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Wednesday,

February 22, 2006

Part III

Department of
Defense
Department of the Army

32 CFR Part 518


The Freedom of Information Act
Program; Final Rule
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DEPARTMENT OF DEFENSE Act which is outside the scope of the 518.16 Initial determinations.
proposed rule. 518.17 Appeals.
Department of the Army 518.18 Judicial actions.
B. Regulatory Flexibility Act
Subpart F—Fee Schedule
32 CFR Part 518 The Department of the Army has
518.19 General provisions.
determined that the Regulatory 518.20 Collection of fees and fee rates.
RIN 0702–AA45
Flexibility Act does not apply because 518.21 Collection of fees and fee rates for
The Freedom of Information Act the rule does not have a significant technical data.
Program economic impact on a substantial
number of small entities within the Subpart G—Reports
AGENCY: Department of the Army, DoD. meaning to the Regulatory Flexibility 518.22 Reports control.
ACTION: Final Rule. Act, 5 U.S.C. 601–612. 518.23 Annual report content.

C. Paperwork Reduction Act Appendices to Part 518


SUMMARY: The Department of the Army
Appendix A to Part 518—References.
is revising our rule in support of the The Department of the Army has Appendix B to Part 518—Addressing FOIA
Freedom of Information Act as required determined that the Paperwork Requests.
by public law and updating the Reduction Act does not apply because
provisions for access and release of the rule does not impose recordkeeping Authority: 5 U.S.C. 551, 552, 552a, 5101–
5108, 5110–5113, 5115, 5332–5334, 5341–42,
information from all Army information or information collection requirements 5504–5509, 7154; 10 U.S.C. 130, 1102, 2320–
systems (automated and manual) that from contractors or members of the 2321, 2328; 18 U.S.C. 798, 3500; 31 U.S.C.
further supports the Army’s Records public. 3710; 35 U.S.C. 181–188; 42 U.S.C. 2162; 44
Management Program. This rule U.S.C. 33; and Executive Order 12600.
D. Executive Order 12866
finalizes the proposed rule that was
published in the Federal Register on The Department of the Army has Subpart A—General provisions
December 28, 2004. determined that according to the criteria
defined in Executive Order 12866, this § 518.1 Purpose.
DATES: Effective Date: March 24, 2006.
rule is not a significant regulatory This part provides policies and
ADDRESSES: The Administrative procedures for implementation of the
action.
Assistant to the Secretary of the Army, Freedom of Information Act (5 U.S.C.
(AASA), The Records and Programs Donald C. Hakenson, 552, as amended) and Department of
Agency, (RPA), U.S. Army Freedom of Acting Chief, U.S. Army Freedom of Defense Directive (DoDD) 5400.7 and
Information and Privacy Office, ATTN: Information and Privacy Office. promotes uniformity in the Department
JDRP–RDF, Casey Bldg., Suite 144, 7701 List of Subjects in 32 CFR Part 518 of Defense (DoD) Freedom of
Telegraph Road, Alexandria, VA 22315– Information Act (FOIA) Program. This
3905. Freedom of Information Act.
Administrative practices and Army regulation implements provisions
FOR FURTHER INFORMATION CONTACT: U.S. for access and release of information
procedures.
Army Freedom of Information and from all Army information systems
Privacy Office, (703) 428–6508. ■ For the reasons stated in the preamble, (automated and manual) in support of
SUPPLEMENTARY INFORMATION: the Department of the Army revises 32 Army Information Management (AR 25–
CFR part 518—The Army Freedom of 1).
A. Background Information Act Program as follows:
In the December 28, 2004, issue of the § 518.2 References.
Federal Register, (69 FR 77836), the PART 518—THE FREEDOM OF Required and related publications are
Department of the Army issued a INFORMATION ACT PROGRAM listed in Appendix A of this part.
proposed rule to revise 32 CFR 518. Subpart A—General Provisions § 518.3 Explanation of abbreviations and
This final rule prescribes procedures Sec. terms.
and responsibilities of the Freedom of 518.1 Purpose. Abbreviations and special terms used
Information Act, in accordance with the 518.2 References. in this part are explained in the glossary
Electronic Freedom of Information Act 518.3 Explanation of abbreviations and of AR 25–55.
(FOIA) Amendments of 1996. The terms.
Electronic Freedom of Information Act 518.4 Responsibilities. § 518.4 Responsibilities.
Amendments of 1996 changed the 518.5 Authority.
518.6 Public information. (a) The Administrative Assistant to
response time from 10 to 20 days, 518.7 FOIA terms defined. the Secretary of the Army (AASA) is
required Multitrack processing of FOIA 518.8 Freedom of Information responsible for issuing policy and
requests, required an Electronic FOIA requirements. establishing guidance for the Army
Reading Room, and changed the FOIA Program. AASA has the
Subpart B—FOIA Reading Rooms
requirements for the Annual Report and responsibility to approve exceptions to
the timetable for that report from 518.9 Reading room. this regulation that are consistent with
518.10 ‘‘(a)(2)’’ Materials.
calendar to fiscal year. The Department controlling law and regulations. AASA
518.11 Other materials.
of the Army received responses from may delegate the approval authority, in
two commenters. No substantial Subpart C—Exemptions writing, to a division chief, under its
changes are required at this time; 518.12 General. supervision, within that agency in the
however proposed administrative 518.13 FOIA exemptions. grade of O6 or civilian equivalent.
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changes were accepted and made to the Subpart D—For Official Use Only (b) The Administrative Assistant to
final rule. One commenter expressed the Secretary of the Army, (AASA), The
518.14 General.
support for the proposed rule. The Records and Programs Agency, (RPA),
second commenter proposed several Subpart E—Release and Processing Records Management and
changes which would require the Procedures Declassification Agency (RMDA), is
revision of the Freedom of Information 518.15 General provisions. responsible for developing and

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recommending policy to AASA (6) AR 36–2 (Government Accounting prepared to present a sound legal basis
concerning the Army FOIA program and Office audits); in support of their determinations. In
overall execution of the program under (7) AR 40–66, AR 40–68, and AR 40– order that the public may have timely
the policy and guidance of AASA. 400 (medical records); information concerning Army activities,
(c) The Chief of Information Officer (8) AR 70–31 (technical reports); records requested through public
(CIO), G6 will provide oversight of the (9) AR 20–1, AR 385–40 and DA Pam information channels by news media
FOIA program as necessary in 385–40 (aircraft accident investigations); representatives that would not be
compliance with Federal Statutes, (10) AR 195–2 (criminal investigation withheld if requested under the FOIA
regulations, Office of Management and activities); should be released upon request.
Budget (OMB), and the Office of (11) AR 190–45 (Military Police Prompt responses to requests for
Secretary of Defense (OSD). records and reports); information from news media
(d) Heads of Army Staff agencies, field (12) AR 360–1 (Army public affairs: representatives should be encouraged to
operating agencies, major Army public information, general policies on eliminate the need for these requesters
commands (MACOMS), and subordinate release of information to the public); to invoke the provisions of the FOIA
commands are responsible for the (13) AR 380–5 and DoD 5200.1–R and thereby assist in providing timely
supervision and execution of the FOIA (national security classified information to the public. Similarly,
program in functional areas and information); requests from other members of the
activities under their command. (14) AR 380–5 paragraph 7–101e public for information that would not be
(e) Heads of Joint Service agencies or (policies and procedures for allowing withheld under the FOIA should
commands for which the Army is the persons outside the Executive Branch to continue to be honored through
Executive Agent, or otherwise has do unofficial historical research in appropriate means without requiring the
responsibility for providing fiscal, classified Army records); requester to invoke the FOIA.
logistical, or administrative support, (15) AR 380–10 (Technology Transfer
for disclosure of information and (b) FOIA handbook. The Department
will adhere to the policies and of the Army Freedom of Information
procedures in this regulation. contacts with foreign representatives;
(16) AR 381–45 (U.S. Army Act/Privacy Act (DA FOIA/PA) Office
(f) Commander, Army and Air Force shall prepare, in addition to FOIA
Exchange Service (AAFES), is Intelligence and Security Command
investigation files); regulations, a handbook for the use of
responsible for the supervision of the the public in obtaining information from
FOIA program within that command (17) AR 385–40 (safety reports and
records); its organizations. This handbook will be
pursuant to this part. a short, simple explanation of what the
(18) AR 600–8–104 (military
§ 518.5 Authority. personnel information management FOIA is designed to do, and how a
(a) This part governs written FOIA records); member of the public can use it to
requests from members of the public. It (19) AR 600–85 (alcohol and drug access government records. The DA
does not preclude the release of abuse records); FOIA/PA Office handbook will explain
personnel or other records to agencies or (20) AR 608–19 (family advocacy the types of records that can be obtained
individuals in the Federal Government records); and through FOIA requests, why some
for use in official work. (21) AR 690 (series civilian personnel records cannot, by law, be made
(b) Soldiers and civilian employees of records, FAR, DoD Federal Acquisition available, and how the Army activity
the Department of the Army (DA) may, Regulation Supplement (DFARS) and determines whether or not the record
as private citizens, request DA or other the Army Federal Acquisition can be released. The handbook will also
agencies’ records under the FOIA. They Regulation Supplement (AFARS) explain how to make a FOIA request,
must prepare requests at their own procurement matters). how long the requester can expect to
expense and on their own time. They wait for a reply, and appeal rights. The
§ 518.6 Public information. handbook will supplement other
may not use Government equipment,
supplies, or postage to prepare personal (a) Public information. The public has information locator systems, such as the
FOIA requests. It is not necessary for a right to information concerning the Government Information Locator
soldiers or civilian employees to go activities of its Government. Army Service (GILS), and explain how a
through the chain of command to policy is to conduct its activities in an requester can obtain more information
request information under the FOIA. open manner and provide the public about those systems. The handbook will
(c) Requests for DA records processed with a maximum amount of accurate be available on paper and through
under the FOIA may be denied only in and timely information concerning its electronic means and contain the
accordance with the FOIA (5 U.S.C. activities, consistent always with the following additional information,
552(b)), as implemented by this part. legitimate public and private interests of complete with electronic links to the
Guidance on the applicability of the the American people. A record below elements: the location of reading
FOIA is also found in the Federal requested by a member of the public room and the types and categories of
Acquisition Regulation (FAR). who follows rules established by proper information available; the location of
(d) Release of some records may also authority in DA shall not be withheld in the World Wide Web page; a reference
be affected by the programs that created whole or in part unless the record is to the Army FOIA regulation and how
them. They are discussed in the exempt from mandatory partial or total to obtain a copy; a reference to the Army
following regulations: disclosure under the FOIA. As a matter FOIA annual report and how to obtain
(1) AR 20–1 (Inspector General of policy, Army activities shall make a copy; and the location of the GILS
activities and procedures); discretionary disclosures of exempt page. The DA FOIA handbook, ‘‘A
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(2) AR 27–10 (military justice); records or information only after full Citizen’s Guide to Request Army
(3) AR 27–20 (claims); and deliberate consideration of the Records Under the Freedom of
(4) AR 27–40 (litigation: release of institutional, commercial, and personal Information Act (FOIA),’’ can be
information and appearance of privacy interests that could be accessed on-line at http://
witnesses); implicated by disclosure of the www.rmda.belvoir.army.mil/. ‘‘The
(5) AR 27–60 (intellectual property); information. Activities must be Major Automated Information Systems

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Descriptions’’ can be accessed at created and maintained primarily for authority is the Office of the Army
http://www.defenselink.mil/pubs/foi. the convenience of an agency employee, General Counsel (OGC).
(c) Control system. A request for and not distributed to other agency (f) Administrative appeal. A request
records that invokes the FOIA shall employees for their official use. by a member of the general public, made
enter a formal control system designed Personal papers fall into three under the FOIA, asking the appellate
to ensure accountability and compliance categories: Those created before entering authority of the Army to reverse a
with the FOIA. Any request for Army Government service; private materials decision to: Withhold all or part of a
records that either explicitly or brought into, created, or received in the requested record; deny a fee category
implicitly cites the FOIA shall be office that were not created or received claim by a requester; deny a request for
processed under the provisions of this in the course of transacting Government expedited processing due to
part, unless otherwise required. business; and work-related personal demonstrated compelling need; deny a
papers that are not used in the request for waiver or reduction of fees;
§ 518.7 FOIA terms defined.
transaction of Government business in deny a request to review an initial fee
(a) FOIA request. A written request for estimate; and confirm that no records
accordance with Public Law 86–36,
Army records that reasonably describes were located during the initial search.
National Security Information
the record(s) sought, made by any Requesters also may appeal the failure
Exemption.
person, including a member of the to receive a response determination
(2) A record must exist and be in the
public (U.S. or foreign citizen/entity), an within the statutory time limits, a fee
organization, or a business, but not possession and control of DA at the time
of the request to be considered subject estimate, and any determination that the
including a Federal Agency or a fugitive requester believes is adverse in nature.
from the law, that either explicitly or to this part and the FOIA. There is no
obligation to create or compile a record (g) Public interest. The interest in
implicitly invokes the FOIA, DoDD obtaining official information that sheds
5400.7, DoD 5400.7–R, this part, or to satisfy a FOIA request.
(3) Hard copy or electronic records light on an activity’s performance of its
Army Activity supplementing statutory duties because the information
regulations or instructions. All that are subject to FOIA requests under
5 U.S.C. 552 (a)(3), and that are falls within the statutory purpose of the
requesters should also indicate a FOIA to inform citizens about what
willingness to pay fees associated with available to the public through an
established distribution system such as their Government is doing. That
the processing of their request.
the Government Printing Office (GPO), statutory purpose, however, is not
Requesters may ask for a waiver of fees,
Federal Register, National Technical fostered by disclosure of information
but should also express a willingness to
Information Service (NTIS), or the about private citizens accumulated in
pay fees in the event of a waiver denial.
Internet, normally need not be various governmental files that reveals
Written requests may be received by
processed under the provisions of the nothing about an agency’s or official’s
postal service or other commercial
FOIA. If a request is received for such own conduct.
delivery means, by facsimile, or (h) Electronic record. Records
electronically (such as e-mail). Requests information, Army Activities shall
provide the requester with guidance, (including e-mail) that are created,
received by facsimile or electronically stored, and retrievable by electronic
must have a postal mailing address inclusive of any written notice to the
public, on how to obtain the means.
included since it may not be practical to (i) Federal agency. As defined by 5
provide a substantive response information. However, if the requester
insists that the request be processed U.S.C. 552 (f)(1), a Federal agency is any
electronically. The request is considered executive department, military
properly received, or perfected, when under the FOIA, then the request shall
be processed under the FOIA. If there is department, Government corporation,
the conditions in this paragraph have Government controlled corporation, or
been met and the request arrives at the any doubt as to whether the request
must be processed, contact DA, FOIA/ other establishment in the executive
FOIA office of the Activity in possession branch of the Government (including
of the records. PA Office.
(c) Army activity. A specific area of the Executive Office of the President), or
(b) Agency record. The products of any independent regulatory agency.
data compilation, such as all books, organizational or functional
(j) Law enforcement investigation. An
papers, maps, photographs, and responsibility within DA, authorized to
investigation conducted by a command
machine readable materials, inclusive of receive and act independently on FOIA
or activity for law enforcement purposes
those in electronic form or format, or requests.
relating to crime, waste, fraud or
other documentary materials, regardless (d) Initial denial authority (IDA). An
national security. Such investigations
of physical form or characteristics, made official who has been granted authority
may include gathering evidence for
or received by an agency of the United by the Secretary of the Army to deny
criminal prosecutions and for civil or
States Government under Federal law in records requested under the FOIA based
regulatory proceedings.
connection with the transaction of on one or more of the nine categories of
public business and in DA possession exemptions from mandatory disclosure. § 518.8 Freedom of Information
and control at the time the FOIA request An IDA also: Denies a fee category claim requirements.
is made. by a requester; denies a request for (a) Compliance with the FOIA. Army
(1) The following are not included expedited processing due to personnel are expected to comply with
within the definition of the word demonstrated compelling need; denies a the FOIA, this part, and Army FOIA
‘‘record’’: Objects or articles, such as request for a waiver or reduction of fees; policy in both letter and spirit. This
structures, furniture, vehicles and reviews a fee estimate; and confirms strict adherence is necessary to provide
equipment, whatever their historical that no records were located in response uniformity in the implementation of the
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value, or value as evidence; Anything to a request. Army FOIA Program and to create
that is not a tangible or documentary (e) Appellate authority. The Secretary conditions that will promote public
record, such as an individual’s memory of the Army or designee having trust.
or oral communication; Personal records jurisdiction for this purpose over the (b) Openness with the public. The DA
of an individual not subject to agency record, or any of the other adverse shall conduct its activities in an open
creation or retention requirements, determinations. The DA appellate manner consistent with the need for

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security and adherence to other do not constitute a final response after receipt of the request in the Army
requirements of law and regulation. determination pursuant to the FOIA. If Activity’s office that will determine
Records not specifically exempt from a request fails to meet minimum whether to grant expedited processing.
disclosure under the Act shall, upon requirements as set forth, Activities Once the Army Activity has determined
request, be made readily accessible to shall contact the requester and inform to grant expedited processing, the
the public in accordance with rules the requester what would be required to request shall be processed as soon as
promulgated by competent authority, perfect or correct the request, or to limit practicable. Actions by Army Activities
whether or not the Act is invoked. the scope to allow for the most to initially deny or affirm the initial
(1) Operations Security (OPSEC). DA expeditious response. The statutory 20 denial on appeal of a request for
officials who release records under the working day time limit applies upon expedited processing and a failure to
FOIA must also consider OPSEC. The receipt of a perfected or correct FOIA respond in a timely manner shall be
Army implementing directive is AR request. Before mailing a final response subject to judicial review. Initial
530–1. determination and those records or determination of denials of expedited
(2) DA Form 4948–R. This form lists portions thereof deemed releasable, processing will be immediately
references and information frequently records custodians will obtain a written forwarded to the IDA for action. If the
used for FOIA requests related to legal opinion from their servicing judge IDA upholds the denial, the requester
OPSEC. Persons who routinely deal advocate concerning the releasibility of will be informed of his or her right to
with the public (by telephone or letter) the requested records. The legal opinion appeal.
on such requests should keep the form must cite specific exemptions, (i) Imminent threat. Compelling need
on their desks as a guide. appropriate justification, and identify if means that the failure to obtain the
(c) Avoidance of procedural obstacles. the records were processed under the records on an expedited basis could
Army Activities shall ensure that FOIA, PA (including the applicable reasonably be expected to pose an
procedural matters do not unnecessarily systems notice), or both. imminent threat to the life or physical
impede a requester from obtaining DA (1) Multi-track processing. When an safety of an individual.
records promptly. The Army shall Army Activity has a significant number (ii) Alleged Federal Government
provide assistance to requesters to help of pending requests that prevents a activity. Compelling need also means
them understand and comply with response determination being made that the information is urgently needed
procedures established by this part and within 20 working days, the requests by an individual primarily engaged in
any supplemental regulations published shall be processed in a multitrack disseminating information in order to
by the Army Activities. Coordination of processing system, based on the date of inform the public concerning actual or
referral of requests with DA FOIA/PA receipt, the amount of work and time alleged Federal Government activity. An
Office should be made telephonically in involved in processing the requests, and individual primarily engaged in
order to respond to the requester in a whether the request qualifies for disseminating information means a
timelier manner. Requests will not be expedited processing. Army Activities person whose primary activity involves
mailed to the DA FOIA/PA Office for may establish as many processing publishing or otherwise disseminating
disposition or coordination with other queues as they wish; however, as a information to the public.
IDAs. minimum, three processing tracks shall Representatives of the news media
(d) Prompt action on requests and be established, all based on a first-in, would normally qualify as individuals
final response determinations. first-out concept, and rank ordered by primarily engaged in disseminating
Generally, when a member of the public the date of receipt of the request. One information. Other persons must
complies with the procedures track shall be a processing queue for demonstrate that their primary activity
established in this part or instructions simple requests, one track for complex involves publishing or otherwise
for obtaining DA records, and after the requests, and one track shall be a disseminating information to the public.
request is received by the official processing queue for expedited (iii) General public interest. Urgently
designated to respond, Army Activities processing. Determinations as to needed means that the information has
shall endeavor to provide a final whether a request is simple or complex a particular value that will be lost if not
response determination within the shall be made by each Army Activity. disseminated quickly. Ordinarily this
statutory 20 working days. If a Army Activities shall provide a means a breaking news story of general
significant number of requests, or the requester whose request does not public interest. However, information of
complexity of the requests prevent a qualify for the fastest queue an historical interest only or information
final response determination within the opportunity to limit the scope of the sought for litigation or commercial
statutory time period, Army Activities request in order to qualify for the fastest activities would not qualify, nor would
shall advise the requester of this fact, queue. This multitrack processing a news media publication or broadcast
and explain how the request will be system does not obviate an Activity’s’ deadline unrelated to the news breaking
responded to within its multitrack responsibility to exercise due diligence nature of the information.
processing system. A final response in processing requests in the most (iv) Certified statement. A
determination is notification to the expeditious manner possible. demonstration of compelling need by a
requester that the records are released or (2) Expedited processing. A separate requester shall be made by a statement
partially released, or will be released on queue shall be established for requests certified by the requester to be true and
a certain date, or the records are meeting the test for expedited correct to the best of his or her
withheld under an appropriate FOIA processing. Expedited processing shall knowledge. This statement must
exemption, or the records cannot be be granted to a requester after the accompany the request in order to be
provided for one or more of the other requester requests such and considered and responded to within the
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reasons. Interim responses demonstrates a compelling need for the 10 calendar days required for decisions
acknowledging receipt of the request, information. Notice of the determination on expedited access.
negotiations with the requester as to whether to grant expedited (v) Other reasons for expedited
concerning the scope of the request, the processing in response to a requester’s processing. Another reason that merits
response timeframe, and fee agreements compelling need shall be provided to expedited processing by Army FOIA
are encouraged; however, such actions the requester within 10 calendar days offices is an imminent loss of

