DoD_5400.7R _DoD_Freedom_of_Information_Act_(FOIA)_Program _AF_Supplement.pdf

BY ORDER OF THE DoD REGULATION 5400.7/AIR FORCE SUPPLEMENT

SECRETARY OF THE AIR FORCE 24 JUNE 2002

DOD FREEDOM OF INFORMATION ACT PROGRAM

OPR: AF-CIO/P (Ms. Anne Rollins) Certified by: AF-CIO/PX (Lt Col Kathy Pitcher)

Supersedes DoD 5400.7-R/AFSUP1, 22 July 1999. Pages: 156/Distribution: F

Department of Defense

REGULATION

NUMBER 5400.7-R

September 4, 1998

DA&M

SUBJECT: DOD Freedom of Information Act Program

FOREWORD

This Regulation is reissued under the authority of DoD Directive 5400.7, “DoD Freedom of Information Act Program,” September 29, 1997. It provides guidance on the implementation of the Freedom of Information Act, as amended by the “Electronic Freedom of Information Act Amendments of 1996.” The changes, since the last printing in May 1997, are indicated by italics.

This Regulation applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Inspector General of the Department of Defense (IG, DoD), the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”). This Regulation is effective immediately; it is mandatory for use by all the DoD Components.

Heads of DoD Components may elect to issue supplementary instructions deemed essential to the accommodation of perceived requirements peculiar to respective DoD Components. Any such instruction may not conflict with the provisions of this Regulation. Copies of DoD Components’ supplementary instruction shall be forwarded to the below address for review within 120 days of the date of this Regulation.

DoD 5400.7-R, “Department of Defense Freedom of Information Act Program,” May 1997 is hereby canceled.

Recommendations for amendments shall be forwarded through appropriate channels to the Director, Freedom of Information and Security Review, who is authorized to approve and issue amendments to this Regulation. Address recommendations to: Director, Freedom of Information and Security Review, Room 2C757, 1155 Defense Pentagon, Washington, DC 20301-1155.

The DoD Components may obtain copies of this Regulation through their own publications channels. Approved for public release; distribution unlimited. Authorized registered users may obtain copies of this Regulation from the Defense Technical Information Center, 8725 John J.

Kingman Road, Suite 0944, Ft. Belvoir, VA 22060-6218. Other Federal Agencies and the public may obtain copies from the U.S. Department of Commerce, National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. Copies may also be obtained from the World Wide Web at the following address: http://www.defenselink.mil/pubs/foi/

D. O. Cooke Director Administration and Management

JOHN M. GILLIGAN

Chief Information Officer

REFERENCES

(a) Section 552 of title 5, United States Code, “Freedom of Information Act”

(b) DoD Directive 5400.7, “DoD Freedom of Information Act Program,” September 29, 1997

(c) “Personal Papers of Executive Branch Officials: A Management Guide,” National Archives and Records Administration, Office of Records Administration, Washington, DC, 19921

(d) Section 552a of title 5, United States Code, “The Privacy Act of 1974”

(e) DoD Directive 5100.3, “Support of the Headquarters of Unified, Specified and Subordinate Commands,” November 1, 1988

(f) Section 551 of title 5, United States Code, “Administrative Procedures Act”

(g) DoD 5200.1-R, “DoD Information Security Program Regulation,” January 1997, authorized by DoD Directive 5200.1, December 13, 1996

(h) Sections 181-188 of title 35, United States Code, “Patent Secrecy”

(i) Section 2162 of title 42, United States Code, “Restricted Data and Formerly Restricted Data”

(j) Section 798 of title 18, United States Code, “Communication Intelligence”

(k) Section 130 of title 10, United States Code, “Authority to Withhold from Public Disclosure Certain Technical Data”

(l) DoD Directive 5230.25, “Withholding of Unclassified Technical Data From Public Disclosure,” November 6, 1984

(m) Section 1102f of title 10, United States Code, “Confidentiality of Medical Quality Assurance Records: Qualified Immunity for Participants”

(n) Section 128 of title 10, United States Code, “Physical Protection of Special Nuclear Material: Limitation on Dissemination of Unclassified Information”

(o) Section 403-3(c)(6) of title 50, United States Code, “Protection of Intelligence Sources and Methods”

(p) Section 2305(g) of title 10, United States Code, “Protection of Contractor Submitted Proposals”

(q) Section 423 of title 41, United States Code, “Procurement Integrity”

(r) Sections 2320-2321 of title 10, United States Code, "Rights in Technical Data” and “Validation of Proprietary Data Restrictions”

1 Available from the Records Administration Information Center, Agency Services Division (NIA), Washington, DC 20408.

(s) Subpart 227.71-227.72 of chapter 2 of title 48, Code of Federal Regulations, “Rights in Technical Data” and “Rights in Computer Software and Computer Software Documentation,” June 28, 1995

(t) Section 106 of title 17, United States Code, “Copyright Act of 1976”

(u) DoD Directive 5154.24, “Armed Forces Institute of Pathology,” October 28, 1996

(v) DoD 5400.11-R, “Department of Defense Privacy Program,” August 1983, authorized by DoD Directive 5400.11, June 9, 1982

(w) Section 3500 of title 18, United States Code, “The Jencks Act”

(x) DoD Directive, 5230.24, “Distribution Statements on Technical Documents,”March 18,

(y) DoD Directive 5400.4, “Provision of Information to Congress,” January 30, 1978

(z) DoD Directive 7650.1, “General Accounting Office (GAO) and Comptroller General Access to Records,” September 11, 1997

(aa) Section 402 of title 50, United States Code, note, “National Security Act of 1959”

