F. Each component should avoid creating procedural obstacles when internal Department of Defense organizational questions arise, particularly where reorganization or transfer of functions contributes to an improperly directed request. Defense Department personnel shall make all reasonable efforts to assist private persons in directing requests for information to the appropriate authorities. VIII. EXEMPTIONS A. Documentary material which would otherwise have to be made available under sections V., VI., or VII., may be withheld from public disclosure if it comes within a specific exemption. Even exempted material, however, should be made available upon the request of any member of the public if in the judgment of the releasing authority, no significant purpose would be served by withholding it from him under an applicable exemption and its release is not inconsistent with statutory requirements or reference (c). B. The following types of records may be withheld from public disclosure: 1. Those requiring protection in the interest of national defense or foreign policy according to the criteria established by reference (c) or by Executive Order. 2. Those containing rules, regulations, orders, manuals, directives, and instructions relating to the internal personnel rules or to the internal practices of the Department of Defense. Examples include: (a) Operating rules, guidelines and manuals for Department of Defense investigators, inspectors, auditors, or examiners, and schedules or methods which cannot be disclosed to the public without substantial prejudice to the effective performance of a significant function of the Department of Defense. Some of these materials would reveal: (1) Negotiating and bargaining techniques. (4) Audit schedules and methods. (b) Personnel and other administrative matters such as examination questions and answers used in training courses or in the determination of the qualifications of candidates for employment, entrance to duty, advancement, or promotion. 3. Those containing information which statutes authorize or require be withheld from the public. The authorization or requirement may be found in the terms of the statute itself or in Executive Orders or regulations authorized by, or in implementation of, the statute. Examples include: (a) Reference (o)—for trade, technical, and financial information provided in confidence by businesses. (b) Reference (h)-National Security Agency information. (c) Reference (p)-Any records containing information relating to inventions which are the subject of patent applications on which Patent Secrecy Orders have been issued. 4. Those containing information which a component receives from anyone, including an individual, a foreign nation, an international organization, a state or local government, a corporation, or any other organization, with the understanding that it will be retained on a privileged or confidential basis, or similar commercial or financial records which the component develops internally, if they are in fact the kinds of records which are normally considered privileged or confidential. Such records include documents containing: (a) Information customarily considered privileged or confidential under the rules of evidence in the Federal courts, such as information coming within the doctor-patient, lawyer-client, and priest-penitent privileges. (b) Commercial or financial information received in confidence in connection with loans, bids, or proposals, as well as other information received in confidence or privileged, such as trade secrets, inventions and discoveries, or other proprietary data. (c) Statistical data and commercial or financial information concerning contract performance, income, profits, losses and expenditures, if received in confidence from a contractor or potential contractor. (d) Information such as research data, formulae, designs, drawings, and other technical data and reports which: (1) Are significant as items of valuable property acquired in connection with research, grants, or contracts. (2) Would likely be held in confidence if owned by private parties. (e) Personal statements given in the course of inspections or investigations, where such statements are received in confidence from the individual and retained in confidence. 5. Except as provided in subection (b) below, internal communications within and among agencies and components. (a) Examples include: (1) Staff papers containing staff advice, opinions, or suggestions. (2) Information received or generated by a component preliminary to a decision or action, including draft versions of documents, where premature disclosure would harm the authorized appropriate purpose for which the records are being used. (3) Advice, suggestions, or reports prepared on behalf of the Department of Defense by boards, committees, councils, groups, panels, conferences, commissions, task forces, or other similar groups that are formed by a component to obtain advice and recommendations. (4) Records of DoD component evaluations of contractors and their products which in effect constitute recommendations or advice and could be used improperly to the advantage or to the detriment of private interests. (5) Advance information on such matters as proposed plans to procure, lease, or otherwise acquire and dispose of materials, real estate, facilities, or functions when such information would provide undue or unfair competitive advantage to private personal interests. (6) Records which are exchanged among agency personnel or within and among components or agencies preparing for anticipated legal proceedings before any federal, state or military court or before any regulatory body. (7) Reports of inspections, audits, investigations or surveys which pertain to safety, security, or the internal management, administration, or operation of the Department of Defense. (b) If any such intra or inter-agency information requested would routinely be made available through the discovery process in the course of litigation with the agency, then it should not be withheld from the general public. If, however, the information would only be made available through the discovery process by special order of the court based on the particular needs of a litigant balanced against the interests of the agency in maintaining its confidentiality, then the record or document should not be made available to a member of the general public. 