            
    
    Subpart G--Reports
    
    
    Sec. 286.33  Reports control.
    
        (a) Each DoD Component shall compile FOIA statistics on a fiscal 
    year basis beginning October 1, 1997, and report same to the 
    Directorate for Freedom of Information and Security Review, Office of 
    the Assistant Secretary of Defense (Public Affairs) (DFOISR, OASD(PA)) 
    no later than November 30 following the fiscal year's close. In turn, 
    DFOISR, OASD(PA) will produce a consolidated DoD report for submission 
    to the Attorney General.
        (b) Existing DoD standards and registered data elements are to be 
    utilized to the greatest extent possible in accordance with the 
    provisions of DoD 8320.1-M,\13\ ``Data Administration Procedures''.
    ---------------------------------------------------------------------------
    
        \13\ See footnote 1 to Sec. 286.1(a).
    ---------------------------------------------------------------------------
    
        (c) The reporting requirement outlined in this subpart is assigned 
    Report Control Symbol DD-PA(A)1365.
    
    
    Sec. 286.34  Annual report content.
    
        The current edition of DD Form 2564 will be used to submit 
    component input. Instructions for completion follow:
        (a) Item 1. Initial request determinations.
        (1) Total requests processed. Enter the total number of initial 
    FOIA requests responded to (completed) during the fiscal year.
    
        Note: Since more than one action frequently is taken on a 
    completed case, Total Actions, (see paragraph (a)(6) of this 
    section) the sum of paragraphs (a)(2) through (a)(5) of this section 
    can exceed Total Requests Processed (See Appendix F to this part for 
    form layout).
    
        (2) Granted in full. Enter the total number of initial FOIA 
    requests responded to that were granted in full during the fiscal year. 
    (This may include requests granted by your office, yet still requiring 
    action by another office.)
        (3) Denied in part. Enter the total number of initial FOIA requests 
    responded to and denied in part based on one or more of the nine FOIA 
    exemptions. (Do not report denial of fee waivers.)
        (4) Denied in full. Enter the total number of initial FOIA requests 
    responded to and denied in full based on one or more of the nine FOIA 
    exemptions. (Do not report denial of fee waivers.)
        (5) ``Other reason'' responses. Enter the total number of initial 
    FOIA requests in which you were unable to provide all or part of the 
    requested information based on an ``other reason'' response. Paragraph 
    (b)(2) of this section explains the six possible ``other reasons''.
        (6) Total Actions. Enter the total number of FOIA actions taken 
    during the fiscal year. This number will be the sum of paragraph (a)(2) 
    through (a)(5) of this section.
    
        Note. Total actions must be equal to or greater than the number 
    of total requests processed (paragraph (a)(1) of this section).)
    
        (b) Item 2. (1) Exemptions Invoked on Initial REQUEST 
    Determinations. Enter the number of times an exemption was
    
    [[Page 35374]]
    
