22 February 2006
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[Federal Register: February 22, 2006 (Volume 71, Number 35)]
[Rules and Regulations]
[Page 9221-9254]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22fe06-27]
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Part III
Department of Defense
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Department of the Army
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32 CFR Part 518
The Freedom of Information Act Program; Final Rule
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DEPARTMENT OF DEFENSE
Department of the Army
32 CFR Part 518
RIN 0702-AA45
The Freedom of Information Act Program
AGENCY: Department of the Army, DoD.
ACTION: Final Rule.
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SUMMARY: The Department of the Army is revising our rule in support of
the Freedom of Information Act as required by public law and updating
the provisions for access and release of information from all Army
information systems (automated and manual) that further supports the
Army's Records Management Program. This rule finalizes the proposed
rule that was published in the Federal Register on December 28, 2004.
DATES: Effective Date: March 24, 2006.
ADDRESSES: The Administrative Assistant to the Secretary of the Army,
(AASA), The Records and Programs Agency, (RPA), U.S. Army Freedom of
Information and Privacy Office, ATTN: JDRP-RDF, Casey Bldg., Suite 144,
7701 Telegraph Road, Alexandria, VA 22315-3905.
FOR FURTHER INFORMATION CONTACT: U.S. Army Freedom of Information and
Privacy Office, (703) 428-6508.
SUPPLEMENTARY INFORMATION:
A. Background
In the December 28, 2004, issue of the Federal Register, (69 FR
77836), the Department of the Army issued a proposed rule to revise 32
CFR 518. This final rule prescribes procedures and responsibilities of
the Freedom of Information Act, in accordance with the Electronic
Freedom of Information Act (FOIA) Amendments of 1996. The Electronic
Freedom of Information Act Amendments of 1996 changed the response time
from 10 to 20 days, required Multitrack processing of FOIA requests,
required an Electronic FOIA Reading Room, and changed the requirements
for the Annual Report and the timetable for that report from calendar
to fiscal year. The Department of the Army received responses from two
commenters. No substantial changes are required at this time; however
proposed administrative changes were accepted and made to the final
rule. One commenter expressed support for the proposed rule. The second
commenter proposed several changes which would require the revision of
the Freedom of Information Act which is outside the scope of the
proposed rule.
B. Regulatory Flexibility Act
The Department of the Army has determined that the Regulatory
Flexibility Act does not apply because the rule does not have a
significant economic impact on a substantial number of small entities
within the meaning to the Regulatory Flexibility Act, 5 U.S.C. 601-612.
C. Paperwork Reduction Act
The Department of the Army has determined that the Paperwork
Reduction Act does not apply because the rule does not impose
recordkeeping or information collection requirements from contractors
or members of the public.
D. Executive Order 12866
The Department of the Army has determined that according to the
criteria defined in Executive Order 12866, this rule is not a
significant regulatory action.
Donald C. Hakenson,
Acting Chief, U.S. Army Freedom of Information and Privacy Office.
List of Subjects in 32 CFR Part 518
Freedom of Information Act. Administrative practices and
procedures.
0
For the reasons stated in the preamble, the Department of the Army
revises 32 CFR part 518--The Army Freedom of Information Act Program as
follows:
PART 518--THE FREEDOM OF INFORMATION ACT PROGRAM
Subpart A--General Provisions
Sec.
518.1 Purpose.
518.2 References.
518.3 Explanation of abbreviations and terms.
518.4 Responsibilities.
518.5 Authority.
518.6 Public information.
518.7 FOIA terms defined.
518.8 Freedom of Information requirements.
Subpart B--FOIA Reading Rooms
518.9 Reading room.
518.10 ``(a)(2)'' Materials.
518.11 Other materials.
Subpart C--Exemptions
518.12 General.
518.13 FOIA exemptions.
Subpart D--For Official Use Only
518.14 General.
Subpart E--Release and Processing Procedures
518.15 General provisions.
518.16 Initial determinations.
518.17 Appeals.
518.18 Judicial actions.
Subpart F--Fee Schedule
518.19 General provisions.
518.20 Collection of fees and fee rates.
518.21 Collection of fees and fee rates for technical data.
Subpart G--Reports
518.22 Reports control.
518.23 Annual report content.
Appendices to Part 518
Appendix A to Part 518--References.
Appendix B to Part 518--Addressing FOIA Requests.
Authority: 5 U.S.C. 551, 552, 552a, 5101-5108, 5110-5113, 5115,
5332-5334, 5341-42, 5504-5509, 7154; 10 U.S.C. 130, 1102, 2320-2321,
2328; 18 U.S.C. 798, 3500; 31 U.S.C. 3710; 35 U.S.C. 181-188; 42
U.S.C. 2162; 44 U.S.C. 33; and Executive Order 12600.
Subpart A--General provisions
Sec. 518.1 Purpose.
This part provides policies and procedures for implementation of
the Freedom of Information Act (5 U.S.C. 552, as amended) and
Department of Defense Directive (DoDD) 5400.7 and promotes uniformity
in the Department of Defense (DoD) Freedom of Information Act (FOIA)
Program. This Army regulation implements provisions for access and
release of information from all Army information systems (automated and
manual) in support of Army Information Management (AR 25-1).
Sec. 518.2 References.
Required and related publications are listed in Appendix A of this
part.
Sec. 518.3 Explanation of abbreviations and terms.
Abbreviations and special terms used in this part are explained in
the glossary of AR 25-55.
Sec. 518.4 Responsibilities.
(a) The Administrative Assistant to the Secretary of the Army
(AASA) is responsible for issuing policy and establishing guidance for
the Army FOIA Program. AASA has the responsibility to approve
exceptions to this regulation that are consistent with controlling law
and regulations. AASA may delegate the approval authority, in writing,
to a division chief, under its supervision, within that agency in the
grade of O6 or civilian equivalent.
(b) The Administrative Assistant to the Secretary of the Army,
(AASA), The Records and Programs Agency, (RPA), Records Management and
Declassification Agency (RMDA), is responsible for developing and
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recommending policy to AASA concerning the Army FOIA program and
overall execution of the program under the policy and guidance of AASA.
(c) The Chief of Information Officer (CIO), G6 will provide
oversight of the FOIA program as necessary in compliance with Federal
Statutes, regulations, Office of Management and Budget (OMB), and the
Office of Secretary of Defense (OSD).
(d) Heads of Army Staff agencies, field operating agencies, major
Army commands (MACOMS), and subordinate commands are responsible for
the supervision and execution of the FOIA program in functional areas
and activities under their command.
(e) Heads of Joint Service agencies or commands for which the Army
is the Executive Agent, or otherwise has responsibility for providing
fiscal, logistical, or administrative support, will adhere to the
policies and procedures in this regulation.
(f) Commander, Army and Air Force Exchange Service (AAFES), is
responsible for the supervision of the FOIA program within that command
pursuant to this part.
Sec. 518.5 Authority.
(a) This part governs written FOIA requests from members of the
public. It does not preclude the release of personnel or other records
to agencies or individuals in the Federal Government for use in
official work.
(b) Soldiers and civilian employees of the Department of the Army
(DA) may, as private citizens, request DA or other agencies' records
under the FOIA. They must prepare requests at their own expense and on
their own time. They may not use Government equipment, supplies, or
postage to prepare personal FOIA requests. It is not necessary for
soldiers or civilian employees to go through the chain of command to
request information under the FOIA.
(c) Requests for DA records processed under the FOIA may be denied
only in accordance with the FOIA (5 U.S.C. 552(b)), as implemented by
this part. Guidance on the applicability of the FOIA is also found in
the Federal Acquisition Regulation (FAR).
(d) Release of some records may also be affected by the programs
that created them. They are discussed in the following regulations:
(1) AR 20-1 (Inspector General activities and procedures);
(2) AR 27-10 (military justice);
(3) AR 27-20 (claims);
(4) AR 27-40 (litigation: release of information and appearance of
witnesses);
(5) AR 27-60 (intellectual property);
(6) AR 36-2 (Government Accounting Office audits);
(7) AR 40-66, AR 40-68, and AR 40-400 (medical records);
(8) AR 70-31 (technical reports);
(9) AR 20-1, AR 385-40 and DA Pam 385-40 (aircraft accident
investigations);
(10) AR 195-2 (criminal investigation activities);
(11) AR 190-45 (Military Police records and reports);
(12) AR 360-1 (Army public affairs: public information, general
policies on release of information to the public);
(13) AR 380-5 and DoD 5200.1-R (national security classified
information);
(14) AR 380-5 paragraph 7-101e (policies and procedures for
allowing persons outside the Executive Branch to do unofficial
historical research in classified Army records);
(15) AR 380-10 (Technology Transfer for disclosure of information
and contacts with foreign representatives;
(16) AR 381-45 (U.S. Army Intelligence and Security Command
investigation files);
(17) AR 385-40 (safety reports and records);
(18) AR 600-8-104 (military personnel information management
records);
(19) AR 600-85 (alcohol and drug abuse records);
(20) AR 608-19 (family advocacy records); and
(21) AR 690 (series civilian personnel records, FAR, DoD Federal
Acquisition Regulation Supplement (DFARS) and the Army Federal
Acquisition Regulation Supplement (AFARS) procurement matters).
Sec. 518.6 Public information.
(a) Public information. The public has a right to information
concerning the activities of its Government. Army policy is to conduct
its activities in an open manner and provide the public with a maximum
amount of accurate and timely information concerning its activities,
consistent always with the legitimate public and private interests of
the American people. A record requested by a member of the public who
follows rules established by proper authority in DA shall not be
withheld in whole or in part unless the record is exempt from mandatory
partial or total disclosure under the FOIA. As a matter of policy, Army
activities shall make discretionary disclosures of exempt records or
information only after full and deliberate consideration of the
institutional, commercial, and personal privacy interests that could be
implicated by disclosure of the information. Activities must be
prepared to present a sound legal basis in support of their
determinations. In order that the public may have timely information
concerning Army activities, records requested through public
information channels by news media representatives that would not be
withheld if requested under the FOIA should be released upon request.
Prompt responses to requests for information from news media
representatives should be encouraged to eliminate the need for these
requesters to invoke the provisions of the FOIA and thereby assist in
providing timely information to the public. Similarly, requests from
other members of the public for information that would not be withheld
under the FOIA should continue to be honored through appropriate means
without requiring the requester to invoke the FOIA.
(b) FOIA handbook. The Department of the Army Freedom of
Information Act/Privacy Act (DA FOIA/PA) Office shall prepare, in
addition to FOIA regulations, a handbook for the use of the public in
obtaining information from its organizations. This handbook will be a
short, simple explanation of what the FOIA is designed to do, and how a
member of the public can use it to access government records. The DA
FOIA/PA Office handbook will explain the types of records that can be
obtained through FOIA requests, why some records cannot, by law, be
made available, and how the Army activity determines whether or not the
record can be released. The handbook will also explain how to make a
FOIA request, how long the requester can expect to wait for a reply,
and appeal rights. The handbook will supplement other information
locator systems, such as the Government Information Locator Service
(GILS), and explain how a requester can obtain more information about
those systems. The handbook will be available on paper and through
electronic means and contain the following additional information,
complete with electronic links to the below elements: the location of
reading room and the types and categories of information available; the
location of the World Wide Web page; a reference to the Army FOIA
regulation and how to obtain a copy; a reference to the Army FOIA
annual report and how to obtain a copy; and the location of the GILS
page. The DA FOIA handbook, ``A Citizen's Guide to Request Army Records
Under the Freedom of Information Act (FOIA),'' can be accessed on-line
at http://www.rmda.belvoir.army.mil/. ``The Major Automated Information
Systems
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Descriptions'' can be accessed at http://www.defenselink.mil/pubs/foi.
(c) Control system. A request for records that invokes the FOIA
shall enter a formal control system designed to ensure accountability
and compliance with the FOIA. Any request for Army records that either
explicitly or implicitly cites the FOIA shall be processed under the
provisions of this part, unless otherwise required.
Sec. 518.7 FOIA terms defined.
(a) FOIA request. A written request for Army records that
reasonably describes the record(s) sought, made by any person,
including a member of the public (U.S. or foreign citizen/entity), an
organization, or a business, but not including a Federal Agency or a
fugitive from the law, that either explicitly or implicitly invokes the
FOIA, DoDD 5400.7, DoD 5400.7-R, this part, or Army Activity
supplementing regulations or instructions. All requesters should also
indicate a willingness to pay fees associated with the processing of
their request. Requesters may ask for a waiver of fees, but should also
express a willingness to pay fees in the event of a waiver denial.
Written requests may be received by postal service or other commercial
delivery means, by facsimile, or electronically (such as e-mail).
Requests received by facsimile or electronically must have a postal
mailing address included since it may not be practical to provide a
substantive response electronically. The request is considered properly
received, or perfected, when the conditions in this paragraph have been
met and the request arrives at the FOIA office of the Activity in
possession of the records.
(b) Agency record. The products of data compilation, such as all
books, papers, maps, photographs, and machine readable materials,
inclusive of those in electronic form or format, or other documentary
materials, regardless of physical form or characteristics, made or
received by an agency of the United States Government under Federal law
in connection with the transaction of public business and in DA
possession and control at the time the FOIA request is made.
(1) The following are not included within the definition of the
word ``record'': 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; Personal records of an
individual not subject to agency creation or retention requirements,
created and maintained primarily for the convenience of an agency
employee, and not distributed to other agency employees for their
official use. Personal papers fall into three categories: Those created
before entering Government service; private materials brought into,
created, or received in the office that were not created or received in
the course of transacting Government business; and work-related
personal papers that are not used in the transaction of Government
business in accordance with Public Law 86-36, National Security
Information Exemption.
(2) A record must exist and be in the possession and control of DA
at the time of the request to be considered subject to this part and
the FOIA. There is no obligation to create or compile a record to
satisfy a FOIA request.
(3) Hard copy or electronic records that are subject to FOIA
requests under 5 U.S.C. 552 (a)(3), and that are available to the
public through an established distribution system such as the
Government Printing Office (GPO), Federal Register, National Technical
Information Service (NTIS), or the Internet, normally need not be
processed under the provisions of the FOIA. If a request is received
for such information, Army Activities shall provide the requester with
guidance, inclusive of any written notice to the public, on how to
obtain the information. However, if the requester insists that the
request be processed under the FOIA, then the request shall be
processed under the FOIA. If there is any doubt as to whether the
request must be processed, contact DA, FOIA/PA Office.
(c) Army activity. A specific area of organizational or functional
responsibility within DA, authorized to receive and act independently
on FOIA requests.
(d) Initial denial authority (IDA). An official who has been
granted authority by the Secretary of the Army to deny records
requested under the FOIA based on one or more of the nine categories of
exemptions from mandatory disclosure. An IDA also: Denies a fee
category claim by a requester; denies a request for expedited
processing due to demonstrated compelling need; denies a request for a
waiver or reduction of fees; reviews a fee estimate; and confirms that
no records were located in response to a request.
(e) Appellate authority. The Secretary of the Army or designee
having jurisdiction for this purpose over the record, or any of the
other adverse determinations. The DA appellate authority is the Office
of the Army General Counsel (OGC).
(f) Administrative appeal. A request by a member of the general
public, made under the FOIA, asking the appellate authority of the Army
to reverse a decision to: Withhold all or part of a requested record;
deny a fee category claim by a requester; deny a request for expedited
processing due to demonstrated compelling need; deny a request for
waiver or reduction of fees; deny a request to review an initial fee
estimate; and confirm that no records were located during the initial
search. Requesters also may appeal the failure to receive a response
determination within the statutory time limits, a fee estimate, and any
determination that the requester believes is adverse in nature.
(g) Public interest. The interest in obtaining official information
that sheds light on an activity's performance of its statutory duties
because the information falls within the statutory purpose of the FOIA
to inform citizens about what their Government is doing. That statutory
purpose, however, is not fostered by disclosure of information about
private citizens accumulated in various governmental files that reveals
nothing about an agency's or official's own conduct.
(h) Electronic record. Records (including e-mail) that are created,
stored, and retrievable by electronic means.
(i) Federal agency. As defined by 5 U.S.C. 552 (f)(1), a Federal
agency is any executive department, military department, Government
corporation, Government controlled corporation, or other establishment
in the executive branch of the Government (including the Executive
Office of the President), or any independent regulatory agency.
(j) Law enforcement investigation. An investigation conducted by a
command or activity for law enforcement purposes relating to crime,
waste, fraud or national security. Such investigations may include
gathering evidence for criminal prosecutions and for civil or
regulatory proceedings.
Sec. 518.8 Freedom of Information requirements.
(a) Compliance with the FOIA. Army personnel are expected to comply
with the FOIA, this part, and Army FOIA policy in both letter and
spirit. This strict adherence is necessary to provide uniformity in the
implementation of the Army FOIA Program and to create conditions that
will promote public trust.
(b) Openness with the public. The DA shall conduct its activities
in an open manner consistent with the need for
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security and adherence to other requirements of law and regulation.
Records not specifically exempt from disclosure under the Act shall,
upon request, be made readily accessible to the public in accordance
with rules promulgated by competent authority, whether or not the Act
is invoked.
(1) Operations Security (OPSEC). DA officials who release records
under the FOIA must also consider OPSEC. The Army implementing
directive is AR 530-1.
(2) DA Form 4948-R. This form lists references and information
frequently used for FOIA requests related to OPSEC. Persons who
routinely deal with the public (by telephone or letter) on such
requests should keep the form on their desks as a guide.
(c) Avoidance of procedural obstacles. Army Activities shall ensure
that procedural matters do not unnecessarily impede a requester from
obtaining DA records promptly. The Army shall provide assistance to
requesters to help them understand and comply with procedures
established by this part and any supplemental regulations published by
the Army Activities. Coordination of referral of requests with DA FOIA/
PA Office should be made telephonically in order to respond to the
requester in a timelier manner. Requests will not be mailed to the DA
FOIA/PA Office for disposition or coordination with other IDAs.
(d) Prompt action on requests and final response determinations.
Generally, when a member of the public complies with the procedures
established in this part or instructions for obtaining DA records, and
after the request is received by the official designated to respond,
Army Activities shall endeavor to provide a final response
determination within the statutory 20 working days. If a significant
number of requests, or the complexity of the requests prevent a final
response determination within the statutory time period, Army
Activities shall advise the requester of this fact, and explain how the
request will be responded to within its multitrack processing system. A
final response determination is notification to the requester that the
records are released or partially released, or will be released on a
certain date, or the records are withheld under an appropriate FOIA
exemption, or the records cannot be provided for one or more of the
other reasons. Interim responses acknowledging receipt of the request,
negotiations with the requester concerning the scope of the request,
the response timeframe, and fee agreements are encouraged; however,
such actions do not constitute a final response determination pursuant
to the FOIA. If a request fails to meet minimum requirements as set
forth, Activities shall contact the requester and inform the requester
what would be required to perfect or correct the request, or to limit
the scope to allow for the most expeditious response. The statutory 20
working day time limit applies upon receipt of a perfected or correct
FOIA request. Before mailing a final response determination and those
records or portions thereof deemed releasable, records custodians will
obtain a written legal opinion from their servicing judge advocate
concerning the releasibility of the requested records. The legal
opinion must cite specific exemptions, appropriate justification, and
identify if the records were processed under the FOIA, PA (including
the applicable systems notice), or both.
(1) Multi-track processing. When an Army Activity has a significant
number of pending requests that prevents a response determination being
made within 20 working days, the requests shall be processed in a
multitrack processing system, based on the date of receipt, the amount
of work and time involved in processing the requests, and whether the
request qualifies for expedited processing. Army Activities may
establish as many processing queues as they wish; however, as a
minimum, three processing tracks shall be established, all based on a
first-in, first-out concept, and rank ordered by the date of receipt of
the request. One track shall be a processing queue for simple requests,
one track for complex requests, and one track shall be a processing
queue for expedited processing. Determinations as to whether a request
is simple or complex shall be made by each Army Activity. Army
Activities shall provide a requester whose request does not qualify for
the fastest queue an opportunity to limit the scope of the request in
order to qualify for the fastest queue. This multitrack processing
system does not obviate an Activity's' responsibility to exercise due
diligence in processing requests in the most expeditious manner
possible.
(2) Expedited processing. A separate queue shall be established for
requests meeting the test for expedited processing. Expedited
processing shall be granted to a requester after the requester requests
such and demonstrates a compelling need for the information. Notice of
the determination as to whether to grant expedited processing in
response to a requester's compelling need shall be provided to the
requester within 10 calendar days after receipt of the request in the
Army Activity's office that will determine whether to grant expedited
processing. Once the Army Activity has determined to grant expedited
processing, the request shall be processed as soon as practicable.
Actions by Army Activities to initially deny or affirm the initial
denial on appeal of a request for expedited processing and a failure to
respond in a timely manner shall be subject to judicial review. Initial
determination of denials of expedited processing will be immediately
forwarded to the IDA for action. If the IDA upholds the denial, the
requester will be informed of his or her right to appeal.
(i) Imminent threat. Compelling need means that the failure to
obtain the records on an expedited basis could reasonably be expected
to pose an imminent threat to the life or physical safety of an
individual.
(ii) Alleged Federal Government activity. Compelling need also
means that the information is urgently needed by an individual
primarily engaged in disseminating information in order to inform the
public concerning actual or alleged Federal Government activity. An
individual primarily engaged in disseminating information means a
person whose primary activity involves publishing or otherwise
disseminating information to the public. Representatives of the news
media would normally qualify as individuals primarily engaged in
disseminating information. Other persons must demonstrate that their
primary activity involves publishing or otherwise disseminating
information to the public.
(iii) General public interest. Urgently needed means that the
information has a particular value that will be lost if not
disseminated quickly. Ordinarily this means a breaking news story of
general public interest. However, information of historical interest
only or information sought for litigation or commercial activities
would not qualify, nor would a news media publication or broadcast
deadline unrelated to the news breaking nature of the information.
(iv) Certified statement. A demonstration of compelling need by a
requester shall be made by a statement certified by the requester to be
true and correct to the best of his or her knowledge. This statement
must accompany the request in order to be considered and responded to
within the 10 calendar days required for decisions on expedited access.
(v) Other reasons for expedited processing. Another reason that
merits expedited processing by Army FOIA offices is an imminent loss of
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substantial due process rights. A demonstration of imminent loss of
substantial due process rights shall be made by a statement certified
by the requester to be true and correct to the best of his or her
knowledge. The statement mentioned in paragraph (iv) of this section
must accompany the request in order to be considered and responded to
within the 10 calendar days required for decisions on expedited access.
Once the decision has been made to expedite the request for this
reason, the request may be processed in the expedited processing queue
behind those requests qualifying for compelling need.
(vi) Administrative appeals. These same procedures also apply to
requests for expedited processing of administrative appeals.
(e) Use of exemptions. It is Army policy to make records publicly
available, unless the record qualifies for exemption under one or more
of the nine exemptions. Discretionary releases of information protected
under the FOIA should be made only after full and deliberate
consideration of the institutional, commercial, and personal privacy
interests that could be implicated by disclosure of the information.
When Army activities determine to withhold information using one of the
nine exemptions, the Department of Justice (DOJ) will defend the
position unless it is found to be lacking a Sound Legal Basis for
denial.