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substantial due process rights. A paper form, as well as electronically, to reasonably describe the requested
demonstration of imminent loss of facilitate public access. Exempt records record, it shall contact the requester and
substantial due process rights shall be disclosed without authorization by the afford the requester the opportunity to
made by a statement certified by the appropriate Army FOIA official do not perfect the request. Army Activities are
requester to be true and correct to the lose their exempt status. Also, while not obligated to act on the request until
best of his or her knowledge. The authority may exist to disclose records the requester perfects the request. When
statement mentioned in paragraph (iv) to individuals in their official capacity, practicable, Army Activities shall
of this section must accompany the the provisions of this part apply if the contact the requester to aid in
request in order to be considered and same individual seeks the records in a identifying the records sought and in
responded to within the 10 calendar private or personal capacity. reformulating the request to reduce the
days required for decisions on (g) Creating a record. A record must burden on the agency in complying with
expedited access. Once the decision has exist and be in the possession and the Act. DA FOIA officials will reply to
been made to expedite the request for control of DA at the time of the search unclear requests by: Describing the
this reason, the request may be to be considered subject to this part and defects in the requests; explaining the
processed in the expedited processing the FOIA. There is no obligation to types of information described below,
queue behind those requests qualifying create or compile a record to satisfy a and ask the requester for such
for compelling need. FOIA request. An Army Activity, information; and explaining that no
(vi) Administrative appeals. These however, may compile a new record action will be taken on the request until
same procedures also apply to requests when so doing would result in a more the requester replies to the letter.
for expedited processing of useful response to the requester, or be (1) The following guidelines are
administrative appeals. less burdensome to the agency than provided to deal with generalized
(e) Use of exemptions. It is Army providing existing records, and the requests and are based on the principle
policy to make records publicly requester does not object. Cost of of reasonable effort. Descriptive
available, unless the record qualifies for creating or compiling such a record may information about a record may be
exemption under one or more of the not be charged to the requester unless divided into two broad categories:
nine exemptions. Discretionary releases the fee for creating the record is equal Category I is file-related and includes
of information protected under the to or less than the fee that would be information such as type of record (for
FOIA should be made only after full and charged for providing the existing example, memorandum), title, index
deliberate consideration of the record. Fee assessments shall be in citation, subject area, date of record
institutional, commercial, and personal accordance with subpart F of this part. creation, and originator; Category II is
privacy interests that could be (1) Concerning electronic data, the
event-related and includes the
implicated by disclosure of the issue of whether records are actually
circumstances that resulted in the
information. When Army activities created or merely extracted from an
record being created or the date and
determine to withhold information existing database is not always readily
circumstances surrounding the event
using one of the nine exemptions, the apparent. Consequently, when
Department of Justice (DOJ) will defend responding to FOIA requests for the record covers.
the position unless it is found to be electronic data where creation of a (2) Generally, a record is not
lacking a Sound Legal Basis for denial. record, programming, or particular reasonably described unless the
(1) Parts of a requested record may be format are questionable, Army Activities description contains sufficient Category
exempt from disclosure under the FOIA. should apply a standard of I information to permit an organized,
The proper DA official may delete reasonableness. non random search based on the Army
exempt information and release the (2) If the capability exists to respond Activity’s filing arrangements and
remainder to the requester. The proper to the request, and the effort would be existing retrieval systems, or unless the
official also has the discretion under the a business as usual approach, then the record contains sufficient Category II
FOIA to release exempt information request should be processed. However, information to permit an inference of
when appropriate; he or she must the request need not be processed where the Category I elements needed to
exercise this discretion in a reasonable the capability to respond does not exist conduct such a search.
manner, within regulations consistent without a significant expenditure of (3) The following guidelines deal with
with current policy considerations. The resources, thus not being a normal requests for personal records.
excised copies shall clearly reflect the business as usual approach. As used in Ordinarily, when personal identifiers
denied information by the use of this sense, a significant expenditure of are provided only in connection with a
brackets, indicating the removal of resources in both time and/or request for records concerning the
information. Bracketed areas must be manpower that would cause a requester, only records in a PA system
sufficiently removed so as to reveal no significant interference with the of records that can be retrieved by
information. The best means to ensure operation of the Army Activity’s personal identifiers need be searched.
illegibility is to cut out the information automated information system would However, if an Army Activity has
from a copy of the document and not be a business as usual approach. reason to believe that records on the
reproduce the appropriate pages. (h) Description of requested record. requester may exist in a record system
(2) If the document is declassified, all Identification of the record desired is other than a PA system, the Army
classification markings shall be lined the responsibility of the requester. The Activity shall search that system under
through with a single black line, which requester must provide a description of the provisions of the FOIA. In either
will allow the markings to be read. The the desired record that enables the case, Army Activities may request a
document shall then be stamped Government to locate the record with a reasonable description of the records
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‘‘Unclassified.’’ reasonable amount of effort. In order to desired before searching for such
(f) Public domain. Nonexempt records assist Army Activities in conducting records under the provisions of the
released under the authority of this part more timely searches, requesters should FOIA and the PA. If the record is
are considered to be in the public endeavor to provide as much identifying required to be released under the FOIA,
domain. Such records may also be made information as possible. When an Army the Privacy Act does not bar its
available in the DA reading room in Activity receives a request that does not disclosure.

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(4) The previous guidelines any exempt information without (3) Within DA, an Army Activity shall
notwithstanding, the decision of the revealing the identity of the protected ordinarily refer a FOIA request and a
Army Activity concerning Army Activity. The protected Army copy of the record it holds but that
reasonableness of description must be Activity should be responsible for originated with another Army Activity
based on knowledge of its files. If the submitting the justifications required in or that contains substantial information
description enables Army Activity any litigation. Any Army Activity obtained from another Army Activity, to
personnel to locate the record with receiving a request that has been that Activity for direct response, after
reasonable effort, the description is misaddressed shall refer the request to direct coordination and obtaining
adequate. The fact that a FOIA request the proper address and advise the concurrence from the Activity. The
is broad or burdensome in its magnitude requester. Army Activities making requester then shall be notified of such
does not, in and of itself, entitle an referrals of requests for records shall referral. Army Activities shall not, in
Army Activity to deny the request on include with the referral, a point of any case, release or deny such records
the ground that it does not reasonably contact by name, a telephone number, without prior consultation with the
describe the records sought. The key and an e-mail address. If the office other Army Activity.
factor is the ability of the Army receiving the FOIA request does not (4) Army Activities that receive
Activity’s staff to reasonably ascertain know where the requested records are referred requests shall answer them in
and locate which records are being located, that activity will contact the accordance with the time limits
requested. DA, FOIA/PA Office, to determine the established by the FOIA, this part, and
(i) Referrals. The Army FOIA referral office where the request should be their multitrack processing queues,
policy is based upon the concept of the referred. based upon the date of initial receipt of
(1) An Army Activity shall refer for the request at the referring Activity or
originator of a record making a release
response directly to the requester a agency.
determination on its information. If an
FOIA request for a record that it holds (5) Agencies outside DA that are
Army Activity receives a request for
to another Army Activity or agency subject to the FOIA.
records originated by another Army
outside the Army, if the record (i) An Army Activity may refer a
Activity, it will contact the Army
originated in the other Army Activity or FOIA request for any record that
Activity to determine if it also received
outside agency. Whenever a record or a originated in an agency outside DA or
the request, and if not, obtain
portion of a record is referred to another that is based on information obtained
concurrence from the other Army Army Activity or to a Government
Activity to refer the request. An Army from an outside agency to the agency for
Agency outside of the Army for a release
Activity shall refer a FOIA request for a direct response to the requester after
determination and direct response, the
classified record that it holds to another coordination with the outside agency, if
requester shall be informed of the
Army Activity, DoD Component, or that agency is subject to FOIA.
referral, unless it has been determined
agency outside the DoD, if the record Otherwise, the Army Activity must
that notification would reveal exempt
originated in another Army Activity or respond to the request.
information. Referred records shall only
DoD Component or outside agency, or if be identified to the extent consistent (ii) An Army Activity shall refer to the
the classification is derivative. In this with security requirements. agency that provided the record any
situation, provide the record and a (2) An Army Activity may refer a FOIA request for investigative,
release recommendation on the record request for a record that it originated to intelligence, or any other type of records
with the referral action. In either another Army Activity or agency when that are on loan to DA for a specific
situation, the requester shall be advised the other Army Activity or agency has purpose, if the records are restricted
of the action taken, unless exempt a valid interest in the record, or the from further release and so marked.
information would be revealed. While record was created for the use of the However, if for investigative or
referrals to originators of information other Army Activity or agency. In such intelligence purposes, the outside
result in obtaining the best possible situations, provide the record and a agency desires anonymity, an Army
decision on release of the information, release recommendation on the record Activity may only respond directly to
the policy does not relieve Army with the referral action. Include a point the requester after coordination with the
Activities from the responsibility of of contact with the telephone number. outside agency.
making a release decision on a record An example of such a situation is a (6) Army Activities that receive
should the requester object to referral of request for audit reports prepared by the requests for records of the National
the request and the record. Should this U.S. Army Audit Agency. These Security Council (NSC), the White
situation occur, Army Activities shall advisory reports are prepared for the use House, or the White House Military
still coordinate with the originator of of contracting officers and their release Office (WHMO) shall process the
the information prior to making a to the audited contractor shall be at the requests. Army records in which the
release determination. A request discretion of the contracting officer. A NSC or White House has a concurrent
received by an Army Activity having no FOIA request shall be referred to the reviewing interest, and NSC, White
records responsive to a request shall be appropriate Army Activity and the House, or WHMO records discovered in
referred routinely to another Army requester shall be notified of the Army Activity’s files shall be forwarded
Activity, if the other Army Activity has referral, unless exempt information through DA, FOIA/PA Office, to the
reason to believe it has the requested would be revealed. Another example is Washington Headquarters Services,
records. Prior to notifying a requester of a record originated by an Army Activity Office For Freedom of Information and
a referral to another Army Activity, the or agency that involves foreign relations, Security Review (OFOISR). The OFOISR
Army Activity receiving the initial and could affect an Army Activity or shall coordinate with the NSC, White
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request shall consult with the other organization in a host foreign country. House, or WHMO and return the records
Army Activity to determine if that Army Such a request and any responsive to the originating agency after
Activity’s association with the material records may be referred to the affected coordination.
is exempt. If the association is exempt, Army Activity or organization for (7) To the extent referrals are
the Army Activity receiving the initial consultation prior to a final release consistent with the policies expressed
request will protect the association and determination within DA. by this section, referrals between offices

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of the same Army Activity are (1) If the record is required to be information as responsive, and if not,
authorized. released under the FOIA, the PA does seek the requester’s concurrence to
(8) On occasion, the DA receives not bar its disclosure. Unlike the FOIA, delete the non-responsive information
FOIA requests for Government the PA applies only to U.S. citizens and without a FOIA exemption. Reflect this
Accountability Office (GAO) records aliens lawfully admitted for permanent concurrence in the response letter.
containing Army information. Even residence. (2) If the responsive record is
though the GAO is outside the (2) Requesters who seek records about unclassified, and the requester does not
Executive Branch, and not subject to the themselves contained in a PA system of agree to deletion of non-responsive
FOIA, all FOIA requests for GAO records and who cite or imply only the information without a FOIA exemption,
documents containing Army PA, will have their requests processed release all non-responsive and
information received either from the under the provisions of both the PA and responsive information that is not
public or on referral from the GAO shall the FOIA. If the PA system of records is exempt. For non-responsive information
be processed under the provisions of the exempt from the provisions of 5 U.S.C. that is exempt, notify the requester that
FOIA. 552a(d)(1) and if the records, or any even if the information were determined
(j) Authentication. Records provided portion thereof, are exempt under the responsive, it would likely be exempt
under this part shall be authenticated FOIA, the requester shall be so advised under (state appropriate exemption(s)).
with an appropriate seal, whenever with the appropriate PA and FOIA Advise the requester of the right to
necessary, to fulfill an official exemption. Appeals shall be processed request this information under a
Government or other legal function. under both Acts. separate FOIA request. The separate
This service, however, is in addition to (3) Requesters who seek records about request shall be placed in the same
that required under the FOIA and is not themselves that are not contained in a location within the processing queue as
included in the FOIA fee schedule. Privacy Act system of records and who the original request.
Army Activities may charge for the cite or imply the PA will have their (3) If the responsive record is
service at a rate of $5.20 for each requests processed under the provisions classified, and the requester does not
authentication. of the FOIA, since the PA does not agree to deletion of non-responsive
(k) Records management. FOIA apply to these records. Appeals shall be information without a FOIA exemption,
records shall be maintained and processed under the FOIA. release all unclassified responsive and
disposed of in accordance with the (4) Requesters who seek records about non-responsive information that is not
National Archives and Records themselves that are contained in a PA exempt. The classified, non-responsive
Administration (NARA) General system of records and who cite or imply information need not be reviewed for
Records Schedule and DoD Component the FOIA or both Acts will have their declassification at this point. Advise the
records schedules. requests processed under the provisions requester that even if the classified
(l) Record-keeping requirements in of both the PA and the FOIA. If the PA information were determined
accordance with the Army Records system of records is exempt from the responsive, it would likely be exempt
Information Management System provisions of 5 U.S.C. 552a(d)(1) and if under 5 U.S.C. 552(b)(1), and other
(ARIMS). The records listed below are the records, or any portion thereof, are exemptions if appropriate. Advise the
required by ARIMS in the conduct of exempt under the FOIA, the requester requester of the right to request this
the daily business of the Army to shall be so advised with the appropriate information under a separate FOIA
provide adequate and proper PA and FOIA exemption. Appeals shall request. The separate request shall be
documentation to protect the rights and be processed under both Acts. placed in the same location within the
interests of individuals and the Federal (5) Requesters who seek access to processing queue as the original request.
Government. The full description of the agency records that are not part of a PA (o) Honoring form or format requests.
records and their disposition is found at system of records, and who cite or Army Activities shall provide the record
https://www2.arims.army.mil. imply the PA and FOIA, will have their in any form or format requested by the
(1) FOIA requests, access, and denials; requests processed under the FOIA
(2) FOIA administrative files; requester if the record is readily
since the PA does not apply to these reproducible in that form or format.
(3) FOIA appeals; records. Appeals shall be processed
(4) FOIA controls; Army Activities shall make reasonable
under the FOIA. Requesters who seek efforts to maintain their records in forms
(5) FOIA reports;
(6) Access to information files; access to agency records and who cite or formats that are reproducible. In
(7) Safeguarded nondefense or imply the FOIA will have their responding to requests for records,
information releases; requests and appeals processed under Army Activities shall make reasonable
(8) Nonsafeguarded information the FOIA. efforts to search for records in electronic
releases; (6) Requesters shall be advised in the form or format, except when such efforts
(9) Unauthorized disclosure reports; final response letter, which Act(s) was would significantly interfere with the
(10) Acknowledgement; and (were) used, inclusive of appeal rights operation of the Army Activities’
(11) Initial Denial Authority as outlined in paragraphs (m)(1) through automated information system. Such
designations/appointments. (5) of this section. determinations shall be made on a case-
(m) Relationship between the FOIA (n) Non-responsive information in by-case basis.
and the Privacy Act (PA). Not all responsive records. Army Activities
requesters are knowledgeable of the shall interpret FOIA requests liberally Subpart B—FOIA Reading Rooms
appropriate statutory authority to cite when determining which records are
when requesting records, nor are all of responsive to the requests, and may § 518.9 Reading room.
them aware of appeal procedures. In release non-responsive information. (a) Reading room location. The DA
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some instances, they may cite neither However, should Army Activities desire shall provide an appropriate facility or
Act, but will imply one or both Acts. to withhold non-responsive facilities where the public may inspect
For these reasons, the below guidelines information, the following steps shall be and copy or have copied the records
are provided to ensure that requesters accomplished: described in paragraphs (b)(1) through
receive the greatest amount of access (1) Consult with the requester, and (4) of this section. In addition to the
rights under both Acts. ask if the requester views the records described, DA may elect to

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place other records in their reading to be used in performing their duties, or against any individual unless such
room, and also make them electronically to instructions relating only to the individual has actual and timely notice
available to the public. The Army may internal management of the Army. of the contents of such materials. Such
share reading room facilities with DoD Examples of manuals and instructions materials issued, promulgated, or
Components if the public is not unduly not normally made available are: adopted before July 4, 1967 need not be
inconvenienced, and also may establish (i) Those issued for audit, indexed, but must be made available
decentralized reading rooms. When investigation, and inspection purposes, upon request if not exempted under this
appropriate, the cost of copying may be or those that prescribe operational part.
imposed on the person requesting the tactics, standards of performance, or (b) The DA FOIA/PA Office shall
material in accordance with the criteria for defense, prosecution, or promptly publish quarterly or more
provisions of subpart F of this part. The settlement of cases; and frequently, and distribute, by sale or
Army FOIA Public Reading Room is (ii) Operations and maintenance otherwise, copies of each index of
operated by the DA, FOIA/PA Office. manuals and technical information ‘‘(a)(2)’’ materials or supplements
(b) Record availability. The FOIA concerning munitions, equipment, thereto unless it publishes in the
requires that records described in 5 systems, and intelligence activities. Federal Register an order containing a
U.S.C. 552(a)(2)(A), (B), (C), and (D) (4) (a)(2)(D) records. Those 5 U.S.C. determination that publication is
created on or after November 1, 1996, 552(a)(3) records, which because of the unnecessary and impracticable. A copy
shall be made available electronically, nature of the subject matter, have of each index or supplement not
as well as in hard copy in the FOIA become or are likely to become the published shall be provided to a
reading room for inspection and subject of subsequent requests for requester at a cost not to exceed the
copying, unless such records are substantially the same records. These direct cost of duplication as set forth in
published and copies are offered for records are referred to as FOIA- subpart F of this part.
sale. All portions determined to be processed (a)(2) records. (c) Each index of ‘‘(a)(2)’’ materials or
exempt in accordance with 5 U.S.C. 552 (i) Army Activities shall decide on a supplement thereto shall be arranged
(reference (a)) shall be deleted from all case by case basis whether records fall topically or by descriptive words rather
5 U.S.C. 552(a)(2) records made into this category, based on previous than by case name or numbering system
available to the general public. In every experience of the Army Activity with so that members of the public can
case, justification for the deletion must similar records; particular readily locate material. Case name and
be fully explained in writing, and the circumstances of the records involved, numbering arrangements, however, may
extent of such deletion shall be including their nature and the type of also be included for Army convenience.
indicated on the record that is made information contained in them; or the (d) A general index of FOIA-processed
publicly available, unless such identity and number of requesters and (a)(2) records shall be made available to
indication would harm an interest whether there is widespread press, the public, both in hard copy and
protected by an exemption under which historic, or commercial interest in the electronically.
the deletion was made. If technically records.
feasible, the extent of the deletion in (ii) This provision is intended for § 518.11 Other materials.
electronic records or any other form of situations where public access in a (a) Any available index of Army
record shall be indicated at the place in timely manner is important, and it is not material published in the Federal
the record where the deletion was made. intended to apply where there may be Register, such as material required to be
However, the Army may publish in the a limited number of requests over a published by section 552(a)(1) of the
Federal Register a description of the short period of time from a few FOIA, shall be made available in the
basis upon which it will delete requesters. Army Activities may remove Army FOIA Public Reading Room, and
identifying details of particular types of the records from this access medium electronically to the public.
records to avoid clearly unwarranted when the appropriate officials (b) Although not required to be made
invasions of privacy, or competitive determine that access is no longer available in response to FOIA requests
harm to business submitters. In necessary. or made available in FOIA Reading
appropriate cases, the Army may refer to (iii) Should a requester submit a FOIA Rooms, ‘‘(a)(1)’’ materials shall, when
this description rather than write a request for FOIA-processed (a)(2) feasible, be made available to the public
separate justification for each deletion. records, and insist that the request be in FOIA reading rooms for inspection
5 U.S.C. 552(a)(2)(A), (B), (C), and (D) processed, Army Activities shall process and copying, and by electronic means.
records are: the FOIA request. However, Army Examples of ‘‘(a)(1)’’ materials are
(1) (a)(2)(A) records. Final opinions, Activities have no obligation to process descriptions of an agency’s central and
including concurring and dissenting a FOIA request for 5 U.S.C. 552(a)(2)(A), field organization, and to the extent they
opinions, and orders made in the (B), and (C) records because these affect the public, rules of procedures,
adjudication of cases, as defined in 5 records are required to be made public descriptions of forms available,
U.S.C. 551, that may be cited, used, or and not FOIA-processed under instruction as to the scope and contents
relied upon as precedents in future paragraph (a)(3) of the FOIA. of papers, reports, or examinations, and
adjudications; any amendment, revision, or report of
(2) (a)(2)(B) records. Statements of § 518.10 ‘‘(a)(2)’’ Materials.
the aforementioned.
policy and interpretations that have (a) The DA FOIA/PA Office shall
been adopted by the agency that are not maintain in the facility an index of Subpart C—Exemptions
published in the Federal Register; and materials described in paragraphs (b)(1)
(3) (a)(2)(C) records. Administrative through (4) of § 518.9, that are issued, § 518.12 General.
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staff manuals and instructions, or adopted, or promulgated after July 4, Records that meet the exemption
portions thereof that establish Army 1967. No ‘‘(a)(2)’’ materials issued, criteria of the FOIA may be withheld
policy or interpretations of policy that promulgated, or adopted after July 4, from public disclosure and need not be
affect a member of the public. This 1967 that are not indexed and either published in the Federal Register, made
provision does not apply to instructions made available or published may be available in a library reading room, or
for employees on tactics and techniques relied upon, used or cited as precedent provided in response to a FOIA request.

