[Federal Register Volume 64, Number 177 (Tuesday, September 14, 1999)]
[Rules and Regulations]
[Pages 49850-49875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23344]
[[Page 49849]]
_______________________________________________________________________
Part III
Department of Defense
_______________________________________________________________________
Department of the Navy
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32 CFR Part 701
Availability of Records and Publication of Documents Affecting the
Public; Final Rule
Federal Register / Vol. 64, No. 177 / Tuesday, September 14, 1999 /
Rules and Regulations
[[Page 49850]]
DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 701
RIN 0703-AA53
Availability of Records and Publication of Documents Affecting
the Public
AGENCY: Department of the Navy, DOD.
ACTION: Final rule.
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SUMMARY: This rule amends regulations on the Department of the Navy's
Freedom of Information Act (FOIA) Program. This rule reflects changes
in the Secretary of the Navy's procedures.
DATES: Effective September 14, 1999.
ADDRESSES: Department of the Navy PA/FOIA Policy Branch, Office of the
Chief of Naval Operations, 2000 Navy Pentagon, Washington, DC 20350-
2000.
FOR FURTHER INFORMATION CONTACT: Mrs. Doris M. Lama, Head, DON PA/FOIA
Policy Branch, Office of the Chief of Naval Operations, 2000 Navy
Pentagon, Washington, DC 20350-2000, Telephone: (202) 685-6545.
SUPPLEMENTARY INFORMATION: Pursuant to the authority cited below, the
Department of the Navy amends 32 CFR part 701, subparts A, B, C, and D
derived from the Secretary of the Navy Instruction 5720.42 series,
which implements within the Department of the Navy the provisions of
Department of Defense Directives 5400.7 and 5400.7-R series, Department
of Defense Freedom of Information Act Program (32 CFR part 286). This
rule is being published by the Department of the Navy for guidance and
interest of the public in accordance with 5 U.S.C. 552(a)(1). It has
been determined that invitation of public comment on these changes to
the Department of the Navy's implementing instruction prior to adoption
would be impracticable and unnecessary, and it is therefore not
required under the public rulemaking provisions of 32 CFR parts 286 and
701, subpart E, and 5 U.S.C. 553(b). Interested persons, however, are
invited to comment in writing on this amendment. All written comments
received will be considered in making subsequent amendments or
revisions to 32 CFR part 701, subparts A, B, C, and D, or the
instruction upon which it is based. Changes may be initiated on the
basis of comments received. Written comments should be addressed to
Mrs. Doris M. Lama, Head, DON PA/FOIA Policy Branch, Office of the
Chief of Naval Operations, 2000 Navy Pentagon, Washington, DC 20350-
2000. It has been determined that this final rule is not a
``significant regulatory action'' as defined in Executive Order 12866.
List of Subjects in 32 CFR Part 701
Administrative practice and procedure, Freedom of Information,
Privacy.
Accordingly, the Department of the Navy revises 32 CFR part 701 to
read as follows:
PART 701--AVAILABILITY OF DEPARTMENT OF THE NAVY RECORDS AND
PUBLICATION OF DEPARTMENT OF THE NAVY DOCUMENTS AFFECTING THE
PUBLIC
Subpart A--Department of the Navy Freedom of Information Act (FOIA)
Program
Sec.
701.1 Purpose.
701.2 Navy FOIA website/FOIA handbook.
701.3 Applicability.
701.4 Responsibility and authority.
701.5 Policy.
701.6 Reading rooms.
701.7 Relationship between the FOIA and PA.
701.8 Processing FOIA requests.
701.9 Referrals.
701.10 Processing requests received from governmental officials.
701.11 Processing specific kinds of records.
701.12 FOIA appeals/litigation.
Subpart B--FOIA Definitions and Terms
701.13 5 U.S.C. 552(a)(1) materials.
701.14 5 U.S.C. 552(a)(2) materials.
701.15 5 U.S.C. 552(a)(3) materials.
701.16 Administrative appeal.
701.17 Affirmative information disclosure.
701.18 Agency record.
701.19 Appellate authority.
701.20 Discretionary disclosure.
701.21 Electronic record.
701.22 Exclusions.
701.23 Executive Order 12958.
701.24 Federal agency.
701.25 5 U.S.C. 552, Freedom of Information Act (FOIA).
701.26 FOIA exemptions.
701.27 FOIA terms location.
701.28 FOIA request.
701.29 Glomar response.
701.30 Initial Denial Authority (IDA).
701.31 Mosaic or compilation response.
701.32 Perfected request.
701.33 Public domain.
701.34 Public interest.
701.35 Reading room.
701.36 Release authorities.
701.37 Reverse FOIA.
701.38 Technical data.
701.39 Vaughn index.
Subpart C--FOIA Fees
701.40 Background.
701.41 FOIA fee terms.
701.42 Categories of requesters--applicable fees.
701.43 Fee declarations.
701.44 Restrictions.
701.45 Fee assessment.
701.46 Aggregating requests.
701.47 FOIA fees must be addressed in response letters.
701.48 Fee waivers.
701.49 Payment of fees.
701.50 Effect of the Debt Collection Act of 1982.
701.51 Refunds.
701.52 Computation of fees.
701.53 FOIA fee schedule.
701.54 Collection of fees and fee rates for technical data.
701.55 Processing FOIA fee remittances.
Subpart D--FOIA Exemptions
701.56 Background.
701.57 Ground rules.
701.58 In-depth analysis of FOIA exemptions.
701.59 A brief explanation of the meaning and scope of the nine
FOIA exemptions.
Authority: 5 U.S.C. 552.
Subpart A--Department of the Navy Freedom of Information Act (FOIA)
Program
Sec. 701.1 Purpose.
Subparts A, B, C, and D of this part issue policies and procedures
for implementing the Freedom of Information Act (5 U.S.C. 552), and
Department of Defense Directives 5400.7 and 5400.7-R series \1\
,Department of Defense Freedom of Information Act Program, (See 32 CFR
part 286) and promote uniformity in the Department of the Navy Freedom
of Information Act (FOIA) Program.
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\1\ Copies may be obtained if needed from the Navy FOIA Website
at http://www.ogc.secnav.hq.navy.mil/foia/index.html
_____________________________________-
Sec. 701.2 Navy FOIA website/FOIA handbook.
(a) The Navy FOIA website (http://www.ogc.secnav.hq.navy.mil/foia/
index.html) is an excellent resource for requesters and FOIA
coordinators. It provides connectivity to the Navy's official website,
to other FOIA and non/FOIA websites, and to the Navy's electronic
reading rooms.
(b) FOIA requesters are encouraged to visit the Navy FOIA website
prior to filing a request. It features a FOIA Handbook which provides:
guidance on how and where to submit requests; what's releasable/what's
not; addresses for frequently requested information; time limits and
addresses for filing appeals, etc. FOIA requesters may also use the
electronic FOIA request form on the website to seek access to records
originated by the Secretary of the Navy (SECNAV) or the Chief of Naval
Operations (CNO).
Sec. 701.3 Applicability.
(a) Subparts A, B, C, and D of this part apply throughout the
Department of the Navy (DON) and take precedence over
[[Page 49851]]
other DON instructions, which may serve to supplement it [i.e., Public
Affairs Regulations, Security Classification Regulations, Navy
Regulations, Marine Corps Orders, etc.]. Further, issuance of
supplementary instructions by DON activities, deemed essential to the
accommodation of perceived requirements peculiar to those activities,
may not conflict.
(b) The FOIA applies to ``records'' maintained by ``agencies''
within the Executive Branch of the Federal government, including the
Executive Office of the President and independent regulatory agencies.
It states that ``any person'' (U.S. citizen; foreigner, whether living
inside or outside the United States; partnerships; corporations;
associations; and foreign and domestic governments) has the right
enforceable by law, to access Federal agency records, except to the
extent that such records (or portions thereof) are protected from
disclosure by one or more of the nine FOIA exemptions or one of three
special law enforcement exclusions.
(c) Neither Federal agencies nor fugitives from justice may use the
FOIA to access agency records.
(d) The Department of Defense (DoD) FOIA directive states that the
FOIA programs of the U.S. Atlantic Command and the U.S. Pacific Command
fall under the jurisdiction of the Department of Defense and not the
Department of the Navy. This policy represents an exception to the
policies directed under DoD Directive 5100.3, ``Support of the
Headquarters of Unified, Specified, and Subordinate Commands.''
Sec. 701.4 Responsibility and authority.
(a) The Head, DON PA/FOIA Policy Branch [CNO (N09B30)] has been
delegated the responsibility for managing the DON's FOIA program, which
includes setting FOIA policy and administering, supervising, and
overseeing the execution of the 5 U.S.C. 552 and Department of Defense
Directives 5400.7 and 5400.7-R series, Department of Defense Freedom of
Information Act Program (see 32 CFR part 286).
(1) As principal DON FOIA policy official, CNO (N09B30) issues
SECNAV Instruction 5720.42; oversees the administration of the DON FOIA
program; issues and disseminates FOIA policy; oversees the Navy FOIA
website; represents the DON at all meetings, symposiums, and
conferences that address FOIA matters; writes the Navy's FOIA Handbook;
serves on FOIA boards and committees; serves as principal policy
advisor and oversight official on all FOIA matters; prepares the DON
Annual FOIA Report for submission to the Attorney General; reviews all
FOIA appeals to determine trends that impact on the DON; reviews all
FOIA litigation matters involving the DON and apprises the Director,
Freedom of Information and Security Review, DoD of same; responds to
depositions and litigation regarding DON FOIA policy Secretary of the
Navy Instruction 5820.8A, Release of Information for Litigation
Purposes and Testimony by DON Personnel; reviews/analyzes all proposed
FOIA legislation to determine its impact on the DON; develops a Navy-
wide FOIA training program and serves as training oversight manager;
conducts staff assistance visits/reviews within the DON to ensure
compliance with 5 U.S.C. 552 and this part; reviews all SECNAV and
Operations Navy instructions/forms that address FOIA; and oversees the
processing of FOIA requests received by SECNAV and Chief of Naval
Operations (CNO), to ensure responses are complete, timely, and
accurate. Additionally, N09B30 works closely with other DoD and DON
officials to ensure they are aware of highly visible and/or sensitive
FOIA requests being processed by the DON.
(2) SECNAV has delegated Initial Denial Authority (IDA) to N09B30
for requests at the Secretariat and OPNAV level.
(b) The Commandant of the Marine Corps is delegated responsibility
for administering and supervising the execution of this instruction
within the Marine Corps. To accomplish this task, the Director of
Administrative Resource Management (Code ARAD) serves as the FOIA
Coordinator for Headquarters, U.S. Marine Corps, and assists CNO
(N09B30) in promoting the Department of the Navy FOIA Program by
issuing a Marine Corps FOIA Handbook; utilizing the Marine Corps FOIA
website to disseminate FOIA information; consolidating its activities
Annual FOIA Reports and submitting it to CNO (N09B30); maintaining a
current list of Marine Corps FOIA coordinators, etc.
(c) The DON Chief Information Officer (DONCIO) is responsible for
preparing and making publicly available upon request an index of all
DON major information systems and a description of major information
and record locator systems maintained by the Department of the Navy as
required by 5 U.S.C. 552 and DoD 5400.7-R, ``DoD Freedom of Information
Act Program.''
(d) FOIA coordinators will:
(1) Implement and administer a local FOIA program under this
instruction; serve as principal point of contact on FOIA matters; issue
a command/activity instruction that implements SECNAVINST 5740.42F by
reference and highlights only those areas unique to the command/
activity (i.e., designate the command/activity's FOIA Coordinator and
IDA; address internal FOIA processing procedures; and address command/
activity level FOIA reporting requirements); receive and track FOIA
requests to ensure responses are made in compliance with 5 U.S.C. 552
and DoD Directives 5400.7 and 5400.7-R and this part; provide general
awareness training to command/activity personnel on the provisions of 5
U.S.C. 552 and this instruction; collect and compile FOIA statistics
and submit a consolidated Annual FOIA Report to Echelon 2 FOIA
coordinator for consolidation; provide guidance on how to process FOIA
requests; and provide guidance on the scope of FOIA exemptions.
(2) Additionally, CMC (ARAD) and Echelon 2 FOIA coordinators will:
(i) Ensure that reading room materials are placed in the activity's
electronic reading room and that the activity's website is linked to
the Navy FOIA website and the activity's reading room is linked to the
Navy's FOIA reading room lobby. Documents placed in the reading room
shall also be indexed as a Government Information Locator Service
(GILS) record, as this will serve as an index of available records.
(ii) Review proposed legislation and policy recommendations that
impact the FOIA and provide comments to CNO (N09B30).
(iii) Review SECNAVINST 5720.42F and provide recommended changes/
comments to CNO (N09B30).
(iv) Routinely conduct random staff assistance visits/reviews/self-
evaluations within the command and lower echelon commands to ensure
compliance with FOIA.
(v) Collect and compile command and feeder reports for the Annual
FOIA Report and provide a consolidated report to CNO (N09B30).
(vi) Maintain a listing of their subordinate activities' FOIA
coordinators to include full name, address, and telephone (office and
fax) and place on their website.
