DoD Freedom of Information Act (FOIA) Program Regulation, 71847-71868 [E7-24359]

Agencies

• Office of the Secretary
• DEPARTMENT OF DEFENSE

[Federal Register Volume 72, Number 243 (Wednesday, December 19, 2007)]
[Proposed Rules]
[Pages 71847-71868]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-24359]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

[DoD-2007-OS-0086; 0790-AI24]

32 CFR Part 286


DoD Freedom of Information Act (FOIA) Program Regulation

AGENCY: Department of Defense.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Defense is proposing to update current 
policies and procedures to reflect the DoD FOIA Program as prescribed 
by Executive Order 13392. The proposed changes will ensure appropriate 
agency disclosure of information, and offer consistency with the goals 
of section 552 of title 5, United States Code.

DATES: Comments must be received by February 19, 2008.

ADDRESSES: You may submit comments, identified by docket number and/or 
RIN number and title, by any of the following methods:
     Federal Rulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the Internet at https://regulations.gov 
as they are received without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: James Hogan (703) 696-4495.

SUPPLEMENTARY INFORMATION: 

Executive Order 13132, ``Federalism''

    It has been certified that 32 CFR part 286 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of Government.

Executive Order 12866, ``Regulatory Planning and Review''

    It has been certified that 32 CFR part 286 does not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    It has been certified that 32 CFR part 286 does not contain a 
Federal mandate that may result in expenditure by State, local and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that 32 CFR part 286 is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

Public Law 96-511, ``Paperwork Reduction Act '' (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR part 286 does not impose 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995.

List of Subjects in 32 CFR Part 286

    Freedom of information.
    Accordingly, 32 CFR part 286 is proposed to be revised to read as 
follows:

PART 286-DOD FREEDOM OF INFORMATION ACT (FOIA) PROGRAM REGULATION

Subpart A--General Provisions

Sec.
286.1 Purpose.
286.2 Definitions.
286.3 Public access to DoD information.
286.4 Procedures.

Subpart B--FOIA Reading Rooms

286.7 Requirements.
286.8 Record availability.
286.9 Indexes.
286.10 ``(a)(1)'' records.

Subpart C--Exemptions

286.13 General provisions.
286.14 Applying the FOIA exemptions.

Subpart D--FOIA Request Processing

286.17 General provisions.
286.18 Processing procedures.
286.19 Initial determinations.
286.20 Appeals.
286.21 Judicial actions.

Subpart E--Fee Schedule

286.24 General provisions.
286.25 Collection of fees and fee rates.
286.26 Fees for technical data.
286.27 Fees for research data.

Subpart F--Education and Training

286.30 Purpose and responsibility.
286.31 Implementation.

[[Page 71848]]

Appendix A to Part 286--DoD FOIA Program Components

Appendix B to Part 286--Addressing FOIA Requests

     Authority: 5 U.S.C. 552.

Subpart A--General Provisions


Sec.  286.1  Purpose.

    This part promotes uniformity in the DoD FOIA Program. It shall 
take precedence over all DoD Component publications that supplement and 
implement the DoD FOIA Program. A list of the DoD FOIA Program 
Components is at Appendix A to this part.


Sec.  286.2  Definitions.

    The following terms and meanings shall apply for the purposes of 
this part:
    Administrative appeal. A request by a member of the public, made 
under the FOIA, asking the appellate authority of the DoD Component to 
reverse any adverse determination by an Initial Denial Authority (IDA). 
A requester may also appeal the failure of an agency to respond within 
the statutory time limits.
    Adverse determination. A decision by an IDA to withhold all or part 
of a requested record, deny a fee category claim by a requester, deny a 
request for waiver or reduction of fees, deny a request to review an 
initial fee estimate, deny a request for expedited processing, confirm 
that no records were located during the initial search, or any 
determination that a requester believes is adverse in nature.
    Agency record. (1) Includes: (i) All products of data compilation 
made or received by an agency of the U.S. Government under Federal law 
in connection with the transaction of public business and in DoD 
possession and control at the time the search in response to a FOIA 
request is made. Examples include books, papers, maps, photographs, 
machine-readable materials inclusive of those in electronic form or 
format, and other documentary materials, regardless of physical form or 
characteristics.
    (ii) Research data produced under a Federal grant used by the 
Federal Government in developing an agency action that has the force 
and effect of law (Office of Management and Budget Circular (OMB) A-
110).
    (2) Does not include:
    (i) Objects or articles, such as structures, furniture, vehicles, 
and equipment, whatever their historical or evidentiary value.
    (ii) Anything that is not a tangible or documentary record, such as 
an individual's memory or an oral communication.
    (iii) 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:
    (A) Those created before entering Government service.
    (B) Private materials brought into, created, or received in the 
office that were not created or received in the course of transacting 
Government business.
    (C) Work-related personal papers that are not used in the 
transaction of Government business.
    (iv) A record that is not in the possession and control of the 
Department of Defense when the search is conducted in response to a 
FOIA request. (There is no obligation to create, compile, or obtain a 
record to satisfy a FOIA request.)
    Appellate authority. The Head of the DoD Component, or designee, 
having jurisdiction to review and possibly reverse or amend any adverse 
determination by an IDA.
    Direct costs. Those expenditures the DoD Component makes in 
searching for, reviewing, and duplicating documents to respond to a 
FOIA request. Direct costs include, for example, the salary of the 
employee performing the work (the basic rate of pay plus 16 percent of 
that rate to cover benefits) and the costs of operating duplicating 
machinery. (These factors have been included in the fee rates 
prescribed at Sec.  286.25. Not included in direct costs are overhead 
expenses such as the cost of space, heating, or lighting the facility 
in which the records are stored.
    Electronic records. Records (including e-mail) created, stored, and 
retrievable by electronic means.
    Federal agency. Defined in 5 U.S.C. 551(1) and 552(f)(1). (A 
Federal agency cannot make FOIA requests.)
    FOIA office. The DoD Component office that receives FOIA requests 
from and responds directly to the public.
    FOIA public liaison. Defined in E.O. 13392.
    FOIA request. A written request for DoD records that reasonably 
describes the record(s) sought. The request should also indicate a 
willingness to pay processing fees even if it contains a request for a 
fee waiver. Written requests may be received by postal service or other 
commercial delivery means, by facsimile, or electronically. All 
requests must have a postal mailing address included, even if they are 
received by facsimile or electronically.
    FOIA requester. Any person, including a partnership, corporation, 
association, State or State agency, foreign government, foreign 
national, or a lawyer or other representative acting on behalf of any 
person, who submits a FOIA request. This definition specifically 
excludes agencies within the Executive Branch of the Federal 
Government.
    FOIA requester service center. Defined in E.O. 13392.
    IDA. An official who has been granted authority by the Head of the 
DoD Component to withhold information requested under the FOIA for one 
or more of the 9 categories of records exempt from mandatory 
disclosure. An IDA may also deny a fee category claim by a requester, 
deny a request for expedited processing, 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.
    Perfected FOIA request. A FOIA request that meets the conditions 
identified in definition ``FOIA request'' and arrives at the FOIA 
office of the DoD Component in possession of the records. Also referred 
to as a ``correct'' request.
    Privacy Act system of records. Defined in DoD 5400.11-R \1\.
---------------------------------------------------------------------------