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§ 518.13 FOIA exemptions. not otherwise revealed in the individual hours, statements of policy as to sick
The following types of records may be items of information. leave, and administrative data such as
withheld in whole or in part from (b) Number 2 (5 U.S.C. 552(b)(2)). file numbers, mail routing stamps,
public disclosure under the FOIA, Those related solely to the internal initials, data processing notations, brief
unless otherwise prescribed by law. A personnel rules and practices of the DoD references to previous communications,
discretionary release of a record to one or any of its Components. This and other like administrative markings.
requester shall prevent the withholding exemption has two profiles, high (b)(2) Army Activities shall apply the low 2
of the same record under a FOIA and low (b)(2). Activities are encouraged exemption as applicable.
exemption if the record is subsequently to consult the DA, FOIA/PA Office, and (c) Number 3 (5 U.S.C. 552(b)(3)).
requested by someone else. However, a the U.S. DoJ ‘‘Freedom of Information Those concerning matters that a statute
FOIA exemption may be invoked to Act Guide & Privacy Act Overview’’ for specifically exempts from disclosure by
withhold information that is similar or a more in depth discussion on the legal terms that permit no discretion on the
related to that which has been the history of the use of the low (b)(2) issue, or in accordance with criteria
subject of a discretionary release. In exemption. When only a minimal established by that statute for
applying exemptions, the identity of the Government interest would be affected withholding or referring to particular
requester and the purpose for which the (administrative burden), Army types of matters to be withheld. The DA,
record is sought are irrelevant with the Activities shall apply the sound legal FOIA/PA Office, maintains a list of
exception that an exemption may not be basis standard regarding disclosure of (b)(3) statutes used within the DoD, and
invoked where the particular interest to the information. Army Activities shall provides updated lists of these statutes
be protected is the requester’s interest. apply the low 2 exemption as to Army Activities on a periodic basis.
However, if the subject of the record is applicable. A few examples of such statutes are:
the requester for the record and the (1) Records qualifying under high (1) Personnel in Overseas, Sensitive,
record is contained in a PA system of (b)(2) are those containing or or Routinely Deployable Units:
records, it may only be denied to the constituting statutes, rules, regulations, nondisclosure of personally identifying
requester if withholding is both orders, manuals, directives, information, 10 U.S.C. 130(b).
authorized by AR 25–71 and by a FOIA instructions, security classification Additionally, the names and duty
exemption. guides, and sensitive but unclassified addresses (postal and/or e-mail) of
(a) Number 1 (5 U.S.C. 552 (b)(1)). information related to America’s Army military and civilian personnel
Those properly and currently classified homeland security and critical who are assigned to units that are
in the interest of national defense or infrastructure information the release of sensitive, routinely deployable, or
foreign policy, as specifically authorized which would allow circumvention of stationed in foreign territories can
under the criteria established by these records thereby substantially constitute a clearly unwarranted
Executive Order and implemented by hindering the effective performance or invasion of personal privacy and may
regulations, such as DoD 5200.1–R. present an unwarranted risk of adverse also be withheld in accordance with
Although material is not classified at the impact on the ability of other agencies FOIA Exemption 3. Names and duty
time of the FOIA request, a to protect other important records of a addresses (postal and/or e-mail)
classification review may be undertaken significant function of the DA. Examples published in telephone directories,
to determine whether the information include: organizational charts, rosters and
should be classified. The procedures in (i) Those operating rules, guidelines, similar materials for personnel assigned
DoD 5200.1–R apply. If the information and manuals for Army investigators, to units that are sensitive, routinely
qualifies as exemption 1 information, inspectors, auditors, or examiners that deployable, or stationed in foreign
there is no discretion regarding its must remain privileged in order for the territories are withholdable under this
release. In addition, this exemption Army Activity to fulfill a legal exemption, in accordance with 10
shall be invoked when the following requirement; U.S.C. 130 ‘Personnel in Overseas,
situations are apparent: (ii) Personnel and other
Sensitive, or Routinely Deployable
(1) The fact of the existence or administrative matters, such as
Units’;
nonexistence of a record would itself examination questions and answers (2) Classification and Declassification
reveal classified information. In this used in training courses or in the of Restricted Data, 42 U.S.C. 2162;
situation, Army Activities shall neither determination of the qualifications of (3) Disclosure of Classified
confirm nor deny the existence or candidates for employment, entrance on Information, 18 U.S.C. 798(a);
nonexistence of the record being duty, advancement, or promotion; and (4) Authority to Withhold from Public
requested. A ‘‘refusal to confirm or (iii) Computer software, the release of Disclosure Certain Technical Data, 10
deny’’ response must be used which would allow circumvention of a U.S.C. 130 and DoDD 5230.25;
consistently, not only when a record statute, DoD or Army rules, regulations, (5) Confidentiality of Medical Quality
exists, but also when a record does not orders, manuals, directives, or Assurance Records: Qualified Immunity
exist. Otherwise, the pattern of using a instructions. In this situation, the use of for Participants, 10 U.S.C. 1102(f);
‘‘no record’’ response when a record the software must be closely examined (6) Physical Protection of Special
does not exist, and a ‘‘refusal to confirm to ensure a circumvention possibility Nuclear Material: Limitation on
or deny’’ when a record does exist will exists. Dissemination of Unclassified
itself disclose national security (2) Records qualifying under the low Information, 10 U.S.C. 128;
information. (b)(2) profile are those that are trivial (7) Protection of Intelligence Sources
(2) Compilations of items of and housekeeping in nature for which and Methods, 50 U.S.C. 403–3(c)(6);
information that are individually there is no legitimate public interest or (8) Prohibition on Release of
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unclassified may be classified if the benefit to be gained by release, and it Contractor Submitted Proposals, 10
compiled information reveals additional would constitute an administrative U.S.C. 2305(g);
association or relationship that meets burden to process the request in order (9) Restrictions on Disclosing and
the standard for classification under an to disclose the records. Examples Obtaining Contractor Bid or Proposal
existing executive order for include rules of personnel’s use of Information or Source Selection
classification and DoD 5200.1–R, and is parking facilities or regulation of lunch Information, 41 U.S.C. 423; and

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(10) Secrecy of Certain Inventions and schedules applicable to the prevailing institutional, commercial, and personal
Filing Applications in a Foreign wage rate of employees within the DA; privacy interests that could be
Country, 35 U.S.C. 181–188. Any (5) Scientific and manufacturing implicated by disclosure of the
records containing information relating processes or developments concerning information.
to inventions that are the subject of technical or scientific data or other (1) Examples of the deliberative
patent applications on which Patent information submitted with an process include:
Secrecy Orders have been issued. application for a research grant, or with (i) The non-factual portions of staff
(d) Number 4 (5 U.S.C. 552(b)(4)). a report while research is in progress; papers, to include after-action reports,
Those containing trade secrets or (6) Technical or scientific data lessons learned, and situation reports
commercial or financial information developed by a contractor or containing staff evaluations, advice,
that an Army Activity receives from a subcontractor exclusively at private opinions, or suggestions;
person or organization outside the expense, and technical or scientific data (ii) Advice, suggestions, or
Government with the understanding developed in part with Federal funds evaluations prepared on behalf of the
that the information or record will be and in part at private expense, wherein DA by individual consultants or by
retained on a privileged or confidential the contractor or subcontractor has boards, committees, councils, groups,
basis in accordance with the customary retained legitimate proprietary interests panels, conferences, commissions, task
handling of such records. Records in such data in accordance with 10 forces, or other similar groups that are
within the exemption must contain U.S.C. 2320–2311 and DoD Federal formed for the purpose of obtaining
trade secrets, or commercial or financial Acquisition Regulation Supplement advice and recommendations;
records, the disclosure of which is likely (DFARS), subpart 27.4. Technical data (iii) Those non-factual portions of
to cause substantial harm to the developed exclusively with Federal evaluations by DoD Component
competitive position of the source funds may be withheld under personnel of contractors and their
providing the information, impair the Exemption Number 3 if it meets the products;
Government’s ability to obtain necessary criteria of 10 U.S.C. 130 and DoDD (iv) Information of a speculative,
information in the future, or impair 5230.25; tentative, or evaluative nature or such
some other legitimate Government (7) Computer software, which is matters as proposed plans to procure,
interest. Commercial or financial copyrighted in accordance with 17 lease or otherwise acquire and dispose
information submitted on a voluntary U.S.C. 106, ‘Exclusive rights in of materials, real estate, facilities or
basis, absent any exercised authority Copyrighted Works, the disclosure of functions, when such information
prescribing criteria for submission is which would have an adverse impact on would provide undue or unfair
protected without any requirement to the potential market value of a competitive advantage to private
show competitive harm. If the copyrighted work; and personal interests or would impede
information qualifies as exemption 4 (8) Proprietary information submitted legitimate government functions;
information, there is no discretion in its strictly on a voluntary basis, absent any (v) Trade secret or other confidential
release. Examples include: exercised authority prescribing criteria research development, or commercial
(1) Commercial or financial for submission. Examples of exercised information owned by the Government,
information received in confidence in authorities prescribing criteria for where premature release is likely to
connection with loans, bids, contracts, submission are statutes, Executive affect the Government’s negotiating
or proposals set forth in or incorporated Orders, regulations, invitations for bids, position or other commercial interest;
by reference in a contract entered into requests for proposals, and contracts. (vi) Those portions of official reports
between the Army Activity and the Submission of information under these of inspection, reports of the Inspector
offeror that submitted the proposal, as authorities is not voluntary. Generals, audits, investigations, or
well as other information received in (e) Number 5 (5 U.S.C. 552(b)(5)). surveys pertaining to safety, security, or
confidence or privileged, such as trade Those containing information the internal management,
secrets, inventions, discoveries, or other considered privileged in litigation, administration, or operation of one or
proprietary data. Additionally, when the primarily under the deliberative process more Army Activities, when these
provisions of 10 U.S.C. 2305(g) and 41 privilege. Except as provided in records have traditionally been treated
U.S.C. 423 are met, certain proprietary paragraphs (e)(1) through (5) of this by the courts as privileged against
and source selection information may be section, internal advice, disclosure in litigation; and
withheld under exemption 3; recommendations, and subjective (vii) Planning, programming, and
(2) Statistical data and commercial or evaluations, as contrasted with factual budgetary information that is involved
financial information concerning matters that are reflected in deliberative in the defense planning and resource
contract performance, income, profits, records pertaining to the decision- allocation process.
losses, and expenditures, if offered and making process of an agency, whether (2) If any such intra- or inter-agency
received in confidence from a contractor within or among agencies (as defined in record or reasonably segregable portion
or potential contractor; 5 U.S.C. 552(e)), or within or among of such record hypothetically would be
(3) Personal statements given in the Army Activities. In order to meet the made available routinely through the
course of inspections, investigations, or test of this exemption, the record must discovery process in the course of
audits, when such statements are be both deliberative in nature, as well as litigation with the Army, then it should
received in confidence from the part of a decision-making process. not be withheld under the FOIA. If,
individual and retained in confidence Merely being an internal record is however, the information hypothetically
because they reveal trade secrets or insufficient basis for withholding under would not be released at all, or would
commercial or financial information this exemption. Also potentially only be released in a particular case
hsrobinson on PROD1PC70 with RULES2

normally considered confidential or exempted are records pertaining to the during civil discovery where a party’s
privileged; attorney-client privilege and the particularized showing of need might
(4) Financial data provided in attorney work-product privilege. override a privilege, then the record
confidence by private employers in Discretionary disclosure decisions may be withheld. Discovery is the
connection with locality wage surveys should be made only after full and formal process by which litigants obtain
that are used to fix and adjust pay deliberate consideration of the information from each other for use in

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9232 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations

the litigation. Consult with legal counsel personnel matters in which of a responsive record would itself
to determine whether exemption 5 administrative action, including reveal personally private information,
material would be routinely made disciplinary action, may be taken. and the public interest in disclosure is
available through the discovery process. (2) Army components shall ordinarily not sufficient to outweigh the privacy
(3) Intra- or inter-agency memoranda withhold lists of names (including interest. In this situation, Army
or letters that are factual, or those active duty military, civilian employees, Activities shall neither confirm nor
reasonably segregable portions that are contractors, members of the National deny the existence or nonexistence of
factual, are routinely made available Guard and Reserves, and military the record being requested. This is a
through discovery, and shall be made dependents) and other personally ‘‘Glomar’’ response, and exemption 6
available to a requester, unless the identifying information, including lists must be cited in the response.
factual material is otherwise exempt of e-mail addresses of personnel Additionally, in order to ensure
from release, inextricably intertwined currently or recently assigned within a personal privacy is not violated during
with the exempt information, so particular component, unit, referrals, Army Activities shall
fragmented as to be uninformative, or so organization, or office within the Army. coordinate telephonically or in person
redundant of information already Home addresses, including private e- with other Army Activities or DoD
available to the requester as to provide mail addresses, are normally not Components or Federal Agencies before
no new substantive information. releasable without the consent of the referring a record that is exempt under
(4) A direction or order from a individuals concerned. This includes the ‘‘Glomar’’ concept. See Phillippi v.
superior to a subordinate, though lists of home addresses and military CIA, 546 F.2d 1009 (DC Cir. 1976).
contained in an internal quarters’ addressees without the (v) A ‘‘refusal to confirm or deny’’
communication, generally cannot be occupant’s name. response must be used consistently, not
withheld from a requester if it (i) Privacy Interest. A privacy interest only when a record exists, but also
constitutes policy guidance or a may exist in personal information even when a record does not exist.
decision, as distinguished from a though the information has been Otherwise, the pattern of using a ‘‘no
discussion of preliminary matters or a disclosed at some place and time. If records’’ response when a record does
request for information or advice that personal information is not freely not exist and a ‘‘refusal to confirm or
would compromise the decision-making available from sources other than the deny’’ when a record does exist will
process. Federal Government, a privacy interest itself disclose personally private
(5) An internal communication exists in its nondisclosure. The fact that information. Refusal to confirm or deny
concerning a decision that subsequently the Federal Government expended should not be used when:
has been made a matter of public record funds to prepare, index and maintain (A) The person whose personal
must be made available to a requester records on personal information, and privacy is in jeopardy has provided the
when the rationale for the decision is the fact that a requester invokes FOIA to requester a waiver of his or her privacy
expressly adopted or incorporated by obtain these records indicates the rights;
reference in the record containing the information is not freely available. (B) The person initiated or directly
decision. (ii) The right to privacy of deceased participated in an investigation that lead
(f) Number 6 (5 U.S.C. 552(b)(6)). persons is not entirely settled, but the to the creation of an agency record seeks
Information in personnel and medical majority rule is that death extinguishes access to that record; or
files, as well as similar personal their privacy rights. However, (C) The person whose personal
information in other files, and lists of particularly sensitive, graphic, personal privacy is in jeopardy is deceased, the
personally identifying information of details about the circumstances Agency is aware of that fact, and
Army personnel, that, if disclosed to a surrounding an individual’s death may disclosure would not invade the privacy
requester, other than the person about be withheld when necessary to protect of the deceased’s family.
whom the information is about, would the privacy interests of surviving family (g) Number 7 (5 U.S.C. 552(b)(7)).
result in a clearly unwarranted invasion members. Even information that is not Records or information compiled for
of personal privacy. Release of particularly sensitive in and of itself law enforcement purposes, i.e., civil,
information about an individual may be withheld to protect the privacy criminal, or military, including the
contained in a Privacy Act System of interests of surviving family members if implementation of Executive Orders or
Records that would constitute a clearly disclosure would rekindle grief, regulations issued pursuant to law. This
unwarranted invasion of privacy is anguish, pain, embarrassment, or cause exemption may be invoked to prevent
prohibited, and could subject the a disruption of their peace of minds. disclosure of documents not originally
releaser to civil and criminal penalties. Additionally, the deceased’s social created for, but later gathered for law
If the information qualifies as security number should be withheld enforcement purposes. With the
exemption 6 information, there is no since it is used by the next of kin to exception of parts (C) and (F), this
discretion regarding its release. receive benefits. Disclosures of the exemption is discretionary. If
(1) Examples of other files containing deceased’s social security number may information qualifies as exemption
personal information similar to that be made to the immediate next of kin. (7)(C) or (7)(F) information, there is no
contained in personnel and medical (iii) A clearly unwarranted invasion of discretion in its release.
files include: the privacy of third parties identified in (1) This exemption applies, however,
(i) Those compiled to evaluate or a personnel, medical or similar record only to the extent that production of
adjudicate the suitability of candidates constitutes a basis for deleting those such law enforcement records or
for civilian employment or membership reasonably segregable portions of that information could result in the
in the Armed Forces, and the eligibility record. When withholding third party following:
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of individuals (civilian, military, or personal information from the subject of (i) Could reasonably be expected to
contractor employees) for security the record and the record is contained interfere with law enforcement
clearances, or for access to particularly in a Privacy Act system of records, proceedings (5 U.S.C. 552(b)(7)(A));
sensitive classified information; and consult with legal counsel. (ii) Would deprive a person of the
(ii) Files containing reports, records, (iv) This exemption also applies when right to a fair trial or to an impartial
and other material pertaining to the fact of the existence or nonexistence adjudication (5 U.S.C. 552(b)(7)(B));

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(iii) Could reasonably be expected to (ix) Could reasonably be expected to identifier, the Activity may treat the
constitute an unwarranted invasion of endanger the life or physical safety of records as not subject to the FOIA,
the personal privacy of a living person, any individual (5 U.S.C. 552(b)(7)(F)). unless the informant’s status as an
or to surviving family members of an (2) Some examples of exemption 7 informant has been officially confirmed.
individual identified in such a record (5 are: If it is determined that the records are
U.S.C. 552(b)(7)(C)); (i) Statements of witnesses and other not subject to 5 U.S.C. 552(b)(7), the
(iv) This exemption also applies when material developed during the course of response to the requester will state that
the investigation and all materials no records were found.
the fact of the existence or nonexistence
prepared in connection with related (h) Number 8 (5 U.S.C. 552 (b)(8)).
of a responsive record would itself
Government litigation or adjudicative Those contained in or related to
reveal personally private information,
proceedings; examination, operation or condition
and the public interest in disclosure is (ii) The identity of firms or
not sufficient to outweigh the privacy reports prepared by, on behalf of, or for
individuals being investigated for the use of any agency responsible for the
interest. In this situation, Activities alleged irregularities involving
shall neither confirm nor deny the regulation or supervision of financial
contracting with the DoD when no institutions.
existence or nonexistence of the record indictment has been obtained or any
being requested. This is a ‘‘Glomar’’ (i) Number 9 (5 U.S.C. 552 (b)(9)).
civil action filed against them by the Those containing geological and
response, and exemption (7)(C) must be United States; and
cited in the response. Additionally, in geophysical information and data
(iii) Information obtained in
order to ensure personal privacy is not (including maps) concerning wells.
confidence, expressed or implied, in the
violated during referrals, Army course of a criminal investigation by a
Activities shall coordinate with other Subpart D—For Official Use Only
criminal law enforcement agency or
Army Activities or DoD Components or office within an Army Activity or a DoD § 518.14 General.
Federal Agencies before referring a Component, or a lawful national Information that has not been given a
record that is exempt under the security intelligence investigation security classification pursuant to the
‘‘Glomar’’ concept; conducted by an authorized agency or criteria of an Executive Order, but
(v) A ‘‘refusal to confirm or deny’’ office within an Army Activity or a DoD which may be withheld from the public
response must be used consistently, not Component. National security because disclosure would cause harm to
only when a record exists, but also intelligence investigations include an interest protected by one or more
when a record does not exist. background security investigations and FOIA exemptions 2 through 9 (see
Otherwise, the pattern of using a ‘‘no those investigations conducted for the Subpart C of this part) shall be
records’’ response when a record does purpose of obtaining affirmative or considered as being for official use only
not exist and a ‘‘refusal to confirm or counterintelligence information. (FOUO). No other material shall be
deny’’ when a record does exist will (3) The right of individual litigants to considered FOUO and FOUO is not
itself disclose personally private investigative records currently available authorized as an additional form of
information; by law (such as, the Jencks Act, 18 classification to protect national
(vi) Refusal to confirm or deny should U.S.C. 3500), is not diminished. security interests. Additional
not be used when the person whose (4) Excluded from exemption 7 are information on FOUO and other
personal privacy is in jeopardy has two situations applicable to DoD. controlled, unclassified information
provided the requester with a waiver of (Activities considering invoking an may be found in DoD 5200.1-R,
his or her privacy rights; or the person exclusion based on the following ‘‘Information Security Program’’ or by
whose personal privacy is in jeopardy is scenarios should first consult through contacting the DA FOIA/PA Office.
deceased, and the Agency is aware of legal counsel, to the DoJ, Office of
that fact and disclosure would not Information and Privacy (DoJ OIP). Subpart E—Release and Processing
invade the privacy of the deceased’s (i) Whenever a request is made that Procedures
family; involves access to records or
information compiled for law § 518.15 General provisions.
(vii) Could reasonably be expected to enforcement purposes, and the (a) Since the policy of the DoD is to
disclose the identity of a confidential investigation or proceeding involves a make the maximum amount of
source, including a source within DoD, possible violation of criminal law where information available to the public
a State, local, or foreign agency or there is reason to believe that the subject consistent with its other
authority, or any private institution that of the investigation or proceeding is responsibilities, written requests for an
furnishes the information on a unaware of its pendency, and the Army record made under the provisions
confidential basis; and could disclose disclosure of the existence of the of 5 U.S.C. 552 (a)(3) of the FOIA may
information furnished from a records could reasonably be expected to be denied only when:
confidential source and obtained by a interfere with enforcement proceedings, (1) The record is subject to one or
criminal law enforcement authority in a Activities may, during only such times more of the exemptions of the FOIA;
criminal investigation or by an agency as that circumstance continues, treat the (2) The record has not been described
conducting a lawful national security records or information as not subject to well enough to enable the Army
intelligence investigation (5 U.S.C. the FOIA. In such a situation, the Activity to locate it with a reasonable
552(b)(7)(D)); response to the requester will state that amount of effort by an employee
(viii) Would disclose techniques and no records were found. familiar with the files; or
procedures for law enforcement (ii) Whenever informant records (3) The requester has failed to comply
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investigations or prosecutions, or would maintained by a criminal law with the procedural requirements,
disclose guidelines for law enforcement enforcement organization within an including the written agreement to pay
investigations or prosecutions if such Army Activity or a DoD Component or payment of any required fee imposed
disclosure could reasonably be expected under the informant’s name or personal by the instructions of the Army Activity
to risk circumvention of the law (5 identifier are requested by a third party concerned. When personally
U.S.C. 552(b)(7)(E)); or using the informant’s name or personal identifiable information in a record is

