The Freedom of Information Act Program, 9222-9254 [06-1499]

Agencies

• DEPARTMENT OF DEFENSE
• Department of the Army
• Army Department

[Federal Register Volume 71, Number 35 (Wednesday, February 22, 2006)]
[Rules and Regulations]
[Pages 9222-9254]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1499]



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Part III





Department of Defense





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Department of the Army



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32 CFR Part 518



The Freedom of Information Act Program; Final Rule

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

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DEPARTMENT OF DEFENSE

Department of the Army

32 CFR Part 518

RIN 0702-AA45


The Freedom of Information Act Program

AGENCY: Department of the Army, DoD.

ACTION: Final Rule.

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SUMMARY: The Department of the Army is revising our rule in support of 
the Freedom of Information Act as required by public law and updating 
the provisions for access and release of information from all Army 
information systems (automated and manual) that further supports the 
Army's Records Management Program. This rule finalizes the proposed 
rule that was published in the Federal Register on December 28, 2004.

DATES: Effective Date: March 24, 2006.

ADDRESSES: The Administrative Assistant to the Secretary of the Army, 
(AASA), The Records and Programs Agency, (RPA), U.S. Army Freedom of 
Information and Privacy Office, ATTN: JDRP-RDF, Casey Bldg., Suite 144, 
7701 Telegraph Road, Alexandria, VA 22315-3905.

FOR FURTHER INFORMATION CONTACT: U.S. Army Freedom of Information and 
Privacy Office, (703) 428-6508.

SUPPLEMENTARY INFORMATION:

A. Background

    In the December 28, 2004, issue of the Federal Register, (69 FR 
77836), the Department of the Army issued a proposed rule to revise 32 
CFR 518. This final rule prescribes procedures and responsibilities of 
the Freedom of Information Act, in accordance with the Electronic 
Freedom of Information Act (FOIA) Amendments of 1996. The Electronic 
Freedom of Information Act Amendments of 1996 changed the response time 
from 10 to 20 days, required Multitrack processing of FOIA requests, 
required an Electronic FOIA Reading Room, and changed the requirements 
for the Annual Report and the timetable for that report from calendar 
to fiscal year. The Department of the Army received responses from two 
commenters. No substantial changes are required at this time; however 
proposed administrative changes were accepted and made to the final 
rule. One commenter expressed support for the proposed rule. The second 
commenter proposed several changes which would require the revision of 
the Freedom of Information Act which is outside the scope of the 
proposed rule.

B. Regulatory Flexibility Act

    The Department of the Army has determined that the Regulatory 
Flexibility Act does not apply because the rule does not have a 
significant economic impact on a substantial number of small entities 
within the meaning to the Regulatory Flexibility Act, 5 U.S.C. 601-612.

C. Paperwork Reduction Act

    The Department of the Army has determined that the Paperwork 
Reduction Act does not apply because the rule does not impose 
recordkeeping or information collection requirements from contractors 
or members of the public.

D. Executive Order 12866

    The Department of the Army has determined that according to the 
criteria defined in Executive Order 12866, this rule is not a 
significant regulatory action.

Donald C. Hakenson,
Acting Chief, U.S. Army Freedom of Information and Privacy Office.

List of Subjects in 32 CFR Part 518

    Freedom of Information Act. Administrative practices and 
procedures.


0
For the reasons stated in the preamble, the Department of the Army 
revises 32 CFR part 518--The Army Freedom of Information Act Program as 
follows:

PART 518--THE FREEDOM OF INFORMATION ACT PROGRAM

Subpart A--General Provisions
Sec.
518.1 Purpose.
518.2 References.
518.3 Explanation of abbreviations and terms.
518.4 Responsibilities.
518.5 Authority.
518.6 Public information.
518.7 FOIA terms defined.
518.8 Freedom of Information requirements.
Subpart B--FOIA Reading Rooms
518.9 Reading room.
518.10 ``(a)(2)'' Materials.
518.11 Other materials.
Subpart C--Exemptions
518.12 General.
518.13 FOIA exemptions.
Subpart D--For Official Use Only
518.14 General.
Subpart E--Release and Processing Procedures
518.15 General provisions.
518.16 Initial determinations.
518.17 Appeals.
518.18 Judicial actions.
Subpart F--Fee Schedule
518.19 General provisions.
518.20 Collection of fees and fee rates.
518.21 Collection of fees and fee rates for technical data.
Subpart G--Reports
518.22 Reports control.
518.23 Annual report content.