    \1\ Copies of unclassified DoD issuances may be obtained at 
https://www.dtic.mil/whs/directives/.
---------------------------------------------------------------------------

    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 their Government's activities.
    Search. Includes all time spent looking, both manually and 
electronically, for records that are responsive to a FOIA request. The 
term ``search'' also includes a page-by-page or line-by-line 
identification (if necessary) of material in the record to determine if 
it, or portions of it, are responsive to the request. Time spent 
reviewing documents to determine whether to apply one or more of the 
statutory exemptions is not search time; it is review time.
    (1) Duplication. The process of making a copy of a document in 
response to a FOIA request. Such copies can take the form of paper, 
microfiche, or audiovisual or machine-readable documentation (e.g., 
magnetic tape or disc), among others.
    (2) Review. The examination of documents located in response to a 
FOIA request to determine whether one

[[Page 71849]]

or more of the statutory exemptions permit withholding. Review also 
includes processing the documents for disclosure, such as excising them 
for release. Review does not include the time spent resolving general, 
legal or policy issues regarding the application of exemptions.
    Submitter. A person or persons outside of the Government providing 
commercial or financial information or trade secrets to the Government.
    Submitter notice. The process required by E.O. 12600 whereby when a 
Component receives a FOIA request for confidential commercial 
information, it asks the submitter of the information to advise the 
Component as to the information it considers exempt from release.


Sec.  286.3  Public access to DoD information.

    (a) The public has a right to information concerning the activities 
of its Government. DoD policy (32 CFR part 285) is to conduct DoD 
activities in an open manner and to provide the public a maximum of 
accurate and timely information concerning DoD activities, consistent 
with the need for security, public and private interests of the 
American people, and adherence to other requirements of law and 
regulation. 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. The 
existence of a sound legal basis to withhold information does not 
preclude the DoD Component from making a discretionary release if 
release of that information would serve the public interest. Records 
requested through public affairs channels by news media representatives 
that would not be withheld if requested under the FOIA should be 
released promptly upon request. 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) The DoD FOIA Program Components shall prepare, in addition to 
normal FOIA regulations, a guide, or handbook for the use of the public 
in obtaining information from their Components as required by 5 U.S.C. 
552(g) and section 2(b)(v) of E.O. 13392. This guide should be a short, 
simple explanation of what the FOIA is designed to do and how the 
public can use it to access Government records. Within OSD, DFOIPO is 
responsible for preparing this guide. Each guide shall be available on 
paper and electronically and shall include:
    (1) An index of all major information systems and a description of 
major information and record locator systems.
    (2) The types and categories of records that can be obtained 
through FOIA requests.
    (3) A concise description of the FOIA exemptions and how the 
Component determines whether the record can be released.
    (4) An explanation of how to make a FOIA request, how long the 
requester can expect to wait for a reply, and the right of appeal.
    (5) The location of the FOIA reading rooms(s) within the Component.
    (6) The location of the Component's Web site.
    (7) A reference to the Component's FOIA regulation and how to 
obtain a copy.


Sec.  286.4  Procedures.

