[Federal Register: May 23, 2003 (Volume 68, Number 100)]
[Rules and Regulations]
[Page 28132-28138]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23my03-17]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 299
RIN 0790-AG96
National Security Agency/Central Security Service (NSA/CSS)
Freedom of Information Act Program
AGENCY: Department of Defense.
ACTION: Interim final rule.
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SUMMARY: The part implements the Freedom of Information Act, as
amended. It assigns responsibility for responding to written requests
made pursuant to the Act and provides for the review required to
determine the appropriateness of classification.
DATES: This rule is effective August 5, 2002. Consideration will be
given to all comments received on or before July 22, 2003.
ADDRESSES: Forward comments to National Security Agency, FOIA Office
(DC321), 9800 Savage Road STE 6248, Ft. George G. Meade, MD 20755-6248.
FOR FURTHER INFORMATION CONTACT: Pamela Phillips, 301-688-6527.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
It has been determined that 32 CFR part 299 is not a significant
regulatory action. The rule does not (1) have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or state, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs, or the rights and obligations of the recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
Unfunded Mandates Reform Act
It has been certified that 32 CFR part 299 does not contain a
Federal Mandate that may result in the expenditure by State, local and
tribal governments, in aggregate, or by the private sector, of $100
million or more in any one year.
Regulatory Flexibility Act
It has been determined that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
Paperwork Reduction Act
It has been certified that 32 CFR part 299 does not impose any
reporting or recordkeeping requirements under the Paperwork Reduction
Act of 1995 (44 U.S.C. Chapter 44).
Executive Order 13132
It has been certified that 32 CFR part 299 does not have federalism
implications, as set forth in Executive Order 13132.
List of Subjects in 32 CFR Part 299
Freedom of Information.
0
Accordingly, 32 CFR part 299 is revised to read as follows:
PART 299--NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE (NSA/
CSS) FREEDOM OF INFORMATION ACT PROGRAM
Sec.
Sec. 299.1 Purpose.
Sec. 299.2 Definitions.
Sec. 299.3 Policy.
Sec. 299.4 Responsibilities.
Sec. 299.5 Procedures.
Sec. 299.6 Fees.
Sec. 299.7 Exempt records.
[[Page 28133]]
Authority: 5 U.S.C. 552.
Sec. 299.1 Purpose.
(a) This part implements 5 U.S.C. 552, as amended, and DoD 5400.7-
R,\1\ assigns responsibility for responding to written requests made
pursuant to 5 U.S.C. 552; and provides for the review required to
determine the appropriateness of classification pursuant to DoD 5200.1-
R.\2\
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\1\ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
\2\ See footnote 1 to this section.
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(b) This part applies to all NSA/CSS elements, field activities and
personnel, and governs the release or denial of any information under
the terms of the Freedom of Information Act (FOIA).
Sec. 299.2 Definitions.
Terms used in this part, with the exception of the terms in Sec.
299.4, are defined in DoD 5400.7-R. For ease of reference, however,
some terms are defined in this section.
(a) FOIA request. (1) A written request for NSA/CSS records, that
reasonably describes the records sought, made by any person, including
a member of the public (U.S. or foreign citizen/entity), an
organization or a business, but not including a Federal Agency or a
fugitive from the law that either explicitly or implicitly invokes 5
U.S.C. 552, as amended, 5 U.S.C. 552a, as amended, DoD 5400.7-R, or
NSA/CSS Freedom of Information Act Program, within the National
Security Agency/Central Security Service. Requesters should also
indicate a willingness to pay fees associated with the processing of
their request or, in the alternative, why a waiver of fee may be
appropriate.
(2) An FOIA request may be submitted by U.S. mail or its
equivalent, by facsimile or electronically through the NSA FOIA Home
Page on the Internet. The mailing address is FOIA/PA Services (DC321),
National Security Agency, 9800 Savage Road STE 6248, Ft. George G.
Meade, MD 20755-6248. The Web-based system contains a form to be
completed by the requester, requiring name and postal mailing address.
The URL is http://www.nsa.gov/docs/efoia/.
(3) When a request meeting the requirements stated in this section
is received by the FOIA office and there is no remaining question about
fees, that request is considered perfected.