(ab) Sections 3301-3314 of title 44, United States Code, “Disposal of Records”

(ac) Executive Order 12600, “Predisclosure Notification Procedures for Confidential Commercial Information,” June 23, 1987

(ad) Treasury Financial Manual, current edition2

(ae) Chapter 35 of title 44, United States Code, “Coordination of Federal Information Policy”

(af) Title 31 United States Code, “Money and Finance”

(ag) Section 2328 of title 10, United States Code, “Release of Technical Data under Freedom of Information Act: Recovery of Costs”

(ah) Federal Register, Volume 52, pages 10012-10020, March 27, 1987

(ai) DoD 7000.14-R, Volume 11A, “Department of Defense Financial Management Regulation (Reimbursable Operations, Policy and Procedures),” March 1997, authorized by DoD Instruction 7000.14, November 15, 1992

(aj) Section 3717 of title 31, United States Code, “Interest and Penalty on Claims”

(ak) Public Law 97-365, “Debt Collection Act of 1982,” October 25, 1982

(al) DoD Manual 8320.1-M, “Data Administration Procedures,” March 1994, authorized by DoD Directive 8320.1, September 26, 1991

(am) DoD Instruction 5400.10, “OSD Implementation of DoD Freedom of Information Act Program,” January 24, 1991

2 Available from the U.S. Government Printing Office, Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328.

(an) DoD 8910.1-M, “DoD Procedures for Management of Information Requirements,” June 1998, authorized by DoD Directive 8910.1, June 11, 1993

(ao) Part 518 of title 32, Code of Federal Regulations, “The Army Freedom of Information Act Program,” March 23, 1990

CONTENTS

CHAPTER 1

GENERAL PROVISIONS

Section 1

REFERENCES

Paragraph Page

C1.1.1. References

Section 2

PURPOSE AND APPLICABILITY

C1.2.1. Purpose

C1.2.2. Applicability

Section 3

DOD PUBLIC INFORMATION

C1.3.1. Public Information

C1.3.2. Control System

Section 4

DEFINITIONS

C1.4.1. Definitions

C1.4.2. FOIA Request

C1.4.3. Agency Record

C1.4.4. DoD Component

C1.4.5. Initial Denial Authority

C1.4.6. Appellate Authority

C1.4.7. Administrative Appeal

C1.4.8. Public Interest

C1.4.9. Electronic Record

C1.4.10. Federal Agency

Section 5

POLICY

C1.5.1. Compliance with the FOIA

C1.5.2. Openness with the Public

C1.5.3. Avoidance of Procedural Obstacles

C1.5.4. Prompt Action on Requests

C1.5.5. Use of Exemptions

C1.5.6. Public Domain

C1.5.7. Creating a Record

C1.5.8. Description of Requested Record

C1.5.9. Referrals

C1.5.10. Authentication

C1.5.11. Combatant Commands

C1.5.12. Records Management

C1.5.13. Relationship Between the FOIA and the Privacy Act (PA)

C1.5.14. Non-Responsive Information in Responsive Records

C1.5.15. Honoring Form or Format Requests

CHAPTER 2

FOIA READING ROOMS

Section 1

REQUIREMENTS

C2.1.1. Reading Room

C2.1.2. Record Availability

Section 2

INDEXES

C2.2.1. "(a)(2)" Materials

C2.2.2. Other Materials

CHAPTER 3

EXEMPTIONS

Section 1

GENERAL PROVISIONS

C3.1.1. General

Section 2

EXEMPTIONS

C3.2.1. FOIA Exemptions

CHAPTER 4

FOR OFFICIAL USE ONLY

Section 1

GENERAL PROVISIONS

C4.1.1. General

C4.1.2. Prior FOUO Application

C4.1.3. Historical Papers

C4.1.4. Time to Mark Records

C4.1.5. Distribution Statement

Section 2

MARKINGS

C4.2.1. Location of Markings

Section 3

DISSEMINATION AND TRANSMISSION

C4.3.1. Release and Transmission Procedures

C4.3.2. Transporting FOUO Information

C4.3.3. Electronically and Facsimile Transmitted Messages

Section 4

SAFEGUARDING FOUO INFORMATION

C4.4.1. During Duty Hours

C4.4.2. During Nonduty Hours

Section 5

TERMINATION, DISPOSAL AND UNAUTHORIZED DISCLOSURE

C4.5.1. Termination

C4.5.2. Disposal

C4.5.3. Unauthorized Disclosure

CHAPTER 5

RELEASE AND PROCESSING PROCEDURES

Section 1

GENERAL PROVISIONS

C5.1.1. Public Information

C5.1.2. Requests from Private Parties

C5.1.3. Requests from Government Officials

C5.1.4. Privileged Release Outside of the FOIA to U.S.

Government Officials

C5.1.5. Consultation with Affected DoD Component

Section 2

INITIAL DETERMINATIONS

C5.2.1. Initial Denial Authority

C5.2.2. Reasons for Not Releasing a Record

C5.2.3. Denial Tests

C5.2.4. Reasonably Segregable Portions

C5.2.5. Response to Requester

C5.2.6. Extension of Time

C5.2.7. Misdirected Requests

C5.2.8. Records of Non-U.S. Government Source

C5.2.9. File of Initial Denials

C5.2.10. Special Mail Services

C5.2.11. Receipt Accounts

Section 3

APPEALS

C5.3.1. General

C5.3.2. Time of Receipt

C5.3.3. Time Limits

C5.3.4. Delay in Responding to an Appeal

C5.3.5. Response to the Requester

C5.3.6. Consultation

Section 4

JUDICIAL ACTIONS

C5.4.1. General

C5.4.2. Jurisdiction

C5.4.3. Burden of Proof

C5.4.4. Actions by the Court

C5.4.5. Non-United States Government Source Information

C5.4.6. FOIA Litigation

CHAPTER 6

FEE SCHEDULE

Section 1

GENERAL PROVISIONS

C6.1.1. Authorities

C6.1.2. Application

C6.1.3. Fee Restrictions

C6.1.4. Fee Waivers

C6.1.5. Fee Assessmenty

C6.1.6. Aggregating Requests

C6.1.7. Effect of the Debt Collection Act of 1982 (P.L. 97-365)