(Note to paragraph (d)(2)(vi): Do not place names of FOIA
coordinators who are overseas, routinely deployable or in sensitive
units on the website. Instead just list ``FOIA Coordinator'')
(vii) Notify CNO (N09B30) of any change of name, address, office
code and zip code, telephone and facsimile number, and/or e-mail
address of Echelon 2 FOIA Coordinators.
(viii) Conduct overview training to ensure all personnel are
knowledgeable
[[Page 49852]]
of the FOIA and its requirements. See Sec. 701.12.
(ix) Work closely with the activity webmaster to ensure that
information placed on the activity's website does not violate
references in paragraphs (a), (c) and (f).
(e) Initial Denial Authorities (IDAs). The following officials are
delegated to serve as Initial Denial Authorities, on behalf of SECNAV
(see Sec. 701.30 for definition):
(1) Under Secretary of the Navy; Deputy Under Secretary of the
Navy; Assistant Secretaries of the Navy (ASNs) and their principal
deputy assistants; Assistant for Administration (SECNAV); Director,
Administrative Division (SECNAV); Special Assistant for Legal and
Legislative Affairs (SECNAV); Director, Office of Program Appraisal
(SECNAV); DONCIO; Director, Small and Disadvantaged Business
Utilization (SECNAV); Chief of Information (CHINFO); Director, Navy
International Programs Office; Chief of Legislative Affairs; CNO; Vice
CNO; Director, Naval Nuclear Propulsion Program (NOON); Director, Navy
Staff (N09B); Head, DON PA/FOIA Policy Branch (N09B30); Director of
Naval Intelligence (N2); Director of Space, Information Warfare,
Command and Control (N6); Director of Navy Test & Evaluation &
Technology Requirements (N091); Surgeon General of the Navy (N093);
Director of Naval Reserve (N095); Oceanographer of the Navy (N096);
Director of Religious Ministries/Chief of Chaplains of the Navy (N097);
all Deputy Chiefs of Naval Operations; Chief of Naval Personnel;
Director, Strategic Systems Programs; Chief, Bureau of Medicine and
Surgery; Director, Office of Naval Intelligence; Naval Inspector
General; Auditor General of the Navy; Commanders of the Naval Systems
Commands; Chief of Naval Education and Training; Commander, Naval
Reserve Force; Chief of Naval Research; Director, Naval Criminal
Investigative Service; Deputy Commander, Naval Legal Service Command;
Commander, Navy Personnel Command; Director, Naval Center of Cost
Analysis; Commander, Naval Meteorology and Oceanography Command;
Director, Naval Historical Center; heads of DON staff offices, boards,
and councils; Program Executive Officers; and all general officers.
(2) Within the Marine Corps: CMC and his Assistant, Chief of Staff,
Deputy Chiefs of Staff; Director, Personnel Management Division; Fiscal
Director of the Marine Corps; Counsel for the Commandant; Director of
Intelligence; Director, Command, Communications and Computer Systems
Division; Legislative Assistant to the Commandant; Director, Judge
Advocate Division; Inspector General of the Marine Corps; Director,
Manpower, Plans, and Policy Division; Head, Freedom of Information and
Privacy Acts Section, HQMC; Director of Public Affairs; Director of
Marine Corps History and Museums; Director, Personnel Procurement
Division; Director, Morale Support Division; Director, Human Resources
Division; Director of Headquarters Support; commanding generals;
directors, Marine Corps districts; commanding officers, not in the
administrative chain of command of a commanding general or district
director. For each official listed above, the deputy or principal
assistant is also authorized denial authority.
(3) JAG and his Deputy and the DON General Counsel (DONGC) and his
deputies are excluded from this grant of authorization, since SECNAV
has delegated them to serve as his appellate authorities. However, they
are authorized to designate IDA responsibilities to other senior
officers/ officials within JAG and DONGC. DONGC has delegated IDA
responsibilities to the Assistant General Counsels and the Associate
General Counsel (Litigation).
(4) For the shore establishment and operating forces: All officers
authorized by Article 22, Uniform Code of Military Justice (UCMJ) or
designated in section 0120, Manual of the Judge Advocate General
(JAGINST 5800.7C) to convene general courts-martial.
(5) IDAs must balance their decision to centralize denials for the
purpose of promoting uniform decisions against decentralizing denials
to respond to requests within the FOIA time limits. Accordingly, the
IDAs listed in paragraphs (e)(1) through (4) are authorized to delegate
initial denial authority to subordinate activities for the purpose of
streamlining FOIA processing. They may also delegate authority to a
specific staff member, assistant, or individuals acting during their
absence if this serves the purpose of streamlining and/or complying
with the time limits of FOIA.
(Note to paragraph (e)(5): Such delegations shall be limited to
comply with DoD Directive 5400.7, ``DoD Freedom of Information Act
Program''.)
(6) Delegations of IDA authority should be reflected in the
activity's supplementing FOIA instruction or by letter, with a copy to
CNO (N09B30) or CMC (ARAD), as appropriate.
(f) Release authorities. Release authorities are authorized to
grant requests on behalf of the Office of the Secretary of the Navy for
agency records under their possession and control for which no FOIA
exemption applies; to respond to requesters concerning refinement of
their requests; to provide fee estimates; and to offer appeal rights
for adequacy of search or fee estimates to the requester.
(g) Appellate authorities are addressed in Sec. 701.12.
Sec. 701.5 Policy.
(a) Compliance with the FOIA. DON policy is to comply with the FOIA
as set forth in the Department of Defense's FOIA Directives 5400.7 and
5400.7-R, and this instruction in this part in both letter and spirit;
conduct its activities in an open manner consistent with the need for
security and adherence to other requirements of law and regulation; and
provide the public with the maximum amount of accurate and timely
information concerning its activities.
(b) Prompt action. DON activities shall act promptly on requests
when a member of the public complies with the procedures established in
the instruction in this part (i.e., files a ``perfected request'') and
the request is received by the official designated to respond. See
Sec. 701.11 for minimum requirements of the FOIA.
(c) Provide assistance. DON activities shall assist requesters in
understanding and complying with the procedures established by the
instruction in this part, ensuring that procedural matters do not
unnecessarily impede a requester from obtaining DON records promptly.
(d) Grant access. (1) DON activities shall grant access to agency
records when a member of the public complies with the provisions of the
instruction in this part and there is no FOIA exemption available to
withhold the requested information (see subpart D of this part).
(2) In those instances where the requester has not cited FOIA, but
the records are determined to be releasable in their entirety, the
request shall be honored without requiring the requester to invoke
FOIA.
(e) Create a record. (1) A record must exist and be in the
possession and control of the DON at the time of the request to be
considered subject to the instruction in this part and the FOIA.
Accordingly, DON activities need not process requests for records which
are not in existence at the time the request is received. In other
words, requesters may not have a ``standing FOIA request'' for release
of future records.
(2) There is no obligation to create, compile, or obtain a record
to satisfy a FOIA request. However, this is not to be confused with
honoring form or format requests (see Sec. 701.8). A DON activity,
[[Page 49853]]
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 C of this part.
(3) With respect to 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, DON activities 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 when 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
interference with the operation of the DON activity's automated
information system would not be a business as usual approach.
(f) Disclosures. (1) Discretionary Disclosures. DON activities
shall make discretionary disclosures whenever disclosure would not
foreseeably harm an interest protected by a FOIA exemption. A
discretionary disclosure is normally not appropriate for records
clearly exempt under exemptions (b)(1), (b)(3), (b)(4), (b)(6),
(b)(7)(C) and (b)(7)(F). Exemptions (b)(2), (b)(5), and (b)(7)(A),
(b)(7)(B), (b)(7)(D) and (b)(7)(E) are discretionary in nature and DON
activities are encouraged to exercise discretion whenever possible.
Exemptions (b)(4), (b)(6), and (b)(7)(C) cannot be claimed when the
requester is the ``submitter'' of the information. While discretionary
disclosures to FOIA requesters constitute a waiver of the FOIA
exemption that may otherwise apply, this policy does not create any
legally enforceable right.
(2) Public domain. Non-exempt records released under FOIA to a
member of the public are considered to be in the public domain.
Accordingly, such records may also be made available in reading rooms,
in paper form, as well as electronically to facilitate public access.
(3) Limited disclosures. Disclosure of records to a properly
constituted advisory committee, to Congress, or to other Federal
agencies does not waive a FOIA exemption.
(4) Unauthorized disclosures. Exempt records disclosed without
authorization by the appropriate DON official do not lose their exempt
status.
(5) Official versus personal disclosures. While authority may exist
to disclose records to individuals in their official capacity, the
provisions of the instruction in this part apply if the same individual
seeks the records in a private or personal capacity.
(6) Distributing information. DON activities are encouraged to
enhance access to information by distributing information on their own
initiative through the use of electronic information systems, such as
the Government Information Locator Service (GILS).
(g) Honor form or format requests. DON activities shall provide the
record in any form or format requested by the requester, if the record
is readily reproducible in that form or format. DON activities shall
make reasonable efforts to maintain their records in forms or formats
that are reproducible. In responding to requests for records, DON
activities 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 DON activities' automated
information system. Such determinations shall be made on a case-by-case
basis.
(h) Authenticate documents. Records provided under the instruction
in 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. DON activities may charge
for the service at a rate of $5.20 for each authentication.
Sec. 701.6. Reading rooms.
The FOIA requires that (a)(2) records created on or after 1
November 1996, be made available electronically (starting 1 November
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. DoD 5400.7-R, ``DoD Freedom of Information Act Program,''
requires that each DoD Component provide an appropriate facility or
facilities where the public may inspect and copy or have copied the
records held in their reading rooms. To comply, the Navy FOIA website
includes links that assist members of the public in locating Navy
libraries, online documents, and Navy electronic reading rooms
maintained by SECNAV/CNO, CMC, OGC, JAG and Echelon 2 commands.
Although each of these activities will maintain their own document
collections on their own servers, the Navy FOIA website provides a
common gateway for all Navy online resources. To this end, DON
activities shall:
(a) Establish their reading rooms and link them to the Navy FOIA
Reading Room Lobby which is found on the Navy FOIA website.
(b) Ensure that responsive documents held by their subordinate
activities are also placed in the reading room.
(Note to paragraph (b): SECNAV/ASN and OPNAV offices shall
ensure that responsive documents are provided to CNO (N09B30) for
placement in the reading room.)
(c) Ensure that documents placed in a reading room are properly
excised to preclude the release of personal or contractor-submitted
information prior to being made available to the 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 DON activity 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 DON activity may refer
to this description rather than write a separate justification for each
deletion. DON activities may remove (a)(2)(D) records from their
electronic reading room when the appropriate officials determine that
access is no longer necessary.
(d) Should a requester submit a FOIA request for FOIA-processed
(a)(2) records, and insist that the request be processed, DON
activities shall process the FOIA request. However, DON activities have
no obligation to process a FOIA request for 5 U.S.C. 552(a)(2)(A), (B),
and (C) [5 U.S.C. 552] records because these records are required to be
made public and not FOIA-processed under paragraph (a)(3) of the FOIA.
(e) DON activities may share reading room facilities if the public
is not unduly inconvenienced. When appropriate, the cost of copying may
be imposed on the person requesting the
[[Page 49854]]
material in accordance with FOIA fee guidelines (see subpart C of this
part).
(f) DON activities shall maintain an index of all available
documents. A general index of FOIA-processed (a)(2) records shall be
made available to the public, both in hard copy and electronically by
31 December 1999. To comply with this requirement, DON activities shall
establish a GILS record for each document it places in a reading room.
No (a)(2) materials issued or adopted after 4 July 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 or adopted before 4 July 1967, need not be indexed,
but must be made available upon request if not exempted under the
instruction in this part.
(g) An index and copies of unclassified Navy instructions, forms,
and addresses for DON activities (i.e., the Standard Navy Distribution
List (SNDL) are located on the Navy Electronics Directives System
(http://neds.nebt.daps.mil/).
(h) DON 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 by JAG in their FOIA reading room and
electronically to the public.
(i) Although not required to be made available in response to FOIA
requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials
may, 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 an 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.
Sec. 701.7 Relationship between the FOIA and 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 requesters receive the
greatest amount of access rights under both Acts:
(a) If the record is required to be released under the FOIA, the PA
does not bar its disclosure. Unlike the FOIA, the PA applies only to
U.S. citizens and aliens admitted for permanent residence. Subpart F of
this part implements the DON's Privacy Act Program.
(b) Requesters who seek records about themselves contained in a PA
system of records and who cite or imply only the PA, will have their
requests processed under the provisions of both the PA and the FOIA. If
the PA system of records is exempt from the provisions of 5 U.S.C.
552a(d)(1) and the records, or any portion thereof are exempt under the
FOIA, the requester shall be so advised with the appropriate PA and
FOIA exemption. Appeals shall be processed under both Acts.
(c) Requesters who seek records about themselves that are not
contained in a PA system of records and who cite or imply the PA will
have their requests processed under the provisions of the FOIA, since
the PA does not apply to these records. Appeals shall be processed
under the FOIA.