(b) Privacy Act (PA) request. A written request submitted by a U.S.
citizen or an alien admitted for permanent residence for access to or
amendment of records on himself/herself which are contained in a PA
system of records. For purposes of this part, PA request refers to a
request for copies of records. Regardless of whether the requester
cites the FOIA, PA or neither law, the request will be processed under
both this part and NSA/CSS Regulation 10-35, Implementation of the
Privacy Act of 1974.\3\.
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\3\ Copies may be obtained through a FOIA request to the
National Security Agency, Ft. George G. Meade, MD 20755-6248.
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(c) Agency records. (1) The products of data compilation, such as
all books, papers, maps, and photographs, machine readable materials,
including those in electronic form or format (including e-mails), or
other documentary materials, regardless of physical form or
characteristics, made or received by an agency of the United States
Government under Federal law in connection with the transaction of
public business and in NSA/CSS's possession and control at the time the
FOIA request is made. The term ``records'' does not include:
(i) Objects or articles such as structures, furniture, vehicles and
equipment, whatever their historical value or value as evidence;
(ii) Intangible records such as an individual's memory or oral
communication; and
(iii) Personal records of an individual not subject to agency
creation or retention requirements, created and maintained primarily
for the convenience of an agency employee, and not distributed to other
agency employees for their official use.
(2) A record must exist and be in the possession and control of the
NSA/CSS at the time of the request to be subject to this part. There is
no obligation to create or compile a record or obtain a record not in
the possession of the NSA/CSS to satisfy an FOIA request. The NSA/CSS
may compile or create a new record when doing so would be less
burdensome to the Agency than providing existing records and the
requester does not object.
(3) Hard copy or electronic records that are subject to FOIA
requests under 5 U.S.C. 552(a)(3) and are available through an
established distribution system on the Internet, normally need not be
processed under the FOIA. The Agency shall provide guidance to the
requester on how to obtain the material outside of the FOIA process. If
the requester insists that the request be processed under the FOIA,
then it shall be so processed.
Sec. 299.3 Policy.
(a) Pursuant to written requests submitted in accordance with the
FOIA, the NSA/CSS shall make records available to the public consistent
with the Act and the need to protect government interests pursuant to
subsection (b) of the Act. Oral requests for information shall not be
accepted. Before the Agency responds to a request, the request must
comply with the provisions of this part. In order that members of the
public have timely access to unclassified information regarding NSA
activities, requests for information that would not be withheld if
requested under the FOIA or the Privacy Act (PA) may be honored through
appropriate means without requiring the requester to invoke the FOIA or
the PA. Although a record may require minimal redaction before its
release, this fact alone shall not require the Agency to direct the
requester to submit a formal FOIA or PA request for the record.
(b) Requests for electronic records shall be processed, and the
records retrieved whenever retrieval can be achieved through reasonable
efforts (in terms of both time and manpower) and these efforts would
not significantly interfere with the operation of an automated
information system. Reasonable efforts shall be undertaken to maintain
records in forms of formats that render electronic records readily
reproducible.
(c) The NSA/CSS does not originate final orders, opinions,
statements of policy, interpretations, staff manuals, or instructions
that affect members of the public of the type generally covered by the
indexing requirement of 5 U.S.C. 552. Therefore, it has been
determined, pursuant to the pertinent statutory and executive order
requirements, that it is unnecessary and impracticable to publish an
index of the type required by 5 U.S.C. 552. However, should such
material be identified, it will be indexed and placed in the library at
the National Cryptologic Museum (NCM), which serves as the NSA/CSS FOIA
reading room, and made available through the Internet. Copies of
records which have been released under the FOIA and which NSA/CSS has
determined are likely to become the subject of subsequent requests will
be placed in the library of the NCM. In addition, these records are
made available to the public through the Internet. An index of this
material is available in hard copy in the museum library and on the
Internet.
Sec. 299.4 Responsibilities.
(a) The Director's Chief of Staff (DC) is responsible for
overseeing the administration of the FOIA, which includes responding to
FOIA requests
[[Page 28134]]
and for collecting fees from FOIA requesters.
