deemed necessary or desirable 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 § 286.4, 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 desirable to ensure protection of the information involved.

(1) The marking, if otherwise proper under this Part, may be applied to information or material which has been declassified.

(2) The marking may not be employed as a less stringent security designation under conditions where classification under DoD Directive 5200.1, "DoD Information Security Program," June 1, 1972, and DoD Regulation 5200.1-R, "DoD Information Security Program Regulation," November 15, 1973 (32 CFR 159), is not warranted.

(3) Information contained in a technical document for which a determination has been made, that a distribution statement under DoD Directive 5200.20, "Distribution Statements (Other Than Security) on Technical Documents," September 24, 1970,1 is appropriate shall not be marked "FOUO."

(c) Material which is considered as being "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, or appropriate as a means of facilitating segregation of exempt information in a lengthy record, individual paragraphs which contain FOUO information shall be marked "for official use only." In classified documents, this marking should be applied only to paragraphs which contain FOUO information and do not contain classified information.

(e) Instructions regarding marking, safeguarding, and transmitting FOUO materials are set forth in DoD Instruction 5025.9, "Control and Protection of FOR OFFICIAL USE ONLY information," February 1, 1968.

1 See footnote on p. 638.

(a) The policy of the Department of Defense is to make the maximum amount of information available to the public. Therefore, when a person requests in writing that a record be made available to him under the Freedom of Information Act that request may be denied only upon determination that:

(1) The record is subject to one or more of the exemptions set forth in § 286.4, and a significant and legitimate governmental purpose is served by withholding it.

(2) Release of the record is inconsistent with a statutory requirement or other requirement of law.

(3) The record cannot be found because it has not been described with sufficient particularity to enable the component to locate it with a reasonable amount of effort.

(4) The applicant has unreasonably failed to comply with the procedural requirements (including the payment of any required fee) imposed by the implementing regulations of the component concerned. When personally identifiable information in a record is requested by the subject of the record, for example, notarization of the request may be required.

of

(b) The initial determination 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 published regulations for the type of record sought. The marking or absence of the marking "for official use only" does not relieve the designated official of his responsibility to review the requested record for the purpose of determining whether an exemption under § 286.4 is applicable.

(c) The official designated by a component to make initial determinations, if not a public affairs officer, should consult with public affairs officers to familiarize himself with subject matter considered 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 publicly challenged.

(d) Initial determinations on whether to release a record shall:

(1) Normally be made and the decision reported to the requester within ten (10) working days of the date a request is received by the official designated to respond for the type of record sought, providing the requester indicates a willingness to reimburse the component for any search and duplication costs incurred in providing the record. If the willingness of the requester to reimburse the component for any required search and duplication costs is not expressed in the request, resolution of this issue is appropriate before the time for responding begins to run when these costs are likely to be substantial.

(2) When the request is addressed to another official in the component or to the wrong agency or component, it shall normally be forwarded promptly to the designated responsible official, of the appropriate agency or component, with the period for response commencing upon his receipt.

(3) When a decision is made to release a record, it should be forwarded promptly to the requester upon receipt of any required payment for search and duplication. Alternatively, the requester may be directed to an established source from which members of the public may obtain the record sought (e.g., the U.S. Government Printing Office).

(4) When a request is received for a record which:

(i) Was obtained by the Defense Component from a non-U.S. Government source; or

(ii) Contains information obtained by the Defense component from non-U.S. Government source; and, because of the source and the nature of the records or information, there is reason to believe that the source of the information or record may object to release and may have an enforceable right to prevent release, prompt notification of intended release shall be given to the source. Release shall normally be withheld until the source has a reasonable time to comment on the proposed release. Comments received shall be considered in determining the releasability of the document. When the source advises that it is seeking a restraining order or other court action to prevent release, release will normally not be made pending the outcome of the court action.

(5) In all cases where the time for response may become an issue, the official responsible for replying should

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acknowledge to the requester the date of the receipt of the request for purposes of determining time limits.

(6) If additional time is needed in unusual circumstances to respond the component should acknowledge the request in writing within the ten (10) day period, briefly cite one of the unusual circumstances requiring delay, and indicate the anticipated date for substantive response which may not exceed ten (10) additional working days. Unusual circumstances that may justify delay

are:

(1) The requested record is located in whole or part at places other than the office processing the request.

(ii) The request requires the collection and coordination of a substantial number of records.

(iii) Consultation is required with other components or agencies having substantial interest in the subject matter of the requested records to determine whether the records requested in whole or part are exempt from disclosure under $286.6 or should be released as a matter of discretion.

(e) The extension of time for responding to an initial request must be approved on a case by case basis by the final appellate authority for the component or in accordance with regulations of the component which establish guidance governing the circumstances in which such extensions may be granted.

(f) When a request for a record or records is denied in whole or part the designated official who has made that determination shall explain to the requester in writing (with at least one additional copy) the basis for the determination and of the opportunity and procedures for appealing that determination to a higher final authority within the component.