(d) Requesters who seek records about themselves that are contained
in a PA system of records and who cite or imply the FOIA or both Acts
will have their requests processed under the provisions of both the PA
and the FOIA. If the PA system of records is exempt from the provisions
of 5 U.S.C. 552a(d)(1), and the records, or any portion thereof are
exempt under the FOIA, the requester shall be so advised with the
appropriate PA and FOIA exemption. Appeals shall be processed under
both Acts.
(e) Requesters who seek access to agency records that are not part
of a PA system of records, and who cite or imply the PA and FOIA, will
have their requests processed under FOIA, since the PA does not apply
to these records. Appeals shall be processed under the FOIA.
(f) Requesters who seek access to agency records and who cite or
imply the FOIA will have their requests and appeals processed under the
FOIA.
(g) Requesters shall be advised in final responses which Act(s) was
(were) used, inclusive of appeal rights.
(h) The time limits for responding to the request will be
determined based on the Act cited. For example, if a requester seeks
access under the FOIA for his or her personal records which are
contained in a PA system of records, the time limits of the FOIA apply.
(i) Fees will be charged based on the kind of records being
requested (i.e., FOIA fees if agency records are requested; PA fees for
requesters who are seeking access to information contained in a PA
system of record which is retrieved by their name and/or personal
identifier).
Sec. 701.8 Processing FOIA requests.
Upon receipt of a FOIA request, DON activities shall:
(a) Review the request to ensure it meets the minimum requirements
of the FOIA to be processed.
(1) Minimum requirements of a FOIA request. A request must be in
writing; cite or imply FOIA; reasonably describe the records being
sought so that a knowledgeable official of the agency can conduct a
search with reasonable effort; and if fees are applicable, the
requester should include a statement regarding willingness to pay all
fees or those up to a specified amount or request a waiver or reduction
of fees.
(2) If a request does not meet the minimum requirements of the
FOIA, DON activities shall apprise the requester of the defect and
assist him/her in perfecting the request.
(Note to paragraph (a)(2): The statutory 20 working day time
limit applies upon receipt of a ``perfected'' FOIA request.)
(b) When a requester or his/her attorney requests personally
identifiable information in a record, the request may require a
notarized signature or a statement certifying under the penalty of
perjury that their identity is true and correct. 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.
(c) Review description of requested record(s). (1) The FOIA
requester is responsible for describing the record he/she seeks so that
a knowledgeable official of the activity can locate the record with a
reasonable amount of effort. In order to assist DON activities in
conducting more timely searches, a requester should endeavor to provide
as much identifying information as possible. When a DON activity
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 this paragraph. DON activities are not obligated to act on the
request until the requester responds to the specificity letter. When
practicable, DON activities 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 FOIA. 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
[[Page 49855]]
record (for example, memorandum), title, index citation, subject area,
date the record was created, and originator.
(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.
(2) 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 DON activity'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.
(3) The following guidelines deal with requests for personal
records: Ordinarily, when personal identifiers are provided solely in
connection with a request for records concerning the requester, only
records in Privacy Act system of records that can be retrieved by
personal identifiers need be searched. However, if a DON activity has
reason to believe that records on the requester may exist in a record
system other than a PA system, the DON activity shall search the system
under the provisions of the FOIA. In either case, DON activities may
request a reasonable description of the records desired before
searching for such records under the provisions of the FOIA and the PA.
If the records are required to be released under the FOIA, the PA does
not bar its disclosure.
(4) The guidelines in paragraph (c)(3) notwithstanding, the
decision of the DON activity concerning reasonableness of description
must be based on the knowledge of its files. If the description enables
the DON activity 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 DON
activity to deny the request on the ground that it does not reasonably
describe the records sought. The key factor is the ability of the staff
to reasonably ascertain and locate which records are being requested.
(d) Review request to determine if FOIA fees may be applicable. (1)
FOIA fee issues shall be resolved before a DON activity begins
processing a FOIA request.
(2) FOIA fees shall be at the rates prescribed at subpart C of this
part.
(3) If fees are applicable, a requester shall be apprised of what
category of requester he/she has been placed and provided a complete
breakout of fees to include any and all information provided before
fees are assessed (e.g., first two hours of search and first 100 pages
of reproduction have been provided without charge.)
(4) Forms DD 2086 (for FOIA requests) and 2086-1 (for FOIA requests
for technical data) serve as an administrative record of all costs
incurred to process a request; actual costs charged to a requester
(i.e., search, review, and/or duplication and at what salary level and
the actual time expended); and as input to the Annual FOIA Report.
Requesters may request a copy of the applicable form to review the time
and costs associated with the processing of a request.
(5) Final response letters shall address whether or not fees are
applicable or have been waived. A detailed explanation of FOIA fees is
provided at subpart C of this part.
(e) Control FOIA Request. Each FOIA request should be date stamped
upon receipt; given a case number; and entered into a formal control
system to track the request from receipt to response. Coordinators may
wish to conspicuously stamp, label, and/or place the request into a
brightly colored folder/cover sheet to ensure it receives immediate
attention by the action officer.
(f) Enter request into multitrack processing system. When a DON
activity has a significant number of pending requests that prevents a
response determination being made within 20 working days, 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.
(1) DON activities may establish as many queues as they wish,
however, at 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 for simple requests, one track for
complex requests, and one track for expedited processing.
Determinations as to whether a request is simple or complex shall be
made by each DON activity.
(2) DON activities shall provide a requester whose request does not
qualify for the fastest queue (except for expedited processing), 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.
(3) This multitrack processing system does not obviate the
activity's responsibility to exercise due diligence in processing
requests in the most expeditious manner possible.
(4) Referred requests shall be processed according to the original
date received by the initial activity and then placed in the
appropriate queue.
(5) Establish a separate queue for 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 office which will determine whether to grant
expedited access. Once the determination has been made to grant
expedited processing, DON activities shall process the request as soon
as practicable. Actions by DON activities 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 means that 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 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.
(iii) Urgently needed means that the 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.
(iv) A demonstration of compelling need by a requester shall be
made by a statement certified by the requester to be
[[Page 49856]]
true and correct to the best of his/her 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.
(v) Other reasons that merit expedited processing by DON activities
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/her knowledge. Humanitarian need
means that disclosing the information will promote the welfare and
interests of mankind. A demonstration of humanitarian need shall also
be made by a statement certified by the requester to be true and
correct to the best of his/her knowledge. Both of these statements 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.
(6) These same procedures also apply to requests for expedited
processing of administrative appeals.
(g) Respond to request within FOIA time limits. Once an activity
receives a ``perfected'' FOIA request, it shall inform the requester of
its decision to grant or deny access to the requested records within 20
working days. Activities are not necessarily required to release
records within the 20 working days, but access to releasable records
should be granted promptly thereafter and the requester apprised of
when he/she may expect to receive a final response to his/her request.
Naturally, interim releases of documents are encouraged if appropriate.
Sample response letters are provided on the Navy FOIA website.
(1) If a significant number of requests, or the complexity of the
requests prevents a final response determination within the statutory
time period, DON activities shall advise the requester of this fact,
and explain how the request will be responded to within its multitrack
processing system. A final response determination is notification to
the requester that the records are released, or will be released by a
certain date, or the records are denied under the appropriate FOIA
exemption(s) or the records cannot be provided for one or more of the
``other reasons'' (see Sec. 701.8(n)). 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 under FOIA.
(2) Formal extension. In those instances where a DON activity
cannot respond within the 20 working day time limit, the FOIA provides
for extension of initial time limits for an additional 10 working days
for three specific situations: the need to search for and collect
records from separate offices; the need to examine a voluminous amount
of records required by the request; and the need to consult with
another agency or agency component. In such instances, naval activities
shall apprise requesters in writing of their inability to respond
within 20 working days and advise them of their right to appeal to the
appellate authority.
(Note to paragraph (g)(2): Formal extension letters require IDA
signature.)
(3) Informal extension. A recommended alternative to taking a
formal extension is to call the requester and negotiate an informal
extension of time with the requester. The advantages include the
ability to agree on a mutually acceptable date to respond that exceeds
a formal extension of an additional 10 working days, and the letter of
confirmation does not require the signature of an IDA. Additionally, it
does not impact on the additional days the appellate authority may take
when responding to a FOIA appeal.
(h) Conduct a search for responsive records. (1) Conduct a search
for responsive records, keeping in mind a test for reasonableness
(i.e., file disposition requirements set forth in SECNAVINST 5212.5D,
``Navy and Marine Corps Records Disposal Manual''). This includes
making a manual search for records as well as an electronic search for
records. Do not assume that because a document is old, it does not
exist. Rather, ensure that all possible avenues are considered before
making a determination that no record could be found (i.e., such as
determining if the record was transferred to a federal records center
for holding).
(2) Requesters can appeal ``adequacy of search.'' To preclude
unnecessary appeals, you are encouraged to detail your response letter
to reflect the search undertaken so the requester understands the
process. It is particularly helpful to address the records disposal
requirements set forth in SECNAVINST 5212.5D, ``Navy and Marine Corps
Records Disposal Manual'' for the records being sought.
(i) Review documents for release. Once documents have been located,
the originator or activity having possession and control is responsible
for reviewing them for release and coordinating with other activities/
agencies having an interest. The following procedures should be
followed:
(1) Sort documents by originator and make necessary referrals (see
Sec. 701.9).
(2) Documents for which the activity has possession and control
should be reviewed for release. If the review official determines that
all or part of the documents requested require denial, and the head of
the activity is an IDA, he/she shall respond directly to the requester.
If, however, the activity head is not an IDA, then the request, a copy
of the responsive documents (unexcised), proposed redacted copy of the
documents, and a detailed explanation regarding their release must be
referred to the IDA for a final release determination and the requester
shall be notified in writing of the transfer.
(3) Documents for which the activity does not have possession and
control, but has an interest, should be referred to the originator
along with any recommendations regarding release (see Sec. 701.9).
(j) Process non-responsive information in responsive documents. DON
activities shall interpret FOIA requests liberally when determining
which records are responsive to the requests, and may release non-
responsive information. However, should DON activities 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 is 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 exempted (state the 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
[[Page 49857]]
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 provided.
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 exemptions if appropriate.
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.
(k) Withholding/excising information. (1) DON records may only be
withheld if they qualify for exemption under one or more of the nine
FOIA exemptions/three exclusions and it is determined that a
foreseeable harm to an interest protected by those exemptions would
result if the information is released. There are nine FOIA exemptions.
See subpart D of this part for the scope of each exemption.
(2) Although a FOIA exemption may apply, DON activities are
encouraged to consider discretionary disclosures of information when an
exemption permits such disclosure (see Sec. 701.5(f).)
(3) Excising documents. The excision of information within a
document should be made so that the requester can readily identify the
amount of information being withheld and the reason for the
withholding. Accordingly, ensure that any deletion of information is
bracketed and all applicable exemptions listed. In those instances,
where multiple pages of documents are determined to be exempt from
disclosure in their entirety, indicate the number of pages being denied
and the basis for the denial.
(l) Reasonably segregable information. DON activities must release
all ``reasonably segregable information'' when the meaning of these
portions is not distorted by deletion of the denied portions, and when
it reasonably can be assumed that a skillful and knowledgeable person
could not reasonably reconstruct excised information. When a record is
denied in whole, the response to the requester will specifically state
that it is not reasonable to segregate portions of the record for
release.
(m) Making a discretionary disclosure. A discretionary disclosure
to one requester may preclude the withholding of similar information
under a FOIA exemption if subsequently requested by the same individual
or someone else. The following suggested language should be included
with the discretionary disclosure of any record that could be subject
to withholding: ``The information you requested is subject to being
withheld under section (b)(__) of the FOIA. The disclosure of this
material to you by the DON is discretionary and does not constitute a
waiver of our right to claim this exemption for similar records in the
future.''
(n) Other reasons. There are 10 reasons for not complying with a
request for a record under FOIA:
(1) No record. The DON activity conducts a reasonable search of
files and fails to identify records responsive to the request.
(Note to paragraph (n)(1): Requester must be advised that he/she
may appeal the adequacy of search and provided appeal rights.
Response letter does not require signature by IDA.)
(2) Referral. The request is referred to another DoD/DON activity
or to another executive branch agency for their action.
(Note to paragraph (n)(2): Referral does not need to be signed
by IDA.)
(3) Request withdrawn. The requester withdraws request.
(Note to paragraph (n)(3): Response letter does not require
signature by IDA.)
(4) Fee-related reason. Requester is unwilling to pay fees
associated with the request; is past due in payment of fees from a
previous request; or disagrees with the fee estimate.
(Note to paragraph (n)(4): Requester must be advised that he/she
may appeal the fee estimate. Response letter does not require
signature by IDA.)
(5) Records not reasonably described. A record has not been
described with sufficient particularity to enable the DON activity to
locate it by conducting a reasonable search.
(Note to paragraph (n)(5): Response letter does not require
signature by IDA.)
(6) Not a proper FOIA request for some other reason. When the
requester fails unreasonably to comply with procedural requirements,
other than those fee-related issues described in paragraph (n)(4),
imposed by the instruction in this part and/or other published rules or
directives.
