[Federal Register Volume 64, Number 248 (Tuesday, December 28, 1999)]
[Rules and Regulations]
[Pages 72808-72825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29525]
[[Page 72807]]
_______________________________________________________________________
Part VIII
Department of Defense
_______________________________________________________________________
Department of the Air Force
_______________________________________________________________________
32 CFR Part 806
Freedom of Information Act Program; Final Rule
Federal Register / Vol. 64, No. 248 / Tuesday, December 28, 1999 /
Rules and Regulations
[[Page 72808]]
DEPARTMENT OF DEFENSE
Department of the Air Force
32 CFR Part 806
RIN: 0701-AA-61
Freedom of Information Act Program
AGENCY: Department of the Air Force, DoD.
ACTION: Final rule.
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SUMMARY: The Department of the Air Force is revising our rules on the
Freedom of Information Act Program of the Code of Federal Regulations
(CFRs) to reflect current policies. Part 806 implements Air Force
Policy Directive (AFPD) 37-1, Air Force Information Management (will
convert to AFPD 33-3), and applies to all Air Force activities. It
provides policies and procedures for implementing the Freedom of
Information Act (FOIA), Title 5 United States Code (U.S.C.) Section
552, as amended, and ``For Official Use Only (FOUO)'' information
requirements.
EFFECTIVE DATE: November 1, 1999.
ADDRESSES: Mrs. Anne P. Rollins, HQ AFCIC/ITC, 1250 Air Force Pentagon,
Washington, DC 20330-1250, 703-588-6187.
FOR FURTHER INFORMATION CONTACT: Mrs. Anne P. Rollins, HQ AFCIC/ITC,
703-588-6187.
List of Subjects in 32 CFR Part 806
Freedom of Information.
For the reasons set forth in the preamble, the Department of the
Air Force is revising 32 CFR part 806 as follows:
PART 806--AIR FORCE FREEDOM OF INFORMATION ACT PROGRAM
Sec.
806.1 Summary of revisions.
806.2 Applicability.
806.3 Public information.
806.4 Definitions.
806.5 Responsibilities.
806.6 Prompt action on requests.
806.7 Use of exemptions.
806.8 Description of requested record.
806.9 Referrals.
806.10 Records management.
806.11 FOIA reading rooms.
806.12 Record availability.
806.13 5 U.S.C. 552 (a)(2) materials.
806.14 Other materials.
806.15 FOIA exemptions.
806.16 For official use only.
806.17 Release and processing procedures.
806.18 Initial determinations.
806.19 Reasonably segregable portions.
806.20 Records of non-U.S. government source.
806.21 Appeals.
806.22 Time limits.
806.23 Delay in responding to an appeal.
806.24 Fee restrictions.
806.25 Annual report.
806.26 Addressing FOIA requests.
806.27 Samples of Air Force FOIA processing documents.
806.28 Records with special disclosure procedures.
806.29 Administrative processing of Air Force FOIA requests.
806.30 FOIA exempt information examples.
806.31 Requirements of 5 U.S.C. 552(b)(4) to submitters of
nongovernment contract-related information.
Appendix A To Part 806--References
Appendix B To Part 806--Abbreviations and Acronyms
Appendix C To Part 806--Terms
Authority: 5 U.S.C. 552.
Sec. 806.1 Summary of revisions.
This part makes this guidance an Air Force supplement to the DoD
regulation at 32 CFR part 286. It transfers responsibility for the Air
Force Freedom of Information Act (FOIA) Program from the Office of the
Secretary of the Air Force (SAF/AAI) to Headquarters United States Air
Force (HQ USAF/SC) and Headquarters Air Force Communications and
Information Center/Corporate Information Division (HQ AFCIC/ITC);
contains significant changes and additions to implement the Electronic
Freedom of Information Act (EFOIA) Amendments of 1996; addresses
electronic records; increases time limits to 20 working days; adds
procedures for multiple tracking and expedited processing of requests;
changes annual report date and content; adds major command (MAJCOM)
inspectors general (IG), MAJCOM Directors of Inquiries (IGQ), and wing
commanders as initial denial authorities (IDAs).
Sec. 806.2 Applicability.
A list of Air Force MAJCOMs, field operating agencies (FOAs), and
Direct Reporting Units (DRUs) is at Sec. 806.26.
Sec. 806.3 Public information.
(a) Functional requests. Air Force elements may receive requests
for government information or records from the public that do not refer
to the FOIA. Often these requests are sent to a public affairs office
(PAO) or a specific unit. All releases of information from Air Force
records, whether the requester cites the FOIA or not, must comply with
the principles of the FOIA and this part. If the requested material
contains personal privacy information that the Air Force must withhold,
it is particularly important to handle that ``functional'' request as a
request under the FOIA and coordinate it with the appropriate FOIA
office and an Air Force attorney. Regardless of the nature of the
functional request, if the responding element denies the release of
information from Air Force records, then control the request as a FOIA
and follow FOIA denial procedures for records withheld (cite the
pertinent FOIA exemption and give the requester FOIA appeal rights).
(b) HQ AFCIC/ITC will make the Air Force handbook and guide for
requesting records available on the World Wide Web (WWW) from Air
ForceLINK, at http://www.foia.af.mil/handbook.htm.
Sec. 806.4 Definitions.
(a) Electronic reading room (ERR). Rooms established on Internet
web sites for public access to FOIA-processed (a)(2)(D) records.
(b) FOIA request. This includes FOIA requests made by members of
Congress either on their own behalf or on behalf of one of their
constituents. Process FOIA requests from members of Congress in
accordance with this Air Force supplement. Air Force-affiliated
requesters, to include military and civilian employees, should not use
government equipment, supplies, stationery, postage, telephones, or
official mail channels to make FOIA requests.
(1) Simple requests can be processed quickly with limited impact on
the responding units. The request clearly identifies the records with
no (or few) complicating factors involved. There are few or no
responsive records. Only one installation is involved and there are no
outside Office of Primary Responsibility (OPRs). There are no
classified or nongovernment records. No deliberative process/privileged
materials are involved. The responsive records contain no (or limited)
personal privacy information and do not come from a Privacy Act system
of records. No time extensions are anticipated.
(2) Complex requests take substantial time and cause significant
impact on responding units. Complications and delays are likely.
Records sought are massive in volume. Multiple organizations must
review/coordinate on requested records. Records are classified;
originated with a nongovernment source; are part of the Air Force's
decision-making process; or are privileged.
(c) Government Information Locator Service (GILS). GILS is an
automated on-line card catalog of publicly accessible information. The
Office of Management and Budget (OMB) Bulletin 95-01, December 7, 1994,
and OMB Memorandum, February 6, 1998, mandates that all federal
agencies create
[[Page 72809]]
a GILS record for information available to the public. The DoD GILS
resides on DefenseLINK, the official DoD home page, at ``http://
www.defenselink.mil/locator/index.html.''
(d) Initial denial authority. Only approved IDAs may deny all or
parts of records. FOIA managers may: initially deny fee category
claims, requests for expedited processing, and waiver or reduction of
fees; review fee estimates; and sign ``no records'' responses. IDAs are
the deputy chiefs of staff and chiefs of comparable offices or higher
at HQ USAF and Secretary of the Air Force (SAF), and MAJCOM commanders.
Deputy Chiefs of Staff and chiefs of comparable offices or higher at HQ
USAF and SAF may name one additional position as denial authority.
MAJCOM commanders may appoint two additional positions at the
headquarters and also the wing commander at base level. MAJCOM IGs and
MAJCOM Directors of Inquiries (IGQ) may act as IDAs for IG records.
MAJCOM FOIA managers must notify HQ AFCIC/ITC in writing (by facsimile,
e-mail, or regular mail) of IDA position titles. Send position titles
only--no names. HQ AFCIC/ITC sends SAF/IGQ a copy of the correspondence
designating IDA positions for IG records. When the commander changes
the IDA designee position, MAJCOM FOIA managers will advise HQ AFCIC/
ITC immediately. In the absence of the designated IDA, the individual
filling/assuming that position acts as an IDA, however; all denial
documentation must reflect the position title of the approved or
designated IDA, even if in an acting capacity (for example, Acting
Director of Communications and Information, Headquarters Air Combat
Command).
(e) Office of primary responsibility (OPR). A DoD element that
either prepared, or is responsible for, records identified as
responsive to a FOIA request. OPRs coordinate with the office of
corollary responsibility (OCR) and FOIA managers to assist IDAs in
making decisions on FOIA requests.
(f) OCR. A DoD element with an official interest in, and/or
collateral responsibility for, the contents of records identified as
responsive to a FOIA request, even though those records were either
prepared by, or are the primary responsibility of, a different DoD
element. OCRs coordinate with OPRs and FOIA managers to assist IDAs in
making decisions on FOIA requests.
(g) Appellate authority. The SAF has designated the Deputy General
Counsel, Fiscal, Ethics, and Civilian Personnel (SAF/GCA) as the FOIA
appellate authority.
(h) Reading room. Any place where a member of the public may view
FOIA records.
Sec. 806.5 Responsibilities.
(a) The Director, Communications and Information (HQ USAF/SC) has
overall responsibility for the Air Force FOIA Program. The Corporate
Information Division (HQ AFCIC/ITC) administers the procedures
necessary to implement the Air Force FOIA Program, submits reports to
the Director, Freedom of Information and Security Review (DFOISR), and
provides guidance and instructions to MAJCOMs. Responsibilities of
other Air Force elements follow.
(b) SAF/GCA makes final decisions on FOIA administrative appeals.
(c) Installation commanders will: Comply with FOIA electronic
reading room (ERR) requirements by establishing a FOIA site on their
installation public web page and making frequently requested records
(FOIA-processed (a)(2)(D)) records available through links from that
site, with a link to the Air Force FOIA web page at http://
www.foia.af.mil. See Sec. 806.12(c).
(d) MAJCOM commanders implement this instruction and appoint a FOIA
manager, in writing. Send the name, phone number, office symbol, and e-
mail address to HQ AFCIC/ITC, 1250 Air Force Pentagon, Washington, DC
20330-1250.
(e) Air Force attorneys review FOIA responses for legal
sufficiency, provide legal advice to OPRs, disclosure authorities,
IDAs, and FOIA managers, and provide written legal opinions when
responsive records (or portions of responsive records) are withheld.
Air Force attorneys ensure factual and legal issues raised by
appellants are considered by IDAs prior to sending the FOIA appeal
files to the Secretary of the Air Force's designee for final action.
(f) Disclosure authorities and IDAs apply the policies and guidance
in this instruction, along with the written recommendations provided by
staff elements, when considering what decisions to make on pending FOIA
actions. Where any responsive records are denied, the IDA tells the
requesters the nature of records or information denied, the FOIA
exemption supporting the denial, the reasons the records were not
released, and gives the requester the appeal procedures. In addition,
on partial releases, IDAs must ensure requesters can see the placement
and general length of redactions with the applicable exemption
indicated. This procedure applies to all media, including electronic
records. Providing placement and general length of redacted information
is not required if doing so would harm an interest protected by a FOIA
exemption. When working FOIA appeal actions for the appellate authority
review:
(1) IDAs grant or recommend continued denial (in full or in part)
of the requester's appeal of the earlier withholding of responsive
records, or adverse determination (for example, IDAs may release some
or all of the previously denied documents).
(2) IDAs reassess a request for expedited processing due to
demonstrated compelling need, overturning or confirming the initial
determination made by the FOIA manager.
(3) When an IDA denies any appellate action sought by a FOIA
requester, the IDA, or MAJCOM FOIA manager (for no record, fee, fee
estimates, or fee category appeals) will indicate in writing that the
issues raised in the FOIA appeal were considered and rejected (in full
or in part). Include this written statement in the file you send to the
Secretary of the Air Force in the course of a FOIA appeal action. Send
all appeal actions through the MAJCOM FOIA office.
(g) OPRs:
(1) Coordinate the release or denial of records requested under the
FOIA with OCRs, FOIA offices, and with Air Force attorneys on proposed
denials.
(2) Provide requested records. Indicate withheld parts of records
annotated with FOIA exemption. Ensure requesters can see the placement
and general length of redactions. This procedure applies to all media,
including electronic records. Providing placement and general length of
redacted information is not required if doing so would harm an interest
protected by a FOIA exemption.
(3) Provide written recommendations to the disclosure authority to
determine whether or not to release records, and act as
declassification authority when appropriate.
(4) Make frequently requested records (FOIA-processed (a)(2)(D))
available to the public in the FOIA ERR via the Internet. As required
by AFIs 33-129, Transmission of Information Via the Internet, and 35-
205, Air Force Security and Policy Review Program, OPRs request
clearance of these records with the PAO before posting on the WWW, and
coordinate with JA and FOIA office prior to posting. The FOIA manager,
in coordination with the functional OPR or the owner of the records,
will determine qualifying records, after coordination with any
interested OCRs.
(5) Complete the required GILS core record for each FOIA-processed
(a)(2)(D) record.
[[Page 72810]]
(6) Manage ERR records posted to the installation public web page
by updating or removing them when no longer needed. Software for
tracking number of hits may assist in this effort.
(h) FOIA managers:
(1) Ensure administrative correctness of all FOIA actions
processed.
(2) Control and process FOIA requests.
(3) Obtain recommendations from the OPR for records.
(4) Prepare or coordinate on all proposed replies to the requester.
FOIA managers may sign replies to requesters when disclosure
authorities approve the total release of records. If the MAJCOM part
directs the OPR to prepare the reply, the OPR will coordinate their
reply with the FOIA office.