Appendices to Part 518

Appendix A to Part 518--References.
Appendix B to Part 518--Addressing FOIA Requests.

    Authority: 5 U.S.C. 551, 552, 552a, 5101-5108, 5110-5113, 5115, 
5332-5334, 5341-42, 5504-5509, 7154; 10 U.S.C. 130, 1102, 2320-2321, 
2328; 18 U.S.C. 798, 3500; 31 U.S.C. 3710; 35 U.S.C. 181-188; 42 
U.S.C. 2162; 44 U.S.C. 33; and Executive Order 12600.

Subpart A--General provisions


Sec.  518.1  Purpose.

    This part provides policies and procedures for implementation of 
the Freedom of Information Act (5 U.S.C. 552, as amended) and 
Department of Defense Directive (DoDD) 5400.7 and promotes uniformity 
in the Department of Defense (DoD) Freedom of Information Act (FOIA) 
Program. This Army regulation implements provisions for access and 
release of information from all Army information systems (automated and 
manual) in support of Army Information Management (AR 25-1).


Sec.  518.2  References.

    Required and related publications are listed in Appendix A of this 
part.


Sec.  518.3  Explanation of abbreviations and terms.

    Abbreviations and special terms used in this part are explained in 
the glossary of AR 25-55.


Sec.  518.4  Responsibilities.

    (a) The Administrative Assistant to the Secretary of the Army 
(AASA) is responsible for issuing policy and establishing guidance for 
the Army FOIA Program. AASA has the responsibility to approve 
exceptions to this regulation that are consistent with controlling law 
and regulations. AASA may delegate the approval authority, in writing, 
to a division chief, under its supervision, within that agency in the 
grade of O6 or civilian equivalent.
    (b) The Administrative Assistant to the Secretary of the Army, 
(AASA), The Records and Programs Agency, (RPA), Records Management and 
Declassification Agency (RMDA), is responsible for developing and

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recommending policy to AASA concerning the Army FOIA program and 
overall execution of the program under the policy and guidance of AASA.
    (c) The Chief of Information Officer (CIO), G6 will provide 
oversight of the FOIA program as necessary in compliance with Federal 
Statutes, regulations, Office of Management and Budget (OMB), and the 
Office of Secretary of Defense (OSD).
    (d) Heads of Army Staff agencies, field operating agencies, major 
Army commands (MACOMS), and subordinate commands are responsible for 
the supervision and execution of the FOIA program in functional areas 
and activities under their command.
    (e) Heads of Joint Service agencies or commands for which the Army 
is the Executive Agent, or otherwise has responsibility for providing 
fiscal, logistical, or administrative support, will adhere to the 
policies and procedures in this regulation.
    (f) Commander, Army and Air Force Exchange Service (AAFES), is 
responsible for the supervision of the FOIA program within that command 
pursuant to this part.


Sec.  518.5  Authority.