(Note to paragraph (n)(6): Response letter does not require
signature by IDA.)
(7) Not an agency record. When the requester is provided a response
indicating that the requested information was ``not an agency record''
within the meaning of the FOIA and the instruction in this part.
(Note to paragraph (n)(7): Response letter does not require
signature by IDA.)
(8) Duplicate request. When a request is duplicative of another
request which has already been completed or currently in process from
the same requester.
(Note to paragraph (n)(8): Response letter does not require
signature by IDA.
(9) Other (specify). When a FOIA request cannot be processed
because the requester does not comply with published rules, other than
for those reasons described in paragraphs (n) (1) through (8). DON
activities must document the specific discrepancy.
(Note to paragraph (n)(9): Response letter does not require
signature by IDA.)
(10) Denial of request. The record is denied in whole or in part in
accordance with procedures set forth in 5 U.S.C. 552, DoD 5400.7-R, and
the instruction in this part.
(Note to paragraph (n)(10): The requester is advised that he/she
may appeal the determination and response letter must be signed by
IDA.)
(o) Writing a response letter. FOIA response letters should contain
the following information:
(1) The date of the request; when it was received; if records were
not located, where the search was conducted and what the records
disposal requirements are for those records.
(2) Cut-off dates. Normally, DON activities shall consider the date
of receipt of a FOIA request as the cut-off date for a records search.
Where a DON activity employs a particular cut-off date, however, it
should give notice of that date in the response letter to the
requester.
(3) If a request is denied in whole or in part, the denial response
letter should cite the exemption(s) claimed; if possible, delineate the
kinds of information withheld (i.e., social security numbers, date of
birth, home addresses, etc.) as this may satisfy the requester and thus
eliminate an appeal; provide appeal rights, and be signed by an IDA.
However, there is no requirement that the response contain the same
documentation necessary for litigation (i.e., FOIA requesters are not
entitled to a Vaughn index (see definition in Sec. 701.39 during the
administrative process).
(4) The fees charged or waived; if fees were charged, what category
was the requester placed in and provide a breakout of the fees charged
(i.e., the first 2 hours of search were waived and so you are being
charged for the remaining 4 hours of search at $25 per hour, or $100;
the first 100 pages of reproduction were waived and the remaining 400
pages being provided
[[Page 49858]]
were charged at $.15 per page, resulting in $60 in reproduction fees,
for a total of $160). These figures are derived from Form DD 2086 (FOIA
Fees) or Form DD 2086-1 (Technical Data Fees).
(5) Sample response letters are provided on the Navy FOIA website.
(p) Press responses. Ensure responses being made to the press are
cleared through public affairs channels.
(q) Special mail services. DON activities 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.
Sec. 701.9 Referrals.
(a) The DoD/DON FOIA referral policy is based upon the concept of
the originator of a record making a release determination on its
information. If a DON activity receives a request for records
originated by another DoD/DON activity, it should contact the activity
to determine if it also received the request, and if not, obtain
concurrence to refer the request. In either situation, the requester
shall be advised of the action taken, unless exempt information would
be revealed.
(b) While referrals to originators of information result in
obtaining the best possible decision on release of the information, the
policy does not relieve DON activities 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,
DON activities should coordinate with the originator of the information
prior to making a release determination.
(c) A request received by a DON activity having no records
responsive to a request shall be referred routinely to another DoD/DON
activity, if the other activity has reason to believe it has the
requested record. Prior to notifying a requester of a referral to
another DoD/DON activity, the DON activity receiving the initial
request shall consult with the other DoD/DON activity to determine if
that activity's association with the material is exempt. If the
association is exempt, the activity receiving the initial request will
protect the association and any exempt information without revealing
the identity of the protected activity. The protected activity shall be
responsible for submitting the justifications required in any
litigation.
(d) Any DON activity receiving a request that has been misaddressed
shall refer the request to the proper address and advise the requester.
DON activities making referrals of requests or records shall include
with the referral, a point of contact by name, a telephone number
(commercial and DSN), and an e-mail address (if available).
(e) A DON activity shall refer a FOIA request for a record that it
holds but was originated by another Executive Branch agency, to them
for a release determination and direct response to the requester. 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.
(f) A DON activity may refer a request for a record that it
originated to another activity or agency when the activity or agency
has a valid interest in the record, or the record was created for the
use of the other agency or activity. In such situations, provide the
record and a release recommendation on the record with the referral
action. DON activities should include a point of contact and telephone
number in the referral letter. If that organization is to respond
directly to the requester, apprise the requester of the referral.
(g) Within the DON/DoD, a DON activity shall ordinarily refer a
FOIA request and a copy of the record it holds, but that was originated
by another DON/DoD activity or that contains substantial information
obtained from that activity, to that activity for direct response,
after direct coordination and obtaining concurrence from the activity.
The requester shall be notified of such referral. In any case, DON
activities shall not release or deny such records without prior
consultation with the activity, except as provided in paragraph (c) of
this section.
(h) Activities receiving a referred request shall place it in the
appropriate processing queue based on the date it was initially
received by the referring activity/agency.
(i) Agencies outside the DON that are subject to the FOIA. (1) A
DON activity may refer a FOIA request for any record that originated in
an agency outside the DON 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 DON activity must respond to the request.
(Note: DON activities shall not refer documents originated by
entities outside the Executive Branch of Government (e.g., Congress,
State and local government agencies, police departments, private
citizen correspondence, etc.), to them for action and direct
response to the requester, since they are not subject to the FOIA).
(2) A DON activity 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 DON for a specific purpose, if
the records are restricted from further release and so marked. However,
if for investigative or intelligence purposes, the outside agency
desires anonymity, a DON activity may only respond directly to the
requester after coordination with the outside agency.
Sec. 701.10 Processing requests received from governmental officials.
(a) Members of Congress. Many constituents seek access to
information through their Member of Congress. Members of Congress who
seek access to records on behalf of their constituent are provided the
same information that the constituent would be entitled to receive.
There is no need to verify that the individual has authorized the
release of his/her record to the Congressional member, since the
Privacy Act's ``blanket routine use'' for Congressional inquiries
applies.
(b) Privileged release to U.S. Government officials. DON records
may be authenticated and released to U.S. Government officials if they
are requesting them in their official capacity on behalf of Federal
governmental bodies, whether legislative, executive, administrative, or
judicial. To ensure adequate protection of these documents, DON
activities shall inform officials receiving records under the
provisions of this paragraph that those records are exempt from public
release under FOIA. DON activities shall also mark the records as
``Privileged'' and ``Exempt from Public Disclosure'' and annotate any
special handling instructions on the records. Because such releases are
not made under the provisions of the FOIA, they do not impact on future
decisions to release/deny requests for the same records to other
requesters. Examples of privileged releases are:
(1) In response to a request from a Committee or Subcommittee of
Congress, or to either House sitting as a whole.
(2) To the Federal Courts, whenever ordered by officers of the
court as necessary for the proper administration of justice.
(3) To other Federal agencies, both executive and administrative,
as determined by the head of a DON activity or designee.
(c) State or local government officials. Requests from State or
local government
[[Page 49859]]
officials for DON records are treated the same as any other requester.
(d) Non-FOIA requests from foreign governments. Requests from
foreign governments that do not invoke the FOIA shall be referred to
the appropriate foreign disclosure channels and the requester so
notified. See Sec. 701.11(c) regarding processing FOIA requests from
foreign governments and/or their officials.
Sec. 701.11 Processing specific kinds of records.
DON activities that possess copies or receive requests for the
following kinds of records shall promptly forward the requests to the
officials named in this section and if appropriate apprise the
requester of the referral:
(a) Classified records. Executive Order 12958 governs the
classification of records.
(1) Glomar response. In the instance where a DON activity receives
a request for records whose existence or nonexistence is itself
classifiable, the DON activity shall refuse to confirm or deny the
existence or non-existence of the records. This response is only
effective as long as it is given consistently. If it were to be known
that an agency gave a ``Glomar'' response only when records do exist
and gave a ``no records'' response otherwise, then the purpose of this
approach would be defeated. A Glomar response is a denial and exemption
(b)(1) is cited and appeal rights are provided to the requester.
(2) Processing classified documents originated by another activity.
DON activities shall refer the request and copies of the classified
documents to the originating activity for processing. If the
originating activity simply compiled the classified portions of the
document from other sources, it shall refer, as necessary, those
portions to the original classifying authority for their review and
release determination and apprise that authority of any recommendations
they have regarding release. If the classification authority for the
information cannot be determined, then the originator of the compiled
document has the responsibility for making the final determination.
Records shall be identified consistent with security requirements. Only
after consultation and approval from the originating activity, shall
the requester be apprised of the referral. In most cases, the
originating activity will make a determination and respond directly to
the requester. In those instances where the originating activity
determines a Glomar response is appropriate, the referring agency shall
deny the request.
(b) Courts-martial records of trial. The release/denial authority
for these records is the Office of the Judge Advocate General (Code
20), Washington Navy Yard, Building 111, Washington, DC 20374-1111.
Promptly refer the request and/or documents to this activity and
apprise the requester of the referral.
(c) Foreign requests/information. (1) FOIA requests received from
foreign governments/foreign government officials should be processed as
follows:
(i) When a DON activity receives a FOIA request for a record in
which an affected DoD/DON activity has a substantial interest in the
subject matter, or the DON activity receives a FOIA request from a
foreign government, a foreign citizen, or an individual or entity with
a foreign address, the DON activity receiving the request shall provide
a copy of the request to the affected DON activity.
(ii) Upon receiving the request, the affected activity shall review
the request for host nation relations, coordinate with Department of
State as appropriate, and if necessary, provide a copy of the request
to the appropriate foreign disclosure office for review. Upon request
by the affected activity, the DON activity receiving the initial
request shall provide a copy of releasable records to the affected
activity. The affected activity may further release the records to its
host nation after coordination with Department of State if release is
in the best interest of the United States Government. If the record is
released to the host nation government, the affected DON activity shall
notify the DON activity which initially received the request of the
release to the host nation.
(iii) Such processing must be done expeditiously so as not to
impede the processing of the FOIA request by the DON activity that
initially received the request.
(2) Non-U.S. Government Records (i.e., records originated by
multinational organizations such as the North Atlantic Treaty
Organization (NATO), the North American Air Defense (NORAD) and foreign
governments) which are under the possession and control of DON shall be
coordinated prior to a final release determination being made.
Coordination with foreign governments shall be made through the
Department of State.
(d) Government Accounting Office (GAO) documents. (1) On occasion,
the DON receives FOIA requests for GAO documents containing DON
information, either directly from requesters or as referrals from GAO.
Since the GAO is outside of the Executive Branch and therefore not
subject to FOIA, all FOIA requests for GAO documents containing DON
information will be processed by the DON under the provisions of the
FOIA.
(2) In those instances when a requester seeks a copy of an
unclassified GAO report, DON activities may apprise the requester of
its availability from the Director, GAO Distribution Center, ATTN:
DHISF, P.O. Box 6015, Gaithersburg, MD 20877-1450 under the cash sales
program.
(e) Judge Advocate General Manual (JAGMAN) investigative records.
These records are no longer centrally processed. Accordingly, requests
for investigations should be directed to the following officials:
(1) JAGMAN Investigations conducted prior to 1 Jul 95--to the Judge
Advocate General (Code 35), Washington Navy Yard, Suite 3000, 1322
Patterson Avenue, SE, Washington, DC 20374-5066.
(2) Command Investigation--to the command that conducted the
investigation.
(3) Litigation-Report Investigation--to the Judge Advocate General
(Code 35), Washington Navy Yard, Suite 3000, 1322 Patterson Avenue, SE,
Washington, DC 20374-5066.
(4) Court or Board of Inquiry--to the Echelon 2 commander over the
command that convened the investigation.
(f) Mailing lists. Numerous FOIA requests are received for mailing
lists of home addresses or duty addresses of DON personnel. Processing
of such requests is as follows:
(1) 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 (i.e.,
exemption (b)(6) applies).
(2) Disclosure of lists of names and duty addresses or duty
telephone numbers of persons assigned to units that are stationed in
foreign territories, routinely deployable, or sensitive, has also been
held by the courts to constitute a clearly unwarranted invasion of
personal privacy and must be withheld from disclosure under 5 U.S.C.
552(b)(6). General officers and public affairs officers information is
releasable. Specifically, disclosure of such information poses a
security threat to those service members because it reveals information
about their degree of involvement in military actions in support of
national policy, the type of Navy and/or Marine Corps units to which
they are attached, and their presence or absence from households.
Release of such information aids in the
[[Page 49860]]
targeting of service members and their families by terrorists or other
persons opposed to implementation of national policy. Only an
extraordinary public interest in disclosure of this information can
outweigh the need and responsibility of the DON to protect the
tranquility and safety of service members and their families who
repeatedly have been subjected to harassment, threats, and physical
injury. Units covered by this policy are:
(i) Those located outside of the 50 States, District of Columbia,
Commonwealth of Puerto Rico, Guam, U.S. Virgin Islands, and American
Samoa.
(ii) Routinely deployable units--Those units that normally deploy
from homeport or permanent station on a periodic or rotating basis to
meet operational requirements or participate in scheduled exercises.
