3. If the defendant files a timely notice of appeal with the authority head, the presiding officer shall forward the record of the proceeding to the authority head when: a. The time for filing a motion for reconsideration expires without the filing of such a motion, or b. The motion for reconsideration is denied. Issuance of a revised initial decision upon motion for reconsideration shall require filing of a new notice of appeal. 4. A notice of appeal shall be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions. 5. The representative for the Government may file a brief in opposition to the exceptions within 30 days of receiving the notice of appeal and accompanying brief. 6. There is no right to appear personally before the authority head, although the authority head may at his or her discretion require the parties to appear for an oral hearing on appeal. 7. There is no right to appeal any interlocutory ruling by the presiding officer. 8. In reviewing the initial decision, the authority head shall not consider any objection that was not raised before the presiding officer, unless a demonstration is made of extraordinary circumstances causing the failure to raise the objection. 9. If any party demonstrates to the satisfaction of the authority head that additional evidence not presented at such hearing is material and that there were reasonable grounds for the failure to present such evidence at such hearing, the authority head shall remand the matter to the presiding officer for consideration of such additional evidence. 10. The authority head may affirm, reduce, reverse, compromise, remand, or settle any penalty or assessment determined by the presiding officer in any initial decision. 11. The authority head shall promptly serve each party to the appeal with a copy of the decision of the authority head and a statement describing the right of any person determined to be liable for a penalty or assessment to seek judicial review. 12. Unless a petition for review is filed as provided in 32 U.S.C. 3805 after a defendant has exhausted all administrative remedies under this part and within 60 days after the date on which the authority head serves the defendant with a copy of the authority head's decision, a determination that a defendant is liable under section C., above, is final and is not subject to judicial review. 13. The authority heads (or their designees) may designate an officer or employee of the authority, who is serving in the grade of GS17 or above under the General Schedule, or in the Senior Executive Service, to carry out these appellate responsibilities; however, the authority to compromise, settle, or other wise discretionarily dispose of the case on appeal provided pursuant to subsection MM.10, hereof, may not be so redelegated pursuant to this subsection. NN. Stays Ordered by the Department of Justice If at any time, the Attorney General or an Assistant Attorney General designated by the Attorney General transmits to the authority head a written finding that continuation of the administrative process described in this Directive with respect to a claim or statement may adversely affect any pending or potential criminal or civil action related to such claim or statement, the authority head shall stay the process immediately. The authority head may order the process resumed only upon receipt of the written authorization of the Attorney General. 00. Stay Pending Appeal 1. An initial decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal to the authority head. 2. No administrative stay is available following a final decision of the authority head. PP. Judicial Review. 31 U.S.C. 3805 authorizes judicial review by an appropriate United States District Court of a final decision of the authority head imposing penalties or assessment under this part and specifies the procedures for such review. QQ. Collection of Civil Penalties and 31 U.S.C. 3806 and 3808(b) authorize actions for collection of civil penalties and assessments imposed under this part and specify the procedures for such actions. RR. Right to Administrative Offset The amount of any penalty or assessment that has become final, or for which a judgment has been entered under section QQ., above, or any amount agreed upon in a compromise or settlement under section TT., below, may be collected by administrative offset under 31 U.S.C. 3716, except that an administrative offset may not be made under this section against a refund of an overpayment of Federal taxes then or later owing by the United States to the defendant. SS. Deposit in Treasury of United States All amounts collected pursuant to this part shall be deposited as miscellaneous receipts in the Treasury of the United States, except as provided in 31 U.S.C. 3806(g). TT. Compromise or Settlement 1. Parties may make offers of compromise or settlement at any time. 2. The reviewing official has the exclusive authority to compromise or settle a case under this part at any time after the date on which the reviewing official is permitted to issue a complaint and before the date on which the presiding officer issues an initial decision. 3. The authority head has exclusive authority to compromise or settle a case under this Directive at any time after the date on which the presiding officer issues an initial decision, except during the pendency of any review under section PP., above, or during the pendency of any action to collect penalties as assessments under section QQ., above. 