    (a) This part governs written FOIA requests from members of the 
public. It does not preclude the release of personnel or other records 
to agencies or individuals in the Federal Government for use in 
official work.
    (b) Soldiers and civilian employees of the Department of the Army 
(DA) may, as private citizens, request DA or other agencies' records 
under the FOIA. They must prepare requests at their own expense and on 
their own time. They may not use Government equipment, supplies, or 
postage to prepare personal FOIA requests. It is not necessary for 
soldiers or civilian employees to go through the chain of command to 
request information under the FOIA.
    (c) Requests for DA records processed under the FOIA may be denied 
only in accordance with the FOIA (5 U.S.C. 552(b)), as implemented by 
this part. Guidance on the applicability of the FOIA is also found in 
the Federal Acquisition Regulation (FAR).
    (d) Release of some records may also be affected by the programs 
that created them. They are discussed in the following regulations:
    (1) AR 20-1 (Inspector General activities and procedures);
    (2) AR 27-10 (military justice);
    (3) AR 27-20 (claims);
    (4) AR 27-40 (litigation: release of information and appearance of 
witnesses);
    (5) AR 27-60 (intellectual property);
    (6) AR 36-2 (Government Accounting Office audits);
    (7) AR 40-66, AR 40-68, and AR 40-400 (medical records);
    (8) AR 70-31 (technical reports);
    (9) AR 20-1, AR 385-40 and DA Pam 385-40 (aircraft accident 
investigations);
    (10) AR 195-2 (criminal investigation activities);
    (11) AR 190-45 (Military Police records and reports);
    (12) AR 360-1 (Army public affairs: public information, general 
policies on release of information to the public);
    (13) AR 380-5 and DoD 5200.1-R (national security classified 
information);
    (14) AR 380-5 paragraph 7-101e (policies and procedures for 
allowing persons outside the Executive Branch to do unofficial 
historical research in classified Army records);
    (15) AR 380-10 (Technology Transfer for disclosure of information 
and contacts with foreign representatives;
    (16) AR 381-45 (U.S. Army Intelligence and Security Command 
investigation files);
    (17) AR 385-40 (safety reports and records);
    (18) AR 600-8-104 (military personnel information management 
records);
    (19) AR 600-85 (alcohol and drug abuse records);
    (20) AR 608-19 (family advocacy records); and
    (21) AR 690 (series civilian personnel records, FAR, DoD Federal 
Acquisition Regulation Supplement (DFARS) and the Army Federal 
Acquisition Regulation Supplement (AFARS) procurement matters).


Sec.  518.6  Public information.

    (a) Public information. The public has a right to information 
concerning the activities of its Government. Army policy is to conduct 
its activities in an open manner and provide the public with a maximum 
amount of accurate and timely information concerning its activities, 
consistent always with the legitimate public and private interests of 
the American people. A record requested by a member of the public who 
follows rules established by proper authority in DA shall not be 
withheld in whole or in part unless the record is exempt from mandatory 
partial or total disclosure under the FOIA. As a matter of policy, Army 
activities shall make discretionary disclosures of exempt records or 
information only after full and deliberate consideration of the 
institutional, commercial, and personal privacy interests that could be 
implicated by disclosure of the information. Activities must be 
prepared to present a sound legal basis in support of their 
determinations. In order that the public may have timely information 
concerning Army activities, records requested through public 
information channels by news media representatives that would not be 
withheld if requested under the FOIA should be released upon request. 
Prompt responses to requests for information from news media 
representatives should be encouraged to eliminate the need for these 
requesters to invoke the provisions of the FOIA and thereby assist in 
providing timely information to the public. Similarly, requests from 
other members of the public for information that would not be withheld 
under the FOIA should continue to be honored through appropriate means 
without requiring the requester to invoke the FOIA.
    (b) FOIA handbook. The Department of the Army Freedom of 
Information Act/Privacy Act (DA FOIA/PA) Office shall prepare, in 
addition to FOIA regulations, a handbook for the use of the public in 
obtaining information from its organizations. This handbook will be a 
short, simple explanation of what the FOIA is designed to do, and how a 
member of the public can use it to access government records. The DA 
FOIA/PA Office handbook will explain the types of records that can be 
obtained through FOIA requests, why some records cannot, by law, be 
made available, and how the Army activity determines whether or not the 
record can be released. The handbook will also explain how to make a 
FOIA request, how long the requester can expect to wait for a reply, 
and appeal rights. The handbook will supplement other information 
locator systems, such as the Government Information Locator Service 
(GILS), and explain how a requester can obtain more information about 
those systems. The handbook will be available on paper and through 
electronic means and contain the following additional information, 
complete with electronic links to the below elements: the location of 
reading room and the types and categories of information available; the 
location of the World Wide Web page; a reference to the Army FOIA 
regulation and how to obtain a copy; a reference to the Army FOIA 
annual report and how to obtain a copy; and the location of the GILS 
page. The DA FOIA handbook, ``A Citizen's Guide to Request Army Records 
Under the Freedom of Information Act (FOIA),'' can be accessed on-line 
at https://www.rmda.belvoir.army.mil/. ``The Major Automated Information 
Systems

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Descriptions'' can be accessed at https://www.defenselink.mil/pubs/foi.
    (c) Control system. A request for records that invokes the FOIA 
shall enter a formal control system designed to ensure accountability 
and compliance with the FOIA. Any request for Army records that either 
explicitly or implicitly cites the FOIA shall be processed under the 
provisions of this part, unless otherwise required.