(1) Parts of a requested record may be exempt from disclosure under
the FOIA. The proper DA official may delete exempt information and
release the remainder to the requester. The proper official also has
the discretion under the FOIA to release exempt information when
appropriate; he or she must exercise this discretion in a reasonable
manner, within regulations consistent with current policy
considerations. The excised copies shall clearly reflect the denied
information by the use of brackets, indicating the removal of
information. Bracketed areas must be sufficiently removed so as to
reveal no information. The best means to ensure illegibility is to cut
out the information from a copy of the document and reproduce the
appropriate pages.
(2) If the document is declassified, all classification markings
shall be lined through with a single black line, which will allow the
markings to be read. The document shall then be stamped
``Unclassified.''
(f) Public domain. Nonexempt records released under the authority
of this part are considered to be in the public domain. Such records
may also be made available in the DA reading room in paper form, as
well as electronically, to facilitate public access. Exempt records
disclosed without authorization by the appropriate Army FOIA official
do not lose their exempt status. Also, while authority may exist to
disclose records to individuals in their official capacity, the
provisions of this part apply if the same individual seeks the records
in a private or personal capacity.
(g) Creating a record. A record must exist and be in the possession
and control of DA at the time of the search to be considered subject to
this part and the FOIA. There is no obligation to create or compile a
record to satisfy a FOIA request. An Army Activity, however, may
compile a new record when so doing would result in a more useful
response to the requester, or be less burdensome to the agency than
providing existing records, and the requester does not object. Cost of
creating or compiling such a record may not be charged to the requester
unless the fee for creating the record is equal to or less than the fee
that would be charged for providing the existing record. Fee
assessments shall be in accordance with subpart F of this part.
(1) Concerning electronic data, the issue of whether records are
actually created or merely extracted from an existing database is not
always readily apparent. Consequently, when responding to FOIA requests
for electronic data where creation of a record, programming, or
particular format are questionable, Army Activities should apply a
standard of reasonableness.
(2) If the capability exists to respond to the request, and the
effort would be a business as usual approach, then the request should
be processed. However, the request need not be processed where the
capability to respond does not exist without a significant expenditure
of resources, thus not being a normal business as usual approach. As
used in this sense, a significant expenditure of resources in both time
and/or manpower that would cause a significant interference with the
operation of the Army Activity's automated information system would not
be a business as usual approach.
(h) Description of requested record. Identification of the record
desired is the responsibility of the requester. The requester must
provide a description of the desired record that enables the Government
to locate the record with a reasonable amount of effort. In order to
assist Army Activities in conducting more timely searches, requesters
should endeavor to provide as much identifying information as possible.
When an Army Activity receives a request that does not reasonably
describe the requested record, it shall contact the requester and
afford the requester the opportunity to perfect the request. Army
Activities are not obligated to act on the request until the requester
perfects the request. When practicable, Army Activities shall contact
the requester to aid in identifying the records sought and in
reformulating the request to reduce the burden on the agency in
complying with the Act. DA FOIA officials will reply to unclear
requests by: Describing the defects in the requests; explaining the
types of information described below, and ask the requester for such
information; and explaining that no action will be taken on the request
until the requester replies to the letter.
(1) The following guidelines are provided to deal with generalized
requests and are based on the principle of reasonable effort.
Descriptive information about a record may be divided into two broad
categories: Category I is file-related and includes information such as
type of record (for example, memorandum), title, index citation,
subject area, date of record creation, and originator; Category II is
event-related and includes the circumstances that resulted in the
record being created or the date and circumstances surrounding the
event the record covers.
(2) Generally, a record is not reasonably described unless the
description contains sufficient Category I information to permit an
organized, non random search based on the Army Activity's filing
arrangements and existing retrieval systems, or unless the record
contains sufficient Category II information to permit an inference of
the Category I elements needed to conduct such a search.
(3) The following guidelines deal with requests for personal
records. Ordinarily, when personal identifiers are provided only in
connection with a request for records concerning the requester, only
records in a PA system of records that can be retrieved by personal
identifiers need be searched. However, if an Army Activity has reason
to believe that records on the requester may exist in a record system
other than a PA system, the Army Activity shall search that system
under the provisions of the FOIA. In either case, Army Activities may
request a reasonable description of the records desired before
searching for such records under the provisions of the FOIA and the PA.
If the record is required to be released under the FOIA, the Privacy
Act does not bar its disclosure.
[[Page 9227]]
(4) The previous guidelines notwithstanding, the decision of the
Army Activity concerning reasonableness of description must be based on
knowledge of its files. If the description enables Army Activity
personnel to locate the record with reasonable effort, the description
is adequate. The fact that a FOIA request is broad or burdensome in its
magnitude does not, in and of itself, entitle an Army Activity to deny
the request on the ground that it does not reasonably describe the
records sought. The key factor is the ability of the Army Activity's
staff to reasonably ascertain and locate which records are being
requested.
(i) Referrals. The Army FOIA referral policy is based upon the
concept of the originator of a record making a release determination on
its information. If an Army Activity receives a request for records
originated by another Army Activity, it will contact the Army Activity
to determine if it also received the request, and if not, obtain
concurrence from the other Army Activity to refer the request. An Army
Activity shall refer a FOIA request for a classified record that it
holds to another Army Activity, DoD Component, or agency outside the
DoD, if the record originated in another Army Activity or DoD Component
or outside agency, or if the classification is derivative. In this
situation, provide the record and a release recommendation on the
record with the referral action. In either situation, the requester
shall be advised of the action taken, unless exempt information would
be revealed. While referrals to originators of information result in
obtaining the best possible decision on release of the information, the
policy does not relieve Army Activities from the responsibility of
making a release decision on a record should the requester object to
referral of the request and the record. Should this situation occur,
Army Activities shall still coordinate with the originator of the
information prior to making a release determination. A request received
by an Army Activity having no records responsive to a request shall be
referred routinely to another Army Activity, if the other Army Activity
has reason to believe it has the requested records. Prior to notifying
a requester of a referral to another Army Activity, the Army Activity
receiving the initial request shall consult with the other Army
Activity to determine if that Army Activity's association with the
material is exempt. If the association is exempt, the Army Activity
receiving the initial request will protect the association and any
exempt information without revealing the identity of the protected Army
Activity. The protected Army Activity should be responsible for
submitting the justifications required in any litigation. Any Army
Activity receiving a request that has been misaddressed shall refer the
request to the proper address and advise the requester. Army Activities
making referrals of requests for records shall include with the
referral, a point of contact by name, a telephone number, and an e-mail
address. If the office receiving the FOIA request does not know where
the requested records are located, that activity will contact the DA,
FOIA/PA Office, to determine the office where the request should be
referred.
(1) An Army Activity shall refer for response directly to the
requester a FOIA request for a record that it holds to another Army
Activity or agency outside the Army, if the record originated in the
other Army Activity or outside agency. Whenever a record or a portion
of a record is referred to another Army Activity or to a Government
Agency outside of the Army for a release determination and direct
response, the requester shall be informed of the referral, unless it
has been determined that notification would reveal exempt information.
Referred records shall only be identified to the extent consistent with
security requirements.
(2) An Army Activity may refer a request for a record that it
originated to another Army Activity or agency when the other Army
Activity or agency has a valid interest in the record, or the record
was created for the use of the other Army Activity or agency. In such
situations, provide the record and a release recommendation on the
record with the referral action. Include a point of contact with the
telephone number. An example of such a situation is a request for audit
reports prepared by the U.S. Army Audit Agency. These advisory reports
are prepared for the use of contracting officers and their release to
the audited contractor shall be at the discretion of the contracting
officer. A FOIA request shall be referred to the appropriate Army
Activity and the requester shall be notified of the referral, unless
exempt information would be revealed. Another example is a record
originated by an Army Activity or agency that involves foreign
relations, and could affect an Army Activity or organization in a host
foreign country. Such a request and any responsive records may be
referred to the affected Army Activity or organization for consultation
prior to a final release determination within DA.
(3) Within DA, an Army Activity shall ordinarily refer a FOIA
request and a copy of the record it holds but that originated with
another Army Activity or that contains substantial information obtained
from another Army Activity, to that Activity for direct response, after
direct coordination and obtaining concurrence from the Activity. The
requester then shall be notified of such referral. Army Activities
shall not, in any case, release or deny such records without prior
consultation with the other Army Activity.
(4) Army Activities that receive referred requests shall answer
them in accordance with the time limits established by the FOIA, this
part, and their multitrack processing queues, based upon the date of
initial receipt of the request at the referring Activity or agency.
(5) Agencies outside DA that are subject to the FOIA.
(i) An Army Activity may refer a FOIA request for any record that
originated in an agency outside DA or that is based on information
obtained from an outside agency to the agency for direct response to
the requester after coordination with the outside agency, if that
agency is subject to FOIA. Otherwise, the Army Activity must respond to
the request.
(ii) An Army Activity shall refer to the agency that provided the
record any FOIA request for investigative, intelligence, or any other
type of records that are on loan to DA for a specific purpose, if the
records are restricted from further release and so marked. However, if
for investigative or intelligence purposes, the outside agency desires
anonymity, an Army Activity may only respond directly to the requester
after coordination with the outside agency.
(6) Army Activities that receive requests for records of the
National Security Council (NSC), the White House, or the White House
Military Office (WHMO) shall process the requests. Army records in
which the NSC or White House has a concurrent reviewing interest, and
NSC, White House, or WHMO records discovered in Army Activity's files
shall be forwarded through DA, FOIA/PA Office, to the Washington
Headquarters Services, Office For Freedom of Information and Security
Review (OFOISR). The OFOISR shall coordinate with the NSC, White House,
or WHMO and return the records to the originating agency after
coordination.
(7) To the extent referrals are consistent with the policies
expressed by this section, referrals between offices
[[Page 9228]]
of the same Army Activity are authorized.
(8) On occasion, the DA receives FOIA requests for Government
Accountability Office (GAO) records containing Army information. Even
though the GAO is outside the Executive Branch, and not subject to the
FOIA, all FOIA requests for GAO documents containing Army information
received either from the public or on referral from the GAO shall be
processed under the provisions of the FOIA.
(j) Authentication. Records provided under this part shall be
authenticated with an appropriate seal, whenever necessary, to fulfill
an official Government or other legal function. This service, however,
is in addition to that required under the FOIA and is not included in
the FOIA fee schedule. Army Activities may charge for the service at a
rate of $5.20 for each authentication.
(k) Records management. FOIA records shall be maintained and
disposed of in accordance with the National Archives and Records
Administration (NARA) General Records Schedule and DoD Component
records schedules.
(l) Record-keeping requirements in accordance with the Army Records
Information Management System (ARIMS). The records listed below are
required by ARIMS in the conduct of the daily business of the Army to
provide adequate and proper documentation to protect the rights and
interests of individuals and the Federal Government. The full
description of the records and their disposition is found at https://www2.arims.army.mil
.
(1) FOIA requests, access, and denials;
(2) FOIA administrative files;
(3) FOIA appeals;
(4) FOIA controls;
(5) FOIA reports;
(6) Access to information files;
(7) Safeguarded nondefense information releases;
(8) Nonsafeguarded information releases;
(9) Unauthorized disclosure reports;
(10) Acknowledgement; and
(11) Initial Denial Authority designations/appointments.
(m) Relationship between the FOIA and the Privacy Act (PA). Not all
requesters are knowledgeable of the appropriate statutory authority to
cite when requesting records, nor are all of them aware of appeal
procedures. In some instances, they may cite neither Act, but will
imply one or both Acts. For these reasons, the below guidelines are
provided to ensure that requesters receive the greatest amount of
access rights under both Acts.
(1) If the record is required to be released under the FOIA, the PA
does not bar its disclosure. Unlike the FOIA, the PA applies only to
U.S. citizens and aliens lawfully admitted for permanent residence.
(2) Requesters who seek records about themselves contained in a PA
system of records and who cite or imply only the PA, will have their
requests processed under the provisions of both the PA and the FOIA. If
the PA system of records is exempt from the provisions of 5 U.S.C.
552a(d)(1) and if the records, or any portion thereof, are exempt under
the FOIA, the requester shall be so advised with the appropriate PA and
FOIA exemption. Appeals shall be processed under both Acts.
(3) Requesters who seek records about themselves that are not
contained in a Privacy Act system of records and who cite or imply the
PA will have their requests processed under the provisions of the FOIA,
since the PA does not apply to these records. Appeals shall be
processed under the FOIA.
(4) Requesters who seek records about themselves that are contained
in a PA system of records and who cite or imply the FOIA or both Acts
will have their requests processed under the provisions of both the PA
and the FOIA. If the PA system of records is exempt from the provisions
of 5 U.S.C. 552a(d)(1) and if the records, or any portion thereof, are
exempt under the FOIA, the requester shall be so advised with the
appropriate PA and FOIA exemption. Appeals shall be processed under
both Acts.
(5) Requesters who seek access to agency records that are not part
of a PA system of records, and who cite or imply the PA and FOIA, will
have their requests processed under the FOIA since the PA does not
apply to these records. Appeals shall be processed under the FOIA.
Requesters who seek access to agency records and who cite or imply the
FOIA will have their requests and appeals processed under the FOIA.
(6) Requesters shall be advised in the final response letter, which
Act(s) was (were) used, inclusive of appeal rights as outlined in
paragraphs (m)(1) through (5) of this section.
(n) Non-responsive information in responsive records. Army
Activities shall interpret FOIA requests liberally when determining
which records are responsive to the requests, and may release non-
responsive information. However, should Army Activities desire to
withhold non-responsive information, the following steps shall be
accomplished:
(1) Consult with the requester, and ask if the requester views the
information as responsive, and if not, seek the requester's concurrence
to delete the non-responsive information without a FOIA exemption.
Reflect this concurrence in the response letter.
(2) If the responsive record is unclassified, and the requester
does not agree to deletion of non-responsive information without a FOIA
exemption, release all non-responsive and responsive information that
is not exempt. For non-responsive information that is exempt, notify
the requester that even if the information were determined responsive,
it would likely be exempt under (state appropriate exemption(s)).
Advise the requester of the right to request this information under a
separate FOIA request. The separate request shall be placed in the same
location within the processing queue as the original request.
(3) If the responsive record is classified, and the requester does
not agree to deletion of non-responsive information without a FOIA
exemption, release all unclassified responsive and non-responsive
information that is not exempt. The classified, non-responsive
information need not be reviewed for declassification at this point.
Advise the requester that even if the classified information were
determined responsive, it would likely be exempt under 5 U.S.C.
552(b)(1), and other exemptions if appropriate. Advise the requester of
the right to request this information under a separate FOIA request.
The separate request shall be placed in the same location within the
processing queue as the original request.
(o) Honoring form or format requests. Army Activities shall provide
the record in any form or format requested by the requester if the
record is readily reproducible in that form or format. Army Activities
shall make reasonable efforts to maintain their records in forms or
formats that are reproducible. In responding to requests for records,
Army Activities shall make reasonable efforts to search for records in
electronic form or format, except when such efforts would significantly
interfere with the operation of the Army Activities' automated
information system. Such determinations shall be made on a case-by-case
basis.
Subpart B--FOIA Reading Rooms
Sec. 518.9 Reading room.
(a) Reading room location. The DA shall provide an appropriate
facility or facilities where the public may inspect and copy or have
copied the records described in paragraphs (b)(1) through (4) of this
section. In addition to the records described, DA may elect to
[[Page 9229]]
place other records in their reading room, and also make them
electronically available to the public. The Army may share reading room
facilities with DoD Components if the public is not unduly
inconvenienced, and also may establish decentralized reading rooms.
When appropriate, the cost of copying may be imposed on the person
requesting the material in accordance with the provisions of subpart F
of this part. The Army FOIA Public Reading Room is operated by the DA,
FOIA/PA Office.
(b) Record availability. The FOIA requires that records described
in 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) created on or after
November 1, 1996, shall be made available electronically, as well as in
hard copy in the FOIA reading room for inspection and copying, unless
such records are published and copies are offered for sale. All
portions determined to be exempt in accordance with 5 U.S.C. 552
(reference (a)) shall be deleted from all 5 U.S.C. 552(a)(2) records
made available to the general public. In every case, justification for
the deletion must be fully explained in writing, and the extent of such
deletion shall be indicated on the record that is made publicly
available, unless such indication would harm an interest protected by
an exemption under which the deletion was made. If technically
feasible, the extent of the deletion in electronic records or any other
form of record shall be indicated at the place in the record where the
deletion was made. However, the Army may publish in the Federal
Register a description of the basis upon which it will delete
identifying details of particular types of records to avoid clearly
unwarranted invasions of privacy, or competitive harm to business
submitters. In appropriate cases, the Army may refer to this
description rather than write a separate justification for each
deletion. 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) records are:
(1) (a)(2)(A) records. Final opinions, including concurring and
dissenting opinions, and orders made in the adjudication of cases, as
defined in 5 U.S.C. 551, that may be cited, used, or relied upon as
precedents in future adjudications;
(2) (a)(2)(B) records. Statements of policy and interpretations
that have been adopted by the agency that are not published in the
Federal Register; and
(3) (a)(2)(C) records. Administrative staff manuals and
instructions, or portions thereof that establish Army policy or
interpretations of policy that affect a member of the public. This
provision does not apply to instructions for employees on tactics and
techniques to be used in performing their duties, or to instructions
relating only to the internal management of the Army. Examples of
manuals and instructions not normally made available are:
(i) Those issued for audit, investigation, and inspection purposes,
or those that prescribe operational tactics, standards of performance,
or criteria for defense, prosecution, or settlement of cases; and
(ii) Operations and maintenance manuals and technical information
concerning munitions, equipment, systems, and intelligence activities.
(4) (a)(2)(D) records. Those 5 U.S.C. 552(a)(3) records, which
because of the nature of the subject matter, have become or are likely
to become the subject of subsequent requests for substantially the same
records. These records are referred to as FOIA-processed (a)(2)
records.
(i) Army Activities shall decide on a case by case basis whether
records fall into this category, based on previous experience of the
Army Activity with similar records; particular circumstances of the
records involved, including their nature and the type of information
contained in them; or the identity and number of requesters and whether
there is widespread press, historic, or commercial interest in the
records.
(ii) This provision is intended for situations where public access
in a timely manner is important, and it is not intended to apply where
there may be a limited number of requests over a short period of time
from a few requesters. Army Activities may remove the records from this
access medium when the appropriate officials determine that access is
no longer necessary.
(iii) Should a requester submit a FOIA request for FOIA-processed
(a)(2) records, and insist that the request be processed, Army
Activities shall process the FOIA request. However, Army Activities
have no obligation to process a FOIA request for 5 U.S.C. 552(a)(2)(A),
(B), and (C) records because these records are required to be made
public and not FOIA-processed under paragraph (a)(3) of the FOIA.
Sec. 518.10 ``(a)(2)'' Materials.
(a) The DA FOIA/PA Office shall maintain in the facility an index
of materials described in paragraphs (b)(1) through (4) of Sec. 518.9,
that are issued, adopted, or promulgated after July 4, 1967. No
``(a)(2)'' materials issued, promulgated, or adopted after July 4, 1967
that are not indexed and either made available or published may be
relied upon, used or cited as precedent against any individual unless
such individual has actual and timely notice of the contents of such
materials. Such materials issued, promulgated, or adopted before July
4, 1967 need not be indexed, but must be made available upon request if
not exempted under this part.
(b) The DA FOIA/PA Office shall promptly publish quarterly or more
frequently, and distribute, by sale or otherwise, copies of each index
of ``(a)(2)'' materials or supplements thereto unless it publishes in
the Federal Register an order containing a determination that
publication is unnecessary and impracticable. A copy of each index or
supplement not published shall be provided to a requester at a cost not
to exceed the direct cost of duplication as set forth in subpart F of
this part.
(c) Each index of ``(a)(2)'' materials or supplement thereto shall
be arranged topically or by descriptive words rather than by case name
or numbering system so that members of the public can readily locate
material. Case name and numbering arrangements, however, may also be
included for Army convenience.
(d) A general index of FOIA-processed (a)(2) records shall be made
available to the public, both in hard copy and electronically.
Sec. 518.11 Other materials.
(a) Any available index of Army material published in the Federal
Register, such as material required to be published by section
552(a)(1) of the FOIA, shall be made available in the Army FOIA Public
Reading Room, and electronically to the public.
(b) Although not required to be made available in response to FOIA
requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials
shall, when feasible, be made available to the public in FOIA reading
rooms for inspection and copying, and by electronic means. Examples of
``(a)(1)'' materials are descriptions of an agency's central and field
organization, and to the extent they affect the public, rules of
procedures, descriptions of forms available, instruction as to the
scope and contents of papers, reports, or examinations, and any
amendment, revision, or report of the aforementioned.
Subpart C--Exemptions
Sec. 518.12 General.
Records that meet the exemption criteria of the FOIA may be
withheld from public disclosure and need not be published in the
Federal Register, made available in a library reading room, or provided
in response to a FOIA request.
[[Page 9230]]
Sec. 518.13 FOIA exemptions.
The following types of records may be withheld in whole or in part
from public disclosure under the FOIA, unless otherwise prescribed by
law. A discretionary release of a record to one requester shall prevent
the withholding of the same record under a FOIA exemption if the record
is subsequently requested by someone else. However, a FOIA exemption
may be invoked to withhold information that is similar or related to
that which has been the subject of a discretionary release. In applying
exemptions, the identity of the requester and the purpose for which the
record is sought are irrelevant with the exception that an exemption
may not be invoked where the particular interest to be protected is the
requester's interest. However, if the subject of the record is the
requester for the record and the record is contained in a PA system of
records, it may only be denied to the requester if withholding is both
authorized by AR 25-71 and by a FOIA exemption.
(a) Number 1 (5 U.S.C. 552 (b)(1)). Those properly and currently
classified in the interest of national defense or foreign policy, as
specifically authorized under the criteria established by Executive
Order and implemented by regulations, such as DoD 5200.1-R. Although
material is not classified at the time of the FOIA request, a
classification review may be undertaken to determine whether the
information should be classified. The procedures in DoD 5200.1-R apply.
If the information qualifies as exemption 1 information, there is no
discretion regarding its release. In addition, this exemption shall be
invoked when the following situations are apparent:
(1) The fact of the existence or nonexistence of a record would
itself reveal classified information. In this situation, Army
Activities shall neither confirm nor deny the existence or nonexistence
of the record being requested. A ``refusal to confirm or deny''
response must be used consistently, not only when a record exists, but
also when a record does not exist. Otherwise, the pattern of using a
``no record'' response when a record does not exist, and a ``refusal to
confirm or deny'' when a record does exist will itself disclose
national security information.
(2) Compilations of items of information that are individually
unclassified may be classified if the compiled information reveals
additional association or relationship that meets the standard for
classification under an existing executive order for classification and
DoD 5200.1-R, and is not otherwise revealed in the individual items of
information.
(b) Number 2 (5 U.S.C. 552(b)(2)). Those related solely to the
internal personnel rules and practices of the DoD or any of its
Components. This exemption has two profiles, high (b)(2) and low
(b)(2). Activities are encouraged to consult the DA, FOIA/PA Office,
and the U.S. DoJ ``Freedom of Information Act Guide & Privacy Act
Overview'' for a more in depth discussion on the legal history of the
use of the low (b)(2) exemption. When only a minimal Government
interest would be affected (administrative burden), Army Activities
shall apply the sound legal basis standard regarding disclosure of the
information. Army Activities shall apply the low 2 exemption as
applicable.