4. The Attorney General has exclusive authority to compromise or settle a case under this part during the pendency of any review under section PP., above, of any action to recover penalties and assessments under 31 U.S.C. 3806. 5. The investigating official may recommend settlement terms to the reviewing official or the Attorney General, as appropriate. The reviewing official may recommend settlement terms to the Attorney General, as appropriate. 6. Any compromise or settlement must be in writing. UU. Limitations 1. The notice of hearing with respect to a claim or settlement must be served in the manner specified in section H., above, within 6 years after the date on which such claim or statement is made. 2. If the defendant fails to file a timely answer, service of a notice under subsection J.2., above, shall be deemed a notice of hearing for purposes of this section. 3. If at any time during the course of proceedings brought pursuant to this section, the authority head receives or discovers any specific information concerning bribery, gratuities, conflict of interest, or other corruption or similar activity in relation to a false claim or statement, the authority head shall immediately report such information to the Attorney General and to the Inspector General, Department of Defense. VV. Delegations The General Counsel for the Department of Defense is designated to carry out the reponsibilities of the authority head of the Department of Defense for the issuance of additional implementing regulations that are necessary to implement PFCRA and this part to decide cases upon appeal, and to hire or designate employees of the Department of Defense to decide cases on appeal. The General Counsel, Department of Defense, is also designated to appoint presiding officers for the Department of Defense, and may assist in the appointment of presiding officers on detail from other Agencies for all authorities within the Department of Defense. 167-123 0-96-20 SUBCHAPTER N-FREEDOM OF INFORMATION ACT PROGRAM PART 285-FREEDOM OF INFORMATION ACT PROGRAM Sec. 285.1 Reissuance and purpose. 285.2 Applicability and scope. 285.3 Definitions. 285.4 Policy. 285.5 Responsibilities. 285.6 Information requirements. 285.7 Effective date and implementation. AUTHORITY: Pub. L. 99-570, secs. 1801-1804; Pub. L. 99-661, sec. 2328; 5 U.S.C. 552. SOURCE: 53 FR 19905, June 1, 1988, unless otherwise noted. Redesignated at 56 FR 24133, May 29, 1991. § 285.1 Reissuance and purpose. (a) This part: (1) Reissues DoD Directive 5400.7.1 (2) Establishes policies and procedures for the implementation of the DoD Freedom of Information Act (FOIA) Program under 5 U.S.C. 552. (3) Delegates authorities and responsibilities for the effective administration of the program. (b) This part also authorizes, consistent with DoD 5025.1-M2 the publication of DoD 5400.7-R3 the single DoD regulation on the FOIA Program. § 285.2 Applicability and scope. (a) This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Organization of the Joint Chiefs of Staff (OJCS), the Unified Commands, the Defense Agencies, and the DoD Field Activities. For the purpose of this Directive, OSD, OJCS, the Unified Commands, and the DoD Field Activities are considered a single "DoD Component." The other DoD Components referred to herein are the Military Departments, Defense Communications Agency (DCA), De 1 Copies may be obtained, if needed, from the U.S. Naval Publications and Forms Center, Attn: Code 1052, 5801 Tabor Avenue, Philadelphia, PA 19120. 2 Copies may be obtained, at cost, from the National Technical Information Service, 5258 Port Royal Road, Springfield, VA 22161. 3 See footnote 2 to § 285.1(b). (a) Promote public trust by making the maximum amount of information available to the public on the operation and activities of the Department of Defense, consistent with DoD's responsibility to ensure national security. (b) Allow a requester to obtain records from the Department of Defense that are available through other public information services without invoking the FOIA. (c) Make available, under the procedures established by 32 CFR part 286, those records that are requested by a member of the general public who cites the FOIA. (d) Answer promptly all other requests for information, records, objects, and articles under established procedures and practices. (e) Release records to the public unless those records are exempt from mandatory disclosure as outlined in subpart C of 32 CFR part 286. (f) Process requests by individuals for access to records about themselves under the "Privacy Act" procedures as implemented by 32 CFR part 286a and procedures outlined in this part as amplified by 32 CFR part 286. $285.5 Responsibilities. (a) The Assistant Secretary of Defense (Public Affairs) (ADS(PA)) shall: (1) Direct and administer the DoD FOIA Program to ensure compliance with policies and procedures that govern the administration of the program. (2) Issue a DoD FOIA regulation and other discretionary instructions and guidance to ensure timely and reasonably uniform implementation of the FOIA in the Department of Defense. (3) Internally administer the FOIA Program for the OSD, the