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9234 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations

requested by the subject of the record or evaluations; and help custodians of patient’s next of kin or legal
his attorney, notarization of the request, requested documents identify the parts representative.
or a statement certifying under the of documents that must remain (vi) Copies of records may be given to
penalty of perjury that their identity is classified under this section and AR a Federal or State hospital or penal
true and correct may be required. 380–5. institution if the person concerned is an
Additionally, written consent of the (6) OPSEC/FOIA advisors do not, by inmate or patient there.
subject of the record is required for their actions, relieve FOIA personnel (vii) Copies of records or information
disclosure from a PA system of records, and custodians processing FOIA from them may be given to authorized
to include the subject’s attorney. requests of their responsibility to protect representatives of certain agencies. The
(4) Release of information under the classified or exempted information. National Academy of Sciences, the
FOIA can have an adverse impact on (b) The provisions of the FOIA are National Research Council, and other
OPSEC. The Army implementing reserved for persons with private accredited agencies are eligible to
directive for OPSEC is AR 530–1. It interests as opposed to U.S. Federal receive such information when they are
requires that OPSEC points of contact be Agencies seeking official information. engaged in cooperative studies, with the
named for all HQDA staff agencies and Requests from private persons will be approval of The Surgeon General of the
for all commands down to battalion made in writing, and should clearly Army. However, certain information on
level. The FOIA official for the staff show all other addressees within the drug and alcohol use cannot be released.
agency or command will use DA Form Federal Government to which the AR 600–85 covers the Army’s substance
4948–R to announce the OPSEC/FOIA request was also sent. This procedure abuse program.
advisor for the command. Persons will reduce processing time (viii) Copies of pertinent parts of a
named as OPSEC points of contact will requirements, and ensure better inter- patient’s records can be furnished to the
be OPSEC/FOIA advisors. Command and intra-agency coordination. staff judge advocate or legal officer of
OPSEC/FOIA advisors should However, if the requester does not show the command in connection with the
implement the policies and procedures all other addressees to which the Government’s collection of a claim. If
in AR 530–1, consistent with this part request was also sent, Army Activities proper, the legal officer can release this
and with the following considerations: shall still process the request. Army information to the tortfeasor’s insurer
(i) Documents or parts of documents Activities should encourage requesters without the patient’s consent.
properly classified in the interest of to send requests by mail, facsimile, or Note: Information released to third parties
national security must be protected. by electronic means. Disclosure of must be accompanied by a statement of the
Classified documents may be released in records to individuals under the FOIA conditions of release. The statement will
response to a FOIA request only under is considered public release of specify that the information not be disclosed
AR 380–5, Chapter III. AR 380–5 information, except as provided in this to other persons except as privileged
provides that if parts of a document are communication between doctor and patient.
paragraph. DA officials will release the
not classified and can be segregated following records, upon request, to the (2) Military personnel records.
with reasonable ease, they may be persons specified below, even though Military personnel records will be
released, but parts requiring continued these records are exempt from release to released under these conditions:
protection must be clearly identified. the general public. The statutory 20 (i) DA must provide specific
(ii) The release of unclassified working day limit applies. information about a person’s military
documents could violate national (1) Medical records. Commanders or service (statement of military service) in
security. When this appears possible, chiefs of medical treatment facilities response to a request by that person or
OPSEC/FOIA advisors should request a will release information: with that person’s written consent to his
classification evaluation of the (i) On the condition of sick or injured or her legal representative;
document by its proponent under AR patients to the patient’s relatives to the (ii) Papers relating to applications for,
380–5, paragraphs 2–204, 2–600, 2–800, extent permitted by law and regulation. designation of beneficiaries under, and
and 2–801. In such cases, other FOIA (ii) That a patient’s condition has allotments to pay premiums for,
exemptions may also apply. become critical to the nearest known National Service Life Insurance or
(iii) A combination of unclassified relative or to the person the patient has Serviceman’s Group Life Insurance will
documents, or parts of them, could named to be informed in an emergency. be released to the applicant or to the
combine to supply information that (iii) That a diagnosis of psychosis has insured. If the insured is adjudged
might violate national security if been made to the nearest known relative insane (evidence of an insanity
released. When this appears possible, or to the person named by the patient. judgment must be included) or dies, the
OPSEC/FOIA advisors should consider (iv) On births, deaths, and cases of records will be released, on request, to
classifying the combined information communicable diseases to local officials designated beneficiaries or to the next of
per AR 380–5, paragraph 2–211. (if required by local laws). kin;
(iv) A document or information may (v) Copies of records of present or (iii) Copies of DA documents that
not be properly or currently classified former soldiers, dependents, civilian record the death of a soldier, a
when a FOIA request for it is received. employees, or patients in DA medical dependent, or a civilian employee will
In this case, the request may not be facilities will be released to the patient be released, on request, to that person’s
denied on the grounds that the or to the patient’s representative on next of kin, life insurance carrier, and
document or information is classified written request. The attending physician legal representative. A person acting on
except in accordance with Executive can withhold records if he or she thinks behalf of someone else concerned with
Order 12958 as amended, section 1.6(d), that release may injure the patient’s the death (e.g., the executor of a will)
and AR 380–5, paragraph 2–204, and mental or physical health; in that case, may also obtain copies by submitting a
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with approval of the Army OGC. copies of records will be released to the written request that includes evidence
(5) OPSEC/FOIA advisors will; advise patient’s next of kin or legal of his or her representative capacity.
persons processing FOIA requests on representative or to the doctor or dentist That representative may give written
related OPSEC requirements; help chosen by the patient. If the patient is consent for release to others; or
custodians of requested documents adjudged insane, or dies, the copies will (iv) Papers relating to the pay and
prepare requests for classification be released, on written request, to the allowances or allotments of a present or

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former soldier will be released to the examinations, blood tests, firearms advocate or legal officer, who will
soldier or his or her authorized identification tests, or similar laboratory coordinate it with the Litigation Center,
representative. If the soldier is deceased, tests or examinations. Statements as to USALSA.
these papers will be released to the next the identity, credibility, or testimony of (ii) Tort claims. A claimant or a
of kin or legal representatives. prospective witnesses. Statements claimant’s attorney may request a record
(3) Civilian personnel records. concerning evidence or argument in the that relates to a pending administrative
Civilian Personnel Officers (CPO) with case, whether or not that evidence or tort claim filed against the DA. Refer
custody of papers relating to the pay argument may be used at the trial. Any such requests promptly to the claims
and allowances or allotments of current opinion on the accused’s guilt. Any approving or settlement authority that
or former civilian employees will opinion on the possibility of a plea of has monetary jurisdiction over the
release them to the employee or his or guilty to the offense charged, or of a plea pending claim. These authorities will
her authorized representative. If the to a lesser offense; follow AR 27–20. The request may
employee is deceased, these records will (iii) Other considerations. concern an incident in which the
be released to the next of kin or legal Photographing or televising the accused. pending claim is not as large as a
representative. However, a CPO cannot DA personnel should not encourage or potential claim; in such a case, refer the
release statements of witnesses, medical volunteer assistance to news media in request to the authority that has
records, or other reports or documents photographing or televising an accused monetary jurisdiction over the potential
pertaining to compensation for injuries or suspected person being held or claim. A potential claimant or his or her
or death of a DA civilian employee. transported in military custody. DA attorney may request information under
(4) Accused persons. Release of representatives should not make circumstances clearly indicating that it
information to the public concerning photographs of an accused or suspect will be used to file a tort claim, though
accused persons before determination of available unless a law enforcement none has yet been filed. Refer such
the case. Such release may prejudice the function is served. Requests from news requests to the staff judge advocate or
accused’s opportunity for a fair and media to take photographs during legal officer of the command. That
impartial determination of the case. The courts-martial are governed by AR 360– authority, when subordinate, will
following procedures apply: 1; promptly inform the Chief, U.S. Army
(i) The following information (iv) Fugitives from justice. This Claims Service (USACS), of the
concerning persons accused of an section does not restrict the release of substance of the request and the content
offense may be released by the information to enlist public aid in of the record. (Mailing address: U.S.
convening authority to public news apprehending a fugitive from justice; or Army Claims Service, ATTN: JACS–
agencies or media. The accused’s name, (v) Exceptional cases. Permission to TCC, Fort George G. Meade, MD 20755–
grade or rank, unit, regular assigned release information from military 5360. IDA officials who receive requests
duties, and other information as allowed personnel records to public news will refer them directly to the Chief,
by AR 25–71, paragraph 3–3a. The agencies or media may be requested USACS. They will also advise the
substance or text of the offense of which from The Judge Advocate General requesters of the referral and the basis
the person is accused. The identity of (TJAG). Requests for information from for it. The Chief, USACS, will process
the apprehending or investigating military personnel records will be requests according to this part and AR
agency and the length or scope of the processed according to this part. 27–20, paragraph 1–10.
investigation before apprehension. The (5) Litigation, tort claims, and (iii) Contract disputes. Each request
factual circumstances immediately contract disputes. Release of for a record that relates to a potential
surrounding the apprehension, information or records under this contract dispute or a dispute that has
including the time and place of section are subject to the time not reached final decision by the
apprehension, resistance, or pursuit. limitations prescribed by the FOIA. The contracting officer will be treated as a
The type and place of custody, if any; requester must be advised of the reasons request for procurement records and not
(ii) Information that will not be for nonrelease or referral. as litigation. However, the officials will
released. Before evidence has been (i) Litigation. Each request for a record consider the effect of release on the
presented in open court, subjective related to pending litigation involving potential dispute. Those officials may
observations or any information not the United States will be referred to the consult with the USALSA, Contract
incontrovertibly factual will not be staff judge advocate or legal officer of Appeals Division. (Mailing address: U.S.
released. Background information or the command. He or she will promptly Army Legal Services Agency, ATTN:
information relating to the inform the Litigation Division, U.S. JALS–CA, 901 North Stuart Street,
circumstances of an apprehension may Army Legal Services Agency (USALSA), Arlington, VA 22203. If the request is
be prejudicial to the best interests of the of the substance of the request and the for a record that relates to a pending
accused, and will not be released unless content of the record requested. contract appeal to the Armed Services
it serves a law enforcement function. (Mailing address: U.S. Army Litigation Board of Contract Appeals, or to a final
The following kinds of information will Center, 901 N. Stuart Street, Arlington, decision that is still subject to appeal
not be released: Observations or VA 22203–1837. If information is (i.e., 90 days have not lapsed after
comments on an accused’s character released for use in litigation involving receipt of the final decision by the
and demeanor, including those at the the United States, the Chief, Army contractor) then the request will be:
time of apprehension and arrest or Litigation Division (AR 27–40, para 1– Treated as involving a contract dispute;
during pretrial custody. Statements, 4d) must be advised of the release. He and referred to the USALSA, Contract
admissions, confessions, or alibis or she will note the release in such Appeals Division.
attributable to an accused, or the fact of investigative reports. Information or (6) Special nuclear material.
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refusal or failure of the accused to make records normally exempted from release Dissemination of unclassified
a statement. Reference to confidential (i.e., personnel and medical records) information concerning physical
sources, investigative techniques and may be releasable to the judge or court protection of special nuclear material.
procedures, investigator notes, and concerned, for use in litigation to which (i) Unauthorized dissemination of
activity files. This includes reference to the United States is not a party. Refer unclassified information pertaining to
fingerprint tests, polygraph such requests to the local staff judge security measures, including security

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9236 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations

plans, procedures, and equipment for installations within the continental (iii) Information related to
the physical protection of special United States, results of selection/ disciplinary action. This paragraph
nuclear material, is prohibited under 10 promotion boards, school graduations/ refers to records of trial by courts-
U.S.C. 128. completions, and awards and similar martial; nonjudicial punishment of
(ii) This prohibition shall be applied personal achievements. They may military personnel under the Uniform
by the Deputy Chief of Staff, G–3 as the release the names and duty addresses of Code of Military Justice, Article 15;
IDA, to prohibit the dissemination of key officials, if such release is nonpunitive measures such as
any such information only if and to the determined to be in the interests of administrative reprimands and
extent that it is determined that the advancing official community relation’s admonitions; suspensions of civilian
unauthorized dissemination of such functions. employees; and similar documents. If
information could reasonably be (c) Requests from government DA has specific instructions on the
expected to have a significant adverse officials. Requests from officials of State request, the following will apply.
effect on the health and safety of the or local Governments for Army Activity Subordinate commanders will not
public or the common defense and records shall be considered the same as release any information without
security by significantly increasing the any other requester. Requests from securing the consent of the proper
likelihood of illegal production of members of Congress not seeking installation commander. The
nuclear weapons, theft, diversion, or records on behalf of a Congressional installation commander may release the
sabotage of special nuclear materials, Committee, Subcommittee, either House information unless the request is for a
equipment, or facilities. sitting as a whole, or made on behalf of classified or ‘‘FOUO’’ document. In that
(iii) In making such a determination, their constituents shall be considered case the commander will refer the
Army personnel may consider what the the same as any other requester. request promptly to the Chief of
likelihood of an illegal production, Requests from officials of foreign Legislative Liaison for action, including
theft, diversion, or sabotage would be if governments shall be considered the the recommendations of the
the information proposed to be same as any other requester; however, transmitting agency and copies of the
prohibited from dissemination were at Army Intelligence elements are requested records with the referral.
no time available for dissemination. statutorily prohibited from releasing (iv) Military personnel records. Only
(iv) Army personnel shall exercise the HQDA can release information from
records responsive to requests made by
foregoing authority to prohibit the these records. Custodians will refer all
any foreign government or a
dissemination of any information requests from Congress directly and
representative of a foreign government.
described so as to apply the minimum promptly to the Chief of Legislative
Requests from officials of foreign
restrictions needed to protect the health Liaison, HQDA, Washington DC 20310–
and safety of the public or the common governments that do not invoke the
FOIA shall be referred to appropriate 1600.
defense and security, and upon a (v) Criminal investigation records.
determination that the unauthorized foreign disclosure channels and the
Only the Commanding General, U.S.
dissemination of such information requester so notified.
Army Criminal Investigation Command
could reasonably be expected to result (d) Privileged release outside of the (USACIDC), can release any USACIDC-
in a significant adverse effect on the FOIA to U.S. government officials. originated criminal investigation file.
health and safety of the public or the Records exempt from release to the For further information, see AR 195–2.
common defense and security by public under the FOIA may be disclosed (vi) Other exempt records.
significantly increasing the likelihood of in accordance with Army regulations to Commanders or chiefs will refer
illegal production of nuclear weapons, agencies of the Federal Government, requests for all other categories of
theft, diversion, or sabotage of special whether legislative, executive, or exempt information directly to the Chief
nuclear materials, equipment, or administrative, as follows: of Legislative Liaison. They will include
facilities. (1) In response to a request of a a copy of the material requested and, as
(v) Army employees shall not use this Committee or Subcommittee of appropriate, recommendations
authority to withhold information from Congress, or to either House sitting as a concerning release or denial.
the appropriate committees of Congress. whole in accordance with DoDD 5400.4. (vii) All other records. The
(7) Names and duty addresses. Lists The Army implementing directive is AR commander or chief with custody of the
of names, including telephone 1–20. Commanders or chiefs will notify records will furnish all other
directories, organizational charts, and/or the Chief of Legislative Liaison of all information promptly; to other Federal
staff directories published by releases of information to members of Agencies, both executive and
installations or activities, and other Congress or staffs of congressional administrative, as determined by the
personally identifying information will committees. Organizations that in the head of an Army Activity or designee;
ordinarily be withheld when requested normal course of business are required or in response to an order of a Federal
under the FOIA. This does not preclude to provide information to Congress may court, Army Activities shall release
a discretionary release of names and be excepted. Handle requests by information along with a description of
duty information of personnel who, by members of Congress (or staffs of the restrictions on its release to the
the nature of their position and duties, congressional committees) for public;
frequently interact with the public, such inspection of copies of official records (viii) Disciplinary actions and
as general officers, public affairs as follows: criminal investigations. Requests for
officers, and other personnel designated (i) National security classified access to, or information from, the
as official command spokespersons. The records, follow AR 380–5; records of disciplinary actions or
IDA for telephone directories is (ii) Civilian personnel records, criminal investigations will be honored
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delegated to the DA, FOIA/PA Office. members of Congressional Committees, if proper credentials are presented.
Public Affairs Offices may, after careful Subcommittees, or Joint Committees Representatives of the Office of
analysis, release information may examine official personnel folders Personnel Management may be given
determined to have legitimate news to the extent that the subject matter falls information from personnel files of
value, such as notices of personnel within their established jurisdictions, as employees actually employed at
reassignments to new units or permitted by 5 CFR 297.401(i); organizations or activities. Each such

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request will be considered on its merits. area of functional responsibility. (See a division chief under its supervision
The information released will be the the proper AR in the 10 series for full within the Agency in the grade of 05/
minimum required in connection with discussions of these areas. Included are civilian equivalent. Requests for
the investigation being conducted. records created or kept within the IDA’s delegation authority below this level
(ix) Other types of requests. All other area of responsibility; records retired by, must be submitted, after coordination,
official requests received by DA or referred to, the IDA’s headquarters or to the DA FOIA/PA Office, with detailed
elements from agencies of the executive office; and records of predecessor justification, for approval. Such
branch (including other military organizations. If a request involves the delegations must not slow FOIA actions.
departments) will be honored, if there areas of more than one IDA, the IDA to If an IDA’s delegate denies a FOIA or fee
are no compelling reasons to the whom the request was originally waiver request, the delegate must
contrary. If there are reasons to addressed will normally respond to it; clearly state that he or she is acting for
withhold the records, the requests will however, the affected IDAs may consult the IDA and identify the IDA by name
be submitted for determination of the on such requests and agree on and position in the written response to
propriety of release to the appropriate responsibility for them. IDAs will the requester. IDAs will send only the
addresses shown in Appendix B of this complete all required coordination at names, offices, and telephone numbers
part. initial denial level. This includes of their delegates to the DA, FOIA/PA
(2) Army Activities shall inform classified records retired to the NARA Office. IDAs will keep this information
officials receiving records under the when a mandatory declassification current.
provisions of this section that those review is necessary. Requests and/or (d) The officials designated by Army
records are exempt from public release responsive documents should not be Activities to make initial determinations
under the FOIA. Army Activities also sent to the DA FOIA/PA Office for should consult with public affairs
shall advise officials of any special initial denial authority or to forward to officers (PAOs) to become familiar with
handling instructions. Classified other offices within the DA. subject matters that are considered to be
information is subject to the provisions (b) FOIA requesters may ultimately newsworthy, and advise PAOs of all
of DoD 5200.1–R, and information appeal if they are dissatisfied with requests from news media
contained in Privacy Act systems of adverse determinations. It is crucial to representatives. In addition, the officials
records is subject to DoD 5400.11–R. forward complete packets to the IDAs. should inform PAOs in advance when
(e) Consultation with affected DoD Ensure cover letters list all attachments they intend to withhold or partially
component. (1) When an Army Activity and describe from where the records withhold a record, if it appears that the
receives a FOIA request for a record in were obtained, i.e., a PA system of withholding action may be challenged
which an affected Army or DoD records (including the applicable in the media. A FOIA release or denial
organization (including a Combatant systems notice), or other. If a FOIA action, appeal, or court review may
Command) has a clear and substantial action is complicated, include a generate public or press interest. In such
interest in the subject matter, chronology of events to assist the IDA in case, the IDA (or delegate) should
consultation with that affected Army or understanding what happened in the consult the Chief of Public Affairs or the
DoD organization is required. As an course of processing the FOIA request. command or organization PAO. The IDA
example, where an Army Activity If a file does not include documentation should inform the PAO contacted of the
receives a request for records related to described below, include the tab, and issue and obtain advice and
DoD operations in a foreign country, the insert a page marked ‘‘not applicable’’ or recommendations on handling its public
cognizant Combatant Command for the ‘‘not used.’’ The order and contents of affairs aspect. Any advice or
area involved in the request shall be FOIA file attachments follow: (Tab A or recommendations requested or obtained
consulted before a release is made. 1) The original FOIA request and should be limited to this aspect.
Consultations may be telephonic, envelope (if applicable); (Tab B or 2) Coordination must be completed within
electronic, or in hard copy. The response letter; (Tab C or 3) Copies the statutory 20 working day FOIA
(2) The affected Activity shall review of all records entirely released, single- response limit. (The point of contact for
the circumstances of the request for sided; (Tab D or 4) Copies of the Army Chief of Public Affairs is
host-nation relations, and provide, administrative processing documents, HQDA (SAPA–OSR), Washington DC
where appropriate, FOIA processing including extension letters and ‘‘no 20310–1500). If the request involves
assistance to the responding DoD records’’ certificates, in chronological actual or potential litigation against the
Component regarding release of order; (Tab E or 5) Copies of all records United States, release must be
information. Responding Army partially released or entirely denied, coordinated with The Judge Advocate
Activities shall provide copies of single-sided. For partially released General (TJAG).
responsive records to the affected DoD records, mark in yellow highlighter (or (e) The following officials are
Component when requested. The other readable highlighter) those designated IDAs for the areas of
affected DoD Component shall receive a portions withheld; and (Tab F or 6) responsibility outlined below:
courtesy copy of all releases in such Legal opinions(s). (1) The Administrative Assistant to
circumstances. (c) The initial determination of the Secretary of the Army is authorized
(3) Nothing in § 518.19 shall impede whether to make a record available or to act for the Secretary of the Army on
the processing of the FOIA request grant a fee waiver upon request may be requests for all records maintained by
initially received by an Army Activity. made by any suitable official designated the Office of the Secretary of the Army
by the Army Activity in published and its serviced activities as well as
§ 518.16 Initial determinations. regulations. The presence of the requests requiring the personal attention
(a) Initial denial authority. The DA marking ‘‘FOUO’’ does not relieve the of the Secretary of the Army. This also
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officials are designated as the Army’s designated official of the responsibility includes civilian Equal Employment
only IDAs. Only an IDA, his or her to review the requested record for the Opportunity (EEO) actions. (See DCS,
delegate, or the Secretary of the Army purpose of determining whether an G–1 for military Equal Opportunity (EO)
can deny FOIA requests for DA records. exemption under this part is applicable actions). The Administrative Assistant
Each IDA will act on direct and referred and should be invoked. IDAs may to the Secretary of the Army has
requests for records within his or her delegate all or part of their authority to delegated its authority to the Chief

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9238 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations

Attorney and Legal Services Directorate, Army Staff has delegated its authority to personnel, dependents, and persons
U.S. Army Resources & Programs the Chief Attorney and Legal Services given physical examination or treatment
Agency. (See DCS, G–1 for military Directorate, U.S. Army Resources & at DA medical facilities, to include
Equal Opportunity (EO) actions). Programs Agency. The Chief Attorney alcohol and drug treatment/test records.
(2) The Assistant Secretary of the and Legal Services Director, U.S. Army (15) The Chief of Chaplains is
Army (Financial Management and Resources & Programs Agency acts on authorized to act on requests for records
Comptroller) is authorized to act on requests for records of the Chief of Staff involving ecclesiastical relationships,
requests for finance and accounting and its Field Operating Agencies. (See rites performed by DA chaplains, and
records. Requests for CONUS finance TJAG for the (GOMO) actions). nonprivileged communications relating
and accounting records should be (9) The Deputy Chief of Staff, G–3 is to clergy and active duty chaplains’
referred to the Defense Finance and authorized to act on requests for records military personnel files.
Accounting Service (DFAS). The Chief relating to International Affairs policy, (16) The Judge Advocate General is
Attorney and Legal Services Directorate, planning, integration and assessments, authorized to act on requests for records
acts on requests for non-finance and strategy formulation, force development, relating to claims, courts-martial, legal
accounting records of the Assistant individual and unit training policy, services, administrative investigations,
Secretary of the Army (Financial strategic and tactical command and and similar legal records. TJAG is also
Management and Comptroller). control systems, nuclear and chemical authorized to act on requests for the
(3) The Assistant Secretary of the matters, use of DA forces. GOMO actions and records described
Army (Acquisition, Logistics, & (10) The Deputy Chief of Staff, G–8 is elsewhere in this regulation, especially
Technology) is authorized to act on authorized to act on requests for records if those records relate to litigation in
requests for procurement records other relating to programming, material which the United States has an interest.
than those under the purview of the integration and externally directed In addition, TJAG is authorized to act on
Chief of Engineers and the Commander, reviews. requests for records that are not within
U.S. Army Materiel Command. The (11) The Office of the Deputy Chief of the functional areas of responsibility of
Chief Attorney and Legal Services Staff, G–1 is authorized to act on the any other IDA, including, but not
Directorate, acts on requests for non- following records: Personnel board limited to requests for records for
procurement records of the Assistant actions, Equal Opportunity (military) Commands, and activities.
Secretary of the Army (Acquisition, and sexual harassment, health (17) The Chief, National Guard
Logistics and Technology). promotions, physical fitness and well Bureau, is authorized to act on requests
(4) The Deputy Assistant Secretary of being, command and leadership policy for all personnel and medical records of
the Army (Civilian Personnel Policy)/ records, HIV and suicide policy, retired, separated, discharged, deceased,
Director of Civilian Personnel, Office of substance abuse programs except for and active Army National Guard
the Assistant Secretary of the Army individual treatment records which are military personnel, including technician
(Manpower and Reserve Affairs) is the responsibility of the Surgeon personnel, unless such records clearly
authorized to act on requests for civilian General, retiree benefits, services, and fall within another IDA’s responsibility.
personnel records, personnel programs, (excluded are individual This authority includes, but is not
administration and other civilian personnel records of retired military limited to, National Guard organization
personnel matters, except for EEO personnel, which are the responsibility and training files; plans, operations, and
(civilian) matters which will be acted on of the U.S. Army Human Resources readiness files, policy files, historical
by the Administrative Assistant to the Command–St. Louis (AHRC–STL), DA files, files relating to National Guard
Secretary of the Army. The Deputy dealings with Veterans Affairs, U.S. military support, drug interdiction, and
Assistant Secretary of the Army Soldier’s and Airmen’s Home, retention, civil disturbances; construction, civil
(Civilian Personnel Policy)/Director of promotion, and separation; recruiting works, and ecology records dealing with
Civilian Personnel has delegated this and MOS policy issues, personnel travel armories, facilities within the States,
authority to the Chief, Policy and and transportation entitlements, ranges, etc. Equal Opportunity
Program Development Division. military strength and statistics, The investigative records; aviation program
(5) The Chief Information Officer, G– Army Librarian, demographics, and records and financial records dealing
6 is authorized to act on requests for Manprint. with personnel, operation and
records pertaining to Army Information (12) The Deputy Chief of Staff, G–4 is maintenance, and equipment budgets.
Technology, command, control authorized to act on requests for records (18) The Chief of Army Reserve is
communications and computer systems relating to DA logistical requirements authorized to act on requests for all
and the Information Resources and determinations, policy concerning personnel and medical records of
Management Program (automation, materiel maintenance and use, retired, separated, discharged, deceased,
telecommunications, visual information, equipment standards, and logistical and reserve component military
records management, publications and readiness. personnel, and all U.S. Army Reserve
printing). (13) The Chief of Engineers is (USAR) records, unless such records
(6) The Inspector General is authorized to act on requests for records clearly fall within another IDA’s
authorized to act on requests for all involving civil works, military responsibility. Records under the
Inspector General Records. construction, engineer procurement, responsibility of the Chief of Army
(7) The Auditor General is authorized and ecology; and the records of the U.S. Reserve include records relating to
to act on requests for records relating to Army Engineer divisions, districts, USAR plans, policies, and operations;
audits done by the U.S. Army Audit laboratories, and field operating changes in the organizational status of
Agency under AR 10–2. This includes agencies. USAR units; mobilization and
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requests for related records developed (14) The Surgeon General, demobilization policies, active duty
by the Audit Agency. Commander, U.S. Army Medical tours, and the Individual Mobilization
(8) The Director of the Army Staff is Command, is authorized to act on Augmentation program.
authorized to act on requests for all requests for medical research and (19) The Commander, United States
records of the Chief of Staff and its Field development records, and the medical Army Materiel Command (AMC) is
Operating Agencies. The Director of the records of active duty military authorized to act on requests for the