(1) Records qualifying under high (b)(2) are those containing or
constituting statutes, rules, regulations, orders, manuals, directives,
instructions, security classification guides, and sensitive but
unclassified information related to America's homeland security and
critical infrastructure information the release of which would allow
circumvention of these records thereby substantially hindering the
effective performance or present an unwarranted risk of adverse impact
on the ability of other agencies to protect other important records of
a significant function of the DA. Examples include:
(i) Those operating rules, guidelines, and manuals for Army
investigators, inspectors, auditors, or examiners that must remain
privileged in order for the Army Activity to fulfill a legal
requirement;
(ii) Personnel and other administrative matters, such as
examination questions and answers used in training courses or in the
determination of the qualifications of candidates for employment,
entrance on duty, advancement, or promotion; and
(iii) Computer software, the release of which would allow
circumvention of a statute, DoD or Army rules, regulations, orders,
manuals, directives, or instructions. In this situation, the use of the
software must be closely examined to ensure a circumvention possibility
exists.
(2) Records qualifying under the low (b)(2) profile are those that
are trivial and housekeeping in nature for which there is no legitimate
public interest or benefit to be gained by release, and it would
constitute an administrative burden to process the request in order to
disclose the records. Examples include rules of personnel's use of
parking facilities or regulation of lunch hours, statements of policy
as to sick leave, and administrative data such as file numbers, mail
routing stamps, initials, data processing notations, brief references
to previous communications, and other like administrative markings.
Army Activities shall apply the low 2 exemption as applicable.
(c) Number 3 (5 U.S.C. 552(b)(3)). Those concerning matters that a
statute specifically exempts from disclosure by terms that permit no
discretion on the issue, or in accordance with criteria established by
that statute for withholding or referring to particular types of
matters to be withheld. The DA, FOIA/PA Office, maintains a list of
(b)(3) statutes used within the DoD, and provides updated lists of
these statutes to Army Activities on a periodic basis. A few examples
of such statutes are:
(1) Personnel in Overseas, Sensitive, or Routinely Deployable
Units: nondisclosure of personally identifying information, 10 U.S.C.
130(b). Additionally, the names and duty addresses (postal and/or e-
mail) of Army military and civilian personnel who are assigned to units
that are sensitive, routinely deployable, or stationed in foreign
territories can constitute a clearly unwarranted invasion of personal
privacy and may also be withheld in accordance with FOIA Exemption 3.
Names and duty addresses (postal and/or e-mail) published in telephone
directories, organizational charts, rosters and similar materials for
personnel assigned to units that are sensitive, routinely deployable,
or stationed in foreign territories are withholdable under this
exemption, in accordance with 10 U.S.C. 130 `Personnel in Overseas,
Sensitive, or Routinely Deployable Units';
(2) Classification and Declassification of Restricted Data, 42
U.S.C. 2162;
(3) Disclosure of Classified Information, 18 U.S.C. 798(a);
(4) Authority to Withhold from Public Disclosure Certain Technical
Data, 10 U.S.C. 130 and DoDD 5230.25;
(5) Confidentiality of Medical Quality Assurance Records: Qualified
Immunity for Participants, 10 U.S.C. 1102(f);
(6) Physical Protection of Special Nuclear Material: Limitation on
Dissemination of Unclassified Information, 10 U.S.C. 128;
(7) Protection of Intelligence Sources and Methods, 50 U.S.C. 403-
3(c)(6);
(8) Prohibition on Release of Contractor Submitted Proposals, 10
U.S.C. 2305(g);
(9) Restrictions on Disclosing and Obtaining Contractor Bid or
Proposal Information or Source Selection Information, 41 U.S.C. 423;
and
[[Page 9231]]
(10) Secrecy of Certain Inventions and Filing Applications in a
Foreign Country, 35 U.S.C. 181-188. Any records containing information
relating to inventions that are the subject of patent applications on
which Patent Secrecy Orders have been issued.
(d) Number 4 (5 U.S.C. 552(b)(4)). Those containing trade secrets
or commercial or financial information that an Army Activity receives
from a person or organization outside the Government with the
understanding that the information or record will be retained on a
privileged or confidential basis in accordance with the customary
handling of such records. Records within the exemption must contain
trade secrets, or commercial or financial records, the disclosure of
which is likely to cause substantial harm to the competitive position
of the source providing the information, impair the Government's
ability to obtain necessary information in the future, or impair some
other legitimate Government interest. Commercial or financial
information submitted on a voluntary basis, absent any exercised
authority prescribing criteria for submission is protected without any
requirement to show competitive harm. If the information qualifies as
exemption 4 information, there is no discretion in its release.
Examples include:
(1) Commercial or financial information received in confidence in
connection with loans, bids, contracts, or proposals set forth in or
incorporated by reference in a contract entered into between the Army
Activity and the offeror that submitted the proposal, as well as other
information received in confidence or privileged, such as trade
secrets, inventions, discoveries, or other proprietary data.
Additionally, when the provisions of 10 U.S.C. 2305(g) and 41 U.S.C.
423 are met, certain proprietary and source selection information may
be withheld under exemption 3;
(2) Statistical data and commercial or financial information
concerning contract performance, income, profits, losses, and
expenditures, if offered and received in confidence from a contractor
or potential contractor;
(3) Personal statements given in the course of inspections,
investigations, or audits, when such statements are received in
confidence from the individual and retained in confidence because they
reveal trade secrets or commercial or financial information normally
considered confidential or privileged;
(4) Financial data provided in confidence by private employers in
connection with locality wage surveys that are used to fix and adjust
pay schedules applicable to the prevailing wage rate of employees
within the DA;
(5) Scientific and manufacturing processes or developments
concerning technical or scientific data or other information submitted
with an application for a research grant, or with a report while
research is in progress;
(6) Technical or scientific data developed by a contractor or
subcontractor exclusively at private expense, and technical or
scientific data developed in part with Federal funds and in part at
private expense, wherein the contractor or subcontractor has retained
legitimate proprietary interests in such data in accordance with 10
U.S.C. 2320-2311 and DoD Federal Acquisition Regulation Supplement
(DFARS), subpart 27.4. Technical data developed exclusively with
Federal funds may be withheld under Exemption Number 3 if it meets the
criteria of 10 U.S.C. 130 and DoDD 5230.25;
(7) Computer software, which is copyrighted in accordance with 17
U.S.C. 106, `Exclusive rights in Copyrighted Works, the disclosure of
which would have an adverse impact on the potential market value of a
copyrighted work; and
(8) Proprietary information submitted strictly on a voluntary
basis, absent any exercised authority prescribing criteria for
submission. Examples of exercised authorities prescribing criteria for
submission are statutes, Executive Orders, regulations, invitations for
bids, requests for proposals, and contracts. Submission of information
under these authorities is not voluntary.
(e) Number 5 (5 U.S.C. 552(b)(5)). Those containing information
considered privileged in litigation, primarily under the deliberative
process privilege. Except as provided in paragraphs (e)(1) through (5)
of this section, internal advice, recommendations, and subjective
evaluations, as contrasted with factual matters that are reflected in
deliberative records pertaining to the decision-making process of an
agency, whether within or among agencies (as defined in 5 U.S.C.
552(e)), or within or among Army Activities. In order to meet the test
of this exemption, the record must be both deliberative in nature, as
well as part of a decision-making process. Merely being an internal
record is insufficient basis for withholding under this exemption. Also
potentially exempted are records pertaining to the attorney-client
privilege and the attorney work-product privilege. Discretionary
disclosure decisions should be made only after full and deliberate
consideration of the institutional, commercial, and personal privacy
interests that could be implicated by disclosure of the information.
(1) Examples of the deliberative process include:
(i) The non-factual portions of staff papers, to include after-
action reports, lessons learned, and situation reports containing staff
evaluations, advice, opinions, or suggestions;
(ii) Advice, suggestions, or evaluations prepared on behalf of the
DA by individual consultants or by boards, committees, councils,
groups, panels, conferences, commissions, task forces, or other similar
groups that are formed for the purpose of obtaining advice and
recommendations;
(iii) Those non-factual portions of evaluations by DoD Component
personnel of contractors and their products;
(iv) Information of a speculative, tentative, or evaluative nature
or such matters as proposed plans to procure, lease or otherwise
acquire and dispose of materials, real estate, facilities or functions,
when such information would provide undue or unfair competitive
advantage to private personal interests or would impede legitimate
government functions;
(v) Trade secret or other confidential research development, or
commercial information owned by the Government, where premature release
is likely to affect the Government's negotiating position or other
commercial interest;
(vi) Those portions of official reports of inspection, reports of
the Inspector Generals, audits, investigations, or surveys pertaining
to safety, security, or the internal management, administration, or
operation of one or more Army Activities, when these records have
traditionally been treated by the courts as privileged against
disclosure in litigation; and
(vii) Planning, programming, and budgetary information that is
involved in the defense planning and resource allocation process.
(2) If any such intra- or inter-agency record or reasonably
segregable portion of such record hypothetically would be made
available routinely through the discovery process in the course of
litigation with the Army, then it should not be withheld under the
FOIA. If, however, the information hypothetically would not be released
at all, or would only be released in a particular case during civil
discovery where a party's particularized showing of need might override
a privilege, then the record may be withheld. Discovery is the formal
process by which litigants obtain information from each other for use
in
[[Page 9232]]
the litigation. Consult with legal counsel to determine whether
exemption 5 material would be routinely made available through the
discovery process.
(3) Intra- or inter-agency memoranda or letters that are factual,
or those reasonably segregable portions that are factual, are routinely
made available through discovery, and shall be made available to a
requester, unless the factual material is otherwise exempt from
release, inextricably intertwined with the exempt information, so
fragmented as to be uninformative, or so redundant of information
already available to the requester as to provide no new substantive
information.
(4) A direction or order from a superior to a subordinate, though
contained in an internal communication, generally cannot be withheld
from a requester if it constitutes policy guidance or a decision, as
distinguished from a discussion of preliminary matters or a request for
information or advice that would compromise the decision-making
process.
(5) An internal communication concerning a decision that
subsequently has been made a matter of public record must be made
available to a requester when the rationale for the decision is
expressly adopted or incorporated by reference in the record containing
the decision.
(f) Number 6 (5 U.S.C. 552(b)(6)). Information in personnel and
medical files, as well as similar personal information in other files,
and lists of personally identifying information of Army personnel,
that, if disclosed to a requester, other than the person about whom the
information is about, would result in a clearly unwarranted invasion of
personal privacy. Release of information about an individual contained
in a Privacy Act System of Records that would constitute a clearly
unwarranted invasion of privacy is prohibited, and could subject the
releaser to civil and criminal penalties. If the information qualifies
as exemption 6 information, there is no discretion regarding its
release.
(1) Examples of other files containing personal information similar
to that contained in personnel and medical files include:
(i) Those compiled to evaluate or adjudicate the suitability of
candidates for civilian employment or membership in the Armed Forces,
and the eligibility of individuals (civilian, military, or contractor
employees) for security clearances, or for access to particularly
sensitive classified information; and
(ii) Files containing reports, records, and other material
pertaining to personnel matters in which administrative action,
including disciplinary action, may be taken.
(2) Army components shall ordinarily withhold lists of names
(including active duty military, civilian employees, contractors,
members of the National Guard and Reserves, and military dependents)
and other personally identifying information, including lists of e-mail
addresses of personnel currently or recently assigned within a
particular component, unit, organization, or office within the Army.
Home addresses, including private e-mail addresses, are normally not
releasable without the consent of the individuals concerned. This
includes lists of home addresses and military quarters' addressees
without the occupant's name.
(i) Privacy Interest. A privacy interest may exist in personal
information even though the information has been disclosed at some
place and time. If personal information is not freely available from
sources other than the Federal Government, a privacy interest exists in
its nondisclosure. The fact that the Federal Government expended funds
to prepare, index and maintain records on personal information, and the
fact that a requester invokes FOIA to obtain these records indicates
the information is not freely available.
(ii) The right to privacy of deceased persons is not entirely
settled, but the majority rule is that death extinguishes their privacy
rights. However, particularly sensitive, graphic, personal details
about the circumstances surrounding an individual's death may be
withheld when necessary to protect the privacy interests of surviving
family members. Even information that is not particularly sensitive in
and of itself may be withheld to protect the privacy interests of
surviving family members if disclosure would rekindle grief, anguish,
pain, embarrassment, or cause a disruption of their peace of minds.
Additionally, the deceased's social security number should be withheld
since it is used by the next of kin to receive benefits. Disclosures of
the deceased's social security number may be made to the immediate next
of kin.
(iii) A clearly unwarranted invasion of the privacy of third
parties identified in a personnel, medical or similar record
constitutes a basis for deleting those reasonably segregable portions
of that record. When withholding third party personal information from
the subject of the record and the record is contained in a Privacy Act
system of records, consult with legal counsel.
(iv) This exemption also applies when the fact of the existence or
nonexistence of a responsive record would itself reveal personally
private information, and the public interest in disclosure is not
sufficient to outweigh the privacy interest. In this situation, Army
Activities shall neither confirm nor deny the existence or nonexistence
of the record being requested. This is a ``Glomar'' response, and
exemption 6 must be cited in the response. Additionally, in order to
ensure personal privacy is not violated during referrals, Army
Activities shall coordinate telephonically or in person with other Army
Activities or DoD Components or Federal Agencies before referring a
record that is exempt under the ``Glomar'' concept. See Phillippi v.
CIA, 546 F.2d 1009 (DC Cir. 1976).
(v) A ``refusal to confirm or deny'' response must be used
consistently, not only when a record exists, but also when a record
does not exist. Otherwise, the pattern of using a ``no records''
response when a record does not exist and a ``refusal to confirm or
deny'' when a record does exist will itself disclose personally private
information. Refusal to confirm or deny should not be used when:
(A) The person whose personal privacy is in jeopardy has provided
the requester a waiver of his or her privacy rights;
(B) The person initiated or directly participated in an
investigation that lead to the creation of an agency record seeks
access to that record; or
(C) The person whose personal privacy is in jeopardy is deceased,
the Agency is aware of that fact, and disclosure would not invade the
privacy of the deceased's family.
(g) Number 7 (5 U.S.C. 552(b)(7)). Records or information compiled
for law enforcement purposes, i.e., civil, criminal, or military,
including the implementation of Executive Orders or regulations issued
pursuant to law. This exemption may be invoked to prevent disclosure of
documents not originally created for, but later gathered for law
enforcement purposes. With the exception of parts (C) and (F), this
exemption is discretionary. If information qualifies as exemption
(7)(C) or (7)(F) information, there is no discretion in its release.
(1) This exemption applies, however, only to the extent that
production of such law enforcement records or information could result
in the following:
(i) Could reasonably be expected to interfere with law enforcement
proceedings (5 U.S.C. 552(b)(7)(A));
(ii) Would deprive a person of the right to a fair trial or to an
impartial adjudication (5 U.S.C. 552(b)(7)(B));
[[Page 9233]]
(iii) Could reasonably be expected to constitute an unwarranted
invasion of the personal privacy of a living person, or to surviving
family members of an individual identified in such a record (5 U.S.C.
552(b)(7)(C));
(iv) This exemption also applies when the fact of the existence or
nonexistence of a responsive record would itself reveal personally
private information, and the public interest in disclosure is not
sufficient to outweigh the privacy interest. In this situation,
Activities shall neither confirm nor deny the existence or nonexistence
of the record being requested. This is a ``Glomar'' response, and
exemption (7)(C) must be cited in the response. Additionally, in order
to ensure personal privacy is not violated during referrals, Army
Activities shall coordinate with other Army Activities or DoD
Components or Federal Agencies before referring a record that is exempt
under the ``Glomar'' concept;
(v) A ``refusal to confirm or deny'' response must be used
consistently, not only when a record exists, but also when a record
does not exist. Otherwise, the pattern of using a ``no records''
response when a record does not exist and a ``refusal to confirm or
deny'' when a record does exist will itself disclose personally private
information;
(vi) Refusal to confirm or deny should not be used when the person
whose personal privacy is in jeopardy has provided the requester with a
waiver of his or her privacy rights; or the person whose personal
privacy is in jeopardy is deceased, and the Agency is aware of that
fact and disclosure would not invade the privacy of the deceased's
family;
(vii) Could reasonably be expected to disclose the identity of a
confidential source, including a source within DoD, a State, local, or
foreign agency or authority, or any private institution that furnishes
the information on a confidential basis; and could disclose information
furnished from a confidential source and obtained by a criminal law
enforcement authority in a criminal investigation or by an agency
conducting a lawful national security intelligence investigation (5
U.S.C. 552(b)(7)(D));
(viii) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law (5 U.S.C.
552(b)(7)(E)); or
(ix) Could reasonably be expected to endanger the life or physical
safety of any individual (5 U.S.C. 552(b)(7)(F)).
(2) Some examples of exemption 7 are:
(i) Statements of witnesses and other material developed during the
course of the investigation and all materials prepared in connection
with related Government litigation or adjudicative proceedings;
(ii) The identity of firms or individuals being investigated for
alleged irregularities involving contracting with the DoD when no
indictment has been obtained or any civil action filed against them by
the United States; and
(iii) Information obtained in confidence, expressed or implied, in
the course of a criminal investigation by a criminal law enforcement
agency or office within an Army Activity or a DoD Component, or a
lawful national security intelligence investigation conducted by an
authorized agency or office within an Army Activity or a DoD Component.
National security intelligence investigations include background
security investigations and those investigations conducted for the
purpose of obtaining affirmative or counterintelligence information.
(3) The right of individual litigants to investigative records
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500),
is not diminished.
(4) Excluded from exemption 7 are two situations applicable to DoD.
(Activities considering invoking an exclusion based on the following
scenarios should first consult through legal counsel, to the DoJ,
Office of Information and Privacy (DoJ OIP).
(i) Whenever a request is made that involves access to records or
information compiled for law enforcement purposes, and the
investigation or proceeding involves a possible violation of criminal
law where there is reason to believe that the subject of the
investigation or proceeding is unaware of its pendency, and the
disclosure of the existence of the records could reasonably be expected
to interfere with enforcement proceedings, Activities may, during only
such times as that circumstance continues, treat the records or
information as not subject to the FOIA. In such a situation, the
response to the requester will state that no records were found.
(ii) Whenever informant records maintained by a criminal law
enforcement organization within an Army Activity or a DoD Component
under the informant's name or personal identifier are requested by a
third party using the informant's name or personal identifier, the
Activity may treat the records as not subject to the FOIA, unless the
informant's status as an informant has been officially confirmed. If it
is determined that the records are not subject to 5 U.S.C. 552(b)(7),
the response to the requester will state that no records were found.
(h) Number 8 (5 U.S.C. 552 (b)(8)). Those contained in or related
to examination, operation or condition reports prepared by, on behalf
of, or for the use of any agency responsible for the regulation or
supervision of financial institutions.
(i) Number 9 (5 U.S.C. 552 (b)(9)). Those containing geological and
geophysical information and data (including maps) concerning wells.
Subpart D--For Official Use Only
Sec. 518.14 General.
Information that has not been given a security classification
pursuant to the criteria of an Executive Order, but which may be
withheld from the public because disclosure would cause harm to an
interest protected by one or more FOIA exemptions 2 through 9 (see
Subpart C of this part) shall be considered as being for official use
only (FOUO). No other material shall be considered FOUO and FOUO is not
authorized as an additional form of classification to protect national
security interests. Additional information on FOUO and other
controlled, unclassified information may be found in DoD 5200.1-R,
``Information Security Program'' or by contacting the DA FOIA/PA
Office.
Subpart E--Release and Processing Procedures
Sec. 518.15 General provisions.
(a) Since the policy of the DoD is to make the maximum amount of
information available to the public consistent with its other
responsibilities, written requests for an Army record made under the
provisions of 5 U.S.C. 552 (a)(3) of the FOIA may be denied only when:
(1) The record is subject to one or more of the exemptions of the
FOIA;
(2) The record has not been described well enough to enable the
Army Activity to locate it with a reasonable amount of effort by an
employee familiar with the files; or
(3) The requester has failed to comply with the procedural
requirements, including the written agreement to pay or payment of any
required fee imposed by the instructions of the Army Activity
concerned. When personally identifiable information in a record is
[[Page 9234]]
requested by the subject of the record or his attorney, notarization of
the request, or a statement certifying under the penalty of perjury
that their identity is true and correct may be required. Additionally,
written consent of the subject of the record is required for disclosure
from a PA system of records, to include the subject's attorney.
(4) Release of information under the FOIA can have an adverse
impact on OPSEC. The Army implementing directive for OPSEC is AR 530-1.
It requires that OPSEC points of contact be named for all HQDA staff
agencies and for all commands down to battalion level. The FOIA
official for the staff agency or command will use DA Form 4948-R to
announce the OPSEC/FOIA advisor for the command. Persons named as OPSEC
points of contact will be OPSEC/FOIA advisors. Command OPSEC/FOIA
advisors should implement the policies and procedures in AR 530-1,
consistent with this part and with the following considerations:
(i) Documents or parts of documents properly classified in the
interest of national security must be protected. Classified documents
may be released in response to a FOIA request only under AR 380-5,
Chapter III. AR 380-5 provides that if parts of a document are not
classified and can be segregated with reasonable ease, they may be
released, but parts requiring continued protection must be clearly
identified.
(ii) The release of unclassified documents could violate national
security. When this appears possible, OPSEC/FOIA advisors should
request a classification evaluation of the document by its proponent
under AR 380-5, paragraphs 2-204, 2-600, 2-800, and 2-801. In such
cases, other FOIA exemptions may also apply.
(iii) A combination of unclassified documents, or parts of them,
could combine to supply information that might violate national
security if released. When this appears possible, OPSEC/FOIA advisors
should consider classifying the combined information per AR 380-5,
paragraph 2-211.
(iv) A document or information may not be properly or currently
classified when a FOIA request for it is received. In this case, the
request may not be denied on the grounds that the document or
information is classified except in accordance with Executive Order
12958 as amended, section 1.6(d), and AR 380-5, paragraph 2-204, and
with approval of the Army OGC.
(5) OPSEC/FOIA advisors will; advise persons processing FOIA
requests on related OPSEC requirements; help custodians of requested
documents prepare requests for classification evaluations; and help
custodians of requested documents identify the parts of documents that
must remain classified under this section and AR 380-5.
(6) OPSEC/FOIA advisors do not, by their actions, relieve FOIA
personnel and custodians processing FOIA requests of their
responsibility to protect classified or exempted information.
(b) The provisions of the FOIA are reserved for persons with
private interests as opposed to U.S. Federal Agencies seeking official
information. Requests from private persons will be made in writing, and
should clearly show all other addressees within the Federal Government
to which the request was also sent. This procedure will reduce
processing time requirements, and ensure better inter- and intra-agency
coordination. However, if the requester does not show all other
addressees to which the request was also sent, Army Activities shall
still process the request. Army Activities should encourage requesters
to send requests by mail, facsimile, or by electronic means. Disclosure
of records to individuals under the FOIA is considered public release
of information, except as provided in this paragraph. DA officials will
release the following records, upon request, to the persons specified
below, even though these records are exempt from release to the general
public. The statutory 20 working day limit applies.
(1) Medical records. Commanders or chiefs of medical treatment
facilities will release information:
(i) On the condition of sick or injured patients to the patient's
relatives to the extent permitted by law and regulation.
(ii) That a patient's condition has become critical to the nearest
known relative or to the person the patient has named to be informed in
an emergency.
