DoD Freedom of Information Act (FOIA) Program, 1192-1206 [2016-31686]
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specified period after the end of their
Peace Corps service and will not use
former Volunteers for certain purposes
or in certain positions. Information
regarding such agreements may be
obtained from the Office of the General
Counsel.
§ 305.7
Special circumstances.
(a) Couples. Two Applicants who are
married to one another or two
unmarried Applicants who are in a
same-sex or opposite-sex domestic
partnership or other committed
relationship are eligible to apply for
service as a couple. In the case of an
unmarried couple, each member of the
couple must provide a sworn statement,
in a form acceptable to the Peace Corps,
attesting to their domestic partnership
status or committed relationship (as the
case may be) and their request to be
considered for assignment as a couple.
In all cases, both members of the couple
must apply and qualify for assignment
at the same location.
(b) Serving with dependents and other
family members. In general, dependents
and other family members may not
accompany a Volunteer during service.
However, the Peace Corps may from
time to time make exceptions either on
a case-by-case basis or for particular
categories of Volunteers to the extent
permitted by Federal law.
(c) Military service. The Peace Corps
welcomes applications from veterans,
reservists, and active duty military
personnel who are interested in Peace
Corps service after completion of their
military service. After receiving an
invitation for Peace Corps service,
applicants with reserve obligations are
reminded to comply with all
requirements to notify their reserve
component that they will be unavailable
for drills and annual training because of
their Peace Corps service. Such
applicants are urged to obtain written
confirmation from their reserve
component that they have complied
with these requirements.
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§ 305.8
Background investigation.
Section 22 of the Peace Corps Act
requires that each Applicant be
investigated to ensure that enrollment of
the Applicant as a Volunteer is
consistent with the national interest.
The Peace Corps therefore obtains an
appropriate background investigation
for all Applicants who are invited to
serve in the Peace Corps. Information
revealed by the background
investigation may be grounds for
disqualification from Peace Corps
service. Under the Peace Corps Act, if a
background investigation regarding an
Applicant develops any data reflecting
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that the Applicant is of questionable
loyalty or is a questionable security risk,
the Peace Corps must refer the matter to
the Federal Bureau of Investigation for
a full field investigation. The results of
that full field investigation will be
furnished to the Peace Corps for
information and appropriate action.
Dated: December 13, 2016.
William Stoppel,
Acting Associate Director, Management.
[FR Doc. 2016–30442 Filed 1–4–17; 8:45 am]
BILLING CODE 6051–01–P
List of Subjects in 32 CFR Part 154
Classified information, Government
employees, Investigations, Security
measures.
PART 154—[REMOVED]
Accordingly, by the authority of 5
U.S.C. 301, 32 CFR part 154 is removed.
■
Dated: December 27, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
[FR Doc. 2016–31756 Filed 1–4–17; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Office of the Secretary
DEPARTMENT OF DEFENSE
32 CFR Part 154
Office of the Secretary
[Docket ID: DOD–2016–OS–0121]
32 CFR Part 286
RIN 0790–AJ55
[DOD–2007–OS–0086; 0790–AI24]
Department of Defense Personnel
Security Program Regulation
DoD Freedom of Information Act
(FOIA) Program
Office of the Under Secretary
for Intelligence, DoD.
ACTION: Final rule.
AGENCY:
This final rule removes DoD’s
regulation concerning personnel
security. The codified rule is outdated
and no longer accurate or applicable as
written. The rule does not impose
obligations on members of the public
that are not already imposed by statute.
It paraphrases and summarizes relevant
sources of law and does not
substantively deviate from them.
DATES: This rule is effective on January
5, 2017.
FOR FURTHER INFORMATION CONTACT:
Patricia Toppings at 571–372–0485.
SUPPLEMENTARY INFORMATION: DoD
internal guidance concerning personnel
security will continue to be published
in DoD Manual 5200.02. Once the
revision of DoD Manual 5200.02 is
signed, a copy will be made available at
https://www.dtic.mil/whs/directives/
corres/pub1.html.
It has been determined that
publication of this CFR part removal for
public comment is impracticable,
unnecessary, and contrary to public
interest since it is based on removing
DoD internal policies and procedures
that are publically available on the
Department’s issuance Web site.
The removal of this rule will be
reported in future status updates of
DoD’s retrospective review plan in
accordance with the requirements in
Executive Order 13563. DoD’s full plan
can be accessed at: https://
www.regulations.gov/
#!docketDetail;D=DOD-2011-OS-0036.
SUMMARY:
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Department of Defense.
Interim final rule.
AGENCY:
ACTION:
This part revises the
Department of Defense (DoD) Freedom
of Information Act (FOIA) regulation to
implement the FOIA and incorporate
the provisions of the OPEN Government
Act of 2007 and the FOIA Improvement
Act of 2016. This part promotes
uniformity in the Department of Defense
(DoD) FOIA Program. It takes
precedence over all DoD Component
issuances that supplement and
implement the DoD FOIA Program.
DATES: Effective date: This rule is
effective January 5, 2017. Comment
date: Comments must be received by
March 6, 2017.
FOR FURTHER INFORMATION CONTACT:
James Hogan, 571–372–0462.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Executive Summary
This rule revises 32 CFR part 286 to
implement section 552 of title 5, United
States Code (U.S.C.) and incorporate the
provisions of the OPEN Government Act
of 2007 and the FOIA Improvement Act
of 2016. This part promotes uniformity
in the DoD FOIA Program across the
entire Department.
The FOIA, 5 U.S.C. 552, requires
agencies to ‘‘promulgate regulations,
pursuant to notice and receipt of public
comment, specifying the schedule of
fees applicable to the processing of
requests [the FOIA] and establishing
procedures and guidelines for
determining when such fees should be
waived or reduced.’’ Additionally,
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according to the FOIA, an agency may,
in its regulation, designate those
components that can receive FOIA
requests, provide for the aggregation of
certain requests, and provide for
multitrack processing of requests.
Finally, the FOIA requires agencies to
‘‘promulgate regulations . . . providing
for expedited processing of requests for
records.’’
This rule implements changes to
conform to the requirements of the
following amendments to the FOIA: The
OPEN Government Act of 2007, Public
Law 110–175 and the FOIA
Improvement Act of 2016, Public Law
114–185. These changes include the
roles of the FOIA Public Liaison in
§ 286.4, § 286.5, § 286.8, § 286.9, and
§ 286.12; the roles of the FOIA
Requesters Service Centers in § 286.3,
§ 286.4, § 286.5, § 286.8, § 286.9,
§ 286.11, and § 286.12; the processing of
FOIA requests, § 286.7; the timing of
responses to FOIA requests, § 286.8; and
the fees schedules, Subpart E.
This regulatory action imposes
monetary costs to the DoD and the
public. The average cost to the DoD to
implement the FOIA for the past five
years is over $82,000,000. The benefit of
this regulatory action to the public is
that it promotes uniformity in the DoD
FOIA Program across the entire
Department and provides notice of
DoD’s FOIA policies and procedures to
the public.
The revisions to this rule will be
reported in future status updates as part
of DoD’s retrospective plan under
Executive Order 13563 completed in
August 2011. DoD’s full plan can be
accessed at: https://www.regulations.gov/
#!docketDetail;D=DOD-2011-OS-0036.
Justification for Interim Final Rule
The DoD is issuing this rule as an
interim final rule with a request for
comments to comply with a statutory
deadline in the FOIA Improvement Act
of 2016. Section 3 of the Act requires
agencies to review and issue regulations
in accordance with the amendments in
the Act no later than 180 days after the
enactment of the Act. The FOIA
Improvement Act of 2016 was signed by
the President on June 30, 2016;
therefore, agencies need to issue
regulations no later than the end of
December 2016.
Additionally, this rule implements
amendments made in the OPEN
Government Act of 2007. The DoD’s
issuance of its revised FOIA regulation
was previously delayed due to
reorganization, process changes, and recoordination requirements based on the
inclusion of the new legislative
amendments and Presidential guidance.
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Public Comments on Proposed Rule
The DoD published a proposed FOIA
rule for comment on September 3, 2014
(79 FR 52500–52524) that was not
promulgated as a final rule. Just after
that time, the Office of Information
Policy, Department of Justice (DOJ)
published its Guidance for Agency
FOIA Regulations along with a
recommended template to be used by
agencies in the development of their
regulations. Accordingly, the DoD made
the decision to revise its regulation at 32
CFR part 286 so that, to the practical
extent possible, it aligned with the
template recommended by DOJ. The
sections of the previous proposed rule
that are not included in this interim rule
will be in a separate internal manual,
DoD Manual 5400.07. This manual
contains DoD FOIA processing guidance
that is internal to the department and is
not legally required to be in this rule.
During the previous public comment
period on the proposed rule, the DoD
received a number of comments that are
related to this interim rule and our
incorporation of the OPEN Government
Act of 2007 amendments. Those
comments, and the Department’s
adjudication of those comments, follow.
Comment: The previous proposed
rule contained the following definition
of consultation: The ‘‘process whereby a
federal agency transfers a FOIA
responsive document to another federal
agency or non-government entity, in
certain situations, to obtain
recommendations on the releasability of
the document.’’ One commenter states
that this definition fails to set
parameters for determining when
consultation is appropriate.
This commenter ‘‘believes that a
‘consultation’ should occur only when
another agency, agency component, or
non-government entity has a ‘substantial
interest’ in any of the responsive records
or portions thereof. While FOIA is silent
as to the meaning of the term
‘substantial interest,’ the Office of
Information Policy (‘OIP’) suggests a
‘substantial interest’ exists when records
either ‘originate[] with another agency’
or the records contain ‘information that
is of interest to another agency or
component.’ For its part, the
Department of Justice’s FOIA
regulations provide that ‘consultation’
(or ‘referral’) is appropriate when
another agency originated the record or,
more generally, is ‘better able to
determine whether the record is exempt
from disclosure.’ ’’
This commenter further ‘‘proposes
that DoD redefine ‘consultation’
accordingly: Consultation. The process
whereby a federal agency transfers a
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FOIA responsive record to another
federal agency, agency component, or
non-government entity, when such
party has a substantial interest in the
responsive record, in order to obtain
recommendations on the releasability of
the record. After review, the record is
returned to the original agency for
response to the FOIA requester or
further review.’’
This commenter also asks the DoD to
introduce a definition of ‘‘substantial
interest’’ as follows: ‘‘Substantial
interest. Another agency, agency
component, or nongovernment entity
possesses a ‘substantial interest’ in a
FOIA responsive record, such that
consultation may be appropriate,
whenever (1) the responsive record
originates with that same agency,
agency component, or non-government
entity, or (2) when the agency, agency
component, or non-government entity is
better positioned to judge the proper
application of the FOIA exemptions,
given the circumstances of the request
or its familiarity with the facts necessary
to judge the proper withholding of
exempt material.’’
Response: Our interim rule adopts the
definition of ‘‘consultation’’ from the
DOJ FOIA rule template, and we believe
this is the appropriate definition. It does
not contain the phrase ‘‘substantial
interest.’’ Furthermore, we are not
adding a definition of ‘‘substantial
interest.’’ The proposed definition is too
narrow and unnecessarily restricts the
discretionary decision-making authority
of DoD officials when determining what
other agencies or DoD Components
should review a requested document
prior to release under the FOIA.
Comment: One commenter
appreciates our definition because it
tracks the new statutory definition
codified by the OPEN Government Act
of 2007 and explicitly abandons the
outdated ‘‘organized and operated’’
standard proposed in guidance by the
Office of Management and Budget in
1987. They go on to say that the
proposed definition could be improved
by explaining the manner in which
‘‘alternative media shall be considered
to be news-media entities.’’
Accordingly, they requested we amend
the definition of ‘‘representative of the
news media’’ by incorporating the
entirety of the statutory standard or by
adding some short indication of the
application of the fee category to nontraditional news media forms and
requesters. They believe that the
proposed definition itself should refer to
the important role of technology vis-avis the news media requester fee
category, potentially utilizing as a
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starting point the examples provided in
the statute.
Response: We appreciate the
comment concerning the definition of
‘‘representative of the news media’’.
With our new interim rule, we are now
adopting the definition as published in
the DOJ FOIA regulation template. We
believe that this definition accurately
reflects the Act.
Comment: Another commenter claims
our proposed definition is deeply
flawed because it states that news is
information that is about current events
or that would be of current interest to
the public.
They go on to say that ‘‘news can and
frequently does concern historic past
events. For example, there are any
number of news stories that unveil the
truth about important events of the past,
perhaps because they were classified or
restricted or secret in some manner.
There are reporters who focus on
important news stories about previously
unknown aspects of World War II or
Korea or Vietnam or the Persian Gulf
Conflicts. There is important reporting
on atomic veterans, Agent Orange
exposure, chemical weapons testing,
and so on. Why would important
reporting on those past events not be
considered news?’’
‘‘Limiting the definition to current
events means that the government
agency would be taking on the role of
editor to decide what is important, and
suggests that any news coverage about
past events is not newsworthy. This
definition is particularly disturbing
because many of the important news
stories involving DoD records concern
past events and are precisely the type of
news reporting that should be
recognized as news for purposes of the
Freedom of Information Act.’’
‘‘I understand that the definition
could be interpreted to stretch to cover
past events. But unless it is stated
explicitly, there are components which
may misinterpret the definition, and
adhere to a narrower definition of
news.’’
‘‘Therefore, I propose that the
definition be amended to include the
sentence: ‘This may include historic
past events.’ ’’
Response: Because we believe the
phrase ‘‘would be of current interest to
the public’’ adequately addresses the
commenter’s concern, we did not accept
this recommendation. Furthermore, this
section of the definition of
‘‘representative of the news media’’
mirrors the Act and the DOJ FOIA
regulation template word for word.
Comment: One commenter mentions
that the list of tasks for the FOIA Public
Liaison omits two important tasks for
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the FOIA Public Liaison. ‘‘First, there is
explaining the status of an overdue
request. Second, the Public Liaison can
help to coordinate opportunities for a
requester to clarify or narrow the scope
of a request. This clarification or
narrowing may require some two way
discussion for the requester to
understand how they may best clarify or
narrow the request, including a
discussion of specific impediments to
the processing of the request.’’
Response: We rejected this
recommendation because it is our
intention here to list only the statutory
duties of the FOIA Public Liaison. We
agree this list is not all-inclusive, and
accordingly there could be a number
other duties that FOIA Public Liaisons
will perform. However, these other
duties, to include those that the
commenter mentions, are included
within the scope of the statutory duties
of the FOIA Public Liaison.
Comment: One commenter
recommends a change to the section
concerning Confidential Commercial
Information. Specifically, the DoD
mirrors the language of Executive Order
12600, which says that when providing
the submitter of commercial information
the opportunity to provide comment on
the agency’s release of its information
under the FOIA, DoD Components
should provide the submitter with a
reasonable amount of time to comment.
The commenter recommends, instead,
that the submitter be given ten business
days to respond to the notice with
reasons for withholding disclosure. If
the submitter fails to respond within the
allotted ten days, the Agency must
conclude that the submitter has no
objection to disclosure of the requested
information.
Response: We appreciate this
comment, and agree that ten business
days is a very reasonable time frame.
However, because of the wide diversity
of acquisition environments within the
Department of Defense, it may be the
case a longer period of time would be
more reasonable. The DoD Components
have very different acquisition
environments; we have contracts
concerning, for example, uniforms,
office supplies, landscaping, complex
information technology systems,
satellites, healthcare, construction, and
food. Accordingly, we believe that the
individual components are best situated
to determine the reasonable time for
submitter response for their unique
situations.
Comment: Once commenter
recommends that upon submission of
confidential information by the
submitter to the DoD, the DoD should
require the submitter to designate with
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good-faith effort any portions of the
submission the submitter considers to
be exempt under Exemption 4. A goodfaith effort designation can be useful
because it allows the DoD to work with
information submitted beforehand that
would help in its determination on
whether to disclose information
submitted by the submitter. They
further suggest that the submitter’s
designation expire ten years after the
date of submission unless the submitter
requests, and provides justification for,
a longer designation period. They state
that the proposed section should be
added as follows: ‘‘Designation of
confidential business information. In
the event a FOIA request is made for
confidential business information
previously submitted to the Government
by a commercial entity or on behalf of
it (referred to as a ‘submitter’), the
regulations in this section apply. When
submitting confidential business
information, the submitter must use a
good-faith effort to designate, by use of
appropriate markings, at the time of
submission or at a reasonable time
thereafter (generally, within 30 days),
any portions of the submitter’s
submission the submitter considers to
be exempt from disclosure under FOIA
Exemption 4, 5 U.S.C. 552(b)(4). The
submitter’s designation will expire ten
years after the date of submission unless
the submitter requests, and provides
justification for, a longer designation
period.’’
Response: Some DoD Components
have adopted a similar practice, and we
believe that given the wide variety of
DoD contracts (as described in the
previous response), this procedure is
best left with the components to
determine whether it’s appropriate for
them. Additionally, this is actually an
acquisition and not a FOIA policy
recommendation; therefore, this rule is
not the appropriate place for the policy.
Furthermore, this policy (of proactively
determining the confidential business
information without a FOIA request)
suffers from a defect. When a FOIA
request is received for this type of
information, the FOIA provides the
‘‘push’’ to the Agency to release the
information, and Executive Order 12600
provides the submitter the opportunity
to protect it. With the FOIA, the Agency
has the legal authority to release
information over the objections of the
submitter, and with the Executive Order
the submitter can prevent such a release
under the Administrative Procedures
Act. However, in the process
recommended by this commenter, if the
submitter asks the Agency to protect
information that the Agency clearly
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believes is not protectable under
Exemption 4, it has no recourse to
persuade or convince the submitter to
made a more reasonable determination.
The inevitable, yet unintended,
consequence would be less contract
information being released to the public;
in effect, less transparency.
Comment: A commenter discussed
our proposed rule’s reference to the
FOIA exclusions, 5 U.S.C. 552(c)(1)–(3).
They believe that this allows the DoD to
make a misrepresentation regarding the
actual existence of records to the
requester. Specifically, they objected to
the following wording: Because of the
possibility of the existence of excluded
records, DoD law enforcement
components will respond to all FOIA
requests when no records are located or
when located records fall within an
exclusion by stating that no records
responsive to the FOIA were found.
This commenter believes ‘‘the
justification the proposed regulation
provides for misrepresentation—‘the
possibility of the existence of excluded
records’—is insufficient. The FOIA
contemplates a need for nondisclosure
in cases of records the release of which
could threaten the efficacy of law
enforcement, but in no way does it
countenance lying to requesters. Law
enforcement may reasonably demand
flexibility in the principles of open
government that the FOIA seeks to
advance, but it cannot require complete
abdication of those principles. It is also
unclear from the proposed regulations
whether the DoD would believe itself
authorized to make misrepresentations
to Legislatures as to the existence of
(b)(7) records.’’
This commenter recommends instead
that the agency follow the approach set
out in the Department of Justice’s
guidelines regarding exclusions. The
agency should have internal
accountability mechanisms to ensure
that exclusions are not overused. It
should also include language in all
FOIA responses informing the requester
of the existence of exclusions and
should also post information about
exclusions on its public Web site.
Response: The procedures that we
had in the proposed rule were
appropriate and in accordance with the
Act and DOJ procedural guidance.
However, we have deleted much of the
procedural guidance for exclusions and
now our section on this topic mirrors
the DOJ FOIA regulation template.
Comment: One commenter
appreciated the requirement that a FOIA
Requester Service Center must provide
a requester with an estimated date of
completion for their FOIA request when
the requester enquires about the status
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of a request. However, the commenter
also indicated that there is not a good
accountability measure listed to ensure
that dates given are given in good faith.
Response: We are not sure what the
commenter means by ‘‘accountability
measure,’’ or how it would apply to this
rule. Therefore, we did not adopt their
recommendation.