C6.1.8. Computation of Fees

C6.1.9. Refunds

Section 2

COLLECTION OF FEES AND FEE RATES

C6.2.1. Collection of Fees

C6.2.2. Search Time

C6.2.3. Duplication

C6.2.4. Review Time

C6.2.5. Audiovisual Documentary Materials

C6.2.6. Other Records

C6.2.7. Costs for Special Services

Section 3

COLLECTION OF FEES AND FEE RATES FOR TECHNICAL DATA

C6.3.1. Fees for Technical Data

CHAPTER 7

REPORTS

C7.1.1. General

C7.1.2. Annual Report

C7.1.3. Electronic Publication

CHAPTER 8

EDUCATION AND TRAINING

Section 1

RESPONSIBILITY AND PURPOSE

C8.1.1. Responsibility

C8.1.2. Purpose

C8.1.3. Scope and Principles

C8.1.4. Implementation

C8.1.5. Uniformity of Legal Interpretation

APPENDICES

Appendix 1 Combatant Commands - Processing Procedures for FOIA Appeals

Appendix 2 Addressing FOIA Requests

Appendix 3 DD Form 2086, "Record of Freedom of Information (FOI) Processing Cost"

Appendix 4 DD Form 2086-1, "Record of Freedom of Information (FOI) Processing Cost for Technical Data"

Appendix 5 DD Form 2564, "Annual Report Freedom of Information Act"

Appendix 6 DoD Freedom of Information Act Program Components

(Added)(AF) Appendix 7 Samples, Air Force Freedom of Information Act Processing Documents

(Added)(AF) Appendix 8 Records With Special Disclosure Procedures

(Added)(AF) Appendix 9 Administrative Processing of Air Force Freedom of Information Act Requests

(Added)(AF) Appendix 10 Freedom of Information Act Exempt Information Examples

(Added)(AF) Appendix 11 Requirements of Title 5 United States Code Section 552(b)(4) to Submitters of Nongovernment Contract-Related Information

(Added)(AF) Appendix 12 Glossary of References and Supporting Information

C1. CHAPTER 1

GENERAL PROVISIONS

C1.1. REFERENCES

C1.1.1. References (see pages 2 and 3, above)

C1.2. PURPOSE AND APPLICABILITY

C1.2.1. Purpose. This Regulation provides policies and procedures for the DoD implementation of the Freedom of Information Act (5 U.S.C. 552, as amended) and DoD Directive

5400.7 (references (a) and (b)), and promotes uniformity in the DoD Freedom of Information Act (FOIA) Program.

★C1.2.1. (AF) This supplement implements Air Force Policy Directive (AFPD) 37-1, Air Force Information Management (will convert to AFPD 33-3), and applies to all Air Force activities. It provides policies and procedures for implementing Title 5 United States Code (U.S.C.) Section 552, Freedom of Information Act (FOIA), as amended, and For Official Use Only (FOUO) information requirements. In the case of a conflict, this supplement takes precedence over any Air Force publication that addresses disclosure of Air Force records to the public. Commands may not change the basic procedures in this supplement. Send copies of major command (MAJCOM), field operating agency (FOA), and direct reporting unit (DRU) supplements to (AF-CIO/P, 1155 Air Force Pentagon, Washington DC 20330-1155. Use of the term “MAJCOM” throughout this supplement includes MAJCOMs, FOAs, and DRUs. Refer recommended changes or comments to Headquarters Air Force Communications Agency (HQ AFCA/ITPP), 203 W. Losey Street, Room 1100, Scott AFB IL 62225- 5222, through appropriate channels, using AF Form 847, Recommendation for Change of Publication, with an information copy to AF-CIO/P.

★C1.2.1.1. (Added)(AF) Summary of Revisions. This change incorporates interim change (IC) 2002-1 (Attachment 1). It moves responsibility for the Air Force FOIA Program from HQ USAF/SC to AF-CIO; updates Government Information Locator Service (GILS) links; changes the number of FOIA requests to be considered frequently requested from 5 to 3, and updates organizational addresses, and office symbols. A star (★) indicates revision from the previous edition.

C1.2.2. Applicability. This Regulation applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Inspector General of the Department of Defense (IG DoD), the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”). This

Regulation takes precedence over all DoD Component publications that supplement and implement the DoD FOIA Program. A list of DOD Components is at Appendix AP6.

C1.2.2. (AF) A list of Air Force MAJCOMs, FOAs, and DRUs is at Appendix 2.

C1.3. DOD PUBLIC INFORMATION

C1.3.1. Public Information.