(iii) That a diagnosis of psychosis has been made to the nearest
known relative or to the person named by the patient.
(iv) On births, deaths, and cases of communicable diseases to local
officials (if required by local laws).
(v) Copies of records of present or former soldiers, dependents,
civilian employees, or patients in DA medical facilities will be
released to the patient or to the patient's representative on written
request. The attending physician can withhold records if he or she
thinks that release may injure the patient's mental or physical health;
in that case, copies of records will be released to the patient's next
of kin or legal representative or to the doctor or dentist chosen by
the patient. If the patient is adjudged insane, or dies, the copies
will be released, on written request, to the patient's next of kin or
legal representative.
(vi) Copies of records may be given to a Federal or State hospital
or penal institution if the person concerned is an inmate or patient
there.
(vii) Copies of records or information from them may be given to
authorized representatives of certain agencies. The National Academy of
Sciences, the National Research Council, and other accredited agencies
are eligible to receive such information when they are engaged in
cooperative studies, with the approval of The Surgeon General of the
Army. However, certain information on drug and alcohol use cannot be
released. AR 600-85 covers the Army's substance abuse program.
(viii) Copies of pertinent parts of a patient's records can be
furnished to the staff judge advocate or legal officer of the command
in connection with the Government's collection of a claim. If proper,
the legal officer can release this information to the tortfeasor's
insurer without the patient's consent.
Note: Information released to third parties must be accompanied
by a statement of the conditions of release. The statement will
specify that the information not be disclosed to other persons
except as privileged communication between doctor and patient.
(2) Military personnel records. Military personnel records will be
released under these conditions:
(i) DA must provide specific information about a person's military
service (statement of military service) in response to a request by
that person or with that person's written consent to his or her legal
representative;
(ii) Papers relating to applications for, designation of
beneficiaries under, and allotments to pay premiums for, National
Service Life Insurance or Serviceman's Group Life Insurance will be
released to the applicant or to the insured. If the insured is adjudged
insane (evidence of an insanity judgment must be included) or dies, the
records will be released, on request, to designated beneficiaries or to
the next of kin;
(iii) Copies of DA documents that record the death of a soldier, a
dependent, or a civilian employee will be released, on request, to that
person's next of kin, life insurance carrier, and legal representative.
A person acting on behalf of someone else concerned with the death
(e.g., the executor of a will) may also obtain copies by submitting a
written request that includes evidence of his or her representative
capacity. That representative may give written consent for release to
others; or
(iv) Papers relating to the pay and allowances or allotments of a
present or
[[Page 9235]]
former soldier will be released to the soldier or his or her authorized
representative. If the soldier is deceased, these papers will be
released to the next of kin or legal representatives.
(3) Civilian personnel records. Civilian Personnel Officers (CPO)
with custody of papers relating to the pay and allowances or allotments
of current or former civilian employees will release them to the
employee or his or her authorized representative. If the employee is
deceased, these records will be released to the next of kin or legal
representative. However, a CPO cannot release statements of witnesses,
medical records, or other reports or documents pertaining to
compensation for injuries or death of a DA civilian employee.
(4) Accused persons. Release of information to the public
concerning accused persons before determination of the case. Such
release may prejudice the accused's opportunity for a fair and
impartial determination of the case. The following procedures apply:
(i) The following information concerning persons accused of an
offense may be released by the convening authority to public news
agencies or media. The accused's name, grade or rank, unit, regular
assigned duties, and other information as allowed by AR 25-71,
paragraph 3-3a. The substance or text of the offense of which the
person is accused. The identity of the apprehending or investigating
agency and the length or scope of the investigation before
apprehension. The factual circumstances immediately surrounding the
apprehension, including the time and place of apprehension, resistance,
or pursuit. The type and place of custody, if any;
(ii) Information that will not be released. Before evidence has
been presented in open court, subjective observations or any
information not incontrovertibly factual will not be released.
Background information or information relating to the circumstances of
an apprehension may be prejudicial to the best interests of the
accused, and will not be released unless it serves a law enforcement
function. The following kinds of information will not be released:
Observations or comments on an accused's character and demeanor,
including those at the time of apprehension and arrest or during
pretrial custody. Statements, admissions, confessions, or alibis
attributable to an accused, or the fact of refusal or failure of the
accused to make a statement. Reference to confidential sources,
investigative techniques and procedures, investigator notes, and
activity files. This includes reference to fingerprint tests, polygraph
examinations, blood tests, firearms identification tests, or similar
laboratory tests or examinations. Statements as to the identity,
credibility, or testimony of prospective witnesses. Statements
concerning evidence or argument in the case, whether or not that
evidence or argument may be used at the trial. Any opinion on the
accused's guilt. Any opinion on the possibility of a plea of guilty to
the offense charged, or of a plea to a lesser offense;
(iii) Other considerations. Photographing or televising the
accused. DA personnel should not encourage or volunteer assistance to
news media in photographing or televising an accused or suspected
person being held or transported in military custody. DA
representatives should not make photographs of an accused or suspect
available unless a law enforcement function is served. Requests from
news media to take photographs during courts-martial are governed by AR
360-1;
(iv) Fugitives from justice. This section does not restrict the
release of information to enlist public aid in apprehending a fugitive
from justice; or
(v) Exceptional cases. Permission to release information from
military personnel records to public news agencies or media may be
requested from The Judge Advocate General (TJAG). Requests for
information from military personnel records will be processed according
to this part.
(5) Litigation, tort claims, and contract disputes. Release of
information or records under this section are subject to the time
limitations prescribed by the FOIA. The requester must be advised of
the reasons for nonrelease or referral.
(i) Litigation. Each request for a record related to pending
litigation involving the United States will be referred to the staff
judge advocate or legal officer of the command. He or she will promptly
inform the Litigation Division, U.S. Army Legal Services Agency
(USALSA), of the substance of the request and the content of the record
requested. (Mailing address: U.S. Army Litigation Center, 901 N. Stuart
Street, Arlington, VA 22203-1837. If information is released for use in
litigation involving the United States, the Chief, Army Litigation
Division (AR 27-40, para 1-4d) must be advised of the release. He or
she will note the release in such investigative reports. Information or
records normally exempted from release (i.e., personnel and medical
records) may be releasable to the judge or court concerned, for use in
litigation to which the United States is not a party. Refer such
requests to the local staff judge advocate or legal officer, who will
coordinate it with the Litigation Center, USALSA.
(ii) Tort claims. A claimant or a claimant's attorney may request a
record that relates to a pending administrative tort claim filed
against the DA. Refer such requests promptly to the claims approving or
settlement authority that has monetary jurisdiction over the pending
claim. These authorities will follow AR 27-20. The request may concern
an incident in which the pending claim is not as large as a potential
claim; in such a case, refer the request to the authority that has
monetary jurisdiction over the potential claim. A potential claimant or
his or her attorney may request information under circumstances clearly
indicating that it will be used to file a tort claim, though none has
yet been filed. Refer such requests to the staff judge advocate or
legal officer of the command. That authority, when subordinate, will
promptly inform the Chief, U.S. Army Claims Service (USACS), of the
substance of the request and the content of the record. (Mailing
address: U.S. Army Claims Service, ATTN: JACS-TCC, Fort George G.
Meade, MD 20755-5360. IDA officials who receive requests will refer
them directly to the Chief, USACS. They will also advise the requesters
of the referral and the basis for it. The Chief, USACS, will process
requests according to this part and AR 27-20, paragraph 1-10.
(iii) Contract disputes. Each request for a record that relates to
a potential contract dispute or a dispute that has not reached final
decision by the contracting officer will be treated as a request for
procurement records and not as litigation. However, the officials will
consider the effect of release on the potential dispute. Those
officials may consult with the USALSA, Contract Appeals Division.
(Mailing address: U.S. Army Legal Services Agency, ATTN: JALS-CA, 901
North Stuart Street, Arlington, VA 22203. If the request is for a
record that relates to a pending contract appeal to the Armed Services
Board of Contract Appeals, or to a final decision that is still subject
to appeal (i.e., 90 days have not lapsed after receipt of the final
decision by the contractor) then the request will be: Treated as
involving a contract dispute; and referred to the USALSA, Contract
Appeals Division.
(6) Special nuclear material. Dissemination of unclassified
information concerning physical protection of special nuclear material.
(i) Unauthorized dissemination of unclassified information
pertaining to security measures, including security
[[Page 9236]]
plans, procedures, and equipment for the physical protection of special
nuclear material, is prohibited under 10 U.S.C. 128.
(ii) This prohibition shall be applied by the Deputy Chief of
Staff, G-3 as the IDA, to prohibit the dissemination of any such
information only if and to the extent that it is determined that the
unauthorized dissemination of such information could reasonably be
expected to have a significant adverse effect on the health and safety
of the public or the common defense and security by significantly
increasing the likelihood of illegal production of nuclear weapons,
theft, diversion, or sabotage of special nuclear materials, equipment,
or facilities.
(iii) In making such a determination, Army personnel may consider
what the likelihood of an illegal production, theft, diversion, or
sabotage would be if the information proposed to be prohibited from
dissemination were at no time available for dissemination.
(iv) Army personnel shall exercise the foregoing authority to
prohibit the dissemination of any information described so as to apply
the minimum restrictions needed to protect the health and safety of the
public or the common defense and security, and upon a determination
that the unauthorized dissemination of such information could
reasonably be expected to result in a significant adverse effect on the
health and safety of the public or the common defense and security by
significantly increasing the likelihood of illegal production of
nuclear weapons, theft, diversion, or sabotage of special nuclear
materials, equipment, or facilities.
(v) Army employees shall not use this authority to withhold
information from the appropriate committees of Congress.
(7) Names and duty addresses. Lists of names, including telephone
directories, organizational charts, and/or staff directories published
by installations or activities, and other personally identifying
information will ordinarily be withheld when requested under the FOIA.
This does not preclude a discretionary release of names and duty
information of personnel who, by the nature of their position and
duties, frequently interact with the public, such as general officers,
public affairs officers, and other personnel designated as official
command spokespersons. The IDA for telephone directories is delegated
to the DA, FOIA/PA Office. Public Affairs Offices may, after careful
analysis, release information determined to have legitimate news value,
such as notices of personnel reassignments to new units or
installations within the continental United States, results of
selection/promotion boards, school graduations/completions, and awards
and similar personal achievements. They may release the names and duty
addresses of key officials, if such release is determined to be in the
interests of advancing official community relation's functions.
(c) Requests from government officials. Requests from officials of
State or local Governments for Army Activity records shall be
considered the same as any other requester. Requests from members of
Congress not seeking records on behalf of a Congressional Committee,
Subcommittee, either House sitting as a whole, or made on behalf of
their constituents shall be considered the same as any other requester.
Requests from officials of foreign governments shall be considered the
same as any other requester; however, Army Intelligence elements are
statutorily prohibited from releasing records responsive to requests
made by any foreign government or a representative of a foreign
government. Requests from officials of foreign governments that do not
invoke the FOIA shall be referred to appropriate foreign disclosure
channels and the requester so notified.
(d) Privileged release outside of the FOIA to U.S. government
officials. Records exempt from release to the public under the FOIA may
be disclosed in accordance with Army regulations to agencies of the
Federal Government, whether legislative, executive, or administrative,
as follows:
(1) In response to a request of a Committee or Subcommittee of
Congress, or to either House sitting as a whole in accordance with DoDD
5400.4. The Army implementing directive is AR 1-20. Commanders or
chiefs will notify the Chief of Legislative Liaison of all releases of
information to members of Congress or staffs of congressional
committees. Organizations that in the normal course of business are
required to provide information to Congress may be excepted. Handle
requests by members of Congress (or staffs of congressional committees)
for inspection of copies of official records as follows:
(i) National security classified records, follow AR 380-5;
(ii) Civilian personnel records, members of Congressional
Committees, Subcommittees, or Joint Committees may examine official
personnel folders to the extent that the subject matter falls within
their established jurisdictions, as permitted by 5 CFR 297.401(i);
(iii) Information related to disciplinary action. This paragraph
refers to records of trial by courts-martial; nonjudicial punishment of
military personnel under the Uniform Code of Military Justice, Article
15; nonpunitive measures such as administrative reprimands and
admonitions; suspensions of civilian employees; and similar documents.
If DA has specific instructions on the request, the following will
apply. Subordinate commanders will not release any information without
securing the consent of the proper installation commander. The
installation commander may release the information unless the request
is for a classified or ``FOUO'' document. In that case the commander
will refer the request promptly to the Chief of Legislative Liaison for
action, including the recommendations of the transmitting agency and
copies of the requested records with the referral.
(iv) Military personnel records. Only HQDA can release information
from these records. Custodians will refer all requests from Congress
directly and promptly to the Chief of Legislative Liaison, HQDA,
Washington DC 20310-1600.
(v) Criminal investigation records. Only the Commanding General,
U.S. Army Criminal Investigation Command (USACIDC), can release any
USACIDC-originated criminal investigation file. For further
information, see AR 195-2.
(vi) Other exempt records. Commanders or chiefs will refer requests
for all other categories of exempt information directly to the Chief of
Legislative Liaison. They will include a copy of the material requested
and, as appropriate, recommendations concerning release or denial.
(vii) All other records. The commander or chief with custody of the
records will furnish all other information promptly; to other Federal
Agencies, both executive and administrative, as determined by the head
of an Army Activity or designee; or in response to an order of a
Federal court, Army Activities shall release information along with a
description of the restrictions on its release to the public;
(viii) Disciplinary actions and criminal investigations. Requests
for access to, or information from, the records of disciplinary actions
or criminal investigations will be honored if proper credentials are
presented. Representatives of the Office of Personnel Management may be
given information from personnel files of employees actually employed
at organizations or activities. Each such
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request will be considered on its merits. The information released will
be the minimum required in connection with the investigation being
conducted.
(ix) Other types of requests. All other official requests received
by DA elements from agencies of the executive branch (including other
military departments) will be honored, if there are no compelling
reasons to the contrary. If there are reasons to withhold the records,
the requests will be submitted for determination of the propriety of
release to the appropriate addresses shown in Appendix B of this part.
(2) Army Activities shall inform officials receiving records under
the provisions of this section that those records are exempt from
public release under the FOIA. Army Activities also shall advise
officials of any special handling instructions. Classified information
is subject to the provisions of DoD 5200.1-R, and information contained
in Privacy Act systems of records is subject to DoD 5400.11-R.
(e) Consultation with affected DoD component. (1) When an Army
Activity receives a FOIA request for a record in which an affected Army
or DoD organization (including a Combatant Command) has a clear and
substantial interest in the subject matter, consultation with that
affected Army or DoD organization is required. As an example, where an
Army Activity receives a request for records related to DoD operations
in a foreign country, the cognizant Combatant Command for the area
involved in the request shall be consulted before a release is made.
Consultations may be telephonic, electronic, or in hard copy.
(2) The affected Activity shall review the circumstances of the
request for host-nation relations, and provide, where appropriate, FOIA
processing assistance to the responding DoD Component regarding release
of information. Responding Army Activities shall provide copies of
responsive records to the affected DoD Component when requested. The
affected DoD Component shall receive a courtesy copy of all releases in
such circumstances.
(3) Nothing in Sec. 518.19 shall impede the processing of the FOIA
request initially received by an Army Activity.
Sec. 518.16 Initial determinations.
(a) Initial denial authority. The DA officials are designated as
the Army's only IDAs. Only an IDA, his or her delegate, or the
Secretary of the Army can deny FOIA requests for DA records. Each IDA
will act on direct and referred requests for records within his or her
area of functional responsibility. (See the proper AR in the 10 series
for full discussions of these areas. Included are records created or
kept within the IDA's area of responsibility; records retired by, or
referred to, the IDA's headquarters or office; and records of
predecessor organizations. If a request involves the areas of more than
one IDA, the IDA to whom the request was originally addressed will
normally respond to it; however, the affected IDAs may consult on such
requests and agree on responsibility for them. IDAs will complete all
required coordination at initial denial level. This includes classified
records retired to the NARA when a mandatory declassification review is
necessary. Requests and/or responsive documents should not be sent to
the DA FOIA/PA Office for initial denial authority or to forward to
other offices within the DA.
(b) FOIA requesters may ultimately appeal if they are dissatisfied
with adverse determinations. It is crucial to forward complete packets
to the IDAs. Ensure cover letters list all attachments and describe
from where the records were obtained, i.e., a PA system of records
(including the applicable systems notice), or other. If a FOIA action
is complicated, include a chronology of events to assist the IDA in
understanding what happened in the course of processing the FOIA
request. If a file does not include documentation described below,
include the tab, and insert a page marked ``not applicable'' or ``not
used.'' The order and contents of FOIA file attachments follow: (Tab A
or 1) The original FOIA request and envelope (if applicable); (Tab B or
2) The response letter; (Tab C or 3) Copies of all records entirely
released, single-sided; (Tab D or 4) Copies of administrative
processing documents, including extension letters and ``no records''
certificates, in chronological order; (Tab E or 5) Copies of all
records partially released or entirely denied, single-sided. For
partially released records, mark in yellow highlighter (or other
readable highlighter) those portions withheld; and (Tab F or 6) Legal
opinions(s).
(c) The initial determination of whether to make a record available
or grant a fee waiver upon request may be made by any suitable official
designated by the Army Activity in published regulations. The presence
of the marking ``FOUO'' does not relieve the designated official of the
responsibility to review the requested record for the purpose of
determining whether an exemption under this part is applicable and
should be invoked. IDAs may delegate all or part of their authority to
a division chief under its supervision within the Agency in the grade
of 05/civilian equivalent. Requests for delegation authority below this
level must be submitted, after coordination, to the DA FOIA/PA Office,
with detailed justification, for approval. Such delegations must not
slow FOIA actions. If an IDA's delegate denies a FOIA or fee waiver
request, the delegate must clearly state that he or she is acting for
the IDA and identify the IDA by name and position in the written
response to the requester. IDAs will send only the names, offices, and
telephone numbers of their delegates to the DA, FOIA/PA Office. IDAs
will keep this information current.
(d) The officials designated by Army Activities to make initial
determinations should consult with public affairs officers (PAOs) to
become familiar with subject matters that are considered to be
newsworthy, and advise PAOs of all requests from news media
representatives. In addition, the officials should inform PAOs in
advance when they intend to withhold or partially withhold a record, if
it appears that the withholding action may be challenged in the media.
A FOIA release or denial action, appeal, or court review may generate
public or press interest. In such case, the IDA (or delegate) should
consult the Chief of Public Affairs or the command or organization PAO.
The IDA should inform the PAO contacted of the issue and obtain advice
and recommendations on handling its public affairs aspect. Any advice
or recommendations requested or obtained should be limited to this
aspect. Coordination must be completed within the statutory 20 working
day FOIA response limit. (The point of contact for the Army Chief of
Public Affairs is HQDA (SAPA-OSR), Washington DC 20310-1500). If the
request involves actual or potential litigation against the United
States, release must be coordinated with The Judge Advocate General
(TJAG).
(e) The following officials are designated IDAs for the areas of
responsibility outlined below:
(1) The Administrative Assistant to the Secretary of the Army is
authorized to act for the Secretary of the Army on requests for all
records maintained by the Office of the Secretary of the Army and its
serviced activities as well as requests requiring the personal
attention of the Secretary of the Army. This also includes civilian
Equal Employment Opportunity (EEO) actions. (See DCS, G-1 for military
Equal Opportunity (EO) actions). The Administrative Assistant to the
Secretary of the Army has delegated its authority to the Chief
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Attorney and Legal Services Directorate, U.S. Army Resources & Programs
Agency. (See DCS, G-1 for military Equal Opportunity (EO) actions).
(2) The Assistant Secretary of the Army (Financial Management and
Comptroller) is authorized to act on requests for finance and
accounting records. Requests for CONUS finance and accounting records
should be referred to the Defense Finance and Accounting Service
(DFAS). The Chief Attorney and Legal Services Directorate, acts on
requests for non-finance and accounting records of the Assistant
Secretary of the Army (Financial Management and Comptroller).
(3) The Assistant Secretary of the Army (Acquisition, Logistics, &
Technology) is authorized to act on requests for procurement records
other than those under the purview of the Chief of Engineers and the
Commander, U.S. Army Materiel Command. The Chief Attorney and Legal
Services Directorate, acts on requests for non-procurement records of
the Assistant Secretary of the Army (Acquisition, Logistics and
Technology).
(4) The Deputy Assistant Secretary of the Army (Civilian Personnel
Policy)/Director of Civilian Personnel, Office of the Assistant
Secretary of the Army (Manpower and Reserve Affairs) is authorized to
act on requests for civilian personnel records, personnel
administration and other civilian personnel matters, except for EEO
(civilian) matters which will be acted on by the Administrative
Assistant to the Secretary of the Army. The Deputy Assistant Secretary
of the Army (Civilian Personnel Policy)/Director of Civilian Personnel
has delegated this authority to the Chief, Policy and Program
Development Division.
(5) The Chief Information Officer, G-6 is authorized to act on
requests for records pertaining to Army Information Technology,
command, control communications and computer systems and the
Information Resources Management Program (automation,
telecommunications, visual information, records management,
publications and printing).
(6) The Inspector General is authorized to act on requests for all
Inspector General Records.
(7) The Auditor General is authorized to act on requests for
records relating to audits done by the U.S. Army Audit Agency under AR
10-2. This includes requests for related records developed by the Audit
Agency.
(8) The Director of the Army Staff is authorized to act on requests
for all records of the Chief of Staff and its Field Operating Agencies.
The Director of the Army Staff has delegated its authority to the Chief
Attorney and Legal Services Directorate, U.S. Army Resources & Programs
Agency. The Chief Attorney and Legal Services Director, U.S. Army
Resources & Programs Agency acts on requests for records of the Chief
of Staff and its Field Operating Agencies. (See TJAG for the (GOMO)
actions).
(9) The Deputy Chief of Staff, G-3 is authorized to act on requests
for records relating to International Affairs policy, planning,
integration and assessments, strategy formulation, force development,
individual and unit training policy, strategic and tactical command and
control systems, nuclear and chemical matters, use of DA forces.
(10) The Deputy Chief of Staff, G-8 is authorized to act on
requests for records relating to programming, material integration and
externally directed reviews.
(11) The Office of the Deputy Chief of Staff, G-1 is authorized to
act on the following records: Personnel board actions, Equal
Opportunity (military) and sexual harassment, health promotions,
physical fitness and well being, command and leadership policy records,
HIV and suicide policy, substance abuse programs except for individual
treatment records which are the responsibility of the Surgeon General,
retiree benefits, services, and programs, (excluded are individual
personnel records of retired military personnel, which are the
responsibility of the U.S. Army Human Resources Command-St. Louis
(AHRC-STL), DA dealings with Veterans Affairs, U.S. Soldier's and
Airmen's Home, retention, promotion, and separation; recruiting and MOS
policy issues, personnel travel and transportation entitlements,
military strength and statistics, The Army Librarian, demographics, and
Manprint.
(12) The Deputy Chief of Staff, G-4 is authorized to act on
requests for records relating to DA logistical requirements and
determinations, policy concerning materiel maintenance and use,
equipment standards, and logistical readiness.
(13) The Chief of Engineers is authorized to act on requests for
records involving civil works, military construction, engineer
procurement, and ecology; and the records of the U.S. Army Engineer
divisions, districts, laboratories, and field operating agencies.
