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27 October 2006
[Federal Register: October 27, 2006 (Volume 71, Number 208)]
[Rules and Regulations]
[Page 62940-62941]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27oc06-17]
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DEPARTMENT OF DEFENSE
Office of the Secretary
[DOD-2006-OS-0106]
32 CFR Part 286
DoD Freedom of Information Act Program Regulation
AGENCY: Department of Defense.
ACTION: Final rule.
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SUMMARY: This documents removes Subpart D, ``For Official Use Only''
(FOUO) from 32 CFR part 286, ``DoD Freedom of Information Act Program
Regulations'' and reserves that subpart for future use. Removing this
from 32 CFR part 286 will eliminate confusion of the authoritative FOUO
guidance and who is the authority on FOUO. This removal will alleviate
any further uncertainty, avoid duplication of FOUO guidance, and is
considered an administrative action.
DATES: Effective Date: November 27, 2006.
FOR FURTHER INFORMATION CONTACT: Mr. Stephen Fisher, 703-696-4697.
SUPPLEMENTARY INFORMATION: The Under Secretary of Defense
(Intelligence) (USD(I)) is responsible for FOUO guidance. This guidance
(FOUO) is included in Appendix 3 of DoD 5200.1-R \1\ which is the
current FOUO guidance for the Department of Defense.
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\1\ Copies may be obtained at http://www.dtic.mil/whs/directives/corres/pdf/52001r_0197/p52001r.pdf
.
[Copy of Appendix 3: http://cryptome.org/p52001r-ap3.pdf (50KB)]
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List of Subjects in 32 CFR Part 286
Freedom of information.
PART 286--DOD FREEDOM OF INFORMATION ACT PROGRAM REGULATIONS
0
Accordingly, by the authority of 10 U.S.C. 301, 32 CFR part 286 is
amended as follows:
[[Page 62941]]
0
1. The authority citation for 32 CFR part 286 continues to read as
follows:
Authority: 5 U.S.C. 552.
0
2. 32 CFR part 286 is amended by removing and reserving subpart D.
Dated: October 23, 2006.
L.M. Bynum,
OSD Federal Register Liaison Officer, DoD.
[FR Doc. 06-8908 Filed 10-26-06; 8:45 am]
BILLING CODE 5001-06-M
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[32CFR286 Part D added.]
[Code of Federal Regulations]
[Title 32, Volume 2]
[Revised as of July 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR286]
[Page 669-671]
TITLE 32--NATIONAL DEFENSE
CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE (CONTINUED)
PART 286_DOD FREEDOM OF INFORMATION ACT PROGRAM REGULATION--Table of
Contents
Subpart D_For Official Use Only
Sec. 286.15 General provisions.
(a) General. Information that has not been given a security
classification pursuant to the criteria of an Executive Order, but which
may be withheld from the public because disclosure would cause a
foreseeable 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 anemic form of classification to
protect national security interests. Additional information on FOUO and
other controlled, unclassified information may be found in DoD 5200. 1-R
or by contacting the Directorate for Security, Office of the Assistant
Secretary of Defense (Command, Control, Communications, and
Intelligence).
(b) Prior FOUO application. The prior application of FOUO markings
is not a conclusive basis for withholding a record that is requested
under the FOIA. When such a record is requested, the information in it
shall be evaluated to determine whether disclosure would result in a
foreseeable harm to an interest protected by one or more FOIA exemptions
2 through 9. Even if any exemptions apply, the record shall be released
as a discretionary matter when it is determined that there is no
foreseeable harm to an interest protected by the exemptions.
(c) Historical papers. Records such as notes, working papers, and
drafts retained as historical evidence of DoD Component actions enjoy no
special apart from the exemptions under the FOIA.
(d) Time to mark records. The marking of records at the time of
their creation provides notice of FOUO content and facilitates review
when a record is requested under the FOIA. Records requested under the
FOIA that do not bear such markings shall not be assumed to be
releasable without examination for the presence of information that
requires continued protection and qualifies as exempt from public
release.
(e) Distribution statement. Information in a technical document that
requires a distribution statement pursuant to DoD Directive 5230.24 \8\
shall bear that statement and may be marked FOUO, as appropriate.
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\8\ See footnote 1 to Sec. 286.1(a).
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Sec. 286.16 Markings.
(a) Location of markings. (1) An unclassified document containing
FOUO information shall be marked ``For Official Use Only'' at the bottom
on the outside of the front cover (if any), on each page containing FOUO
information, and on the outside of the back cover (if any). Each
paragraph containing FOUO information shall be marked as such.
(2) Within a classified document, an individual page that contains
both FOUO and classified information shall be marked at the top and
bottom with the highest security classification of information appearing
on the page. Individual paragraphs shall be marked at the appropriate
classification level, as well as unclassified or FOUO, as appropriate.
(3) Within a classified document, an individual page that contains
FOUO information but no classified information shall be marked ``For
Official Use Only'' at the top and bottom of the page, as well as each
paragraph that contains FOUO information.
[[Page 670]]
(4) Other records, such as photographs, films, tapes, or slides,
shall be marked ``For Official Use Only'' or ``FOUO'' in a manner that
ensures that a recipient or viewer is aware of the status of the
information therein.
