05-23880. DoD Freedom of Information Act (FOIA) Program (DoDD 5400.7)

AGENCY:

Department of Defense.

ACTION:

Final rule.

SUMMARY:

This rule conforms to the requirements of the Electronic Freedom of Information Act Amendments of 1996. It promotes public trust by making the maximum amount of information available to the public, in both hard copy and electronic formats, on the operation and activities of the Department of Defense, consistent with DoD responsibility to protect national security and other DoD interests as provided by applicable law. It also allows a requester to obtain Agency records from the Department of Defense that are available through other public information services without invoking the FOIA.

EFFECTIVE DATE:

This rule is effective October 28, 2005.

FOR FURTHER INFORMATION CONTACT:

Mr. David W. Maier, 703-695-6428.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This regulatory action is not a significant regulatory action, as defined by Executive Order 12866.

Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))

This regulatory action will not have a significant adverse impact on a substantial number of small entities.

Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)

This regulatory action does not contain a Federal mandate that will result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector of $100 million or more in any one year.

Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)

This regulatory action will not impose any addition reporting or recordkeeping requirements under the Paperwork Reduction Act.

Federalism (Executive Order 13132)

This regulatory action does not have Federalism implications, as set forth in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

Public Law 96-354, “Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)

It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule implements the Freedom of Information Act (5 U.S.C. 552), a statute concerning the release of Federal Government records, and does not economically impact Federal Government relations with the private sector.

Section 202, Public Law 104-4, “Unfunded Mandates Reform Act”

It has been determined that this rule does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.

List of Subjects in 32 CFR Part 285

• Freedom of information

Accordingly, 32 CFR part 285 is revised to read as follows:

PART 285—DOD FREEDOM OF INFORMATION ACT (FOIA) PROGRAM

285.1

Purpose.

285.2

Applicability and scope.

285.3

Policy.

285.4

Responsibilities.

285.5

Information requirements.

Authority: 5 U.S.C. 552.

§ 285.1

Purpose.

This part:

(a) Updates policies and responsibilities for implementing the DoD Freedom of Information Act (FOIA) Program under 5 U.S.C. 552.

(b) Continues to authorize DoD 5400.7-R^[1] to implement the FOIA Program.

(c) Continues to delegate authorities and responsibilities for the effective administration of the FOIA program.

§ 285.2

Applicability and scope.

(a) This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”).

(b) National Security Agency/Central Security Service records are subject to this part unless the records are exempt under section 6 of the Public Law 86-36 (1959), codified at section 402 note of title 50, United States Code (U.S.C.). The records of the Defense Intelligence Agency, National Reconnaissance Office, and the National Geospatial-Intelligence Agency are also subject to this part unless the records are exempt under 10 U.S.C. 424, 50 U.S.C. 403-5e, 10 U.S.C. 455, or other applicable law.

§ 285.3

Policy.

It is DoD policy to:

(a) Promote public trust by making the maximum amount of information available to the public, in both hard copy and electronic formats, on the operation and activities of the Department of Defense, consistent with DoD responsibility to protect national security and other sensitive DoD information as provided by applicable law.

(b) Allow a requester to obtain Agency records from the Department of Defense that are available through other public information services without invoking the FOIA.

(c) Make available, under the procedures established by DoD 5400.7-R, Agency records requested by a member of the public who explicitly or implicitly cites the FOIA.

(d) Answer promptly all other requests for Agency information and records under established procedures and practices.

(e) Release Agency records to the public unless those records are exempt from disclosure as outlined in 5 U.S.C. 552.

(f) Process requests by individuals for access to records about themselves contained in a Privacy Act system of records under procedures set forth in DoD 5400.11-R ^[2] and procedures outlined in this part, as amplified by DoD 5400.7-R.

§ 285.4

Responsibilities.

(a) The Director, Administration and Management (DA&M) shall:

(1) Serve as the appellate authority for appeals to decisions of respective Initial Denial Authorities within OSD, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the DoD Field Activities, and select Defense Agencies as listed in DoD 5400.7-R. The DA&M may delegate this responsibility to an appropriate member of the DA&M or Washington Headquarters (WHS) staff.

(2) Prepare and maintain a DoD issuance and other discretionary information to ensure timely and reasonably uniform implementation of the FOIA in the Department of Defense.

(b) The Director, Washington Headquarters Services, under the DA&M, shall:

(1) Direct and administer the DoD FOIA Program to ensure compliance with policies and procedures that govern the administration of the program.

(2) Administer the FOIA Program, inclusive of training, for the OSD, the Chairman of the Joint Chiefs of Staff and, as an exception to DoD Directive 5100.3 ^[3] , the Combatant Commands.

(c) The General Counsel of the Department of Defense shall provide uniformity in the legal interpretation of this part; ensure affected legal advisors, public affairs officers, and legislative affairs officers are aware of releases through litigation channels which may be of significant public, media, or Congressional interest, or of interest to senior DoD officials; and establish procedures to centralize processing pursuant to litigation.

(d) The Under Secretary of Defense for Intelligence shall establish uniform procedures regarding the declassification of national security information made pursuant to requests invoking the FOIA.

(e) The Heads of the DoD Components shall:

(1) Internally administer the DoD FOIA Program and publish any instructions necessary for the internal administration of this part within a DoD Component that are not prescribed by this part or by other issuances of the DA&M in the Federal Register.

(2) Ensure respective chains of command, affected legal advisors, public affairs officers and legislative affairs officers are aware of releases through the FOIA, inclusive of releases through litigation channels, which may be of significant public, media, or Congressional interest, or of interest to senior DoD officials.

(3) Conduct training on the provisions of this part and 5 U.S.C. 552 and DoD 5400.7-R for officials and employees who implement the FOIA.

(4) Submit the Annual Report prescribed in Chapter 7 of DoD 5400.7-R.

(5) Make the records specified in 5 U.S.C. 552(a)(2) unless such records are published and copies are offered for sale, available for public inspection and copying in an appropriate facility or facilities, according to rules published in the Federal Register.

(6) Maintain and make current indices of all 5 U.S.C. 552(a)(2) records available for public inspection and copying.

§ 285.5

Information requirements.

The reporting requirements in Chapter 7 of DoD 5400.7-R have been assigned Report Control Symbol DD-DA&M(A)1365.

Dated: December 6, 2005.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, DoD.

Footnotes

1.  Copies may be obtained at http://www.dtic.mil/​whs/​directives/​.

2.  See footnote 1 to § 285.1(b).

3.  See footnote 1 to § 285.1(b).