C1.3.1.1. The public has a right to information concerning the activities of its Government. DoD policy is to conduct its activities in an open manner and provide the public with a maximum amount of accurate and timely information concerning its activities, consistent always with the legitimate public and private interests of the American people. A record requested by a member of the public who follows rules established by proper authority in the Department of Defense shall not be withheld in whole or in part unless the record is exempt from mandatory partial or total disclosure under the FOIA. As a matter of policy, DoD Components shall make discretionary disclosures of exempt records or information whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption, but this policy does not create any right enforceable in court. In order that the public may have timely information concerning DoD activities, records requested through public information channels by news media representatives that would not be withheld if requested under the FOIA should be released upon request. Prompt responses to requests for information from news media representatives should be encouraged to eliminate the need for these requesters to invoke the provisions of the FOIA and thereby assist in providing timely information to the public. Similarly, requests from other members of the public for information that would not be withheld under the FOIA should continue to be honored through appropriate means without requiring the requester to invoke the

FOIA.

C1.3.1.1. (AF) Functional Requests. Air Force elements may receive requests for government information or records from the public that do not refer to the FOIA. Often these requests are sent to a public affairs office (PAO) or a specific unit. All releases of information from Air Force records, whether the requester cites the FOIA or not, must comply with the principles of the FOIA and this supplement. If the requested material contains personal privacy information that the Air Force must withhold, it is particularly important to handle that “functional” request as a request under the FOIA and coordinate it with the appropriate FOIA office and an Air Force attorney. Regardless of the nature of the functional request, if the responding element denies the release of information from Air Force records, then control the request as a FOIA and follow FOIA denial procedures for records withheld (cite the pertinent FOIA exemption and give the requester FOIA appeal rights).

C1.3.1.2. Within the OSD, the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence, as Chief Information Officer, in conjunction with the Assistant Secretary of Defense for Public Affairs, is responsible for ensuring preparation of reference material or a guide for requesting records or information from the Department of Defense, subject to the nine exemptions of the FOIA. This publication shall also include an index of all major information systems, and a description of major information and record locator systems, as defined by the Office of the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence. DoD FOIA Components shall coordinate with the appropriate office(s) to insure that this is also accomplished within their department or organization.

C1.3.1.3. DoD Components shall also prepare, in addition to normal FOIA regulations, a handbook for the use of the public in obtaining information from their organization. This handbook should be a short, simple explanation to the public of what the FOIA is designed to do, and how a member of the public can use it to access government records.

Each DoD Component should explain the types of records that can be obtained through FOIA requests, why some records cannot, by law, be made available, and how the DoD Component determines whether the record can be released. The handbook should also explain how to make a FOIA request, how long the requester can expect to wait for a reply, and explain the right of appeal. The handbook should supplement other information locator systems, such as the Government Information Locator Service (GILS), and explain how a requester can obtain more information about those systems. The handbook should be available on paper and through electronic means and contain the following additional information, complete with electronic links to the below elements; the location of reading room(s) within the Component and the types and categories of information available, the location of Component’s World Wide Web page, a reference to the Component’s FOIA regulation and how to obtain a copy, a reference to the Component’s FOIA annual report and how to obtain a copy and the location of the Component’s GILS page. Also, the DoD Components’ Freedom of Information Act Annual Reports should refer to the handbook and how to obtain it.

★C1.3.1.3. (AF) AF-CIO/P will make the Air Force handbook and guide for requesting records available on the World Wide Web (WWW) from Air ForceLINK, at http://www.foia.af.mil/handbook1.shtml.

C1.3.2. Control System. A request for records that invokes the FOIA shall enter a formal control system designed to ensure accountability and compliance with the FOIA. Any request for DoD records that either explicitly or implicitly cites the FOIA shall be processed under the provisions of this Regulation, unless otherwise required by subsection C1.5.13 below.

C1.4. DEFINITIONS

C1.4.1. Definitions. As used in this Regulation, the following terms and meanings shall be applicable:

C1.4.1. (AF) Electronic Reading Room. Rooms established on internet web sites for public access to FOIA (a)(2)(D) records.

C1.4.2. FOIA Request. A written request for DoD records that reasonably describes the record(s) sought, made by any person, including a member of the public (U.S. or foreign citizen/entity), an organization, or a business, but not including a Federal Agency or a fugitive from the law, that either explicitly or implicitly invokes the FOIA, DoD Directive 5400.7 (reference (b)), this Regulation, or DoD Component supplementing regulations or instructions. Requesters should also indicate a willingness to pay fees associated with the processing of their request or, in the alternative, why a waiver of fees may be appropriate. Written requests may be received by postal service or other commercial delivery means, by facsimile, or electronically. Requests received by facsimile or electronically must have a postal mailing address included since it may not be practical to provide a substantive response electronically. The request is considered properly received, or perfected, when the above conditions have been met and the request arrives at the FOIA office of the Component in possession of the records.

C1.4.2. (AF) This includes FOIA requests made by members of Congress either on their own behalf or on behalf of one of their constituents. Process FOIA requests from members of Congress in accordance with this Air Force supplement. Air Force-affiliated requesters, to include military and civilian employees, should not use government equipment, supplies, stationery, postage, telephones, or official mail channels to make FOIA requests.

C1.4.2.1. (Added)(AF) Simple requests can be processed quickly with limited impact on the responding units. The request clearly identifies the records with no (or few) complicating factors involved. There are few or no responsive records. Only one installation is involved and there are no outside OPRs. There are no classified or nongovernment records. No deliberative process/privileged materials are involved. The responsive records contain no (or limited) personal privacy information and do not come from a Privacy Act system of records. No time extensions are anticipated.

C1.4.2.2. (Added)(AF) Complex requests take substantial time and cause significant impact on responding units. Complications and delays are likely. Records sought are massive in volume. Multiple organizations must review/coordinate on requested records. Records are classified;

originated with a nongovernment source; are part of the Air Force’s decision-making process; or are privileged.

C1.4.3. Agency Record.