(5) FOUO material transmitted outside the Department of Defense
requires application of an expanded marking to explain the significance
of the FOUO marking. This may be accomplished by typing or stamping the
following statement on the record prior to transfer:
This document contains information
EXEMPT FROM MANDATORY DISCLOSURE
under the FOIA. Exemption(s) ------ applies/apply.
(b) [Reserved]
Sec. 286.17 Dissemination and transmission.
(a) Release and transmission procedures. Until FOUO status is
terminated, the release and transmission instructions that follow apply:
(1) FOUO information may be disseminated within DoD Components and
between officials of DoD Components and DoD contractors, consultants,
and grantees to conduct official business for the Department of Defense.
Recipients shall be made aware of the status of such information, and
transmission shall be by means that preclude unauthorized public
disclosure. Transmittal documents shall call attention to the presence
of FOUO attachments.
(2) DoD holders of FOUO information are authorized to convey such
information to officials in other Departments and Agencies of the
Executive and Judicial Branches to fulfill a government function, except
to the extent prohibited by the Privacy Act. Records thus transmitted
shall be marked ``For Official Use Only,'' and the recipient shall be
advised that the information may qualify for exemption from public
disclosure, pursuant to the FOIA, and that special handling instructions
do or do not apply.
(3) Release of FOUO information to Members of Congress is governed
by DoD Directive 5400.4. \9\ Release to the GAO is governed by DoD
Directive 7650.1. \10\ Records released to the Congress or GAO should be
reviewed to determine whether the information warrants FOUO status. If
not, prior FOUO markings shall be removed or effaced. If withholding
criteria are met, the records shall be marked FOUO and the recipient
provided an explanation for such exemption and marking. Alternatively,
the recipient may be requested, without marking the record, to protect
against its public disclosure for reasons that are explained.
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\9\ See footnote 1 to Sec. 286.1(a).
\10\ See footnote 1 to Sec. 286.1(a).
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(b) Transporting FOUO information. Records containing FOUO
information shall be transported in a manner that prevents disclosure of
the contents. When not commingled with classified information, FOUO
information may be sent via first-class mail or parcel post. Bulky
shipments, such as distributions of FOUO Directives or testing
materials, that otherwise qualify under postal regulations, may be sent
by fourth-class mail.
(c) Electronically and facsimile transmitted messages. Each part of
electronically and facsimile transmitted messages containing FOUO
information shall be marked appropriately. Unclassified messages
containing FOUO information shall contain the abbreviation ``FOUO''
before the beginning of the text. Such messages and facsimiles shall be
transmitted in accordance with communications security procedures
whenever practicable.
Sec. 286.18 Safeguarding FOUO information.
(a) During duty hours. During normal working hours, records
determined to be FOUO shall be placed in an out-of-sight location if the
work area is accessible to nongovernment personnel.
(b) During nonduty hours. At the close of business, FOUO records
shall be stored so as to prevent unauthorized access. Filing such
material with other unclassified records in unlocked files or desks,
etc., is adequate when normal U.S. Government or Government-contractor
internal building security is provided during nonduty hours. When such
internal security control is not exercised, locked buildings or rooms
normally provide adequate after-hours
[[Page 671]]
protection. If such protection is not considered adequate, FOUO material
shall be stored in locked receptacles such as file cabinets, desks, or
bookcases. FOUO records that are subject to the provisions of the
National Security Act of 1959 shall meet the safeguards outlined for
that group of records.
Sec. 286.19 Termination, disposal and unauthorized disclosure.
(a) Termination. The originator or other competent authority; e.g.,
initial denial and appellate authorities, shall terminate ``For Official
Use Only'' markings or status when circumstances indicate that the
information no longer requires protection from public disclosure. When
FOUO status is terminated, all known holders shall be notified, to the
extent practical. Upon notification, holders shall efface or remove the
``For Official Use Only'' markings, but records in file or storage need
not be retrieved solely for that purpose.
(b) Disposal. (1) Nonrecord copies of FOUO materials may be
destroyed by tearing each copy into pieces to prevent reconstructing,
and placing them in regular trash containers. When local circumstances
or experience indicates that this destruction method is not sufficiently
protective of FOUO information, local authorities may direct other
methods but must give due consideration to the additional expense
balanced against the degree of sensitivity of the type of FOUO
information contained in the records.
(2) Record copies of FOUO documents shall be disposed of in
accordance with the disposal standards established under 44 U.S.C. 3301-
3314, as implemented by DoD Component instructions concerning records
disposal.
(c) Unauthorized disclosure. The unauthorized disclosure of FOUO
records does not constitute an unauthorized disclosure of DoD
information classified for security purposes. Appropriate administrative
action shall be taken, however, to fix responsibility for unauthorized
disclosure whenever feasible, and appropriate disciplinary action shall
be taken against those responsible. Unauthorized disclosure of FOUO
information that is protected by the Privacy Act may also result in
civil and criminal sanctions against responsible persons. The DoD
Component that originated the FOUO information shall be informed of its
unauthorized disclosure.
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