(b) The Director of Policy (DC3), or the Deputy Director of Policy
(D/DC3), if so designated, is the initial denial authority (IDA) and is
responsible for:
(1) Receiving and staffing all initial, written requests for the
release of information;
(2) Conducting the necessary reviews to determine the releasability
of information pursuant to DoD 5200.1-R;
(3) Providing the requester with releasable material;
(4) Notifying the requester of any adverse determination, including
informing the requester of his/her right to appeal an adverse
determination to the appeal authority (see Sec. 299.5(n));
(5) Assuring the timeliness of responses;
(6) Negotiating with the requester regarding satisfying his request
(e.g., time extensions, modifications to the request);
(7) Authorizing extensions of time within Agency components (e.g.,
time needed to locate and/or review material);
(8) Assisting the Office of General Counsel (OGC) in judicial
actions filed under 5 U.S.C. 552;
(9) Maintaining the FOIA reading room and the Internet home page;
and
(10) Compiling the annual FOIA report.
(c) The Chief, Accounting and Financial Services (DF22) is
responsible for:
(1) Sending initial and follow-up bills to FOIA requesters as
instructed by the FOIA office, with a copy of all bills going to the
FOIA office. In cases where an estimate of fees is provided to the
requester prior to the processing of his/her request, no bill shall be
sent. Although the FOIA office asks FOIA requesters to send payment to
the FOIA office, for subsequent forwarding to Accounting and Financial
Services, payment may be received directly in Accounting and Financial
Services. Such payment may be identified by the payee as payment for a
Freedom of Information Act request, by the letters ``FOIA,'' or as
payment for XXXXX. (FOIA requesters are provided a case number to refer
to in correspondence with NSA);
(2) Receiving and handling all checks or money orders remitted in
payment for FOIA requests, crediting them to the proper account and
notifying the FOIA office promptly of all payments received;
(3) Notifying the FOIA office promptly of any payments received
directly from requesters even if no bill was initiated by Accounting
and Financial Services; and
(4) Issuing a prompt reimbursement of overpaid fees to the
requester upon being notified of such overpayment by the FOIA office.
(d) The Deputy Director, NSA/CSS, is the FOIA Appeal Authority
required by 5 U.S.C. 552 for considering appeals of adverse
determinations by the Director of Policy. In the absence of the Deputy
Director, the Director's Chief of Staff serves as the Appeal Authority.
(e) The General Counsel (GC) or his designee is responsible for:
(1) Reviewing responses to FOIA requests to determine the legal
sufficiency of actions taken by the Director of Policy, as required on
a case-by-case basis;
(2) Reviewing the appeals of adverse determinations made by the
Director of Policy. The GC will prepare an appropriate reply to such
appeals and submit that reply to the NSA/CSS FOIA Appeal Authority for
final decision; and
(3) Representing the Agency in all judicial actions relating to 5
U.S.C. 552 and providing support to the Department of Justice.
(f) The Chief of Installation and Logistics (I&L) shall establish
procedures to ensure that:
(1) All inquiries for information pursuant to 5 U.S.C. 552 are
delivered promptly to the Director of Policy; and
(2) Any appeal of an adverse determination is delivered promptly
and directly to the NSA/CSS Appeal Authority staff.
(g) The Directorates, Associate Directorates, and Field Elements
shall:
(1) Establish procedures to ensure that any inquiries for
information pursuant to 5 U.S.C. 552 are referred immediately and
directly to the Director of Policy. Field Elements should forward,
electronically, any requests received to the DIRNSA/CHCSS, ATTN: DC3;
and
(2) Designate a senior official and an alternate to act as a focal
point to assist the Director of Policy in determining estimated and
actual cost data, in conducting searches reasonably calculated to
retrieve responsive records and assessing whether information can be
released or should be withheld.
(h) Military and civilian personnel assigned or attached to or
employed by the NSA/CSS who receive a Freedom of Information Act
request shall deliver it immediately to the Director of Policy.
Individuals who are contacted by personnel at other government agencies
and asked to assist in reviewing material for release under the FOIA
must direct the other agency employee to the NSA/CSS FOIA office
promptly.
Sec. 299.5 Procedures.
(a) Requests for copies of records of the NSA/CSS shall be
delivered to the Director of Policy immediately upon receipt once the
request is identified as a Freedom of Information Act or Privacy Act
requestor appears to be intended as such a request.