    claimed for each request that was denied in full or in part. Since more 
    than one exemption may be claimed when responding to a single request, 
    this number will be equal to or greater than the sum of paragraphs 
    (a)(3) and (a)(4) of this section.
        (2) ``Other reasons'' cited on initial determinations. Identify the 
    ``other reason'' response cited when responding to a FOIA request and 
    enter the number of times each was claimed.
        (i) Transferred request. Enter the number of times a request was 
    transferred to another DoD component or Federal Agency for action.
        (ii) Lack of records. Enter the number of times a search of files 
    failed to identify records responsive to subject request.
        (iii) Failure of requester to reasonably describe record. Enter the 
    number of times a FOIA request could not be acted upon since the 
    requester failed to reasonably describe the record(s) being sought.
        (iv) Other failures by requester to comply with published rules 
    and/or directives. Enter the number of times a requester failed to 
    follow published rules concerning time, place, fees, and procedures.
        (v) Request withdrawn by requester. Enter the number of times a 
    requester withdrew a request and/or appeal.
        (vi) Not an agency record. Enter the number of times a requester 
    was provided a response indicating the requested information was not an 
    agency record.
        (vii) Total. Enter the sum of paragraph (b)(2)(i) through 
    (b)(2)(vi) of this section. This number will be equal to or greater 
    than the number in paragraph (a)(5) of this section since more than one 
    reason may be claimed for each ``other reason'' response.
        (c) Item 3. Appeal determinations.
        (1) Total appeal responses. Enter the total number of FOIA appeals 
    responded to (completed) during the fiscal year.
        (2) Granted in full. Enter the total number of FOIA appeals 
    responded to and granted in full during the year.
        (3) Denied in part. Enter the total number of FOIA appeals 
    responded to and denied in part based on one or more of the nine FOIA 
    exemptions.
        (4) Denied in full. Enter the total number of FOIA appeals 
    responded to and denied in full based on one or more of the nine FOIA 
    exemptions.
        (5) ``Other reason'' responses. Enter the total number of FOIA 
    appeals in which you were unable to provide the requested information 
    based on an ``other reason'' response. Paragraph (b)(2) of this section 
    explains the six possible ``other reasons''.
        (6) Total actions. Enter the total number of FOIA appeal actions 
    taken during the fiscal year. This number will be the sum of paragraphs 
    (c)(2) through (c)(5) of this section and should be equal or greater 
    than the number of total appeal responses, paragraph (c)(1) of this 
    section.
        (d) Item 4. (1) Exemtions invoked on appeal determinations. Enter 
    the number of times an exemption was claimed for each appeal that was 
    denied in full or in part. Since more than one exemption may be claimed 
    when responding to a single request, this number will be equal to or 
    greater than the sum of paragraphs (c)(3) and (c)(4) of this section.
        (2) ``Other reasons'' cited on appeal determinations. Identify the 
    ``other reason'' response cited when responding to a FOIA appeal and 
    enter the number of times each was claimed. See paragraph (b)(2) of 
    this section for description of ``other reasons''. This number can be 
    equal to or possibly greater than the number in paragraph (c)(5) of 
    this section since more than one reason may be claimed for each ``other 
    reason'' response.
        (e) Item 5. Exemption 3 statutes invoked on initial and appeal 
    determinations. Identify the number of times you have used a specific 
    statute to support each use of exemption 3 identified in paragraphs 
    (b)(1) and (d)(1) of this section. List the statutes used to support 
    each use of exemption 3; the number of instances in which the statute 
    was cited; note whether or not the statute has been upheld in a court 
    hearing; and provide a concise description of the material withheld in 
    each individual case by the statute's use. Ensure you cite specific 
    sections of acts invoked. To qualify as a 5 U.S.C. 552(b)(3) exemption, 
    the statute must contain clear wording that the information covered 
    will not be disclosed. The total number of instances reported above 
    will be equal to or greater than the total number of 5 U.S.C. 552(b)(3) 
    exemptions listed in paragraphs (b)(1) and (d)(1) of this section.
        (f) Item 6. Number and median age of cases pending as of September 
    30 of the preceding year. (1) Total number of initial requests pending 
    as of September 30, preceding year. Enter the total number of initial 
    FOIA requests pending (open) as of the day before the current reporting 
    period began (September 30 previous to the reported period, fiscal 
    year).
        (2) Median age of requests pending as of September 30 of the 
    preceding year. Enter the median age of pending FOIA requests as of the 
    day before the current reporting period began (September 30 previous to 
    the reported period, fiscal year).
        (3) Examples. (i) Given five cases aged 10, 25, 35, 65, and 100 
    days from date of receipt as of the previous September 30. The total 
    requests pending is five. The median age (days) of open requests is the 
    middle, not average value, in this set of numbers (10, 25, 35, 65, and 
    100), 35 (the middle value in the set).
        (ii) Given six pending cases, aged 10, 20, 30, 50, 120, and 200 
    days from date of receipt, as of the previous September 30, the total 
    requests pending is six. The median age (days) of open requests 40 days 
    (the mean [average] of the two middle numbers in the set, in this case 
    the average of middle values 30 and 50).
        (g) Item 7. Number of initial requests received during the fiscal 
    year. Enter the total number of initial FOIA requests received during 
    the reporting period (fiscal year being reported).
        (h) Item 8. Types of requests processed and median age. Information 
    is reported for three types of initial requests completed during the 
    reporting period: Simple; Complex; and Expedited Processing. The 
    following items of information are reported for these requests:
        (1) Total number of initial requests. Enter the total number of 
    initial requests processed during the reporting period (fiscal year) by 
    type (Simple, complex and expedited processing) in the appropriate row 
    on the form.
        (2) Median age (days). Enter the median number of days required to 
    process each type of case (Simple, complex and expedited processing) 
    during the period in the appropriate row on the form.
        (3) Example. Given seven initial requests, multitrack--Simple 
    completed during the fiscal year, aged 10, 25, 35, 65, 79, 90 and 400 
    days when completed. The total number of requests completed was seven. 
    The median age (days) of completed requests is 65, the middle value in 
    the set.
        (i) Item 9. Fees collected from the public. Enter the total amount 
    of fees collected from the public during the fiscal year. This includes 
    search, review and reproduction costs only.
        (j) Item 10--(1) FOIA program costs.--(i) Personnel costs. 
    Paragraphs (j)(1)(i) and (j)(1)(ii) of this section are used to capture 
    man-years and salary costs of personnel primarily involved in planning, 
    program management and/or administrative handling of FOIA requests. 
    Determine salaries for military personnel by using the composite
    