C1.4.3.1. The products of data compilation, such as all books, papers, maps, and photographs, machine readable materials, inclusive of those in electronic form or format, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law in connection with the transaction of public business and in Department of Defense possession and control at the time the FOIA request is made. Care should be taken not to exclude records from being considered agency records, unless they fall within one of the categories of the subparagraph C1.4.3.2, below.

C1.4.3.2. The following are not included within the definition of the word "record":

C1.4.3.2.1. Objects or articles, such as structures, furniture, vehicles and equipment, whatever their historical value, or value as evidence.

C1.4.3.2.2. Anything that is not a tangible or documentary record, such as an individual's memory or oral communication.

C1.4.3.2.3. Personal records of an individual not subject to agency creation or retention requirements, created and maintained primarily for the convenience of an agency employee, and not distributed to other agency employees for their official use. Personal papers fall into three categories: those created before entering Government service; private materials brought into, created, or received in the office that were not created or received in the course of transacting Government business; and work-related personal papers that are not used in the transaction of Government business (see reference (c)).

C1.4.3.3. A record must exist and be in the possession and control of the Department of Defense at the time of the request to be considered subject to this Regulation and the FOIA. There is no obligation to create, compile, or obtain a record to satisfy a FOIA request.

See paragraph C1.5.7.2., below on creating a record in the electronic environment.

C1.4.3.4. Hard copy or electronic records, that are subject to FOIA requests under 5 U.S.C. 552 (a)(3) (reference (a)), and that are available to the public through an established distribution system, or through the Federal Register, the National Technical Information Service, or the Internet, normally need not be processed under the provisions of the FOIA. If a request is received for such information, DoD Components shall provide the requester with guidance, inclusive of any written notice to the public, on how to obtain the information.

However, if the requester insists that the request be processed under the FOIA, then the request shall be processed under the FOIA. If there is any doubt as to whether the request must be processed, contact the Directorate for Freedom of Information and Security Review.

C1.4.3.4. (AF) Refer to C1.5.9.9. for procedures when request ing records from the National Technical Information Service (NTIS) or Government Printing Office (GPO).

C1.4.4. DoD Component. An element of the Department of Defense, as defined in subsection C1.2.2, above, authorized to receive and act independently on FOIA requests. (See Appendix AP6.) A DoD Component has its own initial denial authority (IDA), appellate authority, and legal counsel.

★C1.4.4.1. (Added)(AF) Government Information Locator Service (GILS). GILS is an automated on-line card catalog of publicly accessible information. The Office of Management and Budget (OMB) Bulletin 95-01, 7 December 1994, and OMB Memorandum, 6 February 1998, mandates that all federal agencies create a GILS record for information available to the public. Within DoD, GILS is referred to as the DoD Resource Locator and may be found at http://sites.defenselink.mil.

C1.4.5. Initial Denial Authority (IDA). An official who has been granted authority by the head of a DoD component to withhold records requested under the FOIA for one or more of the nine categories of records exempt from mandatory disclosure. IDA’s may also deny a fee category claim by a requester; deny a request for expedited processing due to demonstrated compelling need under paragraph C1.5.4.3, below, of this Regulation; deny a request for a waiver or reduction of fees; review a fee estimate; and confirm that no records were located in response to a request.

★C1.4.5. (AF) Only approved IDAs may deny all or parts of records. FOIA managers may:

initially deny fee category claims, requests for expedited processing, and waiver or reduction of fees;

review fee estimates; and sign “no records” responses. IDAs are the deputy chiefs of staff and chiefs of comparable offices or higher at HQ USAF and Secretary of the Air Force (SAF), and MAJCOM commanders. MAJCOM commanders may appoint two additional positions at the headquarters and also the wing commander at base level. MAJCOM inspectors general (IG) and MAJCOM Directors of Inquiries (IGQ) may act as IDAs for IG records. MAJCOM FOIA managers must notify AF-CIO/P in writing (by facsimile, e-mail, or regular mail) of IDA position titles. Send position titles only--no names.

AF-CIO/P provides SAF/IGQ a courtesy copy of correspondence designating IDA positions for IG records. When the commander changes the IDA designee position, MAJCOM FOIA managers advise AF-CIO/P immediately. In the absence of the designated IDA, the individual filling/assuming that position acts as an IDA, however; all denial documentation must reflect the position title of the approved or designated IDA, even if in an acting capacity (i.e., Acting Director of Communications and Information, Headquarters Air Combat Command).

C1.4.5.1. (Added)(AF) Office of Primary Responsibility (OPR). A DoD element that either prepared, or is responsible for, records identified as responsive to a FOIA request. OPRs coordinate with the office of corollary responsibility (OCR) and FOIA managers to assist IDAs in making decisions on FOIA requests.

C1.4.5.2. (Added)(AF) OCR. A DoD element with an official interest in, and/or collateral responsibility for, the contents of records identified as responsive to a FOIA request, even though those records were either prepared by, or are the primary responsibility of, a different DoD element. OCRs coordinate with OPRs and FOIA managers to assist IDAs in making decisions on FOIA requests.

C1.4.6. Appellate Authority. The Head of the DoD Component or the Component head's designee having jurisdiction for this purpose over the record, or any of the other adverse determinations outlined in subsections C1.4.5, above, and C1.4.7, below.

C1.4.6. (AF) The SAF has designated the Deputy General Counsel, Fiscal, Ethics, and Civilian Personnel (SAF/GCA) as the FOIA appellate authority.