Sec.  518.7  FOIA terms defined.

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


Sec.  518.8  Freedom of Information requirements.

    (a) Compliance with the FOIA. Army personnel are expected to comply 
with the FOIA, this part, and Army FOIA policy in both letter and 
spirit. This strict adherence is necessary to provide uniformity in the 
implementation of the Army FOIA Program and to create conditions that 
will promote public trust.
    (b) Openness with the public. The DA shall conduct its activities 
in an open manner consistent with the need for

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

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

[[Page 9227]]

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

[[Page 9228]]

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

Subpart B--FOIA Reading Rooms


Sec.  518.9  Reading room.

    (a) Reading room location. The DA shall provide an appropriate 
facility or facilities where the public may inspect and copy or have 
copied the records described in paragraphs (b)(1) through (4) of this 
section. In addition to the records described, DA may elect to

[[Page 9229]]

place other records in their reading room, and also make them 
electronically available to the public. The Army may share reading room 
facilities with DoD Components if the public is not unduly 
inconvenienced, and also may establish decentralized reading rooms. 
When appropriate, the cost of copying may be imposed on the person 
requesting the material in accordance with the provisions of subpart F 
of this part. The Army FOIA Public Reading Room is operated by the DA, 
FOIA/PA Office.
    (b) Record availability. The FOIA requires that records described 
in 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) created on or after 
November 1, 1996, shall be made available electronically, as well as in 
hard copy in the FOIA reading room for inspection and copying, unless 
such records are published and copies are offered for sale. All 
portions determined to be exempt in accordance with 5 U.S.C. 552 
(reference (a)) shall be deleted from all 5 U.S.C. 552(a)(2) records 
made available to the general public. In every case, justification for 
the deletion must be fully explained in writing, and the extent of such 
deletion shall be indicated on the record that is made publicly 
available, unless such indication would harm an interest protected by 
an exemption under which the deletion was made. If technically 
feasible, the extent of the deletion in electronic records or any other 
form of record shall be indicated at the place in the record where the 
deletion was made. However, the Army may publish in the Federal 
Register a description of the basis upon which it will delete 
identifying details of particular types of records to avoid clearly 
unwarranted invasions of privacy, or competitive harm to business 
submitters. In appropriate cases, the Army may refer to this 
description rather than write a separate justification for each 
deletion. 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) records are:
    (1) (a)(2)(A) records. Final opinions, including concurring and 
dissenting opinions, and orders made in the adjudication of cases, as 
defined in 5 U.S.C. 551, that may be cited, used, or relied upon as 
precedents in future adjudications;
    (2) (a)(2)(B) records. Statements of policy and interpretations 
that have been adopted by the agency that are not published in the 
Federal Register; and
    (3) (a)(2)(C) records. Administrative staff manuals and 
instructions, or portions thereof that establish Army policy or 
interpretations of policy that affect a member of the public. This 
provision does not apply to instructions for employees on tactics and 
techniques to be used in performing their duties, or to instructions 
relating only to the internal management of the Army. Examples of 
manuals and instructions not normally made available are:
    (i) Those issued for audit, investigation, and inspection purposes, 
or those that prescribe operational tactics, standards of performance, 
or criteria for defense, prosecution, or settlement of cases; and
    (ii) Operations and maintenance manuals and technical information 
concerning munitions, equipment, systems, and intelligence activities.
    (4) (a)(2)(D) records. Those 5 U.S.C. 552(a)(3) records, which 
because of the nature of the subject matter, have become or are likely 
to become the subject of subsequent requests for substantially the same 
records. These records are referred to as FOIA-processed (a)(2) 
records.
    (i) Army Activities shall decide on a case by case basis whether 
records fall into this category, based on previous experience of the 
Army Activity with similar records; particular circumstances of the 
records involved, including their nature and the type of information 
contained in them; or the identity and number of requesters and whether 
there is widespread press, historic, or commercial interest in the 
records.
    (ii) This provision is intended for situations where public access 
in a timely manner is important, and it is not intended to apply where 
there may be a limited number of requests over a short period of time 
from a few requesters. Army Activities may remove the records from this 
access medium when the appropriate officials determine that access is 
no longer necessary.
    (iii) Should a requester submit a FOIA request for FOIA-processed 
(a)(2) records, and insist that the request be processed, Army 
Activities shall process the FOIA request. However, Army Activities 
have no obligation to process a FOIA request for 5 U.S.C. 552(a)(2)(A), 
(B), and (C) records because these records are required to be made 
public and not FOIA-processed under paragraph (a)(3) of the FOIA.