Comment: One commenter
recommend that in the section
concerning expedited processing, we
should provide examples of compelling
need, imminent loss of due process
rights, and humanitarian need.
Response: We appreciate this
comment; however, for the sake of
brevity, we are not including examples.
Furthermore, in this case the use of
examples risks the possibility of adding
confusion to the understanding of the
issue.
Comment: One commenter is
concerned that we were separating the
definition of compelling need from the
main body of the regulation.
Response: We appreciate this
comment. Our previous proposed rule
had a definitions section separate from
the body of the rule. Now that we are
publishing our rule according to the DOJ
FOIA regulation template, the definition
is located within the body of the rule.
Comment: In the fees section of our
proposed rule, and in our current rule,
we have a ‘‘business as usual approach’’
concerning the costs associated with the
processing of electronic records.
Specifically, the proposed rule said that
a ‘‘business as usual approach exists
when the DoD Component has the
capability to process a FOIA request for
electronic records without a significant
expenditure of monetary or personnel
resources. DoD Components are not
required to conduct a search that does
not meet this business as usual
criterion.’’ A commenter mentions that
this has no foundation in law, and
obfuscates the true reasonableness
standard for electronic searches set out
in 5 U.S.C. 552(a)(3)(C). They propose
that it should be eliminated.
Response: We agree with the
commenter and have removed the
‘‘business as usual’’ criterion.
Comment: One commenter is
concerned about the absence of
‘‘substantial interest’’ in the discussion
of consultations with and referrals to
other agencies, agency components, or
non-government entities. They mention
the proposed rule contains varying
references to ‘‘substantial interest,’’
‘‘equity interest,’’ and ‘‘interest or
equity.’’ This commenter recommends
that DoD standardize its language by
using ‘‘substantial interest’’ to avoid
confusion. It also should provide a clear
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statement that consultation ought never
to occur with an entity that does not
possess a substantial interest in
responsive records.
Response: Because we have adopted
the DOJ FOIA regulation template, we
have standardized the use of the word
‘‘interest,’’ it is not further modified by
‘‘substantial’’ or ‘‘equity’’.
Comment: One commenter
recommends that DoD revise the
practice of not advising FOIA requesters
that a consultative process has been
undertaken ‘‘unless information is
withheld by the consulted agency.’’ This
commenter believes that ‘‘transparency
and an open government—hallmarks of
FOIA—mandate that agencies provide
requesters with this information.’’
Response: Because we have adopted
the DOJ FOIA regulation template,
which does not include this practice,
the interim final rule also does not
include guidance to not inform FOIA
requesters of consultations.
Comment: Concerning the procedure
of advising FOIA requesters of their
appeal rights, one commenter states that
the time limits on submission of
administrative appeals should recognize
the Justice Department’s statements on
the possibility of lengthy delays on mail
reaching government agencies due to
security screening. They suggest that the
postmark of the letter can be used to
satisfy the appeal deadline for an
administrative appeal, as is permitted in
most legal situations.
Response: With our adoption of the
DOJ FOIA regulation template, we have
now adopted this procedure.
Comment: One commenter mentions
the language in our proposed rule which
concerns commercial requesters. It
indicates that a ‘‘representative of the
news media could make a FOIA request
that is for commercial use (e.g., a
magazine publisher asking for duty
addresses of DoD personnel to solicit
them to buy subscriptions to the
magazine).’’ The commenter notes that
while it is theoretically possible that if
a FOIA request could be submitted to
DoD by a member of the news media for
such a purpose, such a scenario is
unlikely and, at the very least,
uncommon. This commenter further
contents that a FOIA request is
submitted by a member of the news
media, there should be a strong
presumption that the requestor is
entitled to classification as a
‘‘representative of the news media’’ for
fee purposes.
Response: We agree, and with our
adoption of the DOJ FOIA regulation
template, this subsection was deleted.
Comment: One commenter mentions
that our proposed subsection on fees
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discusses examples of news media
entities such as publishers of
periodicals who make their products
available for purchase or subscription
by the general public. This commenter
believes that this requirement fails to
include the large variety and number of
online news organizations, many of
which provide their products free of
charge to internet readers. Therefore,
they propose that the subsection should
be adjusted to recognize this reality.
They ask that we ‘‘remove the
requirement that a publisher of
periodicals must make their products
available for purchase or subscription,
as that requirement unnecessarily
impedes the qualification of many
legitimate news media entities at the
present time.’’
Response: Because we are adopting
the DOJ FOIA regulation template, this
phrase is no longer in our regulation.
Comment: Another commenter had a
similar issue with this section. ‘‘[The]
FOIA states that examples of newsmedia entities include ‘publishers of
periodicals . . . who make their
products available for purchase by or
subscription by or free distribution to
the general public.’ The Proposed Rule,
on the other hand, inexplicably
truncates the definition to exclude
publishers that make their publications
available for ‘free distribution to the
general public.’ There are countless
media entities that provide their
services to the public for free or through
an advertisement-based model,
including the overwhelming majority of
broadcast and online news outlets. ABC
News, National Public Radio, CBS
News, Slate, NBC News, Politico, Pro
Publica, and PBS are just a handful of
examples of organizations that provide
news to the public for free. It would be
absurd for the DoD not to recognize
these and other news organizations that
provide free or advertising-supported
journalism as representatives of the
news media.’’
‘‘Furthermore, the authority under
which the DoD is empowered to
promulgate regulations regarding its
implementation of FOIA, 5 U.S.C.
552(a)(4)(A)(i), states that [s]uch agency
regulations shall provide that . . .
[e]xamples of news-media entities are
. . . publishers of periodicals (but only
if such entities qualify as disseminators
of ‘news’) who make their products
available for purchase by or
subscription by or free distribution to
the general public.’’
‘‘While the statute says such examples
are ‘not all-inclusive,’ the DoD cannot
promulgate regulations that are less
inclusive than what Congress has
indicated. As the Supreme Court has
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held with regard to an agency’s
construction of a statute which it
administers, ‘[i]f the intent of Congress
is clear, that is the end of the matter; for
the court, as well as the agency, must
give effect to the unambiguously
expressed intent of Congress.’ Therefore,
[we urge] the DoD to expand its
definition of news-media entities to
include publishers who make their
products available for free to the public,
in accordance with the express direction
of Congress in the 2007 OPEN
Government Act.’’
Response: Our adoption of the DOJ
FOIA regulation template revises this
subsection to satisfactorily adopt this
commenter’s recommendation.
Comment: One commenter requests
that DoD elaborate on the meaning of
‘‘alternative media.’’ Specifically, they
state: ‘‘While DoD has followed FOIA’s
instruction to consider evolving
‘methods of news delivery’ and
‘alternative media’ formats when
defining a news media entity, the
proposed section would benefit from
some examples that could provide
guidance to FOIA officers when
considering fee category requests.
Specifically, [we are] concerned that
nascent news media organizations,
which have yet to demonstrate a large
readership or a history of reporting and
dissemination, could be excluded.’’
‘‘Ensuring an expanded definition of
‘alternative media’ is entirely consistent
with judicial precedent. For example,
the U.S. Court of Appeals for the District
of Columbia Circuit has noted that
FOIA’s legislative history demonstrates
‘it is critical that the phrase
‘representative of the news media’ be
broadly interpreted if the act is to work
as expected. . . . In fact, any person or
organization which regularly publishes
or disseminates information to the
public . . . should qualify . . . as a
‘representative of the news media.’ The
U.S. District Court for the District of
Columbia has similarly construed DoD’s
current fee category regulation, 32 CFR
286.28(e)(7)(i), to include, for example,
regular publishers of periodicals, even
when those periodicals are simply
disseminated by email or posted on a
frequently visited Web site.’’
‘‘The legislative history of FOIA also
suggests the need for improvement in
the treatment of ‘alternative media.’
Senator Patrick Leahy, co-sponsor of the
OPEN Government Act, stated that the
changes to the definition of
‘representative of the news media’
would ensur[e] that anyone who gathers
information to inform the public,
including . . . bloggers, may seek a fee
waiver[.]’ He also stated that the new
definition covered ‘Internet blogs and
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other Web-based forms of media . . .
free newspapers and individuals
performing a media function who do not
necessarily have a prior history of
publication.’ Co-sponsor Senator John
Cornyn affirmed Senator Leahy’s view
that the new definition ‘grants the same
privileged FOIA fee status currently
enjoyed by traditional media outlets to
bloggers and others who publish reports
on the Internet.’ ’’
‘‘Accordingly, [we request] that DoD
expand the proposed definition of
‘representative of the news media’ by
incorporating the entirety of the
statutory standard and by adding some
short indication of the application of fee
category to non-traditional news media
forms and requesters.’’
Response: We understand and
appreciate this recommendation;
however, we are not revising this
subsection as requested. We do not
believe that an expanded definition of
‘‘alternative media’’ is necessary. Any
such elaboration or definition risks
excluding some types of alternative
media. Additionally, the DOJ FOIA
regulation template, which we have
adopted, does not contain any such
expanded definition.
Comment: This same commenter
requests ‘‘that DoD provide further
explanation of how it will determine
whether potential news media
requesters possess the editorial skill to
use responsive records to create a
‘distinct work’ and the sufficient intent
to ‘distribute[] that work to an
audience.’ News media requesters often
prove this skill and intent with varying
levels of specificity. DoD should clarify
the standard of proof it will apply to
these requests. Moreover, it should
clarify the extent to which information
about the requester that is not contained
in the request will be used to
determinate the veracity of a requester’s
claims. For example, DoD should
explain whether it is appropriate to
examine the history of an organization,
its past practices with regard to FOIA
records, and the detail of its planned
use of responsive records, subject to
editorial considerations and the content
of the production. [We recommend] that
DoD permit after-the-fact factual
considerations, but that it remind FOIA
offices that news media requester status
is not static, so as to accommodate
nascent news media persons or entities
and others transitioning into news
reporting.’’
Response: We appreciate this
recommendation; however, we do not
believe that this rule is the appropriate
place for a further explanation of how
we should determine whether a
potential news media requester meets
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the statutory standard or not. DOJ has
not provided guidance in this area, and
if they do we will pass it to the DoD
Components.
Comment: This commenter also
points out that the proposed rule states,
in part, that ‘‘[f]reelance journalists may
be regarded as working for a news
organization. . . .’’ This commenter
contends that ‘‘this language appears to
largely mirror the language in the 2007
OPEN Government Act, which was
codified at 5 U.S.C. 552(a)(4)(A)(iii).
However, the language of the Proposed
Rule changes the imperative ‘shall’ of
FOIA to a permissive ‘may.’ As stated
above, the authority under which the
DoD is empowered to promulgate
regulations regarding its
implementation of FOIA, 5 U.S.C.
552(a)(4)(A)(i), states that ‘[s]uch agency
regulations shall provide that . . . [a]
freelance journalist shall be regarded as
working for a news-media entity. . . .’
The DOD has no power to modify a
clear and essential term contained in a
statute through the regulatory process.
The Proposed Rule must be changed
such that it properly reflects the will of
Congress.’’
Response: The DOJ FOIA regulation
template, which we adopted, uses the
term ‘‘will’’ which we believe has the
same imperative force as ‘‘shall’’.
Comment: This commenter also is
concerned that a subsection of the
proposed rule may be interpreted too
narrowly by FOIA officers. The
proposed rule states that ‘‘[a] person or
entity that merely disseminates
documents received pursuant to the
FOIA to an audience would not qualify
as a representative of the news media
because, in this case, the person or
entity is not using editorial skills to turn
raw materials into a distinct work.’’ The
commenter contends ‘‘While it is true
that FOIA defines ‘a representative of
the news media’ as a person or entity
that gathers information and uses its
editorial skills to turn such information
into a distinct work for distribution, the
Proposed Rule would benefit from
clarifying language instructing FOIA
officers that it should be interpreted
liberally in favor of the requestor. A
person or entity that meets the
definition of ‘a representative of the
news media’ may, in certain
circumstances, disseminate documents
received pursuant to a FOIA request in
full, oftentimes publishing such
documents online alongside or as a
supplement to a news article or other
commentary. This practice is beneficial,
and should not lead to the denial of
media fee status.’’
Response: We believe that this
paragraph does not contradict the FOIA;
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it is very clear that the Act requires a
representative of the news media to use
‘‘editorial skills.’’ However, since this
sentence is not in the DOJ FOIA
regulation template, we do not have it
in our interim rule.
Regulatory Procedures
Executive Order 12866, ‘‘Regulatory
Planning and Review’’ and Executive
Order 13563, ‘‘Improving Regulation
and Regulatory Review’’
Executive Orders 13563 and 12866
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distribute impacts, and equity).
Executive Order 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This interim final rule has
been designated a ‘‘significant
regulatory action,’’ although not
economically significant, under section
3(f) of Executive Order 12866.
Accordingly, the rule has been reviewed
by the Office of Management and
Budget (OMB) under the requirements
of these Executive Orders.
Public Law 104–4, ‘‘Unfunded Mandates
Reform Act’’ (2 U.S.C. Ch. 25)
This interim final rule is not subject
to the Unfunded Mandates Reform Act
because it does not contain a federal
mandate that may result in the
expenditure by state, local, and tribal
governments, in the aggregate, or by the
private sector, of $100M or more in any
one year.
Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. Ch. 6)
It has been certified that this interim
final rule is not subject to the Regulatory
Flexibility Act because it does not have
a significant economic impact on a
substantial number of small entities.
The rule implements the procedures for
processing FOIA requests within the
Department of Defense, which do not
create such an impact.
Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Ch. 35)
This interim final rule does not
impose reporting or recordkeeping
requirements under the Paperwork
Reduction Act of 1995.
Executive Order 13132, ‘‘Federalism’’
Executive Order 13132 establishes
certain requirements that an agency
must meet when it promulgates a rule
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that imposes substantial direct
requirement costs on state and local
governments, preempts state law, or
otherwise has federalism implications.
This interim final rule will not have a
substantial effect on state and local
governments, or otherwise have
federalism implications.
List of Subjects in 32 CFR Part 286
Freedom of Information Act.
■ Accordingly, 32 CFR part 286 is
revised to read as follows:
Subpart A—General Provisions
Sec.
286.1 Purpose.
286.2 Applicability.
Subpart B—FOIA Requests
286.3 General information.
286.4 FOIA Public Liaisons and the Office
of Government Information Services.
286.5 Description of records sought.
286.6 Preservation of records.
Subpart C—FOIA Request Processing
286.7 General provisions.
286.8 Timing of responses to requests.
286.9 Responses to requests.
286.10 Confidential Commercial
Information.
Subpart D—Appeals
286.11 Processing of appeals.
Subpart E—Fees
286.12 Schedule of fees.
286.13 Fees for technical data.
Authority: 5 U.S.C. 552.
PART 286—DOD FREEDOM OF
INFORMATION ACT (FOIA) PROGRAM
Subpart A—General Provisions
§ 286.1
Purpose.
This part contains the rules that the
public follows in requesting information
from the Department of Defense (DoD)
in accordance with the FOIA, as
amended, 5 U.S.C. 552, and how those
requests will be processed by the DoD.
These rules should be read in
conjunction with the text of the FOIA
and the Uniform Freedom of
Information Fee Schedule and
Guidelines published by the Office of
Management and Budget (‘‘OMB
Guidelines’’). Requests made by
individuals for records about
themselves under the Privacy Act of
1974, as amended, 5 U.S.C. 552a, are
processed in accordance with 32 Code
of Federal Regulations (CFR) part 310.
Additionally, the Directorate for
Oversight and Compliance maintains a
DoD FOIA Handbook for the public to
use in obtaining information from the
DoD. This handbook contains
information about specific procedures
particular to the DoD with respect to the
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public requesting DoD records. This
handbook includes descriptions of DoD
Components and the types of records
maintained by different DoD
Components. It is available at https://
open.defense.gov/Transparency/FOIA/
FOIAHandbook.aspx.
§ 286.2
Applicability.
This part applies to the Office of the
Secretary of Defense (OSD), the Military
Departments, the Office of the Chairman
of the Joint Chiefs of Staff and the Joint
Staff, the Combatant Commands, the
Office of the Inspector General of the
Department of Defense, the Defense
Agencies, the DoD Field Activities, and
all other organizational entities within
the DoD (referred to collectively in this
part as the ‘‘DoD Components’’).
Subpart B—FOIA Requests
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§ 286.3
General information.
(a) The DoD has a decentralized
system for responding to FOIA requests,
with each DoD Component designating
at least one FOIA Requester Service
Center (RSC) to process records from
that component. All DoD RSCs have the
capability to receive requests
electronically either through email or a
web portal. To make a request for
records, a requester should write
directly to the DoD Component that
maintains the records being sought. A
request will receive the quickest
possible response if it is addressed to
the RSC of the DoD Component that
maintains the records sought. Addresses
and contact information for the RSCs are
available at https://www.foia.gov/reportmakerequest.html. This Web site has the
contact information for the following
DoD Components: The OSD and the
Office of the Chairman of the Joint
Chiefs of Staff and the Joint Staff,
Department of the Army, Department of
the Navy, Department of the Air Force,
Armed Services Board of Contract
Appeals, Defense Commissary Agency,
Defense Contract Audit Agency, Defense
Contract Management Agency, Defense
Finance and Accounting Service,
Defense Health Agency, Defense
Information Systems Agency, Defense
Intelligence Agency, Defense Logistics
Agency, Defense Security Service,
Defense Technical Information Center,
Defense Threat Reduction Agency, Joint
Personnel Recovery Agency, DoD
Education Activity, National GeospatialIntelligence Agency, National Guard
Bureau, National Reconnaissance Office,
National Security Agency/Central
Security Service, Office of the Inspector
General of the Department of Defense,
United States Africa Command, United
States Central Command, United States
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European Command, United States
Northern Command, United States
Pacific Command, United States Special
Operations Command, United States
Strategic Command, and United States
Transportation Command.
(b) The OSD/Joint Staff FOIA RSC
also processes FOIA requests for the
Criminal Investigation Task Force,
Defense Acquisition University, Defense
Advanced Research Projects Agency,
Defense Equal Opportunity Management
Institute, Defense Legal Services
Agency, Defense Microelectronics
Activity, Defense Media Activity,
Defense POW/MIA Accounting Agency,
Defense Security Cooperation Agency,
Defense Technology Security
Administration, Defense Travel
Management Office, DoD Human
Resources Activity, DoD Test Resource
Management Center, Joint ImprovisedThreat Defeat Agency, Missile Defense
Agency, National Defense University,
Office of Economic Adjustment,
Pentagon Force Protection Agency,
Uniform Services University of the
Health Sciences, Washington
Headquarters Services and White House
Military Office.
(c) A requester who is making a
request for records about himself or
herself, regardless of whether the
records are in a Privacy Act system of
records, must comply with the
verification of identity requirements as
determined by the DoD Component in
accordance with 32 CFR part 310.
§ 286.4 FOIA Public Liaisons and the
Office of Government Information Services.
(a) Each DoD Component has at least
one FOIA Public Liaison. FOIA Public
Liaisons are responsible for working
with requesters that have any concerns
about the service received from a FOIA
RSC, reducing delays in the processing
of FOIA requests, increasing
transparency and understanding of the
status of requests, and assisting in the
resolution of disputes. Contact
information for DoD Component FOIA
Public Liaisons is available at https://
www.foia.gov/report-makerequest.html.
(b) Engaging in dispute resolution
services provided by OGIS. Mediation is
a voluntary process. If a requester seeks
dispute resolution services from the
Office of Government Information
services (OGIS), the DoD will actively
engage as a partner to the process in an
attempt to resolve the dispute.
§ 286.5
Description of records sought.