(b) The Director of Policy, or Deputy Director of Policy, if so
designated, shall endeavor to respond to a direct request to NSA/CSS
within 20 working days of receipt. If the request fails to meet the
minimum requirements of a perfected FOIA request, the FOIA office shall
advise the requester of how to perfect the request. The 20 working day
time limit applies upon receipt of the perfected request. In the event
the Director of Policy cannot respond within 20 working days due to
unusual circumstances, the chief of the FOIA office shall advise the
requester of the reason for the delay and negotiate a completion date
with the requester.
(c) Direct requests to NSA/CSS shall be processed in the order in
which they are received. Requests referred to NSA/CSS by other
government agencies shall be placed in the processing queue according
to the date the requester's letter was received by the referring agency
if that date is known, in accordance with Department of Justice
Guidelines. If it is not known when the referring agency received the
request, it shall be placed in the queue according to the date of the
requester's letter.
(d) The FOIA office shall maintain six queues (``super easy,''
``sensitive/personal easy,'' ``non-personal easy,'' ``sensitive/
personal voluminous,'' ``non-personal complex,'' and ``expedite'') for
the processing of records in chronological order. The processing queues
are defined as follows:
(1) Super easy queue. The super easy queue is for requests for
which no responsive records are located or for material that requires
minimal specialized review.
(2) Sensitive/personal easy queue. The sensitive/personal easy
queue contains FOIA and PA records that contain sensitive personal
information, typically relating to the requester or requester's
relatives, and that do not require a lengthy review. These requests are
processed by DC321 staff members who specialize in handling sensitive
personal information.
(3) Non-personal easy queue. The non-personal easy queue contains
all other types of NSA records not relating to the requester, that
often contain classified information that may require coordinated
review among NSA components, and that do not require a lengthy review.
These requests are
[[Page 28135]]
processed by DC321 staff members who specialize in complex
classification Issues.
(4) Sensitive/personal voluminous queue. The sensitive/personal
voluminous queue contains FOIA and PA records that contain sensitive
personal information, typically relating to the request or the
requester's relatives, and that require a lengthy review because of the
high volume of responsive records. These records may also contain
classified information that may require coordinated review in several
NSA components. These requests are processed by DC321 staff members who
specialize in handling sensitive personal information.
(5) Non-personal complex queue. The non-personal complex queue
contains FOIA records not relating to the requester that require a
lengthy review because of the high volume and/or complexity of
responsive records. These records contain classified, often technical
information that requires coordinated review among many specialized NSA
components, as well as consultation with other government agencies.
These requests are processed by DC321 staff members who specialize in
complex classification issues.
(6) Expedite queue. Cases meeting the criteria for expeditious
processing as defined in paragraph (f) of this section shall be
processed in turn within that queue by the appropriate processing team.
(e) Requesters shall be informed immediately if no responsive
records are located. Following a search for and retrieval of responsive
material, the initial processing team shall determine which queue in
which to place the material, based on the criteria in paragraph (d)(1)
through (6) of this section and shall so advise the requester. If the
material requires minimal specialized review (super easy), the initial
processing team shall review, redact if required, and provide the non-
exempt responsive material to the requester immediately. All other
material shall be processed by the appropriate specialized processing
team on a first-in, first-out basis within its queue. These procedures
are followed so that a requester shall not be required to wait a long
period of time to learn that the Agency has no records responsive to
his request or to obtain records that require minimal review. For
statistical reporting purposes for the Annual Report, super easy,
sensitive/personal easy, and non-personal easy cases shall be counted
as ``Easy'' cases, and sensitive/personal voluminous and non-personal
complex cases shall be counted as ``Hard'' cases.
(f) Expedited processing shall be granted to a requester if he/she
requests such treatment and demonstrates a compelling need for the
information. A demonstration of compelling need by a requester shall be
made by a statement certified by the requester to be true and correct
to the best of his/her knowledge. A compelling need is defined as
follows:
(1) The failure to obtain the records on an expedited basis could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual.
(2) The information is urgently needed by an individual primarily
engaged in disseminating information to inform the public about actual
or alleged Federal Government activity. Urgently needed means that the
information has a particular value that will be lost if not
disseminated quickly.