6. Information in personnel and medical files, as well as information in similar files that, if disclosed to a member of the public, would result in a clearly unwarranted invasion of personal privacy. (a) Examples of files similar to personnel and medical files include: (1) Those compiled to evaluate or adjudicate the suitability of candidates for civilian employment and the eligibility of individuals, civilian, military or industrial, for security clearances. (2) Files containing reports, records, and other material pertaining to personnel matters in which administrative action, including disciplinary action, may be taken. (b) In determining whether the release of information would result in a clearly unwarranted invasion of privacy, consideration should be given, in cases such as those involving alleged misconduct, to the relationship of the alleged misconduct to an individual's official duties, the amount of time which has passed since the alleged misconduct, and the degree to which the individual's privacy has already been invaded. Thus, the release of information concerning alleged misconduct which is closely related to official duties, which has occurred recently, and which has already been exposed to the public is less likely to constitute a clearly unwarranted invasion of personal privacy. (c) When the sole and exclusive basis for withholding information is protection of the personal privacy of an individual, the information should not be withheld from him or from his designated legal representative. An individual's personnel, medical, or similar files may be withheld from him or from his designated legal representative for reasons other than the protection of his personal privacy when valid Civil Service Commission regulations or other valid regulations so authorize. 7. Investigatory files compiled for the purpose of enforcing civil, criminal, or military law, including Executive Orders, or regulations validly adopted pursuant to law (see reference (q)). (a) Examples include: (1) Statements of witnesses and other material based on the information developed during the course of the investigation and all materials prepared in connection with related government litigation or adjudicative proceedings. (2) Lists of firms or individuals suspended under procurement regulations when the lists are compiled in connection with investigations of irregularities. (b) The right of individual litigants to investigatory files currently available by law is not diminished. 8. Those contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions. 9. Those containing geological and geophysical information and data (including maps) concerning wells. IX. IDENTIFICATION AND MARKING "FOR OFFICIAL USE ONLY" A. Records which are not classified under reference (c) but which are authorized by reference (a) to be withheld from general public disclosure under section VIII. of this Directive and which for a significant reason should not be given general circulation shall be considered as being "FOR OFFICIAL USE ONLY" (FOUO). B. A record that is considered “FOR OFFICIAL USE ONLY" may be marked "FOR OFFICAL USE ONLY" when such marking is deemed necessary to ensure that all persons having access to the record are aware that it should not be publicly released and should not be handled indiscriminately. Individual folders, records, and files covering specific kinds of subject matter, normally falling within the exemptions of section VIII. such as personnel and medical files, bids, proposals, and the like, which are covered by rules and regulations specifying what may be released publicly, do not require the "FOUO" marking unless handled under circumstances where marking is essential to ensure protection of the information involved. 1. The marking shall not be used on records which are classified under reference (c), but, if otherwise proper under this Directive, may be applied to information or material which has been declassified. 2. Information contained in a technical document for which a determination has been made that a distribution statement under reference (b) is appropriate shall not be marked "FOUO." C. Material which is considered for "FOR OFFICIAL USE ONLY" must be safeguarded from general disclosure irrespective of whether the material is physically marked with the term "FOR OFFICIAL USE ONLY." D. Whenever necessary to assure proper understanding, individual paragraphs which contain FOUO information shall be marked with the symbol “FOUO.” In classified documents, this marking should be applied only to paragraphs which contain FOUO information and do not contain classified information. E. Supplementary instructions regarding marking, safeguarding, and transmitting FOUO material may be issued by the Assistant Secretary of Defense (Administration). X. RELEASE PROCEDURES A. The policy of the Department of Defense, as stated in section IV-A., is to make the maximum amount of information available to the public. Therefore, when a person requests that a record be made available, that request may be denied only upon a determination that: or 1. The record is subject to one of the exemptions set forth in section VIII; 2. The record cannot be found because it has not been adequately identified; or 3. The applicant has unreasonably failed to comply with the procedural requirements imposed by the implementing regulations of the component concerned. B. The initial determination of whether to make a record available upon request may be made at any suitable level and by any suitable official designated by the component in accordance with published regulations. The