(14) The Surgeon General, Commander, U.S. Army Medical Command, is
authorized to act on requests for medical research and development
records, and the medical records of active duty military personnel,
dependents, and persons given physical examination or treatment at DA
medical facilities, to include alcohol and drug treatment/test records.
(15) The Chief of Chaplains is authorized to act on requests for
records involving ecclesiastical relationships, rites performed by DA
chaplains, and nonprivileged communications relating to clergy and
active duty chaplains' military personnel files.
(16) The Judge Advocate General is authorized to act on requests
for records relating to claims, courts-martial, legal services,
administrative investigations, and similar legal records. TJAG is also
authorized to act on requests for the GOMO actions and records
described elsewhere in this regulation, especially if those records
relate to litigation in which the United States has an interest. In
addition, TJAG is authorized to act on requests for records that are
not within the functional areas of responsibility of any other IDA,
including, but not limited to requests for records for Commands, and
activities.
(17) The Chief, National Guard Bureau, is authorized to act on
requests for all personnel and medical records of retired, separated,
discharged, deceased, and active Army National Guard military
personnel, including technician personnel, unless such records clearly
fall within another IDA's responsibility. This authority includes, but
is not limited to, National Guard organization and training files;
plans, operations, and readiness files, policy files, historical files,
files relating to National Guard military support, drug interdiction,
and civil disturbances; construction, civil works, and ecology records
dealing with armories, facilities within the States, ranges, etc. Equal
Opportunity investigative records; aviation program records and
financial records dealing with personnel, operation and maintenance,
and equipment budgets.
(18) The Chief of Army Reserve is authorized to act on requests for
all personnel and medical records of retired, separated, discharged,
deceased, and reserve component military personnel, and all U.S. Army
Reserve (USAR) records, unless such records clearly fall within another
IDA's responsibility. Records under the responsibility of the Chief of
Army Reserve include records relating to USAR plans, policies, and
operations; changes in the organizational status of USAR units;
mobilization and demobilization policies, active duty tours, and the
Individual Mobilization Augmentation program.
(19) The Commander, United States Army Materiel Command (AMC) is
authorized to act on requests for the
[[Page 9239]]
records of AMC headquarters and to subordinate commands, units, and
activities that relate to procurement, logistics, research and
development, and supply and maintenance operations.
(20) The Provost Marshal General (PMG) is authorized to act on all
requests for provost marshal activities and law enforcement functions
for the army, all matters relating to police intelligence, physical
security, criminal investigations, corrections and internment (to
include confinement and correctional programs for U.S. prisoners,
criminal investigations, provost marshal activities, and military
police support. The PMG is responsible for the Office of Security,
Force Protection, and Law Enforcement Division and is the functional
proponent for AR 190-series (Military Police) and 195-series (Criminal
Investigation), AR 630-10 Absent Without Leave, Desertion, and
Administration of Personnel Involved in Civilian Court Proceedings, and
AR 633-30, Military Sentences to Confinement.
(21) The Commander, U.S. Army Criminal Investigation Command
(USACIDC), is authorized to act on requests for criminal investigative
records of USACIDC headquarters, its subordinate activities, and
military police reports. This includes criminal investigation records,
investigation-in-progress records, and all military police records and
reports.
(22) The Commander, United States Army Human Resources Command
(USAHRC), is authorized to act on requests for military personnel files
relating to active duty (other than those of reserve and retired
personnel) military personnel matters, personnel locator, physical
disability determinations, and other military personnel administration
records; records relating to military casualty and memorialization
activities; heraldic activities, voting, records relating to
identification cards, naturalization and citizenship, commercial
solicitation, Military Postal Service Agency and Army postal and
unofficial mail service.
(23) The Commander, USARC-StL has been delegated authority to act
on behalf of the USAHRC for requests concerning all personnel and
medical records of retired, separated, discharged, deceased, and
reserve component military personnel, unless such records clearly fall
within another IDA's authority. The authority does not include records
relating to USAR plans, policies, and operations; changes in the
organizational status of USAR units, mobilization and demobilization
policies; active duty tours, and the individual mobilization
augmentation program.
(24) The Assistant Chief of Staff for Installation Management
(ACSIM) is authorized to act on requests for records relating to
planning, programming, execution and operation of Army installations.
This includes base realignment and closure activities, environmental
activities other than litigation, facilities and housing activities,
and installation management support activities.
(25) The Commander, United States Army Intelligence and Security
Command, is authorized to act on requests for intelligence and security
records, foreign scientific and technological records, intelligence
training, intelligence threat assessments, and foreign liaison
information.
(26) The Commander, U.S. Army Safety Center, is authorized to act
on requests for Army safety records.
(27) The Commander, United States Army Test and Evaluation Command
(ATEC), is authorized to act on requests for the records of ATEC
headquarters, its subordinate commands, units, and activities that
relate to test and evaluation operations.
(28) The General Counsel, Army and Air Force Exchange Service
(AAFES), is authorized to act on requests for AAFES records, under AR
60-20/AFR 147-14.
(29) Special IDA authority for time-event related records may be
designated on a case-by-case basis. These will be published in the
Federal Register. You may contact the DA, FOIA/PA Office to obtain
current information on special delegations.
(f) Reasons for Not Releasing a Record. The following are reasons
for not complying with a request for a record under 5 U.S.C. 552(a)(3).
(1) No Records. A reasonable search of files failed to identify
responsive records. The records custodian will prepare a detailed no
records certificate. This certificate must include, at a minimum, what
areas or offices were searched and how the search was conducted
(manually, by computer, etc.). The certificate will be signed by the
records custodian and will include his or her grade and title. The
original certificate will be forwarded to the IDA. Preprinted ``check-
the-block'' or ``fill-in-the-blank'' no records certificates are not
authorized.
(2) Referrals. The request is transferred to another Army Activity
or DoD Component, or to another Federal Agency.
(3) Request Withdrawn. The request is withdrawn by the requester.
(4) Fee-Related Reason. The requester is unwilling to pay fees
associated with a request; the requester is past due in the payment of
fees from a previous FOIA request; or the requester disagrees with the
fee estimate.
(5) Records not Reasonably Described. A record has not been
described with sufficient particularity to enable the Army or DoD
Component to locate it by conducting a reasonable search.
(6) Not a Proper FOIA Request for Some Other Reason. The requester
has failed unreasonably to comply with procedural requirements, other
than fee-related, imposed by this part or Army Activity supplementing
regulations.
(7) Not an Agency Record. The information requested is not a record
within the meaning of the FOIA and this part.
(8) Duplicate Request. The request is a duplicate request (e.g., a
requester asks for the same information more than once). This includes
identical requests received via different means (e.g., electronic mail,
facsimile, mail, and courier) at the same or different times.
(9) Other (Specify). Any other reason a requester does not comply
with published rules other than those outlined in paragraphs (f)(1)
through (8) of this section.
(10) Partial or Total Denial. The record is denied in whole or in
part in accordance with procedures set forth in the FOIA.
(g) Denial tests. To deny a requested record that is in the
possession and control of an Army Activity, it must be determined that
the record is exempt under one or more of the exemptions of the FOIA.
An outline of the FOIA's exemptions is contained in subpart C of this
part.
(h) Reasonably segregable portions. Although portions of some
records may be denied, the remaining reasonably segregable portions
must be released to the requester when it reasonably can be assumed
that a skillful and knowledgeable person could not reconstruct the
excised information. Unless indicating the extent of the deletion would
harm an interest protected by an exemption, the amount of deleted
information shall be indicated on the released portion of paper records
by use of brackets or darkened areas indicating removal of information.
In no case shall the deleted areas be left ``white'' without the use of
brackets to show the bounds of deleted information. In the case of
electronic deletion, or deletion in audiovisual or microfiche records,
if technically feasible, the amount of redacted information shall be
indicated at the place in the record such deletion was made, unless
including the indication would harm an interest protected by the
[[Page 9240]]
exemption under which the deletion is made. This may be done by use of
brackets, shaded areas, or some other identifiable technique that will
clearly show the limits of the deleted information. When a record is
denied in whole, the response advising the requester of that
determination will specifically state that it is not reasonable to
segregate portions of the record for release.
(i) Response to requester. Whenever possible, initial
determinations to release or deny a record normally shall be made and
the decision reported to the requester within 20 working days after
receipt of a proper request by the official designated to respond. When
an Army Activity has a significant number of pending requests which
prevent a response determination within the 20 working day period, the
requester shall be so notified in an interim response, and advised
whether their request qualifies for the fast track or slow track within
the Army Activity's multitrack processing system. Requesters who do not
meet the criteria for fast track processing shall be given the
opportunity to limit the scope of their request in order to qualify for
fast track processing.
(1) When a decision is made to release a record, a copy should be
made available promptly to the requester once he has complied with
preliminary procedural requirements.
(2) When a request for a record is denied in whole or in part, the
official designated to respond shall inform the requester in writing of
the name and title or position of the official who made the
determination, and shall explain to the requester the basis for the
determination in sufficient detail to permit the requester to make a
decision concerning appeal. The requester specifically shall be
informed of the exemptions on which the denial is based, inclusive of a
brief statement describing what the exemption(s) cover. When the
initial denial is based in whole or in part on a security
classification, the explanation should include a summary of the
applicable Executive Order criteria for classification, as well as an
explanation, to the extent reasonably feasible, of how those criteria
apply to the particular record in question. The requester shall also be
advised of the opportunity and procedures for appealing an unfavorable
determination to a higher final authority within the Army Activity. The
IDA will inform the requester of his or her right to appeal, in whole
or part, the denial of the FOIA or fee waiver request and that the
appeal must be sent through the IDA to the Secretary of the Army (ATTN:
OGC).
(3) The final response to the requester should contain information
concerning the fee status of the request, consistent with the
provisions of subpart F, of this part. When a requester is assessed
fees for processing a request, the requester's fee category shall be
specified in the response letter. Activities also shall provide the
requester with a complete cost breakdown (e.g., 115 pages of office
reproduction at $0.15 per page; 5 minutes of computer search time at
$43.50 per minute, 3 hours of professional level search at $44 per
hour, etc.) in the response letter.
(4) The explanation of the substantive basis for a denial shall
include specific citation of the statutory exemption applied under
provisions of this part; e.g., 5 U.S.C. 552 (b)(1). Merely referring to
a classification; to a ``FOUO'' marking on the requested record; or to
this part or an Army Activity's regulation does not constitute a proper
citation or explanation of the basis for invoking an exemption.
(5) When the time for response becomes an issue, the official
responsible for replying shall acknowledge to the requester the date of
the receipt of the request.
(6) When denying a request for records, in whole or in part, an
Army Activity shall make a reasonable effort to estimate the volume of
the records denied and provide this estimate to the requester, unless
providing such an estimate would harm an interest protected by an
exemption of the FOIA. This estimate should be in number of pages or in
some other reasonable form of estimation, unless the volume is
otherwise indicated through deletions on records disclosed in part.
(7) When denying a request for records in accordance with a statute
qualifying as a FOIA exemption 3 statute, Army Activities shall, in
addition to stating the particular statute relied upon to deny the
information, also state whether a court has upheld the decision to
withhold the information under the particular statute, and a concise
description of the scope of the information being withheld.
(j) Extension of time. In unusual circumstances, when additional
time is needed to respond to the initial request, the Army Activity
shall acknowledge the request in writing within 20 working days,
describe the circumstances requiring the delay, and indicate the
anticipated date for a substantive response that may not exceed 10
additional working days, except as provided below:
(1) With respect to a request for which a written notice has
extended the time limits by 10 additional working days, and the
Activity determines that it cannot make a response determination within
that additional 10 working day period, the requester shall be notified
and provided an opportunity to limit the scope of the request so that
it may be processed within the extended time limit, or an opportunity
to arrange an alternative time frame for processing the request or a
modified request. Refusal by the requester to reasonably modify the
request or arrange for an alternative time frame shall be considered a
factor in determining whether exceptional circumstances exist with
respect to Army Activity's request backlogs. Exceptional circumstances
do not include a delay that results from predictable activity backlogs,
unless the Army Activity demonstrates reasonable progress in reducing
its backlog.
(2) Unusual circumstances that may justify delay are: The need to
search for and collect the requested records from other facilities that
are separate from the office determined responsible for a release or
denial decision on the requested information; the need to search for,
collect, and appropriately examine a voluminous amount of separate and
distinct records which are requested in a single request; and the need
for consultation, which shall be conducted with all practicable speed,
with other agencies having a substantial interest in the determination
of the request, or among two or more Army Activities or DoD Components
having a substantial subject-matter interest in the request.
(3) Army Activities may aggregate certain requests by the same
requester, or by a group of requesters acting in concert, if the Army
Activity reasonably believes that such requests actually constitute a
single request, which would otherwise satisfy the unusual circumstances
set forth in paragraph (j)(2) of this section, and the requests involve
clearly related matters. Multiple requests involving unrelated matters
shall not be aggregated. If the requests are aggregated under these
conditions, the requester or requesters shall be so notified.
(4) In cases where the statutory time limits cannot be met and no
informal extension of time has been agreed to, the inability to process
any part of the request within the specified time should be explained
to the requester with a request that he agree to await a substantive
response by an anticipated date. It should be made clear that any such
agreement does not prejudice the right of the requester to appeal the
[[Page 9241]]
initial decision after it is made. Army Activities are reminded that
the requester still retains the right to treat this delay as a de facto
denial with full administrative remedies. Only the responsible IDA can
extend it, and the IDA must first coordinate with the OGC.
(5) As an alternative to the taking of formal extensions of time
the negotiation by the cognizant FOIA coordinating office of informal
extensions in time with requesters is encouraged where appropriate.
(k) Misdirected requests. Misdirected requests shall be forwarded
promptly to the Army Activity or other Federal Agency with the
responsibility for the records requested. The period allowed for
responding to the request misdirected by the requester shall not begin
until the request is received by the Army Activity that manages the
records requested.
(l) Records of non-U.S. Government source. When a request is
received for a record that falls under exemption 4, that was obtained
from a non-U.S. Government source, or for a record containing
information clearly identified as having been provided by a non-U.S.
Government source, the source of the record or information [also known
as ``the submitter'' for matters pertaining to proprietary data under 5
U.S.C. 552, FOIA, Exemption (b)(4)] and E.O. 12600], shall be notified
promptly of that request and afforded reasonable time (14 calendar
days) to present any objections concerning the release, unless it is
clear that there can be no valid basis for objection. This practice is
required for those FOIA requests for data not deemed clearly exempt
from disclosure under exemption (b)(4) of 5 U.S.C. 552, The FOIA. If,
for example, the record or information was provided with actual or
presumptive knowledge of the non-U.S. Government source and established
that it would be made available to the public upon request, there is no
obligation to notify the source. Any objections shall be evaluated. The
final decision to disclose information claimed to be exempt under
exemption (b)(4) shall be made by an official equivalent in rank to the
official who would make the decision to withhold that information under
FOIA. When a substantial issue has been raised, the Army Activity may
seek additional information from the source of the information and
afford the source and requester reasonable opportunities to present
their arguments on the legal and substantive issues involved prior to
making an agency determination. When the source seeks a restraining
order or take court action to prevent release of the record or
information, the requester shall be notified, and action on the request
normally shall not be taken until after the outcome of that court
action is known. When the requester brings court action to compel
disclosure, the submitter shall be promptly notified of this action.
(1) If the submitted information is a proposal in response to a
solicitation for a competitive proposal, and the proposal is in the
possession and control of DA (see 10 U.S.C. 2305(g)), the proposal
shall not be disclosed, and no submitter notification and subsequent
analysis is required. The proposal shall be withheld from public
disclosure pursuant to 10 U.S.C. 2305(g) and exemption (b)(3) of the
FOIA. This statute does not apply to bids, unsolicited proposals, or
any proposal that is set forth or incorporated by reference in a
contract between an Army Activity and the offeror that submitted the
proposal. In such situations, normal submitter notice shall be
conducted except for sealed bids that are opened and read to the
public. The term, proposal, means information contained in or
originating from any proposal, including a technical, management, or
cost proposal submitted by an offeror in response to solicitation for a
competitive proposal, but does not include an offeror's name or total
price or unit prices when set forth in a record other than the proposal
itself. Submitter notice, and analysis as appropriate, are required for
exemption (b)(4) matters that are not specifically incorporated in 10
U.S.C. 2305(g).
(2) If the record or information was submitted on a strictly
voluntary basis, absent any exercised authority that prescribes
criteria for submission, and after consultation with the submitter, it
is absolutely clear that the record or information would customarily
not be released to the public, the submitter need not be notified.
Examples of exercised authorities prescribing criteria for submission
are statutes, Executive Orders, regulations, invitations for bids,
requests for proposals, and contracts. Records or information submitted
under these authorities are not voluntary in nature. When it is not
clear whether the information was submitted on a voluntary basis,
absent any exercised authority, and whether it would customarily be
released to the public by the submitter, notify the submitter and ask
that it describe its treatment of the information, and render an
objective evaluation. If the decision is made to release the
information over the objection of the submitter, notify the submitter
and afford the necessary time to allow the submitter to seek a
restraining order, or take court action to prevent release of the
record or information.
(3) The coordination provisions of this section also apply to any
non-U.S. Government record in the possession and control of the Army or
DoD from multi-national organizations, such as the North Atlantic
Treaty Organization (NATO), United Nations Commands, the North American
Aerospace Defense Command (NORAD), the Inter-American Defense Board, or
foreign governments. Coordination with foreign governments under the
provisions of this section may be made through Department of State, or
the specific foreign embassy.
(m) File of initial denials. Copies of all initial withholdings or
denials shall be maintained by each Army Activity in a form suitable
for rapid retrieval, periodic statistical compilation, and management
evaluation. Records denied for any of the reasons contained in Sec.
518.20 shall be maintained for a period of six years to meet the
statute of limitations requirement. Records will be maintained in
accordance with AR 25-400-2.
(n) Special mail services. Army Activities are authorized to use
registered mail, certified mail, certificates of mailing, and return
receipts. However, their use should be limited to instances where it
appears advisable to establish proof of dispatch or receipt of FOIA
correspondence. The requester shall be notified that they are
responsible for the full costs of special services.
(o) Receipt accounts. The Treasurer of the United States has
established two accounts for FOIA receipts, and all money orders or
checks remitting FOIA fees should be made payable to the U.S.
Treasurer. These accounts shall be used for depositing all FOIA
receipts, except receipts for industrially funded and non-appropriated
funded activities. Components are reminded that the below account
numbers must be preceded by the appropriate disbursing office two digit
prefix. Industrially funded and non-appropriated funded activity FOIA
receipts shall be deposited to the applicable fund.
(1) Receipt Account 3210 Sale of Publications and Reproductions,
FOIA. This account shall be used when depositing funds received from
providing existing publications and forms that meet the Receipt Account
Series description found in Federal Account Symbols and Titles. Deliver
collections within 30 calendar days to the servicing finance and
accounting office.
(2) Receipt Account 3210 Fees and Other Charges for Services, FOIA.
This account is used to deposit search fees,
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fees for duplicating and reviewing (in the case of commercial
requesters) records to satisfy requests that could not be filled with
existing publications or forms.
Sec. 518.17 Appeals.
(a) General. If the official designated by the Army Activity to
make initial determinations on requests for records declines to provide
a record because the official considers it exempt under one or more of
the exemptions of the FOIA, that decision may be appealed by the
requester, in writing, to a designated appellate authority. The appeal
should be accompanied by a copy of the letter denying the initial
request. Such appeals should contain the basis for disagreement with
the initial refusal. Appeal procedures also apply to the disapproval of
a fee category claim by a requester, disapproval of a request for
waiver or reduction of fees, disputes regarding fee estimates, review
on an expedited basis a determination not to grant expedited access to
agency records, for no record determinations when the requester
considers such responses adverse in nature, not providing a response
determination to a FOIA request within the statutory time limits, or
any determination found to be adverse in nature by the requester. Upon
an IDA's receipt of a no records determination appeal, the IDA will
direct the records custodian to conduct another records search and
certify, in writing, that it has made a good faith effort that
reasonably could be expected to produce the information requested. If
no records are again found, the original no records certificate will be
forwarded to the IDA for inclusion in the appeals packet. When denials
have been made under the provisions of the FOIA and the PA, and the
denied information is contained in a PA system of records, appeals
shall be processed under both the FOIA and the PA. If the denied
information is not maintained in a PA system of records, the appeal
shall be processed under the FOIA. If a request is merely misaddressed,
and the receiving Army Activity or DoD Component simply advises the
requester of such and refers the request to the appropriate Army or DoD
Component, this shall not be considered a no record determination.
(1) Appeals of adverse determinations from denial of records or
``no record'' determination, received by Army IDAs must be forwarded
through the denying IDA to the Secretary of the Army (ATTN: OGC). On
receipt of an appeal, the IDA will--
(i) Send the appeal to the Office of the Secretary of the Army,
OGC, together with a copy of the documents that are the subject of the
appeal. The cover letter will list all attachments and describe from
where the records were obtained, i.e., a PA system of records
(including the applicable systems notice, or other. If a file does not
include documentation described below, include the tab, and insert a
page marked ``not applicable'' or ``not used.'' The order and contents
of FOIA file attachments follow: (Tab A or 1) The original FOIA request
and envelope (if applicable); (Tab B or 2) The IDA denial letter; (Tab
C or 3) Copies of all records entirely released, single-sided; (Tab D
or 4) Copies of administrative processing documents, including
extension letters and ``no records'' certificates, in chronological
order; (Tab E or 5) Copies of all records partially denied or
completely denied, single-sided. For records partially denied, mark in
yellow highlighter (or other readable highlighter) those portions
withheld; and (Tab F or 6) Legal opinions(s); and
(ii) Assist the OGC as requested during his or her consideration of
the appeal.
(2) Appeals of denial of records made by the OGC, AAFES, shall be
made to the Secretary of the Army when the Commander, AAFES, is an Army
officer. Appeals of denial of records made by the OGC, AAFES, shall be
made to the Secretary of the Air Force when the Commander is an Air
Force officer.
(b) Time of receipt. A FOIA appeal has been received by an Army
Activity when it reaches the office of an appellate authority having
jurisdiction, the OGC. Misdirected appeals should be referred
expeditiously to the OGC.
(c) Time limits. The requester shall be advised to file an appeal
so that it is postmarked no later than 60 calendar days after the date
of the initial denial letter. If no appeal is received, or if the
appeal is postmarked after the conclusion of this 60-day period, the
case may be considered closed. However, exceptions to the above may be
considered on a case-by-case basis. In cases where the requester is
provided several incremental determinations for a single request, the
time for the appeal shall not begin until the date of the final
response. Records that are denied shall be retained for a period of six
years to meet the statute of limitations requirement. Final
determinations on appeals normally shall be made within 20 working days
after receipt. When an Army Activity has a significant number of
appeals preventing a response determination within 20 working days, the
appeals shall be processed in a multitrack processing system, based at
a minimum, on the three processing tracks established for initial
requests. All of the provisions of the FOIA apply also to appeals of
initial determinations, to include establishing additional processing
queues as needed.