    [[Page 35375]]
    
    standard pay rates (DoD 7220.9-M \14\). For civilian personnel use 
    Office of Personnel Management salary table and add 16% for benefits. A 
    sample computation is shown:
    ---------------------------------------------------------------------------
    
        \14\ See footnote 1 to Sec. 286.1(a).
    
    ----------------------------------------------------------------------------------------------------------------
                                                                   Number of                 Percent of             
                                Grade                              personnel      Salary        time        Costs   
    ----------------------------------------------------------------------------------------------------------------
    O-5.........................................................            1      $90,707           10       $9,071
    O-1.........................................................            1       37,545           10        3,755
    E-7.........................................................            1       44,375           50       22,188
                                                                 ---------------------------------------------------
        Totals..................................................            3  ...........           70       35,014
    ----------------------------------------------------------------------------------------------------------------
    
        (A) Estimated man-years. Add the total percentages of time for 
    personnel involved in administering the FOIA program and divide by 100. 
    In the example shown in the table in this paragraph (j)(1)(i), 
    (10+10+50)/100=.7 man-years.
        (B) Man-year costs. Total costs associated with salaries of 
    individuals involved in administering FOIA program. In the example 
    shown in the table in this paragraph (j)(1)(i), the total cost if 
    $35,014.
        (C) Estimated man-hour costs by category. This section accounts for 
    all other personnel not reported in paragraphs (j)(1)(i)(A) and 
    (j)(1)(i)(B) of this section who are involved in processing FOIA 
    requests. Enter the total hourly cost for each of the five areas 
    described.
        (1) Search time. This includes only those direct costs associated 
    with time spent looking for material that is responsive to a request, 
    including line-by-line identification of material within a document to 
    determine if it is responsive to the request. Searches may be done 
    manually or by computer using existing programming.
        (2) Review and excising. This includes all direct costs incurred 
    during the process of examining documents located in response to a 
    request to determine whether any portion of any document located is 
    permitted to be withheld. It also includes excising documents to 
    prepare them for release. It does not include time spent resolving 
    general legal or policy issues regarding the application of exemptions.
        (3) Coordinatoin and approval. This includes all costs involved in 
    coordinating the release/denial of documents requested under the FOIA.
        (4) Correspondence/form preparation. This includes all costs 
    involved in typing responses, filling out forms, etc., to respond to a 
    FOIA request.
        (5) Other activities. This includes all other processing costs not 
    covered above, such as processing time by the mail room.
        (6) Total. Enter the sum of paragraphs (j)(1)(A) through 
    (j)(1)(i)(E) of this section.
        (D) Overhead. This is the cost of supervision, space, and 
    administrative support. It is computed as 25% of the sum of paragraphs 
    (j)(1)(i)(B) and (j)(1)(i)(C) of this section.
        (E) Total. Enter the sum of paragraphs (j)(1)(i)(B), (j)(1)(i)(C) 
    and (j)(1)(i)(D) of this section.
        (ii) Other case-related costs. Using the fee schedule, enter the 
    total amounts incurred in each of the following paragraphs.
        (A) Computer search time. This includes cost of central processing 
    unit, input/output devices, memory, etc. of the computer system used, 
    as well as the wage of the machine's operator/programmer. Since desk 
    top/personal computers have no central processing units, when these 
    systems are involved, computer search shall consist only of personnel 
    time to accomplish the job.
        (B) Office copy reproduction. This is the cost of reproducing 
    normal documents with office copying equipment.
        (C) Microfiche reproduction. This is the cost of reproducing 
    records and providing microfiche.
        (D) Printed records. This is the cost of providing reproduced 
    copies of forms, publications, or reports.
        (E) Computer copy. This is the actual cost of duplicating magnetic 
    tapes, floppy diskettes, computer printouts, etc.
        (F) Audiovisual materials. This is the actual cost of duplicating 
    audio or video tapes or like materials, to include the wage of the 
    person doing the work.
        (G) Other. Report all other costs which are easily identifiable, 
    such as per diem, operation of courier vehicles, training courses, 
    printing (indexes and forms), long distance telephone calls, special 
    mail services, use of indicia, etc.
        (H) Subtotal. Enter the sum of paragraphs (j)(1)(ii)(A) through 
    (j)(1)(ii)(G) of this section.
        (I) Overhead. This is the cost of supervision, space, and 
    administrative support. It is computed as 25% of paragraph 
    (j)(1)(ii)(H) of this section.
        (J) Total. Enter the sum of paragraphs (j)(1)(ii)(H) and 
    (j)(1)(ii)(I) of this section.
        (iii) Cost of routine requests processed. This item is optional. 
    Some reporting activities may find it economical to develop an average 
    cost factor for processing repetitive routine requests rather than 
    tracking costs on each request as it is processed. Care should be 
    exercised so that costs are comprehensive to include a 25% overhead, 
    yet are not duplicated elsewhere in the report. Multiply the number of 
    routine requests processed time the cost factor to compute this amount.
        (iv) Total costs. Enter the sum of paragraphs (j)(1)(i) through 
    (j)(1)(iii) of this section.
        (2) Number of full time staff. Enter the number of people in your 
    agency that process FOIA actions full time.
        (k) Item 11. Date report prepared. Enter the date the report was 
    completed and signed by an approving official.
        (l) Item 12. Name, address & phone number of agency. Enter data for 
    the agency or activity that prepared the report.
        (m) Item 13. Signature, typed name, and title of approving 
    official. Enter the name and title of the individual approving the 
    report. Approval of the report is indicated by the official's 
    signature.
    
