to have been a release to the "general public."

(e) Other Directives. Other directives which, to the extent that they do not conflict with this subpart, serve to supplement it with respect to particular categories of information or records, include:

(1) Bureau of Naval Personnel Instruction 1070.12A and Marine Corps Manual, paragraph 1070 (also, for Headquarters, Marine Corps, HQO P5000.3A, chapter 30)-release of information from the personnel records of members and former members of the Navy and Marine Corps.

(2) Federal Personnel Manual, chapters 293, 294, 335, 339 and 713-release of information from active and inactive civilian personnel records.

(3) Manual of the Medical Department, U.S. Navy, NAVMED P-117, chapter 23, section III-release of information from active and inactive medical records.

(4) Armed Services Procurement Regulation (32 CFR 1.329) and Navy Procurement Directives (32 CFR Part 737)-release of procurement records

and information.

§ 701.4 "Record(s)" defined.

(a) As used in subparts A through D, the term "record(s)" is intended to include any books, papers, maps, photographs, or other documentary materials, regardless of physical form or characteristics, made or received by any agency of the United States Government in pursuance of Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data contained therein. "Records" are not limited to permanent or historical documents but include contemporary documents as well.

(c) However, the term "record(s)" does not include objects or articles such as structures, furniture, paintings, sculpture, three-dimensional models, vehicles, equipment, etc., whatever their historical value or value as "evidence." Formulae, designs, drawings, research data, computer programs, technical data packages, etc., are not considered "records" within the Congressional intent of 5 U.S.C. 552, even though maintained in documentation form. Because of development costs, utilization, or value, these items are considered property, not preserved for informational value nor as evidence of agency functions, but as exploitable resources to be utilized in the best interest of all the public. Requests for copies of such material shall be evaluated in accordance with policies expressly directed to the appropriate dissemination or use of such property. Requests to inspect such material to determine its content for informational purposes shall normally be granted, however, unless inspection is inconsistent with the obligation to protect the property value of the material, as, for example, may be true for certain formulae.

(b) Requests for Records. Upon receipt of written or oral requests to naval activities, all reasonable efforts should be made to advise members of the public on the correct means for securing permission to examine desired records at appropriate times at locations where they are held, or for obtaining copies of such records. Subject to the requesters' compliance with the minimum requirements prescribed in

§ 701.6(a), the following provisions shall apply, at all activities and all echelons of command, to written requests for examination or copies of records under the cognizance of the Department of the Navy:

are

(1) Time limits. Except in the limited instances where brief time extensions authorized under § 701.8(b)(2), an official having responsibility for making the initial determination to grant or deny a request for examination or a copy of a record shall transmit that determination in writing to the requester within 10 working days after it is received by that official in form satisfying the minimum requirements. The record shall be made available for examination at the activity, or a copy will be furnished, as applicable, upon or promptly after a determination that it may be released in whole or part. Within the framework of this subpart, and utilizing their existing resources, naval activities are expected to develop internal procedures for ensuring the expeditious handling of requests, the prompt retrieval and review of the requested records, and the timely transmittal of determinations. Where a request is denied, in whole or part, an appeal is to be anticipated, and every effort will be made to facilitate the determination of the appeal within the applicable time limit.

(2) Identification of records. Subject to the provisions of subparts A through D, requests shall be honored for records which are "reasonably described." See § 701.6(a)(2). It is expected that naval activities will use their superior knowledge of the contents of their files and expend reasonable efforts to assist the public in identifying the records which contain the particular information which is sought. However, a record must exist at the time of the request, and it is not required that a record be "created" or compiled for the purpose of furnishing information not already provided in existing records. A record that is maintained by computer is normally deemed to exist for this purpose only if retrievable in approximately the form desired without substantial reprogramming.

(3) Fees. The fees associated with searching for and duplicating records

requested under this subpart shall be determined in accordance with § 701.40. Such fees normally must be paid (or waived) in advance of rendering such search or duplication services, and, normally, the time limit for transmitting a determination on a request will not begin to run until the fee is paid or the requester's entitlement to a waiver is established. An exception exists where the requester promises in writing at the time of the request to pay, upon receipt of a bill therefor, all fees incurred in complying with the request (or pay such fees up to a specified limit) and represents that he will be able to make such payment; provided that, at the time of the request, the requester is not known to be in default of payment of fees incurred in connection with a previous request for records under this subpart. Fees shall be charged only for direct costs of searches and duplication and shall not include indirect costs or costs attributable to reviewing records. See § 701.6.