Sec.  518.10 ``(a)(2)''  Materials.

    (a) The DA FOIA/PA Office shall maintain in the facility an index 
of materials described in paragraphs (b)(1) through (4) of Sec.  518.9, 
that are issued, adopted, or promulgated after July 4, 1967. No 
``(a)(2)'' materials issued, promulgated, or adopted after July 4, 1967 
that are not indexed and either made available or published may be 
relied upon, used or cited as precedent against any individual unless 
such individual has actual and timely notice of the contents of such 
materials. Such materials issued, promulgated, or adopted before July 
4, 1967 need not be indexed, but must be made available upon request if 
not exempted under this part.
    (b) The DA FOIA/PA Office shall promptly publish quarterly or more 
frequently, and distribute, by sale or otherwise, copies of each index 
of ``(a)(2)'' materials or supplements thereto unless it publishes in 
the Federal Register an order containing a determination that 
publication is unnecessary and impracticable. A copy of each index or 
supplement not published shall be provided to a requester at a cost not 
to exceed the direct cost of duplication as set forth in subpart F of 
this part.
    (c) Each index of ``(a)(2)'' materials or supplement thereto shall 
be arranged topically or by descriptive words rather than by case name 
or numbering system so that members of the public can readily locate 
material. Case name and numbering arrangements, however, may also be 
included for Army convenience.
    (d) A general index of FOIA-processed (a)(2) records shall be made 
available to the public, both in hard copy and electronically.


Sec.  518.11  Other materials.

    (a) Any available index of Army material published in the Federal 
Register, such as material required to be published by section 
552(a)(1) of the FOIA, shall be made available in the Army FOIA Public 
Reading Room, and electronically to the public.
    (b) Although not required to be made available in response to FOIA 
requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials 
shall, when feasible, be made available to the public in FOIA reading 
rooms for inspection and copying, and by electronic means. Examples of 
``(a)(1)'' materials are descriptions of an agency's central and field 
organization, and to the extent they affect the public, rules of 
procedures, descriptions of forms available, instruction as to the 
scope and contents of papers, reports, or examinations, and any 
amendment, revision, or report of the aforementioned.

Subpart C--Exemptions


Sec.  518.12  General.

    Records that meet the exemption criteria of the FOIA may be 
withheld from public disclosure and need not be published in the 
Federal Register, made available in a library reading room, or provided 
in response to a FOIA request.

[[Page 9230]]

Sec.  518.13  FOIA exemptions.