(3) A request may also be expedited, upon receipt of a statement
certified by the requester to be true and correct to the best of his/
her knowledge, for the following reasons:
(i) There would be an imminent loss of substantial due process
rights.
(ii) There is a humanitarian need for the material. Humanitarian
need means that disclosing the information will promote the welfare and
interests of mankind.
(4) Requests which meet the criteria for expedited treatment as
defined in paragraph (f)(3) of this section will be placed in the
expedite queue behind requests which are expedited because of a
compelling need (see paragraphs (f)(1) and (2) of this section).
(5) A decision on whether to grant expedited treatment shall be
made within 10 calendar days of receipt. The requester shall be
notified whether his/her request meets the criteria for expedited
processing within that time frame. If a request for expedited
processing has been granted, a substantive response shall be provided
within 20 working days of the date of the decision to expedite. If a
substantive response cannot be provided within 20 working days, a
response shall be provided as soon as practicable and the chief of the
FOIA office shall negotiate a completion date with the requester,
taking into account the number of cases preceding it in the expedite
queue and the complexity of the responsive material.
(g) If the Director of Policy, in consultation with the GC,
determines that the fact of the existence or non-existence of requested
material is a matter that is exempt from disclosure, the requester
shall be so advised.
(h) If the FOIA office determines that NSA/CSS may have information
of the type requested, the office shall contact each Directorate or
Associate Directorate reasonably expected to hold responsive records.
(i) The FOIA office shall assign the requester to the appropriate
fee category under 5 U.S.C. 552, as amended, and DoD 5400.7-R, and, if
a requester seeks a waiver of fees, the FOIA office shall, after
determining the applicable fee category, determine whether to waive
fees pursuant to DoD 5400.7-R. (See also Sec. 299.6.) If fees are to
be assessed in accordance with the provisions of 5 U.S.C. 552 and DoD
5400.7-R, the Directorate or Associate Directorate shall prepare an
estimate of the cost required to locate, retrieve and, in the case of
commercial requesters, review the records. Cost estimates shall include
only direct search, duplication costs and review time (for commercial
requesters) as defined in DoD 5400.7-R.
(1) If the cost estimate does not exceed $25.00, the component
shall search for and forward to the FOIA office the documents
responsive to the request. Fees $25.00 and under shall be waived.
(2) If the costs are estimated to exceed $25.00, the component
shall provide an estimate to the FOIA office without conducting the
search. The chief of the FOIA office shall advise the requester of the
costs to determine a willingness to pay the fees. A requester's
willingness to pay fees shall be satisfactory when the estimated fee
does not exceed $250.00 and the requester has a history of prompt
payment. A history of prompt payment means payment within 30 calendar
days of the date of billing. If fees are expected to exceed $250.00,
the requester shall be required to submit payment before processing is
continued if the requester does not have a history of prompt payment.
All payments shall be made by certified check or money order made
payable to the Treasurer of the United States.
(3) When a requester has previously failed to pay a fee charged
within a timely fashion (i.e., within 30 calendar days from the date of
billing) payment is required before a search is initiated or before
review is begun. When a requester has no payment history, an advance
payment may be required of the requester after the case has been
completed, but prior to providing the final response.
(4) If a requester has failed to pay fees after three bills have
been sent, additional requests from that requester and/or the
organization or company he/she represents will not be honored until all
costs and interest are paid.
[[Page 28136]]
(j) Upon receipt of a statement of willingness to pay assessable
fees or the payment from the requester, the FOIA office shall notify
the NSA/CSS component to search for the appropriate documents.
(1) The component conducting the search shall advise the FOIA
office of the types of files searched (e.g., electronic records/e-mail,
video/audio tapes, paper), the means by which the search was conducted
(e.g., subject or chronological files, files retrievable by name or
personal identifier) and any key words used in an electronic search.
(2) If the search does not locate the requested records, the
Director of Policy shall so advise the requester and offer appeal
rights.
(3) If the search locates the requested records, the holding
organization shall furnish copies of these records immediately to the
FOIA office. The Director of Policy shall make a determination as to
the releasability of the records in consultation with the GC, the
Legislative Affairs Office (if any information relates to members of
Congress or their staffs) and other Agency components, as appropriate.