This includes routinely deployable ships, aviation squadrons,
operational staffs, and all units of the Fleet Marine Force (FMF).
Routinely deployable units do not include ships undergoing extensive
yard work or those whose primary mission is support of training, e.g.,
yard craft and auxiliary aircraft landing training ships.
(iii) Units engaged in sensitive operations. Those primarily
involved in training for or conduct of covert, clandestine, or
classified missions, including units primarily involved in collecting,
handling, disposing, or storing of classified information and
materials. This also includes units engaged in training or advising
foreign personnel. Examples of units covered by this exemption are
nuclear power training facilities, SEAL Teams, Security Group Commands,
Weapons Stations, and Communications Stations.
(3) Except as otherwise provided, lists containing names and duty
addresses of DON personnel, both military and civilian, who are
assigned to units in the Continental United States (CONUS) and U.S.
territories shall be released regardless of who has initiated the
request.
(4) Exceptions to this policy must be coordinated with CNO (N09B30)
or CMC (ARAD) prior to responding to requests, including those from
Members of Congress. The policy in paragraphs (f) (1) through (3)
should be considered when weighing the releasability of the address or
telephone number of a specifically named individual.
(5) DON activities are reminded that e-mail addresses that identify
an individual who is routinely deployable, overseas, or assigned to a
sensitive unit should not be made available. Additionally,
organizational charts for these kinds of units and activities that
identify specific members should not be placed on the Internet.
(g) Medical quality assurance documents. The Chief, Bureau of
Medicine and Surgery (BUMED) is the release/denial authority for all
naval medical quality assurance documents as defined by Title 10,
United States Code, Section 1102. Requests for medical quality
assurance documents shall be promptly referred to BUMED and the
requester notified of the referral.
(h) Mishap investigation reports (MIRs). The Commander, Naval
Safety Center (NAVSAFECEN) is the release/denial authority for all
requests for mishap investigations or documents which contain mishap
information. All requests or documents located which apply shall be
promptly referred to the Commander, Naval Safety Center, Code 503, 375
A Street, Norfolk, VA 23511-4399 for action. Telephonic liaison with
NAVSAFECEN is encouraged. The requester shall be notified of the
referral.
(i) National Security Council (NSC)/White House. (1) DON activities
that receive requests for records of NSC, the White House, or the White
House/Military Office (WHMO) shall process the requests.
(2) DON records in which the NSC or the White House has a
concurrent reviewing interest, and NSC, White House, or WHMO records
discovered in DON activity files, shall be forwarded to CNO (N09B30),
2000 Navy Pentagon, Washington, DC 20350-2000. N09B30, in turn, will
coordinate the request directly with DFOISR, so DFOISR can coordinate
the request with NSC, White House, or WHMO. After coordination, the
records will be returned to the DON activity for their direct response
to the requester. During the interim, DON activities should notify the
requester that they are coordinating their request and a response will
therefore be delayed.
(j) Naval attache documents/information. The Director, Defense
Intelligence Agency (DIA) has the responsibility for reviewing for
release/denial any naval attache-originated documents/information.
Accordingly, FOIA requests for naval attache documents or copies of the
documents located in DON files or referred in error to a DON activity
shall be promptly referred to the Chief, Freedom of Information Act
Staff, Defense Intelligence Agency (SVI-1), Washington, DC 20340-5100
for action and direct response to the requester. Ensure that the
requester is notified in writing of the transfer to DIA.
(k) Naval Audit Service reports. The Director, Naval Audit Service
is the release/denial authority for their reports. All requests or
documents located which apply shall be promptly referred to the
Director, Naval Audit Service, 5611 Columbia Pike, NASSIF Building,
Falls Church, VA 22041-5080 for action. The requester shall be notified
of the referral.
(l) Naval Criminal Investigative Service (NCIS) reports. The
Director, NCIS is the release/denial authority for all NCIS reports/
information. All requests for and copies of NCIS reports located in DON
activity files shall be promptly referred to the Director, NCIS (Code
OOJF), Washington Navy Yard, Building 111, 716 Sicard Street, SE,
Washington, DC 20388-5380 for action and, if appropriate, the requester
so notified. Telephonic liaison with NCIS Headquarters is strongly
encouraged.
(m) Naval Inspector General (NAVINSGEN) reports. (1) NAVINSGEN is
the release/denial authority for all investigations and inspections
conducted by or at the direction of NAVINSGEN and for any records held
by any command that relate to Navy hotline complaints that have been
referred to the NAVINSGEN. Accordingly, such actions shall be promptly
referred to the Naval Inspector General (Code OOL), Building 200, Room
100, Washington Navy Yard, 901 M Street, SE, Washington, DC 20374-5006
for action and, if appropriate, the requester so notified.
(2) Requests for local command inspector general reports which have
not been referred to NAVINSGEN should be processed by the command that
conducted the investigation and NAVINSGEN advised as necessary.
(3) The Deputy Naval Inspector General for Marine Corps Matters
(DNIGMC) is the release/denial authority for all investigations
conducted by the DNIGMC. Requests for local Marine Corps command
Inspector General reports shall be coordinated with the DNIGMC.
(n) Naval Nuclear Propulsion Information (NNPI). The Director,
Naval Nuclear Propulsion Program (CNO (NOONB)/NAVSEA (08)) is the
release/denial authority for all information and requests concerning
NNPI. Naval activities receiving such requests are responsible for
searching their files for responsive records. If no documents are
located, the naval activity shall respond to the requester and provide
CNO (NOONB) with a copy of the request and response. If documents are
located, the naval activity shall refer the request, responsive
documents, and a recommendation regarding release to the Director,
Naval Nuclear Propulsion Program (NOONB), 2000 Navy
[[Page 49861]]
Pentagon, Washington, DC 20350-2000, who will make the final release
determination to the requester, after coordinating the release through
DoD activities.
(o) Naval Telecommunications Procedures (NTP) publications. The
Commander, Naval Computer and Telecommunications Command is the
release/denial authority for NTP publications. All requests or
documents located which apply shall be promptly referred to the
Commander, Naval Computer and Telecommunications Command (Code NOOJ),
4401 Massachusetts Avenue, NW, Washington, DC 20394-5460 for action and
direct response to the requester.
(p) News media requests. (1) Respond promptly to requests received
from news media representatives through public information channels, if
the information is releasable under FOIA. This eliminates the
requirement to invoke FOIA and may result in timely information being
made available to the public.
(2) In those instances where records/information are not
releasable, either in whole or in part, or are not currently available
for a release consideration, Public Affairs Officers shall promptly
advise the requester of where and how to submit a FOIA request.
(3) DON activities receiving and processing requests from members
of the press shall ensure that responses are cleared through their
public affairs channels.
(q) Records originated by other government agencies. (1) A DON
activity may refer a FOIA request for any record that originated in an
agency outside the DON or that is based on information obtained from an
outside agency to the cognizant agency for direct response to the
requester after coordination with the outside agency, if that agency is
subject to FOIA. Otherwise, the DON activity must respond to the
request.
(2) A DON activity 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 DON for a specific purpose, if
the records are restricted from further release and so marked. However,
if for investigative or intelligence purposes, the outside agency
desires anonymity, a DON activity may only respond directly to the
requester after coordination with the outside agency.
(r) Submitter documents. (1) When a request is received for a
record containing confidential commercial information that was
submitted to the Government, the requirements of Executive Order 12600
shall apply. Specifically, the submitter shall be notified of the
request (telephonically, by letter, or by facsimile) and afforded a
reasonable amount of time (anywhere from 2 weeks to a month depending
on the circumstances) to present any objections concerning release,
unless it is clear there can be no valid basis for objection. For
example, the record was provided with actual or presumptive knowledge
of the submitter that it would be made available to the public upon
request.
(2) The DON activity will evaluate any objections and negotiate
with the submitter as necessary. When a substantial issue has been
raised, the DON activity may seek additional information from the
submitter and afford the submitter and requester reasonable
opportunities to present their arguments in legal and substantive
issues prior to making an agency determination.
(3) The final decision to disclose information claimed to be exempt
under exemption (b)(4) shall be made by an official at least equivalent
in rank to the IDA and the submitter advised that he or she may seek a
restraining order or take court action to prevent the release. The
submitter is given 10 days to take action.
(4) Should the submitter take such action, the requester will be
notified and no action will be taken on the request until the outcome
of the court action is known.
(s) Technical Documents Controlled by Distribution Statements B, C,
D, E, F, or X shall be referred to the controlling DoD office for
review and release determination.
Sec. 701.12. FOIA appeals/litigation.
(a) Appellate authorities. SECNAV has delegated his appellate
authority to the JAG and the DONGC to act on matters under their
cognizance. Their responsibilities include adjudicating appeals made to
SECNAV on: denials of requests for copies of DON records or portions
thereof; disapproval of a fee category claim by a requester;
disapproval of a request to waive or reduce fees; disputes regarding
fee estimates; reviewing determinations not to grant expedited access
to agency records, and reviewing ``no record'' determinations when the
requester considers such responses adverse in nature. They have the
authority to release or withhold records, or portions thereof; to waive
or reduce fees; and to act as required by SECNAV for appeals under 5
U.S.C. 552 and this instruction. The JAG has further delegated this
appellate authority to the Assistant Judge Advocate General (Civil
Law). The DONGC has further delegated this appellate authority to the
Principal Deputy General Counsel, the Deputy General Counsel, and the
Associate General Counsel (Management).
(1) In their capacity, appellate authorities will serve as
principal points of contact on DON FOIA appeals and litigation; receive
and track FOIA appeals and ensure responses are made in compliance with
5 U.S.C. 552, DoD 5400.7 and 5400.7-R, and the instruction in this
part; complete responsive portions of the Annual FOIA Report that
addresses actions on appeals and litigation costs during the fiscal
year and submit to CNO (N09B30); provide CNO (N09B30) with a copy of
all appeal determinations as they are issued; and keep CNO (N09B30)
informed in writing of all FOIA lawsuits as they are filed against the
DON. Appellate authorities shall facsimile a copy of the complaint to
CNO (N09B30) for review and provide updates to CNO (N09B30) to review
and disseminate to DFOISR.
(2) OGC's cognizance: Legal advice and services to SECNAV and the
Civilian Executive Assistants on all matters affecting DON; legal
services in subordinate commands, organizations, and activities in the
areas of business and commercial law, real and personal property law,
intellectual property law, fiscal law, civilian personnel and labor
law, environmental law, and in coordination with the JAG, such other
legal services as may be required to support the mission of the Navy
and the Marine Corps, or the discharge of the General Counsel's
responsibilities; and conducting litigation involving the areas
enumerated above and oversight of all litigation affecting the DON.
(3) JAG's cognizance: In addition to military law, all matters
except those falling under the cognizance of the DONGC.
(b) Appellants may file an appeal if they have been denied
information in whole or in part; have been denied a waiver or reduction
of fees; have been denied/have not received a response within 20
working days; or received a ``no record'' response or wish to challenge
the ``adequacy of a search'' that was made. Appeal procedures also
apply to the disapproval of a fee category claim by a requester,
disputes regarding fee estimates, review of an expedited basis
determination not to grant expedited access to agency records, or any
determination found to be adverse in nature by the requester.
(c) Action by the appellate authority. (1) Upon receipt, JAG (34)
or Assistant to the General Counsel (FOIA) will
[[Page 49862]]
promptly notify the IDA of the appeal. In turn, the IDA will provide
the appellate authority with the following documents so that a
determination can be made: a copy of the request, responsive documents
both excised and unexcised, a copy of the denial letter, and supporting
rationale for continued withholding. IDAs shall respond to the
appellate authority within 10 working days.
(2) Final determinations on appeals normally shall be made within
20 working days after receipt. When the appellate authority has a
significant number of appeals preventing a response determination
within 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.
(3) If the appeal is received by the wrong appellate authority, the
time limits do not take effect until it is received by the right one.
If, however, the time limit for responding cannot be met, the appellate
authority shall advise the appellant that he/she may consider his/her
administrative remedies exhausted. However, he/she may await a
substantive response without prejudicing his/her right of judicial
remedy. Nonetheless, the appellate authority will continue to process
the case expeditiously, whether or not the appellant seeks a court
order for release of records. In such cases, a copy of the response
will be provided to the Department of Justice (DOJ).
(d) Addresses for filing appeals. (1) General Counsel of the Navy,
720 Kennon Street, SE, Room 214, Washington Navy Yard, Washington, DC
20374-5012, or
(2) Judge Advocate General, Washington Navy Yard, 1322 Patterson
Avenue, SE, Suite 3000, Washington, DC 20374-5066.
(e) Appeal letter requirements. The appellant shall file a written
appeal with the cognizant appellate authority (i.e., DONGC or JAG). The
appeal should include a copy of the DON response letter and supporting
rationale on why the appeal should be granted.
(f) Consultation/coordination. (1) The Special Assistant for Naval
Investigative Matters and Security (CNO (N09N)) may be consulted to
resolve inconsistencies or disputes involving classified records.