    (a) Compliance with the FOIA. DoD personnel shall comply with the 
FOIA, this part, and DoD FOIA policy (32 CFR part 285) in both letter 
and spirit. This strict adherence is necessary to assure uniformity in 
implementation of the DoD FOIA Program and to create conditions that 
promote public trust.
    (b) Customer service. (1) In signing E.O. 13392, the President 
ordered agencies to emphasize a new citizen-centered approach to the 
FOIA with a results-oriented focus. Because FOIA requesters are seeking 
a service from the Federal Government, the DoD Components shall respond 
courteously and appropriately to FOIA requesters. Additionally, the 
Components shall provide the public with citizen-centered ways to learn 
about the FOIA process, information about agency records that are 
publicly available, and information about the status of a person's FOIA 
request and appropriate information about the agency's response.
    (2) To meet the objectives of E.O. 13392, the DoD Components shall:
    (i) Establish one or more FOIA Requester Service Centers. Normally, 
every DoD Component FOIA office that responds directly to the public is 
a FOIA Requester Service Center; however, the Components have the 
discretion to assign more than one FOIA Office under a FOIA Requester 
Service Center.
    (A) Each FOIA Requester Service Center shall have an internet Web 
site that serves to educate the public on the FOIA process. At a 
minimum, each Web site shall have the address, telephone number, 
facsimile number, and electronic mail address to which FOIA requests 
can be sent; a link to the Component's FOIA handbook or guide; a 
description of the types of records that can be requested; the name and 
contact information of the Component's FOIA Public Liaison; and 
information on how a requester can obtain the status of a request. 
Additionally, each FOIA Requester Service Center Web site will have an 
electronic FOIA reading room as described in Subpart B to this part.
    (B) The Web sites of DoD Component Headquarters FOIA Requester 
Service Centers shall link to the Web sites of the other Requester 
Service Centers within their Components.
    (C) The Internet home page of every DoD Component shall link to the 
FOIA Requester Service Center for that activity.
    (ii) Submit to the Director of Administration and Management 
(DA&M), OSD, the names of personnel to serve as DoD Component FOIA 
Public Liaisons. Each Component shall have at least one FOIA Public 
Liaison. Intermediate level Public Liaisons may be named within those 
Components that have a large number of FOIA Requester Service Centers. 
The FOIA Public Liaisons are responsible to ensure that the FOIA 
Requester Service Centers' Web sites comply with Sec.  286.4 
(b)(2)(i)(A). Additionally, the FOIA Public Liaisons are responsible 
for the Component's compliance with the objectives of E.O. 13392, to 
include the reduction or elimination of FOIA backlogs.
    (c) Prompt action on requests. (1) When a member of the public 
complies with the procedures in this part and DoD Component 
supplementing regulations for obtaining DoD records, and the request is 
received by the official designated to respond, the DoD Component shall 
endeavor to provide a final response determination within the statutory 
20 working days (5 U.S.C. 552(a)(6)(A)(i)). If unusual circumstances 
prevent a final response determination within the statutory time 
period, the Component shall advise the requester of this in writing, 
and provide a new completion date, which shall be not later than an 
additional 10 working days. If the Component needs more than this 10-
day extension, it will provide the requester an opportunity to narrow 
the scope of the request, or arrange for an alternative timeframe.
    (i) Unusual circumstances are:
    (A) The responsive documents are located at a facility 
geographically separated from the office processing the FOIA request.
    (B) The responsive documents are voluminous.

[[Page 71850]]

    (C) One or more other outside agencies have a substantial interest 
in either the determination or the subject matter of the request, 
requiring the DoD Component processing the request to consult with the 
other agencies. This would include the submitter notice process (Sec.  
286.18(d)(1)(i)(A)).
    (ii) A final response determination is notification to the 
requester that the records are released, or that the records cannot be 
provided for one or more of the reasons in Sec.  286.13. Interim 
responses acknowledging receipt of the request are encouraged, as are 
negotiations with the requester concerning the scope of the request, 
the response timeframe, and the fee agreement. Such communications do 
not, however, constitute a final response determination.
    (2) If a request fails to meet the minimum requirements of this 
part, the DoD Component 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.
    (d) Use of exemptions. It is DoD policy (32 CFR part 285) to make 
records publicly available, unless the record or portions thereof 
qualify for withholding under one or more of the 9 exemptions.
    (e) Waiver of exemptions. Records released under the authority of 
this part are considered to be in the public domain. The disclosure of 
exempt records without authorization by the appropriate DoD official is 
not considered a FOIA release. Such a release does not waive the 
Department of Defense's authority to assert FOIA exemptions to withhold 
the same records in response to a FOIA request. 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.
    (f) Creating a record. (1) A record must exist and be in DoD 
possession and control at the time of the search to be subject to this 
part and the FOIA. The DoD Components are not obligated to create, 
compile, or obtain a record to satisfy a FOIA request. The DoD 
Components, however, may compile a new record when so doing would 
result in a more useful response to the requester or would be less 
burdensome to the agency than providing existing records. Any such 
compilation should be coordinated with and approved by the requester. 
The 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 Sec.  286.25.
    (2) With regards to electronic data, the issue of whether records 
are actually created or merely extracted from an existing database is 
not always readily apparent. Consequently, when processing FOIA 
requests for electronic data where creation of a record, programming, 
or organizing in a particular format is questionable, if the Component 
has the capability to respond to the request, and the effort would be a 
business-as-usual approach then the request should be processed.
    (i) A business as usual approach exists when the Component has the 
capability to process the request without a significant expenditure of 
resources. If processing a request would cause a significant 
interference with the operation of the Component's automated 
information system, then it has a significant expenditure of resources.
    (ii) Creating computer programs and/or purchasing additional 
hardware to extract electronic mail that has been archived for the 
purpose of emergency retrieval normally are not viewed as business as 
usual. This is especially true if extensive resources are needed to 
complete the project.
    (iii) Creating a computer program that produces specific requested 
fields or records contained within a database normally is viewed as 
business as usual. The time to create this program shall be considered 
as ``computer operator'' [clarify] search time for fee assessment 
purposes and the requester may be assessed fees in accordance with 
Sec.  286.25.
    (3) The DoD Components are not required to expend DoD funds to 
establish data links that provide real-time or near-real-time data to a 
FOIA requester. The Components are responsible to provide existing data 
downloaded to electronic media or printed in hard copy at the time the 
FOIA request is received or processed. If the information would serve 
the public interest or need, and is economically feasible, the 
Component may consider posting the information on the Internet.
    (g) Description of a requested record. The requester is responsible 
to provide a description of the desired record that enables the 
Government to locate the record with a reasonable amount of effort. 
Generally, a reasonable description contains sufficient information to 
permit the conduct of an organized, non-random search for the record 
based on the DoD Component's filing arrangements and existing retrieval 
systems. The DoD Component's decision on the reasonableness of the 
description must be based on a knowledge of its files, and not on the 
potential volume of records that may be located and the concurrent 
review effort to determine releasability. The fact that a FOIA request 
appears broad or burdensome does not, in itself, entitle the DoD 
Component to deny the request on the grounds that it does not 
reasonably describe the record sought.
    (h) Consultations and referrals. The DoD FOIA referral procedures 
are based on the concept that the originator of information contained 
within a record shall make a release determination on that information.
    (1) If the DoD Component receives a request for records originated 
by another DoD Component, it should contact that Component to determine 
if it also received the request, and if not, obtain concurrence to 
transfer the request or to advise the requester to send the request to 
the correct Component. If the request is to be transferred, the 
requester shall be advised of the action taken, unless exempt 
information would be revealed by the fact of the referral. Any DoD 
Component receiving a request that has been misaddressed shall transfer 
the request to the proper address and advise the requester. DoD 
Components transferring requests shall include point of contact name, 
telephone number, and e-mail address in the cover memorandum.
    (2) The DoD Component holding a record originated by another DoD 
Component or agency outside the Department of Defense shall refer a 
FOIA request for that record, as well as the record, to the originating 
agency for response directly to the requester. If the DoD Component 
holding the record has an equity in the document, it shall provide an 
opinion on the releasability of the record with the referral. If 
appropriate, the name of the IDA responsible for the decision to 
withhold all or parts of the record should be provided. Whenever a 
record is referred to another DoD Component or to an agency outside of 
the Department of Defense 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. DoD Components referring requests shall include 
point of contact name, telephone number, and e-mail address in the 
cover memorandum.
    (3) At times, a DoD Component may locate a responsive record that 
it