C1.4.7. Administrative Appeal. A request by a member of the general public, made under the FOIA, asking the appellate authority of a DoD Component to reverse a decision: to withhold all or part of a requested record; to deny a fee category claim by a requester; to deny a request for waiver or reduction of fees; to deny a request to review an initial fee estimate; to deny a request for expedited processing due to demonstrated compelling need under paragraph C1.5.4.3, below, of this Regulation; to confirm that no records were located during the initial search. Requesters also may appeal the failure to receive a response determination within the statutory time limits, and any determination that the requester believes is adverse in nature.

C1.4.8. Public Interest. The interest in obtaining official information that sheds light on an agency's performance of its statutory duties because the information falls within the statutory purpose of the FOIA to inform citizens about what their Government is doing. That statutory purpose, however, is not fostered by disclosure of information about private citizens accumulated in various governmental files that reveals nothing about an agency's or official's own conduct.

C1.4.9. Electronic Record. Records (including e-mail) that are created, stored, and retrievable by electronic means.

C1.4.10. Federal Agency. As defined by 5 U.S.C. 552 (f)(1) (reference (a)), a Federal agency is any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.

C1.4.11. (Added)(AF) Reading Room. Any place where a member of the public may view FOIA records.

C1.5. POLICY

C1.5.1. Compliance with the FOIA. DoD personnel are expected to comply with the FOIA, this Regulation, and DoD FOIA policy in both letter and spirit. This strict adherence is necessary to provide uniformity in the implementation of the DoD FOIA Program and to create conditions that will promote public trust.

C1.5.2. Openness with the Public. The Department of Defense shall conduct its activities in an open manner consistent with the need for security and adherence to other requirements of law and regulation. Records not exempt from disclosure under the Act shall, upon request, be made readily accessible to the public in accordance with rules promulgated by competent authority, whether or not the Act is invoked.

C1.5.3. Avoidance of Procedural Obstacles. DoD Components shall ensure that procedural matters do not unnecessarily impede a requester from obtaining DoD records promptly. Components shall provide assistance to requesters to help them understand and comply with procedures established by this Regulation and any supplemental regulations published by the DoD Components.

★C1.5.3. (AF) Responsibilities. The Air Force Chief Information Officer (AF-CIO) has overall responsibility for the Air Force FOIA Program. The Plans and Policy Directorate (AF-CIO/P) administers the procedures necessary to implement the Air Force FOIA Program, submits reports to Director, Freedom of Information and Security Review (DFOISR), and provides guidance and instructions to MAJCOMs. Responsibilities of other Air Force elements follow.

C1.5.3.1. (Added)(AF) SAF/GCA makes final decisions on FOIA administrative appeals.

C1.5.3.2. (Added)(AF) Installation commanders will:

C1.5.3.2.1. (Added)(AF) Comply with FOIA electronic reading room (ERR) requirements by establishing a FOIA site on their installation public web page and making frequently requested records [FOIA (a)(2)(D)] records available through links from that site, with a link to the Air Force FOIA web page at http://www.foia.af.mil. See paragraph C2.1.2.4.2.2.

★C1.5.3.3. (Added)(AF) MAJCOM commanders implement this instruction in their commands and agencies and appoint a FOIA manager in writing. Send the name, phone number, office symbol, and e-mail address to AF-CIO/P, 1155 Air Force Pentagon, Washington DC 20330-1155.

C1.5.3.4. (Added)(AF) Air Force attorneys review FOIA responses for legal sufficiency, provide legal advice to OPRs, disclosure authorities, IDAs, and FOIA managers, and provide written legal opinions when responsive records (or portions of responsive records) are withheld.

Air Force attorneys ensure factual and legal issues raised by appellants are considered by IDAs prior to sending the FOIA appeal files to the Secretary of the Air Force’s designee for final action.

C1.5.3.5. (Added)(AF) Disclosure authorities and IDAs apply the policies and guidance in this instruction, along with the written recommendations provided by staff elements, when considering what decisions to make on pending FOIA actions. Where any responsive records are denied, the IDA tells the requesters the nature of records or information denied, the FOIA exemption supporting the denial, the reasons the records were not released, and gives the requester the appeal procedures. In addition, on partial releases, IDAs must ensure requesters can see the placement and general length of redactions with the applicable exemption indicated. This procedure applies to all media, including electronic records. Providing placement and general length of redacted information is not required if doing so would harm an interest protected by a FOIA exemption. When working FOIA appeal actions for the appellate authority review:

C1.5.3.5.1 (Added)(AF) IDAs grant or recommend continued denial (in full or in part) of the requester’s appeal of the earlier withholding of responsive records, or adverse determination (for example, IDAs may release some or all of the previously denied documents).

C1.5.3.5.2. (Added)(AF) IDAs reassess a request for expedited processing due to demonstrated compelling need, overturning or confirming the initial determination made by the FOIA manager.

C1.5.3.5.3. (Added)(AF) When an IDA denies any appellate action sought by a FOIA requester, the IDA, or MAJCOM FOIA manager (for no record, fee, fee estimates, or fee category appeals) will indicate in writing that the issues raised in the FOIA appeal were considered and rejected (in full or in part). Include this written statement in the file you send to the Secretary of the Air Force in the course of a FOIA appeal action. Send all appeal actions through the MAJCOM FOIA office.

C1.5.3.6. (Added)(AF) OPRs:

C1.5.3.6.1. (Added)(AF) Coordinate the release or denial of records requested under the FOIA with OCRs, FOIA offices, and with Air Force attorneys on proposed denials.

C1.5.3.6.2. (Added)(AF) Provide requested records. Indicate withheld parts of records annotated with FOIA exemption. Ensure requesters can see the placement and general length of redactions. This procedure applies to all media, including electronic records. Providing placement and general length of redacted information is not required if doing so would harm an interest protected by a FOIA exemption.