(a) Requesters must reasonably
describe the records sought and provide
sufficient detail to enable personnel to
locate those records with a reasonable
amount of effort. To the extent possible,
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requesters should include specific
information that may assist personnel in
identifying the requested records, such
as the date, title or name, author,
recipient, subject matter of the record,
case number, file designation, or
reference number. Before submitting
their requests, requesters may contact
the DoD Component’s FOIA RSC or
FOIA Public Liaison to discuss the
records they are seeking and to receive
assistance in describing the records. If
after receiving a request the DoD
Component determines that it does not
reasonably describe the records sought,
the DoD Component shall inform the
requester what additional information is
needed or why the request is otherwise
insufficient. Requesters who are
attempting to reformulate or modify
such a request may discuss their request
with the DoD Component’s FOIA
contact or FOIA Public Liaison.
Requesters are encouraged to make
every effort to reasonably describe the
requested records in order to avoid any
delays in the processing of their
requests.
(b) Requesters may specify the
preferred form or format (including
electronic formats) for the requested
records. DoD Components will
accommodate the request if the record is
readily reproducible in that form or
format.
(c) Requesters must provide contact
information, such as a telephone
number, email address, and/or mailing
address, to assist the DoD Component in
communicating and providing released
records.
§ 286.6
Preservation of records.
Each DoD Component shall preserve
all correspondence pertaining to the
requests that it receives under this part,
as well as copies of all requested
records, until disposition or destruction
is authorized pursuant to title 44 of the
United States Code or the General
Records Schedule 4.2 of the National
Archives and Records Administration
(NARA). Records shall not be disposed
of or destroyed while they are the
subject of a pending request, appeal, or
lawsuit under the FOIA.
Subpart C—FOIA Request Processing
§ 286.7
General provisions.
(a) Responsibilities. The DoD
Component receiving a FOIA request for
a record that it maintains is responsible
for making a determination on the
request and responding to the FOIA
requester. In determining which records
are responsive to a request, a DoD
Component ordinarily will include only
records in its possession as of the date
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that it begins its search. If any other date
is used, the DoD Component shall
inform the requester of that date. A
record that is excluded from the
requirements of the FOIA pursuant to 5
U.S.C. 552(c), is not considered
responsive to a request.
(b) Authority to deny requests. DoD
Components will designate one or more
Initial Denial Authorities (IDA) with the
authority to deny any requests for
records that are maintained by that
agency.
(c) Re-routing of misdirected requests.
DoD Components receiving a
misdirected FOIA request for records
clearly originating with another DoD
Component (e.g. the Air Force receives
a FOIA request for a Navy contract) will
route the FOIA request to the
appropriate DoD Component and inform
this DoD Component of the date the
FOIA request was initially received.
Additionally, it will advise the FOIA
requester of the routing of the request.
This routing requirement only applies to
those FOIA requests directed to a DoD
Component that seek documents for
which the DoD is responsible. If it is
known that responsibility for the
requested records rests with a non-DoD
Federal agency (e.g., Department of
State), then the DoD Component need
only advise the FOIA requester to
submit the FOIA request to the proper
Federal agency. DoD Components will
not route misdirected FOIA requests to
a Defense Criminal Investigation
Organization or Intelligence Community
component without first contacting the
other component or agency for
guidance.
(d) Consultation, referral, and
coordination. When reviewing records
located in response to a request, the
DoD Component may determine that
another DoD Component or Federal
agency also should determine whether
the record is exempt from disclosure
under the FOIA. As to any such record,
the DoD Component shall proceed in
one of the following ways:
(1) Consultation. When records
originating with a DoD Component that
is initially processing a request contain
information of interest to another DoD
Component or other Federal agency, the
DoD Component initially processing the
request should typically consult with all
interested DoD Components or other
Federal agencies prior to making a
release determination. The DoD
Component initially processing the
request, under these circumstances, will
ultimately respond to the requester and
release any responsive material. The
consulted DoD Component will notify
the sending DoD Component or other
Federal agency when the consultation is
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received and the consultation tracking
number.
(2) Referral. (i) When the DoD
Component initially processing the
request believes that a different DoD
Component or other Federal agency is
best able to determine whether to
disclose the record, the DoD Component
typically should refer the responsibility
for responding to the request regarding
that record to that agency. Ordinarily,
the agency that originated the record
will be presumed to be best able to make
the disclosure determination. Under
these circumstances, the DoD
Component or other Federal agency
receiving the referral will ultimately
make a release determination on the
records and respond to the requester.
(ii) Whenever a DoD Component
refers a record to another DoD
Component or Federal agency, it will
document the referral, refer a copy of
the referred record, and notify the
requester of the referral, informing the
requester of the name and FOIA address
of the DoD Component or Federal
agency to which the record was referred.
(3) Coordination. The standard
referral procedure is not appropriate
where disclosure of the identity of the
DoD Component or agency to which the
referral would be made could harm an
interest protected by an applicable
exemption, such as the exemptions that
protect personal privacy or national
security interests. Under these
circumstances, the consultation process
is the appropriate means for
coordination. See § 286.7(d)(1). For
example, if a non-law enforcement
agency responding to a request for
records on a living third party locates
within its files records originating with
a law enforcement agency, and if the
existence of that law enforcement
interest in the third party was not
publicly known, then to disclose that
law enforcement interest could cause an
unwarranted invasion of the personal
privacy of the third party. Similarly, if
a DoD Component locates within its
files material originating with an
Intelligence Community agency, and the
involvement of that agency in the matter
is classified and not publicly
acknowledged, then to disclose or give
attribution to the involvement of that
Intelligence Community agency could
cause national security harms. In such
instances, in order to avoid harm to an
interest protected by an applicable
exemption, the DoD Component that
received the request should coordinate
with the originating DoD Component or
agency to seek its views the disclosure
of the record. The release determination
for the record should then be conveyed
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to the requester by the DoD Component
that originally received the request.
(4) Timing of responses to
consultations and referrals. All
consultations and referrals received by
the DoD Component will be processed
according to the date that the FOIA
request was initially received by a
Federal agency.
(5) Agreements regarding
consultations and referrals. DoD
Components may establish written
agreements with other DoD Components
or other Federal agencies to eliminate
the need for consultations or referrals
with respect to particular types of
records, providing these agreements do
not conflict with this rule, or another
law, rule, or regulation.
§ 286.8
Timing of responses to requests.
(a) In general. DoD Components
ordinarily will respond to requests on a
first-in/first-out basis according to their
order of receipt. In instances involving
misdirected requests that are re-routed
pursuant to § 286.7(c), the response time
will commence on the date that the
request is received by the appropriate
DoD Component’s FOIA RSC, but in any
event not later than 10 working days
after the request is first received by any
DoD Component’s FOIA RSC that is
designated to receive requests.
(b) Multitrack processing. All DoD
Components must designate a specific
track for requests that are granted
expedited processing in accordance
with the standards set forth in the FOIA
and paragraph (e) of this section. DoD
Components may also designate
additional processing tracks that
distinguish between simple and more
complex requests based on the
estimated amount of work or time
needed to process the request. Among
the factors a DoD Component may
consider are the number of records
requested, the number of pages involved
in processing the request and the need
for consultations or referrals. DoD
Components should advise requesters of
the track into which their request falls
and, when appropriate, shall offer the
requesters an opportunity to narrow or
modify their request so that it can be
placed in a different processing track.
(c) Unusual circumstances. Whenever
the statutory time limit for processing a
request cannot be met because of
‘‘unusual circumstances,’’ as defined in
the FOIA, and the DoD Component
extends the time limit on that basis, the
DoD Component must, before expiration
of the 20-day period to respond, notify
the requester in writing of the unusual
circumstances involved and of the date
by which processing of the request can
be expected to be completed. See 5
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U.S.C. 552(a)(6)(B). Where the extension
exceeds 10 working days, the DoD
Component shall, in accordance with
the FOIA, provide the requester with an
opportunity to modify the request or
arrange an alternative time period for
processing the original or modified
request. Furthermore, the requester will
be advised that the DoD Component
FOIA Public Liaison is available for this
purpose and of their right to seek
dispute resolution services from OGIS.
(d) Aggregating requests. For the
purposes of satisfying unusual
circumstances under the FOIA, DoD
Components may aggregate requests in
cases where it reasonably appears that
multiple requests, submitted either by a
requester or by a group of requesters
acting in concert, constitute a single
request that would otherwise involve
unusual circumstances. DoD
Components will not aggregate multiple
requests that involve unrelated matters.
(e) Expedited processing. (1) The
FOIA establishes two reasons for
expediting the processing of initial
FOIA requests: Compelling need and
other cases determined by the agency.
See 5 U.S.C. 552(a)(6)(E).
Administrative appeals may be
expedited for the same reasons. The
DoD Components must make expedited
processing determinations within 10
calendar days after receipt of a request
that meets the criterion of reasonably
describing the requested records in
§ 286.5(a). Once the DoD Component
decides to grant expedited processing,
the request is processed as soon as
practicable. Adverse actions by DoD
Components on requests for expedited
processing, or a failure to respond to
those requests in a timely manner, are
subject to judicial review.
(i) Compelling need. Expedited
processing is granted to a requester
upon a specific request for such and
when the requester demonstrates a
compelling need for the information. A
compelling need exists when:
(A) The failure to obtain requested
records on an expedited basis could
reasonably be expected to pose an
imminent threat to the life or physical
safety of an individual, or
(B) The information is urgently
needed by an individual primarily
engaged in disseminating information in
order to inform the public concerning
actual or alleged government activity.
(ii) DoD additional expedited
processing circumstances. If the DoD
Component decides to expedite the
request for either of the following
reasons, the request will be processed in
the expedited track behind those
requests qualifying for expedited
processing as a compelling need.
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(A) Imminent loss of due process
rights. Expedited processing is granted
to a requester if loss of substantial due
process rights is imminent.
(B) Humanitarian need. Expedited
processing is granted when the failure to
obtain the requested information on an
expedited basis could reasonably be
expected to harm substantial
humanitarian interests.
(2) A request for expedited processing
may be made at any time. Requests for
expedited processing must be submitted
to the DoD Component that maintains
the records. When making a request for
expedited processing of an
administrative appeal, the request
should be submitted to the DoD
Component’s appellate authority.
(3) A requester who seeks expedited
processing must submit a statement,
certified to be true and correct,
explaining in detail the basis for making
the request for expedited processing.
For requesters seeking expedited
processing under paragraph (e)(1)(i)(B)
of this section, a requester who is not a
full-time member of the news media
must establish that the requester is a
person whose primary professional
activity or occupation is information
dissemination, and not an incidental or
secondary activity, though it need not
be the requester’s sole occupation. Such
a requester also must establish a
particular urgency to inform the public
about the government activity involved
in the request—one that extends beyond
the public’s right to know about
government activity generally. The
existence of numerous articles
published on a given subject can be
helpful in establishing the requirement
that there be an ‘‘urgency to inform’’ the
public on the topic. Requests for
expedited processing under paragraph
(e)(1)(ii)(A) of this section must include
a description of the due process rights
that would be lost. This statement must
be with the request for expedited
processing for it to be considered and
responded to within the 10 calendar
days required for decisions on
expedited access.
(4) A DoD Component shall notify the
requester within 10 calendar days of the
receipt of a request for expedited
processing of its decision whether to
grant or deny expedited processing. If
expedited processing is granted, the
request shall be placed in the processing
track for expedited requests, and
processed as soon as practicable. If a
request for expedited processing is
denied, any appeal of that decision shall
be acted upon expeditiously.
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§ 286.9
Responses to requests.
(a) In general. DoD FOIA RSCs will,
to the extent practicable, communicate
with requesters having access to the
Internet using electronic means, such as
email or web portal.
(b) Acknowledgments of requests.
DoD Components will acknowledge
requests in writing and assign
individualized tracking numbers. DoD
Components will include these tracking
numbers and any tracking numbers used
by FOIA requesters in all
correspondence.
(c) Estimated dates of completion and
interim responses. Upon request, the
DoD Component will provide an
estimated date by which the DoD
Component expects to provide a
response to the requester. If a request
involves a voluminous amount of
material or searches in multiple
locations, the DoD Component may
provide interim responses, releasing the
records on a rolling basis.
(d) Grants of requests. Once a DoD
Component makes a determination to
grant a request in full or in part, it shall
notify the requester in writing. The DoD
Component also shall inform the
requester:
(1) Of any fees charged under
§ 286.12; and
(2) That they may contact the DoD
Component FOIA Public Liaison for
further assistance.
(e) Adverse determinations of
requests. A DoD Component making an
adverse determination denying a request
in any respect will notify the requester
of that determination in writing.
Adverse determinations, or denials of
requests, include decisions that the
requested record is exempt, in whole or
in part; the request does not reasonably
describe the records sought; the
information requested is not a record
subject to the FOIA; the requested
record does not exist, cannot be located,
or has been destroyed; or the requested
record is not readily reproducible in the
form or format sought by the requester.
Adverse determinations also include
denials involving fees or fee waiver
matters or denials of requests for
expedited processing.
(f) Content of denial. The denial will
include:
(1) The name and title or position of
the IDA;
(2) A brief statement of the reasons for
the denial, including any FOIA
exemption applied by the DoD
Component in denying the request;
(3) An estimate of the volume of any
records or information withheld, such
as the number of pages or some other
reasonable form of estimation, although
such an estimate is not required if the
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volume is otherwise indicated by
deletions marked on records that are
disclosed in part or if providing an
estimate would harm an interest
protected by an applicable exemption;
(4) For any information denied under
Exemption 1, the applicable section or
sections of the appropriate Executive
order on classification that establishing
continued classification of the
information;
(5) For any information denied under
Exemption 3, the specific statute relied
upon to deny the information along
with a short description of the statute;
(6) A statement that the requester
must appeal no later than 90 days after
the date of the denial and along with
instructions on how to appeal to the
DoD Component appellate authority.
The instructions will include the
appellate authority’s duty title, the
mailing address for the appeal, and
instructions on how the requester can
appeal electronically; and
(7) A statement advising the requester
of their right to seek dispute resolution
services from the DoD Component FOIA
Public Liaison or OGIS.
(g) Markings on released documents.
Records disclosed in part will be
marked clearly to show the amount of
information deleted and the exemption
under which the deletion was made
unless doing so would harm an interest
protected by an applicable exemption.
The location of the information deleted
also will be indicated on the record, if
technically feasible.
(h) Use of record exclusions. (1) In the
event that a DoD Component identifies
records that may be subject to exclusion
from the requirements of the FOIA
pursuant to 5 U.S.C. 552(c), the DoD
Component should confer with the
Directorate for Oversight and
Compliance, which will confer with the
Department of Justice, Office of
Information Policy (OIP), to obtain
approval to apply the exclusion.
(2) A DoD Component invoking an
exclusion shall maintain an
administrative record of the process of
invocation and approval of the
exclusion by OIP.
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§ 286.10 Confidential Commercial
Information.
(a) Definitions.
(1) Confidential commercial
information means commercial or
financial information obtained by the
DoD Component from a submitter that
may be protected from disclosure under
Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4).
(2) Submitter means any person or
entity, including a corporation, State, or
foreign government, but not including
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another Federal Government entity, that
provides confidential commercial
information, either directly or indirectly
to the Federal Government.
(b) Designation of confidential
commercial information. A submitter of
confidential commercial information
must use good faith efforts to designate
by appropriate markings, at the time of
submission, any portion of its
submission that it considers to be
protected from disclosure under
Exemption 4. These designations shall
expire 10 years after the date of
submission unless the submitter
requests and provides justification for a
longer designation period.
(c) When notice to submitters is
required. (1) The DoD Component shall
promptly provide written notice to the
submitter of confidential commercial
information whenever records
containing such information are
requested under the FOIA if the DoD
Component determines that it may be
required to disclose the records,
provided:
(i) The requested information has
been designated in good faith by the
submitter as information considered
protected from disclosure under
Exemption 4; or
(ii) The DoD Component has a reason
to believe that the requested information
may be protected from disclosure under
Exemption 4, but has not yet
determined whether the information is
protected from disclosure.
(2) The notice shall include a copy of
the requested records or portions of
records containing the information. In
cases involving a voluminous number of
submitters, the DoD Component may
post or publish a notice in a place or
manner reasonably likely to inform the
submitters of the proposed disclosure,
instead of sending individual
notifications.
(d) Exceptions to submitter notice
requirements. The notice requirements
of this section shall not apply if:
(1) The DoD Component determines
that the information is exempt under the
FOIA, and therefore will not be
disclosed;
(2) The information has been lawfully
published or has been officially made
available to the public;
(3) Disclosure of the information is
required by a statute other than the
FOIA or by a regulation issued in
accordance with the requirements of
Executive Order 12600 of June 23, 1987;
or
(4) The designation made by the
submitter under paragraph (b) of this
section appears obviously frivolous. In
such case, the agency shall give the
submitter written notice of any final
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decision to disclose the information
within a reasonable number of days
prior to a specified disclosure date.
(e) Opportunity to object to disclosure.
(1) The DoD Component shall specify a
reasonable time period within which
the submitter must respond to the notice
referenced in paragraph (c) of this
section.
(2) If a submitter has any objections to
disclosure, it should provide the DoD
Component a detailed written statement
that specifies all grounds for
withholding the particular information
under any exemption of the FOIA. In
order to rely on Exemption 4 as basis for
nondisclosure, the submitter must
explain why the information constitutes
a trade secret or commercial or financial
information that is confidential.
(3) A submitter who fails to respond
within the time period specified in the
notice shall be considered to have no
objection to disclosure of the
information. The DoD Component is not
required to consider any information
received after the date of any disclosure
decision. Any information provided by
a submitter under this section may itself
be subject to disclosure under the FOIA.
(f) Analysis of objections. The DoD
Component shall consider a submitter’s
objections and specific grounds for
nondisclosure in deciding whether to
disclose the requested information.
(g) Notice of intent to disclose.
Whenever the DoD Component decides
to disclose information over the
objection of a submitter, the DoD
Component shall provide the submitter
written notice, which shall include:
(1) A statement of the reasons why
each of the submitter’s disclosure
objections was not sustained;
(2) A description of the information to
be disclosed or copies of the records as
the DoD Component intends to release
them; and
(3) A specified disclosure date, which
shall be a reasonable time after the
notice.
(h) Notice of FOIA lawsuit. Whenever
a requester files a lawsuit seeking to
compel the disclosure of confidential
commercial information, the DoD
Component shall promptly notify the
submitter.
(i) Requester notification. The DoD
Component shall notify a requester
whenever it provides the submitter with
notice and an opportunity to object to
disclosure; whenever it notifies the
submitter of its intent to disclose the
requested information over the
submitter’s objections; and whenever a
submitter files a lawsuit to prevent the
disclosure of the information.
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Subpart D—Appeals
§ 286.11
Processing of appeals.
(a) Requirements for making an
appeal. A requester may appeal any
adverse determinations to the DoD
Component’s appellate authority.
Examples of adverse determinations are
provided in § 286.9(e). Appeals can be
submitted by mail or online in
accordance with the requirements
provided in the DoD Component’s final
response. Requesters that are not
provided with appeal requirements
should contact the FOIA RSC processing
their request to obtain the requirements.
The requester must make the appeal in
writing and to be considered timely it
must be postmarked, or in the case of
electronic submissions, transmitted,
within 90 calendar days after the date of
the response. The appeal should clearly
identify the determination that is being
appealed and the assigned request
number. To facilitate handling, the
requester should mark both the appeal
letter and envelope, or subject line of
the electronic transmission, ‘‘Freedom
of Information Act Appeal.’’