OJCS and, as an exception to DoD Directive 5100.34 the Unified Commands (the Specified Commands remain under the Military Departments for FOIA matters). (4) As the designee of the Secretary of Defense, serve as the sole appellate authority for appeals to decisions of respective Initial Denial Authorities identified in ASD(PA) supplementing instructions. (b) The General Counsel, Department of Defense (GC, DoD) shall provide uniformity in the legal interpretation of this Directive. (c) The Heads of DoD Components shall: (1) Publish in the FEDERAL REGISTER any instructions necessary for the internal administration of this part within a DoD Component that are not prescribed by this part or by other issuances of the ASD(PA). For the guidance of the public, the information specified in 5 U.S.C. 552(a)(1) shall be published in accordance with 32 CFR part 296. (2) Conduct training on the provisions of this part and 5 U.S.C., as amended, for officials and employees who implement the FOIA. (3) Submit the reports prescribed in Chapter VII of DoD 5400.7-R. (4) Make available for public inspection and copying in an appropriate facility or facilities, in accordance with rules published in the FEDERAL REGISTER, the records specified in 5 U.S.C. 552(a)(2) unless such records are published and copies are offered for sale. (5) Maintain and make available for public inspection and copying current indices of these records. § 285.6 Information requirements. The reporting requirements in Chapter VII of DoD 5400.7-R have been assigned Report Control Symbol DDPA(A)1365. 4 See footnote 1 to §286.1(a). APPENDIX A TO PART 286-UNIFIED COMPROCEDURES MANDS PROCESSING FOIA APPEALS FOR APPENDIX B TO PART 286-ADDRESSING FOIA REQUESTS APPENDIX C TO PART 286-LITIGATION STATUS SHEET APPENDIX D TO PART 286 OTHER REASON CATEGORIES APPENDIX E TO PART 286-RECORD OF FREEDOM OF INFORMATION (FOI) PROCESSING COST (DD FORM 2086) APPENDIX F TO PART 286-RECORD OF FREEDOM OF INFORMATION (FOI) PROCESSING COST FOR TECHNICAL DATA (DD FORM 2086-1) APPENDIX G TO PART 286-ANNUAL REPORT FREEDOM OF INFORMATION ACT (DD FORM 2564) APPENDIX H TO PART 286-DOD FREEDOM OF INFORMATION ACT PROGRAM COMPONENTS AUTHORITY: 5 U.S.C. 552. SOURCE: 55 FR 53104, Dec. 26, 1990, unless otherwise noted. Subpart A-General Provisions $286.1 Purpose. The purpose of this part is to provide policies and procedures for the Department of Defense (DoD) implementation of the Freedom of Information Act and DoD Directive 5400.71 and to promote uniformity in the DoD Freedom of Information Act (FOIA) Program. $286.2 Applicability. (a) This part applies to the Office of the Secretary of Defense (OSD) which includes for the purpose of this part the Chairman, Joint Chiefs of Staff and Joint Staff, Unified Commands, the Military Departments, the Defense Agencies, and the DoD Field Activities (hereafter referred to as "DoD Components"), and takes precedence over all DoD Component regulations that supplement the DoD FOIA Program. A list of DoD Components is in appendix H to this part. (b) The National Security Agency records are subject to the provisions of this part, only to the extent the records are not exempt under Public Law 86-36. 1 Copies may be obtained, at cost, from the National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161. 32 CFR Ch. 1 (7-1-96 Edition) § 286.3 DoD public information. The public has a right to information concerning the activities of its Government. DoD policy is to conduct its activities in an open manner and provide the public with a maximum amount of accurate and timely information concerning its activities, consistent always with the legitimate public and private interests of the American people. A DoD record requested by a member of the public who follows rules established by proper authority in the Department of Defense shall be withheld only when it is exempt from mandatory public disclosure under the FOIA. In order that the public may have timely information concerning DoD activities, records requested through public information channels by news media representatives that would not be withheld if requested under the FOIA should be released upon request. Prompt responses to requests for information from news media representatives should be encouraged to eliminate the need for these requesters to invoke the provisions of the FOIA and thereby assist in providing timely information to the public. Similarly, requests from other members of the public for information should continue to be honored through appropriate means even though the request does not qualify under FOIA requirements. $286.4 Control system. A request for records that invokes the FOIA shall enter a formal control system designed to ensure compliance with the FOIA. A release determination must be made and the requester informed within the time limits specified in this part. Any request for DoD records that either explicitly or implicitly cites the FOIA shall be processed under the provisions of this part, unless otherwise required by § 286.7(m). § 286.5 Definitions. As used in this part, the following terms and meanings shall be applicable: (a) FOIA request. A written request for DoD records, made by any person, including a member of the public (U.S. or foreign citizen), an organization, or a business, but not including a Federal |