C1.5.3.6.3. (Added)(AF) Provide written recommendations to the disclosure authority to determine whether or not to release records, and act as declassification authority when appropriate.

★C1.5.3.6.4. (Added)(AF) Make frequently requested records [FOIA (a)(2)(D)] available to the public in the FOIA ERR via the internet. As required by AFIs 33-129, Transmission of Information Via the Internet, and 35-101, Public Affairs Policies and Procedures, OPRs request clearance of these records with the PAO before posting on the WWW, and coordinate with JA and FOIA office prior to posting. The FOIA manager, in coordination with the functional OPR or the owner of the records, will determine qualifying records, after coordination with any interested OCRs.

C1.5.3.6.5. (Added)(AF) Complete the required GILS core record for each FOIA (a)(2)(D) record.

C1.5.3.6.6. (Added)(AF) Manage ERR records posted to the installation public web page by updating or removing them when no longer needed. Software for tracking number of hits may assist in this effort.

C1.5.3.7. (Added)(AF) FOIA managers:

C1.5.3.7.1. (Added)(AF) Ensure administrative correctness of all FOIA actions processed.

C1.5.3.7.1.1. (Added)(AF) Control and process FOIA requests.

C1.5.3.7.1.2. (Added)(AF) Obtain recommendations from the OPR for records.

C1.5.3.7.1.3. (Added)(AF) Prepare or coordinate on all proposed replies to the requester. FOIA managers may sign replies to requesters when disclosure authorities approve the total release of records. If the MAJCOM supplement directs the OPR to prepare the reply, the OPR will coordinate their reply with the FOIA office.

C1.5.3.7.1.4. (Added)(AF) Make determinations as to whether or not the nature of requests are simple or complex where multitrack FOIA request processing queues exist.

C1.5.3.7.1.5. (Added)(AF) Approve or initially deny any requests for expedited processing.

C1.5.3.7.1.6. (Added)(AF) Provide interim responses to requesters, as required.

C1.5.3.7.1.7. (Added)(AF) Provide a reading room for inspecting and copying records.

C1.5.3.7.1.8. (Added)(AF) Provide training.

C1.5.3.7.1.9. (Added)(AF) Review publications for compliance with this supplement.

C1.5.3.7.1.10. (Added)(AF) Conduct periodic program reviews.

C1.5.3.7.1.11. (Added)(AF) Approve or deny initial fee waiver requests.

C1.5.3.7.1.12. (Added)(AF) Make the initial decision on chargeable fees.

C1.5.3.7.1.13. (Added)(AF) Collect fees.

C1.5.3.7.1.14. (Added)(AF) Send extension notices.

C1.5.3.7.1.15. (Added)(AF) Submit reports.

C1.5.3.7.1.16. (Added)(AF) Sign “no record” responses.

C1.5.3.7.1.17. (Added)(AF) Provide the requester the basis for any adverse determination (i.e., no records, fee denials, fee category determinations, etc.) in enough detail to permit the requester to make a decision whether or not to appeal the actions taken, and provide the requester with appeal procedures.

C1.5.3.7.2. (Added)(AF) On appeals, FOIA managers:

C1.5.3.7.2.1. (Added)(AF) Reassess a fee category claim by a requester, overturning or confirming the initial determination.

C1.5.3.7.2.2. (Added)(AF) Reassess a request for expedited processing due to demonstrated compelling need, overturning or confirming the initial determination.

C1.5.3.7.2.3. (Added)(AF) Reassess a request for a waiver or reduction of fees, overturning or confirming the initial determination.

C1.5.3.7.2.4. (Added)(AF) Review a fee estimate, overturning or confirming the initial determination.

C1.5.3.7.2.5. (Added)(AF) Confirm that no records were located in response to a request.

C1.5.3.7.3. (Added)(AF) The base FOIA manager acts as the FOIA focal point for the FOIA site on the installation web page.

C1.5.3.8. (Added)(AF) When any appellate action sought by a FOIA requester is denied by an IDA or FOIA manager for authorized actions, the IDA or FOIA manager will indicate, in writing, that the issues raised in the FOIA appeal were considered and rejected (in full or in part).

Include this written statement in the file you send it to the Secretary of the Air Force in the course of a FOIA appeal action. Send all appeal actions through the MAJCOM FOIA office.

C1.5.4. Prompt Action on Requests.

C1.5.4.1. Generally, when a member of the public complies with the procedures established in this Regulation and DoD Component regulations or instructions for obtaining DoD records, and after the request is received by the official designated to respond, DoD Components shall endeavor to provide a final response determination within the statutory 20 working days. If a significant number of requests, or the complexity of the requests prevent a final response determination within the statutory time period, DoD Components shall advise the requester of this fact, and explain how the request will be responded to within its multitrack processing system (see subparagraph C1.5.4.2., below). A final response determination is notification to the requester that the records are released, or will be released on a certain date, or the records are denied under the appropriate FOIA exemption, or the records cannot be provided for one or more of the other reasons in subsection C5.2.2., below. Interim responses acknowledging receipt of the request, negotiations with the requester concerning the scope of the request, the response timeframe, and fee agreements are encouraged; however, such actions do not constitute a final response determination pursuant to the FOIA. If a request fails to meet minimum requirements as set forth in subsection C1.4.2., above, Components shall inform the requester how to perfect or correct the request. The statutory 20 working day time limit applies upon receipt of a perfected or correct FOIA request which complies with the requirements outlined in subsection C1.4.2., above.

C1.5.4.1. (AF) Examples of letters to FOIA requesters (e.g., response determinations and interim responses) are included in Appendix 7.