(b) Adjudication of appeals. (1) The
Heads of the following DoD
Components will serve as, or appoint an
appropriate official to serve as, the
component’s appellate authority:
Department of the Army, Department of
the Navy, Department of the Air Force,
Defense Commissary Agency, Defense
Contract Audit Agency, Defense
Contract Management Agency, Defense
Finance and Accounting Service,
Defense Health Agency, Defense
Information Systems Agency, Defense
Intelligence Agency, Defense Logistics
Agency, Defense Security Service,
Defense Threat Reduction Agency,
National Geospatial-Intelligence
Agency, National Reconnaissance
Office, National Security Agency/
Central Security Service, and the Office
of the Inspector General of the
Department of Defense.
(2) The Deputy Chief Management
Officer (DCMO) will serve as the
appellate authority for the OSD and the
Office of the Chairman of the Joint
Chiefs of Staff and the Joint Staff,
Armed Services of Contract Appeals,
Defense Technical Information Center,
Joint Personnel Recovery Agency, DoD
Education Activity, National Guard
Bureau, United States Africa Command,
United States Central Command, United
States European Command, United
States Northern Command, United
States Pacific Command, United States
Special Operations Command, United
States Strategic Command, and United
States Transportation Command. The
DCMO may delegate this authority to an
appropriate official of the DCMO staff.
(3) An appeal will normally not be
adjudicated if the request becomes a
matter of FOIA litigation. This decision
should be made after consultation with
the Department of Justice attorney
responsible for the litigation.
(c) Decisions on appeals. A decision
on an appeal must be made in writing
and signed by the appellate authority. A
decision that upholds a DoD
Component’s determination in whole or
in part will contain a statement that
identifies the reasons for the affirmance,
including any FOIA exemptions
applied. The decision will provide the
requester with notification of the
statutory right to file a lawsuit. If a
decision is remanded or modified on
appeal, the requester will be notified of
that determination in writing. The DoD
Component will thereafter further
process the request in accordance with
that appeal determination and respond
directly to the requester.
(d) When an appeal is required. A
requester generally must first submit a
timely administrative appeal before
seeking review by a court of a DoD
Component’s adverse determination.
Subpart E—Fees
§ 286.12
Schedule of fees.
(a) In general. DoD Components shall
charge for processing requests under the
FOIA in accordance with the provisions
of this section and with the OMB
Guidelines. For purposes of assessing
fees, the FOIA establishes three
categories of requesters: Commercial;
non-commercial scientific or
educational institutions or news media;
and all other requesters. Different fees
are assessed depending on the category.
Requesters may seek a fee waiver. DoD
Components shall consider such
requests in accordance with the
requirements in paragraph (m) of this
section. In order to resolve any fee
issues that arise under this section, a
DoD Component may contact a
requester for additional information.
DoD Components shall ensure that
searches, review, and duplication are
conducted in the most efficient and
least expensive manner. Requesters
must pay fees by check or money order
made payable to the Treasury of the
United States.
(b) Definitions. For purposes of this
section:
(1) Commercial use request is a
request that asks for information for a
use or purpose that furthers a
commercial, trade, or profit interest,
which can include furthering those
interests through litigation. A DoD
Component’s decision to place a
requester in the commercial use
category will be made on a case-by-case
basis based on the requester’s intended
use of the information. DoD
Components will notify requesters of
their placement in this category.
(2) Direct costs are those expenses that
a DoD Component incurs in searching
for and, in the case of commercial use
requests, reviewing records in order to
respond to a FOIA request. DoD direct
costs for human activity are at Table 1.
TABLE 1—FOIA HOURLY PROCESSING FEES
Grade
Administrative ...........................................
Professional ..............................................
Executive ..................................................
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Type
E–9/GS–8 and below ...................................................................................................
Contractor/O–1 to O–6/W–1 to W–5/GS–9 to GS–15 .................................................
O–7 and above and Senior Executive Service ............................................................
(3) Duplication is reproducing a copy
of a record, or of the information
contained in it, necessary to respond to
a FOIA request.
(4) Educational institution is any
school that operates a program of
scholarly research. A requester in this
fee category must show that the request
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is made in connection with his or her
role at the educational institution. DoD
Components may seek verification from
the requester that the request is in
furtherance of scholarly research and
will advise requesters of their placement
in this category.
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Hourly rate
$24
48
110
(5) Noncommercial scientific
institution is an institution that is not
operated on a ‘‘commercial’’ basis, as
defined in paragraph (b)(1) of this
section and that is operated solely for
the purpose of conducting scientific
research the results of which are not
intended to promote any particular
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product or industry. A requester in this
category must show that the request is
authorized by and is made under the
auspices of a qualifying institution and
that the records are sought to further
scientific research and are not for a
commercial use. DoD Components will
advise requesters of their placement in
this category.
(6) Representative of the news media
is any person or entity that gathers
information of potential interest to a
segment of the public, uses its editorial
skills to turn raw materials into a
distinct work, and distributes that work
to an audience. The term ‘‘news’’ means
information that is about current events
or that would be of current interest to
the public. Examples of news media
entities include television or radio
stations that broadcast ‘‘news’’ to the
public at large and publishers of
periodicals that disseminate ‘‘news’’
and make their products available
through a variety of means to the
general public, including news
organizations that disseminate solely on
the Internet. A request for records
supporting the news-dissemination
function of the requester shall not be
considered to be for a commercial use.
‘‘Freelance’’ journalists who
demonstrate a solid basis for expecting
publication through a news media entity
shall be considered as a representative
of the news media. A publishing
contract would provide the clearest
evidence that publication is expected;
however, DoD Components shall also
consider a requester’s past publication
record in making this determination.
DoD Components will advise requesters
of their placement in this category.
(7) Review is the examination of a
record located in response to a request
in order to determine whether any
portion of it is exempt from disclosure.
Review time includes processing any
record for disclosure, such as doing all
that is necessary to prepare the record
for disclosure, including the process of
redacting the record and marking the
appropriate exemptions. Review costs
are properly charged even if a record
ultimately is not disclosed. Review time
also includes time spent both obtaining
and considering any formal objection to
disclosure made by a confidential
commercial information submitter
under § 286.11, but it does not include
time spent resolving general legal or
policy issues regarding the application
of exemptions.
(8) Search is the process of looking for
and retrieving records or information
responsive to a request. Search time
includes page-by-page or line-by-line
identification of information within
records and the reasonable efforts
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expended to locate and retrieve
information from electronic records.
(c) Fee category. Fees are assessed
based on the category determined to be
appropriate for the requester’s category.
The fee category of a requester that is an
attorney or any other agent representing
a client is determined by the fee
category of the attorney’s client. If the
fee category of the client is not clear,
then the DoD Components should ask
the requester for clarification. If an
attorney does not provide enough
information to determine the fee
category of the client, then the DoD
Component may assign commercial fee
category to the requester.
(d) Charging fees. In responding to
FOIA requests, DoD Components will
charge the following fees unless a
waiver or reduction of fees has been
granted under paragraph (m) of this
section. Because the fee amounts
provided below already account for the
direct costs associated with a given fee
type, DoD Components should not add
any additional costs to charges
calculated under this section.
(1) Search. (i) Requests made by
educational institutions, noncommercial
scientific institutions, or representatives
of the news media are not subject to
search fees. Search fees shall be charged
for all other requesters, subject to the
restrictions of paragraph (e) of this
section. DoD Components may properly
charge for time spent searching even if
they do not locate any responsive
records or if they determine that the
records are entirely exempt from
disclosure.
(ii) For each quarter hour spent by
personnel searching for requested
records, including electronic searches
that do not require new programming,
the fees shall be charged as listed at
Table 1.
(iii) Requesters will be charged the
direct costs associated with conducting
any search that requires the creation of
a new computer program to locate the
requested records. These costs will not
include the time it takes to run the
program and extract data. Requesters
will be notified of the costs associated
with creating such a program and must
agree to pay the associated costs before
the costs may be incurred.
(iv) For requests that require the
retrieval of records stored by a DoD
Component at a Federal records center
operated by NARA, additional costs will
be charged in accordance with the
Transactional Billing Rate Schedule
established by NARA.
(2) Duplication. Duplication fees will
be charged to all requesters, subject to
the restrictions of paragraph (e) of this
section. DoD Components will honor a
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requester’s preference for receiving a
record in a particular form or format
where it is readily reproducible by the
DoD Component in the form or format
requested. Where photocopies are
supplied, DoD Components will provide
one copy per request at $.15 per page.
For copies of records produced on tapes,
disks, or other media, or other forms of
duplication, DoD Components will
charge the direct costs of producing the
copy, including operator time in
accordance with Table 1. DoD
Components will charge record
reproduction fees at the hourly rates in
Table 1 if the creation of the electronic
copies requires unique security
procedures incurring considerable
operator time, costing more than
printing paper copies.
(3) Review. Review fees will be
charged to requesters who make
commercial use requests. Review fees
shall be assessed in connection with the
initial review of the record, i.e., the
review conducted by a DoD Component
to determine whether an exemption
applies to a particular record or portion
of a record. No charge will be made for
review at the administrative appeal
stage of exemptions applied at the
initial review stage. However, if a
particular exemption is deemed to no
longer apply, any costs associated with
a DoD Component’s re-review of the
records in order to consider the use of
other exemptions may be assessed as
review fees. Review fees will be charged
at the same rates as those charged for a
search under paragraph (d)(1)(ii) of this
section.
(e) Restrictions on charging fees. (1)
When a DoD Component determines
that a requester is an educational
institution, non-commercial scientific
institution, or representative of the news
media, and the records are not sought
for commercial use, no search fees will
be charged.
(2) If a DoD Component fails to
comply with the time limits in which to
respond to a request it may not charge
search fees, or, in the instances of
requests from requesters described in
paragraph (e)(1) of this section, may not
charge duplication fees except as
described in (e)(2)(i) through (iii).
(i) When a DoD Component
determines that unusual circumstances,
as those terms are defined by the FOIA,
apply to the processing of the request,
and provides timely written notice to
the requester, then the DoD Component
is granted an additional ten days until
the fee restriction in paragraph (e)(2) of
this section applies.
(ii) When a DoD Component
determines that unusual circumstances
apply and more than 5,000 pages are
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necessary to respond to the request,
provides timely written notice to the
requester, and has discussed with the
requester (or made three good faith
attempts to do so) on how the requester
can effectively limit the scope of the
request, the fee restriction in paragraph
(e)(2) of this section does not apply.
(iii) If a court has determined that
exceptional circumstances exist, as
defined by the FOIA, a failure to comply
with the time limits shall be excused for
the length of time provided by the court
order.
(3) No search or review fees will be
charged for a quarter-hour period unless
more than half of that period is required
for search or review.
(4) Except for requesters seeking
records for a commercial use, DoD
Components shall provide without
charge:
(i) The first 100 pages of duplication
(or the cost equivalent for other media);
and
(ii) The first two hours of search.
(5) No fee will be charged when the
total fee, after deducting the 100 free
pages (or its cost equivalent) and the
first two hours of search, is equal to or
less than $25.
(f) Notice of anticipated fees in excess
of $25.00. (1) When a DoD Component
determines or estimates that the fees to
be assessed in accordance with this
section will exceed $25.00, the DoD
Component shall notify the requester of
the actual or estimated amount of the
fees, including a breakdown of the fees
for search, review or duplication, unless
the requester has indicated a
willingness to pay fees as high as those
anticipated. If only a portion of the fee
can be estimated readily, the DoD
Component will advise the requester
accordingly. If the requester is a
noncommercial use requester, the notice
shall specify that the requester is
entitled to the statutory entitlements of
100 pages of duplication at no charge
and, if the requester is charged search
fees, two hours of search time at no
charge, and will advise the requester
whether those entitlements have been
provided.
(2) When a requester is notified that
the actual or estimated fees are in excess
of $25.00, the request will not be
considered received and further work
will not be completed until the
requester commits in writing to pay the
actual or estimated total fee, or
designates some amount of fees the
requester is willing to pay, or in the case
of a noncommercial use requester who
has not yet been provided with the
requester’s statutory entitlements,
designates that the requester seeks only
that which can be provided by the
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statutory entitlements. The requester
must provide the commitment or
designation in writing, and must, when
applicable, designate an exact dollar
amount the requester is willing to pay.
DoD Components are not required to
accept payments in installments.
(3) If the requester has indicated a
willingness to pay some designated
amount of fees, but the DoD Component
estimates that the total fee will exceed
that amount, the DoD Component will
toll the processing of the request when
it notifies the requester of the estimated
fees in excess of the amount the
requester has indicated a willingness to
pay. The DoD Component will inquire
whether the requester wishes to revise
the amount of fees the requester is
willing to pay or modify the request.
Once the requester responds, the time to
respond will resume from where it was
at the date of the notification.
(4) DoD Components will make
available their FOIA Public Liaison or
other FOIA professional to assist any
requester in reformulating a request to
meet the requester’s needs at a lower
cost.
(g) Charges for other services.
Although not required to provide
special services, if a DoD Component
chooses to do so as a matter of
administrative discretion, the direct
costs of providing the service shall be
charged. Examples of such services
include certifying that records are true
copies, providing multiple copies of the
same document, or sending records by
means other than first class mail.
(h) Charging interest. DoD
Components may charge interest on any
unpaid bill starting on the 31st day
following the date of billing the
requester. Interest charges shall be
assessed at the rate provided in 31
U.S.C. 3717 and will accrue from the
billing date until payment is received by
the DoD Component. DoD Components
shall follow the provisions of the Debt
Collection Act of 1982 (Pub. L. 97–365,
96 Stat. 1749), as amended, and its
administrative procedures, including
the use of consumer reporting agencies,
collection agencies, and offset.
(i) Aggregating requests. When a DoD
Component reasonably believes that a
requester or a group of requesters acting
in concert is attempting to divide a
single request into a series of requests
for the purpose of avoiding fees, the
DoD Component may aggregate those
requests and charge accordingly. DoD
Components may presume that multiple
requests of this type made within a 30day period have been made in order to
avoid fees. For requests separated by a
longer period, DoD Components will
aggregate them only where there is a
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reasonable basis for determining that
aggregation is warranted in view of all
the circumstances involved. Multiple
requests involving unrelated matters
shall not be aggregated.
(j) Advance payments. (1) For requests
other than those described in
paragraphs (k)(2) or (3) of this section,
a DoD Component shall not require the
requester to make an advance payment
before work is commenced or continued
on a request.
(2) When a DoD Component
determines or estimates that a total fee
to be charged under this section will
exceed $250.00, it may require that the
requester make an advance payment up
to the amount of the entire anticipated
fee before beginning to process the
request. A DoD Component may elect to
process the request prior to collecting
fees when it receives a satisfactory
assurance of full payment from a
requester with a history of prompt
payment.
(3) Where a requester has previously
failed to pay a properly charged FOIA
fee to any agency within 30 calendar
days of the billing date, a DoD
Component may require that the
requester pay the full amount due, plus
any applicable interest on that prior
request, and the DoD Component may
require that the requester make an
advance payment of the full amount of
any anticipated fee before the DoD
Component begins to process a new
request or continues to process a
pending request or any pending appeal.
Where a DoD Component has a
reasonable basis to believe that a
requester has misrepresented the
requester’s identity in order to avoid
paying outstanding fees, it may require
that the requester provide proof of
identity.
(4) In cases in which a DoD
Component requires advance payment,
the request shall not be considered
received and further work will not be
completed until the required payment is
received. If the requester does not pay
the advance payment within 30
calendar days after the date of the DoD
Component’s fee determination, the
request will be closed.
(k) Other statutes specifically
providing for fees. The fee schedule of
this section does not apply to fees
charged under any statute that
specifically requires an agency to set
and collect fees for particular types of
records. In instances where records
responsive to a request are subject to a
statutorily-based fee schedule program,
the DoD Component shall inform the
requester of the contact information for
that program.
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(l) Requirements for waiver or
reduction of fees. (1) Requesters may
seek a waiver of fees by submitting a
written application specifically
demonstrating how disclosure of the
requested information is in the public
interest because it is likely to contribute
significantly to public understanding of
the operations or activities of the
government and is not primarily in the
commercial interest of the requester.
(2) A DoD Component will furnish
records responsive to a request without
charge or at a reduced rate when it
determines, based on all available
information, that the following three
factors are satisfied:
(i) Disclosure of the requested
information would shed light on the
operations or activities of the
government. The subject of the request
must concern identifiable operations or
activities of the Federal Government
with a connection that is direct and
clear, not remote or attenuated.
(ii) Disclosure of the requested
information would be likely to
contribute significantly to public
understanding of those operations or
activities. This factor is satisfied when
the following criteria are met:
(A) Disclosure of the requested
records must be meaningfully
informative about government
operations or activities. The disclosure
of information that already is in the
public domain, in either the same or a
substantially identical form, would not
be meaningfully informative if nothing
new would be added to the public’s
understanding.
(B) The disclosure must contribute to
the understanding of a reasonably broad
audience of persons interested in the
subject, as opposed to the individual
understanding of the requester. A
requester’s expertise in the subject area
as well as the requester’s ability and
intention to effectively convey
information to the public shall be
considered. DoD Components will
presume that a representative of the
news media satisfies this criterion.
(iii) The disclosure must not be
primarily in the commercial interest of
the requester. To determine whether
disclosure of the requested information
is primarily in the commercial interest
of the requester, DoD Components shall
consider the following criteria:
(A) DoD Components will identify
whether the requester has any
commercial interest that would be
furthered by the requested disclosure. A
commercial interest includes any
commercial, trade, or profit interest.
Requesters will be given an opportunity
to provide explanatory information
regarding this consideration.
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(B) If there is an identified
commercial interest, the DoD
Component will determine whether that
is the primary interest furthered by the
request. A waiver or reduction of fees is
justified when the requirements of
paragraphs (m)(2)(i) and (ii) of this
section are satisfied and any commercial
interest is not the primary interest
furthered by the request. DoD
Components ordinarily will presume
that when a news media requester has
satisfied the factors in paragraphs
(m)(2)(i) and (ii) of this section, the
request is not primarily in the
commercial interest of the requester.
Disclosure to data brokers or others who
merely compile and market government
information for direct economic return
shall not be presumed to primarily serve
the public interest.
(3) Where only some of the records to
be released satisfy the requirements for
a waiver of fees, a waiver shall be
granted for those records.
(4) Requests for a waiver or reduction
of fees should be made when the request
is first submitted to the DoD Component
and should address the criteria
referenced in paragraphs (l)(1) and (2) of
this section. A requester may submit a
fee waiver request at a later time so long
as the underlying record request is
pending or on administrative appeal.
When a requester who has committed to
pay fees subsequently asks for a waiver
of those fees and that waiver is denied,
the requester is required to pay any
costs incurred up to the date the fee
waiver request was received.
(m) Tracking of costs. DoD
Components will track processing costs
for each FOIA request on DD Form
2086, ‘‘Record of Freedom of
Information (FOI) Processing Cost,’’ or
by using DD Form 2086–2, ‘‘Freedom of
Information (FOI) Consultation and
Request Summary’’.
§ 286.13
Fees for technical data.
(a) Technical data shall be released to
a requester after all reasonable costs of
search, review, and duplication are paid
by the requester as authorized by 10
U.S.C. 2328.
(b) Technical data means information
(regardless of the form or method of the
recording) of a scientific or technical
nature (including computer software
documentation) relating to the supplies
procured by the DoD. This includes
information in the form of blueprints,
drawings, photographs, plans,
instructions or documentation. This
term does not include computer
software or financial, administrative,
cost or pricing, or management data or
other information incidental to contract
administration. Examples of technical
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1205
data include research and engineering
data, engineering drawings, and
associated lists, specifications,
standards, process sheets, manuals,
technical reports, catalog item
identification, and computer software
documentation.