(5) Make determinations as to whether or not the nature of requests
are simple or complex where multitrack FOIA request processing queues
exist.
(6) Approve or initially deny any requests for expedited
processing.
(7) Provide interim responses to requesters, as required.
(8) Provide a reading room for inspecting and copying records.
(9) Provide training.
(10) Review publications for compliance with this part.
(11) Conduct periodic program reviews.
(12) Approve or deny initial fee waiver requests.
(13) Make the initial decision on chargeable fees.
(14) Collect fees.
(15) Send extension notices.
(16) Submit reports.
(17) Sign ``no record'' responses.
(18) Provide the requester the basis for any adverse determination
(i.e., no records, fee denials, fee category determinations, etc.) in
enough detail to permit the requester to make a decision whether or not
to appeal the actions taken, and provide the requester with appeal
procedures.
(i) On appeals, FOIA managers:
(1) Reassess a fee category claim by a requester, overturning or
confirming the initial determination.
(2) Reassess a request for expedited processing due to demonstrated
compelling need, overturning or confirming the initial determination.
(3) Reassess a request for a waiver or reduction of fees,
overturning or confirming the initial determination.
(4) Review a fee estimate, overturning or confirming the initial
determination.
(5) Confirm that no records were located in response to a request.
(j) The base FOIA manager acts as the FOIA focal point for the FOIA
site on the installation web page.
(k) When any appellate action sought by a FOIA requester is denied
by an IDA or FOIA manager for authorized actions, the IDA or FOIA
manager will indicate, in writing, that the issues raised in the FOIA
appeal were considered and rejected (in full or in part). Include this
written statement in the file you send to the Secretary of the Air
Force in the course of a FOIA appeal action. Send all appeal actions
through the MAJCOM FOIA office.
Sec. 806.6 Prompt action on requests.
(a) Examples of letters to FOIA requesters (e.g., response
determinations and interim responses) are included in Sec. 806.27.
(b) Multitrack processing. (1) Examples of letters to FOIA
requesters (e.g., letters to individuals who have had their FOIA
request placed in the complex track) are included in Sec. 806.27.
(2) Simple requests can be processed quickly, with limited impact
on the responding units. The request clearly identifies the records
with no (or few) complicating factors involved. There are few or no
responsive records, only one installation is involved, there are no
outside OPRs, no classified or nongovernment records, no deliberative
process/privileged materials are involved, records contain no (or
limited) personal privacy information/did not come from Privacy Act
systems of records concerning other individuals, or time extensions not
anticipated.
(c) Complex requests will take substantial time, will cause
significant impact on responding units. Complications and delays are
likely. Records sought are massive in volume, multiple organizations
must review/coordinate on records, records are classified, records
originated with a nongovernment source, records were part of the Air
Force's decision-making process or are privileged.
(d) Expedited processing. Examples of letters to individuals whose
FOIA requests and/or appeals were not expedited are included in
Sec. 806.27.
Sec. 806.7 Use of exemptions.
(a) A listing of some AFIs that provide guidance on special
disclosure procedures for certain types of records is provided in
Sec. 806.28. Refer to those instructions for specific disclosure
procedures. Remember, the only reason to deny a request is a FOIA
exemption.
(b) Refer requests from foreign government officials that do not
cite the FOIA to your foreign disclosure office and notify the
requester.
(c) If you have a non-U.S. Government record, determine if you need
to consult with the record's originator before releasing it (see
Sec. 806.9 and Sec. 806.15(c)). This includes records created by
foreign governments and organizations such as North Atlantic Treaty
Organization (NATO) and North American Aerospace Defense (NORAD). You
may need to coordinate release of foreign government records with
either the U.S. Department of State or with the specific foreign
embassy, directly through the MAJCOM FOIA office. Coordinate release or
denial of letters of offer and acceptance (LOA) with SAF/IA through 11
CS/SCSR (FOIA), 1000 Air Force Pentagon, Washington DC 20330-1000.
Sec. 806.8 Description of requested record.
Air Force elements must make reasonable efforts to find the records
described in FOIA requests. Reasonable efforts means searching all
activities and locations most likely to have the records, and includes
staged or retired records, as well as complete and thorough searches of
relevant electronic records, such as databases, word processing, and
electronic mail files.
Sec. 806.9 Referrals.
(a) Send all referrals through the FOIA office. The receiving FOIA
office must agree to accept the referral before transfer. The FOIA
office will provide the name, phone number, mailing address, and e-mail
address of both the FOIA office point of contact and the record OPR
point of contact in their referral letter. Include the requested
record. If the requested records are massive, then provide a
description of them. Referrals to, or consultations with, DFOISR are
accomplished from the MAJCOM level. Section 806.27 has an example of a
referral memo.
(b) In some cases, requested records are available from the GPO and
NTIS, 5285 Port Royal Road, Springfield VA 22161. These organizations
offer certain records for sale to the public. Current standard
releasable Air Force publications are available
electronically on the WWW at
http://afpubs.hq.af.mil/. For requesters without electronic access,
NTIS has paper copies for sale. Give requesters the web address or NTIS
address when appropriate. However, if the requester prefers to pursue
the FOIA process, consult with HQ AFCIC/ITC through the MAJCOM. Refer
FOIA requests for Air Force publications that are classified, FOUO,
rescinded, or superseded to the OPR through the appropriate FOIA
office.
Sec. 806.10 Records management.
Keep records that were fully released for 2 years and denied
records for 6 years. Include in the 6-year record file copies of
records or parts of records that
[[Page 72811]]
were released in response to the same request. Refer to Air Force
Manual (AFMAN) 37-139, Records Disposition Schedule (converting to
AFMAN 33-339, see Sec. 806.9(b)). The functional OPR or FOIA office may
keep the records released or denied. The FOIA office keeps the FOIA
case file for each request. The FOIA case file consists of: the initial
request; tasking to OPRs; OPR's reply; memoranda for record (MFR) of
phone calls or other actions related to the FOIA request; DD Forms
2086, Record of Freedom of Information (FOI) Processing Cost, or 2086-
1, Record of Freedom of Information (FOI) Processing Cost for Technical
Data; final response; and any of the following, if applicable:
extension letter; legal opinions; submitter notification letters and
replies; the appeal and required attachments (except for the released
or denied records if maintained by the OPR); and all other
correspondence to and from the requester.
Sec. 806.11 FOIA reading rooms.
Each FOIA office will arrange for a reading room where the public
may inspect releasable records. You do not need to co-locate the
reading room with the FOIA office. The FOIA does not require creation
of a reading room dedicated exclusively to this purpose. A ``reading
room'' is any location where a requester may review records. For FOIA-
processed (a)(3) records, if requesters meet the criteria for search
and review costs, they must be paid before inspecting records. Assess
reproduction costs at the time of inspection, if appropriate.
Sec. 806.12 Record availability.
(a) HQ AFCIC/ITC will make the traditional FOIA-processed (a)(2)
materials (5 U.S.C. 552(a)(2)(A), (B), and (C)) available to the
public. Each Air Force activity must make 5 U.S.C. 552(a)(2)(D) records
(``FOIA-processed (a)(2)(D) records''--records which they determine
will, or have become, the subject of frequent or subsequent requests)
available to the public in a reading room in hard copy and
electronically by posting it to their appropriate web site. There is no
requirement to make all FOIA-released records available electronically.
The FOIA manager, in coordination with the functional OPR, or the owner
of the records, determines qualifying records, after coordination with
any interested OCRs. As required by AFIs 33-129 and 35-205, OPRs
request clearance of these records with the PAO before posting on the
WWW.
(b) Normally, if the FOIA office or OPR receives, or anticipates
receiving, five or more requests for the same record in a quarter, they
will consider it a frequently requested record (FOIA-processed
(a)(2)(D) record) and make it publicly available in hard copy and
electronically as outlined in Sec. 806.12(a). OPRs may elect to make
other records publicly available if they receive, or expect to receive,
less than five requests a quarter. The purpose is to make records
available in an ERR to potential future FOIA requesters instead of
waiting to receive a FOIA request, and reduce the number of multiple
FOIA requests for the same records requiring separate responses. In
making these determinations, recognize there are some situations in
which a certain type of record becomes the subject of simultaneous FOIA
requests from all interested parties and then ceases to be of interest.
Activities may typically receive a ``flurry'' of FOIA requests for
contract records immediately after a contract is awarded, but do not
receive any subsequent requests for such bulky records after that
point. In some cases, activities may decide that placing records in the
ERR would not serve the statutory purpose of ``diverting some potential
FOIA requests for previously released records.'' The following types of
records should be considered for inclusion in the ERR (excluding
individuals assigned to overseas, sensitive, and routinely deployable
units): organizational charts and limited staff directories; lists of
personnel reassigned with gaining base; MAJCOM FOIA supplements; lists
of International Merchant Purchase Authority Card (IMPAC) card holders.
Do not post lists of e-mail addresses.
(c) GILS. Each activity that posts FOIA-processed (a)(2)(D) records
(records which they determine will, or have become, the subject of
frequent or subsequent requests) must create a GILS record for each
FOIA-processed (a)(2)(D) record and post it to DefenseLINK. The OPR
prepares the GILS record. You can complete and submit a GILS record on-
line using a web browser. Instructions for completing the GILS record,
and an on-line form are at http://www.defenselink.mil/locator/
index.html. Follow the steps listed on the web page. The GILS site on
DefenseLINK will serve as the central index of Air Force FOIA-processed
(a)(2)(D) records.
(d) In addition, installations will post a list, or index, of
locally produced FOIA-processed (a)(2)(D) records on their web page at
their FOIA site. Each listing will point or link to the particular
record. In addition, MAJCOMs may choose to post their own index of
MAJCOM specific FOIA-processed (a)(2)(D) records to their appropriate
web site. Installation web pages will include the following phrase (or
similar words) on their FOIA site if they do not have any frequently
requested FOIA records: ``There are no frequently requested FOIA
records to post at this time.'' Include the following statement, or a
similar one, on the installation web page with the records: ``Some
records are released to the public under the FOIA, and may therefore
reflect deletion of some information in accordance with the FOIA's nine
statutory exemptions. A consolidated list of such records is on
DefenseLINK.'' Link the word ``DefenseLINK'' to www.defenselink.mil/
locator/fpr__index.html. Qualifying releasable records with exempt
information redacted must show on the record the amount of information
withheld and the exemption reason (for example, (b)(6)). Activities
with such records should provide the public an index and explanation of
the FOIA exemptions. All installation FOIA pages will include a link to
the Air Force page.
(e) FOIA web pages should be clearly accessed from the main
installation page, either by a direct link to ``FOIA'' or ``Freedom of
Information Act'' from the main page, or found under a logical heading
such as ``Library'' or ``Sites.''
Sec. 806.13 ``5 U.S.C. 552(a)(2)'' materials.
The GILS records on DefenseLINK will serve as the index for 5
U.S.C. 552(a)(2)(D) materials.
Sec. 806.14 Other materials.
HQ AFCIC/ITC makes the appropriate FOIA-processed (a)(1) materials
available for the Air Force.
Sec. 806.15 FOIA exemptions.
(a) Exemption number 1. When a requester seeks records that are
classified, or should be classified, only an initial classification
authority, or a declassification authority, can make final
determinations with respect to classification issues. The fact that a
record is marked with a security classification is not enough to
support withholding the document; make sure it is ``properly and
currently classified.'' Review the record paragraph by paragraph for
releasable information. Review declassified and unclassified parts
before release to see if they are exempt by other exemptions. Before
releasing a reviewed and declassified document, draw a single black
line through all the classification markings so they are still legible
and stamp the document unclassified. If the requested records are
``properly and currently classified,'' and the Air Force withholds
[[Page 72812]]
from release under FOIA exemption (b)(1), and the requester appeals the
withholding, include a written statement from an initial classification
authority or declassification authority certifying the data was
properly classified originally and that it remains properly classified
per Executive Order. Examples of initial classification and
declassification authority statements are included in Sec. 806.27.
Guidance on document declassification reviews is in AFI 31-401,
Managing the Information Security Program, and DoD 5200.1-R,
Information Security Program, January 1997.
(b) Exemption number 3. HQ AFCIC/ITC will provide the current FOIA-
processed (b)(3) statutes list to the MAJCOMs.
(c) Exemption number 4. The Air Force, in compliance with Executive
Order 12600, will advise submitters of contractor-submitted records
when a FOIA requester seeks the release of such records, regardless of
any initial determination of whether FOIA exemption (b)(4) applies.
(See Sec. 806.20(a) and Sec. 806.31). Due to a change to Title 48 CFR,
Federal Acquisition Regulations System, submitter notification is not
required prior to release of unit prices contained in contracts awarded
based upon solicitations issued after January 1. 1998. For
solicitations issued before January 1, 1998, conduct a normal submitter
notice. Unit prices contained in proposals provided prior to contract
award are protected from release, as are all portions of unsuccessful
proposals (before and after contract award) (10 U.S.C. 2305(g),
Prohibition on Release of Contractor Proposals).
(d) Exemption number 5. (1) Attorney-client records could include,
e.g., when a commander expresses concerns in confidence to his or her
judge advocate and asks for a legal opinion. The legal opinion and
everything the commander tells the judge advocate in confidence qualify
under this privilege. Unlike deliberative process privilege, both facts
and opinions qualify under the attorney work product or attorney-client
privilege. Attorney work product records are records an attorney
prepares, or supervises the preparation of, in contemplating or
preparing for administrative proceedings or litigation.