(2) Direct liaison with officials within DON and other interested
Federal agencies is authorized at the discretion of the appellate
authority, who also coordinates with appropriate DoD and DOJ officials.
(3) SECNAV, appropriate Assistant or Deputy Assistant Secretaries,
and CNO (N09B30) shall be consulted and kept advised of cases with
unusual implications. CHINFO shall be consulted and kept advised on
cases involving public affairs implications.
(4) Final refusal involving issues not previously resolved or that
the DON appellate authority knows to be inconsistent with rulings of
other DoD components ordinarily should not be made before consultation
with the DoD Office of General Counsel (OGC).
(5) Tentative decisions to deny records that raise new and
significant legal issues of potential significance to other agencies of
the Government shall be provided to the DoD OGC.
(g) Copies of final appeal determinations. Appellate authorities
shall provide copies of final appeal determinations to the activity
affected and to CNO (N09B30) as appeals are decided.
(h) Denying an appeal. The appellate authority must render his/her
decision in writing with a full explanation as to why the appeal is
being denied along with a detailed explanation of the basis for refusal
with regard to the applicable statutory exemption(s) invoked. With
regard to denials involving classified information, the final refusal
should explain that a declassification review was undertaken and based
on the governing Executive Order and implementing security
classification guides (identify the guides), the information cannot be
released and that information being denied does not contain meaningful
portions that are reasonably segregable. In all instances, the final
denial letter shall contain the name and position title of the official
responsible for the denial and advise the requester of the right to
seek judicial review.
(i) Granting an appeal. The appellate authority must render his/her
decision in writing. When an appellate authority makes a determination
to release all or a portion of records withheld by an IDA, a copy of
the releasable records should be promptly forwarded to the requester
after compliance with any procedural requirements, such as payment of
fees.
(j) Processing appeals made under PA and FOIA. When denials have
been made under the provisions of PA and FOIA, and the denied
information is contained in a PA system of records, the appeal shall be
processed under both PA and FOIA. If the denied information is not
maintained in a PA system of records, the appeal shall be processed
under FOIA.
(k) Response letters. (1) When an appellate authority makes a final
determination to release all or 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:
(i) 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 the provisions of the FOIA, and with respect
to other issues appealed for which an adverse determination was made.
(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 (b)(3) statute, 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 to
judicial review.
(l) Time limits/requirements. (1) A FOIA appeal has been received
by a DON activity when it reaches the appellate authority having
jurisdiction. Misdirected appeals should be referred expeditiously to
the proper appellate authority.
(2) The requester shall be advised to file an appeal so that it is
postmarked no later than 60 calendar days after the date of the initial
denial letter. If no appeal is received, or if the appeal is postmarked
after the conclusion of the 60 day period, the case may be considered
closed. However, exceptions may be considered on a case-by-case basis.
(3) In cases where the requester is provided several incremental
determinations for a single request, the
[[Page 49863]]
time for the appeal shall not begin until the date of the final
response. Requests and responsive records that are denied shall be
retained for a period of 6 years to meet the statute of limitations
requirement.
(4) Final determinations on appeals normally shall be made within
20 working days after receipt. When a DON appellate authority has a
significant number of appeals preventing a response determination
within 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. 701.8(f)).
(5) If additional time is needed due to unusual circumstances, the
final decision may be delayed for the number of working days (not to
exceed 10) that were not used as additional time for responding to the
initial request.
(6) 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, they may consider their administrative
remedies exhausted. They may, however, without prejudicing their right
of judicial remedy, await a substantive response. The appellate
authority shall continue to process the case expeditiously.
(m) FOIA litigation. The appellate authority is responsible for
providing CNO (N09B30) with a copy of any FOIA litigation filed against
the DON and any subsequent status of the case. CNO (N09B30) will, in
turn, forward a copy of the complaint to DFOISR for their review.
Subpart B--FOIA Definitions and Terms
Sec. 701.13 5 U.S.C. 552(a)(1) materials.
Section (a)(1) of the FOIA requires publication in the Federal
Register of descriptions of agency organizations, functions,
substantive rules, and statements of general policy.
Sec. 701.14 5 U.S.C. 552(a)(2) materials.
Section (a)(2) of the FOIA requires that certain materials
routinely be made available for public inspection and copying. The
(a)(2) materials are commonly referred to as ``reading room'' materials
and are required to be indexed to facilitate public inspection. (a)(2)
materials consist of:
(a) 5 U.S.C. 552(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. 551, that may be cited, used, or
relied upon as precedents in future adjudications.
(b) 5 U.S.C. 552(a)(2)(B) records. Statements of policy and
interpretations that have been adopted by the agency and are not
published in the Federal Register.
(c) 5 U.S.C. 552(a)(2)(C) records. Administrative staff manuals and
instructions, or portions thereof, that establish DON 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 DON activity. Examples
of manuals and instructions not normally made available are:
(1) 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.
(2) Operations and maintenance manuals and technical information
concerning munitions, equipment, systems, and foreign intelligence
operations.
(d) 5 U.S.C. 552(a)(2)(D) records. Those (a)(2) 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. DON activities shall decide on a case-by-case basis whether
records fall into this category based on the following factors:
previous experience of the DON activity with similar records;
particular circumstances of the records involved, including their
nature and the type of information contained in them; and/or the
identity and number of requesters and whether there is widespread
press, historic, or commercial interest in the records.
(1) 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. DON activities may remove the records from this
access medium when the appropriate officials determine that access is
no longer necessary.
(2) Should a requester submit a FOIA request for FOIA-processed
(a)(2) records and insist that the request be processed under FOIA, DON
activities shall process the FOIA request. However, DON activities have
no obligation to process a FOIA request for (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.
(e) However, agency records that are withheld under FOIA from
public disclosure, based on one or more of the FOIA exemptions, do not
qualify as (a)(2) materials and need not be published in the Federal
Register or made available in a library reading room.
Sec. 701.15 5 U.S.C. 552(a)(3) materials.
Agency records which are processed for release under the provisions
of the FOIA.
Sec. 701.16 Administrative appeal.
A request made by a FOIA requester asking the appellate authority
(JAG or OGC) 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;
deny a request for a 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. FOIA requesters may also appeal a
non-response to a FOIA request within the statutory time limits.
Sec. 701.17 Affirmative information disclosure.
This is where a DON activity makes records available to the public
on its own initiative. In such instance, the DON activity has
determined in advance that a certain type of records or information is
likely to be of such interest to members of the public, and that it can
be disclosed without concern for any FOIA exemption sensitivity.
Affirmative disclosures can be of mutual benefit to both the DON and
the members of the public who are interested in obtaining access to
such information.
Sec. 701.18 Agency record.
Agency records are either created or obtained by an agency and
under agency control at the time of the FOIA request. Agency records
are stored as various kinds of media, such as:
(a) Products of data compilation (all books, maps, 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
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connection with the transaction of public business and in Department of
the Navy possession and control at the time the FOIA request is made.
(b) Care should be taken not to exclude records from being
considered agency records, unless they fall within one of the following
categories:
(1) Objects or articles, such as structures, furniture, paintings,
three-dimensional models, vehicles, equipment, parts of aircraft,
ships, etc., whatever their historical value or value as evidence.
(2) Anything that is not a tangible or documentary record, such as
an individual's memory or oral communication.
(3) Personal 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.
(4) A record must exist and be in the possession and control of the
DON at the time of the request to be considered subject to this
instruction and the FOIA. There is no obligation to create, compile, or
obtain a record to satisfy a FOIA request.
(5) Hard copy or electronic records, which are subject to FOIA
requests under 5 U.S.C. 552(a)(3), and which 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, DON activities
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
process the request under FOIA.
Sec. 701.19 Appellate authority.
SECNAV has delegated the OGC and JAG to review administrative
appeals of denials of FOIA requests on his behalf and prepare agency
paperwork for use by the DOJ in defending a FOIA lawsuit. JAG is
further authorized to delegate this authority to a designated Assistant
JAG. The authority of OGC is further delegated to the Principal Deputy
General Counsel, the Deputy General Counsel, and the Associate General
Counsel (Management).
Sec. 701.20 Discretionary disclosure.
The decision to release information that could qualify for
withholding under a FOIA exemption, but upon review the determination
has been made that there is no foreseeable harm to the Government for
releasing such information. Discretionary disclosures do not apply to
exemptions (b)(1), (b)(3), (b)(4), (b)(6) and (b)(7)(C).
Sec. 701.21 Electronic record.
Records (including e-mail) which are created, stored, and retrieved
by electronic means.
Sec. 701.22 Exclusions.
The FOIA contains three exclusions (c)(1), (c)(2) and (c)(3) which
expressly authorize Federal law enforcement agencies for especially
sensitive records under certain specified circumstances to treat the
records as not subject to the requirements of the FOIA.
Sec. 701.23 Executive Order 12958.
Revoked Executive Order 12356 on October 14, 1995 and is the basis
for claiming that information is currently and properly classified
under (b)(1) exemption of the FOIA. It sets forth new requirements for
classifying and declassifying documents. It recognizes both the right
of the public to be informed about the activities of its government and
the need to protect national security information from unauthorized or
untimely disclosure.
Sec. 701.24 Federal agency.
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.
Sec. 701.25 5 U.S.C. 552, Freedom of Information Act (FOIA).
An access statute that pertains to agency records of the Executive
Branch of the Federal Government, including the Executive Office of the
President and independent regulatory agencies.
(Note to Sec. 701.25: Records maintained by State governments,
municipal corporations, by the courts, by Congress, or by companies
and private citizens do not fall under this Federal statute)
Sec. 701.26 FOIA exemptions.
There are nine exemptions that identify certain kinds of records/
information that qualify for withholding under FOIA. See subpart D of
this part for a detailed explanation of each exemption.
Sec. 701.27 FOIA fee terms location.
The FOIA fee terms can be found in subpart C of this part.
Sec. 701.28 FOIA request.
A written request for DON records, made by ``any person'' including
a member of the public (U.S. or foreign citizen/entity), 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 by citing DoD FOIA regulations or the instruction in this part.
FOIA requests can be made for any purpose whatsoever, with no showing
of relevancy required. Because the purpose for which records are sought
has no bearing on the merits of the request, FOIA requesters do not
have to explain or justify their requests. Written requests may be
received by postal service or other commercial delivery means, by
facsimile or electronically.
Sec. 701.29 Glomar response.
Refusal by the agency to either confirm or deny the existence or
non-existence of records responsive to a FOIA request. See exemptions
(b)(1), (b)(6), and (b)(7)(C) at subpart D of this part.
Sec. 701.30 Initial Denial Authority (IDA).
SECNAV has delegated authority to a limited number of officials to
act on his behalf to withhold records under their cognizance that are
requested under the FOIA for one or more of the nine categories of
records exempt from mandatory disclosure; to deny a fee category claim
by a requester; to deny a request for expedited processing due to
demonstrated compelling need; to deny or grant a request for waiver or
reduction of fees when the information sought relates to matters within
their respective geographical areas of responsibility or chain of
command; fees; to review a fee estimate; and to confirm that no records
were located in response to a request. IDAs may also grant access to
requests.
Sec. 701.31 Mosaic or compilation response.
The concept that apparently harmless pieces of information when
assembled together could reveal a damaging picture. See exemption
(b)(1) at subpart D of this part.
Sec. 701.32 Perfected request.
A request which meets the minimum requirements of the FOIA to be
processed and is received by the DON
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activity having possession and control over the documents/information.
Sec. 701.33 Public domain.
Agency records released under the provisions of FOIA and the
instruction in this part to a member of the public.
Sec. 701.34 Public interest.
The interest in obtaining official information that sheds light on
a DON activity's performance of its statutory duties because the
information falls within the statutory purpose of the FOIA to inform
citizens 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 or official's own conduct.
Sec. 701.35 Reading room.
Location where (a)(2) materials are made available for public
inspection and copying.
Sec. 701.36 Release authorities.
Commanding officers and heads of Navy and Marine Corps shore
activities or their designees are authorized to grant requests on
behalf of SECNAV for agency records under their possession and control
for which no FOIA exemption applies. As necessary, they will coordinate
releases with other officials who may have an interest in the
releasability of the record.
Sec. 701.37 Reverse FOIA.
When the ``submitter'' of information, usually a corporation or
other business entity, that has supplied the agency with data on its
policies, operations and products, seeks to prevent the agency that
collected the information from revealing the data to a third party in
response to the latter's FOIA request.
Sec. 701.38 Technical data.
Recorded information, regardless of form or method of the
recording, of a scientific or technical nature (including computer
software documentation).
Sec. 701.39 Vaughn index.
Itemized index, correlating each withheld document (or portion)
with a specific FOIA exemption(s) and the relevant part of the agency's
nondisclosure justification. The index may contain such information as:
date of document; originator; subject/title of document; total number
of pages reviewed; number of pages of reasonably segregable information
released; number of pages denied; exemption(s) claimed; justification
for withholding; etc. FOIA requesters are not entitled to a Vaughn
index during the administrative process.
Subpart C--FOIA Fees
Sec. 701.40 Background.
(a) The DON follows the uniform fee schedule developed by DoD and
established to conform with the Office of Management and Budget's
(OMB's) Uniform Freedom of Information Act Fee Schedule and Guidelines.