(1) Inability to process any part of the request within the specified time should be explained to the requester, with notification that he may treat this delay as an initial denial with a right to appeal, that he may agree to await a substantive response by an anticipated date. It should be made clear that any such agreement does not prejudice the right of the requester to appeal the initial decision after it is made.

(2) The explanation of the substantive basis for a denial shall include both specific citation of the statutory exemption applied pursuant to § 286.4 and a

discussion of the significant and legitimate governmental purpose served by invoking an exemption. Reference to the marking “for official use only" on the requested record does not constitute a proper citation or explanation of the basis for invoking an exemption.

(3) The name and title or position of the official responsible for the denial shall be included in the written response to the requester.

(4) When the initial denial is based in whole or part on a security classification pursuant to § 286.4 (c) (1) or § 286.4(c) (3), the explanation shall include a summary of the paragraph or paragraphs contained in DoD Directive 5200.1, "DoD Information Security Program," June 1, 1972, and DoD Regulation 5200.1-R, "DoD Information Security Program Regulation," November 15, 1973 (32 CFR 159), or other authoritative classification guidance which set forth the criteria or rationale for the current classification of the requested record, along with the reasons that demonstrate the logical relationship between the content of the requested record and the summarized criteria or rationale.

(5) Copies of all initial denials shall be maintained by each component in a form suitable for rapid retrieval, periodic statistical compilation, and management evaluation.

(g) If the official designated by the component to make initial determinations on requests for records declines to provide a record because he considers it exempt, and its withholding justified for a significant and legitimate governmental purpose, that decision may be appealed by the requester in writing to the head of the component having jurisdiction over the record or his designee for this purpose, along with a copy of the letter denying the initial request. Such appeals should contain the basis for disagreement with the initial refusal. In addition, the component may impose a reasonable time limit of not less than forty (40) days for filing an appeal.

(h) Final determination on appeals shall normally be made within twenty (20) working days of the receipt of the appeal by the official designated to make the decision. Misdirected appeals will be forwarded promptly to the proper appellate authority with the period for response commencing upon his receipt. If additional time is needed to decide the appeal because of unusual circumstances, as described in paragraph (d), the final

determination may be delayed for the number of working days, not to exceed ten (10), which were not utilized as additional time for responding to the initial request.

(1) Final refusal to provide a requested record must be made in writing by the head of the component having jurisdiction over it, or by his designee for that purpose. Such a refusal shall be made in accordance with appeal procedures prescribed in regulations that shall include, as a minimum, the following elements:

(1) The basis for the refusal shall be explained to the requester, in writing, both with regard to the applicable statutory exemption invoked pursuant to § 286.4 and the significant and legitimate government purpose served by its withholding. More particularly:

(i) When the final refusal is based in whole or part on a security classification, pursuant to § 286.4 (c) (1) or § 286.4 (c) (3):

(A) The explanation shall include a determination that the record meets the cited criteria and rationale of DoD Directive 5200.1, "DoD Information Security Program," June 1, 1972, and DoD Regulation 5200.1-R, "DoD Information Security Program Regulation," November 15, 1973 (32 CFR 159), or other authoritative classification guidance, and that this determination is based on a declassification review, with an explanation of why that review confirmed the continuing validity of the security classification.

(B) The requester shall be advised of his optional right to seek review by the Interagency Classification Review Committee of a final denial by the head of a component or his designee on the basis of continued security classification. This review is in accordance with Executive Order 11652, March 8, 1972, and is in lieu of immediate judicial review.

(ii) The written final denial shall include the name and title or position of the official responsible for the denial and of the provision for judicial review of the denial as set forth in § 286.12.

(2) Final refusal ordinarily should not be made without prior consultation with the Office of the General Counsel of the Department of Defense when there is reason to believe that the requester will file a complaint in a U.S. District Court to force release of the refused record.

(3) Copies of all final denial letters shall be maintained by each component in a central repository. Whenever a complaint is filed in a U.S. District Court to force release of a record, a copy of the final denial letter from the component shall be forwarded to the General Counsel of the Department of Defense, together with a copy of the requester's complaint, and followed by such portions of the litigation report prepared by the component for the Department of Justice as may be necessary to understand the legal basis for the denial.

(4) When the refusal to provide the record is based in whole or part on a security classification, pursuant to § 286.4 (c) (1) or § 286.4 (c) (3), the litigation report shall include an affidavit from the head of the component or his designee for this purpose, explaining in as much detail as national security interests permit the basis under applicable statute, executive order and regulations for the current security classification of the requested record.

(j) The costs of searching for and duplicating a requested record must be paid or waived in accordance with § 286.8. The time limits for responding to requests begin to run upon receipt from the requester of clear evidence of willingness to pay any anticipated search and duplication costs under the schedule of fees set forth in § 286.8 for providing the requested record. The record need not be forwarded until actual receipt of payment.

(k) The time limits for responding to requests for records are, in summary, and subject to the conditions set forth in the previous paragraphs, as follows:

(1) Initial Responses-Ten (10) working days.

(2) Appeals for Denial-Twenty (20) working days.

