§ 701.8(a) will commence when the request is received by the Director, Naval Investigative Service. (iii) Technical documents controlled by distribution statements. A request for a technical document to which "Distribution Statement B" is affixed shall promptly be readdressed and forwarded directly to the "controlling DoD office" in accordance with Chief of Naval Material Instruction 5200.29, for review and determination, and the requester shall be so notified. Direct liaison is encouraged. The time limit specified in § 701.8(b) will commence when the request is received by the controlling office. (iv) Records originated by other agencies. A request for a record originated by an agency outside the Department of the Navy [except a technical document within the purview of Chief of Naval Material Instruction 5200.29; see § 701.7(c)(2)(iii)] shall promptly be readdressed and forwarded to such agency, and the requester shall be so notified. Guidance, when necessary, may be obtained from the Chief of Naval Operations (OP-09B16) or the Commandant of the Marine Corps (Code PA), as appropriate. Direct liaison is authorized. (3) Misdirected requests. A request for a copy of, or permission to examine, a Department of the Navy record received by an activity which is not the appropriate naval activity indicated in § 701.31 and does not have the record in its custody, shall promptly be readdressed and forwarded directly to the appropriate naval activity. The requester shall be notified of the readdressal. Direct liaison between the original recipient and the correct addressee is encouraged for ensuring the expeditious handling of the request. (1 CFR 18.14, and Part 21, Subpart B) [40 FR 12777, Mar. 21, 1975, as amended at 45 FR 8599, Feb. 8, 1980] § 701.8 Procedures for processing requests. (a) Time Limits for Determinations-Normal requirement. Except in an unusual instance where a brief time 'Paragraph (b) of § 701.8 was redesignated as paragraph (a) at 43 FR 17355, Apr. 24, 1978. extension is authorized under § 701.8(b) it is required that the determination on each request for examination or copies of records be sent to the requester within ten working days (i.e., excluding Saturdays, Sundays, and legal public holidays) after the request is received by the activity having responsibility for acting on it. (b) Extensions of time limits. Only those officials authorized in § 701.7(b) to deny requests for records are authorized to extend the time limits for responding to such requests. Should any other official require an extension of time in which to complete processing of a request on which he is responsible for acting, he shall request (by formal or informal communication) authorization for such extension from the appropriate denial authority designated in § 701.7(b). Such extension may be authorized only in accordance with the following conditions: (1) An extension may be authorized only if necessitated by one or more of the following unusual circumstances provided for in 5 U.S.C. 552: (i) The need to search for and collect records that are located in whole or part at places separate from the office processing the request; (ii) The need to search for, collect, and examine a substantial number of records in response to a request; or (iii) The need to consult with another naval activity or another agency which has a substantial subject-matter interest in the determination of the request. (2) Such extension may be authorized only for that additional period of time which will be reasonably necessary for the proper processing of the request, but in no event may the period of extension exceed ten working days. (3) If there appears to be a substantial possibility that the request might ultimately be denied, in whole or part, the Judge Advocate General (Code 14L) or the General Counsel, as appropriate [see § 701.9(c)], shall be consulted by expeditious means prior to authorizing such extension. (1 CFR 18.14, and Part 21, Subpart B) [40 FR 12777, Mar. 21, 1975, as amended at 43 FR 17355, Apr. 24, 1978; 45 FR 8599, Feb. 8, 1980] § 701.9 Appeals from denials of requests for records. (a) Addressees for Appeals. Appeals to the Secretary of the Navy under the provisions of 5 U.S.C. 552 and this subpart are to be addressed (1) To: The Judge Advocate General (Code 14L) if concerning records which pertain to any matters not excepted in § 701.9(2)(c)(i); (2) Or to: The General Counsel if concerning records which pertain to the matter specified in § 701.9(c)(2)(ii). (b) Time and Form for Filing Appeals. To be effective for purposes of the provisions of 5 U.S.C. 552 and this subpart, an appeal from an initial denial, in whole or in part, of a request for records, or a refusal to waive fees, must be in writing and be received by the appropriate official specified in § 701.9(a) not more than 120 days following the date of transmittal of the notification of the initial denial. Additionally, such appeal must clearly state that it is an appeal from a denial of a request made under the "Freedom of Information Act" or this subpart, and must either fully describe the circumstances of the request and initial denial or have attached a copy of the letter denying the request. (c) Responsibility and Authority-(1) Delegation of authority. The Judge Advocate General and the General Counsel are authorized to determine appeals made to the Secretary of the Navy on denials of requests for copies of such Department of the Navy records, or portions thereof, or refusals to waive fees, as pertain to the matters which are within their respective areas of cognizance for legal services. This shall include the authority to release or withhold records, or portions thereof, waive fees, and to perform such other acts as may be required of the Secretary of the Navy in connection with the appeals made under 5 U.S.C. 552. (2) Respective areas of cognizance. As delineated in Secretary of the Navy Instructions 5430.25c and 5430.27, the respective areas of cognizance of the Judge Advocate General and the General Counsel for providing legal services for the Department of the Navy are: (i) Judge Advocate General. All matters except the business and commercial law matters