(2) Based on court decisions in FOIA litigation, which led to the
release of results of personnel surveys, FOIA managers and IDAs should
get advice from an Air Force attorney before withholding survey results
under FOIA exemption (b)(5).
(e) Exemption number 6. (1) AFI 37-132, Air Force Privacy Act
Program (will convert to AFI 33-332) provides guidance on collecting
and safeguarding social security numbers (SSN). It states: ``SSNs are
personal and unique to each individual. Protect them as FOUO. Do not
disclose them to anyone without an official need to know.'' Before
releasing an Air Force record to a FOIA requester, delete SSNs that
belong to anyone other than the requester. In any subsequent FOIA
release to a different requester of those same records, make sure SSNs
are deleted. When feasible, notify Air Force employees when someone
submits a FOIA request for information about them. The notification
letter should include a brief description of the records requested.
Also include a statement that only releasable records will be provided
and we will protect personal information as required by the FOIA and
Privacy laws.
(2) Personal information may not be posted at publicly accessible
DoD web sites unless to do so is clearly authorized by law and
implementing regulation and policy. Personal information should not be
posted at nonpublicly accessible web sites unless it is mission
essential and appropriate safeguards have been established. See also
AFIs 33-129 and 35-205.
(3) Withhold names and duty addresses of personnel serving overseas
or in sensitive or routinely deployable units. Routinely deployable
units normally leave their permanent home stations on a periodic or
rotating basis for peacetime operations or for scheduled training
exercises conducted outside the United States or United States
territories. Units based in the United States for a long time, such as
those in extensive training or maintenance activities, do not qualify
during that period. Units designated for deployment on contingency
plans not yet executed and units that seldom leave the United States or
United States territories (e.g., annually or semiannually) are not
routinely deployable units. However, units alerted for deployment
outside the United States or United States territories during actual
execution of a contingency plan or in support of a crisis operation
qualify. The way the Air Force deploys units makes it difficult to
determine when a unit that has part of its personnel deployed becomes
eligible for denial. The Air Force may consider a unit deployed on a
routine basis or deployed fully overseas when 30 percent of its
personnel have been either alerted or actually deployed. In this
context, alerted means that a unit has received an official written
warning of an impending operational mission outside the United States
or United States territories. Sensitive units are those involved in
special activities or classified missions, including, for example,
intelligence-gathering units that collect, handle, dispose of, or store
classified information and materials, as well as units that train or
advise foreign personnel.
(i) Each MAJCOM and FOA will establish a system and assign OPRs to
identify United States-based units in their command qualifying for the
``sensitive or routinely deployable unit'' designation, under this
exemption. Appropriate OPRs could include directors of operations,
plans and programs, and personnel.
(ii) MAJCOM FOIA managers will ensure the list of sensitive and
routinely deployable units is reviewed in January and July, and will
follow that review with a memo to the Air Force Personnel Center (HQ
AFPC/MSIMD), 550 C Street West, Suite 48, Randolph AFB, TX 78150-4750,
either validating the current list or providing a revised listing based
on the current status of deployed units at that time. This listing is
in American Standard Code for Information Interchange (ASCII) format on
a 3\1/2\'' (double-sided, high-density) diskette, which contains the
unit's eight-position personnel accounting symbol (PAS) code, with one
PAS code per line (record) (8-byte record). The MAJCOM FOIA manager
will send an electronic copy of the list of nonreleasable units to HQ
AFPC/MSIMD which is included in the personnel data system. The MAJCOM
and HQ AFPC FOIA offices will use it to determine releasable lists of
names and duty addresses. This reporting requirement is exempt from
licensing with a reports control symbol (RCS) in accordance with AFI
37-124, The Information Collections and Reports Management Program;
Controlling Internal, Public, and Interagency Air Force Information
Collections (will convert to AFI 33-324).
(f) Exemption number 7. Guidance provided in Sec. 806.15(e)(1) also
applies to SSNs in records compiled for law enforcement purposes. Do
not disclose SSNs to anyone without an official need to know.
Sec. 806.16 For official use only.
(a) Markings. Record owners may also add the following sentence to
the statement above: ``(Further distribution is prohibited without the
approval of (owner's organization, office symbol, phone).)''
(b) Dissemination and transmission. (1) When deciding whether to
send FOUO records over facsimile equipment, balance the sensitivity of
the
[[Page 72813]]
records against the risk of disclosure. When faxing, use cover sheets
to indicate FOUO attachments (i.e., AF Form 3227, Privacy Act Cover
Sheet, for Privacy Act information). Consider the location of sending
and receiving machines and ensure authorized personnel are available to
receive FOUO information as soon as it is transmitted.
(2) For Privacy Act records, refer to AFI 33-332 for specific
disclosure rules. For releases to GAO and Congress, refer to AFI 90-
401, Air Force Relations With Congress and AFI 65-401, Relations With
the General Accounting Office. See Sec. 806.9(b) for availability.
(c) Termination, disposal and unauthorized disclosures. You may
recycle FOUO material. Safeguard the FOUO documents or information to
prevent unauthorized disclosure until recycling. Recycling contracts
must include specific responsibilities and requirements on protecting
and destroying FOUO and Privacy Act materials.
Sec. 806.17 Release and processing procedures.
(a) Individuals seeking Air Force information should address
requests to an address listed in Sec. 806.26. MAJCOM FOIA office phone
numbers and mailing addresses are available on the Air Force FOIA Web
Page at http://www.foia.af.mil.
(1) A list of Air Force FOIA processing steps, from receipt of the
request through the final disposition of an administrative appeal is at
Sec. 806.29, which also includes guidance on preparing and processing
an Air Force FOIA appeal package.
(2) Air Force host tenant relationships. The Air Force host base
FOIA manager may log, process, and report FOIA requests for Air Force
tenant units. In such cases, the host base FOIA office refers all
recommended denials and ``no records'' appeals to the Air Force tenant
MAJCOM FOIA manager. This does not apply to the Air National Guard
(ANG), Air Force Reserves, or to disclosure authorities for specialized
records.
(b) Use FOIA procedures in this part to process any congressional
request citing FOIA, or covering a constituent letter citing FOIA. This
does not apply to requests from a Congressional Committee or
Subcommittee Chair on behalf of the committee or subcommittee.
Sec. 806.18 Initial determinations.
(a) Disclosure authorities make final decisions on providing
releasable records within the time limits and provide recommendations
to the IDA on proposed denials and partial denials after coordination
with the appropriate FOIA and JA office. Normally, disclosure
authorities are division chiefs or higher at Air Staff level. MAJCOMs
will designate their disclosure authority levels. The level should be
high enough so a responsible authority makes the disclosure according
to the policies outlined in this part. At out sourced units or
functions, the disclosure authority must be a government official.
Contractors who are functional OPRs for official government records are
not authorized to make the decision to disclose government records.
(b) On receipt, Air Force FOIA offices will promptly inform Air
Force PAOs of all FOIA requests that are potentially newsworthy, or
that are submitted by news media requesters. FOIA offices will
coordinate final replies for such cases with public affairs.
Sec. 806.19 Reasonably segregable portions.
Delete information exempt from release under the FOIA from copies
of otherwise releasable records. Do not release copies that would
permit the requester to ``read through the marking.'' Examples of
records with deletions of exempted data are in Sec. 806.30.
Sec. 806.20 Records of non-U.S. government source.
(a) The Air Force, in compliance with Executive Order 12600, will
advise submitters of contractor-submitted records when a FOIA requester
seeks the release of such records, regardless of any initial
determination as to whether FOIA exemption (b)(4) applies. See
Sec. 806.15(c) and Sec. 806.31. Due to a change to 48 CFR, submitter
notification is not required prior to release of unit prices contained
in contracts awarded based upon solicitations issued after January 1,
1998. For solicitations issued before January 1, 1998, conduct a normal
submitter notice. Unit prices contained in proposals provided prior to
contract award are protected from release, as are all portions of
unsuccessful proposals (before and after contract award) (10 U.S.C.
2305(g)).
(b) Department of State involvement. Air Force FOIA managers will
notify their MAJCOM (or equivalent) FOIA office, in writing, via fax or
e-mail when the Department of State becomes involved in any Air Force
FOIA actions. The MAJCOM FOIA office will provide 11 CS/SCSR, via fax
or e-mail, a summary of the issues involved, and the name, phone
number, mailing address and e-mail address of: their own FOIA office
point of contact; the Air Force record OPR point of contact, the DoD
component FOIA office point of contact (if any), and the Department of
State point of contact. 11 CS/SCSR will inform SAF/IA of any State
Department involvement in Air Force FOIA actions. (See Sec. 806.7(b).)
An example of a memo advising 11 CS/SCSR of State Department
involvement in an Air Force FOIA action is provided in Sec. 806.27.
Sec. 806.21 Appeals.
(a) FOIA requesters seeking Air Force records must address appeals
to the Office of the Secretary of the Air Force, through the FOIA
office of the IDA that denied the request. Requesters should attach a
copy of the denial letter to their appeal and give reasons for
appealing. Air Force IDAs may reconsider any prior denials and may
grant all or part of a requester's appeal. When any appellate action
sought by a FOIA requester is denied by an IDA, the IDA will include a
statement that the issues raised in the appeal were considered and
rejected (in full or in part) in any file sent to the Secretary of the
Air Force in the course of a FOIA appeal action. Send all appeals to
IDA decisions at the wing level through the MAJCOM FOIA office for
sending to the Secretary of the Air Force's designated appellate
authority, SAF/GCA (and Air Force Legal Services Agency (AFLSA/JACL)).
(See Secs. 806.4(g), 806.5(b), and Sec. 806.5(k).) Additional steps are
required prior to sending an appeal file.
(1) MAJCOM FOIA offices and record OPRs are responsible for
ensuring adequate preparation of the FOIA appeal package for
reconsideration by the IDA. FOIA offices and records OPRs will
coordinate with Air Force attorneys, who will provide written opinions
on substantive issues raised in the appeal.
(2) If a requester appeals an Air Force ``no records''
determination, Air Force elements must search again or verify the
adequacy of their first search. The package must include documents that
show the Air Force element systematically tried to find responsive
records. Tell, for example, what areas or offices were searched and how
the search was conducted--manually, by computer, by telephone, and so
forth. In the event a requester sues the Air Force to contest a
determination that no responsive records exist, formal affidavits are
required to support the adequacy of any searches conducted.
(3) FOIA requesters seeking to appeal denials involving Office of
Personnel Management's controlled civilian personnel records must
appeal to the Office of the General Counsel, Office of Personnel
Management, 1900 E Street NW, Washington, DC 20415.
[[Page 72814]]
(4) If a requester appeals a denial of a fee waiver, fee estimate,
or fee reduction request, FOIA offices and record OPRs must account for
actual and estimated costs of processing a request, and will include
copies of the DD Forms 2086 or 2086-1 in the appeal package.
(5) When any appellate action sought by a FOIA requester is denied
by an IDA, prepare the FOIA appeal package as specified in Sec. 806.29,
and then the MAJCOM FOIA office forwards the appeal file to the
Secretary of the Air Force's designated appellate authority, SAF/GCA
(through AFLSA/JACL), for a final administrative determination.
(b) Air Force activities will process appeal actions expeditiously
to ensure they reach the Office of the Secretary of the Air Force in a
timely manner.
Sec. 806.22 Time limits.
Any FOIA appeals received after the 60-day time limit are not
processed, unless the requester provides adequate justification for
failing to comply with the time limit. If a late appeal is received,
and there is no adequate justification for failing to comply with the
time limit, the FOIA office will advise the FOIA requester their appeal
has been closed. An example of a closure letter is included in
Sec. 806.27.
Sec. 806.23 Delay in responding to an appeal.
For an appeal in process and not yet forwarded to AFLSA/JACL, the
MAJCOM FOIA office is responsible for advising the requester of the
status of the appeal. For an appeal in process at AFLSA/JACL, that
office will advise the requester regarding status of the appeal.
Sec. 806.24 Fee restrictions.
For FOIA purposes, Air Force activities will consider the cost of
collecting a fee to be $15 and will not assess requesters' fees for any
amount less than $15.
Sec. 806.25 Annual report.
(a) MAJCOM FOIA managers and AFLSA/JACL send a consolidated report
for the fiscal year on DD Form 2564, Annual Report Freedom of
Information Act, to HQ AFCIC/ITC by October 30 via regular mail, e-
mail, or facsimile. AFLSA/JACL will prepare the appeals and litigation
costs sections of the report. HQ AFCIC/ITC will make the Air Force
report available on the WWW.
(b) Total requests processed. ``Processed'' includes responses that
give an estimated cost for providing the records, even if the requester
has not paid.
(c) Denied in full. Do not report ``no record'' responses as
denials.
(d) Other reasons.
(1) Referrals. Also include referrals within Air Force in this
category.
(2) Not an agency record. The ``not an agency record'' other reason
category only applies to requests for: objects or articles such as
structures, furniture, vehicles and equipment, whatever their
historical value, or value as evidence; anything that is not a tangible
or documentary record such as an individual's memory or oral
communication; and 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. This category does
not include ``no record'' responses.
(e) Other. The ``Other (Specify)'' block must contain the reason
with the total number for the reason. For example: ``FOIA request had
no return address-4.''
(f) 5 U.S.C. 552(b)(3) statutes invoked on initial determinations.