[[Page 71851]]

originated and determine another DoD Component or agency outside the 
Department of Defense to have a valid interest or equity in the record. 
In such situations, the DoD Component shall consult with the other DoD 
Component or agency and obtain its release recommendation. The 
consulted agency will provide its release recommendation back to the 
originating Component, which will then respond to the requester. 
Normally, the requester will not be advised of this consultation unless 
information is withheld by the consulted agency. However, if the record 
was created for the use of the other DoD Component or agency by the 
originating DoD Component (e.g., Defense Contract Audit Agency audit 
reports), then the procedures of Sec.  286.18(a) apply.
    (4) DoD Components receiving transferred or referred requests shall 
answer them in accordance with the time limits established by the FOIA, 
this part, and their multi-track processing systems, based upon the 
date of initial receipt of the request at the referring component or 
agency.
    (5) Prior to notifying a requester of a transfer or referral to 
another DoD Component or agency outside the Department of Defense, the 
DoD Component possessing the initial request shall, as appropriate, 
consult with the other agency to determine if that agency's association 
with the subject of the request is exempt. If the association is 
exempt, the DoD Component possessing the initial request will protect 
the association and any exempt information without revealing the 
identity of the protected agency. The protected agency shall be 
responsible for submitting the justifications required in any 
litigation.
    (6) DoD Components locating records originating with the National 
Security Council (NSC), the White House, or the White House Military 
Office (WHMO) or containing information in which these agencies would 
have a concurrent reviewing interest, shall forward the records to the 
Executive Services Directorate, Office of Freedom of Information 
(OFOI). OFOI is also the FOIA Requester Service Center for the OSD/
Joint Staff. Its address is at Appendix B to this part. The OFOI shall 
coordinate with the NSC, White House, or WHMO and return the records to 
the originating agency after coordination for response to the 
requester.
    (7) On occasion, the Department of Defense receives FOIA requests 
for U.S. Government Accountability Office (GAO) records containing DoD 
information. Even though the GAO is outside the Executive Branch and 
not subject to the FOIA, all FOIA requests for GAO documents containing 
DoD information received either from the public, or on referral from 
the GAO, shall be processed under the provisions of the FOIA.
    (i) Authentication. At the request of a FOIA requester, 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 is in addition to that required under the 
FOIA and is not included in the FOIA fee schedule. The DoD Components 
may charge a fee of $5.20 for each authentication.
    (j) Combatant commands. (1) The Combatant Commands are placed under 
the jurisdiction of the OSD, instead of the administering Military 
Department or the Chairman of the Joint Chiefs of Staff, for the 
purpose of administering the DoD FOIA Program. This policy represents 
an exception to the policies directed in DoD Directive 5100.3; it 
authorizes and requires the Combatant Commands to process FOIA requests 
in accordance with 32 CFR part 285 and this part. When requested, the 
Combatant Commands shall forward directly to the DFOIPO all 
correspondence associated with the appeal of an initial denial for 
records under the provisions of the FOIA. The Combatant Commands will 
advise requesters that they have the right to appeal any adverse 
determinations to the DFOIPO.
    (2) The Combatant Commands shall comply with all provisions of this 
part that apply to the DoD Components except the appointments of an 
appellate authority and a FOIA Public Liaison.
    (k) Security clearances and access for FOIA personnel. Due to the 
nature of their duties and responsibilities, FOIA personnel need access 
to all records requested through their respective offices, regardless 
of the sensitivity or classification of the information. The DoD 
Components shall ensure FOIA personnel have the appropriate clearances 
and accesses to perform their duties.
    (l) Use of Contractors in FOIA Administration. According to DoD 
Instruction 1100.22 and OMB Circular A-76, there are certain functions, 
known as inherently governmental activities that cannot be outsourced 
to a contractor. Since some of the functions of the FOIA Officer are 
inherently governmental, the DoD Components shall be careful not to 
outsource those FOIA functions that are inherently governmental. 
Primarily, activities which require the exercise of substantial 
discretion in applying government authority or in making decisions for 
the government are inherently governmental. Inherently governmental 
FOIA functions include:
    (1) Formulating and/or approving FOIA policies and procedures.
    (2) Making final determinations regarding whether to treat incoming 
correspondence as a FOIA or Privacy Act request.
    (3) Deciding any issues regarding the scope or interpretation of 
the request.
    (4) Determining the appropriateness of claimed exemptions.
    (5) Approving the approach taken in negotiations/discussions with 
the requester.
    (6) Deciding administrative appeals.
    (7) Conducting final review of all outgoing correspondence, 
memoranda, and release packages.
    (8) Drafting court documents for filing in FOIA lawsuit in which 
the government's legal strategy and affirmative defense are determined.
    (9) Conducting FOIA training if it involves issues of DoD policy.
    (10) Making final determination of requests for expedited 
processing, fee category, and fee waivers.
    (m) Records management. FOIA records shall be maintained and 
disposed of in accordance with the National Archives and Records 
Administration General Records Schedule and DoD Component records 
schedules.
    (n) Relationship between the FOIA and the Privacy Act. 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, requesters may cite either the FOIA or 5 
U.S.C. 552a, commonly known as the Privacy Act, or they may cite 
neither the FOIA nor the Privacy Act but will imply one or both. For 
these reasons, the below guidelines are provided to ensure requesters 
receive the greatest access rights under both statutes. Privacy Act 
requests can be made only by requesters asking for information on 
themselves contained within a Privacy Act system of records. If the 
requested information is on another person, the Privacy Act does not 
apply. These requests shall be processed under the FOIA.
    (1) Requesters who seek records about themselves contained in a 
Privacy Act system of records, and who cite or imply the FOIA and/or 
the Privacy Act, will have their requests processed under the 
provisions of both the Privacy Act and the FOIA. If the Privacy Act 
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