assigned to the cognizance of the General Counsel, which are specified in the following: (ii) General Counsel. The business and commercial law aspects of matters relating to (A) the acquisition, custody, management, transportation, taxation, and disposition of real and personal property, and the procurement of services, including the fiscal, budgetary, and accounting aspects thereof; excepting, however, tort claims and admiralty claims arising independently of contract, and matters relating to the naval petroleum reserves; (B) operations of the Military Sealift Command, excepting tort and admiralty claims arising independently of contract; (C) the Office of the Comptroller of the Navy; (D) procurement matters in the field of patents, inventions, trademarks, copyrights, royalty payments, and similar matters, including those in the Armed Services Procurement Regulations and the Navy Procurement Directives and deviations therefrom; and (E) industrial security and claims and litigation concerning the foregoing. (d) Procedures for Processing Appeals-(1) Administrative controls. The principles in SECNAVINST 5720.42B subparagraph 8a are also applicable, where appropriate, to the handling and processing of appeals. (2) Time limits for determining appeals-(i) Normal requirement. Except in an instance where a brief time extension is authorized under the § 701.9(d)(2)(ii), it is required that the final determination on an appeal to the Secretary of the Navy under 5 U.S.C. 552 and this subpart be sent to the appellant within 20 working days after the appeal is received in the Office of the Judge Advocate General or the Office of the General Counsel, as prescribed in § 701.9(a). (ii) Extensions of time limits. If necessitated by one or more of the reasons specified in § 701.8(b)(1), the Judge Advocate General or the General Counsel, as appropriate, is authorized to extend the time limit for that additional period of time which will be reasonably necessary for the proper processing of the appeal. Provided, that such period of extension, when added to any period of extension used in the initial processing of the request, may not exceed a total of ten working days. (3) Action upon receipt. Upon receipt of an appeal, the Judge Advocate General or the General Counsel shall inform the Chief of Naval Operations (OP-09B16) or the Commandant of the Marine Corps (Code PA), as appropriate, who shall expeditiously forward the case file with such comments and recommendations as he or other interested officials may deem appropriate. Immediate coordination shall be established with the Director of Naval Intelligence (OP-009D) in an appeal involving a classified record. All naval activities are enjoined to provide rapid and responsible assistance, as required, for facilitating correct and timely determinations of appeals. Direct liaison with appropriate officials within the Department of the Navy and other interested Federal agencies is authorized at the discretion of the determining official, and he shall be responsible for coordinating with appropriate officials of the Departments of Defense and Justice in such manner as may be prescribed by directives of the Secretary of Defense. The Secretary of the Navy or the appropriate Civilian Executive Assistants shall be consulted and kept advised of cases having unusual implications. (4) Notification of final determination. Upon resolving the issues involved, the determining official shall give the appellant an appropriate written notification of the final determination made on the appeal. If such determination has the effect of granting a request, in whole or part, the determining official shall cause the requester's right to seek judicial reportions thereof, to be made promptly availa ble. If the final determination has the effect of denying a request, in whole or part, the notification shall contain the names and titles of each person responsible for such denial, an advisement of the requester's right to seek judicial review, and the following additional matters, as applicable: the (i) An explanation of exemption(s) under § 701.5(b)(4)(ii) upon which the determination is based and the significant and legitimate governmental purpose served by withholding the requested record; (ii) If the determination is based, in whole or part, upon a security classification (A) A statement that, based on such declassification review as could reasonably be accomplished within the time limit for responding to the appeal, it is determined that the record meets specified criteria and rationale of Chief of Naval Operations Instruction 5510.1E; and (B) An advisement of the requester's optional right to seek declassification of the record by the Department of the Navy Classification Review Committee, with a further right to appeal to the Interdepartmental Classification Review Committee established pursuant to Executive Order 11652, 8 March 1972, in lieu of immediate judicial review; (iii) Such other matters as may be prescribed by directives of the Secretary of Defense. (1 CFR 18.14, and Part 21, Subpart B) [40 FR 12777, Mar. 21, 1975, as amended at 45 FR 8599, Feb. 8, 1980] Subpart B-Guidelines on Matters Which Are Exempt From Public Disclosure 8701.21 General rule. Matters contained in records may be withheld from public disclosure if they come within one or more of the specific exemptions listed in § 701.5(b)(4)(ii). However, even exempt matters in a record are releasable and should be made available to a member of the public, unless, in the judgment of the officer or official responsible for making the determination (a) Release of the matters would be inconsistent with a statutory requirement or Chief of Naval Operations Instruction 5510.1E; or (b) Some other significant and legitimate governmental purpose will be served by invoking the exemption(s) and withholding the matters. § 701.22 “Reasonably segregable” matters. If a requested record contains both releasable and nonreleasable matters, the releasable portions should be made available if they are reasonably segregable from the nonreleasable matters in the record. Releasable matters are "reasonably segregable" if they would provide the requester with