(d) Delay in responding to an appeal. If additional time is needed
due to the unusual circumstances the final decision may be delayed for
the number of working days (not to exceed 10), that were not used as
additional time for responding to the initial request. If a
determination cannot be made and the requester notified within 20
working days, the appellate authority shall acknowledge to the
requester, in writing, the date of receipt of the appeal, the
circumstances surrounding the delay, and the anticipated date for
substantive response. Requesters shall be advised that, if the delay
exceeds the statutory extension provision or is for reasons other than
the unusual circumstances they may consider their administrative
remedies exhausted. They may, however, without prejudicing their right
of judicial remedy, await a substantive response. The Army Activity
will continue to process the case expeditiously.
(e) Response to the requester. When the appellate authority (OGC)
makes a final determination to release all or a portion of records
withheld by an IDA, a written response and a copy of the records so
released should be forwarded promptly to the requester after compliance
with any preliminary procedural requirements, such as payment of fees.
Final refusal of an appeal must be made in writing by the appellate
authority or by a designated representative. The response, at a
minimum, shall include the following:
(1) The basis for the refusal shall be explained to the requester
in writing, both with regard to the applicable statutory exemption or
exemptions invoked under provisions of the FOIA, and with respect to
other appeal matters;
(2) When the final refusal is based in whole or in part on a
security classification, the explanation shall include a determination
that the record meets the cited criteria and rationale of the governing
Executive Order, and that this determination is based on a
declassification review, with the explanation of how that review
confirmed the continuing validity of the security classification;
(3) The final denial shall include the name and title or position
of the official responsible for the denial;
(4) In the case of appeals for total denial of records, the
response shall advise the requester that the information being denied
does not contain
[[Page 9243]]
meaningful portions that are reasonably segregable;
(5) When the denial is based upon an exemption 3 statute, the
response, in addition to citing the statute relied upon to deny the
information, shall state whether a court has upheld the decision to
withhold the information under the statute, and shall contain a concise
description of the scope of the information withheld; or
(6) The response shall advise the requester of the right to
judicial review.
(f) Consultation. Final refusal involving issues not previously
resolved or that the Army Activity knows to be inconsistent with
rulings of other DoD Components ordinarily should not be made before
consultation with the Army OGC. Tentative decisions to deny records
that raise new or significant legal issues of potential significance to
other Agencies of the Government shall be provided to the Army OGC.
Sec. 518.18 Judicial actions.
(a) This section states current legal and procedural rules for the
convenience of the reader. The statements of rules do not create rights
or remedies not otherwise available, nor do they bind the DA or DoD to
particular judicial interpretations or procedures. A requester may seek
an order from a U.S. District Court to compel release of a record after
administrative remedies have been exhausted; i.e., when refused a
record by the head of a Component or an appellate designee or when the
Army Activity has failed to respond within the time limits prescribed
by the FOIA and in this part.
(b) The requester may bring suit in the U.S. District Court in the
district, in which the requester resides or is the requester's place of
business, in the district in which the record is located, or in the
District of Columbia.
(c) The burden of proof is on the Army Activity to justify its
refusal to provide a record. The court shall evaluate the case de novo
(anew) and may elect to examine any requested record in camera (in
private) to determine whether the denial was justified.
(d) When an Army Activity has failed to make a determination within
the statutory time limits but can demonstrate due diligence in
exceptional circumstances, to include negotiating with the requester to
modify the scope of their request, the court may retain jurisdiction
and allow the Activity additional time to complete its review of the
records.
(1) If the court determines that the requester's complaint is
substantially correct, it may require the U. S. to pay reasonable
attorney fees and other litigation costs.
(2) When the court orders the release of denied records, it may
also issue a written finding that the circumstances surrounding the
withholding raise questions whether Army Activity personnel acted
arbitrarily and capriciously. In these cases, the special counsel of
the Merit Systems Protection Board shall conduct an investigation to
determine whether or not disciplinary action is warranted. The Army
Activity is obligated to take the action recommended by the special
counsel.
(3) The court may punish the responsible official for contempt when
an Army Activity fails to comply with the court order to produce
records that it determines have been withheld improperly.
(e) Non-U. S. Government source information. A requester may bring
suit in an U.S. District Court to compel the release of records
obtained from a non-government source or records based on information
obtained from a non-government source. Such source shall be notified
promptly of the court action. When the source advises that it is
seeking court action to prevent release, the Army Activity shall defer
answering or otherwise pleading to the complainant as long as permitted
by the Court or until a decision is rendered in the court action of the
source, whichever is sooner.
(f) FOIA litigation. Personnel responsible for processing FOIA
requests at the DoD Component level shall be aware of litigation under
the FOIA. Such information will provide management insights into the
use of the nine exemptions by Component personnel. Whenever a complaint
under the FOIA is filed in an U.S. District Court, the Army Activity
named in the complaint shall forward a copy of the complaint by any
means to HQDA, OTJAG (DAJA-LT), with an information copy to the Army
OGC. In the DA, HQDA OTJAG (DAJA-LT), WASH D.C. 20310-2210 is also
responsible for forwarding this information to the Office of the Army
OGC and to the DA FOIA/PA Office.
(1) Bases for FOIA Lawsuits. In general, there are four categories
of complaints in a FOIA lawsuit: failure to respond to a request within
time frames established in the FOIA statute; challenge to the adequacy
of search for responsive records; challenge to application of a FOIA
Exemption; and procedural challenges, such as application of waiver of
fees. The guidance below is intended to cover all categories of
complaints. In responding to litigation support requests, bear in mind
the type of complaint that has given rise to the lawsuit and provide
information, which addresses the specific reason(s) for the complaint.
(2) Responsibility for FOIA litigation. For the Army, under the
general oversight of the OGC, FOIA litigation is the responsibility of
the General Litigation Branch, Army Litigation Division. If you are
notified of a FOIA lawsuit involving the Army, contact the General
Litigation Branch immediately at: U.S. Army Litigation Center, General
Litigation Branch (JALS-LTG), 901 North Stuart Street, Suite 700,
Arlington, VA 22203-1837. The General Litigation Branch will provide
guidance on gathering information and assembling a litigation report
necessary to respond to FOIA litigation.
(3) Litigation reports for FOIA lawsuits. As with any lawsuit, the
Army Litigation Division and DOJ will require a litigation report. This
report should be prepared with the assistance, and under the
supervision of, the legal advisor. For general guidance on litigation
reports, see Army Regulation 27-40, paragraph 3-9. Unlike the usual 60-
day time period to respond to complaints under the Federal Rules of
Civil Procedure, complaints under the FOIA must be answered within 30
days of the service of the complaint. Therefore, it is imperative to
contact the Litigation Division immediately and to begin preparing the
litigation report without delay.
(4) Specific guidance for FOIA litigation reports. The following is
specific guidance for preparing a litigation report in FOIA Litigation.
The required material should be indexed and assembled under the
following categories:
(i) Statement of facts. (Tab A). Provide a chronological statement
of all facts related to the FOIA request, beginning with receipt of the
request, responses to the request, and searches for responsive records.
The statement of facts should refer to supporting enclosed exhibits
whenever possible.
(ii) Responses to pleadings. (Tab B). If you have been provided a
copy of the complaint, provide a line-by-line answer to the factual
statements in the pleadings, along with recommendations on whether to
admit or deny the allegation.
(iii) Memorandum of law. (Tab C). No memorandum of law is necessary
in FOIA lawsuits. If records were withheld, provide a written statement
explaining the FOIA Exemption used to withhold the information and the
rationale for its application in the particular facts of your case.
Include
[[Page 9244]]
here a copy of any legal review regarding the withholding of the
records.
(iv) Potential witness information. (Tab D). List the names,
addresses, telephone number, facsimile number and e-mail addresses of
all potential witnesses. At a minimum, this must include all of the
following: the FOIA Officer or Coordinator or other person responsible
for processing FOIA requests; the individual(s) who actually conducted
the search for responsive records; the legal advisor(s) who reviewed or
provided advice on the request; and the point of contact at any office
or agency to which the FOIA request was referred.
(v) Exhibits. (Tab E). Provide copies of all correspondence
regarding the FOIA request. This includes all correspondence between
the agency and the requester, including any enclosures; any referrals
or forwarding of the request to other agencies or offices; copies of
all documents released to the requester pursuant to the request in
litigation. If any information is withheld or redacted, provide a
complete copy of all withheld information. Identify withheld
information by placing brackets around all information withheld and
note in the margins of the document the specific FOIA exemption applied
to deny release of the document; all records and correspondence
forwarded to the IDA, if applicable; all appeals by the requester; if
the withheld document is classified, provide a summary of each document
withheld. The Summary of classified documents should include the
following:
(A) The classification of the document;
(B) The date of the document;
(C) The number of pages of the document;
(D) The author or creator of the document;
(E) The intended or actual recipient of the document;
(F) The subject of the document and an unclassified description of
the document sufficient to inform the court of the nature of the
contents of the document; and
(G) An explanation of the reason for withholding, including the
specific provision(s) of Executive Order 12,958 which permit
classification of the information.
(vi) Draft declarations. (Tab F). A declaration is a statement for
use in litigation made under penalty of perjury pursuant to specific
statutory authority (28 U.S.C. 1746) which need not be notarized.
Declarations may be used by the Army to support a motion to dismiss or
to grant summary judgment. Depending on the basis for the lawsuit, with
the assistance of their legal advisor, witnesses should prepare a draft
declaration to be included with the litigation report.
(vii) The following is some general guidance on the content of a
declaration in FOIA litigation. Identify the declarant and describe his
or her qualifications and responsibilities as they relate to the FOIA;
provide a statement indicating that the declarant is familiar with the
specific request and the general subject matter of the records; include
a statement of the searcher's understanding of the exact nature of the
request, including any modification (narrowing or expanding the search
based on communications with the requester); generally, the factual
portion of the declaration should be organized as a chronological
statement beginning with receipt of the request; provide a specific
description of the system of records searched; and provide a
description of procedures used to search for the requested records,
(manual search of records, computer database search, etc.). This
portion of the declaration is especially important when no records are
found. The declaration must reflect an adequate and reasonable search
for records in locations where responsive records are likely to be
found.
(5) Special guidance for initial denial authorities. If any
information was withheld, the IDA or person with specific knowledge of
the withholding must provide a specific statement of any Exemptions to
the FOIA, which were applied to the records.
(i) Withheld records. For withheld records, describe in reasonably
specific detail all records or parts of records withheld. If the number
of records is extensive, use an index of the records and consider
numbering the documents to facilitate reference. It is also permissible
(and frequently helpful) to include redacted portions of records
withheld as attachments or exhibits to the declarations.
(ii) Exemptions. Include in the declaration a specific statement
demonstrating that all the elements of each FOIA exemption are met.
(iii) Segregation. The FOIA requires that all information not
subject to an exemption to the FOIA, which can be reasonably segregated
from exempt information, must be released to FOIA requesters. In any
instance where an entire document is withheld, the individual
authorizing the withholding must specifically address that segregation
and release of non-exempt material was not possible without rendering
the record essentially meaningless. If applicable, this issue must be
specifically addressed in the declaration.
(iv) Sound Legal Basis. Army policy promotes careful consideration
of FOIA requests and discretionary decisions to disclose information
protected under the FOIA. Discretionary disclosures should be made only
after full and deliberate consideration of the institutional,
commercial, and personal privacy interests that could be implicated by
disclosure of the information. The decision to withhold records, in
whole or in part, otherwise exempt from disclosure under the FOIA must
exhibit a sound legal basis or present an unwarranted risk of adverse
impact on the ability of other agencies to protect other important
records.
Subpart F--Fee Schedule
Sec. 518.19 General provisions.
(a) Authorities. The FOIA, as amended; the Paperwork Reduction Act
(44 U.S.C. 35), as amended; the PA of 1974, as amended; the Budget and
Accounting Act of 1921 and the Budget and Accounting Procedures Act, as
amended (see 31 U.S.C.); and 10 U.S.C. 2328).
(b) Application. The fees described in this Subpart apply to FOIA
requests, and conform to the Office of Management and Budget Uniform
Freedom of Information Act Fee Schedule and Guidelines. They reflect
direct costs for search, review (in the case of commercial requesters),
and duplication of documents, collection of which is permitted by the
FOIA. They are neither intended to imply that fees must be charged in
connection with providing information to the public in the routine
course of business, nor are they meant as a substitute for any other
schedule of fees, such as DoD 7000.14-R, which does not supersede the
collection of fees under the FOIA. Nothing in this subpart shall
supersede fees chargeable under a statute specifically providing for
setting the level of fees for particular types of records. A ``statute
specifically providing for setting the level of fees for particular
types of records'' (5 U.S.C. 552 FOIA, (a)(4)(A)(vi)) means any statute
that enables a Government Agency such as the GPO or the NTIS, to set
and collect fees. Components should ensure that when documents that
would be responsive to a request are maintained for distribution by
agencies operating statutory-based fee schedule programs such as GPO or
NTIS, they inform requesters of the steps necessary to obtain records
from those sources.
[[Page 9245]]
(1) The term ``direct costs'' means those expenditures an Activity
actually makes in searching for, reviewing (in the case of commercial
requesters), and duplicating documents to respond to a FOIA request.
Direct costs include, for example, the salary of the employee
performing the work (the basic rate of pay for the employee plus 16
percent of that rate to cover benefits), and the costs of operating
duplicating machinery. Not included in direct costs are overhead
expenses such as costs of space, heating or lighting the facility in
which the records are stored.
(2) The term ``search'' includes all time spent looking, both
manually and electronically, for material that is responsive to a
request. Search also includes a page-by-page or line-by-line
identification (if necessary) of material in the record to determine if
it, or portions thereof are responsive to the request. Activities
should ensure that searches are done in the most efficient and least
expensive manner so as to minimize costs for both the Activity and the
requester. For example, Activities should not engage in line-by-line
searches, when duplicating an entire document known to contain
responsive information, would prove to be the less expensive and
quicker method of complying with the request. Time spent reviewing
documents in order to determine whether to apply one or more of the
statutory exemptions is not search time, but review time.
(3) The term ``duplication'' refers to the process of making a copy
of a document in response to a FOIA request. Such copies can take the
form of paper copy, microfiche, audiovisual, or machine-readable
documentation (e.g., magnetic tape or disc), among others. Every effort
will be made to ensure that the copy provided is in a form that is
reasonably useable, the requester shall be notified that the copy
provided is the best available and that the Activity's master copy
shall be made available for review upon appointment. For duplication of
computer-stored records, the actual cost, including the operator's
time, shall be charged. In practice, if an Activity estimates that
assessable duplication charges are likely to exceed $25.00, it shall
notify the requester of the estimate, unless the requester has
indicated in advance his or her willingness to pay fees as high as
those anticipated. Such a notice shall offer a requester the
opportunity to confer with Activity personnel with the object of
reformulating the request to meet his or her needs at a lower cost.
(4) The term ``review'' refers to the process of examining
documents located in response to a FOIA request to determine whether
one or more of the statutory exemptions permit withholding. It also
includes processing the documents for disclosure, such as excising them
for release. Review does not include the time spent resolving general
legal or policy issues regarding the application of exemptions. It
should be noted that charges for commercial requesters may be assessed
only for the initial review. Activities may not charge for reviews
required at the administrative appeal level of an exemption already
applied. However, records or portions of records withheld in full under
an exemption, which is subsequently determined not to apply, may be
reviewed again to determine the applicability of other exemptions not
previously considered. The costs for such a subsequent review would be
properly assessable.
(c) Fee restrictions. No fees may be charged by any Army Activity
if the costs of routine collection and processing of the fee are likely
to equal or exceed the amount of the fee. With the exception of
requesters seeking documents for a commercial use, Activities shall
provide the first two hours of search time, and the first one hundred
pages of duplication without charge. For example, for a request (other
than one from a commercial requester) that involved two hours and
fifteen minutes of search time, and resulted in one hundred and twenty-
five pages of documents, an Activity would determine the cost of only
ten minutes of search time, and only five pages of reproduction. If
this processing cost was equal to, or less than the cost to the
Activity for billing the requester and processing the fee collected, no
charges would result.
(1) Requesters receiving the first two hours of search and the
first one hundred pages of duplication without charge are entitled to
such only once per request. Consequently, if an Activity, after
completing its portion of a request, finds it necessary to refer the
request to a subordinate office, another Army Activity or DoD
Component, or another Federal Agency for action their portion of the
request, the referring Activity shall inform the recipient of the
referral of the expended amount of search time and duplication cost to
date.
(2) The elements to be considered in determining the ``cost of
collecting a fee'' are the administrative costs to the Activity of
receiving and recording a remittance, and processing the fee for
deposit in the Department of Treasury's special account. The cost to
the Department of Treasury to handle such remittance is negligible and
shall not be considered in the Activity's determinations.
(3) For the purposes of these restrictions, the word ``pages''
refers to paper copies of a standard size, which will normally be
``8\1/2\ x 11'' or ``11 x 14''. Thus, requesters would not be entitled
to 100 microfiche or 100 computer disks, for example. A microfiche
containing the equivalent of 100 pages or 100 pages of computer
printout, however, might meet the terms of the restriction.
(4) In the case of computer searches, the first two free hours will
be determined against the salary scale of the individual operating the
computer for the purposes of the search. As an example, when the direct
costs of the computer central processing unit, input-output devices,
and memory capacity equal $40.00 (two hours of equivalent search at the
clerical level), amounts of computer costs in excess of that amount are
chargeable as computer search time. In the event the direct operating
cost of the hardware configuration cannot be determined, computer
search shall be based on the salary scale of the operator executing the
computer search.
(d) Fee waivers. Documents shall be furnished without charge, or at
a charge reduced below fees assessed to the categories of requesters
when the Activity determines that waiver or reduction of the fees is in
the public interest because furnishing the information is likely to
contribute significantly to public understanding of the operations or
activities of DA and is not primarily in the commercial interest of the
requester.
(1) When assessable costs for a FOIA request total $15.00 or less,
fees shall be waived automatically for all requesters, regardless of
category.
(2) Decisions to waive or reduce fees that exceed the automatic
waiver threshold shall be made on a case-by-case basis. Disclosure of
the information ``is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the Government.''
(i) Activities should analyze whether the subject matter of the
request involves issues that will significantly contribute to the
public understanding of the operations or activities of DA or DoD.
Requests for records in the possession of the Army or DoD, which were
originated by non-government organizations and are sought for their
intrinsic content, rather than informative value, will likely not
contribute to public understanding of the operations or activities of
either DA or DoD. An example of such records might be press clippings,
magazine
[[Page 9246]]
articles, or records forwarding a particular opinion or concern from a
member of the public regarding an Army or DoD activity. Similarly,
disclosures of records of considerable age may or may not bear directly
on the current activities of either DA or DoD; however, the age of a
particular record shall not be the sole criteria for denying relative
significance under this factor. It is possible to envisage an
informative issue concerning the current activities of DA or DoD, based
upon historical documentation. Requests of this nature must be closely
reviewed consistent with the requester's stated purpose for desiring
the records and the potential for public understanding of the
operations and activities of DA or DoD.
(ii) The informative value of the information to be disclosed
requires a close analysis of the substantive contents of a record, or
portion of the record, to determine whether disclosure is meaningful,
and shall inform the public on the operations or activities of DA or
DoD. While the subject of a request may contain information that
concerns operations or activities of DA or DoD, it may not always hold
great potential for contributing to a meaningful understanding of these
operations or activities. An example of such would be a previously
released record that has been heavily redacted, the balance of which
may contain only random words, fragmented sentences, or paragraph
headings. A determination as to whether a record in this situation will
contribute to the public understanding of the operations or activities
of DA or DoD must be approached with caution, and carefully weighed
against the arguments offered by the requester. Another example is
information already known to be in the public domain. Disclosure of
duplicative, or nearly identical information already existing in the
public domain may add no meaningful new information concerning the
operations and activities of DA or DoD.
(iii) The contribution to an understanding of the subject by the
general public is likely to result from disclosure that will inform, or
have the potential to inform the public, rather than simply the
individual requester or small segment of interested persons. The
identity of the requester is essential in this situation in order to
determine whether such requester has the capability and intention to
disseminate the information to the public. Mere assertions of plans to
author a book, researching a particular subject, doing doctoral
dissertation work, or indigence are insufficient without demonstrating
the capacity to further disclose the information in a manner that will
be informative to the general public. Requesters should be asked to
describe their qualifications, the nature of their research, the
purpose of the requested information, and their intended means of
dissemination to the public.
(iv) Activities must differentiate the relative significance or
impact of the disclosure against the current level of public knowledge,
or understanding, which exists before the disclosure. In other words,
will disclosure on a current subject of wide public interest be unique
in contributing previously unknown facts, thereby enhancing public
knowledge, or will it basically duplicate what is already known by the
general public? A decision regarding significance requires objective
judgment, rather than subjective determination, and must be applied
carefully to determine whether disclosure will likely lead to a
significant public understanding of the issue. Activities shall not
make value judgments as to whether the information is important enough
to be made public.
(3) Disclosure of the information ``is not primarily in the
commercial interest of the requester.''
(i) If the request is determined to be of a commercial interest,
Activities should address the magnitude of that interest to determine
if the requester's commercial interest is primary, as opposed to any
secondary personal or non-commercial interest. In addition to profit-
making organizations, individual persons or other organizations may
have a commercial interest in obtaining certain records. Where it is
difficult to determine whether the requester is of a commercial nature,
Activities may draw inference from the requester's identity and
circumstances of the request. Activities are reminded that in order to
apply the commercial standards of the FOIA, the requester's commercial
benefit must clearly override any personal or non-profit interest.
(ii) Once a requester's commercial interest has been determined,
Activities should then determine if the disclosure would be primarily
in that interest. This requires a balancing test between the commercial
interest of the request against any public benefit to be derived as a
result of that disclosure. Where the public interest is served above
and beyond that of the requester's commercial interest, a waiver or
reduction of fees would be appropriate. Conversely, even if a
significant public interest exists, and the relative commercial
interest of the requester is determined to be greater than the public
interest, then a waiver or reduction of fees would be inappropriate. As
examples, news media organizations have a commercial interest as
business organizations; however, their inherent role of disseminating
news to the general public can ordinarily be presumed to be of a
primary interest. Therefore, any commercial interest becomes secondary
to the primary interest in serving the public. Similarly, scholars
writing books or engaged in other forms of academic research, may
recognize a commercial benefit, either directly, or indirectly (through
the institution they represent); however, normally such pursuits are
primarily undertaken for educational purposes, and the application of a
fee charge would be inappropriate. Conversely, data brokers or others
who merely compile government information for marketing can normally be
presumed to have an interest primarily of a commercial nature.
(4) Activities are reminded that the factors and examples used in
this section are not all inclusive. Each fee decision must be
considered on a case-by-case basis and upon the merits of the
information provided in each request. When the element of doubt as to
whether to charge or waive the fee cannot be clearly resolved,
Activities should rule in favor of the requester.
(5) In addition, the following additional circumstances describe
situations where waiver or reduction of fees are most likely to be
warranted:
(i) A record is voluntarily created to prevent an otherwise
burdensome effort to provide voluminous amounts of available records,
including additional information not requested; or
(ii) A previous denial of records is reversed in total, or in part,
and the assessable costs are not substantial (e.g. $15.00--$30.00).
(e) Fee assessment. Fees may not be used to discourage requesters,
and to this end, FOIA fees are limited to standard charges for direct
document search, review (in the case of commercial requesters) and
duplication.