(b) Fees 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, which does not supersede the
collection of fees under the FOIA.
(c) FOIA fees do not supersede fees chargeable under a statute
specifically providing for setting the level of fees for particular
types of records. For example, 5 U.S.C. 552 (a)(4)(A)(vi) enables a
Government agency such as the Government Printing Office (GPO) or the
National Technical Information Service (NTIS), to set and collect fees.
DON activities 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 GPO or NTIS,
they inform requesters of the steps necessary to obtain records from
those sources.
Sec. 701.41 FOIA fee terms.
(a) Direct costs means those expenditures a DON activity actually
makes in searching for, reviewing (in the case of commercial
requesters), and duplicating documents to respond to a 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 in this subpart. Not included in direct costs are
overhead expenses such as costs of space, heating or lighting the
facility in which the records are stored.
(b) Duplication refers to the process of making a copy of a
document in response to a 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 usable, the requester shall be notified that the copy
provided is the best available, and that the activity's master copy
shall be made available for review upon appointment. For duplication of
computer tapes and audiovisual, the actual cost, including the
operator's time, shall be charged. In practice, if a DON activity
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 activity personnel with the object of
reformulating the request to meet his or her needs at a lower cost.
(c) Review refers to the process of examining documents located in
response to a 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. DON activities 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.
(d) Search refers to 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. DON activities should ensure
that searches are done in the most efficient and least expensive manner
so as to minimize costs for both the activity and the requester. For
example, activities 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.
(1) DON activities may charge for time spent searching for records,
even if that
[[Page 49866]]
search fails to locate records responsive to the request.
(2) DON activities may also charge search and review (in the case
of commercial requesters) time if records located are determined to be
exempt from disclosure.
(3) In practice, if the DON activity 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
activity personnel with the object of reformulating the request to meet
his or her needs at a lower cost.
Sec. 701.42 Categories of requesters--applicable fees.
(a) Commercial requesters 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, DON activities must determine the
use to which a requester will put the documents requested. More over,
where an activity has reasonable cause to doubt the use to which a
requester will put the records sought, or where that use is not clear
from the request itself, it should seek additional clarification before
assigning the request to a specific category.
(1) 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.
(2) When DON activities 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 2 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.
(b) Educational Institution refers to a pre-school, a public or
private elementary or secondary school, an institution of graduate high
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.
(1) 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.
(2) 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 research.
(3) Fees shall be waived or reduced in the public interest if
criteria of Sec. 701.58 have been met.
(c) Non-commercial Scientific Institution refers to an institution
that is not operated on a ``commercial'' basis 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.
(1) Fees shall be limited to only reasonable standard charges for
document duplication (excluding 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.
(2) 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 or scientific
research.
(d) Representative of the news media. (1) 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 of 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 through that organization, even
though not actually employed by it. A publication contract would be the
clearest proof, but DON activities may also look to the past
publication record of a requester in making this determination.
(2) To be eligible for inclusion in this category, a requester must
meet the criteria established in paragraph (d)(1), 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 from 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).
(3) Representative of the news media does not include private
libraries, private repositories of Government records, information
vendors, data brokers or similar marketers of information whether to
industries and businesses, or other entities.
(4) 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. Fees shall be waived or
reduced if the fee waiver criteria have been met.
(e) All other requesters. DON activities shall charge requesters
who do not fit into any of the categories described in paragraph (a)
through (d) fees which recover the full direct cost of searching for
and duplicating records, except that the first 2 hours of search time
and the first 100 pages of duplication shall be furnished without
charge. Requesters must reasonably describe the records sought.
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. DON activities are reminded that this category of
requester may also be eligible for a waiver or reduction of fees if
disclosure of the information is in the public interest.
[[Page 49867]]
Sec. 701.43 Fee declarations.
Requesters should submit a fee declaration appropriate for the
categories in paragraphs (a) through (c) of this section, if fees are
expected to exceed the minimum fee threshold of $15.00.
(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 2 hours of search
effort or 100 pages of records are desired.
(d) If the conditions in paragraphs (a) through (c) are not met,
then the request need not be processed and the requester shall be so
informed.
Sec. 701.44 Restrictions.
(a) No fees may be charged by any DON activity 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, activities shall provide the first 2
hours of search time, and the first 100 pages of duplication without
charge. For example, for a request (other than one from a commercial
requester) that involved 2 hours and 10 minutes of search time, and
resulted in 105 pages of documents, an activity would determine the
cost of only 10 minutes of search time, and only five pages of
reproduction. If this processing cost was equal to, or less than, the
cost to the activity for billing the requester and processing the fee
collected, no charges would result.
(b) Requesters receiving the first 2 hours of search and the first
100 pages of duplication without charge are entitled to such only once
per request. Consequently, if a DON activity, after completing its
portion of a request, finds it necessary to refer the request to a
subordinate office, another DON activity, or another Federal agency to
action their portion of the request, the referring activity shall
inform the recipient of the referral of the expended amount of search
time and duplication cost to date.
(c) The elements to be considered in determining the ``cost of
collecting a fee'' are the administrative costs to the DON activity 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 activity determinations.
(d) For the purposes of the restrictions in this section, 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.
(e) In the case of computer searches, the first 2 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 (2 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.
Sec. 701.45 Fee assessment.
(a) 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.
(b) In order to be as responsive as possible to FOIA requests while
minimizing unwarranted costs to the taxpayer, DON activities shall
analyze each request to determine the category of the requester. If the
activity's determination regarding the category of the requester is
different than that claimed by the requester, the activity shall:
(1) 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 DON activity shall render a final category
determination, and notify the requester of such determination, to
include normal administrative appeal rights of the determination.
(2) 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 activity.
(c) Estimate of fees. DON activities 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 activities, 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 the activity's 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.
(d) Advance payment of fees. DON activities may not require advance
payment of any fee (i.e., before work is commenced or continued on a
request) unless the requester has failed to pay fees in a timely
fashion (i.e., 30 calendar days from the date of the assessed billing
in writing), or the activity has determined that the fee will exceed
$250.00.
(e) When a DON activity estimates or determines that allowable
charges that a requester may be required to pay are likely to exceed
$250.00, the activity 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
payment history.
(f) 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 DON activity 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 DON activity begins to process a new or
pending request from the requester. Interest will be at the rate
prescribed by 31 U.S.C. 3737 and confirmed with respective finance and
accounting offices.
(g) After all the work is completed on a request, and the documents
are ready for release, DON activities may require payment before
forwarding the documents, particularly for those requesters who have no
payment history, or for those requesters who have failed to previously
pay a fee in a timely fashion (i.e., within 30 calendar days from the
date of the billing).
(h) DON activities may charge for time spent searching for records,
even if that search fails to locate records responsive
[[Page 49868]]
to the request. DON activities 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 DON
activity 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 activity personnel with the object of
reformulating the request to meet his or her needs at a lower cost.
Sec. 701.46 Aggregating requests.
Except for requests that are for a commercial use, a DON activity
may not charge for the first 2 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 an activity
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 activity 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 activities should have
a solid basis for determining that aggregation is warranted in such
cases. DON activities 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 an activity
aggregate multiple requests on unrelated subjects.
Sec. 701.47 FOIA fees must be addressed in response letters.
DON activities shall ensure that requesters receive a complete
breakout of all fees which are charged and apprised of the ``Category''
in which they have been placed. For example: ``We are treating you as
an 'All Other Requester.' As such, you are entitled to 2 free hours of
search and 100 pages of reproduction, prior to any fees being assessed.
We have expended an additional 2 hours of search at $25.00 per hour and
an additional 100 pages of reproduction, for a total fee of $65.00.''
Sec. 701.48 Fee waivers.
Documents shall be furnished without charge, or at a charge reduced
below fees assessed to the categories of requesters, when the DON
activity determines that waiver or reduction of the fees is in the
public interest because furnishing the information is likely to
contribute significantly to public understanding of the operations or
activities of the DON/DoD and is not primarily in the commercial
interest of the requester. When assessable costs for a FOIA request
total $15.00 or less, fees shall be waived automatically for all
requesters, regardless of category. 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:
(a) Disclosure of the information ``is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the Government.''
(b) The subject of the request. DON activities 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 DON/DoD. Requests for records in the possession of
the DON 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 DON/DoD. 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 DON/DoD
activity. Similarly, disclosures of records of considerable age may or
may not bear directly on the current activities of the DON/DoD,
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
DON/DoD, based upon historical documentation. Requests of this nature
must be closely reviewed consistent with the requester's stated purpose
for desiring the records and the potential for public understanding of
the operations and activities of the DON/DoD.
(c) 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 DON. While the subject of a request may contain information that
concerns operations or activities of the DON, 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 DON 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 DON.
(d) 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.
(e) The significance of the contribution to public understanding.
In applying this factor, DON activities 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
[[Page 49869]]
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. DON activities shall not
make value judgments as to whether the information is important enough
to be made public.
(f) Disclosure of the information ``is not primarily in the
commercial interest of the requester.''
(1) The existence and magnitude of a commercial interest. If the
request is determined to be of a commercial interest, DON activities
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, DON
activities may draw inference from the requester's identity and
circumstances of the request. Activities 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.
(2) The primary interest in disclosure. Once a requester's
commercial interest has been determined, DON activities 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 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.
(g) The factors and examples used in this section are not all
inclusive. Each fee decision must be considered on a case-by-case basis
and upon the merits of the information provided in each request. When
the element of doubt as to whether to charge or waive the fee cannot be
clearly resolved, DON activities should rule in favor of the requester.
(h) The following additional circumstances describe situations
where waiver or reduction of fees are most likely to be warranted:
(1) A record is voluntarily created to prevent an otherwise
burdensome effort to provide voluminous amounts of available records,
including additional information not requested.
(2) 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).
Sec. 701.49 Payment of fees.
(a) Normally, fees will be collected at the time of providing the
documents to the requester when the requester specifically states that
the costs involved shall be acceptable or acceptable up to a specified
limit that covers the anticipated costs, and the fees do not exceed
$250.00.
(b) However, after all work is completed on a request, and the
documents are ready for release, DON activities 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).
(c) When a DON activity estimates or determines that allowable
charges that a requester may be required to pay are likely to exceed
$250.00, the activity 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.
(d) Advance payment of a fee is also applicable when a requester
has previously failed to pay fees in a timely fashion (i.e., 30
calendar days) after being assessed in writing by the activity.
Further, 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 DON activity 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 activity 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.
Sec. 701.50 Effect of the Debt Collection Act of 1982.
The Debt Collection Act of 1982 (Pub. L. 97-365) provides for a
minimum annual rate of interest to be charged on overdue debts owed the
Federal Government. DON activities 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. DON
activities 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, DON activities may
submit the debt to respective finance and accounting offices for
collection.
Sec. 701.51 Refunds.
In the event that a DON activity discovers that it has overcharged
a requester or a requester has overpaid, the DON activity shall
promptly refund the charge to the requester by reimbursement methods
that are agreeable to the requester and the activity.
Sec. 701.52 Computation of fees.
(a) It is imperative that DON activities compute all fees to ensure
accurate reporting in the Annual FOIA Report, but ensure that only
applicable fees be charged to the requester. For example, although we
calculate correspondence and preparation costs, these fees are not
recoupable from the requester.
(b) DD 2086, Record of Freedom of Information (FOI) Processing
Cost, should be filled out accurately to reflect all processing costs,
as requesters may solicit a copy of that document to ensure accurate
computation of fees. Costs shall be computed on time actually spent.
Neither time-based nor dollar-based minimum charges for search, review
and duplication are authorized.
[[Page 49870]]
Sec. 701.53 FOIA fee schedule.
The following fee schedule shall be used to compute the search,
review (in the case of commercial requesters) and duplication costs
associated with processing a given FOIA request. The appropriate fee
category of the requester shall be applied before computing fees.
(a) Manual search.
------------------------------------------------------------------------
Hourly
Type Grade rate
------------------------------------------------------------------------
Clerical......................... E9/GS8 and below............ $12.00
Professional..................... O1-O6/GS9-GS15.............. 25.00
Executive........................ O7/GS16/ES1 and above....... 45.00
------------------------------------------------------------------------
(b) Computer search. Fee assessments for computer search consist of
two parts; individual time (hereafter referred to as human time) and
machine time.
(1) Human time. Human time is all the 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).
(2) 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
situations 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 DON activities lease computers, the services
charged by the lessor shall not be passed to the requester under the
FOIA.
(c) Duplication.
------------------------------------------------------------------------
Type Cost per page
------------------------------------------------------------------------
Pre-Printed material...................... $.02
Office copy............................... .15
Microfiche................................ .25
Computer copies (tapes, discs or Actual cost of duplicating
printouts). the tape, disc or printout
(includes operator's time
and cost of the medium).
------------------------------------------------------------------------
(d) Review time (in the case of commercial requesters, only).