[[Page 71852]]

exempt under the FOIA, the requester shall be so advised with the 
appropriate Privacy Act and FOIA exemption(s). Appeals shall be 
processed under both the FOIA and the Privacy Act.
    (2) Requesters who seek records about themselves that are not 
contained in a Privacy Act system of records and who cite or imply the 
Privacy Act will have their requests processed under the provisions of 
the FOIA, since the Privacy Act does not apply to these records. 
Appeals shall be processed under the FOIA.
    (3) Requesters who seek access to agency records and who cite or 
imply the FOIA will have their requests and appeals processed under the 
FOIA.
    (4) If the record is required to be released under the FOIA, the 
Privacy Act does not bar its disclosure. Unlike the FOIA, the Privacy 
Act applies only to U.S. citizens and aliens admitted for permanent 
residence.
    (5) Requesters shall be advised in the final response letter which 
statutory authorities were used, inclusive of appeal rights.
    (o) Non-responsive information in responsive records. The DoD 
Components shall interpret FOIA requests liberally when determining 
which records are responsive, and may release non-responsive 
information. Responsive documents may contain large amounts of non-
responsive information, the review of which may cause delays in 
responding to the requester. In these cases, the DoD Components should 
identify the information which is non-responsive, redact it, and 
annotate it as non-responsive. The Components shall not apply these 
procedures to documents that have a relatively small percentage of non-
responsive information. Additionally, redactions of non-responsive 
information shall not be made in sections smaller than the paragraph 
level. That is, a non-responsive sentence within an otherwise 
responsive paragraph shall not be redacted as non-responsive.
    (p) Honoring form or format requests. The DoD Components shall 
provide the record in any form or format requested if the record is 
readily reproducible in that form or format in the Component's 
automated system. Every effort will be made to ensure the copy provided 
is in a reasonably usable form. The DoD Components shall make 
reasonable efforts to use available office equipment to digitally 
reproduce hard copy records onto digital media. If a Component must 
outsource to reproduce a record into the requested format, the readily-
reproducible criterion is not met. In responding to requests for 
records, the DoD Components shall make reasonable efforts to search for 
records in electronic form or format if maintained in automated 
systems, except when such efforts would significantly interfere with 
the operation of the automated systems. Such determinations shall be 
made on a case by case basis.
    (q) Annual report. The Annual FOIA Report is mandated by 5 U.S.C. 
552(e)(1) and completed on a fiscal year basis. Additionally, E.O. 
13392 requires additional reporting in the annual report through fiscal 
year 2007. Due to the magnitude of the requested statistics and the 
need to ensure accuracy, the DoD Components shall track this data as 
requests are processed. This will also facilitate quick compilation of 
the statistics in completing the report.
    (1) Each September, DFOIPO shall post on its Web site instructions 
to the Components concerning Component input for the annual report. The 
DoD Components shall forward their report to DFOIPO no later than 
November 30. In turn, the DA&M shall produce a consolidated report for 
submission to the Attorney General, and will place a copy of this 
report on the Internet for public access. The DoD Components shall use 
the current edition of DD Form 2564, ``Annual Report: Freedom of 
Information Act.''
    (2) This reporting requirement is assigned Report Control Symbol 
DD-DA&M(A)1365, Freedom of Information Act Report to Congress.

Subpart B--FOIA Reading Rooms


Sec.  286.7  Requirements.

    (a) Reading room. The FOIA requires records described in 5 U.S.C. 
552(a)(2)(A), (B), (C), and (D) be made available in an appropriate 
facility where the public may inspect or copy them. This facility is 
known as the ``FOIA reading room''. In addition to these records, the 
DoD Components may elect to place other records in their reading rooms. 
The DoD Components shall comply with this provision of the FOIA by 
providing a location accessible to the public for viewing these 
documents. In lieu of paper copies, the Component may digitize the 
documents and have them available on a personal computer in the reading 
room. The DoD Components may share reading room facilities if the 
public is not unduly inconvenienced, and also may establish 
decentralized reading rooms.
    (b) Electronic reading room. The FOIA requires records described in 
5 U.S.C. 552(a)(2)(A), (B), (C), and (D) and created on or after 
November 1, 1996, be made available electronically. The DoD Components 
will meet the electronically available requirement by posting the 
records in an electronic reading room on their FOIA Requester Service 
Center Web sites.
    (1) These electronic reading rooms will have four designated 
sections, each one corresponding to one of the four sections described 
in paragraph (b) of this section. If a Component does not have relevant 
documents to post in any of the four sections of the FOIA Requester 
Service Center electronic reading room, that section of the reading 
room will contain the annotation that no documents apply.
    (2) If a DoD Component has documents that meet the qualifications 
of 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) posted on a separate Web 
site, the Component's FOIA Requester Service Center is not required to 
post these same documents. Instead, the electronic reading room shall 
link to the other Web site. For example, if a Component maintains 
electronic copies of its issuances on a separate Web site, then the 
(a)(2)(C) section of the electronic reading room shall have a link to 
that site.
    (3) Exemptions. All information that qualifies for withholding 
under one or more of the FOIA exemptions described in Sec.  286.14 of 
this part shall be deleted from all 5 U.S.C. 552(a)(2) records that are 
made available to the public.