A corresponding statute is required for each instance entered in the
Exemption 3 block. List the statute by number, not title. For any
statute on the report that is not on DoD's list of commonly used 5
U.S.C. 552(b)(3) statutes, attach a copy of the pertinent page of the
statute that states information must be withheld from public
disclosure. HQ AFCIC/ITC makes the DoD list available to FOIA managers
electronically. Statutes on the DoD list with an asterisk indicate they
are valid 5 U.S.C. 552(b)(3) statutes from litigation. Do not enter any
of the following as 5 U.S.C. 552(b)(3) statutes:
5 U.S.C. 552
5 U.S.C. 552a
28 U.S.C. 1498
17 U.S.C. 101
18 U.S.C. 1905.
(g) Appeal determinations. Enter the total number of FOIA appeals
received and total number of FOIA appeals completed during the fiscal
year.
(h) Average. Air Force will use the ``median age'' and will not
collect or report averages.
(i) Number of initial requests received during the fiscal year.
This number includes open and closed cases.
(j) Total number of initial requests. ``Processed'' includes
responses which give an estimated cost for providing the records, even
if the requester has not paid.
(k) Total program cost. This figure includes all costs from the DD
Forms 2086 and 2086-1, as well as personnel costs for individuals
primarily involved in administering the FOIA program. To figure
personnel costs, multiply the annual salary of each person by the
percentage of time spent on FOIA.
(l) MAJCOMs and bases do not include the 25 percent. HQ AFCIC/ITC
will add to the final Air Force report to DoD.
(m) Authentication. MAJCOM SCs will sign as approving official (or
two-letter functional equivalent for FOIA offices in other functional
areas).
Sec. 806.26 Addressing FOIA requests.
(a) FOIA requests concerning Air National Guard Inspector General
records should be sent to 11 CS/SCSR (FOIA), 1000 Air Force Pentagon,
Washington, DC 20330-1000.
(b) Addressing Air Force Freedom of Information Act requests. The
Department of the Air Force, a component of the DoD, includes the
Office of the Secretary of the Air Force, the Chief of Staff of the Air
Force (who is supported by Headquarters Air Force or ``Air Staff''
elements), the MAJCOMs, the FOAs, and DRUs. This section lists the FOIA
office addresses. A selected subordinate unit is also included in this
section. Realignment of Air Force elements is frequent; addresses
listed below are subject to change.
(c) The Department of the Air Force does not have a central
repository for Air Force records. FOIA requests are addressed to the
Air Force element that has custody of the record desired. In answering
inquiries regarding FOIA requests, Air Force personnel will assist
requesters in determining the correct Air Force element to address
their requests. If there is uncertainty as to the ownership of the
record desired, refer the requester to the Air Force element that is
most likely to have the record. Two organizations that include Air
Force elements, and hold some Air Force-related records, are also
included in the addresses listed below.
(d) MAJCOMs:
(1) Air Combat Command (ACC): HQ ACC/SCTC, 230 East Flight Line Road,
Langley AFB VA 23665-2781.
(2) Air Education and Training Command (AETC): HQ AETC/SCTS, 61 Main
Circle Suite 2, Randolph AFB TX 78150-4545.
(3) Air Force Materiel Command (AFMC): HQ AFMC/SCDP, 4225 Logistics
Avenue, Suite 6, Wright-Patterson AFB, OH 45433-5745.
(4) Air Force Reserve Command (AFRC): HQ AFRC/SCSM, 155 2nd Street,
Robins AFB, GA 31098-1635.
(5) Air Force Special Operations Command (AFSOC): HQ AFSOC/SCMN, 100
Bartley Street, Suite 201, Hurlburt Field, FL 32544-5273.
(6) Air Force Space Command (AFSPC): HQ AFSPC/SCMA, 150 Vandenberg
[[Page 72815]]
Street, Suite 1105, Peterson AFB, CO 80914-4400.
(7) Air Mobility Command (AMC): HQ AMC/SCYNR, 203 West Losey Street,
Room 3180, Scott AFB, IL 62225-5223.
(8) Pacific Air Forces (PACAF): HQ PACAF/SCT, 25 E Street, Suite C220,
Hickam AFB, HI 96853-5409.
(9) United States Air Forces in Europe (USAFE): HQ USAFE/SCMI, Unit
3050, Box 125, APO AE 09094-0125.
(e) FOAs:
(1) Air Force Audit Agency (AFAA): HQ AFAA/IMP, 1126 Air Force
Pentagon, Washington, DC 20330-1126.
(2) Air Force Base Conversion Agency (AFBCA): AFBCA/ESA, 1700 North
Moore Street, Suite 2300, Arlington, VA 22209-2802.
(3) Air Force Center for Environmental Excellence (AFCEE): HQ
AFCEE/MSI, 3207 North Road, Brooks AFB, TX 78235-5363.
(4) Air Force Civil Engineering Support Agency (AFCESA): HQ AFCESA/
IMD, 139 Barnes Drive Suite 1, Tyndall AFB, FL 32403-5319.
(5) Air Force Historical Research Agency (AFHRA): AFHRA/RSA, 600
Chennault Circle, Maxwell AFB, AL 36112-6424.
(6) Air Force Inspection Agency (AFIA): (Shared FOIA office/
function, AFIA and Air Force Safety Agency) AFSA/JAR, 9700 Avenue G SE,
Suite 236B, Kirtland AFB, NM 87117-5670.
(7) Air Force Medical Support Agency (AFMSA): AFMSA/CCEA, 2510
Kennedy Circle, Suite 208, Brooks AFB, TX 78235-5121.
(8) Air Force News Agency (AFNEWS): HQ AFNEWS/SCB, 203 Norton
Street, Kelly AFB, TX 78241-6105.
(9) Air Force Office of Special Investigations (AFOSI): HQ AFOSI/
SCR, P. O. Box 2218, Waldorf, MD 20604-2218.
(10) Air Force Personnel Center (AFPC): HQ AFPC/MSIMD, 550 C Street
West, Suite 48, Randolph AFB, TX 78150-4750.
(11) Air Force Center for Quality and Innovation (AFCQMI): AFCQMI/
CSP, 550 E Street East, Randolph AFB, TX 78150-4451.
(12) Air Force Safety Agency (AFSA): (Shared FOIA office/function,
AFIA, and AFSA) AFSA/JARF, 9700 Avenue G SE, Suite 236B, Kirtland AFB,
NM 87117-5670.
(13) Air Force Security Forces Center (AFSFC): AFSFC/CCQ 1720
Patrick Street, Lackland AFB, TX 78236-5226.
(14) Air Force Services Agency (AFSVA): AFSVA/SVSR, 9504 1H-35
North, Suite 250, San Antonio, TX 78233-6635.
(15) Air Force Technical Applications Center (AFTAC): AFTAC/LSCS,
1030 South Highway, Suite A1A, Patrick AFB, FL 32925-6001.
(16) Air Intelligence Agency (AIA): AIA/DOOI, 102 Hall Boulevard,
Suite 229, San Antonio, TX 78243-7029.
(17) Air Reserve Personnel Center (ARPC): ARPC/SCS, 6760 East
Irvington Place, #6600, Denver, CO 80280-6600.
(18) Air Force Weather Agency (AFWA): HQ AFWA/SCI, 106 Peacekeeper
Drive Suite 2N3, Offutt AFB, NE 68113-4039.
(19) Air Force History Support Office (AFHSO): AFHSO, 500 Duncan
Avenue Box 94, Bolling AFB, DC 20332-1111.
(f) DRUs:
(1) Air Force Operational Test and Evaluation Center (AFOTEC):
AFOTEC/SCM, 8500 Gibson Boulevard SE, Kirtland AFB, NM 87117-5558.
(2) 11th Wing: 11 CS/SCSR (FOIA), 1000 Air Force Pentagon,
Washington, DC 20330-1000 (if a person is unsure where to send a FOIA
request for Air Force records, or is seeking records from the Office of
the Secretary of the Air Force, or other Headquarters Air Force
records, use this address).
(3) United States Air Force Academy (USAFA): 10 CS/SCBD, 2304 Cadet
Drive, Suite 232, USAFA, CO 80840-5060.
(g) Selected subordinate units: Air Force Communications Agency
(AFCA): HQ AFCA/CCQI, 203 West Losey Street, Room 1022, Scott AFB, IL
62225-5203.
(h) Organizations which include air force elements:
(1) Army and Air Force Exchange Service (AAFES): HQ AAFES/GC-E,
P.O. Box 660202, Dallas, TX 75266-0202.
(2) National Guard Bureau (NGB)/Air National Guard: NGB-AD, 2500
Army Pentagon, Washington, DC 20310-2500. (FOIA requests concerning Air
National Guard IG records should be sent to 11 CS/SCSR (FOIA), 1000 Air
Force Pentagon, Washington, DC 20330-1000.)
Sec. 806.27 Samples of Air Force FOIA processing documents.
(a) This section includes suggested language in paragraph format
that tracks Air Force and DoD FOIA guidance. The rest of the body of
letters and memorandums should comply with Air Force administrative
guidance. Each MAJCOM may elect to prepare their own verbiage to meet
their specific needs, so long as FOIA processing actions are consistent
with guidance in DoD 5400.7-R and this part. In this section, language
in parentheses is for explanatory purposes only. Do not include any of
the parenthetical language of this section in your FOIA correspondence.
When optional language must be selected, the optional language will be
presented within parentheses. Use only the portions that apply to the
specific request or response.
(b) Initial receipt of Freedom of Information Act request.
We received your Freedom of Information Act (FOIA) request dated
## Month year, for (summarize the request) on ## Month year (date
received). We will provide you our release determination by (enter
date that is 20 workdays from date you received the request). (Based
on our initial review, we believe we cannot process your request
within 20 workdays.) (If ``cannot'' is used, add appropriate
explanation; examples follow.) Please contact (name and commercial
telephone number) if you have any questions and refer to case number
#######.
(c) Interim response:
Your request will be delayed because: all or part of the
responsive records are not located at this installation; (and/or)
Processing this FOIA request will require us to collect and review a
substantial number of records (and/or) Other Air Force activities or
other agencies (if applicable) to include the submitter of the
information, need to be involved in deciding whether or not to
release the responsive records. We expect to reply to your request
not later than (give a date that is not more than 30 workdays from
the initial receipt of the request); (or) If processing the FOIA
request will take more than the allowed time limits to respond). We
find we are unable to meet the time limits imposed by the FOIA in
this instance because (tell the requester the reason for the delay)
(example: the records are classified and must be reviewed for
possible declassification by other activities or agencies). We
anticipate completing your request by (date).
(When charging fees is appropriate.) The FOIA provides for the
collection of fees based on the costs of processing a FOIA request
and your fee category. Based on the information in your request, we
have determined your fee category is (commercial/educational or
noncommercial scientific institution or news media/all others). As a
result, you (if commercial category) are required to pay all
document search, review and duplication costs over $15.00. (or) As a
result, you (if educational or noncommercial scientific institution
or news media) will be provided the first 100 pages free of charge;
you are required to pay any duplication costs over and above those
amounts. (or) As a result, you will be provided the first 2 hours of
search time and the first 100 pages free of charge; you are required
to pay any search and duplication costs over and above those
amounts.
(d) Request for a more specific description:
Your request does not sufficiently describe the desired records.
The FOIA applies to existing Air Force records; without more
specific information from you, we cannot
[[Page 72816]]
identify what documents might be responsive to your request. Please
give us whatever additional details you may have on the Air Force
records you want. Can you tell us when the records were created, and
what Air Force element may have created the records? If this request
involves an Air Force contract, do you know the contract number and
dates it covered? Our address is (include name and complete mailing
address), our fax number is (give fax number), our e-mail address is
(optional--give complete e-mail address). Based on the original
request you sent us, we are unable to respond.
(e) Single letter acknowledging receipt of request and giving final
response. (If you can complete a FOIA request within the statutory 20-
workday processing period, Air Force elements may elect to send a
single letter to the requester, along with responsive records which are
released to the requester in full).
We received your Freedom of Information Act (FOIA) request dated
## Month year, for (summarize the request) on ## Month year (date
received). A copy (or) Copies of (describe the record(s) being
released) (is/are) releasable and (is/are) attached.
(f) Collection of fees:
The FOIA provides for the collection of fees based on the costs
of processing a FOIA request and your fee category. We have placed
you in the (enter the fee category) fee category. In your case, we
have assessed a charge of $____ for processing your request. The fee
was calculated in the following manner: (Give a detailed cost
breakdown: for example, 15 pages of reproduction at $0.15 per page;
5 minutes of computer search time at $43.50 per minute, 2 hours of
professional level search at $25 per hour.) Please make your check
payable to (appropriate payee) and send it to (give your complete
mailing address) by (date 30 days after the letter is signed). (or)
The FOIA provides for the collection of fees based on the costs of
processing a FOIA request and your fee category. We have placed you
in the (enter the fee category); however, in this case, we have
waived collecting fees.
(g) Multitrack processing letters to FOIA requesters. (When using
the multitrack FOIA processing system, determine which of the following
paragraphs to include in your letters to the requester. To the extent
it may apply, include language from paragraph 2 of the sample. If a
requester asks for expedited processing, answer carefully if you decide
not to provide expedited processing, because requesters may appeal
denial of their request for expedited processing. Advise requesters
placed into the complex track in writing how they can simplify their
request to qualify for the simple track.)
We received your Freedom of Information Act (FOIA) request dated
## Month year, for (summarize the request) on ## Month year (date
received). Because our organization has a significant number of
pending FOIA requests, which prevents us from making a response
determination within 20 workdays, we have instituted multitrack
processing of requests. Based on the information you provided, we
have placed your request in the (simple or complex) track. We have
assigned number ##### to identify your request; should you need to
contact us about your request, please write or call (name and
telephone) and use this number to assist us in responding more
promptly.