C1.5.4.2. Multitrack Processing. When a Component has a significant number of pending requests that prevents a response determination being made within 20 working days, the requests shall be processed in a multitrack processing system, based on the date of receipt, the amount of work and time involved in processing the requests, and whether the request qualifies for expedited processing as described in paragraph C1.5.4.3., below. DoD Components may establish as many processing queues as they wish; however, as a minimum, three processing tracks shall be established, all based on a first-in, first-out concept, and rank ordered by the date of receipt of the request. One track shall be a processing queue for simple requests, one track for complex requests, and one track shall be a processing queue for expedited processing as described in paragraph C1.5.4.3, below. Determinations as to whether a request is simple or complex shall be made by each DoD Component. DoD Components shall provide a requester whose request does not qualify for the fastest queue (except for expedited processing as described in paragraph C1.5.4.3, below), an opportunity to limit in writing by hard copy, facsimile, or electronically, the scope of the request in order to qualify for the fastest queue. This multitrack processing system does not obviate components’ responsibility to exercise due diligence in processing requests in the most expeditious manner possible.

C1.5.4.2. (AF) Examples of letters to FOIA requesters (e.g., letters to individuals who have had their FOIA request placed in the complex track) are included in Appendix 7.

C1.5.4.2.1. (Added)(AF) Simple requests can be processed quickly, with limited impact on the responding units. The request clearly identifies the records with no (or few) complicating factors involved. There are few or no responsive records, only one installation is involved, there are no outside OPRs, no classified or nongovernment records, no deliberative process/privileged materials are involved, records contain no (or limited) personal privacy information/did not come from Privacy Act systems of records concerning other individuals, or time extensions not anticipated.

C1.5.4.2.2. (Added)(AF) Complex requests will take substantial time, will cause significant impact on responding units. Complications and delays are likely. Records sought are massive in volume, multiple organizations must review/coordinate on records, records are classified, records originated with a nongovernment source, records were part of the Air Force’s decision-making process or are privileged.

C1.5.4.3. Expedited Processing. A separate queue shall be established for requests meeting the test for expedited processing. Expedited processing shall be granted to a requester after the requester requests such and demonstrates a compelling need for the information. Notice of the determination as to whether to grant expedited processing in response to a requester’s compelling need shall be provided to the requester within 10 calendar days after receipt of the request in the DoD Component’s office that will determine whether to grant expedited processing. Once the DoD Component has determined to grant expedited processing, the request shall be processed as soon as practicable. Actions by DoD Components to initially deny or affirm the initial denial on appeal of a request for expedited processing, and failure to respond in a timely manner shall be subject to judicial review

C1.5.4.3. (AF) Examples of letters to individuals whose FOIA requests and/or appeals were not expedited are included in Appendix 7.

C1.5.4.3.1. Compelling need means that the failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual.

C1.5.4.3.2. Compelling need also means that the information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged Federal Government activity. An individual primarily engaged in disseminating information means a person whose primary activity involves publishing or otherwise disseminating information to the public. Representatives of the news media (see paragraph C6.1.5.7., below) would normally qualify as individuals primarily engaged in disseminating information. Other persons must demonstrate that their primary activity involves publishing or otherwise disseminating information to the public.

C1.5.4.3.2.1 Urgently needed means that the information has a particular value that will be lost if not disseminated quickly. Ordinarily this means a breaking news story of general public interest. However, information of historical interest only, or information sought for litigation or commercial activities would not qualify, nor would a news media publication or broadcast deadline unrelated to the news breaking nature of the information.

C1.5.4.3.3. A demonstration of compelling need by a requester shall be made by a statement certified by the requester to be true and correct to the best of their knowledge. This statement must accompany the request in order to be considered and responded to within the 10 calendar days required for decisions on expedited access.

C1.5.4.3.4. Other Reasons for Expedited Processing. Other reasons that merit expedited processing by DoD Components are an imminent loss of substantial due process rights and humanitarian need. A demonstration of imminent loss of substantial due process rights shall be made by a statement certified by the requester to be true and correct to the best of his or her knowledge. Humanitarian need means that disclosing the information will promote the welfare and interests of mankind. A demonstration of humanitarian need shall be also made by a statement certified by the requester to be true and correct to the best of his or her knowledge. Both statements mentioned above must accompany the request in order to be considered and responded to within the 10 calendar days required for decisions on expedited access. Once the decision has been made to expedite the request for either of these reasons, the request may be processed in the expedited processing queue behind those requests qualifying for compelling need.

C1.5.4.3.5. These same procedures also apply to requests for expedited processing of administrative appeals.

C1.5.5. Use of Exemptions. It is DoD policy to make records publicly available, unless the record qualifies for exemption under one or more of the nine exemptions. It is DoD policy that DoD Components shall make discretionary releases whenever possible; however, a discretionary release is normally not appropriate for records clearly exempt under exemptions 1, 3, 4, 6, 7 (C) and 7(F) (see Chapter 3, below). Exemptions 2, 5, and 7(A)(B)(D) and (E) (see Chapter 3, below) are discretionary in nature, and DoD Components are encouraged to exercise discretionary releases whenever possible. Exemptions 4, 6 and 7(C) cannot be claimed when the requester is the submitter of the information.

C1.5.5. (AF) A listing of some AFIs that provide guidance on special disclosure procedures for certain types of records is provided in Appendix 8. Refer to those instructions for specific disclosure procedures. Remember, the only reason to deny a request is a FOIA exemption.

C1.5.5.1. (Added)(AF) Refer requests from foreign government officials that do not…