(1) All reasonable costs as used in this
sense are the full costs to the Federal
Government of rendering the service, or
fair market value of the service,
whichever is higher. Fair market value
shall be determined in accordance with
commercial rates in the local
geographical area. In the absence of a
known market value, charges shall be
based on recovery of full costs to the
Federal Government. The full costs shall
include all direct and indirect costs to
conduct the search and to duplicate the
records responsive to the request. Costs
will be tracked on DD Form 2086–1,
‘‘Record of Freedom of Information
(FOI) Processing Cost for Technical
Data’’ (available at https://www.dtic.mil/
whs/directives/infomgt/forms/eforms/
dd2086-1.pdf).
(2) The DoD Components will retain
the fees received by the release of
technical data under the FOIA, and will
merge it with and make it available for
the same purpose and the same time
period as the appropriation from which
the costs were incurred in complying
with the FOIA request.
(3) Table 2 will be used to determine
document production fees.
TABLE 2—FOIA DOCUMENT
PRODUCTION FEES—TECHNICAL DATA
Type
Aerial Photographs, Specifications, Permits, Charts,
Diagrams, Technical Drawings, Blueprints, and Other
Technical Documents (per
page or copy) ....................
Engineering Data:
Aperture Cards, per card
Silver Duplicate
Negative ..............
When Keypunched
and Verified ........
Diazo Duplicate
Negative ..............
When Keypunched
and Verified ........
35 mm Roll Film, per
frame ..........................
16 mm Roll Film, per
frame ..........................
Paper Prints (engineering drawings), each
(per square foot) ........
Paper Reprints of Microfilm Images, each ......
Other Technical Data
Records:
E:\FR\FM\05JAR1.SGM
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Cost
$2.50
3.00
3.50
1.00
3.50
3.00
1.00
0.65
0.30
0.10
1206
Federal Register / Vol. 82, No. 3 / Thursday, January 5, 2017 / Rules and Regulations
TABLE 2—FOIA DOCUMENT PRODUC- the Postal Regulatory Commission
TION
FEES—TECHNICAL DATA— (PRC). The PRC has found that price
adjustments contained in the Postal
Continued
Type
Cost
Paper Copy (standard
size paper up to 81⁄2 x
14, photocopier or
printer) ........................
CD/DVD .........................
Microfiche Produced,
each ...........................
Certification and Validation with Seal, each
document ...................
Service’s notice may go into effect on
January 22, 2017. The Postal Service
will revise Notice 123, Price List to
reflect the new prices.
DATES: Effective date: January 22, 2017.
0.15 FOR FURTHER INFORMATION CONTACT:
5.00 Paula Rabkin at 202–268–2537.
SUPPLEMENTARY INFORMATION:
3.50
50.00
(c) The DoD Components will waive
the payment of costs required in
paragraph (a) of this section that are
greater than the costs that would be
required for release of this same
information under § 286.12 if:
(1) The FOIA request is made by a
U.S. citizen or a U.S. corporation, and
such citizen or corporation certifies that
the technical data requested is required
to enable it to submit an offer, or to
determine whether it is capable of
submitting an offer, to provide the
product to which the technical data
relates to the United States or a U.S.
contractor. However, the DoD
Components may require the citizen or
corporation to pay a deposit in an
amount equal to but not more than the
cost of complying with the FOIA
request, which will be refunded upon
submission of an offer by the citizen or
corporation;
(2) The release of technical data is
requested in order to comply with the
terms of an international agreement; or
(3) The DoD Component determines,
in accordance with paragraph (m) of
§ 286.12, that such a waiver is in the
interest of the United States.
Dated: December 23, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
I. Proposed Rule and Response
On October 12, 2016, the Postal
Service filed a notice of mailing services
price adjustments with the Postal
Regulatory Commission (PRC) for
products and services covered by
Mailing Standards of the United States
Postal Service, International Mail
Manual (IMM®), to be effective on
January 22, 2017. In addition, on
October 17, 2016, the USPSTM
published a notice of proposed price
changes in the Federal Register entitled
‘‘International Mailing Services:
Proposed Price Changes’’ (81 FR 71427).
The notice included price changes that
we would adopt for products and
services covered by Mailing Standards
of the United States Postal Service,
International Mail Manual (IMM®) and
publish in Notice 123, Price List, on
Postal Explorer® at pe.usps.com. We
received no comments.
II. Decision of the Postal Regulatory
Commission
As set forth in the PRC’s Order No.
3610 issued on November 15, 2016, as
well as in the PRC’s Order No. 3670
issued on December 15, 2016, the PRC
determined that the international prices
in the Postal Service’s Notice may go
into effect on January 22, 2017. The new
prices will accordingly be posted in
Notice 123, on Postal Explorer at
pe.usps.com.
[FR Doc. 2016–31686 Filed 1–4–17; 8:45 am]
Stanley F. Mires,
Attorney, Federal Compliance.
BILLING CODE 5001–06–P
[FR Doc. 2016–31525 Filed 1–4–17; 8:45 am]
BILLING CODE 7710–12–P
POSTAL SERVICE
ENVIRONMENTAL PROTECTION
AGENCY
International Mailing Services: Mailing
Services Price Changes
asabaliauskas on DSK3SPTVN1PROD with RULES
39 CFR Part 20
40 CFR Part 52
[EPA–R04–OAR–2016–0468; FRL–9957–52–
Region 4]
Postal ServiceTM.
ACTION: Notice of approval of price
changes for mailing services.
AGENCY:
On October 17, 2016, the
Postal Service published a notice of
proposed price adjustments to reflect a
notice of price adjustments filed with
SUMMARY:
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18:22 Jan 04, 2017
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Air Plan Approval; Georgia:
Procedures for Testing and Monitoring
Sources of Air Pollutants
AGENCY:
Environmental Protection
Agency.
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ACTION:
Direct final rule.
The Environmental Protection
Agency (EPA) is taking direct final
action to approve portions of State
Implementation Plan (SIP) revisions
submitted by the State of Georgia,
through the Georgia Department of
Natural Resources’ Environmental
Protection Division (GA EPD), on April
11, 2003, November 29, 2010, July 25,
2014, November 23, 2015, and
November 29, 2016. The SIP submittals
include changes to GA EPD’s air quality
rules that modify definitions. The
portions of the SIP revisions that EPA is
approving are consistent with the
requirements of the Clean Air Act (CAA
or Act).
DATES: This direct final rule is effective
March 6, 2017 without further notice,
unless EPA receives adverse comment
by February 6, 2017. If EPA receives
such comments, it will publish a timely
withdrawal of the direct final rule in the
Federal Register and inform the public
that the rule will not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2016–0468 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. EPA will generally
not consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Sean Lakeman, Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Mr.
Lakeman can be reached by phone at
(404) 562–9043 or via electronic mail at
lakeman.sean@epa.gov.
SUMMARY:
E:\FR\FM\05JAR1.SGM
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Agencies
[Federal Register Volume 82, Number 3 (Thursday, January 5, 2017)]
[Rules and Regulations]
[Pages 1192-1206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31686]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 286
[DOD-2007-OS-0086; 0790-AI24]
DoD Freedom of Information Act (FOIA) Program
AGENCY: Department of Defense.
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: This part revises the Department of Defense (DoD) Freedom of
Information Act (FOIA) regulation to implement the FOIA and incorporate
the provisions of the OPEN Government Act of 2007 and the FOIA
Improvement Act of 2016. This part promotes uniformity in the
Department of Defense (DoD) FOIA Program. It takes precedence over all
DoD Component issuances that supplement and implement the DoD FOIA
Program.
DATES: Effective date: This rule is effective January 5, 2017. Comment
date: Comments must be received by March 6, 2017.
FOR FURTHER INFORMATION CONTACT: James Hogan, 571-372-0462.
SUPPLEMENTARY INFORMATION:
Executive Summary
This rule revises 32 CFR part 286 to implement section 552 of title
5, United States Code (U.S.C.) and incorporate the provisions of the
OPEN Government Act of 2007 and the FOIA Improvement Act of 2016. This
part promotes uniformity in the DoD FOIA Program across the entire
Department.
The FOIA, 5 U.S.C. 552, requires agencies to ``promulgate
regulations, pursuant to notice and receipt of public comment,
specifying the schedule of fees applicable to the processing of
requests [the FOIA] and establishing procedures and guidelines for
determining when such fees should be waived or reduced.'' Additionally,
[[Page 1193]]
according to the FOIA, an agency may, in its regulation, designate
those components that can receive FOIA requests, provide for the
aggregation of certain requests, and provide for multitrack processing
of requests. Finally, the FOIA requires agencies to ``promulgate
regulations . . . providing for expedited processing of requests for
records.''
This rule implements changes to conform to the requirements of the
following amendments to the FOIA: The OPEN Government Act of 2007,
Public Law 110-175 and the FOIA Improvement Act of 2016, Public Law
114-185. These changes include the roles of the FOIA Public Liaison in
Sec. 286.4, Sec. 286.5, Sec. 286.8, Sec. 286.9, and Sec. 286.12;
the roles of the FOIA Requesters Service Centers in Sec. 286.3, Sec.
286.4, Sec. 286.5, Sec. 286.8, Sec. 286.9, Sec. 286.11, and Sec.
286.12; the processing of FOIA requests, Sec. 286.7; the timing of
responses to FOIA requests, Sec. 286.8; and the fees schedules,
Subpart E.
This regulatory action imposes monetary costs to the DoD and the
public. The average cost to the DoD to implement the FOIA for the past
five years is over $82,000,000. The benefit of this regulatory action
to the public is that it promotes uniformity in the DoD FOIA Program
across the entire Department and provides notice of DoD's FOIA policies
and procedures to the public.
The revisions to this rule will be reported in future status
updates as part of DoD's retrospective plan under Executive Order 13563
completed in August 2011. DoD's full plan can be accessed at: https://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-0036.
Justification for Interim Final Rule
The DoD is issuing this rule as an interim final rule with a
request for comments to comply with a statutory deadline in the FOIA
Improvement Act of 2016. Section 3 of the Act requires agencies to
review and issue regulations in accordance with the amendments in the
Act no later than 180 days after the enactment of the Act. The FOIA
Improvement Act of 2016 was signed by the President on June 30, 2016;
therefore, agencies need to issue regulations no later than the end of
December 2016.
Additionally, this rule implements amendments made in the OPEN
Government Act of 2007. The DoD's issuance of its revised FOIA
regulation was previously delayed due to reorganization, process
changes, and re-coordination requirements based on the inclusion of the
new legislative amendments and Presidential guidance.
Public Comments on Proposed Rule
The DoD published a proposed FOIA rule for comment on September 3,
2014 (79 FR 52500-52524) that was not promulgated as a final rule. Just
after that time, the Office of Information Policy, Department of
Justice (DOJ) published its Guidance for Agency FOIA Regulations along
with a recommended template to be used by agencies in the development
of their regulations. Accordingly, the DoD made the decision to revise
its regulation at 32 CFR part 286 so that, to the practical extent
possible, it aligned with the template recommended by DOJ. The sections
of the previous proposed rule that are not included in this interim
rule will be in a separate internal manual, DoD Manual 5400.07. This
manual contains DoD FOIA processing guidance that is internal to the
department and is not legally required to be in this rule.
During the previous public comment period on the proposed rule, the
DoD received a number of comments that are related to this interim rule
and our incorporation of the OPEN Government Act of 2007 amendments.
Those comments, and the Department's adjudication of those comments,
follow.
Comment: The previous proposed rule contained the following
definition of consultation: The ``process whereby a federal agency
transfers a FOIA responsive document to another federal agency or non-
government entity, in certain situations, to obtain recommendations on
the releasability of the document.'' One commenter states that this
definition fails to set parameters for determining when consultation is
appropriate.
This commenter ``believes that a `consultation' should occur only
when another agency, agency component, or non-government entity has a
`substantial interest' in any of the responsive records or portions
thereof. While FOIA is silent as to the meaning of the term
`substantial interest,' the Office of Information Policy (`OIP')
suggests a `substantial interest' exists when records either
`originate[] with another agency' or the records contain `information
that is of interest to another agency or component.' For its part, the
Department of Justice's FOIA regulations provide that `consultation'
(or `referral') is appropriate when another agency originated the
record or, more generally, is `better able to determine whether the
record is exempt from disclosure.' ''
This commenter further ``proposes that DoD redefine `consultation'
accordingly: Consultation. The process whereby a federal agency
transfers a FOIA responsive record to another federal agency, agency
component, or non-government entity, when such party has a substantial
interest in the responsive record, in order to obtain recommendations
on the releasability of the record. After review, the record is
returned to the original agency for response to the FOIA requester or
further review.''
This commenter also asks the DoD to introduce a definition of
``substantial interest'' as follows: ``Substantial interest. Another
agency, agency component, or nongovernment entity possesses a
`substantial interest' in a FOIA responsive record, such that
consultation may be appropriate, whenever (1) the responsive record
originates with that same agency, agency component, or non-government
entity, or (2) when the agency, agency component, or non-government
entity is better positioned to judge the proper application of the FOIA
exemptions, given the circumstances of the request or its familiarity
with the facts necessary to judge the proper withholding of exempt
material.''
Response: Our interim rule adopts the definition of
``consultation'' from the DOJ FOIA rule template, and we believe this
is the appropriate definition. It does not contain the phrase
``substantial interest.'' Furthermore, we are not adding a definition
of ``substantial interest.'' The proposed definition is too narrow and
unnecessarily restricts the discretionary decision-making authority of
DoD officials when determining what other agencies or DoD Components
should review a requested document prior to release under the FOIA.
Comment: One commenter appreciates our definition because it tracks
the new statutory definition codified by the OPEN Government Act of
2007 and explicitly abandons the outdated ``organized and operated''
standard proposed in guidance by the Office of Management and Budget in
1987. They go on to say that the proposed definition could be improved
by explaining the manner in which ``alternative media shall be
considered to be news-media entities.'' Accordingly, they requested we
amend the definition of ``representative of the news media'' by
incorporating the entirety of the statutory standard or by adding some
short indication of the application of the fee category to non-
traditional news media forms and requesters. They believe that the
proposed definition itself should refer to the important role of
technology vis-a-vis the news media requester fee category, potentially
utilizing as a
[[Page 1194]]
starting point the examples provided in the statute.
Response: We appreciate the comment concerning the definition of
``representative of the news media''. With our new interim rule, we are
now adopting the definition as published in the DOJ FOIA regulation
template. We believe that this definition accurately reflects the Act.
Comment: Another commenter claims our proposed definition is deeply
flawed because it states that news is information that is about current
events or that would be of current interest to the public.
They go on to say that ``news can and frequently does concern
historic past events. For example, there are any number of news stories
that unveil the truth about important events of the past, perhaps
because they were classified or restricted or secret in some manner.
There are reporters who focus on important news stories about
previously unknown aspects of World War II or Korea or Vietnam or the
Persian Gulf Conflicts. There is important reporting on atomic
veterans, Agent Orange exposure, chemical weapons testing, and so on.
Why would important reporting on those past events not be considered
news?''
``Limiting the definition to current events means that the
government agency would be taking on the role of editor to decide what
is important, and suggests that any news coverage about past events is
not newsworthy. This definition is particularly disturbing because many
of the important news stories involving DoD records concern past events
and are precisely the type of news reporting that should be recognized
as news for purposes of the Freedom of Information Act.''
``I understand that the definition could be interpreted to stretch
to cover past events. But unless it is stated explicitly, there are
components which may misinterpret the definition, and adhere to a
narrower definition of news.''
``Therefore, I propose that the definition be amended to include
the sentence: `This may include historic past events.' ''
Response: Because we believe the phrase ``would be of current
interest to the public'' adequately addresses the commenter's concern,
we did not accept this recommendation. Furthermore, this section of the
definition of ``representative of the news media'' mirrors the Act and
the DOJ FOIA regulation template word for word.
Comment: One commenter mentions that the list of tasks for the FOIA
Public Liaison omits two important tasks for the FOIA Public Liaison.
``First, there is explaining the status of an overdue request. Second,
the Public Liaison can help to coordinate opportunities for a requester
to clarify or narrow the scope of a request. This clarification or
narrowing may require some two way discussion for the requester to
understand how they may best clarify or narrow the request, including a
discussion of specific impediments to the processing of the request.''
Response: We rejected this recommendation because it is our
intention here to list only the statutory duties of the FOIA Public
Liaison. We agree this list is not all-inclusive, and accordingly there
could be a number other duties that FOIA Public Liaisons will perform.
However, these other duties, to include those that the commenter
mentions, are included within the scope of the statutory duties of the
FOIA Public Liaison.
Comment: One commenter recommends a change to the section
concerning Confidential Commercial Information. Specifically, the DoD
mirrors the language of Executive Order 12600, which says that when
providing the submitter of commercial information the opportunity to
provide comment on the agency's release of its information under the
FOIA, DoD Components should provide the submitter with a reasonable
amount of time to comment. The commenter recommends, instead, that the
submitter be given ten business days to respond to the notice with
reasons for withholding disclosure. If the submitter fails to respond
within the allotted ten days, the Agency must conclude that the
submitter has no objection to disclosure of the requested information.
Response: We appreciate this comment, and agree that ten business
days is a very reasonable time frame. However, because of the wide
diversity of acquisition environments within the Department of Defense,
it may be the case a longer period of time would be more reasonable.
The DoD Components have very different acquisition environments; we
have contracts concerning, for example, uniforms, office supplies,
landscaping, complex information technology systems, satellites,
healthcare, construction, and food. Accordingly, we believe that the
individual components are best situated to determine the reasonable
time for submitter response for their unique situations.
Comment: Once commenter recommends that upon submission of
confidential information by the submitter to the DoD, the DoD should
require the submitter to designate with good-faith effort any portions
of the submission the submitter considers to be exempt under Exemption
4. A good-faith effort designation can be useful because it allows the
DoD to work with information submitted beforehand that would help in
its determination on whether to disclose information submitted by the
submitter. They further suggest that the submitter's designation expire
ten years after the date of submission unless the submitter requests,
and provides justification for, a longer designation period. They state
that the proposed section should be added as follows: ``Designation of
confidential business information. In the event a FOIA request is made
for confidential business information previously submitted to the
Government by a commercial entity or on behalf of it (referred to as a
`submitter'), the regulations in this section apply. When submitting
confidential business information, the submitter must use a good-faith
effort to designate, by use of appropriate markings, at the time of
submission or at a reasonable time thereafter (generally, within 30
days), any portions of the submitter's submission the submitter
considers to be exempt from disclosure under FOIA Exemption 4, 5 U.S.C.
552(b)(4). The submitter's designation will expire ten years after the
date of submission unless the submitter requests, and provides
justification for, a longer designation period.''
Response: Some DoD Components have adopted a similar practice, and
we believe that given the wide variety of DoD contracts (as described
in the previous response), this procedure is best left with the
components to determine whether it's appropriate for them.
Additionally, this is actually an acquisition and not a FOIA policy
recommendation; therefore, this rule is not the appropriate place for
the policy. Furthermore, this policy (of proactively determining the
confidential business information without a FOIA request) suffers from
a defect. When a FOIA request is received for this type of information,
the FOIA provides the ``push'' to the Agency to release the
information, and Executive Order 12600 provides the submitter the
opportunity to protect it. With the FOIA, the Agency has the legal
authority to release information over the objections of the submitter,
and with the Executive Order the submitter can prevent such a release
under the Administrative Procedures Act. However, in the process
recommended by this commenter, if the submitter asks the Agency to
protect information that the Agency clearly
[[Page 1195]]
believes is not protectable under Exemption 4, it has no recourse to
persuade or convince the submitter to made a more reasonable
determination. The inevitable, yet unintended, consequence would be
less contract information being released to the public; in effect, less
transparency.
Comment: A commenter discussed our proposed rule's reference to the
FOIA exclusions, 5 U.S.C. 552(c)(1)-(3). They believe that this allows
the DoD to make a misrepresentation regarding the actual existence of
records to the requester. Specifically, they objected to the following
wording: Because of the possibility of the existence of excluded
records, DoD law enforcement components will respond to all FOIA
requests when no records are located or when located records fall
within an exclusion by stating that no records responsive to the FOIA
were found.