Based on our current backlog, we expect to respond to your
request not later than (give an estimated date). Our policy is to
process requests within their respective tracks in the order in
which we receive them. We do process each FOIA request as quickly as
we can.
(h) If the request is placed in the complex track:
In your case, processing your request is complex because (give
basic reasons this is a complex case: request was vague or
complicated; the records sought are voluminous; multiple
organizations will have to work on this request; records are
classified; responsive records came from another command/another
service/a nongovernment source; responsive records were part of the
Air Force's decision-making process, and the prerelease review will
require policy determinations from different Air Force elements;
records describe law enforcement activities; records involve foreign
policy issues; due to the nature of your request and/or the nature
of our computer system, responding to your request or providing a
response in the electronic format you requested will be technically
complex, etc.). Simplifying your request might permit quicker
processing in the following ways: (describe ways the search could be
narrowed to fewer records, or ways policy issues could be avoided,
etc.) Can you tell us when the records were created, and what Air
Force element may have created the records? If this request involves
an Air Force contract, do you know the contract number? Please give
us whatever additional details you may have on the Air Force records
you are seeking, so we can attempt to streamline the processing of
your request. Our address is (give complete mailing address), our
fax number is (give fax number), our e-mail address is (optional--
give complete e-mail address).
(i) If the requester asks that you expedite their request:
Because individuals receiving expedited processing may receive a
response before other earlier requesters, there are administrative
requirements you must meet before we can expedite a request. In your
request, you asked that we expedite processing. In order for us to
expedite a request, the requester must provide a statement
certifying the reasons supporting their request are true and correct
to the best of their knowledge.
In the second category, ``urgently needed'' means the
information itself has a particular value that it will lose if it is
not disseminated quickly. Ordinarily this means the information
concerns a breaking news story of general public interest. Historic
information, or information sought for litigation or commercial
activities usually would not qualify for expedited processing in the
second category. Also, the fact that a news organization has an
internal broadcast or publication deadline, so long as the deadline
was unrelated to the nature of the information itself (for example,
the information was not a breaking news story of general public
interest) would not make the information ``urgently needed.''
In this case, we have determined your FOIA request (will/will
not) receive expedited processing. We came to this conclusion
because you (did/did not) demonstrate you need the information
because failure to obtain the records on an expedited basis (could
or could not) reasonably expect to pose an imminent threat to life
or physical safety of an individual (or) the information (is or is
not) urgently needed in order to inform the public about actual or
alleged Federal Government activity (or) failure to obtain the
records on an expedited basis (could or could not) reasonably expect
to lead to an imminent loss of substantial due process rights, (or)
release (would or would not) serve a humanitarian need by promoting
the welfare and interests of mankind (and/or) your request for
expedited processing did not meet the statutory requirements of the
FOIA; you did not provide enough information to make a determination
of compelling need for the information you requested (and/or) you
did not properly certify your request.
(j) If you deny a request for expedited processing:
If you consider our decision not to expedite your request
incorrect, you may appeal our decision. Include in your appeal
letter the reasons for reconsidering your request for expedited
processing, and attach a copy of this letter. Address your appeal to
Secretary of the Air Force through (address of MAJCOM FOIA office).
In the meantime, we will continue to process your request in the
(simple/complex) processing track.
(k) Certification, computer systems manager (electronic records or
format requested).
(When answering a request for electronic records, based on the
configuration of your hardware and/or software, certain factors may
make a particular request complex. Have your computer system manager
advise you whether or not they can create the new record/format on a
``business as usual'' basis. If producing the record/format would
entail a significant expenditure of resources in time and manpower
that would cause significant interference with the operation of the
information system and adversely affect mission accomplishment, you
do not need to process the request. The FOIA office needs to get a
certification from the computer systems manager to document this
determination to support their response. Possible language for this
certification is provided below.)
I, (rank/grade and name) am the computer systems manager for
(organization with electronic records responsive to FOIA request).
In consultation with (FOIA office), I have considered the FOIA
request of
[[Page 72817]]
(requester's name), our ##### (FOIA identifier), which asked for
(describe electronic record or format). We (do/do not) have
electronic records that are responsive to this request (or) data
that we (can/cannot) configure into the requested format. (If there
are electronic records) The existing electronic records (do/do not)
contain nonreleasable data that we (can/cannot) remove from the
electronic record. Because of the way our (computer system/database/
software) (use all that apply, specify hardware and/or software
nomenclature if possible; for example, IBM ###, Microsoft Excel) is
configured, creating the electronic record (or) modifying the
existing record/format would entail a significant expenditure of
resources in time and manpower that would cause significant
interference with the operation of the information system and
adversely affect mission accomplishment (describe how responding
would interfere and time/manpower resources required, give estimated
reprogramming time, if possible). I have applied the DoD ``standard
of reasonableness'' in considering this request. I understand that
when the capability exists to respond to a FOIA request that would
require only a ``business as usual'' approach to electronically
extract the data and compile an electronic record or reformat data
to satisfy a FOIA request, then creation of the electronic record or
reformatting the data would be appropriate. In this case, a
significant expenditure of resources and manpower would be required
to compile the electronic record (or) reformat existing data. This
activity would cause a significant interference with the operation
of our automated information system. I certify creation of the
electronic record (or) reformatting existing data in order to
respond to this request would not be reasonable, under the
circumstances.
Signature
(Date Signed) (Signature Block)
(Note: Some electronic data requests may include a request for
software. You may have to release government-developed software that
is not otherwise exempt, if requested under the FOIA. Exemptions 1--
classified software, 2--testing, evaluation, or similar software,
3--exempt by statute, 5--deliberative process/privileged software,
and 7--law enforcement operations software may apply, based on the
nature of the requested software. If the software is commercial off-
the-shelf software, as opposed to software developed by the
government, the software may qualify to be withheld from release
under FOIA exemption 4.
(l) ``No (paper or electronic) records'' or ``requested format not
available'' letters.
This is in response to your Freedom of Information Act (FOIA)
request dated ## Month year, for (summarize the request) on ## Month
year (date received), our number #####.
A thorough search by (identify the unit(s) that tried to locate
responsive records) did not locate any records responsive to your
request. (If the requester asked questions, and there are no
responsive records that would provide the answers to those
questions): The FOIA applies to existing Air Force records; the Air
Force need not create a record in order to respond to a request.
(or) A thorough assessment by the OPR and the computer systems
manager has determined we cannot provide the (electronic record
data) in the format you requested. (If this can be done on a
``business as usual basis):'' (Paper copies American Standard Code
for Information Interchange (ASCII) files) of the data you requested
are attached.
If you interpret this ``o records'' response as an adverse
action, you may appeal it in writing to the Secretary of the Air
Force. Your appeal should be postmarked no later than 60 calendar
days from the date of this letter. Address your letter as follows:
Secretary of the Air Force, Thru: (MAJCOM FOIA Office), (mailing
address).
The FOIA provides for the collection of fees based on the costs
of processing a FOIA request and your fee category. We have placed
you in the (enter category) fee category; however, in this case, we
have waived fees. (If paper copies or ASCII files are provided: )
The FOIA provides for the collection of fees based on the costs of
processing a FOIA request and your fee category. In your case, as a
requester in the fee category of (add appropriate category), we have
assessed a charge of $____ for processing your request. The fee was
calculated in the following manner: (Give a detailed cost breakdown:
for example, 15 pages of reproduction at $0.15 per page; 5 minutes
of computer search time at $43.50 per minute, 2 hours of
professional level search at $25 per hour.) Please make your check
payable to (appropriate payee) and send it to (give your complete
mailing address) by (date 30 days after the letter is signed).
(m) Referral or coordination letters. (These letters are to tell
the requester all or part of the request was referred to another Air
Force organization, to refer or coordinate the request to another
federal government organization, and to advise a nongovernment
submitter a FOIA request was received for information they
submitted.)G56
(1) Letter to requester.
(If all or part of a request has been referred, write to the
requester:) Your Freedom of Information Act (FOIA) request dated ##
Month year, for (summarize the request) received on ## Month year
(date received), our number #####, was referred (or) must be
coordinated with (give mailing address of the FOIA office to which
you are referring all or part of the request, the identity of the
federal government organization you are either coordinating with or
are referring all or part of the request to, or that you must
coordinate with the nongovernment submitter of responsive
information). (On referrals:) That office will process (all/part) of
your request (describe which part is being referred if the entire
request is not being referred) and they will respond directly to
you. (On coordinations:) That organization has a significant
interest in the records (or) created the records that may answer to
your request. (Before notifying a requester of a referral to another
DoD component or federal agency, consult with them to determine if
their association with the material is exempt. If so, protect the
association and any exempt information without revealing the
identity of the protected activity.) (When a nongovernment submitter
is involved:) The nongovernment submitter of information that may
answer your request needs time to respond to the possible release of
information under the FOIA.
Because we must refer (or) coordinate your request outside our
organization, your request will be delayed. We will determine
whether any records are available; as soon as is practicable, a
decision will be made whether to release or to withhold from
disclosure any responsive records under the FOIA, 5 U.S.C. 552. Your
request will be processed as expeditiously as circumstances permit.
(2) Letter to another government agency.
(If all or part of a request was referred or requires
coordination, write to the government entity): On ## Month year
(date received), our organization received a Freedom of Information
Act (FOIA) request from (identity of requester), Attachment 1, dated
## Month year, for (summarize the request). Based on our assessment
of that request, our number #####, we need to (refer/coordinate)
(all/part) of that request to you (describe which part is being
referred or coordinated, if it was not the entire request). (Name
and phone number of person who agreed to the referral or
coordination) accepted this referral (or) coordination action was on
(date). We notified the requester of this action (see Sec. 806.31).
We (do/do not) hold records responsive to this request. (If do
hold is used:) Copies of responsive records located in our files are
included at Attachment 3 to assist you in making your assessment on
the releasability of (our/your) related records. If you need to
contact us, our phone number and address is (give name, phone and
complete mailing address), our fax number is (give fax number), our
e-mail address is (give complete e-mail address).
(3) Letter to submitter of contract-related information.
(If contractor-submitted information is involved, write to the
submitter:) On ## Month year (date received), our organization
received a Freedom of Information Act (FOIA) request from (identity
of requester), our number #####, dated ## Month year, for (summarize
the request). Information you submitted to the Air Force was
identified as responsive to this request, see copies attached.
To determine the releasability of the information contained in
these documents and to give you the maximum protection under the
law, please review the attached documents and give us the
information outlined in Sec. 806.31. If you feel the information is
privileged or confidential, consists of proprietary commercial or
financial information, and otherwise meets the statutory
requirements for withholding
[[Page 72818(1)]]
the information from release under FOIA exemption 4, 5 U.S.C.
552(b)(4), respond to us in writing not later than ## working days
from the date of this letter (usually 30 calendar days). If you
object to release of this information under the FOIA, identify the
items, lines, columns or portions you believe we should withhold
from release.
You will also need to provide a written explanation of how
release would adversely impact or cause harm to your competitive
position, your commercial standing, or other legally protected
interests. An assertion that ``we should deny because all of the
information was submitted in confidence'' or ``deny because all of
the information was marked as proprietary in nature'' would not
justify withholding of the requested information under the FOIA. If
you need to contact us, call or write (give name), phone number is
(give commercial number), our address is (give complete mailing
address), our fax number is (give fax number), our e-mail address is
(give complete e-mail address).
(4) Letter requesting State Department coordination. (If the State
Department is involved in coordinating on a request, fax or e-mail 11
CS/SCSR so they can inform SAF/IA if appropriate).
On ## Month year (date received), our organization received a
Freedom of Information Act (FOIA) request from (identity of
requester), our number #####, dated ## Month year, for (summarize
the request). Because of the nature of this request, we were advised
by (note the individual and organization who told you to coordinate
the request with the State Department; this may be a MAJCOM or
Combatant Command--give telephone and facsimile numbers if known) we
need to coordinate this request with the Department of State. In
accordance with DoD 5400.7-R, Air Force Supplement, we are informing
you of their involvement in this FOIA request. (Provide any
specifics available.) Air Force records are involved in this action.
If you need to contact us, our phone number is (give commercial and
DSN numbers), our address is (give complete mailing address), our
fax number is (give fax number), our e-mail address is (give
complete e-mail address).
(n) Certification of initial classification or declassification
authority (When denying a FOIA request, in whole or in part, because
the information requested is classified, the initial classification
authority, his or her successor, or a declassification authority, needs
to determine if the records are ``properly and currently classified,''
and therefore must be withheld from release under FOIA exemption
(b)(1); also, you need to determine that you cannot release any
reasonably segregable additional portions. Language that certifies such
a determination was made on a FOIA request involving classified records
follows).
(1) Sample certification format--all information remains
classified.
I, (rank/grade and name) am the initial classification authority
(or) the successor to the original initial classification authority
(or) the declassification authority for (give an unclassified
description of the records concerned). In consultation with (FOIA
office), I have assessed the FOIA request of (requester's name), our
##### (FOIA identifier), for records that were properly classified
at the time of their creation and currently remain properly
classified in accordance with Executive Order (E.O.) 12958, National
Security Information, (or) contain information that we have
determined is classified in accordance with E.O. 12958 Section
1.5(__) (or) in accordance with E.O. 12958 Section 1.5(__) and is
also exempt from declassification in accordance with Section 1.6(__)
of the E. O. (or if the record is more than 25 years old) contain
information that we have determined is exempt from declassification
in accordance with E.O. 12958 Section 3.4(b)(__). Unauthorized
release could cause (for TOP SECRET, use exceptionally grave; for
SECRET use serious; for CONFIDENTIAL do not add language; should
read cause damage) damage to national security. There are no
reasonably segregable portions that we can release. Consequently
release of this information is denied pursuant to 5 U.S.C.