    Subpart H--Education and Training
    
    
    Sec. 286.37  Respnsibility and purpose.
    
        (a) Responsibility. The Head of each DoD Component is responsible 
    for the establishment of educational and training programs on the 
    provisions and requirements of this part. The educational programs 
    should be targeted toward all members of the DoD Component, developing 
    a general understanding and appreciation of the DoD FOIA Program; 
    whereas, the training programs should be focused toward those personnel 
    who are
    
    [[Page 35376]]
    
    involved in the day-to-day processing of FOIA requests, and should 
    provide a thorough understanding of the procedures outlined in this 
    part.
        (b) Purpose. The purpose of the educational and training programs 
    is to promote a positive attitude among DoD personnel and raise the 
    level of understanding and appreciation of the DOD FOIA Program, 
    thereby improving the interaction with members of the public and 
    improving the public trust in the DoD.
        (c) Scope and principles. Each Component shall design its FOIA 
    educational and training programs to fit the particular requirements 
    depending upon their degree of involvement in the implementation of 
    this part. The program should be designed to accomplish the following 
    objectives:
        (1) Familiarize personnel with the requirements of the FOIA and its 
    implementation by this part.
        (2) Instruct personnel, who act in FOIA matters, concerning the 
    provisions of this part, advising them of the legal hazards involved 
    and the strict prohibition against arbitrary and capricious withholding 
    of information.
        (3) Provide for the procedural and legal guidance and instruction, 
    as may be required, in the discharge of the responsibilities of initial 
    denial and appellate authorities.
        (4) Advise personnel of the penalties for noncompliance with the 
    FOIA.
        (d) Implementation. To ensure uniformity of interpretation, all 
    major educational and training programs concerning the implementation 
    of this part should be coordinated with the Director, Freedom of 
    Information and Security Review, OASD(PA).
        (e) Uniformity of legal interpretation. In accordance with DoD 
    Directive 5400.7, the DoD Office of the General Counsel shall ensure 
    uniformity in the legal position and interpretation of the DoD FOIA 
    Program.
    
    Appendix A to Part 286--Combatant Commands--Processing Procedures for 
    FOIA Appeals
    
    1. General
    
        a. In accordance with DoD Directive 5400 \1\ and this part, the 
    Combatant Commands are placed under the jurisdiction of the Office 
    of the Secretary of Defense, instead of the administering Military 
    Department, only for the purpose of administering the Freedom of 
    Information Act (FOIA) Program. This policy represents an exception 
    to the policies in DoD Directive 5100.3.\2\
    ---------------------------------------------------------------------------
    