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Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations 9239

records of AMC headquarters and to individual mobilization augmentation a request; the requester is past due in
subordinate commands, units, and program. the payment of fees from a previous
activities that relate to procurement, (24) The Assistant Chief of Staff for FOIA request; or the requester disagrees
logistics, research and development, Installation Management (ACSIM) is with the fee estimate.
and supply and maintenance authorized to act on requests for records (5) Records not Reasonably Described.
operations. relating to planning, programming, A record has not been described with
(20) The Provost Marshal General execution and operation of Army sufficient particularity to enable the
(PMG) is authorized to act on all installations. This includes base Army or DoD Component to locate it by
requests for provost marshal activities realignment and closure activities, conducting a reasonable search.
and law enforcement functions for the environmental activities other than (6) Not a Proper FOIA Request for
army, all matters relating to police litigation, facilities and housing Some Other Reason. The requester has
intelligence, physical security, criminal activities, and installation management failed unreasonably to comply with
investigations, corrections and support activities. procedural requirements, other than fee-
internment (to include confinement and (25) The Commander, United States related, imposed by this part or Army
correctional programs for U.S. prisoners, Army Intelligence and Security Activity supplementing regulations.
criminal investigations, provost marshal Command, is authorized to act on (7) Not an Agency Record. The
activities, and military police support. requests for intelligence and security information requested is not a record
The PMG is responsible for the Office of records, foreign scientific and within the meaning of the FOIA and this
Security, Force Protection, and Law technological records, intelligence part.
Enforcement Division and is the training, intelligence threat assessments, (8) Duplicate Request. The request is
functional proponent for AR 190-series and foreign liaison information. a duplicate request (e.g., a requester asks
(Military Police) and 195-series (26) The Commander, U.S. Army for the same information more than
(Criminal Investigation), AR 630–10 Safety Center, is authorized to act on once). This includes identical requests
Absent Without Leave, Desertion, and requests for Army safety records. received via different means (e.g.,
Administration of Personnel Involved in (27) The Commander, United States electronic mail, facsimile, mail, and
Civilian Court Proceedings, and AR Army Test and Evaluation Command courier) at the same or different times.
633–30, Military Sentences to (ATEC), is authorized to act on requests (9) Other (Specify). Any other reason
Confinement. for the records of ATEC headquarters, a requester does not comply with
(21) The Commander, U.S. Army its subordinate commands, units, and published rules other than those
Criminal Investigation Command activities that relate to test and outlined in paragraphs (f)(1) through (8)
(USACIDC), is authorized to act on evaluation operations. of this section.
requests for criminal investigative (28) The General Counsel, Army and (10) Partial or Total Denial. The
records of USACIDC headquarters, its Air Force Exchange Service (AAFES), is record is denied in whole or in part in
subordinate activities, and military authorized to act on requests for AAFES accordance with procedures set forth in
police reports. This includes criminal records, under AR 60–20/AFR 147–14. the FOIA.
investigation records, investigation-in- (29) Special IDA authority for time- (g) Denial tests. To deny a requested
progress records, and all military police event related records may be designated record that is in the possession and
records and reports. on a case-by-case basis. These will be control of an Army Activity, it must be
(22) The Commander, United States published in the Federal Register. You determined that the record is exempt
Army Human Resources Command may contact the DA, FOIA/PA Office to under one or more of the exemptions of
(USAHRC), is authorized to act on obtain current information on special the FOIA. An outline of the FOIA’s
requests for military personnel files delegations. exemptions is contained in subpart C of
relating to active duty (other than those (f) Reasons for Not Releasing a this part.
of reserve and retired personnel) Record. The following are reasons for (h) Reasonably segregable portions.
military personnel matters, personnel not complying with a request for a Although portions of some records may
locator, physical disability record under 5 U.S.C. 552(a)(3). be denied, the remaining reasonably
determinations, and other military (1) No Records. A reasonable search of segregable portions must be released to
personnel administration records; files failed to identify responsive the requester when it reasonably can be
records relating to military casualty and records. The records custodian will assumed that a skillful and
memorialization activities; heraldic prepare a detailed no records certificate. knowledgeable person could not
activities, voting, records relating to This certificate must include, at a reconstruct the excised information.
identification cards, naturalization and minimum, what areas or offices were Unless indicating the extent of the
citizenship, commercial solicitation, searched and how the search was deletion would harm an interest
Military Postal Service Agency and conducted (manually, by computer, protected by an exemption, the amount
Army postal and unofficial mail service. etc.). The certificate will be signed by of deleted information shall be
(23) The Commander, USARC-StL has the records custodian and will include indicated on the released portion of
been delegated authority to act on behalf his or her grade and title. The original paper records by use of brackets or
of the USAHRC for requests concerning certificate will be forwarded to the IDA. darkened areas indicating removal of
all personnel and medical records of Preprinted ‘‘check-the-block’’ or ‘‘fill-in- information. In no case shall the deleted
retired, separated, discharged, deceased, the-blank’’ no records certificates are areas be left ‘‘white’’ without the use of
and reserve component military not authorized. brackets to show the bounds of deleted
personnel, unless such records clearly (2) Referrals. The request is information. In the case of electronic
fall within another IDA’s authority. The transferred to another Army Activity or deletion, or deletion in audiovisual or
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authority does not include records DoD Component, or to another Federal microfiche records, if technically
relating to USAR plans, policies, and Agency. feasible, the amount of redacted
operations; changes in the (3) Request Withdrawn. The request is information shall be indicated at the
organizational status of USAR units, withdrawn by the requester. place in the record such deletion was
mobilization and demobilization (4) Fee-Related Reason. The requester made, unless including the indication
policies; active duty tours, and the is unwilling to pay fees associated with would harm an interest protected by the

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9240 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations

exemption under which the deletion is IDA to the Secretary of the Army (1) With respect to a request for which
made. This may be done by use of (ATTN: OGC). a written notice has extended the time
brackets, shaded areas, or some other (3) The final response to the requester limits by 10 additional working days,
identifiable technique that will clearly should contain information concerning and the Activity determines that it
show the limits of the deleted the fee status of the request, consistent cannot make a response determination
information. When a record is denied in with the provisions of subpart F, of this within that additional 10 working day
whole, the response advising the part. When a requester is assessed fees period, the requester shall be notified
requester of that determination will for processing a request, the requester’s and provided an opportunity to limit
specifically state that it is not reasonable fee category shall be specified in the the scope of the request so that it may
to segregate portions of the record for response letter. Activities also shall be processed within the extended time
release. provide the requester with a complete limit, or an opportunity to arrange an
(i) Response to requester. Whenever cost breakdown (e.g., 115 pages of office alternative time frame for processing the
possible, initial determinations to reproduction at $0.15 per page; 5 request or a modified request. Refusal
release or deny a record normally shall minutes of computer search time at by the requester to reasonably modify
be made and the decision reported to $43.50 per minute, 3 hours of the request or arrange for an alternative
the requester within 20 working days professional level search at $44 per time frame shall be considered a factor
after receipt of a proper request by the hour, etc.) in the response letter. in determining whether exceptional
official designated to respond. When an (4) The explanation of the substantive circumstances exist with respect to
Army Activity has a significant number basis for a denial shall include specific Army Activity’s request backlogs.
of pending requests which prevent a citation of the statutory exemption Exceptional circumstances do not
response determination within the 20 applied under provisions of this part; include a delay that results from
working day period, the requester shall e.g., 5 U.S.C. 552 (b)(1). Merely referring predictable activity backlogs, unless the
be so notified in an interim response, to a classification; to a ‘‘FOUO’’ marking Army Activity demonstrates reasonable
and advised whether their request on the requested record; or to this part progress in reducing its backlog.
qualifies for the fast track or slow track or an Army Activity’s regulation does (2) Unusual circumstances that may
within the Army Activity’s multitrack not constitute a proper citation or justify delay are: The need to search for
processing system. Requesters who do explanation of the basis for invoking an and collect the requested records from
not meet the criteria for fast track exemption. other facilities that are separate from the
processing shall be given the office determined responsible for a
(5) When the time for response
opportunity to limit the scope of their release or denial decision on the
becomes an issue, the official
request in order to qualify for fast track requested information; the need to
responsible for replying shall
search for, collect, and appropriately
processing. acknowledge to the requester the date of
examine a voluminous amount of
(1) When a decision is made to release the receipt of the request.
separate and distinct records which are
a record, a copy should be made (6) When denying a request for requested in a single request; and the
available promptly to the requester once records, in whole or in part, an Army need for consultation, which shall be
he has complied with preliminary Activity shall make a reasonable effort conducted with all practicable speed,
procedural requirements. to estimate the volume of the records with other agencies having a substantial
(2) When a request for a record is denied and provide this estimate to the interest in the determination of the
denied in whole or in part, the official requester, unless providing such an request, or among two or more Army
designated to respond shall inform the estimate would harm an interest Activities or DoD Components having a
requester in writing of the name and protected by an exemption of the FOIA. substantial subject-matter interest in the
title or position of the official who made This estimate should be in number of request.
the determination, and shall explain to pages or in some other reasonable form (3) Army Activities may aggregate
the requester the basis for the of estimation, unless the volume is certain requests by the same requester,
determination in sufficient detail to otherwise indicated through deletions or by a group of requesters acting in
permit the requester to make a decision on records disclosed in part. concert, if the Army Activity reasonably
concerning appeal. The requester (7) When denying a request for believes that such requests actually
specifically shall be informed of the records in accordance with a statute constitute a single request, which would
exemptions on which the denial is qualifying as a FOIA exemption 3 otherwise satisfy the unusual
based, inclusive of a brief statement statute, Army Activities shall, in circumstances set forth in paragraph
describing what the exemption(s) cover. addition to stating the particular statute (j)(2) of this section, and the requests
When the initial denial is based in relied upon to deny the information, involve clearly related matters. Multiple
whole or in part on a security also state whether a court has upheld requests involving unrelated matters
classification, the explanation should the decision to withhold the shall not be aggregated. If the requests
include a summary of the applicable information under the particular statute, are aggregated under these conditions,
Executive Order criteria for and a concise description of the scope the requester or requesters shall be so
classification, as well as an explanation, of the information being withheld. notified.
to the extent reasonably feasible, of how (j) Extension of time. In unusual (4) In cases where the statutory time
those criteria apply to the particular circumstances, when additional time is limits cannot be met and no informal
record in question. The requester shall needed to respond to the initial request, extension of time has been agreed to, the
also be advised of the opportunity and the Army Activity shall acknowledge inability to process any part of the
procedures for appealing an unfavorable the request in writing within 20 working request within the specified time should
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determination to a higher final authority days, describe the circumstances be explained to the requester with a
within the Army Activity. The IDA will requiring the delay, and indicate the request that he agree to await a
inform the requester of his or her right anticipated date for a substantive substantive response by an anticipated
to appeal, in whole or part, the denial response that may not exceed 10 date. It should be made clear that any
of the FOIA or fee waiver request and additional working days, except as such agreement does not prejudice the
that the appeal must be sent through the provided below: right of the requester to appeal the

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Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations 9241

initial decision after it is made. Army shall be notified, and action on the prevent release of the record or
Activities are reminded that the request normally shall not be taken until information.
requester still retains the right to treat after the outcome of that court action is (3) The coordination provisions of
this delay as a de facto denial with full known. When the requester brings court this section also apply to any non-U.S.
administrative remedies. Only the action to compel disclosure, the Government record in the possession
responsible IDA can extend it, and the submitter shall be promptly notified of and control of the Army or DoD from
IDA must first coordinate with the OGC. this action. multi-national organizations, such as
(5) As an alternative to the taking of (1) If the submitted information is a the North Atlantic Treaty Organization
formal extensions of time the proposal in response to a solicitation for (NATO), United Nations Commands, the
negotiation by the cognizant FOIA a competitive proposal, and the North American Aerospace Defense
coordinating office of informal proposal is in the possession and Command (NORAD), the Inter-American
extensions in time with requesters is control of DA (see 10 U.S.C. 2305(g)), Defense Board, or foreign governments.
encouraged where appropriate. the proposal shall not be disclosed, and Coordination with foreign governments
(k) Misdirected requests. Misdirected no submitter notification and under the provisions of this section may
requests shall be forwarded promptly to subsequent analysis is required. The be made through Department of State, or
the Army Activity or other Federal proposal shall be withheld from public the specific foreign embassy.
Agency with the responsibility for the disclosure pursuant to 10 U.S.C. 2305(g) (m) File of initial denials. Copies of all
records requested. The period allowed and exemption (b)(3) of the FOIA. This initial withholdings or denials shall be
for responding to the request statute does not apply to bids, maintained by each Army Activity in a
misdirected by the requester shall not unsolicited proposals, or any proposal form suitable for rapid retrieval,
begin until the request is received by the that is set forth or incorporated by periodic statistical compilation, and
Army Activity that manages the records reference in a contract between an Army management evaluation. Records denied
requested. Activity and the offeror that submitted for any of the reasons contained in
(l) Records of non-U.S. Government the proposal. In such situations, normal § 518.20 shall be maintained for a
source. When a request is received for submitter notice shall be conducted period of six years to meet the statute
a record that falls under exemption 4, except for sealed bids that are opened of limitations requirement. Records will
that was obtained from a non-U.S. and read to the public. The term, be maintained in accordance with AR
Government source, or for a record proposal, means information contained 25–400–2.
containing information clearly in or originating from any proposal, (n) Special mail services. Army
identified as having been provided by a including a technical, management, or Activities are authorized to use
non-U.S. Government source, the source cost proposal submitted by an offeror in registered mail, certified mail,
of the record or information [also known response to solicitation for a certificates of mailing, and return
as ‘‘the submitter’’ for matters pertaining competitive proposal, but does not receipts. However, their use should be
to proprietary data under 5 U.S.C. 552, include an offeror’s name or total price limited to instances where it appears
FOIA, Exemption (b)(4)] and E.O. or unit prices when set forth in a record advisable to establish proof of dispatch
12600], shall be notified promptly of other than the proposal itself. Submitter or receipt of FOIA correspondence. The
that request and afforded reasonable notice, and analysis as appropriate, are requester shall be notified that they are
time (14 calendar days) to present any required for exemption (b)(4) matters responsible for the full costs of special
objections concerning the release, that are not specifically incorporated in services.
unless it is clear that there can be no 10 U.S.C. 2305(g). (o) Receipt accounts. The Treasurer of
valid basis for objection. This practice is (2) If the record or information was the United States has established two
required for those FOIA requests for submitted on a strictly voluntary basis, accounts for FOIA receipts, and all
data not deemed clearly exempt from absent any exercised authority that money orders or checks remitting FOIA
disclosure under exemption (b)(4) of 5 prescribes criteria for submission, and fees should be made payable to the U.S.
U.S.C. 552, The FOIA. If, for example, after consultation with the submitter, it Treasurer. These accounts shall be used
the record or information was provided is absolutely clear that the record or for depositing all FOIA receipts, except
with actual or presumptive knowledge information would customarily not be receipts for industrially funded and
of the non-U.S. Government source and released to the public, the submitter non-appropriated funded activities.
established that it would be made need not be notified. Examples of Components are reminded that the
available to the public upon request, exercised authorities prescribing criteria below account numbers must be
there is no obligation to notify the for submission are statutes, Executive preceded by the appropriate disbursing
source. Any objections shall be Orders, regulations, invitations for bids, office two digit prefix. Industrially
evaluated. The final decision to disclose requests for proposals, and contracts. funded and non-appropriated funded
information claimed to be exempt under Records or information submitted under activity FOIA receipts shall be
exemption (b)(4) shall be made by an these authorities are not voluntary in deposited to the applicable fund.
official equivalent in rank to the official nature. When it is not clear whether the (1) Receipt Account 3210 Sale of
who would make the decision to information was submitted on a Publications and Reproductions, FOIA.
withhold that information under FOIA. voluntary basis, absent any exercised This account shall be used when
When a substantial issue has been authority, and whether it would depositing funds received from
raised, the Army Activity may seek customarily be released to the public by providing existing publications and
additional information from the source the submitter, notify the submitter and forms that meet the Receipt Account
of the information and afford the source ask that it describe its treatment of the Series description found in Federal
and requester reasonable opportunities information, and render an objective Account Symbols and Titles. Deliver
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to present their arguments on the legal evaluation. If the decision is made to collections within 30 calendar days to
and substantive issues involved prior to release the information over the the servicing finance and accounting
making an agency determination. When objection of the submitter, notify the office.
the source seeks a restraining order or submitter and afford the necessary time (2) Receipt Account 3210 Fees and
take court action to prevent release of to allow the submitter to seek a Other Charges for Services, FOIA. This
the record or information, the requester restraining order, or take court action to account is used to deposit search fees,

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fees for duplicating and reviewing (in with a copy of the documents that are tracks established for initial requests.
the case of commercial requesters) the subject of the appeal. The cover All of the provisions of the FOIA apply
records to satisfy requests that could not letter will list all attachments and also to appeals of initial determinations,
be filled with existing publications or describe from where the records were to include establishing additional
forms. obtained, i.e., a PA system of records processing queues as needed.
(including the applicable systems (d) Delay in responding to an appeal.
§ 518.17 Appeals. notice, or other. If a file does not If additional time is needed due to the
(a) General. If the official designated include documentation described unusual circumstances the final
by the Army Activity to make initial below, include the tab, and insert a page decision may be delayed for the number
determinations on requests for records marked ‘‘not applicable’’ or ‘‘not used.’’ of working days (not to exceed 10), that
declines to provide a record because the The order and contents of FOIA file were not used as additional time for
official considers it exempt under one or attachments follow: (Tab A or 1) The responding to the initial request. If a
more of the exemptions of the FOIA, original FOIA request and envelope (if determination cannot be made and the
that decision may be appealed by the applicable); (Tab B or 2) The IDA denial requester notified within 20 working
requester, in writing, to a designated letter; (Tab C or 3) Copies of all records days, the appellate authority shall
appellate authority. The appeal should entirely released, single-sided; (Tab D or acknowledge to the requester, in
be accompanied by a copy of the letter 4) Copies of administrative processing writing, the date of receipt of the appeal,
denying the initial request. Such documents, including extension letters the circumstances surrounding the
appeals should contain the basis for and ‘‘no records’’ certificates, in delay, and the anticipated date for
disagreement with the initial refusal. chronological order; (Tab E or 5) Copies substantive response. Requesters shall
Appeal procedures also apply to the of all records partially denied or be advised that, if the delay exceeds the
disapproval of a fee category claim by a completely denied, single-sided. For statutory extension provision or is for
requester, disapproval of a request for records partially denied, mark in yellow reasons other than the unusual
waiver or reduction of fees, disputes highlighter (or other readable circumstances they may consider their
regarding fee estimates, review on an highlighter) those portions withheld; administrative remedies exhausted.
expedited basis a determination not to and (Tab F or 6) Legal opinions(s); and They may, however, without
grant expedited access to agency (ii) Assist the OGC as requested prejudicing their right of judicial
records, for no record determinations during his or her consideration of the remedy, await a substantive response.
when the requester considers such appeal. The Army Activity will continue to
responses adverse in nature, not (2) Appeals of denial of records made process the case expeditiously.
providing a response determination to a by the OGC, AAFES, shall be made to (e) Response to the requester. When
FOIA request within the statutory time the Secretary of the Army when the the appellate authority (OGC) makes a
limits, or any determination found to be Commander, AAFES, is an Army officer. final determination to release all or a
adverse in nature by the requester. Upon Appeals of denial of records made by portion of records withheld by an IDA,
an IDA’s receipt of a no records the OGC, AAFES, shall be made to the a written response and a copy of the
determination appeal, the IDA will Secretary of the Air Force when the records so released should be forwarded
direct the records custodian to conduct Commander is an Air Force officer. promptly to the requester after
another records search and certify, in (b) Time of receipt. A FOIA appeal compliance with any preliminary
writing, that it has made a good faith has been received by an Army Activity procedural requirements, such as
effort that reasonably could be expected when it reaches the office of an payment of fees. Final refusal of an
to produce the information requested. If appellate authority having jurisdiction, appeal must be made in writing by the
no records are again found, the original the OGC. Misdirected appeals should be appellate authority or by a designated
no records certificate will be forwarded referred expeditiously to the OGC. representative. The response, at a
to the IDA for inclusion in the appeals (c) Time limits. The requester shall be minimum, shall include the following:
packet. When denials have been made advised to file an appeal so that it is (1) The basis for the refusal shall be
under the provisions of the FOIA and postmarked no later than 60 calendar explained to the requester in writing,
the PA, and the denied information is days after the date of the initial denial both with regard to the applicable
contained in a PA system of records, letter. If no appeal is received, or if the statutory exemption or exemptions
appeals shall be processed under both appeal is postmarked after the invoked under provisions of the FOIA,
the FOIA and the PA. If the denied conclusion of this 60-day period, the and with respect to other appeal
information is not maintained in a PA case may be considered closed. matters;
system of records, the appeal shall be However, exceptions to the above may (2) When the final refusal is based in
processed under the FOIA. If a request be considered on a case-by-case basis. In whole or in part on a security
is merely misaddressed, and the cases where the requester is provided classification, the explanation shall
receiving Army Activity or DoD several incremental determinations for a include a determination that the record
Component simply advises the requester single request, the time for the appeal meets the cited criteria and rationale of
of such and refers the request to the shall not begin until the date of the final the governing Executive Order, and that
appropriate Army or DoD Component, response. Records that are denied shall this determination is based on a
this shall not be considered a no record be retained for a period of six years to declassification review, with the
determination. meet the statute of limitations explanation of how that review
(1) Appeals of adverse determinations requirement. Final determinations on confirmed the continuing validity of the
from denial of records or ‘‘no record’’ appeals normally shall be made within security classification;
determination, received by Army IDAs 20 working days after receipt. When an (3) The final denial shall include the
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must be forwarded through the denying Army Activity has a significant number name and title or position of the official
IDA to the Secretary of the Army of appeals preventing a response responsible for the denial;
(ATTN: OGC). On receipt of an appeal, determination within 20 working days, (4) In the case of appeals for total
the IDA will— the appeals shall be processed in a denial of records, the response shall
(i) Send the appeal to the Office of the multitrack processing system, based at a advise the requester that the information
Secretary of the Army, OGC, together minimum, on the three processing being denied does not contain