This commenter believes ``the justification the proposed regulation
provides for misrepresentation--`the possibility of the existence of
excluded records'--is insufficient. The FOIA contemplates a need for
nondisclosure in cases of records the release of which could threaten
the efficacy of law enforcement, but in no way does it countenance
lying to requesters. Law enforcement may reasonably demand flexibility
in the principles of open government that the FOIA seeks to advance,
but it cannot require complete abdication of those principles. It is
also unclear from the proposed regulations whether the DoD would
believe itself authorized to make misrepresentations to Legislatures as
to the existence of (b)(7) records.''
This commenter recommends instead that the agency follow the
approach set out in the Department of Justice's guidelines regarding
exclusions. The agency should have internal accountability mechanisms
to ensure that exclusions are not overused. It should also include
language in all FOIA responses informing the requester of the existence
of exclusions and should also post information about exclusions on its
public Web site.
Response: The procedures that we had in the proposed rule were
appropriate and in accordance with the Act and DOJ procedural guidance.
However, we have deleted much of the procedural guidance for exclusions
and now our section on this topic mirrors the DOJ FOIA regulation
template.
Comment: One commenter appreciated the requirement that a FOIA
Requester Service Center must provide a requester with an estimated
date of completion for their FOIA request when the requester enquires
about the status of a request. However, the commenter also indicated
that there is not a good accountability measure listed to ensure that
dates given are given in good faith.
Response: We are not sure what the commenter means by
``accountability measure,'' or how it would apply to this rule.
Therefore, we did not adopt their recommendation.
Comment: One commenter recommend that in the section concerning
expedited processing, we should provide examples of compelling need,
imminent loss of due process rights, and humanitarian need.
Response: We appreciate this comment; however, for the sake of
brevity, we are not including examples. Furthermore, in this case the
use of examples risks the possibility of adding confusion to the
understanding of the issue.
Comment: One commenter is concerned that we were separating the
definition of compelling need from the main body of the regulation.
Response: We appreciate this comment. Our previous proposed rule
had a definitions section separate from the body of the rule. Now that
we are publishing our rule according to the DOJ FOIA regulation
template, the definition is located within the body of the rule.
Comment: In the fees section of our proposed rule, and in our
current rule, we have a ``business as usual approach'' concerning the
costs associated with the processing of electronic records.
Specifically, the proposed rule said that a ``business as usual
approach exists when the DoD Component has the capability to process a
FOIA request for electronic records without a significant expenditure
of monetary or personnel resources. DoD Components are not required to
conduct a search that does not meet this business as usual criterion.''
A commenter mentions that this has no foundation in law, and obfuscates
the true reasonableness standard for electronic searches set out in 5
U.S.C. 552(a)(3)(C). They propose that it should be eliminated.
Response: We agree with the commenter and have removed the
``business as usual'' criterion.
Comment: One commenter is concerned about the absence of
``substantial interest'' in the discussion of consultations with and
referrals to other agencies, agency components, or non-government
entities. They mention the proposed rule contains varying references to
``substantial interest,'' ``equity interest,'' and ``interest or
equity.'' This commenter recommends that DoD standardize its language
by using ``substantial interest'' to avoid confusion. It also should
provide a clear statement that consultation ought never to occur with
an entity that does not possess a substantial interest in responsive
records.
Response: Because we have adopted the DOJ FOIA regulation template,
we have standardized the use of the word ``interest,'' it is not
further modified by ``substantial'' or ``equity''.
Comment: One commenter recommends that DoD revise the practice of
not advising FOIA requesters that a consultative process has been
undertaken ``unless information is withheld by the consulted agency.''
This commenter believes that ``transparency and an open government--
hallmarks of FOIA--mandate that agencies provide requesters with this
information.''
Response: Because we have adopted the DOJ FOIA regulation template,
which does not include this practice, the interim final rule also does
not include guidance to not inform FOIA requesters of consultations.
Comment: Concerning the procedure of advising FOIA requesters of
their appeal rights, one commenter states that the time limits on
submission of administrative appeals should recognize the Justice
Department's statements on the possibility of lengthy delays on mail
reaching government agencies due to security screening. They suggest
that the postmark of the letter can be used to satisfy the appeal
deadline for an administrative appeal, as is permitted in most legal
situations.
Response: With our adoption of the DOJ FOIA regulation template, we
have now adopted this procedure.
Comment: One commenter mentions the language in our proposed rule
which concerns commercial requesters. It indicates that a
``representative of the news media could make a FOIA request that is
for commercial use (e.g., a magazine publisher asking for duty
addresses of DoD personnel to solicit them to buy subscriptions to the
magazine).'' The commenter notes that while it is theoretically
possible that if a FOIA request could be submitted to DoD by a member
of the news media for such a purpose, such a scenario is unlikely and,
at the very least, uncommon. This commenter further contents that a
FOIA request is submitted by a member of the news media, there should
be a strong presumption that the requestor is entitled to
classification as a ``representative of the news media'' for fee
purposes.
Response: We agree, and with our adoption of the DOJ FOIA
regulation template, this subsection was deleted.
Comment: One commenter mentions that our proposed subsection on
fees
[[Page 1196]]
discusses examples of news media entities such as publishers of
periodicals who make their products available for purchase or
subscription by the general public. This commenter believes that this
requirement fails to include the large variety and number of online
news organizations, many of which provide their products free of charge
to internet readers. Therefore, they propose that the subsection should
be adjusted to recognize this reality. They ask that we ``remove the
requirement that a publisher of periodicals must make their products
available for purchase or subscription, as that requirement
unnecessarily impedes the qualification of many legitimate news media
entities at the present time.''
Response: Because we are adopting the DOJ FOIA regulation template,
this phrase is no longer in our regulation.
Comment: Another commenter had a similar issue with this section.
``[The] FOIA states that examples of news-media entities include
`publishers of periodicals . . . who make their products available for
purchase by or subscription by or free distribution to the general
public.' The Proposed Rule, on the other hand, inexplicably truncates
the definition to exclude publishers that make their publications
available for `free distribution to the general public.' There are
countless media entities that provide their services to the public for
free or through an advertisement-based model, including the
overwhelming majority of broadcast and online news outlets. ABC News,
National Public Radio, CBS News, Slate, NBC News, Politico, Pro
Publica, and PBS are just a handful of examples of organizations that
provide news to the public for free. It would be absurd for the DoD not
to recognize these and other news organizations that provide free or
advertising-supported journalism as representatives of the news
media.''
``Furthermore, the authority under which the DoD is empowered to
promulgate regulations regarding its implementation of FOIA, 5 U.S.C.
552(a)(4)(A)(i), states that [s]uch agency regulations shall provide
that . . . [e]xamples of news-media entities are . . . publishers of
periodicals (but only if such entities qualify as disseminators of
`news') who make their products available for purchase by or
subscription by or free distribution to the general public.''
``While the statute says such examples are `not all-inclusive,' the
DoD cannot promulgate regulations that are less inclusive than what
Congress has indicated. As the Supreme Court has held with regard to an
agency's construction of a statute which it administers, `[i]f the
intent of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress.' Therefore, [we urge] the DoD to expand
its definition of news-media entities to include publishers who make
their products available for free to the public, in accordance with the
express direction of Congress in the 2007 OPEN Government Act.''
Response: Our adoption of the DOJ FOIA regulation template revises
this subsection to satisfactorily adopt this commenter's
recommendation.
Comment: One commenter requests that DoD elaborate on the meaning
of ``alternative media.'' Specifically, they state: ``While DoD has
followed FOIA's instruction to consider evolving `methods of news
delivery' and `alternative media' formats when defining a news media
entity, the proposed section would benefit from some examples that
could provide guidance to FOIA officers when considering fee category
requests. Specifically, [we are] concerned that nascent news media
organizations, which have yet to demonstrate a large readership or a
history of reporting and dissemination, could be excluded.''
``Ensuring an expanded definition of `alternative media' is
entirely consistent with judicial precedent. For example, the U.S.
Court of Appeals for the District of Columbia Circuit has noted that
FOIA's legislative history demonstrates `it is critical that the phrase
`representative of the news media' be broadly interpreted if the act is
to work as expected. . . . In fact, any person or organization which
regularly publishes or disseminates information to the public . . .
should qualify . . . as a `representative of the news media.' The U.S.
District Court for the District of Columbia has similarly construed
DoD's current fee category regulation, 32 CFR 286.28(e)(7)(i), to
include, for example, regular publishers of periodicals, even when
those periodicals are simply disseminated by email or posted on a
frequently visited Web site.''
``The legislative history of FOIA also suggests the need for
improvement in the treatment of `alternative media.' Senator Patrick
Leahy, co-sponsor of the OPEN Government Act, stated that the changes
to the definition of `representative of the news media' would ensur[e]
that anyone who gathers information to inform the public, including . .
. bloggers, may seek a fee waiver[.]' He also stated that the new
definition covered `Internet blogs and other Web-based forms of media .
. . free newspapers and individuals performing a media function who do
not necessarily have a prior history of publication.' Co-sponsor
Senator John Cornyn affirmed Senator Leahy's view that the new
definition `grants the same privileged FOIA fee status currently
enjoyed by traditional media outlets to bloggers and others who publish
reports on the Internet.' ''
``Accordingly, [we request] that DoD expand the proposed definition
of `representative of the news media' by incorporating the entirety of
the statutory standard and by adding some short indication of the
application of fee category to non-traditional news media forms and
requesters.''
Response: We understand and appreciate this recommendation;
however, we are not revising this subsection as requested. We do not
believe that an expanded definition of ``alternative media'' is
necessary. Any such elaboration or definition risks excluding some
types of alternative media. Additionally, the DOJ FOIA regulation
template, which we have adopted, does not contain any such expanded
definition.
Comment: This same commenter requests ``that DoD provide further
explanation of how it will determine whether potential news media
requesters possess the editorial skill to use responsive records to
create a `distinct work' and the sufficient intent to `distribute[]
that work to an audience.' News media requesters often prove this skill
and intent with varying levels of specificity. DoD should clarify the
standard of proof it will apply to these requests. Moreover, it should
clarify the extent to which information about the requester that is not
contained in the request will be used to determinate the veracity of a
requester's claims. For example, DoD should explain whether it is
appropriate to examine the history of an organization, its past
practices with regard to FOIA records, and the detail of its planned
use of responsive records, subject to editorial considerations and the
content of the production. [We recommend] that DoD permit after-the-
fact factual considerations, but that it remind FOIA offices that news
media requester status is not static, so as to accommodate nascent news
media persons or entities and others transitioning into news
reporting.''
Response: We appreciate this recommendation; however, we do not
believe that this rule is the appropriate place for a further
explanation of how we should determine whether a potential news media
requester meets
[[Page 1197]]
the statutory standard or not. DOJ has not provided guidance in this
area, and if they do we will pass it to the DoD Components.
Comment: This commenter also points out that the proposed rule
states, in part, that ``[f]reelance journalists may be regarded as
working for a news organization. . . .'' This commenter contends that
``this language appears to largely mirror the language in the 2007 OPEN
Government Act, which was codified at 5 U.S.C. 552(a)(4)(A)(iii).
However, the language of the Proposed Rule changes the imperative
`shall' of FOIA to a permissive `may.' As stated above, the authority
under which the DoD is empowered to promulgate regulations regarding
its implementation of FOIA, 5 U.S.C. 552(a)(4)(A)(i), states that
`[s]uch agency regulations shall provide that . . . [a] freelance
journalist shall be regarded as working for a news-media entity. . . .'
The DOD has no power to modify a clear and essential term contained in
a statute through the regulatory process. The Proposed Rule must be
changed such that it properly reflects the will of Congress.''
Response: The DOJ FOIA regulation template, which we adopted, uses
the term ``will'' which we believe has the same imperative force as
``shall''.
Comment: This commenter also is concerned that a subsection of the
proposed rule may be interpreted too narrowly by FOIA officers. The
proposed rule states that ``[a] person or entity that merely
disseminates documents received pursuant to the FOIA to an audience
would not qualify as a representative of the news media because, in
this case, the person or entity is not using editorial skills to turn
raw materials into a distinct work.'' The commenter contends ``While it
is true that FOIA defines `a representative of the news media' as a
person or entity that gathers information and uses its editorial skills
to turn such information into a distinct work for distribution, the
Proposed Rule would benefit from clarifying language instructing FOIA
officers that it should be interpreted liberally in favor of the
requestor. A person or entity that meets the definition of `a
representative of the news media' may, in certain circumstances,
disseminate documents received pursuant to a FOIA request in full,
oftentimes publishing such documents online alongside or as a
supplement to a news article or other commentary. This practice is
beneficial, and should not lead to the denial of media fee status.''
Response: We believe that this paragraph does not contradict the
FOIA; it is very clear that the Act requires a representative of the
news media to use ``editorial skills.'' However, since this sentence is
not in the DOJ FOIA regulation template, we do not have it in our
interim rule.
Regulatory Procedures
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This interim final rule has been designated a
``significant regulatory action,'' although not economically
significant, under section 3(f) of Executive Order 12866. Accordingly,
the rule has been reviewed by the Office of Management and Budget (OMB)
under the requirements of these Executive Orders.
Public Law 104-4, ``Unfunded Mandates Reform Act'' (2 U.S.C. Ch. 25)
This interim final rule is not subject to the Unfunded Mandates
Reform Act because it does not contain a federal mandate that may
result in the expenditure by state, local, and tribal governments, in
the aggregate, or by the private sector, of $100M or more in any one
year.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Ch. 6)
It has been certified that this interim final rule is not subject
to the Regulatory Flexibility Act because it does not have a
significant economic impact on a substantial number of small entities.
The rule implements the procedures for processing FOIA requests within
the Department of Defense, which do not create such an impact.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Ch. 35)
This interim final rule does not impose reporting or recordkeeping
requirements under the Paperwork Reduction Act of 1995.
Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a rule that imposes substantial
direct requirement costs on state and local governments, preempts state
law, or otherwise has federalism implications. This interim final rule
will not have a substantial effect on state and local governments, or
otherwise have federalism implications.
List of Subjects in 32 CFR Part 286
Freedom of Information Act.
0
Accordingly, 32 CFR part 286 is revised to read as follows:
Subpart A--General Provisions
Sec.
286.1 Purpose.
286.2 Applicability.
Subpart B--FOIA Requests
286.3 General information.
286.4 FOIA Public Liaisons and the Office of Government Information
Services.
286.5 Description of records sought.
286.6 Preservation of records.
Subpart C--FOIA Request Processing
286.7 General provisions.
286.8 Timing of responses to requests.
286.9 Responses to requests.
286.10 Confidential Commercial Information.
Subpart D--Appeals
286.11 Processing of appeals.
Subpart E--Fees
286.12 Schedule of fees.
286.13 Fees for technical data.
Authority: 5 U.S.C. 552.
PART 286--DOD FREEDOM OF INFORMATION ACT (FOIA) PROGRAM
Subpart A--General Provisions
Sec. 286.1 Purpose.
This part contains the rules that the public follows in requesting
information from the Department of Defense (DoD) in accordance with the
FOIA, as amended, 5 U.S.C. 552, and how those requests will be
processed by the DoD. These rules should be read in conjunction with
the text of the FOIA and the Uniform Freedom of Information Fee
Schedule and Guidelines published by the Office of Management and
Budget (``OMB Guidelines''). Requests made by individuals for records
about themselves under the Privacy Act of 1974, as amended, 5 U.S.C.
552a, are processed in accordance with 32 Code of Federal Regulations
(CFR) part 310. Additionally, the Directorate for Oversight and
Compliance maintains a DoD FOIA Handbook for the public to use in
obtaining information from the DoD. This handbook contains information
about specific procedures particular to the DoD with respect to the
[[Page 1198]]
public requesting DoD records. This handbook includes descriptions of
DoD Components and the types of records maintained by different DoD
Components. It is available at https://open.defense.gov/Transparency/FOIA/FOIAHandbook.aspx.
Sec. 286.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD),
the Military Departments, the Office of the Chairman of the Joint
Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office
of the Inspector General of the Department of Defense, the Defense
Agencies, the DoD Field Activities, and all other organizational
entities within the DoD (referred to collectively in this part as the
``DoD Components'').
Subpart B--FOIA Requests
Sec. 286.3 General information.
(a) The DoD has a decentralized system for responding to FOIA
requests, with each DoD Component designating at least one FOIA
Requester Service Center (RSC) to process records from that component.
All DoD RSCs have the capability to receive requests electronically
either through email or a web portal. To make a request for records, a
requester should write directly to the DoD Component that maintains the
records being sought. A request will receive the quickest possible
response if it is addressed to the RSC of the DoD Component that
maintains the records sought. Addresses and contact information for the
RSCs are available at https://www.foia.gov/report-makerequest.html. This
Web site has the contact information for the following DoD Components:
The OSD and the Office of the Chairman of the Joint Chiefs of Staff and
the Joint Staff, Department of the Army, Department of the Navy,
Department of the Air Force, Armed Services Board of Contract Appeals,
Defense Commissary Agency, Defense Contract Audit Agency, Defense
Contract Management Agency, Defense Finance and Accounting Service,
Defense Health Agency, Defense Information Systems Agency, Defense
Intelligence Agency, Defense Logistics Agency, Defense Security
Service, Defense Technical Information Center, Defense Threat Reduction
Agency, Joint Personnel Recovery Agency, DoD Education Activity,
National Geospatial-Intelligence Agency, National Guard Bureau,
National Reconnaissance Office, National Security Agency/Central
Security Service, Office of the Inspector General of the Department of
Defense, United States Africa Command, United States Central Command,
United States European Command, United States Northern Command, United
States Pacific Command, United States Special Operations Command,
United States Strategic Command, and United States Transportation
Command.
(b) The OSD/Joint Staff FOIA RSC also processes FOIA requests for
the Criminal Investigation Task Force, Defense Acquisition University,
Defense Advanced Research Projects Agency, Defense Equal Opportunity
Management Institute, Defense Legal Services Agency, Defense
Microelectronics Activity, Defense Media Activity, Defense POW/MIA
Accounting Agency, Defense Security Cooperation Agency, Defense
Technology Security Administration, Defense Travel Management Office,
DoD Human Resources Activity, DoD Test Resource Management Center,
Joint Improvised-Threat Defeat Agency, Missile Defense Agency, National
Defense University, Office of Economic Adjustment, Pentagon Force
Protection Agency, Uniform Services University of the Health Sciences,
Washington Headquarters Services and White House Military Office.
(c) A requester who is making a request for records about himself
or herself, regardless of whether the records are in a Privacy Act
system of records, must comply with the verification of identity
requirements as determined by the DoD Component in accordance with 32
CFR part 310.
Sec. 286.4 FOIA Public Liaisons and the Office of Government
Information Services.
(a) Each DoD Component has at least one FOIA Public Liaison. FOIA
Public Liaisons are responsible for working with requesters that have
any concerns about the service received from a FOIA RSC, reducing
delays in the processing of FOIA requests, increasing transparency and
understanding of the status of requests, and assisting in the
resolution of disputes. Contact information for DoD Component FOIA
Public Liaisons is available at https://www.foia.gov/report-makerequest.html.
(b) Engaging in dispute resolution services provided by OGIS.
Mediation is a voluntary process. If a requester seeks dispute
resolution services from the Office of Government Information services
(OGIS), the DoD will actively engage as a partner to the process in an
attempt to resolve the dispute.
Sec. 286.5 Description of records sought.