Sec.  286.8  Record availability.

    5 U.S.C. 552(a)(2)(A), (B), (C), and (D) records are:
    (a) ``(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 on as 
precedents in future adjudications.
    (b) ``(a)(2)(B)'' records. Statements of policy and interpretations 
that have been adopted by the agency and are not published in the 
Federal Register.
    (c) ``(a)(2)(C)'' records. Administrative staff manuals and 
instructions, or portions thereof, that establish DoD policy or 
interpretations of policy that affect 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 DoD Component. Examples of manuals and 
instructions not normally made available are:
    (1) 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.

[[Page 71853]]

    (2) Operations and maintenance manuals and technical information 
concerning munitions, equipment, systems, and intelligence activities.
    (d) ``(a)(2)(D)'' records. Records released to the public pursuant 
to 5 U.S.C. 552(a)(3) 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. Two additional requests satisfy the 
criterion of subsequent requests. These records are referred to as 
``FOIA-processed (a)(2) records.''
    (1) The DoD Components shall decide on a case by case basis whether 
records fall into this category, based on the following factors:
    (i) The previous experience of the DoD Component with similar 
records.
    (ii) The particular circumstances of the records involved, 
including their nature and the type of information they contain.
    (iii) The identity and number of requesters and whether there is 
widespread press, historic, or commercial interest in the records.
    (2) This provision of Sec.  286.8 is intended for situations where 
public access in a timely manner is important. 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. The DoD Components may remove the 
(a)(2)(D) records from their Web site when the appropriate officials 
determine that access is no longer necessary according to the factors 
of Sec.  286.8(d)(1).
    (3) Should a requester submit a FOIA request for FOIA-processed 
``(a)(2)'' records and insist that it be processed, the DoD Components 
shall process the request. However, the DoD Components have no 
obligation to process a FOIA request for 552(a)(2)(A), (B), and (C) 
records because these records are required to be made available to the 
public.


Sec.  286.9  Indexes.

    (a) ``(a)(2)'' records. (1) Each DoD Component shall maintain in 
each FOIA reading room an index of records described in Sec.  286.7 
that are issued, adopted, or promulgated, after July 4, 1967.
    (2) Any ``(a)(2)'' record relied on, used, or cited as precedent by 
an agency against a party that is issued, promulgated, or adopted after 
July 4, 1967, must be indexed and either made available or published, 
or the individual must have actual and timely notice of the contents of 
such records. Such records issued, promulgated, or adopted before July 
4, 1967, need not be indexed, but must be made available upon request 
if not exempted under Sec.  286.13.
    (3) Each DoD Component shall promptly publish quarterly or more 
frequently, and distribute by sale or otherwise, copies of each index 
of ``(a)(2)'' records 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 Sec.  286.24 
of this part.
    (4) Each index of ``(a)(2)'' records or supplement thereto shall be 
arranged by topical or descriptive words, rather than by case name or 
numbering system, so that the public can readily locate material. Case 
name and numbering arrangements may also be included for DoD Component 
convenience.
    (5) Listing of electronically available ``(a)(2)'' documents in a 
Component's electronic reading room satisfies this requirement.
    (b) Major information systems. 5 U.S.C. 552(g)(1) and (2) require 
agencies to make publicly available an index of all major information 
systems and a description of major information and record locator 
systems. This requirement will be met for the entire Department of 
Defense by DFOIPO on its Web site.


Sec.  286.10  ``(a)(1)''records.

    (a) Although (a)(1) records are not required to be made available 
in response to FOIA requests or in FOIA reading rooms, they shall be 
made available when feasible. Examples of ``(a)(1)'' records 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; instructions as to the scope and contents of papers, 
reports, or examinations; and any amendments, revisions, or reports of 
the aforementioned records.
    (b) In accordance with 5 U.S.C. 552(a)(1), each DoD Component shall 
disclose, through publication in the Federal Register, information 
describing its organization, functions, procedures, substantive rules, 
and statements of general policy. Any available index of DoD Component 
records published in the Federal Register, in addition to ``(a)(1)'' 
records, shall be made available to the public in DoD Component FOIA 
reading rooms and electronically.

Subpart C--Exemptions


Sec.  286.13  General provisions.

    (a) Records that meet FOIA exemption criteria may be withheld from 
public disclosure and need not be published in the Federal Register, 
made available in a reading room, or provided in response to a FOIA 
request.
    (b) Nine types of records may be withheld in whole or in part from 
public disclosure unless otherwise prescribed by law. In addition, 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 that has 
been the subject of a discretionary release.
    (c) 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.
    (d) The DoD Components may have a situation where, in responding to 
a FOIA request, admitting the existence or nonexistence of a record 
would itself reveal information protected from release by one of the 9 
Exemptions. In this situation, the DoD Component shall neither confirm 
nor deny the existence or nonexistence of the requested record. This is 
commonly called a ``Glomar'' response (U.S. Attorney General 
Memorandum), and the appropriate exemption must be cited in the 
response. This situation most commonly arises with Exemptions 1, 6, and 
7; however, it could arise with other exemptions. 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. If not used 
consistently, the pattern of 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 exempt information.


Sec.  286.14  Applying the FOIA exemptions.