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meaningful portions that are reasonably correct, it may require the U. S. to pay to litigation support requests, bear in
segregable; reasonable attorney fees and other mind the type of complaint that has
(5) When the denial is based upon an litigation costs. given rise to the lawsuit and provide
exemption 3 statute, the response, in (2) When the court orders the release information, which addresses the
addition to citing the statute relied upon of denied records, it may also issue a specific reason(s) for the complaint.
to deny the information, shall state written finding that the circumstances (2) Responsibility for FOIA litigation.
whether a court has upheld the decision surrounding the withholding raise For the Army, under the general
to withhold the information under the questions whether Army Activity oversight of the OGC, FOIA litigation is
statute, and shall contain a concise personnel acted arbitrarily and the responsibility of the General
description of the scope of the capriciously. In these cases, the special Litigation Branch, Army Litigation
information withheld; or counsel of the Merit Systems Protection Division. If you are notified of a FOIA
(6) The response shall advise the Board shall conduct an investigation to lawsuit involving the Army, contact the
requester of the right to judicial review. determine whether or not disciplinary General Litigation Branch immediately
(f) Consultation. Final refusal action is warranted. The Army Activity at: U.S. Army Litigation Center, General
involving issues not previously resolved is obligated to take the action Litigation Branch (JALS–LTG), 901
or that the Army Activity knows to be recommended by the special counsel. North Stuart Street, Suite 700,
inconsistent with rulings of other DoD (3) The court may punish the Arlington, VA 22203–1837. The General
Components ordinarily should not be responsible official for contempt when Litigation Branch will provide guidance
made before consultation with the Army an Army Activity fails to comply with on gathering information and
OGC. Tentative decisions to deny the court order to produce records that assembling a litigation report necessary
records that raise new or significant it determines have been withheld to respond to FOIA litigation.
legal issues of potential significance to improperly. (3) Litigation reports for FOIA
other Agencies of the Government shall (e) Non-U. S. Government source lawsuits. As with any lawsuit, the Army
be provided to the Army OGC. information. A requester may bring suit Litigation Division and DOJ will require
in an U.S. District Court to compel the a litigation report. This report should be
§ 518.18 Judicial actions. release of records obtained from a non- prepared with the assistance, and under
(a) This section states current legal government source or records based on the supervision of, the legal advisor. For
and procedural rules for the information obtained from a non- general guidance on litigation reports,
convenience of the reader. The government source. Such source shall see Army Regulation 27–40, paragraph
statements of rules do not create rights be notified promptly of the court action. 3–9. Unlike the usual 60-day time
or remedies not otherwise available, nor When the source advises that it is period to respond to complaints under
do they bind the DA or DoD to seeking court action to prevent release, the Federal Rules of Civil Procedure,
particular judicial interpretations or the Army Activity shall defer answering complaints under the FOIA must be
procedures. A requester may seek an or otherwise pleading to the answered within 30 days of the service
order from a U.S. District Court to complainant as long as permitted by the of the complaint. Therefore, it is
compel release of a record after Court or until a decision is rendered in imperative to contact the Litigation
administrative remedies have been the court action of the source, Division immediately and to begin
exhausted; i.e., when refused a record whichever is sooner. preparing the litigation report without
by the head of a Component or an (f) FOIA litigation. Personnel delay.
appellate designee or when the Army responsible for processing FOIA (4) Specific guidance for FOIA
Activity has failed to respond within the requests at the DoD Component level litigation reports. The following is
time limits prescribed by the FOIA and shall be aware of litigation under the specific guidance for preparing a
in this part. FOIA. Such information will provide litigation report in FOIA Litigation. The
(b) The requester may bring suit in the management insights into the use of the required material should be indexed
U.S. District Court in the district, in nine exemptions by Component and assembled under the following
which the requester resides or is the personnel. Whenever a complaint under categories:
requester’s place of business, in the the FOIA is filed in an U.S. District (i) Statement of facts. (Tab A). Provide
district in which the record is located, Court, the Army Activity named in the a chronological statement of all facts
or in the District of Columbia. complaint shall forward a copy of the related to the FOIA request, beginning
(c) The burden of proof is on the complaint by any means to HQDA, with receipt of the request, responses to
Army Activity to justify its refusal to OTJAG (DAJA–LT), with an information the request, and searches for responsive
provide a record. The court shall copy to the Army OGC. In the DA, records. The statement of facts should
evaluate the case de novo (anew) and HQDA OTJAG (DAJA–LT), WASH D.C. refer to supporting enclosed exhibits
may elect to examine any requested 20310–2210 is also responsible for whenever possible.
record in camera (in private) to forwarding this information to the (ii) Responses to pleadings. (Tab B). If
determine whether the denial was Office of the Army OGC and to the DA you have been provided a copy of the
justified. FOIA/PA Office. complaint, provide a line-by-line
(d) When an Army Activity has failed (1) Bases for FOIA Lawsuits. In answer to the factual statements in the
to make a determination within the general, there are four categories of pleadings, along with recommendations
statutory time limits but can complaints in a FOIA lawsuit: failure to on whether to admit or deny the
demonstrate due diligence in respond to a request within time frames allegation.
exceptional circumstances, to include established in the FOIA statute; (iii) Memorandum of law. (Tab C). No
negotiating with the requester to modify challenge to the adequacy of search for memorandum of law is necessary in
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the scope of their request, the court may responsive records; challenge to FOIA lawsuits. If records were
retain jurisdiction and allow the application of a FOIA Exemption; and withheld, provide a written statement
Activity additional time to complete its procedural challenges, such as explaining the FOIA Exemption used to
review of the records. application of waiver of fees. The withhold the information and the
(1) If the court determines that the guidance below is intended to cover all rationale for its application in the
requester’s complaint is substantially categories of complaints. In responding particular facts of your case. Include

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here a copy of any legal review or to grant summary judgment. rendering the record essentially
regarding the withholding of the Depending on the basis for the lawsuit, meaningless. If applicable, this issue
records. with the assistance of their legal must be specifically addressed in the
(iv) Potential witness information. advisor, witnesses should prepare a declaration.
(Tab D). List the names, addresses, draft declaration to be included with the (iv) Sound Legal Basis. Army policy
telephone number, facsimile number litigation report. promotes careful consideration of FOIA
and e-mail addresses of all potential (vii) The following is some general requests and discretionary decisions to
witnesses. At a minimum, this must guidance on the content of a declaration disclose information protected under
include all of the following: the FOIA in FOIA litigation. Identify the declarant the FOIA. Discretionary disclosures
Officer or Coordinator or other person and describe his or her qualifications should be made only after full and
responsible for processing FOIA and responsibilities as they relate to the deliberate consideration of the
requests; the individual(s) who actually FOIA; provide a statement indicating institutional, commercial, and personal
conducted the search for responsive that the declarant is familiar with the privacy interests that could be
records; the legal advisor(s) who specific request and the general subject implicated by disclosure of the
reviewed or provided advice on the matter of the records; include a information. The decision to withhold
request; and the point of contact at any statement of the searcher’s records, in whole or in part, otherwise
office or agency to which the FOIA understanding of the exact nature of the exempt from disclosure under the FOIA
request was referred. request, including any modification must exhibit a sound legal basis or
(v) Exhibits. (Tab E). Provide copies of (narrowing or expanding the search present an unwarranted risk of adverse
all correspondence regarding the FOIA based on communications with the impact on the ability of other agencies
request. This includes all requester); generally, the factual portion to protect other important records.
correspondence between the agency and of the declaration should be organized
the requester, including any enclosures; as a chronological statement beginning Subpart F—Fee Schedule
any referrals or forwarding of the with receipt of the request; provide a
§ 518.19 General provisions.
request to other agencies or offices; specific description of the system of
records searched; and provide a (a) Authorities. The FOIA, as
copies of all documents released to the amended; the Paperwork Reduction Act
requester pursuant to the request in description of procedures used to search
for the requested records, (manual (44 U.S.C. 35), as amended; the PA of
litigation. If any information is withheld 1974, as amended; the Budget and
or redacted, provide a complete copy of search of records, computer database
search, etc.). This portion of the Accounting Act of 1921 and the Budget
all withheld information. Identify and Accounting Procedures Act, as
withheld information by placing declaration is especially important
when no records are found. The amended (see 31 U.S.C.); and 10 U.S.C.
brackets around all information 2328).
withheld and note in the margins of the declaration must reflect an adequate and
reasonable search for records in (b) Application. The fees described in
document the specific FOIA exemption this Subpart apply to FOIA requests,
applied to deny release of the locations where responsive records are
likely to be found. and conform to the Office of
document; all records and Management and Budget Uniform
correspondence forwarded to the IDA, if (5) Special guidance for initial denial
authorities. If any information was Freedom of Information Act Fee
applicable; all appeals by the requester; Schedule and Guidelines. They reflect
if the withheld document is classified, withheld, the IDA or person with
specific knowledge of the withholding direct costs for search, review (in the
provide a summary of each document case of commercial requesters), and
withheld. The Summary of classified must provide a specific statement of any
Exemptions to the FOIA, which were duplication of documents, collection of
documents should include the which is permitted by the FOIA. They
following: applied to the records.
(i) Withheld records. For withheld are neither intended to imply that fees
(A) The classification of the must be charged in connection with
document; records, describe in reasonably specific
detail all records or parts of records providing information to the public in
(B) The date of the document;
(C) The number of pages of the withheld. If the number of records is the routine course of business, nor are
document; extensive, use an index of the records they meant as a substitute for any other
(D) The author or creator of the and consider numbering the documents schedule of fees, such as DoD 7000.14–
document; to facilitate reference. It is also R, which does not supersede the
(E) The intended or actual recipient of permissible (and frequently helpful) to collection of fees under the FOIA.
the document; include redacted portions of records Nothing in this subpart shall supersede
(F) The subject of the document and withheld as attachments or exhibits to fees chargeable under a statute
an unclassified description of the the declarations. specifically providing for setting the
document sufficient to inform the court (ii) Exemptions. Include in the level of fees for particular types of
of the nature of the contents of the declaration a specific statement records. A ‘‘statute specifically
document; and demonstrating that all the elements of providing for setting the level of fees for
(G) An explanation of the reason for each FOIA exemption are met. particular types of records’’ (5 U.S.C.
withholding, including the specific (iii) Segregation. The FOIA requires 552 FOIA, (a)(4)(A)(vi)) means any
provision(s) of Executive Order 12,958 that all information not subject to an statute that enables a Government
which permit classification of the exemption to the FOIA, which can be Agency such as the GPO or the NTIS, to
information. reasonably segregated from exempt set and collect fees. Components should
(vi) Draft declarations. (Tab F). A information, must be released to FOIA ensure that when documents that would
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declaration is a statement for use in requesters. In any instance where an be responsive to a request are
litigation made under penalty of perjury entire document is withheld, the maintained for distribution by agencies
pursuant to specific statutory authority individual authorizing the withholding operating statutory-based fee schedule
(28 U.S.C. 1746) which need not be must specifically address that programs such as GPO or NTIS, they
notarized. Declarations may be used by segregation and release of non-exempt inform requesters of the steps necessary
the Army to support a motion to dismiss material was not possible without to obtain records from those sources.

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(1) The term ‘‘direct costs’’ means determine whether one or more of the considered in the Activity’s
those expenditures an Activity actually statutory exemptions permit determinations.
makes in searching for, reviewing (in withholding. It also includes processing (3) For the purposes of these
the case of commercial requesters), and the documents for disclosure, such as restrictions, the word ‘‘pages’’ refers to
duplicating documents to respond to a excising them for release. Review does paper copies of a standard size, which
FOIA request. Direct costs include, for not include the time spent resolving will normally be ‘‘81⁄2 x 11’’ or ‘‘11 x
example, the salary of the employee general legal or policy issues regarding 14’’. Thus, requesters would not be
performing the work (the basic rate of the application of exemptions. It should entitled to 100 microfiche or 100
pay for the employee plus 16 percent of be noted that charges for commercial computer disks, for example. A
that rate to cover benefits), and the costs requesters may be assessed only for the microfiche containing the equivalent of
of operating duplicating machinery. Not initial review. Activities may not charge 100 pages or 100 pages of computer
included in direct costs are overhead for reviews required at the printout, however, might meet the terms
expenses such as costs of space, heating administrative appeal level of an of the restriction.
or lighting the facility in which the exemption already applied. However, (4) In the case of computer searches,
records are stored. records or portions of records withheld the first two free hours will be
(2) The term ‘‘search’’ includes all in full under an exemption, which is determined against the salary scale of
time spent looking, both manually and subsequently determined not to apply, the individual operating the computer
electronically, for material that is may be reviewed again to determine the for the purposes of the search. As an
responsive to a request. Search also applicability of other exemptions not example, when the direct costs of the
includes a page-by-page or line-by-line previously considered. The costs for computer central processing unit, input-
identification (if necessary) of material such a subsequent review would be output devices, and memory capacity
in the record to determine if it, or properly assessable. equal $40.00 (two hours of equivalent
portions thereof are responsive to the (c) Fee restrictions. No fees may be search at the clerical level), amounts of
request. Activities should ensure that charged by any Army Activity if the computer costs in excess of that amount
searches are done in the most efficient costs of routine collection and are chargeable as computer search time.
and least expensive manner so as to In the event the direct operating cost of
processing of the fee are likely to equal
minimize costs for both the Activity and the hardware configuration cannot be
or exceed the amount of the fee. With
the requester. For example, Activities determined, computer search shall be
the exception of requesters seeking
should not engage in line-by-line based on the salary scale of the operator
documents for a commercial use,
searches, when duplicating an entire executing the computer search.
Activities shall provide the first two (d) Fee waivers. Documents shall be
document known to contain responsive hours of search time, and the first one
information, would prove to be the less furnished without charge, or at a charge
hundred pages of duplication without reduced below fees assessed to the
expensive and quicker method of
charge. For example, for a request (other categories of requesters when the
complying with the request. Time spent
than one from a commercial requester) Activity determines that waiver or
reviewing documents in order to
that involved two hours and fifteen reduction of the fees is in the public
determine whether to apply one or more
minutes of search time, and resulted in interest because furnishing the
of the statutory exemptions is not search
one hundred and twenty-five pages of information is likely to contribute
time, but review time.
(3) The term ‘‘duplication’’ refers to documents, an Activity would significantly to public understanding of
the process of making a copy of a determine the cost of only ten minutes the operations or activities of DA and is
document in response to a FOIA of search time, and only five pages of not primarily in the commercial interest
request. Such copies can take the form reproduction. If this processing cost was of the requester.
of paper copy, microfiche, audiovisual, equal to, or less than the cost to the (1) When assessable costs for a FOIA
or machine-readable documentation Activity for billing the requester and request total $15.00 or less, fees shall be
(e.g., magnetic tape or disc), among processing the fee collected, no charges waived automatically for all requesters,
others. Every effort will be made to would result. regardless of category.
ensure that the copy provided is in a (1) Requesters receiving the first two (2) Decisions to waive or reduce fees
form that is reasonably useable, the hours of search and the first one that exceed the automatic waiver
requester shall be notified that the copy hundred pages of duplication without threshold shall be made on a case-by-
provided is the best available and that charge are entitled to such only once per case basis. Disclosure of the information
the Activity’s master copy shall be made request. Consequently, if an Activity, ‘‘is in the public interest because it is
available for review upon appointment. after completing its portion of a request, likely to contribute significantly to
For duplication of computer-stored finds it necessary to refer the request to public understanding of the operations
records, the actual cost, including the a subordinate office, another Army or activities of the Government.’’
operator’s time, shall be charged. In Activity or DoD Component, or another (i) Activities should analyze whether
practice, if an Activity estimates that Federal Agency for action their portion the subject matter of the request
assessable duplication charges are likely of the request, the referring Activity involves issues that will significantly
to exceed $25.00, it shall notify the shall inform the recipient of the referral contribute to the public understanding
requester of the estimate, unless the of the expended amount of search time of the operations or activities of DA or
requester has indicated in advance his and duplication cost to date. DoD. Requests for records in the
or her willingness to pay fees as high as (2) The elements to be considered in possession of the Army or DoD, which
those anticipated. Such a notice shall determining the ‘‘cost of collecting a were originated by non-government
offer a requester the opportunity to fee’’ are the administrative costs to the organizations and are sought for their
hsrobinson on PROD1PC70 with RULES2

confer with Activity personnel with the Activity of receiving and recording a intrinsic content, rather than
object of reformulating the request to remittance, and processing the fee for informative value, will likely not
meet his or her needs at a lower cost. deposit in the Department of Treasury’s contribute to public understanding of
(4) The term ‘‘review’’ refers to the special account. The cost to the the operations or activities of either DA
process of examining documents located Department of Treasury to handle such or DoD. An example of such records
in response to a FOIA request to remittance is negligible and shall not be might be press clippings, magazine

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9246 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations

articles, or records forwarding a information in a manner that will be examples, news media organizations
particular opinion or concern from a informative to the general public. have a commercial interest as business
member of the public regarding an Requesters should be asked to describe organizations; however, their inherent
Army or DoD activity. Similarly, their qualifications, the nature of their role of disseminating news to the
disclosures of records of considerable research, the purpose of the requested general public can ordinarily be
age may or may not bear directly on the information, and their intended means presumed to be of a primary interest.
current activities of either DA or DoD; of dissemination to the public. Therefore, any commercial interest
however, the age of a particular record (iv) Activities must differentiate the becomes secondary to the primary
shall not be the sole criteria for denying relative significance or impact of the interest in serving the public. Similarly,
relative significance under this factor. It disclosure against the current level of scholars writing books or engaged in
is possible to envisage an informative public knowledge, or understanding, other forms of academic research, may
issue concerning the current activities of which exists before the disclosure. In recognize a commercial benefit, either
DA or DoD, based upon historical other words, will disclosure on a directly, or indirectly (through the
documentation. Requests of this nature current subject of wide public interest institution they represent); however,
must be closely reviewed consistent be unique in contributing previously normally such pursuits are primarily
with the requester’s stated purpose for unknown facts, thereby enhancing undertaken for educational purposes,
desiring the records and the potential public knowledge, or will it basically and the application of a fee charge
for public understanding of the duplicate what is already known by the would be inappropriate. Conversely,
operations and activities of DA or DoD. general public? A decision regarding data brokers or others who merely
(ii) The informative value of the significance requires objective compile government information for
information to be disclosed requires a judgment, rather than subjective marketing can normally be presumed to
close analysis of the substantive determination, and must be applied have an interest primarily of a
contents of a record, or portion of the carefully to determine whether commercial nature.
record, to determine whether disclosure disclosure will likely lead to a (4) Activities are reminded that the
is meaningful, and shall inform the significant public understanding of the factors and examples used in this
public on the operations or activities of issue. Activities shall not make value section are not all inclusive. Each fee
DA or DoD. While the subject of a judgments as to whether the information decision must be considered on a case-
request may contain information that is important enough to be made public. by-case basis and upon the merits of the
concerns operations or activities of DA (3) Disclosure of the information ‘‘is information provided in each request.
or DoD, it may not always hold great not primarily in the commercial interest When the element of doubt as to
potential for contributing to a of the requester.’’ whether to charge or waive the fee
meaningful understanding of these (i) If the request is determined to be cannot be clearly resolved, Activities
operations or activities. An example of of a commercial interest, Activities should rule in favor of the requester.
such would be a previously released should address the magnitude of that (5) In addition, the following
record that has been heavily redacted, interest to determine if the requester’s additional circumstances describe
the balance of which may contain only commercial interest is primary, as situations where waiver or reduction of
random words, fragmented sentences, or opposed to any secondary personal or fees are most likely to be warranted:
paragraph headings. A determination as non-commercial interest. In addition to (i) A record is voluntarily created to
to whether a record in this situation will profit-making organizations, individual prevent an otherwise burdensome effort
contribute to the public understanding persons or other organizations may have to provide voluminous amounts of
of the operations or activities of DA or a commercial interest in obtaining available records, including additional
DoD must be approached with caution, certain records. Where it is difficult to information not requested; or
and carefully weighed against the determine whether the requester is of a (ii) A previous denial of records is
arguments offered by the requester. commercial nature, Activities may draw reversed in total, or in part, and the
Another example is information already inference from the requester’s identity assessable costs are not substantial (e.g.
known to be in the public domain. and circumstances of the request. $15.00—$30.00).
Disclosure of duplicative, or nearly Activities are reminded that in order to (e) Fee assessment. Fees may not be
identical information already existing in apply the commercial standards of the used to discourage requesters, and to
the public domain may add no FOIA, the requester’s commercial this end, FOIA fees are limited to
meaningful new information concerning benefit must clearly override any standard charges for direct document
the operations and activities of DA or personal or non-profit interest. search, review (in the case of
DoD. (ii) Once a requester’s commercial commercial requesters) and duplication.
(iii) The contribution to an interest has been determined, Activities (1) In order to be as responsive as
understanding of the subject by the should then determine if the disclosure possible to FOIA requests while
general public is likely to result from would be primarily in that interest. This minimizing unwarranted costs to the
disclosure that will inform, or have the requires a balancing test between the taxpayer, Activities shall adhere to the
potential to inform the public, rather commercial interest of the request following procedures:
than simply the individual requester or against any public benefit to be derived (i) Each request must be analyzed to
small segment of interested persons. as a result of that disclosure. Where the determine the category of the requester.
The identity of the requester is essential public interest is served above and If the Activity determination regarding
in this situation in order to determine beyond that of the requester’s the category of the requester is different
whether such requester has the commercial interest, a waiver or than that claimed by the requester, the
capability and intention to disseminate reduction of fees would be appropriate. Activity should notify the requester to
hsrobinson on PROD1PC70 with RULES2

the information to the public. Mere Conversely, even if a significant public provide additional justification to
assertions of plans to author a book, interest exists, and the relative warrant the category claimed, and that
researching a particular subject, doing commercial interest of the requester is a search for responsive records will not
doctoral dissertation work, or indigence determined to be greater than the public be initiated until agreement has been
are insufficient without demonstrating interest, then a waiver or reduction of attained relative to the category of the
the capacity to further disclose the fees would be inappropriate. As requester. Absent further category