(4) Records containing exempt matters-(i) Determinations. A requested record will be deemed "releasable" and shall be released to the public unless it is affirmatively determined both that the record contains matters which are exempt from disclosure under § 701.5(b)(4)(ii) and that a significant and legitimate governmental purpose will be served by withholding it. The determination of whether a significant and legitimate governmental purpose is served by withholding information is within the sole discretion of the Department of the Navy. If exempt matters in a record are "reasonably segregable" from non-exempt portions, the nonexempt portions shall be made available. See § 701.22. In no event shall a determination that a requested record is exempt, that a significant and legitimate governmental purpose would be served by withholding it, or that it has not been requested in accordance with prescribed procedures be influenced by the possibility that its release might suggest administrative error or inefficiency, or might embarrass the Department of the Navy or its military or civilian officials in the performance of their duties.

(ii) Exemptions. Even though it might otherwise appear that a significant and legitimate governmental purpose would be served by withholding it, no matter shall be withheld from disclosure to the public unless it is included within one of the exemptions listed in 5 U.S.C. 552(b). These exemptions, which are amplified in subpart B, are limited to:

(A) Matters that are specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order. (5 U.S.C. 552(b)(1))

(B) Matters that are related solely to the internal personnel rules and practices of an agency. (5 U.S.C. 552(b)(2))

(C) Matters that are specifically exempted from disclosure by statute. (5 U.S.C. 552(b)(3))

(D) Trade secrets and commercial or financial information obtained from a person and privileged or confidential. (5 U.S.C. 552(b)(4))

(E) Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. (5 U.S.C. 552(b)(5))

(F) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. (5 U.S.C. 552(b)(6))

(G) Investigatory records compiled for law enforcement purposes but only to the extent that the production of such records would:

(1) Interfere with enforcement proceedings;

(2) Deprive a person of a right to a fair trial or an impartial adjudication; (3) Constitute an unwarranted invasion of personal privacy;

(4) Disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source;

(5) Disclose investigative techniques and procedures, or

(6) Endanger the life or physical safety of law enforcement personnel. (5 U.S.C. 552(b)(7))

(H) Matters contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions. (5 U.S.C. 552(b)(8)) or

(I) Geological and geophysical information and data, including maps, concerning wells. (5 U.S.C. 552(b)(9))

(c) Identification and Marking “For Official Use Only” (FOUO). (1) Unless properly classified under Chief of Naval Operations Instruction 5510.1E, Department of the Navy Information Security Program Regulation, a record may be designated as being "For Official Use Only” (FOUO) if at the time of its origination it is considered to contain matters which are included within the exemptions listed in § 701.5(b)(4)(ii) and which must be protected from release to the general public and indiscriminate handling because of significant and legitimate governmental reasons. No other records shall be so designated or marked. The procedures for marking, handling, and safeguarding of "For Official Use Only" materials are set forth in Secretary of the Navy Instruction 5570.2B.

(2) The presence or absence of a "For Official Use Only" marking on a record shall not relieve an official acting on a request for the record from his responsibility for reviewing it and making an independent determination on its releasability in accordance with 701.5(b)(4)(ii). Such a marking on a record shall not be cited or referred to as a reason for denying a request for its release. The presence of such marking should be regarded as a signal for alerting the reviewing official to the possibility that the record may contain nonreleasable matters.

§ 701.6 Form and addresses for requests for records.

(a) Minimum Requirements. Το qualify as a request within the technical requirements of this subpart, a request for copies of, or for permission to examine, Department of the Navy records must, at the minimum.

(1) Be in writing and indicate expressly, or by clear implication, that it is a request under the Freedom of Information Act or this regulation;

(2) Contain a reasonable description of the particular records requestedi.e., a sufficiently accurate and specific description to enable naval personnel to locate and identify the particular records desired with a reasonable amount of effort; and

(3) Contain a check or money order for the anticipated search and duplication fees determined in accordance with 701.40 (at least a substantially adequate approximation of the actual fees); or a clear statement that the requester will be willing and able to pay all fees or to pay such fees up to a specified limit; or satisfactory evidence establishing that the requester is entitled to waiver of such fees in accordance with § 701.40.

(b) Recommended Additional Contents. Though not deemed to be essential requisites for a request under this subpart, it is recommended that the following additional matters be included, as applicable, in a request for records:

(1) A notation on the outside of the envelope that it is a request under the Freedom of Information Act;

(2) If the request does not specifically identify the desired records, an explanation of the purposes for which they are desired might assist naval personnel in identifying the relevant records.

(c) Addressing Requests. Section 701.31 is a list of commonly requested types of records and the addresses of the naval activities from which such records normally can be obtained. A request for a record held by a Department of the Navy activity normally will not be deemed to have been received for purposes of the time limits specified in § 701.8(a) until it is received by the appropriate activity listed in § 701.31. Misdirected requests will be handled in accordance with § 701.7(c)(3).