    The following types of records may be withheld in whole or in part 
from public disclosure under the FOIA, unless otherwise prescribed by 
law. A discretionary release of a record to one requester shall prevent 
the withholding of the same record under a FOIA exemption if the record 
is subsequently requested by someone else. However, a FOIA exemption 
may be invoked to withhold information that is similar or related to 
that which has been the subject of a discretionary release. In applying 
exemptions, the identity of the requester and the purpose for which the 
record is sought are irrelevant with the exception that an exemption 
may not be invoked where the particular interest to be protected is the 
requester's interest. However, if the subject of the record is the 
requester for the record and the record is contained in a PA system of 
records, it may only be denied to the requester if withholding is both 
authorized by AR 25-71 and by a FOIA exemption.
    (a) Number 1 (5 U.S.C. 552 (b)(1)). Those properly and currently 
classified in the interest of national defense or foreign policy, as 
specifically authorized under the criteria established by Executive 
Order and implemented by regulations, such as DoD 5200.1-R. Although 
material is not classified at the time of the FOIA request, a 
classification review may be undertaken to determine whether the 
information should be classified. The procedures in DoD 5200.1-R apply. 
If the information qualifies as exemption 1 information, there is no 
discretion regarding its release. In addition, this exemption shall be 
invoked when the following situations are apparent:
    (1) The fact of the existence or nonexistence of a record would 
itself reveal classified information. In this situation, Army 
Activities shall neither confirm nor deny the existence or nonexistence 
of the record being requested. A ``refusal to confirm or deny'' 
response must be used consistently, not only when a record exists, but 
also when a record does not exist. Otherwise, the pattern of using a 
``no record'' response when a record does not exist, and a ``refusal to 
confirm or deny'' when a record does exist will itself disclose 
national security information.
    (2) Compilations of items of information that are individually 
unclassified may be classified if the compiled information reveals 
additional association or relationship that meets the standard for 
classification under an existing executive order for classification and 
DoD 5200.1-R, and is not otherwise revealed in the individual items of 
information.
    (b) Number 2 (5 U.S.C. 552(b)(2)). Those related solely to the 
internal personnel rules and practices of the DoD or any of its 
Components. This exemption has two profiles, high (b)(2) and low 
(b)(2). Activities are encouraged to consult the DA, FOIA/PA Office, 
and the U.S. DoJ ``Freedom of Information Act Guide & Privacy Act 
Overview'' for a more in depth discussion on the legal history of the 
use of the low (b)(2) exemption. When only a minimal Government 
interest would be affected (administrative burden), Army Activities 
shall apply the sound legal basis standard regarding disclosure of the 
information. Army Activities shall apply the low 2 exemption as 
applicable.
    (1) Records qualifying under high (b)(2) are those containing or 
constituting statutes, rules, regulations, orders, manuals, directives, 
instructions, security classification guides, and sensitive but 
unclassified information related to America's homeland security and 
critical infrastructure information the release of which would allow 
circumvention of these records thereby substantially hindering the 
effective performance or present an unwarranted risk of adverse impact 
on the ability of other agencies to protect other important records of 
a significant function of the DA. Examples include:
    (i) Those operating rules, guidelines, and manuals for Army 
investigators, inspectors, auditors, or examiners that must remain 
privileged in order for the Army Activity to fulfill a legal 
requirement;
    (ii) Personnel and other administrative matters, such as 
examination questions and answers used in training courses or in the 
determination of the qualifications of candidates for employment, 
entrance on duty, advancement, or promotion; and
    (iii) Computer software, the release of which would allow 
circumvention of a statute, DoD or Army rules, regulations, orders, 
manuals, directives, or instructions. In this situation, the use of the 
software must be closely examined to ensure a circumvention possibility 
exists.
    (2) Records qualifying under the low (b)(2) profile are those that 
are trivial and housekeeping in nature for which there is no legitimate 
public interest or benefit to be gained by release, and it would 
constitute an administrative burden to process the request in order to 
disclose the records. Examples include rules of personnel's use of 
parking facilities or regulation of lunch hours, statements of policy 
as to sick leave, and administrative data such as file numbers, mail 
routing stamps, initials, data processing notations, brief references 
to previous communications, and other like administrative markings. 
Army Activities shall apply the low 2 exemption as applicable.
    (c) Number 3 (5 U.S.C. 552(b)(3)). Those concerning matters that a 
statute specifically exempts from disclosure by terms that permit no 
discretion on the issue, or in accordance with criteria established by 
that statute for withholding or referring to particular types of 
matters to be withheld. The DA, FOIA/PA Office, maintains a list of 
(b)(3) statutes used within the DoD, and pro