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justification from the requester, and from the date of the billing), the Activity Activities should seek additional
within a reasonable period of time (i.e., may require the requester to pay the full clarification before assigning the request
30 calendar days), the Activity shall amount owed, plus any applicable to a specific category.
render a final category determination, interest, or demonstrate that he or she (ii) When Activities receive a request
and notify the requester of such has paid the fee, and to make an for documents for commercial use, they
determination, to include normal advance payment of the full amount of should assess charges, which recover
administrative appeal rights of the the estimated fee before the Activity the full direct costs of searching for,
determination. The requester should be begins to process a new or pending reviewing for release, and duplicating
advised that, notwithstanding any request from the requester. Interest will the records sought. Commercial
appeal, a search for responsive records be at the rate prescribed in 31 U.S.C. requesters (unlike other requesters) are
will not be initiated until the requester 3717, and confirmed with respective not entitled to two hours of free search
indicates a willingness to pay assessable Finance and Accounting Offices; time, nor 100 free pages of reproduction
costs appropriate for the category (vii) After all work is completed on a of documents. Moreover, commercial
determined by the Activity; request, and the documents are ready requesters are not normally entitled to a
(ii) Requesters should submit a fee for release, Activities may request waiver or reduction of fees based upon
declaration appropriate for the below payment before forwarding the an assertion that disclosure would be in
categories. Commercial requesters documents, particularly for those the public interest. However, because
should indicate a willingness to pay all requesters who have no payment use is the exclusive determining criteria,
search, review and duplication costs. history, or for those requesters who have it is possible to envision a commercial
Educational or Noncommercial failed previously to pay a fee in a timely enterprise making a request that is not
Scientific Institution or News Media fashion (i.e., within 30 calendar days for commercial use. It is also possible
requesters should indicate a willingness from the date of the billing; that a non-profit organization could
to pay duplication charges, if (viii) The administrative time limits of make a request that is for commercial
applicable, in excess of 100 pages if the FOIA will begin only after the use. Such situations must be addressed
more than 100 pages of records are Activity has received a willingness to on a case-by-case basis.
desired. All other requesters should pay fees and satisfaction as to category (3) Educational institution requesters.
indicate a willingness to pay assessable determination, or fee payments (if Fees shall be limited to only reasonable
search and duplication costs; appropriate); and standard charges for document
(iii) Activities must be prepared to (ix) Activities may charge for time duplication (excluding charges for the
provide an estimate of assessable fees if spent searching for records, even if that first 100 pages) when the request is
desired by the requester. While it is search fails to locate records responsive made by an educational institution
recognized that search situations will to the request. Activities may also whose purpose is scholarly research.
vary among Activities, and that an charge search and review (in the case of Requesters must reasonably describe the
estimate is often difficult to obtain prior commercial requesters) time if records records sought. The term ‘‘educational
to an actual search, requesters who located are determined to be exempt institution’’ refers to a pre-school, a
desire estimates are entitled to such from disclosure. In practice, if the public or private elementary or
before committing to a willingness to Activity estimates that search charges secondary school, an institution of
pay. Should Activities’ actual costs are likely to exceed $25.00, it shall graduate high education, an institution
exceed the amount of the estimate or the notify the requester of the estimated of undergraduate higher education, an
amount agreed to by the requester, the amount of fees, unless the requester has institution of professional education,
amount in excess of the estimate or the indicated in advance his or her and an institution of vocational
requester’s agreed amount shall not be willingness to pay fees as high as those education, which operates a program or
charged without the requester’s anticipated. Such a notice shall offer the programs of scholarly research. Fees
agreement; requester the opportunity to confer with shall be waived or reduced in the public
(iv) No Army Activity may require Activity personnel with the object of interest if the criteria above have been
advance payment of any fee; i.e., reformulating the request to meet his or met.
payment before work is commenced or her needs at a lower cost. (4) Non-Commercial Scientific
continued on a request, unless the (2) Commercial Requesters. Fees shall Institution Requesters. Fees shall be
requester has previously failed to pay be limited to reasonable standard limited to only reasonable standard
fees in a timely fashion, or the agency charges for document search, review charges for document duplication
has determined that the fee will exceed and duplication when records are (excluding charges for the first 100
$250.00. As used in this sense, a timely requested for commercial use. pages) when the request is made by a
fashion is 30 calendar days from the Requesters must reasonably describe the non-commercial scientific institution
date of billing (the fees have been records sought. whose purpose is scientific research.
assessed in writing) by the Activity; (i) The term ‘‘commercial use’’ request Requesters must reasonably describe the
(v) Where an Activity estimates or refers to a request from, or on behalf of records sought. The term ‘‘non-
determines that allowable charges that a one who seeks information for a use or commercial scientific institution’’ refers
requester may be required to pay are purpose that furthers the commercial, to an institution that is not operated on
likely to exceed $250.00, the Activity trade, or profit interest of the requester a ‘‘commercial’’ basis and that is
shall notify the requester of the likely or the person on whose behalf the operated solely for the purpose of
cost and obtain satisfactory assurance of request is made. In determining whether conducting scientific research, the
full payment where the requester has a a requester properly belongs in this results of which are not intended to
history of prompt payments, or require category, Activities must determine the promote any particular product or
hsrobinson on PROD1PC70 with RULES2

an advance payment of an amount up to use to which a requester will put the industry.
the full estimated charges in the case of documents requested. Moreover, where (5) Activities shall provide documents
requesters with no history of payment; an Activity has reasonable cause to to requesters for the cost of duplication
(vi) Where a requester has previously doubt the use to which a requester will alone, excluding charges for the first
failed to pay a fee charged in a timely put the records sought, or where that 100 pages. To be eligible for inclusion
fashion (i.e., within 30 calendar days use is not clear from the request itself, in these categories, requesters must

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9248 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations

show that the request is being made libraries, private repositories of for any fees that remain outstanding 30
under the auspices of a qualifying Government records, information calendar days from the date of billing
institution and that the records are not vendors, data brokers or similar (the first demand notice) to the
sought for commercial use, but in marketers of information whether to requester of the amount owed. The
furtherance of scholarly (from an industries and businesses, or other interest rate shall be as prescribed in 31
educational institution) or scientific entities. U.S.C. 3717. Activities should verify the
(from a non-commercial scientific (7) All Other Requesters. Activities current interest rate with respective
institution) research. shall charge requesters who do not fit Finance and Accounting Offices. After
(6) Representatives of the news media. into any of the categories, fees which one demand letter has been sent, and 30
Fees shall be limited to only reasonable recover the full direct cost of searching calendar days have lapsed with no
standard charges for document for and duplicating records, except that payment, Activities may submit the debt
duplication (excluding charges for the the first two hours of search time and to respective Finance and Accounting
first 100 pages) when the request is the first 100 pages of duplication shall Offices for collection pursuant to the
made by a representative of the news be furnished without charge. Requesters Debt Collection Act.
media. Requesters must reasonably must reasonably describe the records (h) Computation of fees. The fee
describe the records sought. sought. Requests from subjects about schedule shall be used to compute the
(i) The term ‘‘representative of the themselves will continue to be treated search, review (in the case of
news media’’ refers to any person under the fee provisions of the Privacy commercial requesters) and duplication
actively gathering news for an entity Act of 1974, which permit fees only for costs associated with processing a given
that is organized and operated to duplication. Activities are reminded FOIA request. Costs shall be computed
publish or broadcast news to the public. that this category of requester may also on time actually spent. Neither time-
The term ‘‘news’’ means information be eligible for a waiver or reduction of based nor dollar-based minimum
that is about current events or that fees if disclosure of the information is charges for search, review and
would be of current interest to the in the public interest as defined in duplication are authorized. The
public. Examples of news media entities paragraph (6) (ii) in this section. appropriate fee category of the requester
include television or radio stations (f) Aggregating requests. Except for shall be applied before computing fees.
broadcasting to the public at large and requests that are for a commercial use, DD Form 2086 (Record of Freedom of
publishers of periodicals (but only in an Activity may not charge for the first Information (FOI) Processing Cost) will
those instances when they can qualify two hours of search time or for the first be used to annotate fees for processing
as disseminators of ‘‘news’’) who make 100 pages of reproduction. However, a FOIA information.
their products available for purchase or requester may not file multiple requests
(i) Refunds. In the event that an
subscription by the general public. at the same time, each seeking portions
Activity discovers that it has
These examples are not meant to be all- of a document or documents, solely in
overcharged a requester or a requester
inclusive. Moreover, as traditional order to avoid payment of fees. When an
has overpaid, the Activity shall
methods of news delivery evolve (e.g., Activity reasonably believes that a
promptly refund the charge to the
electronic dissemination of newspapers requester or, on rare occasions, a group
requester by reimbursement methods
through telecommunications services), of requesters acting in concert, is
that are agreeable to the requester and
such alternative media would be attempting to break a request down into
included in this category. In the case of a series of requests for the purpose of the Activity.
‘‘freelance’’ journalists, they may be avoiding the assessment of fees, the § 518.20 Collection of fees and fee rates.
regarded as working for a news agency may aggregate any such requests (a) Collection of fees. Collection of
organization if they can demonstrate a and charge accordingly. One element to fees will be made at the time of
solid basis for expecting publication be considered in determining whether a providing the documents to the
through that organization, even though belief would be reasonable is the time requester or recipient when the
not actually employed by it. A period in which the requests have requester specifically states that the
publication contract would be the occurred. For example, it would be
costs involved shall be acceptable or
clearest proof, but Activities may also reasonable to presume that multiple
acceptable up to a specified limit that
look to the past publication record of a requests of this type made within a 30-
covers the anticipated costs. Collection
requester in making this determination. day period had been made to avoid fees.
(ii) To be eligible for inclusion in this of fees may not be made in advance
For requests made over a longer period,
category, a requester must meet the unless the requester has failed to pay
however, such a presumption becomes
criteria in paragraph (e) (6) (i) of this previously assessed fees within 30
harder to sustain and Activities should
section, and his or her request must not calendar days from the date of the
have a solid basis for determining that
be made for commercial use. A request billing by the Activity, or the Activity
aggregation is warranted in such cases.
for records supporting the news has determined that the fee will be in
Activities are cautioned that before
dissemination function of the requester aggregating requests from more than one excess of $250.
shall not be considered to be a request requester, they must have a concrete (b) Search time.
that is for a commercial use. For basis on which to conclude that the (1) Costs for manual searches.
example, a document request by a requesters are acting in concert and are
Hourly rate
newspaper for records relating to the acting specifically to avoid payment of Type Grade ($)
investigation of a defendant in a current fees. In no case may Activities aggregate
criminal trial of public interest could be multiple requests on unrelated subjects Clerical .......... E9/GS 8 and 20
presumed to be a request from an entity from one requester. below.
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eligible for inclusion in this category, (g) Debt Collection Act of 1982 (Pub. Professional ... 1–06/GS 9– 44
and entitled to records at the cost of L. 97–365). The Debt Collection Act GS 15.
reproduction alone (excluding charges provides for a minimum annual rate of Executive ....... 07/ST/SL/ 75
interest to be charged on overdue debts SES–1 and
for the first 100 pages). above.
(iii) ‘‘Representative of the news owed the Federal Government. Contractor ...... ....................... 44
media’’ does not include private Activities may levy this interest penalty

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(2) Computer Search. Fee assessments the actual direct cost of reproducing the cost is to be differentiated from the
for computer search consists of two material, including the wage of the direct costs allowable for other types of
parts; individual time (hereafter referred person doing the work. Audiovisual information released under the FOIA.
to as human time), and machine time. materials provided to a requester need DD Form 2086–1 will be used to
(i) Human time. Human time is all the not be in reproducible format or quality. annotate fees for technical data. The
time spent by humans performing the Army audiovisual materials are referred form is available through normal
necessary tasks to prepare the job for a to as ‘‘visual information.’’ publication channels.
machine to execute the run command. (f) Other Records. Direct search and (b) Waiver. Activities shall waive the
If execution of a run requires monitoring duplication cost for any record not payment of costs described in paragraph
by a human, that human time may be described above shall be computed in (a) of this section, which are greater
also assessed as computer search. The the manner described for audiovisual than the costs that would be required for
terms ‘‘programmer/operator’’ shall not documentary material. release of this same information if the
be limited to the traditional (g) Costs for Special Services. request is made by a citizen of the
programmers or operators. Rather, the Complying with requests for special United States or a United States
terms shall be interpreted in their services is at the discretion of the corporation, and such citizen or
broadest sense to incorporate any Activities. Neither the FOIA, nor its fee corporation certifies that the technical
human involved in performing the structure cover these kinds of services. data requested is required to enable it to
computer job (e.g. technician, Therefore, Activities may recover the submit an offer, or determine whether it
administrative support, operator, costs of special services requested by is capable of submitting an offer to
programmer, database administrator, or the requester after agreement has been provide the product to which the
action officer). obtained in writing from the requester to technical data relates to the United
(ii) Machine time. Machine time pay for one or more of the following States or a contractor with the United
involves only direct costs of the Central services: States. However, Activities may require
Processing Unit (CPU), input/output (1) Certifying that records are true the citizen or corporation to pay a
devices, and memory capacity used in copies; and/or deposit in an amount equal to not more
the actual computer configuration. Only (2) Sending records by special than the cost of complying with the
this CPU rate shall be charged. No other methods such as express mail, etc. request, which will be refunded upon
machine related costs shall be charged. § 518.21 Collection of fees and fee rates submission of an offer by the citizen or
In situations where the capability does for technical data. corporation;
not exist to calculate CPU time, no (a) Fees for technical data. Technical (1) The release of technical data is
machine costs can be passed on to the data, other than technical data that requested in order to comply with the
requester. When CPU calculations are discloses critical technology with terms of an international agreement; or,
not available, only human time costs military or space application, if required (2) The Activity determines that such
shall be assessed to requesters. Should to be released under the FOIA, shall be a waiver is in the interest of the United
Army Activities lease computers, the released after the person requesting States.
services charged by the lesser shall not such technical data pays all reasonable (c) Fee Rates.
be passed to the requester under the costs attributed to search, duplication (1) Costs for a manual search of
FOIA. and review of the records to be released. technical data.
(c) Duplication Costs. Technical data, as used in this section,
Hourly rate
means recorded information, regardless Type Grade
Cost per page ($)
Type (cents) of the form or method of the recording
of a scientific or technical nature Clerical .......... E9/GS 8 and 13.25
Pre-printed material .. .02 (including computer software below.
Office Copy ............... .15 documentation). This term does not Minimum ....................... 8.30
Microfiche .................. .25 include computer software, or data Charge.
Computer copies Actual cost of dupli- incidental to contract administration, Notes: Professional and Executive (To be
(tapes, discs or cating the tape, such as financial and/or management established at actual hourly rate prior to
printouts). disc or printout (in- information. Army Activities shall search. A minimum charge will be established
cludes operator’s at 1⁄2 hourly rates.
time and cost of
retain the amounts received by such a
the medium) release, and it shall be merged with and (2) Computer search is based on the
available for the same purpose and the total cost of the cpu, input-output
(d) Review Time Costs (in the case of same time period as the appropriation devices, and memory capacity of the
commercial requesters). from which the costs were incurred in actual computer configuration. The
complying with request. All reasonable wage for the computer operator and/or
Hourly rate costs as used in this sense are the full programmer determining how to
Type Grade conduct, and subsequently executing
($) costs to the Federal Government of
rendering the service, or fair market the search will be recorded as part of the
Clerical .......... E9/GS 8 and 20 value of the service, whichever is computer search.
below. (d) Duplication Costs for technical
higher. Fair market value shall be
Professional ... 01–06/GS 9– 44
determined in accordance with data.
GS 15.
Executive ....... 07/ST/SL/ 75 commercial rates in the local
geographical area. In the absence of a Cost
SES–1 and Type ($)
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above. known market value, charges shall be


Contractor ...... ....................... 44 based on recovery of full costs to the Aerial photograph, maps, specifica-
Federal Government. The full costs shall tions, permits, charts, blueprints,
(e) Audiovisual Documentary include all direct and indirect costs to and other technical engineering
Materials. Search costs are computed as conduct the search and to duplicate the documents ..................................... 2.50
for any other record. Duplication cost is records responsive to the request. This Engineering data (microfilm).

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Cost (2) Existing Army standards and (Do not report ‘‘Other Reason
Type ($) registered data elements are to be Responses’’ as a partial denial here,
utilized to the greatest extent possible in unless a FOIA exemption is also used).
a. Aperture cards accordance with the provisions of DoD (4) Denied in full. Enter the total
Silver duplicate negative, per card ... .75 8320.1–M, ‘‘Data Administration number of initial FOIA requests
When key punched and verified, per
Procedures.’’ responded to and denied in full based
card ............................................... .85
Diazo duplicate negative, per card ... .65 (3) The reporting requirement on one or more of the FOIA exemptions.
When key punched and verified, per outlined is assigned Report Control (Do not report ‘‘Other Reason
card ............................................... .75 Symbol DD–DA&M(A)1365, FOIA Responses’’ as denials here, unless a
b. 35 mm roll film, per frame ..... .50 Report to Congress. FOIA exemption is also used).
c. 16 mm roll film, per frame ..... .45 (b) Reporting time. Each DA IDA shall (5) ‘‘Other reason’’ responses. Enter
d. Paper prints (engineering prepare statistics and accumulate the total number of initial FOIA requests
drawings), each ..................... 1.50 paperwork for the preceding fiscal year in which you were unable to provide all
e. Paper reprints of microfilm in- or part of the requested information
on those items prescribed for the annual
dices, each ............................. .10
report. The IDAs will follow guidelines based on an ‘‘Other Reason’’ response.
below and submit the information to the (6) Total actions. Enter the total
(e) Review time costs of technical
DA, FOIA/PA Office, on or before the number of FOIA actions taken during
data.
15th day of each October. the fiscal year. This number will be the
Hourly (1) Each reporting activity will submit sum of items 1b, through 1e. Total
Type Grade rate the information requested on the DD Actions must be equal to or greater than
($) Form 2564, ‘‘Annual Report Freedom of the number of Total Requests Processed.
Information Act.’’ The form is available (b) ITEM 2 Initial Request Exemptions
Clerical .............. E9/GS 8 and 13.25 and Other Reasons. (1) Exemptions
through normal publication channels.
below. invoked on initial request
Minimum Charge ........................... 8.30
(2) Each IDA will submit the
information requested on the DD Form determinations. Enter the number of
Notes: Professional and Executive (To be 2564, excluding items 3, 4, and 9c. times an exemption was claimed for
established at actual hourly rate prior to (3) The Judge Advocate General each request that was denied in full or
search. A minimum charge will be established
at 1⁄2 hourly rates. (DAJA) and Chief of Engineers (COE) in part. Since more than one exemption
will submit the information requested may be claimed when responding to a
(f) Other Technical Data Records. on the Form DD 2564, item 9c. single request, this number will be equal
Charges for any additional services not (4) The General Counsel (SAGC) will to or greater than the sum of (3) and (4),
specifically consistent with Volume 11A submit the information requested on the above. The (b)(7) exemption is reported
of DoD 7000.14–R, shall be made by DD Form 2564, items 3 and 4. by subcategories (A) through (F): (A)
Activities at the following rates: (5) The DA, FOIA/PA Office will Interfere with Enforcement; (B) Fair
compile the data submitted in the Trial Right; (C) Invasion of Privacy; (D)
Cost
Type ($) Army’s Annual Report. This report will Protect Confidential Source; (E) Disclose
be submitted to the DoD Office for Techniques, and (F) Endanger Life or
1. Minimum charge for office copy Freedom of Information and Security Safety.
(up to six images) ......................... 3.50 Review on or before the 30th day of (2) ‘‘Other Reasons’’ Cited on Initial
2. Each additional image .................. .10 each November. Determinations. Identify the ‘‘Other
3. Each typewritten page .................. 3.50 Reason’’ response cited when
4. Certification and validation with § 518.23 Annual report content. responding to a FOIA request and enter
seal, each ...................................... 5.20 The current edition of DD Form 2564 the number of times each was claimed.
5. Hand-drawn plots and sketches, shall be used to submit Activity input. (i) No records. Enter the number of
each hour or fraction thereof ........ 12.00 Instructions for completion follows: times a reasonable search of files failed
(a) ITEM 1 Initial Request to identify records responsive to subject
Subpart G—Reports Determinations. Please note that initial request.
PA requests, which are also processed (ii) Referrals. Enter the number of
§ 518.22 Reports control. as initial FOIA requests, are reported times a request was referred to another
(a) General. (1) The Annual FOIA here. DoD Component or Federal Agency for
Report is mandated by the statute and (1) Total requests processed. Enter the action.
reported on a fiscal year basis. Due to total number of initial FOIA requests (iii) Request withdrawn. Enter the
the magnitude of the requested statistics responded to (completed) during the number of times a request and/or appeal
and the need to ensure accuracy of fiscal year. This should include pending was withdrawn by a requester.
reporting, Army Activities shall track cases at the end of the prior fiscal year, (iv) Fee-related reason. Requester is
this data as requests are processed. This Total Actions is the sum of Items 1b unwilling to pay the fees associated
will also facilitate a quick and accurate through 1e, on the DD Form 2564. This with a request; the requester is past due
compilation of statistics. Army total may exceed Total Requests in the payment of fees from a previous
Activities shall forward their report to Processed. FOIA request; or the requester disagrees
DA, FOIA/PA Office, no later than (2) Granted in full. Enter the total with a fee estimate.
October 15 following the fiscal year’s number of initial FOIA requests (v) Records not reasonably described.
close. It may be submitted electronically responded to that were granted in full Enter the number of times a FOIA
and via hard copy accompanied by a during the fiscal year. (This may include request could not be acted upon since
hsrobinson on PROD1PC70 with RULES2

computer diskette. In turn, DA and DoD requests granted by your office, yet still the record had not been described with
will produce a consolidated report for a requiring action by another office). sufficient particularity to enable the
submission to the Attorney General and (3) Denied in part. Enter the total Army Activity to locate it by conducting
ensure that a copy of the consolidated number of initial FOIA requests a reasonable search.
report is placed on the Internet for responded to and denied in part based (vi) Not a proper FOIA request for
public access. on one or more of the FOIA exemptions. some other reason. Enter the number of