        \1\ Copies may be obtained, at cost, from the National Technical 
    Information Service 5285 Port Royal Road, Springfield, VA 22161.
        \2\ See footnote 1 to section 1.a. of this appendix.
    ---------------------------------------------------------------------------
    
        b. The policy change in paragraph 1.a. of this section 
    authorizes and requires the Combatant Commands to process FOIA 
    requests in accordance with DoD Directive 5100.7 and DoD Instruction 
    54001.10 \3\ and to forward directly to the OASD(PA) all 
    correspondence associated with the appeal of an initial denial for 
    information under the provisions of the FOIA.
    ---------------------------------------------------------------------------
    
        \3\ See footnote 1 to section 1.a. of this appendix.
    ---------------------------------------------------------------------------
    
    2. Responsibilities of Commands
    
        Combatant Commanders in Chief shall:
        a. Designate the officials authorized to deny initial FOIA 
    requests for records.
        b. Designate an office as the point-of-contact for FOIA matters.
        c. Refer FOIA cases to the OASD(PA) for review and evaluation 
    when the issues raised are of unusual significance, precedent 
    setting, or otherwise require special attention or guidance.
        d. Consult with other OSD and DoD Components that may have a 
    significant interest in the requested record prior to a final 
    determination. Coordination with Agencies outside of the Department 
    of Defense, if required, is authorized.
        e. Coordinate proposed denials of records with the appropriate 
    Combatant Command's Office of the Staff Judge Advocate.
        f. Answer any request for a record within 10 working days (20 
    working days effective October 2, 1997) of receipt. The requester 
    shall be notified that his request has been granted or denied. In 
    unusual circumstances, such notification may state that additional 
    time, not to exceed 10 working days, is required to make 
    determination.
        g. Provide to the OASD(PA) when the request for a record is 
    denied in whole or in part, a copy of the response to the requester 
    or his representative, and any internal memoranda that provide 
    background information or rationale for the denial.
        h. State in the response that the decision to deny the release 
    of the requested information, in whole or in part, may be appealed 
    to the Assistant Secretary of Defense for Public Affairs, 
    Directorate for Freedom of Information and Security Review, Room 
    2C757, the Pentagon, Washington, DC 20301-1400.
        i. Upon request, submit to OASD(PA) a copy of the records that 
    were denied. ASD(PA) shall make such requests when adjudicating 
    appeals.
    
    3. Fees for FOIA Requests
    
        The fees charged for requested records shall be in accordance 
    with subpart F of this part.
    
    4. Communications
    
        Excellent communication capabilities currently exists between 
    the OASD(PA) and the Public Affairs Offices of the Combatant 
    Commands. This communication capability shall be used for FOIA cases 
    that are time sensitive.
    
    5. Information Requirements
    
        a. The Combatant Commands shall submit to the OASD(PA) an annual 
    report. The instructions for the report are outlined in subpart G of 
    this part.
        b. The annual reporting requirement contained in this regulation 
    shall be submitted in duplicate to the OASD(PA) not later than each 
    November 30. This reporting requirement has been assigned Report 
    Control Symbol DD-PA(A) 1365 in accordance with DoD 8910.1-M. \4\
    ---------------------------------------------------------------------------
    
        \4\ See footnote 1 to section 1.a. of this appendix.
    ---------------------------------------------------------------------------
    
    Appendix B to Part 286--Addressing FOIA Requests
    
    1. General
    
        a. The Department of Defense includes the Office of the 
    Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the 
    Military Departments, the Combatant Commands, the Inspector General, 
    the Defense Agencies, and the DoD Field Activities.
        b. The Department of Defense does not have a central repository 
    for DoD records. FOIA requests, therefore, should be addressed to 
    the DoD Component that has custody of the record desired. In 
    answering inquiries regarding FOIA requests, DoD personnel shall 
    assist requesters in determining the correct DoD Component to 
    address their requests. If there is uncertainty as to the ownership 
    of the record desired, the requester shall be referred to the DoD 
    Component that is most likely to have the record.
    
    2. Listing of DoD Component Addresses for FOIA Requests
    
        a. Office of the Secretary of Defense and the Chairman of the 
    Joint Chiefs of Staff. Send all requests for records from the below 
    listed offices to: Office of the Assistant Secretary of Defense 
    (Public Affairs), ATTN: Directorate for Freedom of Information and 
    Security Review, Room 2C757, 1400 Defense Pentagon, Washington, DC 
    20301-1400.
    