This determination shall also state, with particularity, that a search
reasonably calculated to locate responsive records was conducted and
that all reasonably segregable, non-exempt information was released.
The located records will be handled as follows:
(i) All exempt records or portions thereof shall be withheld and
the requester so advised along with the statutory basis for the denial;
the volume of material being denied, unless advising of the volume
would harm an interest protected by exemption (see 5 U.S.C. 552); and
the procedure for filing an appeal of the denial.
(ii) All segregable, non-exempt records or portions thereof shall
be forwarded promptly to the requester.
(k) Records or portions thereof originated by other agencies or
information of primary interest to other agencies found in NSA/CSS
records shall be handled as follows:
(1) The originating agency's FOIA Authority shall be provided with
a copy of the request and the stated records.
(2) The requester shall be advised of the referral, except when
notification would reveal exempt information.
(l) Records of portions thereof originated by a commercial or
business submitter and containing information that is arguably
confidential commercial or financial information as defined in
Executive Order 12600 (52 FR 23781, 3 CFR, 1987 Comp., p. 235) shall be
handled as follows:
(1) The commercial or business submitter shall be provided with a
copy of the records as NSA/CSS proposes to release them, and the
submitter shall be given an opportunity to inform the FOIA office about
its objections to disclosure in writing.
(2) The Director of Policy or his/her designee shall review the
submitter's objections to disclosure and, if DC3 decides to release
records or portions thereof to the requester, provide the submitter
with an opportunity to enjoin the release of such information.
(m) Records may be located responsive to an FOIA request which
contain portions not responsive to the subject of the request. The non-
responsive portions shall be processed as follows:
(1) If the information is easily identified as releasable, the non-
responsive portions shall be provided to the requester.
(2) If additional review or coordination with other NSA/CSS
elements or other government agencies or entities is required to
determine the releasability of the information, and the processing of
the material would be facilitated by excluding those portions from
review, the requester should be consulted regarding the need to process
those portions. If the requester states that he is interested in the
document in its entirety, including those portions not responsive to
the subject of his request, the entire document shall be considered
responsive and reviewed accordingly.
(3) If the conditions as stated in paragraph (m)(2) of this section
pertain, but it is not a simple matter to contact and/or reach an
agreement with the requester, the non-responsive portions shall be
marked to differentiate the removal of non-responsive material from the
removal of exempt portions. The requester shall be advised that
portions were removed as non-responsive. In addition, he/she shall be
given an indication of the manner in which those portions would be
treated if responsive (e.g., the information would be protected by
exemptions, would require extensive review/consultation). Such a
response is not considered an adverse determination. If the requester
informs the FOIA office of his interest in receiving the non-responsive
portions, the request shall be placed in the same location within the
processing queue as the original request and those portions of the
documents shall be processed.
(4) If the requester states in his initial request that he/she
wants all non-responsive portions contained within documents containing
responsive information, then the documents shall be processed in their
entirety.
(n) Any person advised of an adverse determination shall be
notified of the right to submit an appeal postmarked within 60 days of
the date of the response letter and that the appeal must be addressed
to the NSA/CSS FOIA Appeal Authority, National Security Agency, Ft.
George G. Meade, MD 20755-6248. The following actions are considered
adverse determinations:
(1) Denial of records or portions of records;
(2) Inability of NSA/CSS to locate records;
(3) Denial of a request for the waiver or reduction of fees;
(4) Placement of requester in a specific fee category;
(5) Amount of estimate of processing costs;
(6) Determination that the subject of a request is not within the
purview of NSA/CSS and that a search for records shall not be
conducted;
(7) Denial of a requester for expeditious treatment; and
(8) Non-agreement regarding completion date of request.
(o) The GC or his designee shall process appeals and make a
recommendation to the Appeal Authority.
(1) Upon receipt of an appeal regarding the denial of information
or the inability of the Agency to locate records, the GC or his
designee shall provide a legal review of the denial and/or the adequacy
of the search for responsive material, and make other recommendations
as appropriate.
(2) If the Appeal Authority determines that additional information
may be released, the information shall be made available to the
requester within 20 working days from receipt of the appeal. The
conditions for responding to an appeal for which expedited treatment is
sought by the requester are the same as those for expedited treatment
on the initial processing of a request. (See paragraph (f) of this
section.)