marking or absence of the marking "FOR OFFICIAL USE ONLY" does not relieve the designated suitable official of his responsibility to review the requested record for the purpose of determining whether an exemption under section VIII is applicable. C. The official designated by a component to make initial determinations should consult with public affairs officers to familiarize himself with subject matter they consider to be newsworthy, and advise them of all requests from news media representatives. In addition, he should inform public affairs officers in advance whenever he intends to release a record containing potentially newsworthy material or to withhold any record when it is likely that the withholding action will be contested. D. When a request for a record is denied the designated official who has made that determination shall advise the requester of the basis for the determination and of the opportunity and procedures for appealing that determination to a higher authority. E. Refusal to provide a record may be appealed to the head of the component having jurisdiction over the record involved. If an appeal is taken, final refusal to provide the record must be made by the head of the component concerned or his designee for that purpose in accordance with appeal procedures prescribed in regulations published in the Federal Register by that component. The basis for a final determination by the head of the component or his designee to refuse a record must be explained in writing to the requesting party. A copy of that explanation shall be forwarded to the General Counsel of the Department of Defense in those instances in which the requester seeks reconsideration by the head of the component or initiates legal action to compel release of the record. XI. JUDICIAL ACTION A. Upon exhaustion of his administrative remedy after refusal of a record by the head of a component or his designee any person may, as authorized in reference (a), seek an order from a United States District Court in the district in which he resides or has his principal place of business or in the district in which the record is situated to produce the record. B. In the event a legal action is brought in a district court of the United States for the production of an agency record denied by the head of the component or his designee for that purpose, a copy of the complaint filed by the plaintiff, along with the litigation report prepared by the component for the Department of Justice, shall be forwarded to the General Counsel, Department of Defense. C. The burden is on the component to justify its refusal to produce the record, and its justification will be evaluated de novo by the district court. D. If the court orders production of a record and the responsible official designated in accordance with section X. refuses to produce it, the court has statutory authorization to punish the official whose decision and order govern the determination of whether to release the record. XII. IMPLEMENTATION A. Each component of the Department of Defense shall issue regulations to carry out the policies set forth in this Directive. 1. By mutual agreement, facilities for the examination and copying of documents and records may be shared by more than one component if the public is not inconvenienced by such an arrangement. 2. A category of information, in whatever form, which is essentially identical and common to more than one component shall be considered eligible for exemption from disclosure to the public only in accordance with consistent regulations and practices. If the provisions of this Directive or related DoD instructions do not provide guidance adequate to ensure consistency in determining the applicability of exemptions, the matter shall be brought to the attention of the General Counsel with a request for supplementary guidance. This does not preclude the ad hoc release of a particular record generally considered exempt from disclosure, when no significant purpose would be served by withholding it. B. Two copies of implementing regulations shall be submitted to the General Counsel of the Department of Defense no later than June 30, 1967. XIII. EFFECTIVE DATE This Directive is effective immediately to guide the development of implementing regulations and becomes effective as to the public on July 4, 1967. CYRUS VANCE, Deputy Secretary of Defense. PART IV-MISCELLANEOUS DEPARTMENT OF DEFENSE OFFICES AND AGENCIES In addition to responses from the three branches of the military service-eight additional Department of Defense components submitted responses to the subcommittee's inquiry. These eight additional responses will be discussed in the following order: Subpart 1-Assistant Secretary of Defense (Installations & Logistics); Subpart 2-Assistant Secretary of Defense (International Security Affairs); Subpart 3-Defense Atomic Support Agency; Subpart 4-Defense Communications Agency; Subpart 1-Assistant Secretary of Defense (Installations and Logistics) Subcommittee Analysis The office of the Assistant Secretary of Defense for Installations and Logistics maintains two data banks which come within the scope of this survey. I. Index Title Description: (1) Purpose; (2) Contents Subjects A. Housing referral office data bank (not (1) Administrative aid to military personnel to 350,000. computerized). B. Military family housing requirements program (computerized). find housing in the civilian community. (2) Identification, grade, age, monthly cost of 140,000 Army. 120,000 Navy. 200,000 Air Force. 5,000 Agencies. 465,000 total. II. Nature of Material Submitted The response of the Assistant Secretary of Defense for Installations and Logistics was dated September 1970. It is included in its entirety. At the time of the response, plans to complete the computerization of data bank B were being implemented and are undoubtedly now operational. III. Comments A. Statutory Authority Both of these data banks cite DoD directives, but no actual legislation as statutory authority. (1340) |