    (1) Executive Secretariat
    (2) Under Secretary of Defense (Policy)
    (i) Assistant Secretary of Defense (International Security Affairs)
    (ii) Assistant Secretary of Defense (International Security Policy)
    (iii) Assistant Secretary of Defense (Special Operations & Low 
    Intensity Conflict)
    (iv) Assistant Secretary of Defense (Strategy & Requirements)
    (v) Deputy to the Under Secretary of Defense (Policy Support)
    (vi) Director of Net Assessment
    (vii) Defense Security Assistant Agency
    (viii) Defense technology Security Administration
    (3) Under Secretary of Defense (Acquisition & Technology)
    (i) Deputy Under Secretary of Defense (Logistics)
    (ii) Deputy Under Secretary of Defense (Advanced Technology)
    (iii) Deputy Under Secretary of Defense (Acquisition Reform)
    (iv) Deputy Under Secretary of Defense (Environmental Security)
    (v) Deputy Under Secretary of Defense (Space)
    (vi) Deputy Under Secretary of Defense (International & Commercial 
    Programs)
    (vii) Deputy Under Secretary of Defense (Industrial Affairs & 
    Installations)
    
    [[Page 35377]]
    
    (viii) Assistant to the Secretary of Defense (Nuclear, Chemical & 
    Biological Defense Programs)
    (ix) Director, Defense Research & Engineering
    (x) Director, Small & Disadvantaged Business Utilization
    (xi) Director, Defense Procurement
    (xii) Director, Test Systems Engineering & Evaluation
    (xiii) Director, Strategic & Tactical Systems
    (xiv) Director, Administration and Management
    (xv) Defense Evaluation Support Activity
    (xvi) DoD Radiation Experiments Command Center
    (xvii) On-Site Inspection Agency
    (4) Under Secretary of Defense (Comptroller)
    (5) Director Program Analysis and Evaluation
    (6) Under Secretary of Defense (Personnel & Readiness)
    (i) Assistant Secretary of Defense (Health Affairs)
    (ii) Assistant Secretary of Defense (Legislative Affairs)
    (iii) Assistant Secretary of Defense (Public Affairs)
    (iv) Assistant Secretary of Defense (Command, Control, 
    Communications & Intelligence)
    (v) Assistant Secretary of Defense (Reserve Affairs)
    (7) General Counsel, Department of Defense
    (8) Director, Operational Test and Evaluation
    (9) Assistant to the Secretary of Defense (intelligence Oversight)
    (10) Defense Advanced Research Projects Agency
    (11) Ballistic Missile Defense Organization
    (12) Defense Systems Management College
    (13) National Defense University
    (14) Armed Forces Staff College
    (15) Department of Defense Dependents Schools
    (16) Uniformed Services University of the Health Sciences
    (17) Armed Forces Radiology Research Institute
    (18) Washington Headquarters Service
    