(1) In order to be as responsive as possible to FOIA requests while
minimizing unwarranted costs to the taxpayer, Activities shall adhere
to the following procedures:
(i) Each request must be analyzed to determine the category of the
requester. If the Activity determination regarding the category of the
requester is different than that claimed by the requester, the Activity
should notify the requester to provide additional justification to
warrant the category claimed, and that a search for responsive records
will not be initiated until agreement has been attained relative to the
category of the requester. Absent further category
[[Page 9247]]
justification from the requester, and within a reasonable period of
time (i.e., 30 calendar days), the Activity shall render a final
category determination, and notify the requester of such determination,
to include normal administrative appeal rights of the determination.
The requester should be advised that, notwithstanding any appeal, a
search for responsive records will not be initiated until the requester
indicates a willingness to pay assessable costs appropriate for the
category determined by the Activity;
(ii) Requesters should submit a fee declaration appropriate for the
below categories. Commercial requesters should indicate a willingness
to pay all search, review and duplication costs. Educational or
Noncommercial Scientific Institution or News Media requesters should
indicate a willingness to pay duplication charges, if applicable, in
excess of 100 pages if more than 100 pages of records are desired. All
other requesters should indicate a willingness to pay assessable search
and duplication costs;
(iii) Activities must be prepared to provide an estimate of
assessable fees if desired by the requester. While it is recognized
that search situations will vary among Activities, and that an estimate
is often difficult to obtain prior to an actual search, requesters who
desire estimates are entitled to such before committing to a
willingness to pay. Should Activities' actual costs exceed the amount
of the estimate or the amount agreed to by the requester, the amount in
excess of the estimate or the requester's agreed amount shall not be
charged without the requester's agreement;
(iv) No Army Activity may require advance payment of any fee; i.e.,
payment before work is commenced or continued on a request, unless the
requester has previously failed to pay fees in a timely fashion, or the
agency has determined that the fee will exceed $250.00. As used in this
sense, a timely fashion is 30 calendar days from the date of billing
(the fees have been assessed in writing) by the Activity;
(v) Where an Activity estimates or determines that allowable
charges that a requester may be required to pay are likely to exceed
$250.00, the Activity shall notify the requester of the likely cost and
obtain satisfactory assurance of full payment where the requester has a
history of prompt payments, or require an advance payment of an amount
up to the full estimated charges in the case of requesters with no
history of payment;
(vi) Where a requester has previously failed to pay a fee charged
in a timely fashion (i.e., within 30 calendar days from the date of the
billing), the Activity may require the requester to pay the full amount
owed, plus any applicable interest, or demonstrate that he or she has
paid the fee, and to make an advance payment of the full amount of the
estimated fee before the Activity begins to process a new or pending
request from the requester. Interest will be at the rate prescribed in
31 U.S.C. 3717, and confirmed with respective Finance and Accounting
Offices;
(vii) After all work is completed on a request, and the documents
are ready for release, Activities may request payment before forwarding
the documents, particularly for those requesters who have no payment
history, or for those requesters who have failed previously to pay a
fee in a timely fashion (i.e., within 30 calendar days from the date of
the billing;
(viii) The administrative time limits of the FOIA will begin only
after the Activity has received a willingness to pay fees and
satisfaction as to category determination, or fee payments (if
appropriate); and
(ix) Activities may charge for time spent searching for records,
even if that search fails to locate records responsive to the request.
Activities may also charge search and review (in the case of commercial
requesters) time if records located are determined to be exempt from
disclosure. In practice, if the Activity estimates that search charges
are likely to exceed $25.00, it shall notify the requester of the
estimated amount of fees, unless the requester has indicated in advance
his or her willingness to pay fees as high as those anticipated. Such a
notice shall offer the requester the opportunity to confer with
Activity personnel with the object of reformulating the request to meet
his or her needs at a lower cost.
(2) Commercial Requesters. Fees shall be limited to reasonable
standard charges for document search, review and duplication when
records are requested for commercial use. Requesters must reasonably
describe the records sought.
(i) The term ``commercial use'' request refers to a request from,
or on behalf of one who seeks information for a use or purpose that
furthers the commercial, trade, or profit interest of the requester or
the person on whose behalf the request is made. In determining whether
a requester properly belongs in this category, Activities must
determine the use to which a requester will put the documents
requested. Moreover, where an Activity has reasonable cause to doubt
the use to which a requester will put the records sought, or where that
use is not clear from the request itself, Activities should seek
additional clarification before assigning the request to a specific
category.
(ii) When Activities receive a request for documents for commercial
use, they should assess charges, which recover the full direct costs of
searching for, reviewing for release, and duplicating the records
sought. Commercial requesters (unlike other requesters) are not
entitled to two hours of free search time, nor 100 free pages of
reproduction of documents. Moreover, commercial requesters are not
normally entitled to a waiver or reduction of fees based upon an
assertion that disclosure would be in the public interest. However,
because use is the exclusive determining criteria, it is possible to
envision a commercial enterprise making a request that is not for
commercial use. It is also possible that a non-profit organization
could make a request that is for commercial use. Such situations must
be addressed on a case-by-case basis.
(3) Educational institution requesters. Fees shall be limited to
only reasonable standard charges for document duplication (excluding
charges for the first 100 pages) when the request is made by an
educational institution whose purpose is scholarly research. Requesters
must reasonably describe the records sought. The term ``educational
institution'' refers to a pre-school, a public or private elementary or
secondary school, an institution of graduate high education, an
institution of undergraduate higher education, an institution of
professional education, and an institution of vocational education,
which operates a program or programs of scholarly research. Fees shall
be waived or reduced in the public interest if the criteria above have
been met.
(4) Non-Commercial Scientific Institution Requesters. Fees shall be
limited to only reasonable standard charges for document duplication
(excluding charges for the first 100 pages) when the request is made by
a non-commercial scientific institution whose purpose is scientific
research. Requesters must reasonably describe the records sought. The
term ``non-commercial scientific institution'' refers to an institution
that is not operated on a ``commercial'' basis and that is operated
solely for the purpose of conducting scientific research, the results
of which are not intended to promote any particular product or
industry.
(5) Activities shall provide documents to requesters for the cost
of duplication alone, excluding charges for the first 100 pages. To be
eligible for inclusion in these categories, requesters must
[[Page 9248]]
show that the request is being made under the auspices of a qualifying
institution and that the records are not sought for commercial use, but
in furtherance of scholarly (from an educational institution) or
scientific (from a non-commercial scientific institution) research.
(6) Representatives of the news media. Fees shall be limited to
only reasonable standard charges for document duplication (excluding
charges for the first 100 pages) when the request is made by a
representative of the news media. Requesters must reasonably describe
the records sought.
(i) The term ``representative of the news media'' refers to any
person actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public. The term ``news''
means information that is about current events or that would be of
current interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large and
publishers of periodicals (but only in those instances when they can
qualify as disseminators of ``news'') who make their products available
for purchase or subscription by the general public. These examples are
not meant to be all-inclusive. Moreover, as traditional methods of news
delivery evolve (e.g., electronic dissemination of newspapers through
telecommunications services), such alternative media would be included
in this category. In the case of ``freelance'' journalists, they may be
regarded as working for a news organization if they can demonstrate a
solid basis for expecting publication through that organization, even
though not actually employed by it. A publication contract would be the
clearest proof, but Activities may also look to the past publication
record of a requester in making this determination.
(ii) To be eligible for inclusion in this category, a requester
must meet the criteria in paragraph (e) (6) (i) of this section, and
his or her request must not be made for commercial use. A request for
records supporting the news dissemination function of the requester
shall not be considered to be a request that is for a commercial use.
For example, a document request by a newspaper for records relating to
the investigation of a defendant in a current criminal trial of public
interest could be presumed to be a request from an entity eligible for
inclusion in this category, and entitled to records at the cost of
reproduction alone (excluding charges for the first 100 pages).
(iii) ``Representative of the news media'' does not include private
libraries, private repositories of Government records, information
vendors, data brokers or similar marketers of information whether to
industries and businesses, or other entities.
(7) All Other Requesters. Activities shall charge requesters who do
not fit into any of the categories, fees which recover the full direct
cost of searching for and duplicating records, except that the first
two hours of search time and the first 100 pages of duplication shall
be furnished without charge. Requesters must reasonably describe the
records sought. Requests from subjects about themselves will continue
to be treated under the fee provisions of the Privacy Act of 1974,
which permit fees only for duplication. Activities are reminded that
this category of requester may also be eligible for a waiver or
reduction of fees if disclosure of the information is in the public
interest as defined in paragraph (6) (ii) in this section.
(f) Aggregating requests. Except for requests that are for a
commercial use, an Activity may not charge for the first two hours of
search time or for the first 100 pages of reproduction. However, a
requester may not file multiple requests at the same time, each seeking
portions of a document or documents, solely in order to avoid payment
of fees. When an Activity reasonably believes that a requester or, on
rare occasions, a group of requesters acting in concert, is attempting
to break a request down into a series of requests for the purpose of
avoiding the assessment of fees, the agency may aggregate any such
requests and charge accordingly. One element to be considered in
determining whether a belief would be reasonable is the time period in
which the requests have occurred. For example, it would be reasonable
to presume that multiple requests of this type made within a 30-day
period had been made to avoid fees. For requests made over a longer
period, however, such a presumption becomes harder to sustain and
Activities should have a solid basis for determining that aggregation
is warranted in such cases. Activities are cautioned that before
aggregating requests from more than one requester, they must have a
concrete basis on which to conclude that the requesters are acting in
concert and are acting specifically to avoid payment of fees. In no
case may Activities aggregate multiple requests on unrelated subjects
from one requester.
(g) Debt Collection Act of 1982 (Pub. L. 97-365). The Debt
Collection Act provides for a minimum annual rate of interest to be
charged on overdue debts owed the Federal Government. Activities may
levy this interest penalty for any fees that remain outstanding 30
calendar days from the date of billing (the first demand notice) to the
requester of the amount owed. The interest rate shall be as prescribed
in 31 U.S.C. 3717. Activities should verify the current interest rate
with respective Finance and Accounting Offices. After one demand letter
has been sent, and 30 calendar days have lapsed with no payment,
Activities may submit the debt to respective Finance and Accounting
Offices for collection pursuant to the Debt Collection Act.
(h) Computation of fees. The fee schedule shall be used to compute
the search, review (in the case of commercial requesters) and
duplication costs associated with processing a given FOIA request.
Costs shall be computed on time actually spent. Neither time-based nor
dollar-based minimum charges for search, review and duplication are
authorized. The appropriate fee category of the requester shall be
applied before computing fees. DD Form 2086 (Record of Freedom of
Information (FOI) Processing Cost) will be used to annotate fees for
processing FOIA information.
(i) Refunds. In the event that an Activity discovers that it has
overcharged a requester or a requester has overpaid, the Activity shall
promptly refund the charge to the requester by reimbursement methods
that are agreeable to the requester and the Activity.
Sec. 518.20 Collection of fees and fee rates.
(a) Collection of fees. Collection of fees will be made at the time
of providing the documents to the requester or recipient when the
requester specifically states that the costs involved shall be
acceptable or acceptable up to a specified limit that covers the
anticipated costs. Collection of fees may not be made in advance unless
the requester has failed to pay previously assessed fees within 30
calendar days from the date of the billing by the Activity, or the
Activity has determined that the fee will be in excess of $250.
(b) Search time.
(1) Costs for manual searches.
------------------------------------------------------------------------
Hourly rate
Type Grade ($)
------------------------------------------------------------------------
Clerical........................... E9/GS 8 and below..... 20
Professional....................... 1-06/GS 9-GS 15....... 44
Executive.......................... 07/ST/SL/SES-1 and 75
above.
Contractor......................... ...................... 44
------------------------------------------------------------------------
[[Page 9249]]
(2) Computer Search. Fee assessments for computer search consists
of two parts; individual time (hereafter referred to as human time),
and machine time.
(i) Human time. Human time is all the time spent by humans
performing the necessary tasks to prepare the job for a machine to
execute the run command. If execution of a run requires monitoring by a
human, that human time may be also assessed as computer search. The
terms ``programmer/operator'' shall not be limited to the traditional
programmers or operators. Rather, the terms shall be interpreted in
their broadest sense to incorporate any human involved in performing
the computer job (e.g. technician, administrative support, operator,
programmer, database administrator, or action officer).
(ii) Machine time. Machine time involves only direct costs of the
Central Processing Unit (CPU), input/output devices, and memory
capacity used in the actual computer configuration. Only this CPU rate
shall be charged. No other machine related costs shall be charged. In
situations where the capability does not exist to calculate CPU time,
no machine costs can be passed on to the requester. When CPU
calculations are not available, only human time costs shall be assessed
to requesters. Should Army Activities lease computers, the services
charged by the lesser shall not be passed to the requester under the
FOIA.
(c) Duplication Costs.
------------------------------------------------------------------------
Type Cost per page (cents)
------------------------------------------------------------------------
Pre-printed material...................... .02
Office Copy............................... .15
Microfiche................................ .25
Computer copies (tapes, discs or Actual cost of duplicating
printouts). the tape, disc or printout
(includes operator's time
and cost of the medium)
------------------------------------------------------------------------
(d) Review Time Costs (in the case of commercial requesters).
------------------------------------------------------------------------
Hourly rate
Type Grade ($)
------------------------------------------------------------------------
Clerical........................... E9/GS 8 and below..... 20
Professional....................... 01-06/GS 9-GS 15...... 44
Executive.......................... 07/ST/SL/SES-1 and 75
above.
Contractor......................... ...................... 44
------------------------------------------------------------------------
(e) Audiovisual Documentary Materials. Search costs are computed as
for any other record. Duplication cost is the actual direct cost of
reproducing the material, including the wage of the person doing the
work. Audiovisual materials provided to a requester need not be in
reproducible format or quality. Army audiovisual materials are referred
to as ``visual information.''
(f) Other Records. Direct search and duplication cost for any
record not described above shall be computed in the manner described
for audiovisual documentary material.
(g) Costs for Special Services. Complying with requests for special
services is at the discretion of the Activities. Neither the FOIA, nor
its fee structure cover these kinds of services. Therefore, Activities
may recover the costs of special services requested by the requester
after agreement has been obtained in writing from the requester to pay
for one or more of the following services:
(1) Certifying that records are true copies; and/or
(2) Sending records by special methods such as express mail, etc.
Sec. 518.21 Collection of fees and fee rates for technical data.
(a) Fees for technical data. Technical data, other than technical
data that discloses critical technology with military or space
application, if required to be released under the FOIA, shall be
released after the person requesting such technical data pays all
reasonable costs attributed to search, duplication and review of the
records to be released. Technical data, as used in this section, means
recorded information, regardless of the form or method of the recording
of a scientific or technical nature (including computer software
documentation). This term does not include computer software, or data
incidental to contract administration, such as financial and/or
management information. Army Activities shall retain the amounts
received by such a release, and it shall be merged with and available
for the same purpose and the same time period as the appropriation from
which the costs were incurred in complying with request. All reasonable
costs as used in this sense are the full costs to the Federal
Government of rendering the service, or fair market value of the
service, whichever is higher. Fair market value shall be determined in
accordance with commercial rates in the local geographical area. In the
absence of a known market value, charges shall be based on recovery of
full costs to the Federal Government. The full costs shall include all
direct and indirect costs to conduct the search and to duplicate the
records responsive to the request. This cost is to be differentiated
from the direct costs allowable for other types of information released
under the FOIA. DD Form 2086-1 will be used to annotate fees for
technical data. The form is available through normal publication
channels.
(b) Waiver. Activities shall waive the payment of costs described
in paragraph (a) of this section, which are greater than the costs that
would be required for release of this same information if the request
is made by a citizen of the United States or a United States
corporation, and such citizen or corporation certifies that the
technical data requested is required to enable it to submit an offer,
or determine whether it is capable of submitting an offer to provide
the product to which the technical data relates to the United States or
a contractor with the United States. However, Activities may require
the citizen or corporation to pay a deposit in an amount equal to not
more than the cost of complying with the request, which will be
refunded upon submission of an offer by the citizen or corporation;
(1) The release of technical data is requested in order to comply
with the terms of an international agreement; or,
(2) The Activity determines that such a waiver is in the interest
of the United States.
(c) Fee Rates.
(1) Costs for a manual search of technical data.
------------------------------------------------------------------------
Hourly rate
Type Grade ($)
------------------------------------------------------------------------
Clerical........................... E9/GS 8 and below..... 13.25
Minimum Charge..................... ...................... 8.30
------------------------------------------------------------------------
Notes: Professional and Executive (To be established at actual hourly
rate prior to search. A minimum charge will be established at \1/2\
hourly rates.
(2) Computer search is based on the total cost of the cpu, input-
output devices, and memory capacity of the actual computer
configuration. The wage for the computer operator and/or programmer
determining how to conduct, and subsequently executing the search will
be recorded as part of the computer search.
(d) Duplication Costs for technical data.
------------------------------------------------------------------------
Cost
Type ($)
------------------------------------------------------------------------
Aerial photograph, maps, specifications, permits, charts, 2.50
blueprints, and other technical engineering documents.........
Engineering data (microfilm)...................................
[[Page 9250]]
a. Aperture cards
Silver duplicate negative, per card............................ .75
When key punched and verified, per card........................ .85
Diazo duplicate negative, per card............................. .65
When key punched and verified, per card........................ .75
b. 35 mm roll film, per frame.............................. .50
c. 16 mm roll film, per frame.............................. .45
d. Paper prints (engineering drawings), each............... 1.50
e. Paper reprints of microfilm indices, each............... .10
------------------------------------------------------------------------
(e) Review time costs of technical data.
------------------------------------------------------------------------
Hourly
Type Grade rate
($)
------------------------------------------------------------------------
Clerical............................. E9/GS 8 and below....... 13.25
Minimum Charge ........................ 8.30
------------------------------------------------------------------------
Notes: Professional and Executive (To be established at actual hourly
rate prior to search. A minimum charge will be established at \1/2\
hourly rates.
(f) Other Technical Data Records. Charges for any additional
services not specifically consistent with Volume 11A of DoD 7000.14-R,
shall be made by Activities at the following rates:
------------------------------------------------------------------------
Cost
Type ($)
------------------------------------------------------------------------
1. Minimum charge for office copy (up to six images)........... 3.50
2. Each additional image....................................... .10
3. Each typewritten page....................................... 3.50
4. Certification and validation with seal, each................ 5.20
5. Hand-drawn plots and sketches, each hour or fraction thereof 12.00
------------------------------------------------------------------------
Subpart G--Reports
Sec. 518.22 Reports control.
(a) General. (1) The Annual FOIA Report is mandated by the statute
and reported on a fiscal year basis. Due to the magnitude of the
requested statistics and the need to ensure accuracy of reporting, Army
Activities shall track this data as requests are processed. This will
also facilitate a quick and accurate compilation of statistics. Army
Activities shall forward their report to DA, FOIA/PA Office, no later
than October 15 following the fiscal year's close. It may be submitted
electronically and via hard copy accompanied by a computer diskette. In
turn, DA and DoD will produce a consolidated report for a submission to
the Attorney General and ensure that a copy of the consolidated report
is placed on the Internet for public access.
(2) Existing Army standards and registered data elements are to be
utilized to the greatest extent possible in accordance with the
provisions of DoD 8320.1-M, ``Data Administration Procedures.''
(3) The reporting requirement outlined is assigned Report Control
Symbol DD-DA&M(A)1365, FOIA Report to Congress.
(b) Reporting time. Each DA IDA shall prepare statistics and
accumulate paperwork for the preceding fiscal year on those items
prescribed for the annual report. The IDAs will follow guidelines below
and submit the information to the DA, FOIA/PA Office, on or before the
15th day of each October.
(1) Each reporting activity will submit the information requested
on the DD Form 2564, ``Annual Report Freedom of Information Act.'' The
form is available through normal publication channels.
(2) Each IDA will submit the information requested on the DD Form
2564, excluding items 3, 4, and 9c.
(3) The Judge Advocate General (DAJA) and Chief of Engineers (COE)
will submit the information requested on the Form DD 2564, item 9c.
(4) The General Counsel (SAGC) will submit the information
requested on the DD Form 2564, items 3 and 4.
(5) The DA, FOIA/PA Office will compile the data submitted in the
Army's Annual Report. This report will be submitted to the DoD Office
for Freedom of Information and Security Review on or before the 30th
day of each November.
Sec. 518.23 Annual report content.
The current edition of DD Form 2564 shall be used to submit
Activity input. Instructions for completion follows:
(a) ITEM 1 Initial Request Determinations. Please note that initial
PA requests, which are also processed as initial FOIA requests, are
reported here.
(1) Total requests processed. Enter the total number of initial
FOIA requests responded to (completed) during the fiscal year. This
should include pending cases at the end of the prior fiscal year, Total
Actions is the sum of Items 1b through 1e, on the DD Form 2564. This
total may exceed Total Requests Processed.
(2) Granted in full. Enter the total number of initial FOIA
requests responded to that were granted in full during the fiscal year.
(This may include requests granted by your office, yet still requiring
action by another office).
(3) Denied in part. Enter the total number of initial FOIA requests
responded to and denied in part based on one or more of the FOIA
exemptions. (Do not report ``Other Reason Responses'' as a partial
denial here, unless a FOIA exemption is also used).
(4) Denied in full. Enter the total number of initial FOIA requests
responded to and denied in full based on one or more of the FOIA
exemptions. (Do not report ``Other Reason Responses'' as denials here,
unless a FOIA exemption is also used).
(5) ``Other reason'' responses. Enter the total number of initial
FOIA requests in which you were unable to provide all or part of the
requested information based on an ``Other Reason'' response.
(6) Total actions. Enter the total number of FOIA actions taken
during the fiscal year. This number will be the sum of items 1b,
through 1e. Total Actions must be equal to or greater than the number
of Total Requests Processed.
(b) ITEM 2 Initial Request Exemptions and Other Reasons. (1)
Exemptions invoked on initial request determinations. Enter the number
of times an exemption was claimed for each request that was denied in
full or in part. Since more than one exemption may be claimed when
responding to a single request, this number will be equal to or greater
than the sum of (3) and (4), above. The (b)(7) exemption is reported by
subcategories (A) through (F): (A) Interfere with Enforcement; (B) Fair
Trial Right; (C) Invasion of Privacy; (D) Protect Confidential Source;
(E) Disclose Techniques, and (F) Endanger Life or Safety.
(2) ``Other Reasons'' Cited on Initial Determinations. Identify the
``Other Reason'' response cited when responding to a FOIA request and
enter the number of times each was claimed.
(i) No records. Enter the number of times a reasonable search of
files failed to identify records responsive to subject request.
(ii) Referrals. Enter the number of times a request was referred to
another DoD Component or Federal Agency for action.
(iii) Request withdrawn. Enter the number of times a request and/or
appeal was withdrawn by a requester.
(iv) Fee-related reason. Requester is unwilling to pay the fees
associated with a request; the requester is past due in the payment of
fees from a previous FOIA request; or the requester disagrees with a
fee estimate.
(v) Records not reasonably described. Enter the number of times a
FOIA request could not be acted upon since the record had not been
described with sufficient particularity to enable the Army Activity to
locate it by conducting a reasonable search.
(vi) Not a proper FOIA request for some other reason. Enter the
number of
[[Page 9251]]
times the requester has failed unreasonably to comply with procedural
requirements, other than fee-related imposed by this part or an Army
Activity's supplementing regulation.
(vii) Not an agency record. Enter the number of times a requester
was provided a response indicating the requested information was not a
record within the meaning of the FOIA and this part.