    The 9 types of exempted records and procedures for applying them 
are as follows:
    (a) Exemption 1. Pursuant to 5 U.S.C. 552(b)(1), records properly 
and currently classified in the interest of national defense or foreign 
policy, as specifically authorized under the criteria established by an 
existing Executive Order establishing classification criteria and 
implemented by regulation, such as DoD 5200.1-R,

[[Page 71854]]

are exempt from disclosure. If the responsive information 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 in this situation. If 
the information qualifies as Exemption 1 information, there is no 
discretion regarding its release. The requester will be advised as to 
which sections of the Executive Order apply in determining the 
information classified. In addition, Exemption 1 shall be invoked when 
the following situations are apparent:
    (1) Individual items of unclassified information, when compiled, 
reveal additional associations or relationships that meet the standard 
for classification under an existing Executive Order and DoD 5200.1-R, 
and are not otherwise revealed in the individual items of information. 
This is known as the ``mosaic,'' or ``compilation'' approach.
    (2) The existence or nonexistence of a record would itself reveal 
classified information.
    (b) Exemption 2. Pursuant to 5 U.S.C. 552(b)(2), records related 
solely to the internal personnel rules and practices of the Department 
of Defense or any of the DoD Components are exempt from disclosure. 
This exemption has two profiles, high ``(b)(2)'' and low ``(b)(2).''
    (1) High ``(b)(2).'' Records qualifying under high ``(b)(2)'' are 
those containing or constituting rules, regulations, orders, manuals, 
directives, instructions, and unclassified portions of security 
classification guides, the release of which would allow circumvention 
of these rules, regulations, and policies, thereby substantially 
hindering the effective performance of the mission of the Department of 
Defense. Examples include:
    (i) Critical infrastructure information that reasonably could be 
expected to enable someone to succeed in causing the harms described in 
Homeland Security Presidential Directive 7.\2\ This exempt information 
could include agency vulnerability assessments or evaluations of items 
of critical infrastructure that are internal to the Government.
---------------------------------------------------------------------------

    \2\ Copies of Homeland Security Presidential Directive can be 
viewed at https://www.whitehouse.gov/news/releases/2003/12/20031217-
5.html.
---------------------------------------------------------------------------

    (ii) Those operating rules, guidelines, and manuals for DoD 
investigators, inspectors, auditors, or examiners that must be 
protected in order for the DoD Component to fulfill a legal 
requirement.
    (iii) 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.
    (iv) Computer software (Government-owned), the release of which 
would allow circumvention of a statute or of DoD 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) Low ``(b)(2).'' Records qualifying under low ``(b)(2)'' 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 for 
which processing the request would constitute an administrative burden. 
Examples include rules for personnel 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.
    (c) Exemption 3. Pursuant to 5 U.S.C. 552(b)(3), records concerning 
matters that another statute specifically exempts from disclosure are 
exempt under this exemption. This exemption allows for the withholding 
of information because its release is prohibited by another statute 
only if one of two disjunctive requirements is met: The statute 
requires that the information be withheld from the public in such a 
manner as to leave no discretion on the issue, or the statute 
establishes particular criteria for withholding or refers to particular 
types of matters to be withheld. The DFOIPO maintains on its Web site a 
list of Exemption 3 statutes used within the Department of Defense.
    (d) Exemption 4. Pursuant to 5 U.S.C. 552(b)(4), records containing 
trade secrets or commercial or financial information received by the 
DoD Component from a person or organization outside the Government are 
exempt from release. Information protected by this exemption must be 
trade secrets or commercial or financial records, the disclosure of 
which is likely to cause substantial harm to the competitive position 
of the submitter providing the information; impair the Government's 
ability to obtain necessary information in the future; or impair some 
other legitimate Government interest. If the information qualifies as 
Exemption 4 information, there is no discretion in its release.
    (1) Examples of information protected by Exemption 4 include:
    (i) Commercial or financial information received in confidence in 
connection with loans, bids, contracts, or proposals.
    (ii) Statistical data and commercial or financial information 
concerning contract performance, income, profits, losses, and 
expenditures.
    (iii) Personal statements given in the course of inspections, 
investigations, or audits.
    (iv) Financial data provided by private employers in connection 
with locality wage surveys that are used to fix and adjust pay 
schedules applicable to the prevailing wage rate of employees within 
the Department of Defense.
    (v) Scientific and manufacturing processes or developments 
concerning technical or scientific data or other information submitted 
with an application for a research grant, or with a report while 
research is in progress.
    (vi) Technical or scientific data developed by a contractor or 
subcontractor exclusively at private expense, or developed in part with 
Federal funds and in part at private expense. The contractor or 
subcontractor must retain legitimate proprietary interests in such data 
in accordance with 10 U.S.C. 2320-2321 and DoD Federal Acquisition 
Regulation Supplement, Chapter 2 of title 48 Code of Federal 
Regulations, Subpart 227.71-227.72. Technical data developed 
exclusively with Federal funds may be withheld under Exemption 3, if it 
meets the criteria of 10 U.S.C. 130 and 48 CFR. See Sec.  286.14.
    (vii) Copyrighted information under 17 U.S.C. 106.
    (viii) Proprietary information submitted strictly on a voluntary 
basis, absent any exercised authority prescribing criteria for 
submission. Examples of exercised authorities prescribing criteria for 
submission are statutes, Executive Orders, regulations, invitations for 
bids, requests for proposals, and contracts. Submission of information 
under these authorities is not voluntary.
    (2) When the Components receive FOIA requests for information that 
could be protected by this Exemption, submitter notice shall be 
provided. See Sec.  286.2.
    (e) Exemption 5. Pursuant to 5 U.S.C. 552(b)(5), inter-agency or 
intra-agency memorandums or letters containing information considered 
privileged in litigation are exempt from disclosure. The courts have 
construed ``privileged in litigation'' to mean information that is 
normally privileged in the civil discovery context (U.S. Department of

[[Page 71855]]

Justice (DOJ) Guide).\3\ Merely being an internal record is an 
insufficient basis for withholding under this exemption. Records that 
are not available routinely through the discovery process in the course 
of litigation with the agency because they are privileged should not be 
withheld under this exemption. The most common discovery privileges 
have been incorporated into Exemption 5. These privileges are the 
deliberative process, the attorney work product, and the attorney 
client privilege.
---------------------------------------------------------------------------