(3) Extension of time available under certain circumstances for either the initial or final determination, but not both ten (10) working days.

sides or has his principal place of business; (2) in the district in which the record is situated to produce the record; or (3) in U.S. District Court for the District of Columbia.

(b) 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, which may examine any requested record in camera to determine whether the denial of the record, in whole or part, is justified under 5 U.S.C. 552, as amended by Pub. L. 93502.

(c) The United States must answer or otherwise plead to the complaint within thirty days. Consideration of such cases by both trial courts and courts of appeal will be expedited in every way; except as to cases the court considers of greater importance.

(d) A court may retain jurisdiction and allow a component additional time to complete its review of records to determine their availability to the requester when the component demonstrates due diligence in exceptional circumstances.

(e) If the court orders production of a record and the responsible official designated in accordance with § 286.5 refuses to produce it, the court has statutory authority to punish the official whose decision and order govern the determination of whether to release the record. In addition, the court may assess against the United States reasonable attorney fees and other litigation costs when the requester has substantially prevailed. In such situations the court may also issue a written finding that the circumstances of withholding raise a question of whether agency personnel have acted arbitrarily or capriciously and the Civil Service Commission must determine whether disciplinary action against responsible agency officials, or employees is warranted.

§ 286.13 Reporting requirement.

(a) Each component shall prepare an annual report for the preceding calendar year on its implementation of 5 U.S.C. 552, as amended by Pub. L. 93-502, of this part.

(b) Six copies of the annual report shall be furnished to the ASD(PA) on or before February 1 of each year for transmittal to the Speaker of the House of Representatives and to the President of the Senate.

(c) The annual report shall contain the following:

(1) The number and reasons for initial denial of records requested from the component.

(2) The number of appeals from initial denials and the disposition of each such appeal; with the reasons for any final denial of records requested from the component.

(3) The names and titles or positions of each person primarily responsible for an initial denial or for a final denial on appeal of a request for a record under 5 U.S.C. 552, as amended by Pub. L. 93502, and the number of such denials by each such person.

(4) The results of any disciplinary proceeding, including an explanation of a decision not to discipline, that was initiated against an officer or employee because a court determined that a record requested from the component was arbitrarily or capriciously withheld.

(5) A copy of current component regulation implementing 5 U.S.C. 552, as amended by Pub. L. 93-502, and this Part.

(6) A copy of the component fee schedule for search and duplication of requested records, and the total amount collected for this purpose, as accurately as reasonably can be determined.

(7) A brief description of every court case brought against the component to force it to release or withhold a record requested under 5 U.S.C. 552, as amended by Pub. L. 93-502, including the status of the case; whether attorney fees have been awarded to the private party; and whether the court found that the circumstances of withholding raised questions of arbitrary and capricious personnel conduct.

(8) A description of all efforts undertaken by the component or by personnel of the component to instruct and educate employees or the public on the requirements of 5 U.S.C. 552, as amended by Pub. L. 93-502, and this Part.

(9) Such data on the costs of processing requests under 5 U.S.C. 552, as amended by Pub. L. 93-502, as can reasonably be ascertained or estimated.

(10) Any other information that demonstrates efforts by the component to implement 5 U.S.C. 552, as amended by Pub. L. 93-502, including problems with the implementation and any proposed solutions for those problems.

(11) This reporting requirement is assigned Report Control Symbol DD-PA (A) 1365.

§ 286.14 Release and authentication of copies of official records.

(a) Records available to a person requesting them under § 286.5 [§ 286.5 was revoked at 41 FR 27074, July 1, 1976] of this Part shall be authenticated with an appropriate seal whenever necessary to fulfill an official governmental or other legal function.

(b) Subject to the provisions of DoD Directive 5200.1, "DoD Information Security Program," June 1, 1972, and DoD Regulation 5200.1-R, "DoD Information Security Program Regulation," November 15, 1973 (32 CFR 159); applicable to classified information, records exempt from release under § 286.4 to a person requesting them may, nevertheless, be authenticated on request and released in accordance with component regulations to local, state, or other Federal governmental bodies, whether legislative, executive, administrative, or judicial, as follows:

(1) To the courts; whenever ordered as appropriate to the proper administration of justice.

(2) To the Congress; in accordance with DoD Directive 5400.4, "Provision of Information to Congress," February 20, 1971.1

(3) To local and state legislative bodies; in accordance with the determination of the head of the component or his designee.

(4) To other Federal agencies, both executive and administrative, as determined by the head of the agency or his designee, as consistent with efficient administration and in accordance with law, including 5 U.S.C. 552a (The Privacy Act of 1974), which becomes effective on September 27, 1975.

(5) To local and state executive and administrative agencies as determined by the head of the component or his designee.

PART 286a-PERSONAL PRIVACY AND RIGHTS OF INDIVIDUALS REGARDING THEIR PERSONAL RECORDS

Sec.

286a.1 Purpose.

286a.2 Applicability and scope. 286a.3 Policy.

1 See footnote on p. 638.