552(b)(1).
Signature
(Date Signed) (Signature Block)
(2) Sample certification format--portions remain classified.
I, (rank/grade and name) am the initial classification authority
(or) the successor to the original initial classification authority
(or) the declassification authority for (give an unclassified
description of the records concerned.) In consultation with (FOIA
office), I have assessed the FOIA request of (requester's name), our
##### (FOIA identifier), that asked for records, (or) portions of
which were properly classified at the time of their creation.
Portions of the records currently remain properly classified in
accordance with E.O. 12958. The bracketed information is currently
and properly classified in accordance with Section 1.5 (add
appropriate subparagraph), E.O. 12958, and is also exempt from
declassification in accordance with Section 1.6(__) of the Executive
Order (or if the record is more than 25 years old) contain
information that we have determined is exempt from declassification
in accordance with E.O. 12958 Section 3.4(b)(__). Unauthorized
release could cause (for TOP SECRET use exceptionally grave; for
SECRET use serious; for CONFIDENTIAL do not add language; should
read cause damage) damage to national security. There are no other
reasonably segregable portions that we can release. Consequently
this information is denied pursuant to 5 U.S.C. 552(b)(1).
Signature
(Date Signed) (Signature Block)
(o) Letter to a requester who has withdrawn their request or
appeal. (If a FOIA requester has withdrawn a FOIA request or appeal,
sending a final letter to the requester to close the file may be wise.
Suggested language to the requester follows):
We received your Freedom of Information Act (FOIA) request (or)
appeal dated ## Month year, on ## Month year (date received). After
sending us your request (or) appeal, you indicated by (facsimile,
letter) that you wished to withdraw your request (or) appeal. We
have, therefore, closed your file without further action.
(p) Letter to a requester who has appealed after the 60-day
deadline. (We will not process FOIA appeals received after the 60-day
time limit, unless the requester provides adequate justification for
failing to comply. If you receive a late appeal, and it gives
inadequate justification for failing to comply, the FOIA office will
advise the requester their appeal was closed; suggested language for a
letter to an untimely requester follows.)
We received your Freedom of Information Act (FOIA) appeal dated
## Month year, on ## Month year (date received). You did not appeal
within 60 days of the postmarked date of our denial letter as
outlined in our agency regulation. Therefore, we are closing our
file.
(q) Letter to a requester who has appealed. (There are occasions
when, on reconsideration, an IDA grants all or part of an appeal. When
sending their appeal to higher headquarters, notify the requester.
Suggested language to a requester who has appealed follows):
We received your Freedom of Information Act (FOIA) appeal, our
number #####, dated ## Month year, on ## Month year (date received).
We considered the issues raised in your appeal carefully. We have
decided to grant (or) partially grant your appeal.
(If you grant all or part of the appeal): Upon reconsideration,
we are releasing the requested records (or) granting your request.
(If the appeal is only partially granted, describe what portions
remain in dispute). (If applicable): We are releasing and attaching
all or portions of the responsive records. (If applicable): We will
continue processing your appeal for the remaining withheld (records/
information).
Sec. 806.28. Records with special disclosure procedures.
Certain records have special administrative procedures to follow
before disclosure. Selected publications that contain such guidance are
listed below.
(a) AFI 16-701, Special Access Programs.
(b) AFI 31-206, Security Police Investigations.
(c) AFI 31-501, Personnel Security Program Management.
(d) AFI 31-601, Industrial Security Program Management.
(e) AFI 36-2603, Air Force Board for Correction of Military Records.
[[Page 72819]]
(f) AFI 36-2706, Military Equal Opportunity and Treatment Program.
(g) AFI 36-2906, Personal Financial Responsibility.
(h) AFI 36-2907, Unfavorable Information File (UIF) Program.
(i) AFI 40-301, Family Advocacy.
(j) AFI 41-210, Patient Administration Functions.
(k) AFI 44-109, Mental Health and Military Law.
(l) AFI 51-201, Administration of Military Justice.
(m) AFI 51-301, Civil Litigation.
(n) AFI 51-303, Intellectual Property-Patents, Patent Related Matters,
Trademarks, and Copyrights.
(o) AFI 51-501, Tort Claims.
(p) AFI 51-503, Aircraft, Missile, Nuclear and Space Accident
Investigations.
(q) AFI 51-504, Legal Assistance, Notary and Preventive Law Programs.
(r) AFI 51-1102, Cooperation with the Office of the Special Counsel.
(s) AFI 61-204, Disseminating Scientific and Technical Information.
(t) AFI 61-303, Licensing Inventions Made Under Cooperative Research
and Development Agreements.
(u) AFI 71-101, Volume 1, Criminal Investigations, and Volume 2,
Protective Service Matters.
(v) AFI 84-101, Historical Products, Services, and Requirements.
(w) AFI 90-301, Inspector General Complaints.
(x) AFI 91-204, Safety Investigations and Reports.
Sec. 806.29. Administrative processing of Air Force FOIA requests.
(a) This section is a checklist format of processing steps and
explanations of Air Force and DoD guidance. Each MAJCOM may elect to
prepare its own checklists to tailor FOIA processing actions within its
own organizations to meet their specific needs, so long as it remains
consistent with guidance contained in DoD 5400.7-R, DoD Freedom of
Information Act Program, and this part.
(b) Procedures: FOIA requests.
(1) Note the date the request was received, give the request a
unique identifier/number, and log the request.
(2) Assess the request to determine initial processing
requirements:
(3) Determine what Air Force elements may hold responsive records.
(i) Are responsive records kept at the same or different
installations?
(ii) Is referral of (all/part) of the request required?
(4) Determine appropriate processing track (simple/complex/
expedited). (Air Force FOIA offices without backlogs do not multitrack
FOIA requests.)
Note: Requesters have a right to appeal an adverse tracking
decision (for example, when it is determined their request will not
be expedited). Also, if their request qualifies for the complex
track, tell requesters so they may limit the scope of their request
in order to qualify for the simple track. FOIA managers must assess
a request before placing it into a specific processing track, and
must support their actions should the requester appeal. If a request
is determined to be complex, or is not expedited when the requester
sought expedited processing, you must advise the requester of the
adverse tracking decision in writing. See Sec. 806.27 for sample
language for this kind of letter to a requester.
(i) Simple. Defines a request that can be processed quickly, with
limited impact on the responding units. The request clearly identifies
the records, involves no (or few) complicating factors (e.g., there are
few or no responsive records, involves only one installation and there
are no outside OPRs, involves no classified records (Exemption 1), a
law exempts the responsive records from disclosure (Exemption 3), no
contractor-submitted records (Exemption 4), no deliberative process/
privileged materials (Exemption 5), records contain no (or limited)
personal privacy information/did not come from Privacy Act systems of
records concerning other individuals (Exemption 6), release of records
would have minimal impact on law enforcement (Exemption 7); no time
extensions expected, other than the additional 10-workdays allowed in
situations outlined in the FOIA). If the requested data must come from
electronic records, response can be completed on a ``business-as-
usual'' basis; requires no (or limited) reprogramming of automated
information systems and would cause no significant interference with
operation of information systems by processing a simple request/
providing a response in the electronic format requested.
(ii) Complex. Defines a request whose processing will take
substantial time, will cause significant impact on responding units.
Complications and delays are likely (e.g., the request is vague (poor
description of records, unclear who or when records were created),
records are massive in volume, multiple organizations will receive
tasking, records are classified (Exemption 1), records came from
another command/service/a nongovernment source (Exemption 4), records
are part of the Air Force's decision-making process, and not
incorporated into a final decision (IG/audit reports, legal opinions,
misconduct or mishap investigations etc.) or are attorney-client
records (Exemption 5), records are largely personal information on
another individual or came from Privacy Act systems of records
(Exemption 6), records describe law enforcement activities or
information from (and/or identities of) confidential sources (Exemption
7); response cannot be completed on a ``business as usual'' basis and
would require extensive reprogramming or cause significant interference
with operation of the automated information systems. (Advise requester,
in writing, of right to limit the scope of their request in order to
qualify for simple track.)
(iii) An expedited request is when a requester asks for expedited
processing and explains the compelling need (imminent threat to life or
physical safety; urgently needed by a person primarily engaged in
disseminating information; due process; or humanitarian need) for the
requested information. In order to receive expedited processing,
requesters must provide a statement certifying their ``demonstration''
(description) of their specific ``compelling need'' or due process/
humanitarian need is true and correct to the best of their knowledge.
When a requester seeks expedited processing, FOIA offices must respond
in writing to the requester within 10 calendar days after receipt of
the request approving or denying their request for expedited
processing. Requesters have a right to appeal an adverse decision
(e.g., when it is determined their requests will not be expedited).
There are four categories of FOIA requests that qualify for expedited
processing:
(A) The requester asserts a ``compelling need'' for the records,
because a failure to obtain records quickly could reasonably be
expected to pose an imminent threat to the life or physical safety of
an individual.
(B) The requester asserts a ``compelling need'' for the records,
because the information is ``urgently needed'' by an individual engaged
in disseminating information to inform the public (primarily news media
requesters; and could also include other persons with the ability to
disseminate information).
Note: ``Urgently needed,'' in this case, means the information
has a particular value that will be lost if it is not disseminated
quickly. This normally would apply to a breaking news story of
general public interest. Information of historical interest only, or
sought for litigation or commercial activities would not qualify,
nor would the fact a news media entity had an internal broadcast
deadline of its own, which was unrelated to the ``news breaking
nature'' of the information itself, cause the requested information
to qualify as ``urgently needed.''
[[Page 72820]]
(C) Failure to obtain records quickly could cause imminent loss of
substantial due process rights or providing the information quickly
would serve a ``humanitarian need'' (i.e., disclosing the information
will promote the welfare and interests of mankind). While FOIA requests
falling into these third and fourth categories can qualify for
expedited processing, process them in the expedited track behind the
requests qualifying for expedited processing based on ``compelling
need'' (the first two types of expedited FOIA requests).
(5) Determine fee category of requester (commercial/educational---
noncommercial scientific institution--news media/all others) and assess
fee issues. When all assessable costs are $15.00 or less, waive fees
automatically for all categories of requesters. Assess other fee waiver
or reduction requests on a case-by-case basis.
(6) Apply fee waiver/fee reduction criteria in appropriate cases
(when requester asks for fee waiver/reduction).
(7) Find the responsive Air Force records (if any).
(i) Send the request to the appropriate OPRs to search for
responsive records and to decide whether to recommend release of any
responsive records. Include a DD Form 2086, Record of Freedom of
Information (FOI), or a DD Form 2086-1, Record of Freedom of
Information (FOI) Processing Cost for Technical Data, in each request.
The OPR must complete and return the appropriate forms and statements
to the FOIA office.
(ii) If the OPRs find no responsive records, or if the OPRs desire
to withhold any responsive records from release to the requester, the
OPRs must provide a written certificate detailing either their
unsuccessful search, or their reasons why the documents should be
withheld from release under the FOIA; the written OPR statements must
accompany the copies of the records the OPR desires to withhold as the
FOIA action is processed (e.g., include it in any denial or appeal
file).
Note: If any part of a FOIA request is denied, and the requester
appeals that denial, include all forms, certificates and documents
prepared by the OPRs in the FOIA appeal package required in
paragraph (d)(5) of this section.
(c) Contacts with FOIA requesters and non-Air Force submitters of
data.
(1) Contacts with Air Force elements. A FOIA request is considered
``received'' (and therefore ready to process) when the FOIA office
responsible for processing the request physically receives it, when the
requester states a willingness to pay fees set for the appropriate fee
category, or, if applicable, when the requester has paid any past FOIA
debts and has reasonably described the requested records. Keep hard/
paper copies of all memoranda documenting requester contacts with Air
Force elements regarding a pending FOIA request in the requester's FOIA
file. If the requester contacts Air Force elements telephonically about
a pending FOIA request, the Air Force member participating in the
conversation must prepare notes or memorandums for record (MFR), and
keep those notes or MFRs in the requester's FOIA file. If any part of a
FOIA request is denied, and the requester appeals that denial, submit
documentation of requester contacts with Air Force elements in
chronological order in the FOIA appeal package (see paragraph (d)(1) of
this section).
(2) Contacts with the FOIA Requester. See Sec. 806.27 for samples
of language to use in various types of Air Force FOIA letters. If any
part of a FOIA request is denied, and the requester appeals that
denial, submit documents sent by Air Force elements to the requester in
the FOIA appeal package in chronological order (see paragraph (d)(5) of
this section). Letters that Air Force FOIA offices may need to send to
a FOIA requester include:
(i) An initial notification letter that the FOIA request was
received. This letter may advise the requester that processing of the
FOIA request may be delayed because:
(A) All or part of the requested records are not located at the
installation processing the FOIA request (see Sec. 806.29(c)(2)(ii)).
(B) An enormous number of records must be collected and reviewed.
(C) Other Air Force activities or other agencies, to include (if
applicable) the nongovernment submitter of information, need to be
involved in deciding whether or not to release the records.
(D) If you cannot complete processing of a FOIA request within 20
workdays, advise the requester of the reasons for the delay and give a
date (within 30 workdays after receiving the request) when the
requester can expect a final decision.
(ii) The initial notification letter may advise the requester all/
part of the request was referred to another Air Force element or
government activity.