    \3\ Copies of U.S. Department of Justice (DOJ) Guide can be 
viewed at https://www.usdoj.gov/oip/.
---------------------------------------------------------------------------

    (1) Threshold. (i) A document must meet the threshold requirement 
of being an inter- or intra-agency document before the proper privilege 
can be identified in any given case. Because in many instances the 
Government must seek expert advice from external entities (or 
consultants), the courts developed an ``outside consultant'' test which 
helps in determining whether such an external entity qualifies as an 
``agency'' for the purposes of this exemption. If an entity meets the 
test, then documents it originates may be protected by Exemption 5.
    (ii) The Components should be careful to ensure that the outside 
consultant is not an interested party in the agency decision-making 
process. In 2001, the U.S. Supreme Court ruled that the threshold of 
Exemption 5 does not encompass communications between an outside 
consultant (in this case, several Indian tribes) and the Government 
(the U.S. Department of the Interior (DOI)). In this case, the outside 
consultants offered an expert opinion on an issue under consideration 
by DOI. The Supreme Court found that the tribes had an interest in the 
outcome of the DOI final decision; therefore, the DOI communications 
did not meet the threshold of Exemption 5. (DOJ FOIA Post Web site)
    (2) The privileges and types of information protected by Exemption 
5 include:
    (i) Deliberative process privilege. To withhold information under 
this privilege, the information must be both deliberative and 
predecisional, and part of the decision-making process. Deliberative 
means the information is internal advice, recommendations, or 
subjective evaluations, as contrasted with factual matters, that are 
reflected in records relied upon in the decision-making process of an 
agency, whether within or among agencies. Predecisional means the 
information was created before the decision maker reached a final 
decision. Factual information cannot be withheld from a requester under 
Exemption 5 except under one of two circumstances. The first 
circumstance is when the author of a document selects specific facts 
out of a larger group of facts and this very act is deliberative in 
nature. This information qualifies for withholding because its release 
would reveal the author's internal thought processes. The second 
circumstance exists when the factual information is so inextricably 
connected to the deliberative material that its disclosure would expose 
or cause harm to the agency's deliberations. A direction or order from 
a superior to a subordinate generally does not qualify as a 
deliberative process document if it constitutes policy guidance or a 
decision. However, correspondence from a superior to a subordinate may 
qualify if it constitutes a discussion of preliminary matters or a 
request for information or advice that would be relied upon in the 
decision-making process. An agency's final decision cannot be withheld 
under the privilege unless it becomes part of another, higher-level 
decision-making process (such as the agency budgetary process). The 
deliberative process privilege is temporal in nature because once the 
final agency decision is made the privilege cannot be used to withhold 
the final decision or any post-decisional documents related to the 
decision. Examples of deliberative process documents include:
    (A) Staff papers, to include after-action reports, inspection 
reports, lessons learned, and situation reports containing staff 
evaluations, advice, opinions, or suggestions.
    (B) Advice, suggestions, or evaluations prepared on behalf of the 
Department of Defense by individual consultants or by boards, 
committees, councils, groups, panels, conferences, commissions, task 
forces, or other similar groups that are formed for the purpose of 
obtaining advice and recommendations.
    (C) Evaluations by DoD Component personnel of contractors and their 
products.
    (D) Information of a speculative, tentative, or evaluative nature, 
or such matters as proposed plans to procure, lease, or otherwise 
acquire and dispose of materials, real estate, facilities or functions, 
when such information would provide undue or unfair competitive 
advantage to private personal interests or would impede legitimate 
Government functions.
    (E) Agency materials underlying the President's budget decisions as 
described in OMB Circular No. A-11. This includes planning, 
programming, and budgetary information that is involved in the defense 
planning and resource allocation process and outyear discretionary 
data.
    (ii) Attorney client privilege. This privilege protects 
confidential communications between an attorney and a client relating 
to legal matters for which the client has sought professional advice. 
The information the client supplies to the attorney and the advice the 
attorney gives to the client in return are protected under this 
privilege. Courts extend the ``confidential'' element of this privilege 
to lower echelon Government employees because it is recognized when the 
Government is seeking legal advice it usually involves more than one 
client and one attorney. This privilege cannot be used if 
confidentiallity is compromised.
    (iii) Attorney work product privilege. This privilege protects 
documents prepared by an attorney or at an attorney's direction in 
reasonable anticipation of litigation. Unlike the deliberative process 
privilege, under the attorney work product privilege all of the 
information can be withheld, including the facts. Similarly, this 
privilege has no time limit. This privilege can be used after the 
litigation is complete.
    (iv) Government trade secret privilege. This privilege protects 
trade secrets or other confidential research, development, or 
commercial information owned by the Government, where premature release 
is likely to affect the Government's negotiating position or other 
commercial interest.
    (v) Aircraft accident witness statements privilege. This privilege 
protects witness statements generated during military aircraft accident 
investigations.
    (vi) Presidential communications privilege. This privilege protects 
communications among the President and his advisors created within an 
agency to assist the President in the exercise of his nondelegable 
constitutional duties.
    (f) Exemption 6. Pursuant to 5 U.S.C. 552(b)(6), information in 
personnel and medical files, as well as similar in other files, that if 
disclosed to a requester other than the person whom the information is 
about, would result in a clearly unwarranted invasion of personal 
privacy is exempt from disclosure. If the information qualifies as 
Exemption 6 information, there is no discretion in its release.
    (1) When applying this exemption, an agency must balance the public 
interest in disclosure and the individual's privacy interest. When 
there is no public interest in the requested

[[Page 71856]]

information, the information can be withheld even if there is only a 
negligible privacy interest. The public interest to be considered when 
applying this exemption is whether the information sheds light on the 
operations or activities of the Federal government. The requester has 
the burden to show there is a public interest in disclosure.
    (2) A privacy interest may exist in personal information even 
though the information has been disclosed at some place and time. This 
is known as the concept of practical obscurity. For example, 
information that w