meaningful and undistorted information after the nonreleasable matters are excised and it can reasonably be assumed that a skillful and knowledgeable person could not reconstruct the nonreleasable matters. Reasonable segregation may be based on a system of designating nonreleasable portions at the time the record is originated, although the continuing validity of the original determination must be reevaluated in response to a request for the record. The paragraph designations of classified information under Chief of Naval Operations Instruction 5510.1E is an example of such a system for segregating releasable and nonreleasable matters. § 701.23 Judicial review. In determining whether a record is exempt from disclosure under §§ 701.5(b)(4)(ii) and 701.24, it should be kept in mind that, in the event of judicial review of a denial of a request for a record, a court is empowered to examine the record in its entirety in private to determine whether it is, in fact, exempt. § 701.24 Specific exemptions. The following types of matters may be withheld from public disclosure unless otherwise prescribed by law: (a) "Exemption 1" Matters. Those properly and currently classified in the interest of national defense or foreign policy, as specifically authorized under the criteria established by Executive order and implementing regulations, such as Chief of Naval Oper ations Instruction 5510.1E. If a requested record is classified in accordance with that directive the record must be reviewed for the basis of the security classification. The following general rules are applicable: (1) The request must be referred, with information and recommendations, to an official who is authorized under § 701.7(b) to deny requests and who has cognizance of the classified matters in the record, if the basis of the classification is: (i) An approved security classification guide promulgated in accordance with Chief of Naval Operations Instruction 5510.1E; (ii) A source document originated by another naval activity or government agency; (iii) An original classification determination for which there is written justification for classification, and the justification remains valid; or (iv) Not readily identifiable, but classification is believed to be warranted on the basis of classification criteria contained in Chief of Naval Operations Instruction 5510.1E. (2) If the original classifier of a record within his classification jurisdiction receives a request for the record and, upon review, can see no basis for continued classification, the record should be declassified and reviewed to determine whether any other exemptions listed in § 701.5(b)(4)(ii) are applicable and, if so, whether a significant and legitimate governmental purpose would be served by withholding it. (b) "Exemption 2" Matters. Those containing rules, regulations, orders, manuals, directives, and instructions relating to the internal personnel rules or to the internal practices of the Departments of Defense or the Navy, if their release to the public would substantially hinder the effective performance of a significant function of the Departments of Defense or the Navy. (1) Operating rules, guidelines and manuals for investigators, inspectors, auditors, or examiners, and certain schedules or methods of operation which would reveal: (i) Negotiating and bargaining techniques. (ii) Bargaining limitations and positions. (iii) Inspection schedules and methods. (iv) Audit schedules and methods. (2) 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. (c) "Exemption 3" Matters. Those containing information which statutes authorize or require be withheld from the public. Such 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, a statute. Examples include: (1) 18 U.S.C. 1905-trade, technical, and financial information provided in confidence by businesses. (2) Pub. L. 86-36 (50 U.S.C. 402 note)-National Security Agency infor (6) 18 U.S.C. 798-Communications information. (7) 50 U.S.C. 402(d) (3) and (g)-Intelligence sources and methods. (d) "Exemption 4" Matters. Those containing trade secrets of commercial or financial information which a component receives with the understanding that it will be retained on a privileged or confidential basis in accordance with the customary handling of such records, particularly when release would adversely affect the competitive position of the source of the information. Such records include those which contain: (1) Commercial and financial information received in confidence in connection with loans, bids, contracts, or proposals, as well as other information received in confidence or privileged, such as trade secrets, inventions and discoveries, or other proprietary data. (2) Statistical data and commercial or financial information concerning contract performance, income, profits, losses, and expenditures, if offered and received in confidence from a contractor or potential contractor. (3) Personal statements given in the course of inspections, investigations, or audits, where such statements are received in confidence from the individual and retained in confidence because they cover trade secrets or commercial or financial information normally considered confidential or privileged, or because they are essential to an effective inspection, investigation, or audit. (e) "Exemption 5" Matters. Except as provided in paragraphs (e) (2) through (5) of this section, internal communications within and among Federal agencies and components. (1) Examples include: (i) Staff papers containing staff advice, opinions, or suggestions. (ii) Information received or generated by a component preliminary to a decision or action, including draft versions of documents, where premature disclosure would interfer with the authorized purpose for which the records were created. (iii) 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, or by individual consultants. (iv) Those portions of component evaluations of contractors and their products which contain recommendations or advice by Government employees about the contractor or product. (v) 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. (vi) Records which are exchanged among agency personnel or within and |