(3) If the Appeal Authority determines that the denial was proper,
the requester must be advised within 20 days after receipt of the
appeal that the appeal is denied. The requester likewise shall be
advised of the basis for the denial and the provisions for judicial
review of the Agency's appellate determination.
(4) If a new search for records is conducted and produces
additional material, the additional records shall be forwarded to the
Director of Policy, as the IDA, for review. Following his/her review,
the Director of Policy shall return the material to the GC with his/her
recommendation for release or
[[Page 28137]]
withholding. The GC shall provide a legal review of the material, and
the Appeal Authority shall make the release determination. Upon denial
or release of additional information, the Appeal Authority shall advise
the requester that more material was located and that the IDA and the
Appeal Authority each conducted an independent review of the documents.
In the case of denial, the requester shall be advised of the basis of
the denial and the right to seek judicial review of the Agency's
action.
(5) When a requester appeals the absence of a response to a request
within the statutory time limits, the GC shall process the absence of a
response as it would denial of access to records. The Appeal Authority
shall advise the requester of the right to seek judicial review.
(6) Appeals shall be processed using the same multi-track system as
initial requests. If an appeal cannot be responded to within 20 working
days, the requirement to obtain an extension from the requester is the
same as with initial requests. The time to respond to an appeal,
however, may be extended by the number of working days (not to exceed
10) that were not used as additional time for responding to the initial
request. That is, if the initial request is processed within 20 working
days so that the extra 10 days of processing which an agency can
negotiate with the requester are not used, the response to the appeal
may be delayed for that 10 days (or any unused portion of the 10 days).
Sec. 299.6 Fees.
(a) Upon receipt of a request, DC3 shall evaluate the request to
determine the fee category or status of the requester, as well as the
appropriateness of a waiver or reduction of fees if requested. There
are no fees associated with a Privacy Act request, except as stated in
NSA/CSS Regulation 10-35, Implementation of the Privacy Act of 1974. If
fees are assessable, a search cost estimate shall be sent to the
Directorate(s) and Associate Directorate(s) expected to maintain
responsive records. If DC3 assigns a fee category to a requester which
differs from that claimed by the requester or determines that a waiver
or reduction of fees is not appropriate, DC3 shall notify the requester
of this discrepancy and of the estimated cost of processing the
request. The requester shall be given 60 days to provide additional
substantiation for the fee status claimed or for a fee waiver or
reduction. The requester shall be advised that his/her request shall
not be processed until the discrepancy over the fee category, fee
waiver or reduction, or both are resolved. He/she shall also be advised
of his/her right to appeal/DC3's determination. A fee waiver or
reduction shall be granted or denied in accordance with DoD 5400.7-R
and based on information provided by the requester. If the requester
does not respond to DC3's initial notification of the discrepancy in
fee assessment within the 60 days, DC3's determination about that
requester's fee status shall be final.
(b) Fees shall reflect only direct search, review (in the case of
commercial requesters) and duplication costs, recovery of which are
permitted by 5 U.S.C. 552. Fees shall not be used to discourage
requesters.
(c) No minimum fee may be charged. Fees under $25.00 shall be
waived.
(d) Fees shall be based on estimates provided by appropriate
organizational focal points. Upon completion of the processing of the
request and computation of all assessable fees, the request shall be
handled as follows:
(1) If the earlier cost estimate was under $250.00 and the
requester has not yet paid and has no payment history, the requester
shall be notified of the actual cost and shall be sent a bill under
separate cover. Upon receipt of payment, processing results and non-
exempt information shall be provided to the requester.
(2) In cases where the requester paid prior to processing, if the
actual costs exceed the estimated costs, the requester shall be
notified of the remaining fees due. Processing results and non-exempt
information shall be provided to the requester upon payment of the
amount in excess or, if less than $250.00, receipt of the requester's
agreement to pay. If the requester refuses to pay the amount in excess,
processing of the request will be terminated with notice to the
requester.
(3) In cases where the requester paid prior to processing, if the
actual costs are less than estimated fees which have been collected
from the requester, processing results and the non-exempt information
shall be provided to the requester, and the FOIA office shall advise
Accounting and Financial Services of the need to refund funds to the
requester.