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Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations 9251

times the requester has failed and denied in full based on one or more or—0001 hours, October 1, is the
unreasonably to comply with of the FOIA exemptions. (Do not report beginning of the report period.
procedural requirements, other than fee- ‘‘Other Reason Responses’’ as denials Midnight, 2400 hours, is the close of the
related imposed by this part or an Army here, unless a FOIA exemption is used reporting period.
Activity’s supplementing regulation. also). (ii) The number for the beginning
(vii) Not an agency record. Enter the (5) ‘‘Other reason’’ responses. Enter report period must be the same number
number of times a requester was the total number of FOIA appeals in reported as of the end of the report
provided a response indicating the which you were unable to provide the period from the previous report.
requested information was not a record requested information based on an (2) Median age of initial requests
within the meaning of the FOIA and this ‘‘Other Reason’’ response. pending: Report the median age in days
part. (6) Total actions. Enter the total (including holidays and weekends) of
(viii) Duplicate request. Record number of FOIA appeal actions taken initial requests pending.
number of duplicate requests closed for during the fiscal year. This number will (3) Examples of median calculation.
that reason (e.g., request for the same be the sum of items 3b, through 3e, and (i) If given five cases aged 10, 25, 35,
information by the same requester). This should be equal to or greater than the 65, and 100 days from date of receipt as
includes identical requests received via number of Total Appeal Responses, item of the previous September 30th, the
different means (e.g., electronic mail, 3a on the report form. total requests pending is five (5). The
facsimile, mail, and courier) at the same (d) ITEM 4 Appeal exemptions and
median age (days) of open requests is
or different times. other reasons. (1) Exemptions Invoked
the middle, not average value, in this set
(ix) Other (Specify). Any other reason on Appeal Determinations. Enter the
of numbers (10, 25, 35, 65, and 100), 35
a requester does not comply with number of times an exemption was
(the middle value in the set).
published rules, other than those claimed for each appeal that was denied
(ii) If given six pending cases, aged
reasons outlined in paragraphs (b)(2)(i) in full or in part. Since more than one
10, 20, 30, 50, 120, and 200 days from
through (viii) of this section. exemption may be claimed when
date of receipt, as of the previous
(x) Total. Enter the sum of paragraphs responding to a single request, this
September 30th, the total requests
(b)(2)(i) through (ix) of this section, in number will be equal to or greater than
pending is six (6). The median age
the block provided on the form (total the sum of items 3c, and 3d on the
(days) of open requests 40 days (the
other reasons). This number will be report form. Note that the (b)(7)
mean [average] of the two middle
equal to or greater than the number in exemption is reported by subcategory
numbers in the set, in this case the
item 1e on the report form, since more (A) through (F): (A) Interfere with
average of middle values 30 and 50).
than one reason may be claimed for Enforcement; (B) Fair Trial Right; (C)
(4) Accuracy of Calculations.
each ‘‘Other Reason’’ response. Invasion of Privacy; (D) Protect
Activities must ensure the accuracy of
(3) (b)(3) Statutes invoked on initial Confidential Source; (E) Disclose
calculations. As backup, the raw data
determinations. Identify the number of Techniques, and (F) Endanger Life or
used to perform calculations should be
times you have used a specific statute to Safety.
(2) ‘‘Other reasons’’ cited on appeal recorded and preserved. This will
support each (b)(3) exemption. List the
determinations. Identify the ‘‘Other enable recalculation of median [and
statutes used to support each (b)(3)
Reason’’ response cited when mean values] as necessary. Activities
exemption; the number of instances in
responding to a FOIA appeal and enter may require subordinate elements to
which the statute was cited; note
the number of times each was claimed. forward raw data, as deemed necessary
whether or not the statute has been
This number may be equal to or and appropriate.
upheld in a court hearing; and provide
possibly greater than the number in item (5) Average. If an Activity believes
a concise description of the material
3e on the report form, since more than that ‘‘average’’ (mean) processing time is
withheld in each individual case by the
one reason may be claimed for each a better measure of performance, then
statute’s use. Ensure you cite the
‘‘Other Reason’’ response. report ‘‘averages’’ (means) as well as
specific sections of the acts invoked.
(3) (b)(3) Statutes invoked on appeal median values (e.g., with data reflected
The total number of instances reported
determinations. Identify the number of and plainly labeled on plain bond as an
will be equal to or greater than the total
times a specific statute has been used to attachment to the report). However,
number of (b)(3) exemptions listed in
support each (b)(3) exemption identified ‘‘average’’ (mean) values will not be
Item 2a on the report form.
(c) ITEM 3 Appeal determinations. in item 4a on the report form DD 2564. included in the consolidated Army
Please note that PA appeals, which are List the statutes used to support each report unless all Activities report it.
also processed as FOIA appeals, are (b)(3) exemption; the number of (f) ITEM 6 Number of Initial Requests
reported here. instances in which the statute was cited; Received During the Fiscal Year. Enter
(1) Total appeal responses. Enter the note whether or not the statute has been the total number of initial FOIA requests
total number of FOIA appeals upheld in a court hearing; and provide received during the reporting period
responded to (completed) during the a concise description of the material (fiscal year being reported).
fiscal year. withheld in each individual case by the (g) ITEM 7 Types of Requests
(2) Granted in full. Enter the total statute’s use. Ensure citation to the Processed and Median Age. Information
number of FOIA appeals responded to specific sections of the statute invoked. is reported for three types of initial
and granted in full during the year. The total number of instances reported requests completed during the reporting
(3) Denied in part. Enter the total will be equal to or greater than the total period: Simple; Complex; and
number of FOIA appeals responded to number of (b)(3) exemptions listed in Expedited Processing. The following
and denied in part based on one or more Item 4a on the report form. items of information are reported for
hsrobinson on PROD1PC70 with RULES2

of the FOIA exemptions. (Do not report (e) ITEM 5 Number and median age these requests:
‘‘Other Reason Responses’’ as a partial of initial cases pending: (1) Total Number of Initial Requests.
denial here, unless a FOIA exemption is (1) Total initial cases pending: Enter the total number of initial requests
used also.) (i) Beginning and ending report processed [completed] during the
(4) Denied in full. Enter the total period: Midnight, 2400 hours, reporting period (fiscal year) by type
number of FOIA appeals responded to September 30, of the Preceding Year— (Simple, Complex and Expedited

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9252 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations

Processing) in the appropriate row on (3) Example. Given seven initial collected from the public during the
the form. requests, multitrack—simple completed fiscal year. This includes search, review
(2) Median Age (Days). Enter the during the fiscal year, aged 10, 25, 35, and reproduction costs only.
median number of days [calendar days 65, 79, 90 and 400 days when (i) ITEM 9 FOIA program costs. (1)
including holidays and weekends] completed. The total number of requests Number of full time staff. Enter the
completed was seven (7). The median number of personnel your agency had
required to process each type of case
age (days) of completed requests is 65, dedicated to working FOIA full time
(Simple, Complex and Expedited
the middle value in the set. during the fiscal year. This will be
Processing) during the period in the (h) ITEM 8 Fees collected from the expressed in work-years [man-years].
appropriate row on the form. public. Enter the total amount of fees 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 had dedicated to working FOIA part expressed in work-years [man-years].
the number of personnel your agency time during the fiscal year. This will be 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 Coun-
sel’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 from local Office of Personnel (2) AR 20–1 Inspector General Activities
your best estimate of litigation costs for Management (OPM) Salary Tables and and Procedures;
the FY. Include all direct and indirect shall add 16% for benefits. (3) AR 25–1 The Army Information
Management;
expenses associated with FOIA (iii) Data captured on DD Form 2086, (4) AR 25–11 Record Communications and
litigation in U.S. District Courts, U.S. and DD Form 2086–1, shall be the Privacy Communications System;
Circuit Courts of Appeals, and the U.S. summarized and used in computing (5) AR 25–400–2 The Army Records
Supreme Court. total costs. Information Management System (ARIMS);
(4) Total Program Cost. Report the (iv) An overhead rate of 25% shall be (6) AR 27–20 Claims;
total cost of FOIA program operation added to all calculated costs for (7) AR 36–2 Audit Reports and Follow-up;
within your agency. Include your (8) AR 40–66 Medical Record
supervision, space, and administrative Administration and Health Care
litigation costs in this total. While you support. Documentation;
do not have to report detailed cost (j) ITEM 10 Authentication. The (9) AR 40–68 Quality Assurance
information as in the past, you should official that approves the agency’s report Administration;
be able to explain the techniques by submission to DA will sign and date; (10) AR 40–400 Patient Administration;
which you derived you agency’s total enter typed name and duty title; and (11) AR 195–2 Criminal Investigation
cost figures if the need arises. provide both the agency’s name and Activities;
(i) Before the close of each fiscal year, phone number for questions about the (12) AR 25–71 The Army Privacy Program;
the DoD OFOISR will dispatch the latest (13) AR 360–1 The Army Public Affairs
report. The consolidated Annual FOIA Program;
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OSD Composite Rate Chart for military Report will be made available to the (14) AR 380–5 Department of the Army
personnel to DoD Components. This public in electronic format by DoD. Information Security Program;
information may be used in computing (15) AR 381–10 U.S. Army Intelligence
military personnel costs. APPENDIX A to Part 518—References
Activities;
(ii) Army Activities should compute (a) References. (16) AR 381–12 Subversion and Espionage
their civilian personnel costs using rates (1) AR 1–20 Legislative Liaison; Directed Against The U.S. Army (SAEDA);

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Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations 9253

(17) AR 381–20 The Army (26) DoD 5200.1–R Information Security (53) 50 U.S.C. 403–3, War and National
Counterintelligence Program; Program, January 1997, authorized by DoD Defense, Protection of Intelligence Sources
(18) AR 530–1 Operations Security Directive 5200.1, December 13, 1996, DoD and Methods.
(OPSEC); Information Security Program;
(19) AR 600–85 Army Substance Abuse (27) DoD 5400.7–R DoD Freedom of APPENDIX B to Part 518—Addressing
Program; and Information Act Program, September 4, 1998; FOIA Requests
(20) AR 608–18 The Army Family (28) DoD 5400.11–R Department of Defense (a) General. Army records may be
Advocacy Program. Privacy Program, August 1983, authorized by requested from those Army officials who are
(b) Related publications. A related DoD Directive 5400.11, December 13, 1999, listed in 32 CFR part 518 (see appendix A).
publication is merely a source of additional DoD Privacy Program;
Contact the DA FOIA/PA Office, to
information. The user does not have to read (29) Executive Order 12600 Predisclosure
coordinate the referral of requests if there is
it to understand this part. Notification Procedures for Confidential
uncertainty as to which Army activity may
(1) AR 10–5 Headquarters, Department of Commercial Information, June 23, 1987, 52
have the records. Send requests to particular
the Army; FR 23781;
installations or organizations as follows:
(2) AR 27–10 Military Justice; (30) Public Law 86–36 National Security
(1) Current publications and records of DA
(3) AR 27–40 Litigation; Information Exemption, Codified at 50 U.S.C.
field commands, installations, and
(4) AR 27–60 Intellectual Property; 402, as amended;
organizations. See also: http://
(5) AR 60–20 Army and Air Force (31) Public Law 104–191 Health Insurance
Portability and Accountability Act of 1996, books.army.mil/.
Exchange Service Operating Policies AFR (2) Send the request to the commander of
147–14; Codified at 42 U.S.C. 1171–1179, as
amended; the command, installation, or organization, to
(6) AR 70–31 Standards for Technical the attention of the FOIA Official.
Reporting; (32) Section 822 of the National Defense
Authorization Act for FY 90 and 91 (Pub. L. (3) Consult AR 25–400–2 (ARIMS) for more
(7) AR 190–45 Law Enforcement Reporting; detailed listings of all record categories kept
(8) AR 380–10 Foreign Disclosure and 101–189, November 29, 1989: 103 Stat. 1382,
1503); in DA offices.
Contacts with Foreign Representatives; (4) Contact the installation or organization
(9) AR 381–45 Investigative Records (33) 5 U.S.C. 551–559, Administrative
Procedures Act; public affairs officer for help if you cannot
Repository; determine the official within a specific
(10) AR 385–40 Accident Reporting and (34) 5 U.S.C. 552, as amended: public
information; agency rules, opinions, orders, organization to whom your request should be
Records; addressed.
(11) DA Pam 25–30 Consolidated Army records, and proceedings. (FOIA);
(35) 5 U.S.C. 552a, as amended: records (b) Department of the Army publications.
Publications and Index Forms; Send requests for current administrative,
about individuals, (PA of 1974);
(12) DA Pam 25–51 The Army Privacy training, technical, and supply publications
(36) 10 U.S.C. 128, Physical Protection of
Program—System of Records Notices and to the National Technical Information
Special Nuclear Material: Limitation on
Exemption Rules; Service, U.S. Department of Commerce, 5285
Dissemination of Unclassified Information;
(13) DoD Directive 5100.3 Support of the Port Royal Road, Springfield, VA 22161.
(37) 10 U.S.C. 130, Authority to Withhold
Headquarters of Combatant and Subordinate NTIS handles general public requests for
from Public Disclosure Certain Technical
Joint Commands, November 15, 1999; Data; unclassified, uncopyrighted, and
(14) DoD Directive 5230.24 Distribution (38) 10 U.S.C. 130(b), Personnel in nondistribution-restricted Army publications
Statements on Technical Documents, March Overseas, Sensitive, or Routinely Deployable not sold through the Superintendent of
18, 1987; Units: nondisclosure of personally Documents.
(15) DoD Directive 5230.25 Withholding of identifying information; (c) Military personnel records. Send
Unclassified Technical Data From Public (39) 10 U.S.C. 1102(f), Confidentiality of requests for military personnel records of
Disclosure, November 6, 1984; Medical Quality Assurance Records: information as follows:
(16) DoD Directive 5230.9 Clearance of Qualified Immunity for Participants; (1) Army Reserve personnel not on active
DoD Information for Public Release, April 9, (40) 10 U.S.C. 2305(g) Prohibition on duty and retired personnel—Commander,
1996; Release of Contractor Proposals; U.S. Army Human Resources Command, St.
(17) DoD Directive 5400.4 Provision of (41) 10 U.S.C. 2320–2321, Rights in Louis, 1 Reserve Way, St. Louis, MO 63132–
Information to Congress, January 30, 1978; Technical Data; 5200.
(18) DoD Directive 5400.7 DoD Freedom of (42) 10 U.S.C. 2328, Release of Technical (2) Army officer personnel discharged or
Information Act (FOIA) Program, September Data under Freedom of Information Act: deceased after July 1, 1917 and Army
29, 1997; Recovery of Costs; enlisted personnel discharged or deceased
(19) DoD Directive 5400.11 DOD Privacy (43) 17 U.S.C. 106, Exclusive Rights in after November 1, 1912—Director, National
Program, December 13, 1999; Copyrighted Works; Personnel Records Center, 9700 Page Ave.,
(20) DoD Directive 7650.1 Government (44) 18 U.S.C. 798, Disclosure of Classified St. Louis, MO 63132–5100.
Accountability Office (GAO) and Comptroller Information; (3) Army personnel separated before the
General Access to Records, September 11, (45) 18 U.S.C. 3500, The Demands for dates specified in paragraph (2), above—Old
1997; Production of Statements and Reports of Military and Civilian Records Unit (Archives
(21) DoD Directive 7650.2 Government Witnesses (The Jencks Act); 1), National Archives and Records
Accountability Office Reviews and Reports, (46) 31 U.S.C. 3717, Interest and Penalty on Administration, Washington, DC 20408–
July 13, 2000; Claims; 0001.
(22) DoD Directive 8910.1 Management and (47) 32 CFR part 518, The Army FOIA (4) Army National Guard officer
Control of Information Requirements, June Program; personnel—Chief, National Guard Bureau.
11, 1993; (48) 35 U.S.C. 181–188, Secrecy of Certain Army National Guard enlisted personnel—
(23) DoD Federal Acquisition Regulation Inventions and Filing of Application in Adjutant General of the proper State.
Supplement (DFARS), Part 227 Patents, Data, Foreign Country; (5) Active duty commissioned and warrant
and Copyrights. See also 48 CFR part 227; (49) 41 U.S.C. 423, Restrictions on officer personnel—Commander, U.S. Army
(24) Department of Defense Financial Disclosing and Obtaining Contractor Bid or Human Resources Command, ATTN: AHRC–
Management Regulation (Reimbursable Proposal Information or Source Selection FOI, Alexandria, VA 22332–0404. Active
Operations, Policy and Procedures) Volume Information; duty enlisted personnel—Commander, U.S.
11A, April 2003 authorized by DoD (50) 42 U.S.C. 2162, Classification and Army Enlisted Records and Evaluation
hsrobinson on PROD1PC70 with RULES2

Instruction 7000.14, DoD Financial Declassification of Restricted Data; Center, ATTN: PCRE–RP, 8899 East 56th
Management Policy and Procedures, (51) 44 U.S.C. 3301–3324, Disposal of Street, Indianapolis, IN 46249–5301.
November 15, 1992; Records; (d) Medical records.
(25) DoD Instruction 5400.10 OSD (52) 45 CFR part 164, Security and Privacy (1) Medical records of non-active duty
Implementation of DoD Freedom of of Individually Identifiable Health military personnel. Use the same addresses
Information Act Program, January 24, 1991; Information; and as for military personnel records.

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9254 Federal Register / Vol. 71, No. 35 / Wednesday, February 22, 2006 / Rules and Regulations

(2) Medical records of military personnel (4) Requests submitted under paragraphs (1) Army Materiel Command procurement:
on active duty. Address the medical (e) (2) and (3), of this appendix. These Commander, U.S. Army Materiel Command,
treatment facility where the records are kept. requests will be processed in accordance ATTN: AMCID–F, 5001 Eisenhower Ave.,
If necessary request locator service. with subpart E of this part. The IDA is The Alexandria, VA 22333–0001.
(3) Medical records of civilian employees Judge Advocate General, HQDA (DAJA–CL), (2) Corps of Engineers procurement:
and all dependents. Address the medical Washington, DC 20310–2200. Commander, U.S. Army Corps of Engineers,
treatment facility where the records are kept. (5) Administrative settlement of claims. 20 Massachusetts Avenue, ATTN: CECC–K,
If the records have been retired, send Apply to the Chief, U.S. Army Claims Washington, DC 20314–1000.
requests to the Director, National Personnel Service, ATTN: JACS–TC, Building 4411, (3) All other procurement: HQDA (DAJA–
Records Center, Civilian Records Facility, Llewellyn Avenue, Fort George G. Meade, KL), 2200 Army Pentagon, Washington, DC
111 Winnebago St., St. Louis, MO 63118– MD 20755–5360. 20310–2200.
4199. (6) Records involving debarred or (i) Criminal investigation files. Send
(e) Legal records. suspended contractors. Apply to U.S. Army requests involving criminal investigation
(1) Records of general courts-martial and Legal Services Agency (JALS–PF), 901 North
files to the Commander, U.S. Army Criminal
Stewart Street, Arlington, VA 22203.
special courts-martial in which bad conduct Investigation Command, ATTN: CICR–FP,
(7) Records of all other legal matters (other
discharge was approved. For cases not yet 6010 6th St., Bldg. #1465, Ft. Belvoir, VA
than records kept by a command,
forwarded for appellate review, apply to the 22060–5585. Only the Commanding General,
installation, or organization staff judge
staff judge advocate of the command having advocate). Apply to HQDA (DAJA–AL), USACIDC, can release any USACIDC-
jurisdiction over the case. For cases Washington, DC 20310–2200. originated criminal investigation file.
forwarded for appellate review and for old (f) Civil works program records. Civil (j) Personnel security investigation files
cases, apply to the U.S. Army Legal Services works records include those relating to and general Army intelligence records. Send
Agency, ATTN: JALS–CCO, 901 North Stuart construction, operation, and maintenance for requests for personnel security investigation
Street, Arlington, VA 22203. the improvement of rivers, harbors, and files, intelligence investigation and security
(2) Records of special courts-martial not waterways for navigation, flood control, and records, and records of other Army
involving a bad conduct discharge. These related purposes, including shore protection intelligence matters to the Commander, U.S.
records are kept for 10 years after completion work by the Army. Apply to the proper Army Intelligence and Security Command,
of the case. If the case was completed within division or district office of the Corps of ATTN: IAMG–CIC–FOI/PO, 4552 Pike Road,
the past three years, apply to the staff judge Engineers. If necessary to determine the Fort George G. Meade, MD 20755–5995.
advocate of the headquarters where it was proper office, contact the Commander, U.S. (k) Inspector General records. Send
reviewed. If the case was completed from 3 Army Corps of Engineers, 20 Massachusetts requests involving records within the
to 10 years ago, apply to the National Avenue, ATTN: CECC–K, Washington, DC Inspector General system to HQDA (SAIG–
Personnel Records Center (Military Records), 20314–1000. ZXL), 1700 Army Pentagon, Washington, DC
9700 Page Ave., St. Louis, MO 63132–5100. (g) Civilian personnel records. Send 20310–1700. AR 20–1 governs such records.
If the case was completed more than 10 years requests for personnel records of current (l) Army records in Government records
ago, the only evidence of conviction is the civilian employees to the employing depositories. Non-current Army records are
special courts-martial order in the person’s installation. Send requests for personnel in the National Archives of the United States,
permanent records. records of former civilian employees to the Washington, DC 20408–0001; in Federal
(3) Records of summary courts-martial. Director, National Personnel Records Center, Records Centers of NARA; and in other
Locally maintained records are retired 3 Civilian Records Facility, 111 Winnebago St., records depositories. Requesters must write
years after action of the supervisory St. Louis, MO 63118–4199. directly to the heads of these depositories for
authority. Request records of cases less than (h) Procurement records. Send requests for copies of such records. A list of pertinent
3 years old from the staff judge advocate of information about procurement activities to records depositories is published in AR 25–
the headquarters where the case was the contracting officer concerned or, if not 400–2, table 10–1.
reviewed. After 10 years, the only evidence feasible, to the procuring activity. If the
of conviction is the summary courts-martial contracting officer or procuring activity is not [FR Doc. 06–1499 Filed 2–21–06; 8:45 am]
order in the person’s permanent records. known, send inquiries as follows: BILLING CODE 3710–08–P
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