(iii) The initial notification letter may advise the requester of
the appropriate fee category. In cases where fees are appropriate, and
requesters have not agreed to pay for responsive records and fees are
likely to be more than $15.00, seek assurances that the requester
agrees to pay appropriate fees. If more information is needed to make a
fee category determination, or to determine whether fees should be
waived/reduced, inform the requester. FOIA offices may determine fee
waiver/reduction requests before processing a FOIA request; if a fee
waiver/reduction request is denied, the requester may appeal that
denial; he/she may also appeal an adverse fee category determination
(e.g., asked for news media fees, but was assessed commercial fees.)
(iv) The initial notification letter may advise the requester the
request does not sufficiently describe the desired records. If
possible, help the requester identify the requested records by
explaining what kind of information would make searching for responsive
records easier.
(v) If Air Force elements can complete a FOIA request within the
statutory 20-workday processing period, you may elect to send only a
single letter to the requester, along with responsive records that are
released to the requester in full.
(vi) A letter to the requester that the responding FOIA office uses
multitrack processing due to a significant number of pending requests
that prevents a response determination from being made within 20
workdays. This letter advises the FOIA requester that track the request
is in (simple/complex); in this letter, if expedited processing was
requested, the requester is advised if the request will be expedited or
not. If the request is found to be complex, you must advise the
requester he/she may alter the FOIA request to simplify processing. If
it is determined the request will not be expedited, the requester must
be told he/she can appeal. (This may be the initial letter to the
requester, for Air Force elements with multitrack processing; if that
is the case, this letter may include sections discussed in
Sec. 806.29(c)(2)(i)).
(vii) Subsequent letters to the requester on various subjects (for
example, releasing requested records; advising reasons for delays;
responding to the letters, facsimiles or calls; advising the requester
of referrals to other Air Force units or government activities;
involves a non-Air Force submitter, etc.).
(viii) A release letter to the requester, forwarding releasable
responsive records with a bill (if appropriate).
(ix) A ``no records'' response letter to the requester if there are
no responsive records, or, a denial letter, if any responsive records
are withheld from release. FOIA managers may sign ``no records'' or
``requested format not available'' responses; they may also sign
[[Page 72821]]
a letter that advises a requester the fee category sought was not
determined to be appropriate, or that a fee waiver/fee reduction
request was disapproved, or that a request for expedited processing has
been denied. An IDA must sign any letter or document withholding
responsive records. When denying records, you must tell the requester,
in writing: the name and title or position of the official who made the
denial determination, the basis for the denial in enough detail to
permit the requester to make a decision concerning appeal, and the FOIA
exemptions on which the denial is based. The denial letter must include
a brief statement describing what the exemptions cover. When the
initial denial is based (in whole or in part) on a security
classification, this explanation should include a summary of the
applicable executive order criteria for classification, as well as an
explanation of how those criteria apply to the particular record in
question. Estimate the volume of the records denied and provide this
estimate to the requester, unless providing such an estimate would harm
an interest protected by an exemption of the FOIA. This estimate should
be in number of pages or, for records in other media, in some other
reasonable form of estimation, unless the volume is otherwise indicated
through deletions on records disclosed in part. Indicate the size and
location of the redactions on the records released. You must also tell
the requester how he/she can appeal the denial.
(3) Contacts with non-Air Force submitters of data. Before
releasing data (information or records) submitted from outside the Air
Force, determine whether you need to write to the submitter of the data
for their views on releasability of their data. In many cases, this
non-Air Force data may fall under FOIA Exemption 4. If it appears you
must contact the submitter of the data, advise the requester in writing
that you must give the submitter of the data the opportunity to comment
before the Air Force decides whether to release the information. Give
the submitter a reasonable period of time (30 calendar days) to object
to release and provide justification for withholding the documents. If
the submitter does not respond, advise the submitter in writing that
you have not received a reply and plan to release the records. Provide
the submitter with the reasons the Air Force will release the records,
and give the submitter your expected release date (at least 2 weeks
from the date of your letter). This permits the submitter time to seek
a temporary restraining order (TRO) in federal court, if they can
convince the judge to issue such an order. See Sec. 806.27 for samples
of language to use in Air Force letters to both the FOIA requester and
nongovernment submitters. Remember to include a copy of Sec. 806.31 as
an attachment to the letter sent to the nongovernment submitter.
(i) The notice requirements of this section need not be followed if
the Air Force determines that the information should not be disclosed,
the information has been lawfully published or officially made
available to the public, or disclosure of the information is required
by law.
(ii) If the submitter objects to release of the records, but the
Air Force disclosure authority considers the records releasable, tell
the submitter before releasing the data. Include in the letter to the
submitter a brief explanation and a specific release date at least 2
weeks from the date of the letter. Advise the submitter once a
determination is made that release of the data is required under the
FOIA, failure to oppose the proposed release will lead to release of
submitted data. Also advise the requester such a release under the FOIA
will result in the released information entering the public domain, and
that subsequent requests for the same information will be answered
without any formal coordination between the Air Force and the
submitter, unless the information is later amended, changed, or
modified. A person equal to, or higher in rank than, the denial
authority makes the final decision to disclose responsive records over
the submitter's objection.
(iii) When a previously released contract document has been
modified, any contract documents not in existence at the time of an
earlier FOIA request that are responsive to a later FOIA request for
the same contract, will be processed as a first-time FOIA request for
those newly created documents. Notify the nongovernment submitter of
the pending FOIA action, and give them the same opportunity to respond
as is detailed above. Passage of a significant period of time since the
prior FOIA release can also require Air Force elements to comply with
the notice requirements in this paragraph.
(d) Denying all or part of a request. When responsive records are
withheld from release (denied), the appropriate offices must prepare a
denial package for the IDA. Air Force elements must send the request,
related documents, and responsive records through their IDA's FOIA
office to the IDA for a decision. The denial package must include:
(1) The FOIA request and any modifications by the requester.
(2) A copy of the responsive records, including both records that
may be released and records recommended for denial.
(3) Written recommendations from the OPRs and an Air Force
attorney.
(4) The exemptions cited and a discussion of how the records
qualify for withholding under the FOIA. This discussion should also
include the reasons for denial: to deny release of responsive records
requested under the FOIA, you must determine that disclosure of the
records would result in a foreseeable harm to an interest protected by
a FOIA exemption (or exemptions), that the record is exempt from
release under one or more of the exemptions of the FOIA, and that a
discretionary release is not appropriate.
(5) Any collateral documents that relate to the requested records.
For example:
(i) If the requested records came from a non-Air Force or non-U.S.
Federal Government submitter, include any documents from the submitter
that relate to the release or denial of the requested records. If you
are not sure whether or not the non-Air Force or non-U.S. Federal
Government submitted information is potentially exempt from release
under the FOIA, contact an Air Force attorney. FOIA Exemptions 3, 4, 5,
6, and 7 may apply.
(ii) If the requested records came from Privacy Act systems of
records, include a written discussion of any Privacy Act issues.
(iii) If any requested records came from another Air Force element,
or release of the requested records would affect another Air Force
element, FOIA offices should coordinate with that other element. If the
FOIA request is not completely referred to the other element, include
documents from that element.
(iv) If any requested records are classified, include a written
certification from a classification authority or declassification
authority stating the data was properly classified originally, that it
remains properly classified (per E.O. 12958), and, if applicable, that
no reasonably segregable portions can be released.
(e) FOIA appeal actions.
(1) If an IDA, or a FOIA office responding on behalf of an IDA,
withholds a record from release because they determine the record is
exempt under one or more of the exemptions to the FOIA, the requester
may appeal that decision, in writing, to the Secretary of the Air
Force. The appeal should be accompanied by a copy of the denial
[[Page 72822]]
letter. FOIA appeals should be postmarked within 60 calendar days after
the date of the denial letter, and should contain the reasons the
requester disagrees with the initial denial. Late appeals may be
rejected, either by the element initially processing the FOIA appeal,
or by subsequent denial authorities, if the requester does not provide
adequate justification for the delay. Appeal procedures also apply to
the denial of a fee category claim by a requester, denial of a request
for waiver or reduction of fees, disputes regarding fee estimates,
review on an expedited basis of a determination not to grant expedited
access to agency records, and for ``no record'' or ``requested format
not available'' determinations when the requester considers such
responses adverse in nature.
(2) Coordinate appeals with an Air Force attorney (and the OPR, if
appropriate) so they can consider factual and legal arguments raised in
the appeal, and can prepare written assessments of issues raised in the
appeal to assist the IDA in considering the appeal. MAJCOM FOIA offices
and 11 CS/SCSR (for OPRs at HQ USAF and SAF), send all appeals to the
Secretary of the Air Force through AFLSA/JACL for consideration, unless
the IDA has reconsidered the initial denial action, and granted the
appeal.
(3) If a requester appeals a ``no records'' determination,
organizations must search again or verify the adequacy of their first
search (for example, if a second search would be fruitless, the
organization may include a signed statement from either the records OPR
or the MAJCOM FOIA manager detailing why another search was not
practical). The appeal package must include documents (to include a
certification from the records OPR) that show how the organization
tried to find responsive records. In the event a requester sues the Air
Force to contest a determination that no responsive records exist,
formal affidavits will be required to support the adequacy of any
searches conducted.
(4) General administrative matters. FOIA requesters may ultimately
sue the Air Force in federal court if they are dissatisfied with
adverse determinations. In these suits, the contents of the
administrative appeal file are evaluated to determine whether the Air
Force complied with the FOIA and its own guidance. Improper or
inadequate appeal files make defending these cases problematic. Include
all the documents related to the requester's FOIA action in the appeal
file. If appeal file documents are sensitive, or are classified up to
the SECRET level, send them separately to AFLSA/JACL, 1501 Wilson
Boulevard, 7th Floor, Arlington, VA 22209-2403. Make separate
arrangements with AFLSA/JACL for processing classified appeal file
documents TOP SECRET or higher. Cover letters on appeal packages need
to list all attachments. If a FOIA action is complicated, a chronology
of events helps reviewers understand what happened in the course of the
request and appeal. If an appeal file does not include documentation
described below, include a blank sheet in proper place and mark as
``not applicable,'' ``N/A,'' or ``not used.'' Do not renumber and move
the other items up. If any part of the requester's appeal is denied,
the appeal package must include a signed statement by the IDA,
demonstrating the IDA considered and rejected the requester's
arguments, and the basis for that decision. This may be a separate
memorandum, an endorsement on a legal opinion or OPR opinion, or the
cover letter which forwards the appeal for final determination. Include
in the cover letter forwarding the appeal to the Secretary of the Air
Force the name, phone number and e-mail address (if any) of the person
to contact about the appeal. The order and contents of appeal file
attachments follow.
(i) The original appeal letter and envelope.
(ii) The initial FOIA request, any modifications of the request by
the requester or any other communications from the requester, in
chronological order.
(iii) The denial letter.
(iv) Copies of all records already released. (An index of released
documents may be helpful, if there are a number of items. If the
records released are ``massive'' (which means ``several cubic feet'')
and AFLSA/JACL agrees, an index or description of the records may be
provided in place of the released records. Do not send appeal files
without copies of released records without the express agreement of
AFLSA/JACL. Usually AFLSA/JACL requires all the released records in
appeal files. If you do not send the released records to AFLSA/JACL
when a FOIA requester has appealed a partial denial, retain a copy of
what was released for 6 years.)
(v) Copies of all administrative processing documents, including
extension letters, search descriptions, and initial OPR recommendations
about the request, in chronological order.
(vi) Copies of the denied records or portions marked to show what
was withheld. If your organization uses a single set of highlighted
records (to show items redacted from records released to the
requester), ensure the records are legible and insert a page in the
appropriate place stating where the records are located. (An index of
denied documents may be helpful, if there are a number of items. If the
records denied are ``massive'' (which means ``several cubic feet'') and
AFLSA/JACL agrees, an index or description of the records may be
provided in place of the denied records. Do not send appeal files
without copies of denied records without the express agreement of
AFLSA/JACL. Usually AFLSA/JACL requires all the denied records in
appeal files. If you do not send the denied records to AFLSA/JACL, when
a FOIA requester has appealed a denial, retain a copy of what was
denied for 6 years.)
(vii) All legal opinions in chronological order. Include a point-
by-point discussion of factual and legal arguments in the requester's
appeal (prepared by an Air Force attorney and/or the OPR). If the IDA
does not state in the cover letter he/she signed, that he/she
considered and rejected the requester's arguments, asserting the basis
for that decision (e.g., the IDA concurs in the legal and/or OPR
assessments of the requester's arguments) include a signed, written
statement containing the same information from the IDA, either as a
separate document or an endorsement to a legal or OPR assessment.
Include any explanation of the decision-making process for intra-agency
documents denied under the deliberative process privilege and how the
denied material fits into that process (if applicable).
Sec. 806.30. FOIA exempt information examples.
(a) Certain responsive records may contain parts that are
releasable, along with other parts that the Air Force must withhold
from release. Carefully delete information exempt from release under
the FOIA from copies of otherwise releasable records. Do not release
copies that would permit the requester to ``read through the marking.''
In order to assist FOIA managers in redacting records, selected items
appropriate to withhold in commonly requested Air Force records are
illustrated below. When providing releasable portions from classified
paragraphs, line through and do not delete, the classification marking
preceding the paragraph.
(b) Exemption 1. Example used is an extract from a ``simulated''
contingency plan (all information below is fictional and UNCLASSIFIED;
parenthetical information and marking is used for illustrative purposes
only).