(e) Fees for manual searches, review time and personnel costs
associated with computer searches shall be computed according to the
following schedule:
------------------------------------------------------------------------
Hourly
Type Grade rate
------------------------------------------------------------------------
(1) Clerical......................... E9/GS8 and below........ $20
(2) Professional..................... O1-O6/GS9-GS15.......... 44
(3) Executive........................ O7/SCE/SLE/SLP.......... 75
(4) Contractor....................... ........................ 44
------------------------------------------------------------------------
(f) Fees for machine time involved in computer searches shall be
based on the direct cost of retrieving information from the computer,
including associated input/output costs.
(g) Search costs for audiovisual documentary material shall be
computed as for any other record. Duplication costs shall be the
actual, direct cost of reproducing the material, including the wage of
the person doing the work. Audiovisual materials provided to a
requester need not be in reproducible format or quality.
(h) Duplication fees shall be assessed according to the following
schedule:
------------------------------------------------------------------------
Cost per
Type page
------------------------------------------------------------------------
(1) Office Copy.............................................. $.15
(2) Microfiche............................................... .25
(3) Printed Material......................................... .02
------------------------------------------------------------------------
Sec. 299.7 Exempt records.
(a) Records meeting the exemption criteria of 5 U.S.C. 552 need not
be published in the Federal Register, made available in a reading room,
or provided in response to requests made under 5 U.S.C. 552.
(b) The first seven of the following nine FOIA exemptions may be
used by the NSA/CSS to withhold information in whole or in part from
public disclosure when there is a sound legal basis for protecting the
information. Discretionary releases shall be made following careful
Agency consideration of the interests involved.
(1) Records specifically authorized under criteria established by
an Executive Order to be kept secret in the interest of national
defense or foreign policy and which are in fact properly classified
pursuant to such Executive Order.
(2) Records relating solely to the internal personnel rules and
practices of an agency.
(3) Records which concern matters that a statute specifically
exempts from disclosure, so long as the statutory exemptions permit no
discretion on what matters are exempt; or matters which meet criteria
established for withholding by the statute, or which are particularly
referred to by the statute as being matters to be withheld. Examples of
such statutes are:
[[Page 28138]]
(i) The National Security Agency Act of 1959 (Public Law 86-36
Section 6);
(ii) 18 U.S.C. 798;
(iii) 50 U.S.C. 403-3(c)(6);
(iv) 10 U.S.C. 130; and
(v) 10 U.S.C. 2305(g).
(4) Records containing trade secrets and commercial or financial
information obtained from a person and privileged or confidential.
(5) Interagency or intra-agency memoranda or letters that would not
be available by law to a party other than an agency in litigation with
the agency.
(6) Personnel and medical files and similar files, the disclosure
of which would constitute a clearly unwarranted invasion of personal
privacy.
(7) Investigatory records compiled for law enforcement purposes,
but only to the extent that the production of such records:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of the right to a fair trial or to an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy of a living person, including surviving
family members of an individual identified in such a record;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a source within NSA/CSS, state, local,
or foreign agency or authority, or any private institution which
furnishes the information on a confidential basis, or could disclose
information furnished from a confidential source and obtained by a
criminal law enforcement authority in a criminal investigation or by an
agency conducting a lawful national security intelligence
investigation;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; and
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(8) Records 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.
(9) Geological and geophysical information and data, including
maps, concerning wells.
(c) Information which has not been given a security classification
pursuant to the criteria of an Executive Order, but which may be
withheld from the public for one or more of FOIA exemptions 2 through 9
cited in paragraphs (b)(2) through (b)(9) of this section, shall be
considered ``UNCLASSIFIED//FOR OFFICIAL USE ONLY'' (U//FOUO). No other
material shall be considered or marked U//FOUO. The marking of
appropriate records with the U//FOUO designation at the time of their
creation provides notice of U//FOUO content and shall facilitate review
when a record is requested under the FOIA. However, records requested
under the FOIA which do not bear the U//FOUO designation shall not be
assumed to be releaseable without examination for the presence of
information that requires continued protection and qualifies as exempt
from public release.
Dated: May 16, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-12969 Filed 5-22-03; 8:45 am]
BILLING CODE 5001-08-P