        b. Department of the Army. Army records may be requested from 
    those Army officials who are listed in 32 CFR part 518. Send 
    requests to the Freedom of Information and Privacy Acts Office, 
    SAIS-IA-R/FP, Suite 201, 1725 Jefferson Davis Hwy, Arlington, VA 
    22202-4102, for records of the Headquarters, U.S. Army, or if there 
    is uncertainty as to which Army activity may have the records.
        c. Department of the Navy. Navy and Marine Corps records may be 
    requested from any Navy or Marine Corps activity by addressing a 
    letter to the Commanding Officer and clearly indicating that it is 
    an FOIA request. Send requests to Chief of Naval Operations, NO9B30, 
    2000 Navy, Pentagon, Washington, DC 20350-2000, for records of the 
    Headquarters, Department of the Navy, and to Commandant of the 
    Marine Corps, (ARAD), Headquarters U.S. Marine Corps, 2 Navy Annex, 
    Washington, DC 20380-1775, for records of the U.S. Marine Corps, or 
    if there is uncertainty as to which Navy or Marine activities may 
    have the records.
        d. Department of the Air Force. Air Force records may be 
    requested from the Commander of any Air Force installation, major 
    command, or field operating agency (ATTN: FOIA Office). For Air 
    Force records of Headquarters, United States Air Force, or if there 
    is uncertainty as to which Air Force activity may have the records, 
    send requests to Department of the Air Force, OL-P, 11CS/SCSR(FOIA), 
    Room 4A1088C, 1000 Air Force, Pentagon, Washington, DC 20330-1000.
        e. Defense Contract Audit Agency (DCAA). DCAA records may be 
    requested from any of its regional offices or from its Headquarters. 
    Requesters should send FOIA requests to the Defense Contract Audit 
    Agency, ATTN: CMR, 8725 John J. Kingman Road, Suite 2135, Fort 
    Belvoir, VA 22060-6219, for records of its headquarters or if there 
    is uncertainty as to which DCAA region may have the records sought.
        f. Defense Information Systems Agency (DISA). DISA records may 
    be requested from any DISA field activity or from its Headquarters. 
    Requesters should send FOIA requests to Defense Information Systems 
    Agency, Regulatory/General Counsel, 701 South Courthouse Road, 
    Arlington, VA 22204-2199.
        g. Defense Intelligence Agency (DIA). FOIA requests for DIA 
    records may be addressed to Defense Intelligence Agency, ATTN: SVI-
    1, Washington, DC 20340-5100.
        h. Defense Investigative Service (DIS). All FOIA requests for 
    DIS records should be sent to the Defense Investigative Service, 
    Office of FOIA and Privacy V0020, 1340 Braddock Place, Alexandria, 
    VA 22314-1651.
        i. Defense Logistics Agency (DLA). DLA records may be requested 
    from its headquarters or from any of its field activities. 
    Requesters should send FOIA requests to Defense Logistics Agency, 
    ATTN: DLA/CAAV, John J. Kingman Road, Suite 2533, Ft. Belvoir, VA 
    22060-6221.
        j. National Imagery and Mapping Agency (NIMA). FOIA requests for 
    NIMA records may be sent to the National Imagery and Mapping Agency, 
    General Counsel's Office, GCM, Mail Stop D-10, 4600 Sangamore Road, 
    Bethesda, MD 20816-5003.
        k. Defense Special Weapons Agency (DSWA). FOIA requests for DSWA 
    records may be sent to the Defense Special Weapons Agency, Public 
    Affairs Office, Room 113, 6801 Telegraph Road, Alexandria, VA 22310-
    3398.
        l. National Security Agency (NSA). FOIA requests for NSA records 
    may be sent to the National Security Agency/Central Security 
    Service, FOIA/PA Services, N5P5, 9800 Savage Road, Suite 6248, Fort 
    George G. Meade, MD 20755-6248.
        m. Inspector General of the Department of Defense (IG, DoD). 
    FOIA requests for IG, DoD records may be sent to the Inspector 
    General of the Department of Defense, Chief FOIA/PA Office, 400 Army 
    Navy Drive, Room 405, Arlington, VA 22202-2884.
        n. Defense Finance and Accounting Service (DFAS). DFAS records 
    may be requested from any of its regional offices or from its 
    Headquarters. Requesters should send FOIA requests to Defense Finace 
    and Accounting Service, Directorate for External Services, Crystal 
    Mall 3, Room 416, Arlington, VA 22240-5291, for records of its 
    Headquarters, or if there is uncertainty as to which DFAS region may 
    have the records sought.
        o. National Reconnaissance Office (NRO). FOIA requests for NRO 
    records may be sent to the National Reconnaissance Office, 
    Information Access and Release Center, Attn: FOIA Officer, 14675 Lee 
    Road, Chantilly, VA 20151-1715.
    
    3. Other Addresses
    
        Although the following organizaitons are OSD and Chairman of the 
    Joint Chiefs of Staff Components for the purposes of the FOIA, 
    requests may be sent directly to the addresses indicated:
        a. Office of Civilian Health and Medical Program of the 
    Uniformed Services (OCHAMPUS). Director, OCHAMPUS, ATTN: Freedom of 
    Information Officer, Aurora, CO 80045-6900.
        b. Chairman Armed Services Board of Contract Appeals (ASBCA). 
    Chairman, Armed Services Board of Contract Appeals, Skyline Six Rm 
    703, 5109 Leesburg Pike, Falls Church, VA 22041-3208.
        c. U.S. Central Command. Commander-in-Chief, Central Command, 
    CCJ1/AG, MacDill Air Force Base, FL 33608-7001.
        d. U.S. European Command. Commander-in-Chief, Headquarters, U.S. 
    European Command/ECJ1-AA(FOIA) Unit 30400 Box 1000, APO AE 09128-
    4209.
        e. U.S. Southern Command. Commander-in-Chief, U.S. Southern 
    Command, Unit 1110, SCJ1-A, APO AA 34003-0007.
        f. U.S. Pacific Command. Commander-in-Chief, U.S. Pacific 
    Command, USPACOM FOIA Coordinator (J042), Administrative Support 
    Division, Joint Secretariat, Box 28, Camp H.M. Smith, HI 96861-5025.
        g. U.S. Special Operations Command. Commander-in-Chief, U.S. 
    Special Operations Command, Chief, Command Information Management 
    Branch, ATTN: SOJ6-SI, 7701 Tampa Point Blvd., MacDill Air Force 
    Base, FL 33621-5323.
        h. U.S. Atlantic Command. Commander-in-Chief, U.S. Atlantic 
    Command, Code J02P, Norfolk, VA 23511-5100.
        i. U.S. Space Command. Commander-in-Chief, U.S. Space Command, 
    Command Records Manager/FOIA/PA Officer, 150 Vandenberg Street, 
    Suite 1105, Peterson Air Force Base, CO 80914-5400.
        j. U.S. Transportation Command. Commander-in-Chief, U.S. 
    Transportation Command, ATTN: TCIM-F, 508 Scott Drive, Scott Air 
    Force Base, IL 62225-5357.
        k. U.S. Strategic Command. Commander-in-Chief, U.S. Strategic 
    Command, Attn: J0734, 901 SAC Blvd., Suite 1E5, Offutt Air Force 
    Base, NE 68113-6073.
    