(U) Air Force members will safeguard all FELLOW YELLOW data
(NOTE: FELLOW
[[Page 72823]]
YELLOW simulates an UNCLASSIFIED code name).
During the contingency deployment in Shambala, those members
assigned to force element FELLOW YELLOW will cover their movements
by employing specified camouflage and concealment activities while
behind enemy lines. Only secure communications of limited duration
as specified in the communications annex will be employed until
FELLOW YELLOW personnel return to base. (Exemption 1)
(c) Exemption 2. Example used is an extract from a ``simulated''
test administration guide (all information below is fictional and is
used for illustrative purposes only).
When administering the test to determine which technicians are
ranked fully qualified, make sure to allow only the time specified
in HQ AETC Pamphlet XYZ, which the technicians were permitted to
review as part of their test preparation. For ease in scoring this
exam, correct answers are A, A, B, B, A, B, C, C, A, B, D, D, C, C,
C, D; the corresponding template for marking the standard answer
sheet is kept locked up at all times when not in use to grade answer
sheets. (Exemption ``high'' 2)
(d) Exemption 5. Example used is a simulated IG Report of
Investigation (ROI) recommendation. All parenthetical information in
this example is fictional and is used for illustrative purposes only:
Having interviewed the appropriate personnel and having reviewed
the appropriate documents, I recommend additional training sessions
for all branch personnel on accepted Air Force standards, and the
Air Force pursue administrative or judicial disciplinary action with
respect to Terry Hardcase. (Exemption 5)
(e) Exemption 6. Example used is a simulated personnel computer
report on a military member selected for a special assignment (all
information below is fictional; information and marking is used for
illustrative purposes only.):
SSgt Doe, Kerry E. SSN: 111-11-1112 Date of Birth: 22
Jun 71
Duty Title: Special Assistant to Office Symbol: ..................
CINCPAC CINCPAC/CCSA
Duty Station: Hickam AFB HI Date Assigned: 12
11111-1111 June 1998
Marital Status: Divorced Dependents: 01 Home Address: 12
Anystreet,
Downtown ST 11112
Home Phone: (112) 223-3344
(Exemption 6)
------------------------------------------------------------------------
(f) Exemption 7. Example used is summary of a law enforcement
report on a domestic disturbance at on-base family housing (all
information below is fictional and all parenthetical information is
used for illustrative purposes only):
At 2140, the law enforcement desk, extension 222-3456, took an
anonymous call that reported a disturbance at 1234 Basestreet,
quarters allegedly occupied by two military members. SrA Patrolman
(names of law enforcement investigators usually are withheld under
Exemptions 6 and 7(C)) arrived on the scene at 2155. SrA Patrolman
met Nora Neighbor, (names of witnesses usually are withheld under
Exemptions 6 and 7(C)) who was very agitated. Because she feared her
neighbors would retaliate against her if they knew she reported
their fight, she asked that her name not be released before she
would talk. After she was promised her identity would remain
anonymous, she stated: (Nora Neighbor became a confidential
informant; data that could identify her, and in some cases, the
information she related, should be withheld from release under
Exemptions 6, 7(C) and (D).) ``I heard cursing and heard furniture
and dishes breaking. They fight all the time. I've seen Betty Battle
(unless Betty is the requester, redact her name Exemptions 6 and
7(C)) with a black eye, and I also saw Bob Battle (unless Bob is the
requester, redact his name Exemptions 6 and 7(C)) with bruises the
day after they had their last fight, last Saturday night. This time,
there was a tremendous crash; I heard a man scream ``My Lord NO!''
then I saw Betty Battle come out of the house with dark stains on
her clothes--she got into her car and drove away. I could see this
really well, because the streetlight is right between our houses;
I'm the wife of their NCOIC. If only Nick, my husband, was here now,
he'd know what to do! I haven't heard anything from Bob Battle.''
(Exemptions 6 and 7)
Sec. 806.31 Requirements of 5 U.S.C. 552(b)(4) to submitters of
nongovernment contract-related information.
(a) The FOIA requires federal agencies to provide their records,
except those specifically exempted, for the public to inspect and copy.
Section (b) of the Act lists nine exemptions that are the only basis
for withholding records from the public.
(b) In this case, the fourth exemption, 5 U.S.C. 552(b)(4), may
apply to records or information the Air Force maintains. Under this
exemption, agencies must withhold trade secrets and commercial or
financial information they obtained from a person or organization
outside the government that is privileged or confidential. This
generally includes information provided and received during the
contracting process with the understanding that the Air Force will keep
it privileged or confidential.
(c) Commercial or financial matter is ``confidential'' and exempt
if its release will probably:
(1) Impair the government's ability to obtain necessary information
in the future.
(2) Substantially harm the source's competitive position or impair
some other legitimate government interest such as compliance and
program effectiveness.
(d) Applicability of exemption. The exemption may be used to
protect information provided by a nongovernment submitter when public
disclosure will probably cause substantial harm to its competitive
position. Examples of information that may qualify for this exemption
include:
(1) Commercial or financial information received in confidence with
loans, bids, contracts, or proposals, as well as other information
received in confidence or privileged, such as trade secrets,
inventions, discoveries, or other proprietary data.
Note: Certain proprietary and source selection information may
also fall under exemption (b)(3), under the provisions of 10 U.S.C.
2305(g) or 41 U.S.C. 423, if statutory requirements are met.
(2) Statistical data and commercial or financial information
concerning contract performance, income, profits, losses, and
expenditures, offered and received in confidence from a contractor or
potential contractor.
(3) Personal statements given during inspections, investigations,
or audits, received and kept in confidence because they reveal trade
secrets or commercial or financial information, normally considered
confidential or privileged.
(4) Financial data that private employers give in confidence for
local wage surveys used to set and adjust pay schedules for the
prevailing wage rate of DoD employees.
(5) Information about scientific and manufacturing processes or
developments that is technical or scientific or other information
submitted with a research grant application, or with a report while
research is in progress.
(6) Technical or scientific data a contractor or subcontractor
develops entirely at private expense, and technical or scientific data
developed partly with Federal funds and partly with private funds, in
which the contractor or subcontractor retains legitimate proprietary
interests per 10 U.S.C. 2320 to 2321 and 48 CFR, Chapter 2, 227.71-
227.72.
[[Page 72824]]
(7) Computer software copyrighted under the Copyright Act of 1976
(17 U.S.C. 106), the disclosure of which would adversely impact its
potential market value.
(e) Submitter's Written Response. If release of the requested
material would prejudice your commercial interests, give detailed
written reasons that identify the specific information and the
competitive harm public release will cause to you, your organization,
or your business. The act requires the Air Force to provide any
reasonably segregable part of a record after deleting exempt portions.
If deleting key words or phrases would adequately protect your
interests, advise us in writing which portions you believe we can
safely release, and which portions you believe we need to withhold from
release. If you do not provide details on the probability of
substantial harm to your competitive position or other commercial
interests, which would be caused by releasing your material to the
requester, we may be required to release the information. Records
qualify for protection on a case by case basis.
(f) Pricing Information. Generally, the prices a contractor charges
the government for goods or services would be released under the FOIA.
Examples of releasable data include: bids submitted in response to an
invitation for bids (IFB), amounts actually paid by the government
under a contract, and line item prices, contract award price, and
modifications to a contract. Unit prices contained in a contract award
are considered releasable as part of the post award notification
procedure prescribed by 48 CFR 15.503, unless they are part of an
unsuccessful proposal, then 10 U.S.C. 2305(g) protects everything
including unit price.
Appendix A to Part 806--References
Title 5, United States Code, Section 552, The Freedom of Information
Act, as amended
Title 5, United States Code, Section 552a, The Privacy Act (as
amended)
Title 10, United States Code, Section 2305(g), Prohibition on
Release of Contractor Proposals
Title 48, Code of Federal Regulations (CFR), Federal Acquisition
Regulations (FAR) System
OMB Bulletin 95-01, 7 December 1994
OMB Memorandum, 6 February 1998
DoD 5200.1-R, Information Security Program, January 1997
AFI 16-701, Special Access Programs
AFI 31-206, Security Police Investigations
AFI 31-401, Information Security Program Management
AFI 31-501, Personnel Security Program Management
AFI 31-601, Industrial Security Program Management
AFI 33-129, Transmission of Information Via the Internet
AFI 35-205, Air Force Security and Policy Review Program
AFI 36-2603, Air Force Board for Correction of Military Records
AFI 36-2706, Military Equal Opportunity and Treatment Program
AFI 36-2906, Personal Financial Responsibility
AFI 36-2907, Unfavorable Information File (UIF) Program
AFPD 37-1, Air Force Information Management (will convert to AFPD
33-3)
AFI 37-124, The Information Collections and Reports Management
Program; Controlling Internal, Public, and Interagency Air Force
Information Collections (will convert to AFI 33-324)
AFI 37-132, Air Force Privacy Act Program (will convert to AFI 33-
332)
AFMAN 37-139, Records Disposition Schedule (will convert to AFMAN
33-339)
AFI 40-301, Family Advocacy
AFI 41-210, Patient Administration Functions
AFI 44-109, Mental Health and Military Law
AFI 51-201, Administration of Military Justice
AFI 51-301, Civil Litigation
AFI 51-303, Intellectual Property-Patents, Patent Related Matters,
Trademarks, and Copyrights
AFI 51-501, Tort Claims
AFI 51-503, Aircraft, Missile, Nuclear and Space Accident
Investigations
AFI 51-504, Legal Assistance, Notary and Preventive Law Programs
AFI 51-1102, Cooperation with the Office of the Special Counsel
AFI 61-204, Disseminating Scientific and Technical Information
AFI 61-303, Licensing Inventions Made Under Cooperative Research and
Development Agreements
AFI 65-401, Relations With the General Accounting Office
AFI 71-101, Volume 1, Criminal Investigations
AFI 71-101, Volume 2, Protective Service Matters
AFI 84-101, Historical Products, Services, and Requirements
AFI 90-301, Inspector General Complaints
AFI 90-401, Air Force Relations With Congress
AFI 91-204, Safety Investigations and Reports
Appendix B to Part 806--Abbreviations and Acronyms
AFCA--Air Force Communications Agency
AFCIC--Air Force Communications and Information Center
AFRC--Air Force Reserve Command
AFI--Air Force Instruction
AFLSA/JACL--Air Force Legal Services Agency, General Litigation
Division
AFMAN--Air Force Manual
AFPC/MSIMD--Air Force Personnel Center/Records Management, FOIA, and
Privacy Act Office
AFPD--Air Force Policy Directive
ANG--Air National Guard
ASCII--American Standard Code for Information Interchange
CFR--Code of Federal Regulations
DFAS--Defense Finance and Accounting Service
DFOISR--Director, Freedom of Information and Security Review
DoD--Department of Defense
DRU--Direct Reporting Unit
EFOIA--Electronic Freedom of Information Act
ERR--Electronic Reading Room
FOA--Field Operating Agency
FOIA--Freedom of Information Act
FOUO--For Official Use Only
GAO--General Accounting Office
GILS--Government Information Locator Service
GPO--Government Printing Office
IDA--Initial Denial Authority
IG--Inspector General
IMPAC--International Merchant Purchase Authority Card
LOA--Letters of Offer and Acceptance
MAJCOM--Major Command
MFR--Memorandum for Record
NATO--North Atlantic Treaty Organization
NORAD--North American Aerospace Defense
NTIS--National Technical Information Service
OCR--Office of Corollary Responsibility
OMB--Office of Management and Budget
OPR--Office of Primary Responsibility
PA--Privacy Act
PAO--Public Affairs Office
PAS--Personnel Accounting Symbol
RCS--Reports Control Symbol
SAF--Secretary of the Air Force
SSN--Social Security Number
USAF--United States Air Force
U.S.C.--United States Code
WWW--World Wide Web
Appendix C To Part 806--Terms
Appellate Authority--The Office of the General Counsel to the
Secretary of the Air Force (SAF/GCA).
Denial--An adverse determination on no records, fees, expedited
access, or not disclosing records.
Determination--The written decision to release or deny records or
information that is responsive to a request.
Disclosure--Providing access to, or one copy of, a record.
Disclosure Authority--Official authorized to release records,
normally division chiefs or higher.
FOIA Manager--The person who manages the FOIA Program at each
organizational level.
FOIA Request--A written request for DoD records from the public that
cites or implies the FOIA.
Functional Request--Any request for records from the public that
does not cite the FOIA.
Government Information Locator Service (GILS)--An automated on-line
card catalog of publicly accessible information.
Glomar Response--A reply that neither confirms nor denies the
existence or nonexistence of the requested record.
Initial Denial Authority (IDA)--Persons in authorized positions that
may withhold records.
Partial Denial--A decision to withhold part of a requested record.
[[Page 72825]]
Public Interest--The interest in obtaining official information that
sheds light on how an agency performs its statutory duties and
informs citizens about what their government is doing.
Reading Room--A place where the public may inspect and copy, or have
copied, releasable records.
Records--The products of data compilation, such as all books,
papers, maps, and photographs, machine readable materials inclusive
of those in electronic form or format, or other documentary
materials, regardless of physical form or characteristics, made or
received by an agency of the U.S. Government under Federal Law in
connection with the transaction of public business and in the
agency's possession and control at the time the FOIA request is
made. Records include notes, working papers, and drafts.
Redact--To remove nonreleasable material.
Janet A. Long,
Air Force Federal Register Liaison Officer.
[FR Doc. 99-29525 Filed 12-27-99; 8:45 am]
BILLING CODE 5001-05-U