(d) Treatment of Requests Not Meeting Minimum Requirements. (1) Requests which do not qualify for treatment within the technical requirements of this subpart because they do not conform to the minimum require

ments specified in § 701.6(a) should nevertheless be answered promptly (within ten working days after receipt, if possible) in writing, in a manner calculated to assist the requesters in obtaining the desired records in accordance with the provisions of Subparts A through D. For example, if such a request fails to contain a reasonable description of a desired record, the requester should be offered appropriate assistance in framing a new request in a way which might facilitate identification of the record. If a request fails to contain payment or a promise of payment of anticipated fees, information should be furnished upon which the requester may reasonably estimate the probable range of the fees which may be involved. Telephone contacts will frequently be useful for supplementing the required written communications.

(2) In a case where a request fails to qualify for treatment within the technical requirements of this subpart because of omission to include payment or a promise of payment of the applicable fees, but it is ascertained that the requested record is conveniently available and is releasable in its entirety, the official responsible for responding to the request may, if he determines that it will be in the best interests of the activity to do so, provide a copy of such record in advance of payment or promise of payment of the applicable fees. The application of this provision shall be within the sole and exclusive discretion of the responsible official of the activity concerned and shall not be construed as creating an exception to, or grounds for waiver of, the minimum requirements specified in § 701.6(a).

(1 CFR 18.14, and Part 21, Subpart B)

[40 FR 12777, Mar. 21, 1975, as amended at 45 FR 8598, Feb. 8, 1980]

8701.7 Responsibility and authority for determinations.

(a) Release Authorities. Subject to § 701.7(c)(2), commanding officers and heads of all Navy and Marine Corps activities (departmental and field) are authorized to furnish copies of records in their custody, or to make such records available for examination, upon

proper request. Coordination with the official having cognizance of the subject matter of the requested record, or with the originator of the record, is advised where there is a question as to its releasability.

(b) Denial Authorities. The following officials (and their principal assistants authorized to act "by direction") are authorized to deny (as well as grant) requests for documents or records, when the information sought relates to matters within their respective areas of responsibility:

(1) For the Navy Department, the Civilian Executive Assistants, the Chief of Naval Operations, the Commandant of the Marine Corps, the Chief of Naval Material, the Chief of Naval Personnel, the Chief, Bureau of Medicine and Surgery, and the heads of Navy Department offices and boards. The Judge Advocate General and his Deputy, and the General Counsel and his Deputies are excluded from this grant of authorization, but the Assistant Judge Advocates General and the Assistants to the General Counsel, and the Director, Contract Appeals Division, Office of the General Counsel, are so authorized.

(2) For shore activities, commanders of naval systems commands; commandants of naval districts; the Commanders of the Naval Intelligence Command, Naval Security Group, Naval Telecommunications Command, and Naval Weather Service; the Auditor General of the Navy; the Naval Inspector General; the Chief of Naval Education and Training; the Chief of Naval Reserve; and the Oceanographer of the Navy.

(3) For the Operating Forces, fleet commanders in chief, and the Commander, Military Sealift Command.

(4) Commanders of major Navy and Marine Corps activities designated by the Chief of Naval Operations or the Commandant of the Marine Corps.

(c) Responsibility for Acting on Requests-(1) General rule. Subject to § 701.7(c)(2), when any Department of the Navy activity receives a request for a copy of, or permission to examine, a record in its custody, that activity is responsible for acting on the request in the time and manner prescribed in this subpart. Section 701.31

is a list of commonly requested types of records and the addresses of the activities which normally have custody of the records of each type. A request for a record will not be deemed to have been received for the purposes of the time limit specified in § 701.8(a) until it is received either by the appropriate official indicated in § 701.31 or [except in cases involving the records specified in § 701.7(c)(2)] by any other Department of the Navy official which has the record in its custody.

(2) Exceptions. The following exceptions exist with regard to the general rule in § 701.7(c)(1) that any naval activity receiving a request for a record in its custody is responsible for acting on the request.

(i) Classified records. If records requested from the appropriate naval activity indicated in § 701.31 include classified records, and if the head of that activity is not the original classifier or does not have classification jurisdiction over the subject matter in accordance with Chief of Naval Operations Instruction 5510.1E, he shall promptly readdress and forward the request to the official originating the classification, if a denial authority under § 701.7(b), or else to a denial authority having cognizance of the classified matters in the record, for review and determination as to the classified records, and the requester shall be so notified. If the naval activity which received the request is the proper addressee as indicated in § 701.31, the time limit specified in § 701.8(a) commences when the request is received by that activity. If the naval activity which initially receives the request is not the proper addressee as indicated in § 701.31, the request will be treated as a misdirected request in accordance with 8701.7(c)(3), and the time limit will commence when the request is received by the original classifier or the denial authority having cognizance of the classified records.

(ii) NIS reports. A request for a Naval Investigative Service report shall promptly be readdressed and forwarded directly to the Director, Naval Investigative Service, for review and determination, and the requester shall be so notified. Direct liaison is encouraged. The time limit specified in