(a) Requesters must reasonably describe the records sought and
provide sufficient detail to enable personnel to locate those records
with a reasonable amount of effort. To the extent possible, requesters
should include specific information that may assist personnel in
identifying the requested records, such as the date, title or name,
author, recipient, subject matter of the record, case number, file
designation, or reference number. Before submitting their requests,
requesters may contact the DoD Component's FOIA RSC or FOIA Public
Liaison to discuss the records they are seeking and to receive
assistance in describing the records. If after receiving a request the
DoD Component determines that it does not reasonably describe the
records sought, the DoD Component shall inform the requester what
additional information is needed or why the request is otherwise
insufficient. Requesters who are attempting to reformulate or modify
such a request may discuss their request with the DoD Component's FOIA
contact or FOIA Public Liaison. Requesters are encouraged to make every
effort to reasonably describe the requested records in order to avoid
any delays in the processing of their requests.
(b) Requesters may specify the preferred form or format (including
electronic formats) for the requested records. DoD Components will
accommodate the request if the record is readily reproducible in that
form or format.
(c) Requesters must provide contact information, such as a
telephone number, email address, and/or mailing address, to assist the
DoD Component in communicating and providing released records.
Sec. 286.6 Preservation of records.
Each DoD Component shall preserve all correspondence pertaining to
the requests that it receives under this part, as well as copies of all
requested records, until disposition or destruction is authorized
pursuant to title 44 of the United States Code or the General Records
Schedule 4.2 of the National Archives and Records Administration
(NARA). Records shall not be disposed of or destroyed while they are
the subject of a pending request, appeal, or lawsuit under the FOIA.
Subpart C--FOIA Request Processing
Sec. 286.7 General provisions.
(a) Responsibilities. The DoD Component receiving a FOIA request
for a record that it maintains is responsible for making a
determination on the request and responding to the FOIA requester. In
determining which records are responsive to a request, a DoD Component
ordinarily will include only records in its possession as of the date
[[Page 1199]]
that it begins its search. If any other date is used, the DoD Component
shall inform the requester of that date. A record that is excluded from
the requirements of the FOIA pursuant to 5 U.S.C. 552(c), is not
considered responsive to a request.
(b) Authority to deny requests. DoD Components will designate one
or more Initial Denial Authorities (IDA) with the authority to deny any
requests for records that are maintained by that agency.
(c) Re-routing of misdirected requests. DoD Components receiving a
misdirected FOIA request for records clearly originating with another
DoD Component (e.g. the Air Force receives a FOIA request for a Navy
contract) will route the FOIA request to the appropriate DoD Component
and inform this DoD Component of the date the FOIA request was
initially received. Additionally, it will advise the FOIA requester of
the routing of the request. This routing requirement only applies to
those FOIA requests directed to a DoD Component that seek documents for
which the DoD is responsible. If it is known that responsibility for
the requested records rests with a non-DoD Federal agency (e.g.,
Department of State), then the DoD Component need only advise the FOIA
requester to submit the FOIA request to the proper Federal agency. DoD
Components will not route misdirected FOIA requests to a Defense
Criminal Investigation Organization or Intelligence Community component
without first contacting the other component or agency for guidance.
(d) Consultation, referral, and coordination. When reviewing
records located in response to a request, the DoD Component may
determine that another DoD Component or Federal agency also should
determine whether the record is exempt from disclosure under the FOIA.
As to any such record, the DoD Component shall proceed in one of the
following ways:
(1) Consultation. When records originating with a DoD Component
that is initially processing a request contain information of interest
to another DoD Component or other Federal agency, the DoD Component
initially processing the request should typically consult with all
interested DoD Components or other Federal agencies prior to making a
release determination. The DoD Component initially processing the
request, under these circumstances, will ultimately respond to the
requester and release any responsive material. The consulted DoD
Component will notify the sending DoD Component or other Federal agency
when the consultation is received and the consultation tracking number.
(2) Referral. (i) When the DoD Component initially processing the
request believes that a different DoD Component or other Federal agency
is best able to determine whether to disclose the record, the DoD
Component typically should refer the responsibility for responding to
the request regarding that record to that agency. Ordinarily, the
agency that originated the record will be presumed to be best able to
make the disclosure determination. Under these circumstances, the DoD
Component or other Federal agency receiving the referral will
ultimately make a release determination on the records and respond to
the requester.
(ii) Whenever a DoD Component refers a record to another DoD
Component or Federal agency, it will document the referral, refer a
copy of the referred record, and notify the requester of the referral,
informing the requester of the name and FOIA address of the DoD
Component or Federal agency to which the record was referred.
(3) Coordination. The standard referral procedure is not
appropriate where disclosure of the identity of the DoD Component or
agency to which the referral would be made could harm an interest
protected by an applicable exemption, such as the exemptions that
protect personal privacy or national security interests. Under these
circumstances, the consultation process is the appropriate means for
coordination. See Sec. 286.7(d)(1). For example, if a non-law
enforcement agency responding to a request for records on a living
third party locates within its files records originating with a law
enforcement agency, and if the existence of that law enforcement
interest in the third party was not publicly known, then to disclose
that law enforcement interest could cause an unwarranted invasion of
the personal privacy of the third party. Similarly, if a DoD Component
locates within its files material originating with an Intelligence
Community agency, and the involvement of that agency in the matter is
classified and not publicly acknowledged, then to disclose or give
attribution to the involvement of that Intelligence Community agency
could cause national security harms. In such instances, in order to
avoid harm to an interest protected by an applicable exemption, the DoD
Component that received the request should coordinate with the
originating DoD Component or agency to seek its views the disclosure of
the record. The release determination for the record should then be
conveyed to the requester by the DoD Component that originally received
the request.
(4) Timing of responses to consultations and referrals. All
consultations and referrals received by the DoD Component will be
processed according to the date that the FOIA request was initially
received by a Federal agency.
(5) Agreements regarding consultations and referrals. DoD
Components may establish written agreements with other DoD Components
or other Federal agencies to eliminate the need for consultations or
referrals with respect to particular types of records, providing these
agreements do not conflict with this rule, or another law, rule, or
regulation.
Sec. 286.8 Timing of responses to requests.
(a) In general. DoD Components ordinarily will respond to requests
on a first-in/first-out basis according to their order of receipt. In
instances involving misdirected requests that are re-routed pursuant to
Sec. 286.7(c), the response time will commence on the date that the
request is received by the appropriate DoD Component's FOIA RSC, but in
any event not later than 10 working days after the request is first
received by any DoD Component's FOIA RSC that is designated to receive
requests.
(b) Multitrack processing. All DoD Components must designate a
specific track for requests that are granted expedited processing in
accordance with the standards set forth in the FOIA and paragraph (e)
of this section. DoD Components may also designate additional
processing tracks that distinguish between simple and more complex
requests based on the estimated amount of work or time needed to
process the request. Among the factors a DoD Component may consider are
the number of records requested, the number of pages involved in
processing the request and the need for consultations or referrals. DoD
Components should advise requesters of the track into which their
request falls and, when appropriate, shall offer the requesters an
opportunity to narrow or modify their request so that it can be placed
in a different processing track.
(c) Unusual circumstances. Whenever the statutory time limit for
processing a request cannot be met because of ``unusual
circumstances,'' as defined in the FOIA, and the DoD Component extends
the time limit on that basis, the DoD Component must, before expiration
of the 20-day period to respond, notify the requester in writing of the
unusual circumstances involved and of the date by which processing of
the request can be expected to be completed. See 5
[[Page 1200]]
U.S.C. 552(a)(6)(B). Where the extension exceeds 10 working days, the
DoD Component shall, in accordance with the FOIA, provide the requester
with an opportunity to modify the request or arrange an alternative
time period for processing the original or modified request.
Furthermore, the requester will be advised that the DoD Component FOIA
Public Liaison is available for this purpose and of their right to seek
dispute resolution services from OGIS.
(d) Aggregating requests. For the purposes of satisfying unusual
circumstances under the FOIA, DoD Components may aggregate requests in
cases where it reasonably appears that multiple requests, submitted
either by a requester or by a group of requesters acting in concert,
constitute a single request that would otherwise involve unusual
circumstances. DoD Components will not aggregate multiple requests that
involve unrelated matters.
(e) Expedited processing. (1) The FOIA establishes two reasons for
expediting the processing of initial FOIA requests: Compelling need and
other cases determined by the agency. See 5 U.S.C. 552(a)(6)(E).
Administrative appeals may be expedited for the same reasons. The DoD
Components must make expedited processing determinations within 10
calendar days after receipt of a request that meets the criterion of
reasonably describing the requested records in Sec. 286.5(a). Once the
DoD Component decides to grant expedited processing, the request is
processed as soon as practicable. Adverse actions by DoD Components on
requests for expedited processing, or a failure to respond to those
requests in a timely manner, are subject to judicial review.
(i) Compelling need. Expedited processing is granted to a requester
upon a specific request for such and when the requester demonstrates a
compelling need for the information. A compelling need exists when:
(A) The failure to obtain requested records on an expedited basis
could reasonably be expected to pose an imminent threat to the life or
physical safety of an individual, or
(B) The information is urgently needed by an individual primarily
engaged in disseminating information in order to inform the public
concerning actual or alleged government activity.
(ii) DoD additional expedited processing circumstances. If the DoD
Component decides to expedite the request for either of the following
reasons, the request will be processed in the expedited track behind
those requests qualifying for expedited processing as a compelling
need.
(A) Imminent loss of due process rights. Expedited processing is
granted to a requester if loss of substantial due process rights is
imminent.
(B) Humanitarian need. Expedited processing is granted when the
failure to obtain the requested information on an expedited basis could
reasonably be expected to harm substantial humanitarian interests.
(2) A request for expedited processing may be made at any time.
Requests for expedited processing must be submitted to the DoD
Component that maintains the records. When making a request for
expedited processing of an administrative appeal, the request should be
submitted to the DoD Component's appellate authority.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, explaining in detail the
basis for making the request for expedited processing. For requesters
seeking expedited processing under paragraph (e)(1)(i)(B) of this
section, a requester who is not a full-time member of the news media
must establish that the requester is a person whose primary
professional activity or occupation is information dissemination, and
not an incidental or secondary activity, though it need not be the
requester's sole occupation. Such a requester also must establish a
particular urgency to inform the public about the government activity
involved in the request--one that extends beyond the public's right to
know about government activity generally. The existence of numerous
articles published on a given subject can be helpful in establishing
the requirement that there be an ``urgency to inform'' the public on
the topic. Requests for expedited processing under paragraph
(e)(1)(ii)(A) of this section must include a description of the due
process rights that would be lost. This statement must be with the
request for expedited processing for it to be considered and responded
to within the 10 calendar days required for decisions on expedited
access.
(4) A DoD Component shall notify the requester within 10 calendar
days of the receipt of a request for expedited processing of its
decision whether to grant or deny expedited processing. If expedited
processing is granted, the request shall be placed in the processing
track for expedited requests, and processed as soon as practicable. If
a request for expedited processing is denied, any appeal of that
decision shall be acted upon expeditiously.
Sec. 286.9 Responses to requests.
(a) In general. DoD FOIA RSCs will, to the extent practicable,
communicate with requesters having access to the Internet using
electronic means, such as email or web portal.
(b) Acknowledgments of requests. DoD Components will acknowledge
requests in writing and assign individualized tracking numbers. DoD
Components will include these tracking numbers and any tracking numbers
used by FOIA requesters in all correspondence.
(c) Estimated dates of completion and interim responses. Upon
request, the DoD Component will provide an estimated date by which the
DoD Component expects to provide a response to the requester. If a
request involves a voluminous amount of material or searches in
multiple locations, the DoD Component may provide interim responses,
releasing the records on a rolling basis.
(d) Grants of requests. Once a DoD Component makes a determination
to grant a request in full or in part, it shall notify the requester in
writing. The DoD Component also shall inform the requester:
(1) Of any fees charged under Sec. 286.12; and
(2) That they may contact the DoD Component FOIA Public Liaison for
further assistance.
(e) Adverse determinations of requests. A DoD Component making an
adverse determination denying a request in any respect will notify the
requester of that determination in writing. Adverse determinations, or
denials of requests, include decisions that the requested record is
exempt, in whole or in part; the request does not reasonably describe
the records sought; the information requested is not a record subject
to the FOIA; the requested record does not exist, cannot be located, or
has been destroyed; or the requested record is not readily reproducible
in the form or format sought by the requester. Adverse determinations
also include denials involving fees or fee waiver matters or denials of
requests for expedited processing.
(f) Content of denial. The denial will include:
(1) The name and title or position of the IDA;
(2) A brief statement of the reasons for the denial, including any
FOIA exemption applied by the DoD Component in denying the request;
(3) An estimate of the volume of any records or information
withheld, such as the number of pages or some other reasonable form of
estimation, although such an estimate is not required if the
[[Page 1201]]
volume is otherwise indicated by deletions marked on records that are
disclosed in part or if providing an estimate would harm an interest
protected by an applicable exemption;
(4) For any information denied under Exemption 1, the applicable
section or sections of the appropriate Executive order on
classification that establishing continued classification of the
information;
(5) For any information denied under Exemption 3, the specific
statute relied upon to deny the information along with a short
description of the statute;
(6) A statement that the requester must appeal no later than 90
days after the date of the denial and along with instructions on how to
appeal to the DoD Component appellate authority. The instructions will
include the appellate authority's duty title, the mailing address for
the appeal, and instructions on how the requester can appeal
electronically; and
(7) A statement advising the requester of their right to seek
dispute resolution services from the DoD Component FOIA Public Liaison
or OGIS.
(g) Markings on released documents. Records disclosed in part will
be marked clearly to show the amount of information deleted and the
exemption under which the deletion was made unless doing so would harm
an interest protected by an applicable exemption. The location of the
information deleted also will be indicated on the record, if
technically feasible.
(h) Use of record exclusions. (1) In the event that a DoD Component
identifies records that may be subject to exclusion from the
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the DoD Component
should confer with the Directorate for Oversight and Compliance, which
will confer with the Department of Justice, Office of Information
Policy (OIP), to obtain approval to apply the exclusion.
(2) A DoD Component invoking an exclusion shall maintain an
administrative record of the process of invocation and approval of the
exclusion by OIP.
Sec. 286.10 Confidential Commercial Information.
(a) Definitions.
(1) Confidential commercial information means commercial or
financial information obtained by the DoD Component from a submitter
that may be protected from disclosure under Exemption 4 of the FOIA, 5
U.S.C. 552(b)(4).
(2) Submitter means any person or entity, including a corporation,
State, or foreign government, but not including another Federal
Government entity, that provides confidential commercial information,
either directly or indirectly to the Federal Government.
(b) Designation of confidential commercial information. A submitter
of confidential commercial information must use good faith efforts to
designate by appropriate markings, at the time of submission, any
portion of its submission that it considers to be protected from
disclosure under Exemption 4. These designations shall expire 10 years
after the date of submission unless the submitter requests and provides
justification for a longer designation period.
(c) When notice to submitters is required. (1) The DoD Component
shall promptly provide written notice to the submitter of confidential
commercial information whenever records containing such information are
requested under the FOIA if the DoD Component determines that it may be
required to disclose the records, provided:
(i) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
Exemption 4; or
(ii) The DoD Component has a reason to believe that the requested
information may be protected from disclosure under Exemption 4, but has
not yet determined whether the information is protected from
disclosure.
(2) The notice shall include a copy of the requested records or
portions of records containing the information. In cases involving a
voluminous number of submitters, the DoD Component may post or publish
a notice in a place or manner reasonably likely to inform the
submitters of the proposed disclosure, instead of sending individual
notifications.
(d) Exceptions to submitter notice requirements. The notice
requirements of this section shall not apply if:
(1) The DoD Component determines that the information is exempt
under the FOIA, and therefore will not be disclosed;
(2) The information has been lawfully published or has been
officially made available to the public;
(3) Disclosure of the information is required by a statute other
than the FOIA or by a regulation issued in accordance with the
requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of
this section appears obviously frivolous. In such case, the agency
shall give the submitter written notice of any final decision to
disclose the information within a reasonable number of days prior to a
specified disclosure date.
(e) Opportunity to object to disclosure. (1) The DoD Component
shall specify a reasonable time period within which the submitter must
respond to the notice referenced in paragraph (c) of this section.
(2) If a submitter has any objections to disclosure, it should
provide the DoD Component a detailed written statement that specifies
all grounds for withholding the particular information under any
exemption of the FOIA. In order to rely on Exemption 4 as basis for
nondisclosure, the submitter must explain why the information
constitutes a trade secret or commercial or financial information that
is confidential.
(3) A submitter who fails to respond within the time period
specified in the notice shall be considered to have no objection to
disclosure of the information. The DoD Component is not required to
consider any information received after the date of any disclosure
decision. Any information provided by a submitter under this section
may itself be subject to disclosure under the FOIA.
(f) Analysis of objections. The DoD Component shall consider a
submitter's objections and specific grounds for nondisclosure in
deciding whether to disclose the requested information.
(g) Notice of intent to disclose. Whenever the DoD Component
decides to disclose information over the objection of a submitter, the
DoD Component shall provide the submitter written notice, which shall
include:
(1) A statement of the reasons why each of the submitter's
disclosure objections was not sustained;
(2) A description of the information to be disclosed or copies of
the records as the DoD Component intends to release them; and
(3) A specified disclosure date, which shall be a reasonable time
after the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of confidential commercial
information, the DoD Component shall promptly notify the submitter.
(i) Requester notification. The DoD Component shall notify a
requester whenever it provides the submitter with notice and an
opportunity to object to disclosure; whenever it notifies the submitter
of its intent to disclose the requested information over the
submitter's objections; and whenever a submitter files a lawsuit to
prevent the disclosure of the information.
[[Page 1202]]
Subpart D--Appeals
Sec. 286.11 Processing of appeals.
(a) Requirements for making an appeal. A requester may appeal any
adverse determinations to the DoD Component's appellate authority.
Examples of adverse determinations are provided in Sec. 286.9(e).
Appeals can be submitted by mail or online in accordance with the
requirements provided in the DoD Component's final response. Requesters
that are not provided with appeal requirements should contact the FOIA
RSC processing their request to obtain the requirements. The requester
must make the appeal in writing and to be considered timely it must be
postmarked, or in the case of electronic submissions, transmitted,
within 90 calendar days after the date of the response. The appeal
should clearly identify the determination that is being appealed and
the assigned request number. To facilitate handling, the requester
should mark both the appeal letter and envelope, or subject line of the
electronic transmission, ``Freedom of Information Act Appeal.''
(b) Adjudication of appeals. (1) The Heads of the following DoD
Components will serve as, or appoint an appropriate official to serve
as, the component's appellate authority: Department of the Army,
Department of the Navy, Department of the Air Force, Defense Commissary
Agency, Defense Contract Audit Agency, Defense Contract Management
Agency, Defense Finance and Accounting Service, Defense Health Agency,
Defense Information Systems Agency, Defense Intelligence Agency,
Defense Logistics Agency, Defense Security Service, Defense Threat
Reduction Agency, National Geospatial-Intelligence Agency, National
Reconnaissance Office, National Security Agency/Central Security
Service, and the Office of the Inspector General of the Department of
Defense.
(2) The Deputy Chief Management Officer (DCMO) will serve as the
appellate authority for the OSD and the Office of the Chairman of the
Joint Chiefs of Staff and the Joint Staff, Armed Services of Contract
Appeals, Defense Technical Information Center, Joint Personnel Recovery
Agency, DoD Education Activity, National Guard Bureau, United States
Africa Command, United States Central Command, United States European
Command, United States Northern Command, United States Pacific Command,
United States Special Operations Command, United States Strategic
Command, and United States Transportation Command. The DCMO may
delegate this authority to an appropriate official of the DCMO staff.
(3) An appeal will normally not be adjudicated if the request
becomes a matter of FOIA litigation. This decision should be made after
consultation with the Department of Justice attorney responsible for
the litigation.