(viii) Duplicate request. Record number of duplicate requests
closed for that reason (e.g., request for the same information by the
same requester). This includes identical requests received via
different means (e.g., electronic mail, facsimile, mail, and courier)
at the same or different times.
(ix) Other (Specify). Any other reason a requester does not comply
with published rules, other than those reasons outlined in paragraphs
(b)(2)(i) through (viii) of this section.
(x) Total. Enter the sum of paragraphs (b)(2)(i) through (ix) of
this section, in the block provided on the form (total other reasons).
This number will be equal to or greater than the number in item 1e on
the report form, since more than one reason may be claimed for each
``Other Reason'' response.
(3) (b)(3) Statutes invoked on initial determinations. Identify the
number of times you have used a specific statute to support each (b)(3)
exemption. List the statutes used to support each (b)(3) exemption; the
number of instances in which the statute was cited; note whether or not
the statute has been upheld in a court hearing; and provide a concise
description of the material withheld in each individual case by the
statute's use. Ensure you cite the specific sections of the acts
invoked. The total number of instances reported will be equal to or
greater than the total number of (b)(3) exemptions listed in Item 2a on
the report form.
(c) ITEM 3 Appeal determinations. Please note that PA appeals,
which are also processed as FOIA appeals, are reported here.
(1) Total appeal responses. Enter the total number of FOIA appeals
responded to (completed) during the fiscal year.
(2) Granted in full. Enter the total number of FOIA appeals
responded to and granted in full during the year.
(3) Denied in part. Enter the total number of FOIA appeals
responded to and denied in part based on one or more of the FOIA
exemptions. (Do not report ``Other Reason Responses'' as a partial
denial here, unless a FOIA exemption is used also.)
(4) Denied in full. Enter the total number of FOIA appeals
responded to and denied in full based on one or more of the FOIA
exemptions. (Do not report ``Other Reason Responses'' as denials here,
unless a FOIA exemption is used also).
(5) ``Other reason'' responses. Enter the total number of FOIA
appeals in which you were unable to provide the requested information
based on an ``Other Reason'' response.
(6) Total actions. Enter the total number of FOIA appeal actions
taken during the fiscal year. This number will be the sum of items 3b,
through 3e, and should be equal to or greater than the number of Total
Appeal Responses, item 3a on the report form.
(d) ITEM 4 Appeal exemptions and other reasons. (1) Exemptions
Invoked on Appeal Determinations. Enter the number of times an
exemption was claimed for each appeal that was denied in full or in
part. Since more than one exemption may be claimed when responding to a
single request, this number will be equal to or greater than the sum of
items 3c, and 3d on the report form. Note that the (b)(7) exemption is
reported by subcategory (A) through (F): (A) Interfere with
Enforcement; (B) Fair Trial Right; (C) Invasion of Privacy; (D) Protect
Confidential Source; (E) Disclose Techniques, and (F) Endanger Life or
Safety.
(2) ``Other reasons'' cited on appeal determinations. Identify the
``Other Reason'' response cited when responding to a FOIA appeal and
enter the number of times each was claimed. This number may be equal to
or possibly greater than the number in item 3e on the report form,
since more than one reason may be claimed for each ``Other Reason''
response.
(3) (b)(3) Statutes invoked on appeal determinations. Identify the
number of times a specific statute has been used to support each (b)(3)
exemption identified in item 4a on the report form DD 2564. List the
statutes used to support each (b)(3) exemption; the number of instances
in which the statute was cited; note whether or not the statute has
been upheld in a court hearing; and provide a concise description of
the material withheld in each individual case by the statute's use.
Ensure citation to the specific sections of the statute invoked. The
total number of instances reported will be equal to or greater than the
total number of (b)(3) exemptions listed in Item 4a on the report form.
(e) ITEM 5 Number and median age of initial cases pending:
(1) Total initial cases pending:
(i) Beginning and ending report period: Midnight, 2400 hours,
September 30, of the Preceding Year--or--0001 hours, October 1, is the
beginning of the report period. Midnight, 2400 hours, is the close of
the reporting period.
(ii) The number for the beginning report period must be the same
number reported as of the end of the report period from the previous
report.
(2) Median age of initial requests pending: Report the median age
in days (including holidays and weekends) of initial requests pending.
(3) Examples of median calculation.
(i) If given five cases aged 10, 25, 35, 65, and 100 days from date
of receipt as of the previous September 30th, the total requests
pending is five (5). The median age (days) of open requests is the
middle, not average value, in this set of numbers (10, 25, 35, 65, and
100), 35 (the middle value in the set).
(ii) If given six pending cases, aged 10, 20, 30, 50, 120, and 200
days from date of receipt, as of the previous September 30th, the total
requests pending is six (6). The median age (days) of open requests 40
days (the mean [average] of the two middle numbers in the set, in this
case the average of middle values 30 and 50).
(4) Accuracy of Calculations. Activities must ensure the accuracy
of calculations. As backup, the raw data used to perform calculations
should be recorded and preserved. This will enable recalculation of
median [and mean values] as necessary. Activities may require
subordinate elements to forward raw data, as deemed necessary and
appropriate.
(5) Average. If an Activity believes that ``average'' (mean)
processing time is a better measure of performance, then report
``averages'' (means) as well as median values (e.g., with data
reflected and plainly labeled on plain bond as an attachment to the
report). However, ``average'' (mean) values will not be included in the
consolidated Army report unless all Activities report it.
(f) ITEM 6 Number of Initial Requests Received During the Fiscal
Year. Enter the total number of initial FOIA requests received during
the reporting period (fiscal year being reported).
(g) ITEM 7 Types of Requests Processed and Median Age. Information
is reported for three types of initial requests completed during the
reporting period: Simple; Complex; and Expedited Processing. The
following items of information are reported for these requests:
(1) Total Number of Initial Requests. Enter the total number of
initial requests processed [completed] during the reporting period
(fiscal year) by type (Simple, Complex and Expedited
[[Page 9252]]
Processing) in the appropriate row on the form.
(2) Median Age (Days). Enter the median number of days [calendar
days including holidays and weekends] required to process each type of
case (Simple, Complex and Expedited Processing) during the period in
the appropriate row on the form.
(3) Example. Given seven initial requests, multitrack--simple
completed during the fiscal year, aged 10, 25, 35, 65, 79, 90 and 400
days when completed. The total number of requests completed was seven
(7). The median age (days) of completed requests is 65, the middle
value in the set.
(h) ITEM 8 Fees collected from the public. Enter the total amount
of fees collected from the public during the fiscal year. This includes
search, review and reproduction costs only.
(i) ITEM 9 FOIA program costs. (1) Number of full time staff. Enter
the number of personnel your agency had dedicated to working FOIA full
time during the fiscal year. This will be expressed in work-years [man-
years]. For example: ``5.1, 3.2, 1.0, 6.5, et al.''
Table 7-1.--Sample Computation of Work Years for Full Time Staff
------------------------------------------------------------------------
Number of
Employee months Work-years Note
worked
------------------------------------------------------------------------
Smith, Jane.................. 6 .50 Hired full time
at middle of
fiscal year
Public, John Q............... 4 .34 Dedicated to
full time FOIA
processing
last quarter
of the fiscal
year
Brown, Tom................... 12 1.00 Worked FOIA
full time all
fiscal year
--------------------------
Totals................... 22 1.84 ...............
------------------------------------------------------------------------
(2) Number of part time staff. Enter the number of personnel your
agency had dedicated to working FOIA part time during the fiscal year.
This will be expressed in work-years [man-years]. For example: ``5.1,
3.2, 1.0, 6.5, et al.''
Table 7-2.--Computation of Work Years for Part Time Staff
------------------------------------------------------------------------
Number of
Employee months Work-years Note
worked
------------------------------------------------------------------------
Public, John Q............... 200 .1 Amount of time
devoted to
part time FOIA
processing
before
becoming full
time FOIA
processor in
previous
example
White, Sally................. 400 .2 Processed FOIAs
part time
while working
as paralegal
in General
Counsel's
Office
Peters, Ron.................. 1,000 .5 Part time
employee
dedicated to
FOIA
processing
-------------
Totals................... 1,600/2,000
(hours
worked in a
year)
equals 0.8
work-years
------------------------------------------------------------------------
(3) Estimated Litigation Cost. Report your best estimate of
litigation costs for the FY. Include all direct and indirect expenses
associated with FOIA litigation in U.S. District Courts, U.S. Circuit
Courts of Appeals, and the U.S. Supreme Court.
(4) Total Program Cost. Report the total cost of FOIA program
operation within your agency. Include your litigation costs in this
total. While you do not have to report detailed cost information as in
the past, you should be able to explain the techniques by which you
derived you agency's total cost figures if the need arises.
(i) Before the close of each fiscal year, the DoD OFOISR will
dispatch the latest OSD Composite Rate Chart for military personnel to
DoD Components. This information may be used in computing military
personnel costs.
(ii) Army Activities should compute their civilian personnel costs
using rates from local Office of Personnel Management (OPM) Salary
Tables and shall add 16% for benefits.
(iii) Data captured on DD Form 2086, and DD Form 2086-1, shall be
summarized and used in computing total costs.
(iv) An overhead rate of 25% shall be added to all calculated costs
for supervision, space, and administrative support.
(j) ITEM 10 Authentication. The official that approves the agency's
report submission to DA will sign and date; enter typed name and duty
title; and provide both the agency's name and phone number for
questions about the report. The consolidated Annual FOIA Report will be
made available to the public in electronic format by DoD.
APPENDIX A to Part 518--References(a) References.
(1) AR 1-20 Legislative Liaison;
(2) AR 20-1 Inspector General Activities and Procedures;
(3) AR 25-1 The Army Information Management;
(4) AR 25-11 Record Communications and the Privacy
Communications System;
(5) AR 25-400-2 The Army Records Information Management System
(ARIMS);
(6) AR 27-20 Claims;
(7) AR 36-2 Audit Reports and Follow-up;
(8) AR 40-66 Medical Record Administration and Health Care
Documentation;
(9) AR 40-68 Quality Assurance Administration;
(10) AR 40-400 Patient Administration;
(11) AR 195-2 Criminal Investigation Activities;
(12) AR 25-71 The Army Privacy Program;
(13) AR 360-1 The Army Public Affairs Program;
(14) AR 380-5 Department of the Army Information Security
Program;
(15) AR 381-10 U.S. Army Intelligence Activities;
(16) AR 381-12 Subversion and Espionage Directed Against The
U.S. Army (SAEDA);
[[Page 9253]]
(17) AR 381-20 The Army Counterintelligence Program;
(18) AR 530-1 Operations Security (OPSEC);
(19) AR 600-85 Army Substance Abuse Program; and
(20) AR 608-18 The Army Family Advocacy Program.
(b) Related publications. A related publication is merely a
source of additional information. The user does not have to read it
to understand this part.
(1) AR 10-5 Headquarters, Department of the Army;
(2) AR 27-10 Military Justice;
(3) AR 27-40 Litigation;
(4) AR 27-60 Intellectual Property;
(5) AR 60-20 Army and Air Force Exchange Service Operating
Policies AFR 147-14;
(6) AR 70-31 Standards for Technical Reporting;
(7) AR 190-45 Law Enforcement Reporting;
(8) AR 380-10 Foreign Disclosure and Contacts with Foreign
Representatives;
(9) AR 381-45 Investigative Records Repository;
(10) AR 385-40 Accident Reporting and Records;
(11) DA Pam 25-30 Consolidated Army Publications and Index
Forms;
(12) DA Pam 25-51 The Army Privacy Program--System of Records
Notices and Exemption Rules;
(13) DoD Directive 5100.3 Support of the Headquarters of
Combatant and Subordinate Joint Commands, November 15, 1999;
(14) DoD Directive 5230.24 Distribution Statements on Technical
Documents, March 18, 1987;
(15) DoD Directive 5230.25 Withholding of Unclassified Technical
Data From Public Disclosure, November 6, 1984;
(16) DoD Directive 5230.9 Clearance of DoD Information for
Public Release, April 9, 1996;
(17) DoD Directive 5400.4 Provision of Information to Congress,
January 30, 1978;
(18) DoD Directive 5400.7 DoD Freedom of Information Act (FOIA)
Program, September 29, 1997;
(19) DoD Directive 5400.11 DOD Privacy Program, December 13,
1999;
(20) DoD Directive 7650.1 Government Accountability Office (GAO)
and Comptroller General Access to Records, September 11, 1997;
(21) DoD Directive 7650.2 Government Accountability Office
Reviews and Reports, July 13, 2000;
(22) DoD Directive 8910.1 Management and Control of Information
Requirements, June 11, 1993;
(23) DoD Federal Acquisition Regulation Supplement (DFARS), Part
227 Patents, Data, and Copyrights. See also 48 CFR part 227;
(24) Department of Defense Financial Management Regulation
(Reimbursable Operations, Policy and Procedures) Volume 11A, April
2003 authorized by DoD Instruction 7000.14, DoD Financial Management
Policy and Procedures, November 15, 1992;
(25) DoD Instruction 5400.10 OSD Implementation of DoD Freedom
of Information Act Program, January 24, 1991;
(26) DoD 5200.1-R Information Security Program, January 1997,
authorized by DoD Directive 5200.1, December 13, 1996, DoD
Information Security Program;
(27) DoD 5400.7-R DoD Freedom of Information Act Program,
September 4, 1998;
(28) DoD 5400.11-R Department of Defense Privacy Program, August
1983, authorized by DoD Directive 5400.11, December 13, 1999, DoD
Privacy Program;
(29) Executive Order 12600 Predisclosure Notification Procedures
for Confidential Commercial Information, June 23, 1987, 52 FR 23781;
(30) Public Law 86-36 National Security Information Exemption,
Codified at 50 U.S.C. 402, as amended;
(31) Public Law 104-191 Health Insurance Portability and
Accountability Act of 1996, Codified at 42 U.S.C. 1171-1179, as
amended;
(32) Section 822 of the National Defense Authorization Act for
FY 90 and 91 (Pub. L. 101-189, November 29, 1989: 103 Stat. 1382,
1503);
(33) 5 U.S.C. 551-559, Administrative Procedures Act;
(34) 5 U.S.C. 552, as amended: public information; agency rules,
opinions, orders, records, and proceedings. (FOIA);
(35) 5 U.S.C. 552a, as amended: records about individuals, (PA
of 1974);
(36) 10 U.S.C. 128, Physical Protection of Special Nuclear
Material: Limitation on Dissemination of Unclassified Information;
(37) 10 U.S.C. 130, Authority to Withhold from Public Disclosure
Certain Technical Data;
(38) 10 U.S.C. 130(b), Personnel in Overseas, Sensitive, or
Routinely Deployable Units: nondisclosure of personally identifying
information;
(39) 10 U.S.C. 1102(f), Confidentiality of Medical Quality
Assurance Records: Qualified Immunity for Participants;
(40) 10 U.S.C. 2305(g) Prohibition on Release of Contractor
Proposals;
(41) 10 U.S.C. 2320-2321, Rights in Technical Data;
(42) 10 U.S.C. 2328, Release of Technical Data under Freedom of
Information Act: Recovery of Costs;
(43) 17 U.S.C. 106, Exclusive Rights in Copyrighted Works;
(44) 18 U.S.C. 798, Disclosure of Classified Information;
(45) 18 U.S.C. 3500, The Demands for Production of Statements
and Reports of Witnesses (The Jencks Act);
(46) 31 U.S.C. 3717, Interest and Penalty on Claims;
(47) 32 CFR part 518, The Army FOIA Program;
(48) 35 U.S.C. 181-188, Secrecy of Certain Inventions and Filing
of Application in Foreign Country;
(49) 41 U.S.C. 423, Restrictions on Disclosing and Obtaining
Contractor Bid or Proposal Information or Source Selection
Information;
(50) 42 U.S.C. 2162, Classification and Declassification of
Restricted Data;
(51) 44 U.S.C. 3301-3324, Disposal of Records;
(52) 45 CFR part 164, Security and Privacy of Individually
Identifiable Health Information; and
(53) 50 U.S.C. 403-3, War and National Defense, Protection of
Intelligence Sources and Methods.
APPENDIX B to Part 518--Addressing FOIA Requests
(a) General. Army records may be requested from those Army
officials who are listed in 32 CFR part 518 (see appendix A).
Contact the DA FOIA/PA Office, to coordinate the referral of
requests if there is uncertainty as to which Army activity may have
the records. Send requests to particular installations or
organizations as follows:
(1) Current publications and records of DA field commands,
installations, and organizations. See also: http://books.army.mil/.
(2) Send the request to the commander of the command,
installation, or organization, to the attention of the FOIA
Official.
(3) Consult AR 25-400-2 (ARIMS) for more detailed listings of
all record categories kept in DA offices.
(4) Contact the installation or organization public affairs
officer for help if you cannot determine the official within a
specific organization to whom your request should be addressed.
(b) Department of the Army publications. Send requests for
current administrative, training, technical, and supply publications
to the National Technical Information Service, U.S. Department of
Commerce, 5285 Port Royal Road, Springfield, VA 22161. NTIS handles
general public requests for unclassified, uncopyrighted, and
nondistribution-restricted Army publications not sold through the
Superintendent of Documents.
(c) Military personnel records. Send requests for military
personnel records of information as follows:
(1) Army Reserve personnel not on active duty and retired
personnel--Commander, U.S. Army Human Resources Command, St. Louis,
1 Reserve Way, St. Louis, MO 63132-5200.
(2) Army officer personnel discharged or deceased after July 1,
1917 and Army enlisted personnel discharged or deceased after
November 1, 1912--Director, National Personnel Records Center, 9700
Page Ave., St. Louis, MO 63132-5100.
(3) Army personnel separated before the dates specified in
paragraph (2), above--Old Military and Civilian Records Unit
(Archives 1), National Archives and Records Administration,
Washington, DC 20408-0001.
(4) Army National Guard officer personnel--Chief, National Guard
Bureau. Army National Guard enlisted personnel--Adjutant General of
the proper State.
(5) Active duty commissioned and warrant officer personnel--
Commander, U.S. Army Human Resources Command, ATTN: AHRC-FOI,
Alexandria, VA 22332-0404. Active duty enlisted personnel--
Commander, U.S. Army Enlisted Records and Evaluation Center, ATTN:
PCRE-RP, 8899 East 56th Street, Indianapolis, IN 46249-5301.
(d) Medical records.
(1) Medical records of non-active duty military personnel. Use
the same addresses as for military personnel records.
[[Page 9254]]
(2) Medical records of military personnel on active duty.
Address the medical treatment facility where the records are kept.
If necessary request locator service.
(3) Medical records of civilian employees and all dependents.
Address the medical treatment facility where the records are kept.
If the records have been retired, send requests to the Director,
National Personnel Records Center, Civilian Records Facility, 111
Winnebago St., St. Louis, MO 63118-4199.
(e) Legal records.
(1) Records of general courts-martial and special courts-martial
in which bad conduct discharge was approved. For cases not yet
forwarded for appellate review, apply to the staff judge advocate of
the command having jurisdiction over the case. For cases forwarded
for appellate review and for old cases, apply to the U.S. Army Legal
Services Agency, ATTN: JALS-CCO, 901 North Stuart Street, Arlington,
VA 22203.
(2) Records of special courts-martial not involving a bad
conduct discharge. These records are kept for 10 years after
completion of the case. If the case was completed within the past
three years, apply to the staff judge advocate of the headquarters
where it was reviewed. If the case was completed from 3 to 10 years
ago, apply to the National Personnel Records Center (Military
Records), 9700 Page Ave., St. Louis, MO 63132-5100. If the case was
completed more than 10 years ago, the only evidence of conviction is
the special courts-martial order in the person's permanent records.
(3) Records of summary courts-martial. Locally maintained
records are retired 3 years after action of the supervisory
authority. Request records of cases less than 3 years old from the
staff judge advocate of the headquarters where the case was
reviewed. After 10 years, the only evidence of conviction is the
summary courts-martial order in the person's permanent records.
(4) Requests submitted under paragraphs (e) (2) and (3), of this
appendix. These requests will be processed in accordance with
subpart E of this part. The IDA is The Judge Advocate General, HQDA
(DAJA-CL), Washington, DC 20310-2200.
(5) Administrative settlement of claims. Apply to the Chief,
U.S. Army Claims Service, ATTN: JACS-TC, Building 4411, Llewellyn
Avenue, Fort George G. Meade, MD 20755-5360.
(6) Records involving debarred or suspended contractors. Apply
to U.S. Army Legal Services Agency (JALS-PF), 901 North Stewart
Street, Arlington, VA 22203.
(7) Records of all other legal matters (other than records kept
by a command, installation, or organization staff judge advocate).
Apply to HQDA (DAJA-AL), Washington, DC 20310-2200.
(f) Civil works program records. Civil works records include
those relating to construction, operation, and maintenance for the
improvement of rivers, harbors, and waterways for navigation, flood
control, and related purposes, including shore protection work by
the Army. Apply to the proper division or district office of the
Corps of Engineers. If necessary to determine the proper office,
contact the Commander, U.S. Army Corps of Engineers, 20
Massachusetts Avenue, ATTN: CECC-K, Washington, DC 20314-1000.
(g) Civilian personnel records. Send requests for personnel
records of current civilian employees to the employing installation.
Send requests for personnel records of former civilian employees to
the Director, National Personnel Records Center, Civilian Records
Facility, 111 Winnebago St., St. Louis, MO 63118-4199.
(h) Procurement records. Send requests for information about
procurement activities to the contracting officer concerned or, if
not feasible, to the procuring activity. If the contracting officer
or procuring activity is not known, send inquiries as follows:
(1) Army Materiel Command procurement: Commander, U.S. Army
Materiel Command, ATTN: AMCID-F, 5001 Eisenhower Ave., Alexandria,
VA 22333-0001.
(2) Corps of Engineers procurement: Commander, U.S. Army Corps
of Engineers, 20 Massachusetts Avenue, ATTN: CECC-K, Washington, DC
20314-1000.
(3) All other procurement: HQDA (DAJA-KL), 2200 Army Pentagon,
Washington, DC 20310-2200.
(i) Criminal investigation files. Send requests involving
criminal investigation files to the Commander, U.S. Army Criminal
Investigation Command, ATTN: CICR-FP, 6010 6th St., Bldg.
1465, Ft. Belvoir, VA 22060-5585. Only the Commanding
General, USACIDC, can release any USACIDC-originated criminal
investigation file.
(j) Personnel security investigation files and general Army
intelligence records. Send requests for personnel security
investigation files, intelligence investigation and security
records, and records of other Army intelligence matters to the
Commander, U.S. Army Intelligence and Security Command, ATTN: IAMG-
CIC-FOI/PO, 4552 Pike Road, Fort George G. Meade, MD 20755-5995.
(k) Inspector General records. Send requests involving records
within the Inspector General system to HQDA (SAIG-ZXL), 1700 Army
Pentagon, Washington, DC 20310-1700. AR 20-1 governs such records.
(l) Army records in Government records depositories. Non-current
Army records are in the National Archives of the United States,
Washington, DC 20408-0001; in Federal Records Centers of NARA; and
in other records depositories. Requesters must write directly to the
heads of these depositories for copies of such records. A list of
pertinent records depositories is published in AR 25-400-2, table
10-1.
[FR Doc. 06-1499 Filed 2-21-06; 8:45 am]
BILLING CODE 3710-08-P