    4. National Guard Bureau
    
        FOIA requests for National Guard Bureau records may be sent to 
    the Chief, National Guard Bureau, ATTN: NGB-ADM, Room 2C363, 2500 
    Army Pentagon, Washington, DC 20310-2500.
    
    5. Miscellaneous
    
        If there is uncertainty as to which DoD Component may have the 
    DoD record sought, the requester may address a Freedom of 
    Information request to the Office of the Assistant Secretary of 
    Defense (Public Affairs), Directorate for Freedom of
    
    [[Page 35378]]
    
    Information and Security Review, Room 2C757, 1400 Defense Pentagon, 
    Washington, DC 20301-1400.
    
    Appendix C to Part 286--Other Reason Categories
    
    1. Transportation Requests
    
        This category applies when responsibility for making a 
    determination or a decision on category 2, 3, or 4 of this appendix 
    is shifted from one Component to another, or to another Federal 
    Agency.
    
    2. Lack of Records
    
        This category covers those situations wherein the requester is 
    advised the DoD Component has no record or has no statutory 
    obligation to create a record.
    
    3. Failure of Requester To Reasonably Describe Record
    
        This category is specifically based on section 552(a)(3)(a) of 
    the FOIA.
    
    4. Other Failures by Requesters To Comply With Published Rules or 
    Directives
    
        This category is based on Section 552(a)(3)(b) of the FOIA and 
    includes instances of failure to follow published rules concerning 
    time, place, fees, and procedures.
    
    5. Request Withdrawn by Requester
    
        This category covers those situations wherein the requester asks 
    an agency to disregard the request (or appeal) or pursues the 
    request outside FOIA channels.
    
    6. Not an Agency Record
    
        This category covers situations where the information requested 
    is not an agency record within the meaning of the FOIA and this 
    part.
    
    BILLING CODE 5000-04-M
    
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    BILLING CODE 5000-04-C
    
    [[Page 35385]]
    
    Appendix G to Part 286--DoD Freedom of Information Act Program 
    Components
    
    a. Office of the Secretary of Defense/Chairman of the Joint Chiefs 
    of Staff/Combatant Commands, Defense Agencies, and the DoD Field 
    Activities
    b. Department of the Army
    c. Department of the Navy
    d. Department of the Air Force
    e. Defense Information Systems Agency
    f. Defense Contract Audit Agency
    g. Defense Intelligence Agency
    h. Defense Investigative Science
    i. Defense Logistics Agency
    j. National Imagery and Mapping Agency
    k. Defense Special Weapons Agency
    l. National Security Agency
    m. Office of the Inspector General, Department of Defense
    n. Defense Finance and Accounting Service
    o. National Reconnaissance Office
    
        Dated: June 20, 1997.
    L.M. Bynum,
    Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 97-16742 Filed 6-30-97; 8:45 am]
    BILLING CODE 5000-04-M
    
    
    

Document Information

Effective Date:
5/22/1997
Published:
07/01/1997
Department:
Defense Department
Entry Type:
Rule
Action:
Final rule.
Document Number:
97-16742
Dates:
May 22, 1997.
Pages:
35351-35385 (35 pages)
Docket Numbers:
DoD 5400.7-R
PDF File:
97-16742.pdf
CFR: (35)
32 CFR 286.8(a)
32 CFR 286.7(b)(4)
32 CFR 286.29(b)(2)
32 CFR 286.4(d)
32 CFR 286.28(d)(a)
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