(c) Decisions on appeals. A decision on an appeal must be made in
writing and signed by the appellate authority. A decision that upholds
a DoD Component's determination in whole or in part will contain a
statement that identifies the reasons for the affirmance, including any
FOIA exemptions applied. The decision will provide the requester with
notification of the statutory right to file a lawsuit. If a decision is
remanded or modified on appeal, the requester will be notified of that
determination in writing. The DoD Component will thereafter further
process the request in accordance with that appeal determination and
respond directly to the requester.
(d) When an appeal is required. A requester generally must first
submit a timely administrative appeal before seeking review by a court
of a DoD Component's adverse determination.
Subpart E--Fees
Sec. 286.12 Schedule of fees.
(a) In general. DoD Components shall charge for processing requests
under the FOIA in accordance with the provisions of this section and
with the OMB Guidelines. For purposes of assessing fees, the FOIA
establishes three categories of requesters: Commercial; non-commercial
scientific or educational institutions or news media; and all other
requesters. Different fees are assessed depending on the category.
Requesters may seek a fee waiver. DoD Components shall consider such
requests in accordance with the requirements in paragraph (m) of this
section. In order to resolve any fee issues that arise under this
section, a DoD Component may contact a requester for additional
information. DoD Components shall ensure that searches, review, and
duplication are conducted in the most efficient and least expensive
manner. Requesters must pay fees by check or money order made payable
to the Treasury of the United States.
(b) Definitions. For purposes of this section:
(1) Commercial use request is a request that asks for information
for a use or purpose that furthers a commercial, trade, or profit
interest, which can include furthering those interests through
litigation. A DoD Component's decision to place a requester in the
commercial use category will be made on a case-by-case basis based on
the requester's intended use of the information. DoD Components will
notify requesters of their placement in this category.
(2) Direct costs are those expenses that a DoD Component incurs in
searching for and, in the case of commercial use requests, reviewing
records in order to respond to a FOIA request. DoD direct costs for
human activity are at Table 1.
Table 1--FOIA Hourly Processing Fees
------------------------------------------------------------------------
Type Grade Hourly rate
------------------------------------------------------------------------
Administrative................. E-9/GS-8 and below..... $24
Professional................... Contractor/O-1 to O-6/W- 48
1 to W-5/GS-9 to GS-15.
Executive...................... O-7 and above and 110
Senior Executive
Service.
------------------------------------------------------------------------
(3) Duplication is reproducing a copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
(4) Educational institution is any school that operates a program
of scholarly research. A requester in this fee category must show that
the request is made in connection with his or her role at the
educational institution. DoD Components may seek verification from the
requester that the request is in furtherance of scholarly research and
will advise requesters of their placement in this category.
(5) Noncommercial scientific institution is an institution that is
not operated on a ``commercial'' basis, as defined in paragraph (b)(1)
of this section and that is operated solely for the purpose of
conducting scientific research the results of which are not intended to
promote any particular
[[Page 1203]]
product or industry. A requester in this category must show that the
request is authorized by and is made under the auspices of a qualifying
institution and that the records are sought to further scientific
research and are not for a commercial use. DoD Components will advise
requesters of their placement in this category.
(6) Representative of the news media is any person or entity that
gathers information of potential interest to a segment of the public,
uses its editorial skills to turn raw materials into a distinct work,
and distributes that work to an audience. The term ``news'' means
information that is about current events or that would be of current
interest to the public. Examples of news media entities include
television or radio stations that broadcast ``news'' to the public at
large and publishers of periodicals that disseminate ``news'' and make
their products available through a variety of means to the general
public, including news organizations that disseminate solely on the
Internet. A request for records supporting the news-dissemination
function of the requester shall not be considered to be for a
commercial use. ``Freelance'' journalists who demonstrate a solid basis
for expecting publication through a news media entity shall be
considered as a representative of the news media. A publishing contract
would provide the clearest evidence that publication is expected;
however, DoD Components shall also consider a requester's past
publication record in making this determination. DoD Components will
advise requesters of their placement in this category.
(7) Review is the examination of a record located in response to a
request in order to determine whether any portion of it is exempt from
disclosure. Review time includes processing any record for disclosure,
such as doing all that is necessary to prepare the record for
disclosure, including the process of redacting the record and marking
the appropriate exemptions. Review costs are properly charged even if a
record ultimately is not disclosed. Review time also includes time
spent both obtaining and considering any formal objection to disclosure
made by a confidential commercial information submitter under Sec.
286.11, but it does not include time spent resolving general legal or
policy issues regarding the application of exemptions.
(8) Search is the process of looking for and retrieving records or
information responsive to a request. Search time includes page-by-page
or line-by-line identification of information within records and the
reasonable efforts expended to locate and retrieve information from
electronic records.
(c) Fee category. Fees are assessed based on the category
determined to be appropriate for the requester's category. The fee
category of a requester that is an attorney or any other agent
representing a client is determined by the fee category of the
attorney's client. If the fee category of the client is not clear, then
the DoD Components should ask the requester for clarification. If an
attorney does not provide enough information to determine the fee
category of the client, then the DoD Component may assign commercial
fee category to the requester.
(d) Charging fees. In responding to FOIA requests, DoD Components
will charge the following fees unless a waiver or reduction of fees has
been granted under paragraph (m) of this section. Because the fee
amounts provided below already account for the direct costs associated
with a given fee type, DoD Components should not add any additional
costs to charges calculated under this section.
(1) Search. (i) Requests made by educational institutions,
noncommercial scientific institutions, or representatives of the news
media are not subject to search fees. Search fees shall be charged for
all other requesters, subject to the restrictions of paragraph (e) of
this section. DoD Components may properly charge for time spent
searching even if they do not locate any responsive records or if they
determine that the records are entirely exempt from disclosure.
(ii) For each quarter hour spent by personnel searching for
requested records, including electronic searches that do not require
new programming, the fees shall be charged as listed at Table 1.
(iii) Requesters will be charged the direct costs associated with
conducting any search that requires the creation of a new computer
program to locate the requested records. These costs will not include
the time it takes to run the program and extract data. Requesters will
be notified of the costs associated with creating such a program and
must agree to pay the associated costs before the costs may be
incurred.
(iv) For requests that require the retrieval of records stored by a
DoD Component at a Federal records center operated by NARA, additional
costs will be charged in accordance with the Transactional Billing Rate
Schedule established by NARA.
(2) Duplication. Duplication fees will be charged to all
requesters, subject to the restrictions of paragraph (e) of this
section. DoD Components will honor a requester's preference for
receiving a record in a particular form or format where it is readily
reproducible by the DoD Component in the form or format requested.
Where photocopies are supplied, DoD Components will provide one copy
per request at $.15 per page. For copies of records produced on tapes,
disks, or other media, or other forms of duplication, DoD Components
will charge the direct costs of producing the copy, including operator
time in accordance with Table 1. DoD Components will charge record
reproduction fees at the hourly rates in Table 1 if the creation of the
electronic copies requires unique security procedures incurring
considerable operator time, costing more than printing paper copies.
(3) Review. Review fees will be charged to requesters who make
commercial use requests. Review fees shall be assessed in connection
with the initial review of the record, i.e., the review conducted by a
DoD Component to determine whether an exemption applies to a particular
record or portion of a record. No charge will be made for review at the
administrative appeal stage of exemptions applied at the initial review
stage. However, if a particular exemption is deemed to no longer apply,
any costs associated with a DoD Component's re-review of the records in
order to consider the use of other exemptions may be assessed as review
fees. Review fees will be charged at the same rates as those charged
for a search under paragraph (d)(1)(ii) of this section.
(e) Restrictions on charging fees. (1) When a DoD Component
determines that a requester is an educational institution, non-
commercial scientific institution, or representative of the news media,
and the records are not sought for commercial use, no search fees will
be charged.
(2) If a DoD Component fails to comply with the time limits in
which to respond to a request it may not charge search fees, or, in the
instances of requests from requesters described in paragraph (e)(1) of
this section, may not charge duplication fees except as described in
(e)(2)(i) through (iii).
(i) When a DoD Component determines that unusual circumstances, as
those terms are defined by the FOIA, apply to the processing of the
request, and provides timely written notice to the requester, then the
DoD Component is granted an additional ten days until the fee
restriction in paragraph (e)(2) of this section applies.
(ii) When a DoD Component determines that unusual circumstances
apply and more than 5,000 pages are
[[Page 1204]]
necessary to respond to the request, provides timely written notice to
the requester, and has discussed with the requester (or made three good
faith attempts to do so) on how the requester can effectively limit the
scope of the request, the fee restriction in paragraph (e)(2) of this
section does not apply.
(iii) If a court has determined that exceptional circumstances
exist, as defined by the FOIA, a failure to comply with the time limits
shall be excused for the length of time provided by the court order.
(3) No search or review fees will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(4) Except for requesters seeking records for a commercial use, DoD
Components shall provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for
other media); and
(ii) The first two hours of search.
(5) No fee will be charged when the total fee, after deducting the
100 free pages (or its cost equivalent) and the first two hours of
search, is equal to or less than $25.
(f) Notice of anticipated fees in excess of $25.00. (1) When a DoD
Component determines or estimates that the fees to be assessed in
accordance with this section will exceed $25.00, the DoD Component
shall notify the requester of the actual or estimated amount of the
fees, including a breakdown of the fees for search, review or
duplication, unless the requester has indicated a willingness to pay
fees as high as those anticipated. If only a portion of the fee can be
estimated readily, the DoD Component will advise the requester
accordingly. If the requester is a noncommercial use requester, the
notice shall specify that the requester is entitled to the statutory
entitlements of 100 pages of duplication at no charge and, if the
requester is charged search fees, two hours of search time at no
charge, and will advise the requester whether those entitlements have
been provided.
(2) When a requester is notified that the actual or estimated fees
are in excess of $25.00, the request will not be considered received
and further work will not be completed until the requester commits in
writing to pay the actual or estimated total fee, or designates some
amount of fees the requester is willing to pay, or in the case of a
noncommercial use requester who has not yet been provided with the
requester's statutory entitlements, designates that the requester seeks
only that which can be provided by the statutory entitlements. The
requester must provide the commitment or designation in writing, and
must, when applicable, designate an exact dollar amount the requester
is willing to pay. DoD Components are not required to accept payments
in installments.
(3) If the requester has indicated a willingness to pay some
designated amount of fees, but the DoD Component estimates that the
total fee will exceed that amount, the DoD Component will toll the
processing of the request when it notifies the requester of the
estimated fees in excess of the amount the requester has indicated a
willingness to pay. The DoD Component will inquire whether the
requester wishes to revise the amount of fees the requester is willing
to pay or modify the request. Once the requester responds, the time to
respond will resume from where it was at the date of the notification.
(4) DoD Components will make available their FOIA Public Liaison or
other FOIA professional to assist any requester in reformulating a
request to meet the requester's needs at a lower cost.
(g) Charges for other services. Although not required to provide
special services, if a DoD Component chooses to do so as a matter of
administrative discretion, the direct costs of providing the service
shall be charged. Examples of such services include certifying that
records are true copies, providing multiple copies of the same
document, or sending records by means other than first class mail.
(h) Charging interest. DoD Components may charge interest on any
unpaid bill starting on the 31st day following the date of billing the
requester. Interest charges shall be assessed at the rate provided in
31 U.S.C. 3717 and will accrue from the billing date until payment is
received by the DoD Component. DoD Components shall follow the
provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat.
1749), as amended, and its administrative procedures, including the use
of consumer reporting agencies, collection agencies, and offset.
(i) Aggregating requests. When a DoD Component reasonably believes
that a requester or a group of requesters acting in concert is
attempting to divide a single request into a series of requests for the
purpose of avoiding fees, the DoD Component may aggregate those
requests and charge accordingly. DoD Components may presume that
multiple requests of this type made within a 30-day period have been
made in order to avoid fees. For requests separated by a longer period,
DoD Components will aggregate them only where there is a reasonable
basis for determining that aggregation is warranted in view of all the
circumstances involved. Multiple requests involving unrelated matters
shall not be aggregated.
(j) Advance payments. (1) For requests other than those described
in paragraphs (k)(2) or (3) of this section, a DoD Component shall not
require the requester to make an advance payment before work is
commenced or continued on a request.
(2) When a DoD Component determines or estimates that a total fee
to be charged under this section will exceed $250.00, it may require
that the requester make an advance payment up to the amount of the
entire anticipated fee before beginning to process the request. A DoD
Component may elect to process the request prior to collecting fees
when it receives a satisfactory assurance of full payment from a
requester with a history of prompt payment.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee to any agency within 30 calendar days of the billing
date, a DoD Component may require that the requester pay the full
amount due, plus any applicable interest on that prior request, and the
DoD Component may require that the requester make an advance payment of
the full amount of any anticipated fee before the DoD Component begins
to process a new request or continues to process a pending request or
any pending appeal. Where a DoD Component has a reasonable basis to
believe that a requester has misrepresented the requester's identity in
order to avoid paying outstanding fees, it may require that the
requester provide proof of identity.
(4) In cases in which a DoD Component requires advance payment, the
request shall not be considered received and further work will not be
completed until the required payment is received. If the requester does
not pay the advance payment within 30 calendar days after the date of
the DoD Component's fee determination, the request will be closed.
(k) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any
statute that specifically requires an agency to set and collect fees
for particular types of records. In instances where records responsive
to a request are subject to a statutorily-based fee schedule program,
the DoD Component shall inform the requester of the contact information
for that program.
[[Page 1205]]
(l) Requirements for waiver or reduction of fees. (1) Requesters
may seek a waiver of fees by submitting a written application
specifically demonstrating how disclosure of the requested information
is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities
of the government and is not primarily in the commercial interest of
the requester.
(2) A DoD Component will furnish records responsive to a request
without charge or at a reduced rate when it determines, based on all
available information, that the following three factors are satisfied:
(i) Disclosure of the requested information would shed light on the
operations or activities of the government. The subject of the request
must concern identifiable operations or activities of the Federal
Government with a connection that is direct and clear, not remote or
attenuated.
(ii) Disclosure of the requested information would be likely to
contribute significantly to public understanding of those operations or
activities. This factor is satisfied when the following criteria are
met:
(A) Disclosure of the requested records must be meaningfully
informative about government operations or activities. The disclosure
of information that already is in the public domain, in either the same
or a substantially identical form, would not be meaningfully
informative if nothing new would be added to the public's
understanding.
(B) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as the requester's ability and
intention to effectively convey information to the public shall be
considered. DoD Components will presume that a representative of the
news media satisfies this criterion.
(iii) The disclosure must not be primarily in the commercial
interest of the requester. To determine whether disclosure of the
requested information is primarily in the commercial interest of the
requester, DoD Components shall consider the following criteria:
(A) DoD Components will identify whether the requester has any
commercial interest that would be furthered by the requested
disclosure. A commercial interest includes any commercial, trade, or
profit interest. Requesters will be given an opportunity to provide
explanatory information regarding this consideration.
(B) If there is an identified commercial interest, the DoD
Component will determine whether that is the primary interest furthered
by the request. A waiver or reduction of fees is justified when the
requirements of paragraphs (m)(2)(i) and (ii) of this section are
satisfied and any commercial interest is not the primary interest
furthered by the request. DoD Components ordinarily will presume that
when a news media requester has satisfied the factors in paragraphs
(m)(2)(i) and (ii) of this section, the request is not primarily in the
commercial interest of the requester. Disclosure to data brokers or
others who merely compile and market government information for direct
economic return shall not be presumed to primarily serve the public
interest.
(3) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
(4) Requests for a waiver or reduction of fees should be made when
the request is first submitted to the DoD Component and should address
the criteria referenced in paragraphs (l)(1) and (2) of this section. A
requester may submit a fee waiver request at a later time so long as
the underlying record request is pending or on administrative appeal.
When a requester who has committed to pay fees subsequently asks for a
waiver of those fees and that waiver is denied, the requester is
required to pay any costs incurred up to the date the fee waiver
request was received.
(m) Tracking of costs. DoD Components will track processing costs
for each FOIA request on DD Form 2086, ``Record of Freedom of
Information (FOI) Processing Cost,'' or by using DD Form 2086-2,
``Freedom of Information (FOI) Consultation and Request Summary''.
Sec. 286.13 Fees for technical data.
(a) Technical data shall be released to a requester after all
reasonable costs of search, review, and duplication are paid by the
requester as authorized by 10 U.S.C. 2328.
(b) Technical data means information (regardless of the form or
method of the recording) of a scientific or technical nature (including
computer software documentation) relating to the supplies procured by
the DoD. This includes information in the form of blueprints, drawings,
photographs, plans, instructions or documentation. This term does not
include computer software or financial, administrative, cost or
pricing, or management data or other information incidental to contract
administration. Examples of technical data include research and
engineering data, engineering drawings, and associated lists,
specifications, standards, process sheets, manuals, technical reports,
catalog item identification, and computer software documentation.
(1) All reasonable costs as used in this sense are the full costs
to the Federal Government of rendering the service, or fair market
value of the service, whichever is higher. Fair market value shall be
determined in accordance with commercial rates in the local
geographical area. In the absence of a known market value, charges
shall be based on recovery of full costs to the Federal Government. The
full costs shall include all direct and indirect costs to conduct the
search and to duplicate the records responsive to the request. Costs
will be tracked on DD Form 2086-1, ``Record of Freedom of Information
(FOI) Processing Cost for Technical Data'' (available at https://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd2086-1.pdf).
(2) The DoD Components will retain the fees received by the release
of technical data under the FOIA, and will merge it with and make it
available for the same purpose and the same time period as the
appropriation from which the costs were incurred in complying with the
FOIA request.
(3) Table 2 will be used to determine document production fees.
Table 2--FOIA Document Production Fees--Technical Data
------------------------------------------------------------------------
Type Cost
------------------------------------------------------------------------
Aerial Photographs, Specifications, Permits, Charts, $2.50
Diagrams, Technical Drawings, Blueprints, and Other
Technical Documents (per page or copy).................
Engineering Data:
Aperture Cards, per card............................ 3.00
Silver Duplicate Negative....................... 3.50
When Keypunched and Verified.................... 1.00
Diazo Duplicate Negative........................ 3.50
When Keypunched and Verified.................... 3.00
35 mm Roll Film, per frame.......................... 1.00
16 mm Roll Film, per frame.......................... 0.65
Paper Prints (engineering drawings), each (per 0.30
square foot).......................................
Paper Reprints of Microfilm Images, each............ 0.10
Other Technical Data Records:
[[Page 1206]]
Paper Copy (standard size paper up to 8\1/2\ x 14, 0.15
photocopier or printer)............................
CD/DVD.............................................. 5.00
Microfiche Produced, each........................... 3.50
Certification and Validation with Seal, each 50.00
document...........................................
------------------------------------------------------------------------
(c) The DoD Components will waive the payment of costs required in
paragraph (a) of this section that are greater than the costs that
would be required for release of this same information under Sec.
286.12 if:
(1) The FOIA request is made by a U.S. citizen or a U.S.
corporation, and such citizen or corporation certifies that the
technical data requested is required to enable it to submit an offer,
or to determine whether it is capable of submitting an offer, to
provide the product to which the technical data relates to the United
States or a U.S. contractor. However, the DoD Components may require
the citizen or corporation to pay a deposit in an amount equal to but
not more than the cost of complying with the FOIA request, which will
be refunded upon submission of an offer by the citizen or corporation;
(2) The release of technical data is requested in order to comply
with the terms of an international agreement; or
(3) The DoD Component determines, in accordance with paragraph (m)
of Sec. 286.12, that such a waiver is in the interest of the United
States.
Dated: December 23, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-31686 Filed 1-4-17; 8:45 am]
BILLING CODE 5001-06-P