------------------------------------------------------------------------
Hourly
Type Grade rate
------------------------------------------------------------------------
Clerical......................... E9/GS8 and below............ $12.00
Professional..................... O1-O6/GS9-GS15.............. 25.00
Executive........................ O7/GS16/ES1 and above....... 45.00
------------------------------------------------------------------------
(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) Costs for special services. Complying with requests for special
services is at the discretion of the DON activity. Neither the FOIA nor
its fee structure cover these kinds of services. Therefore, DON
activities may recover the costs of special services requested by the
requester after agreement has been obtained in writing from the
requester to pay for such fees as certifying that records are true
copies, sending records by special methods such as express mail, etc.
Sec. 701.54 Collection of fees and fee rates for technical data.
(a) 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 and/or management information.
(b) DON activities shall retain the amounts received by such a
release, and it shall be merged with and available for the same purpose
and the same time period as the appropriation 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 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 information released under FOIA.
(c) Waiver. DON activities shall waive the payment of costs
required in paragraph (a) of this section which are greater than the
costs that would be required for release of this same information under
the FOIA if:
(1) 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, DON activities
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;
(2) The release of technical data is requested in order to comply
with the terms of an international agreement; or,
(3) The DON activity determines in accordance with Sec. 701.48 that
such a waiver is in the interest of the United States.
(d) Fee rates. (1) Manual search.
------------------------------------------------------------------------
Hourly
Type Grade rate
------------------------------------------------------------------------
Clerical......................... E9/GS8 and below............ $13.25
Clerical (Minimum Charge)........ ............................ 8.30
Professional..................... 01 to 06/GS9 to GS15........ (**)
Executive........................ 07/GS16/ES-1 and above...... (**)
------------------------------------------------------------------------
** Rate to be established at actual hourly rate prior to search. A
minimum charge will be established at \1/2\ Minimum Charge)
(2) Computer search is based on the total cost of the central
processing unit,
[[Page 49871]]
input-output devices, and memory capacity of the actual computer
configuration. The wage (based upon the scale for manual search) 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.
(3) Duplication.
------------------------------------------------------------------------
Type Cost
------------------------------------------------------------------------
Aerial photograph, maps, specifications, permits, charts, $2.50
blueprints, and other technical engineering documents.....
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
------------------------------------------------------------------------
(4) Review Time.
------------------------------------------------------------------------
Hourly
Type Grade rate
------------------------------------------------------------------------
Clerical......................... E9/GS8 and below............ $13.25
Clerical Minimum Charge.......... E9/GS8 and below............ 8.30
Professional..................... 01 to 06/GS9 to GS15........ (**)
Executive........................ 07/GS16/ES1 or higher....... (**)
------------------------------------------------------------------------
** Rate to be established at actual hourly rate prior to search. (A
minimum charge will be established at \1/2\ Minimum Charge)
(5) Other technical data records. Charges for any additional
services not specifically provided in paragraph (d) of this section,
consistent with Volume 11A of DoD 7000.14-R (NOTAL) shall be made by
DON activities at the following rates:
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
Sec. 701.55 Processing FOIA fee remittances.
(a) Payments for FOIA charges, less fees assessed for technical
data or by a Working Capital Fund or a Non-Appropriated Fund (NAF)
activity, shall be made payable to the U.S. Treasurer and deposited in
Receipt Account Number 172419.1203.
(b) Payments for fees assessed for technical data shall be made
payable to the DON activity that incurred the costs and will be
deposited directly into the accounting line item from which the costs
were incurred.
(c) Payments for fees assessed by Working Capital Fund or Non-
Appropriated Fund (NAF) activities shall be made payable to the DON
activity and deposited directly into their account.
Subpart D--FOIA Exemptions
Sec. 701.56 Background.
The FOIA is a disclosure statute whose goal is an informed
citizenry. Accordingly, records are considered to be releasable, unless
they contain information that qualifies for withholding under one or
more of the nine FOIA exemptions. The exemptions are identified as 5
U.S.C. 552 (b)(1) through (b)(9).
Sec. 701.57 Ground rules.
(a) Identity of requester. 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. However, if the subject of the record is the requester for
the record and the record is contained in a Privacy Act system of
records, it may only be denied to the requester if withholding is both
authorized in systems notice and by a FOIA exemption.
(b) Reasonably segregable. Even though a document may contain
information which qualifies for withholding under one or more FOIA
exemptions, FOIA requires that all ``reasonably segregable''
information be provided to the requester, unless the segregated
information would have no meaning. In other words, redaction is not
required when it would reduce the balance of the text to unintelligible
gibberish.
(c) Discretionary release. A discretionary release of a record 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.
(d) Initial Denial Authority (IDA) actions. The decision to
withhold information in whole or in part based on one or more of the
FOIA exemptions requires the signature of an IDA. See listing of IDAs
in Sec. 701.4.
Sec. 701.58 In-depth analysis of FOIA exemptions.
An in-depth analysis of the FOIA exemptions is addressed in the
DOJ's annual publication, ``Freedom of Information Act Guide & Privacy
Act Overview.'' A copy is available on the DOJ's FOIA website (see Navy
FOIA website at http://www.ogc.secnav.hq.navy.mil/foia/index.html for
easy access).
Sec. 701.59 A brief explanation of the meaning and scope of the nine
FOIA exemptions.
(a) 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.
(1) 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 based on the Executive Order on
classification (i.e., Executive Order 12958) and/or a security
classification guide. The procedures for reclassification are addressed
in the Executive Order.
(2) If the information qualifies as exemption (b)(1) information,
there is no discretion regarding its release. In addition, this
exemption shall be invoked when the following situations are apparent:
(i) Glomar response: The fact of the existence or nonexistence of a
record would itself reveal classified information. In this situation,
DON activities 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.
(ii) Compilation: Compilations of items of information that are
individually unclassified may be classified if the compiled information
reveals additional association or relationship that meets the standard
for classification under an existing executive order for classification
and is not otherwise revealed in the individual items of information.
(b) 5 U.S.C. 552 (b)(2): Those related solely to the internal
personnel rules and practices of the DON and its
[[Page 49872]]
activities. This exemption is entirely discretionary and has two
profiles, high (b)(2) and low (b)(2):
(1) High (b)(2) are records 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 DON. For
example:
(i) Those operating rules, guidelines, and manuals for DON
investigators, inspectors, auditors, or examiners that must remain
privileged in order for the DON activity 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 DON 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) Discussion of low (b)(2) is provided for information only, as
DON activities may not invoke the low (b)(2). Low (b)(2) records are
those matters which are trivial and housekeeping in nature for which
there is no 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.
(c) 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. A few examples of (b)(3) statutes are:
(1) 10 U.S.C. 128, Physical Protection of Special Nuclear Material,
Limitation on Dissemination of Unclassified Information.
(2) 10 U.S.C. 130, Authority to Withhold From Public Disclosure
Certain Technical Data.
(3) 10 U.S.C. 1102, Confidentiality of Medical Quality Assurance
Records.
(4) 10 U.S.C. 2305(g), Protection of Contractor Submitted
Proposals.
(5) 12 U.S.C. 3403, Confidentiality of Financial Records.
(6) 18 U.S.C. 798, Communication Intelligence.
(7) 35 U.S.C. 181-188, Patent Secrecy--any records containing
information relating to inventions that are the subject of patent
applications on which Patent Secrecy Orders have been issued.
(8) 35 U.S.C. 205, Confidentiality of Inventions Information.
(9) 41 U.S.C. 423, Procurement Integrity.
(10) 42 U.S.C. 2162, Restricted Data and Formerly Restricted Data.
(11) 50 U.S.C. 403 (d)(3), Protection of Intelligence Sources and
Methods.
(d) 5 U.S.C. 552 (b)(4): Those containing trade secrets or
commercial or financial information that a DON activity 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. If the information qualifies as exemption (b)(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 DON
activity 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.
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 (b)(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 DON.
(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, subparts 227.71 and 227.72. Technical
data developed exclusively with Federal funds may be withheld under
Exemption (b)(3) if it meets the criteria of 10 U.S.C. 130 and DoD
Directive 5230.25 of 6 November 1984.
(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.
(e) 5 U.S.C. 552(b)(5): Those containing information considered
privileged in litigation, primarily under the deliberative process
privilege. For example: 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 or within or
among DON activities. In order to meet the test of this exemption, the
record must be both deliberative in nature, as
[[Page 49873]]
well as part of a decision-making process. Merely being an internal
record is 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. Examples of the deliberative process include:
(1) The nonfactual portions of staff papers, to include after-
action reports, lessons learned, and situation reports containing staff
evaluations, advice, opinions, or suggestions.
(2) Advice, suggestions, or evaluations prepared on behalf of the
DON 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.
(3) Those non-factual portions of evaluations by DON personnel of
contractors and their products.
(4) Information of a speculative, tentative, or evaluative nature
or such matters as proposed plans to procure, lease or otherwise
acquire and dispose of materials, real estate, facilities or functions,
when such information would provide undue or unfair competitive
advantage to private personal interests or would impede legitimate
government functions.
(5) 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.
(6) 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 DON activities, when these records have
traditionally been treated by the courts as privileged against
disclosure in litigation.
(7) Planning, programming, and budgetary information that is
involved in the defense planning and resource allocation process.
(8) 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
discovery process.
(9) 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 exempt information, so
fragmented as to be uninformative, or so redundant of information
already available to the requester as to provide no new substantive
information.
(10) 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.
(11) 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) 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 (b)(6) information, there is no discretion in its release.
Examples of other files containing personal information similar to that
contained in personnel and medical files include:
(1) 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.
(2) Files containing reports, records, and other material
pertaining to personnel matters in which administrative action,
including disciplinary action, may be taken.
(3) Home addresses, including private e-mail addresses, are
normally not releasable without the consent of the individuals
concerned. This includes lists of home addressees and military
quarters' addressees without the occupant's name. Additionally, the
names and duty addresses (postal and/or e-mail) of DON/DoD military and
civilian personnel who are assigned to units that are sensitive,
routinely deployable, or stationed in foreign territories can
constitute a clearly unwarranted invasion of personal privacy.
(4) 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.
(5) Names and duty addresses (postal and/or e-mail) 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.
(6) 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 of 28 October 1996
(NOTAL).
(7) 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
[[Page 49874]]
in a Privacy Act system of records, consult with legal counsel.
(8) 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, DON
activities shall neither confirm nor deny the existence or nonexistence
of the record being requested. This is a Glomar response, and exemption
(b)(6) must be cited in the response. Additionally, in order to insure
personal privacy is not violated during referrals, DON activities shall
coordinate with other DON activities 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 the person
whose personal privacy is in jeopardy has provided the requester a
waiver of his or her privacy rights; the person initiated or directly
participated in an investigation that led to the creation of an agency
record seeks access to that record; or 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.
(g) 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 under 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 (b)(7)(C) and (b)(7)(F), this exemption
is discretionary. This exemption applies, however, only to the extent
that production of such law enforcement records or information could
result in the following:
(1) 5 U.S.C. 552(b)(7)(A): Could reasonably be expected to
interfere with enforcement proceedings.
(2) 5 U.S.C. 552(b)(7)(B): Would deprive a person of the right to a
fair trial or to an impartial adjudication.
(3) 5 U.S.C. 552(b)(7)(C): 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.
(i) 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
(b)(7)(C) must be cited in the response. Additionally, in order to
insure personal privacy is not violated during referrals, DON
activities shall coordinate with other DON/DoD activities or Federal
Agencies before referring a record that is exempt under the Glomar
concept. 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 the person
whose personal privacy is in jeopardy has provided the requester with a
waiver of his or her privacy rights; or the person whose personal
privacy is in jeopardy is deceased, and the activity is aware of that
fact.
(4) 5 U.S.C. 552(b)(7)(D): Could reasonably be expected to disclose
the identity of a confidential source, including a source within the
DON; 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) 5 U.S.C. 552(b)(7)(E): 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.
(6) 5 U.S.C. 552(b)(7)(F): Could reasonably be expected to endanger
the life or physical safety of any individual.
(7) Some examples of exemption 7 are: 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; the identity of firms or individuals being
investigated for alleged irregularities involving contracting with the
DoD when no indictment has been obtained nor any civil action filed
against them by the United States; information obtained in confidence,
expressed or implied, in the course of a criminal investigation by a
criminal law enforcement agency or office within a DON activity or a
lawful national security intelligence investigation conducted by an
authorized agency or office within the DON; national security
intelligence investigations include background security investigations
and those investigations conducted for the purpose of obtaining
affirmative or counterintelligence information.
(8) 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.
(9) Exclusions. Excluded from the exemption in paragraph (g)(8) are
the following two situations applicable to the DON:
(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, DON activities 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 DON activities under the informant's
name or personal identifier are requested by a third party using the
informant's name or personal identifier, the DON activity 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.
(iii) DON activities considering invoking an exclusion should first
consult with the DOJ's Office of Information and Privacy.
(h) 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.
[[Page 49875]]
(i) 5 U.S.C. 552(b)(9): Those containing geological and geophysical
information and data (including maps) concerning wells.
Dated: August 30, 1999.
J. L. Roth,
Lieutenant Commander, Judge Advocate General's Corps, U.S. Navy,
Federal Register Liaison Officer.
[FR Doc. 99-23344 Filed 9-13-99; 8:45 am]
BILLING CODE 3810-FF-P
