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1280 or involving an incident which been filed and has been referred to a may give rise to a claim covered by Military Service, a copy of the process this part 1280, together with other im- and pleadings and any information not mediately available data concerning previously furnished will be sent to the the commencement of legal pro- appropriate Military Service Judge Ad- ceedings, will be promptly referred to vocate General. Counsel for the activity involved, or, if the activity has no Counsel, to the PART 1285—DEFENSE LOGISTICS next higher echelon having such a posi- tion. AGENCY FREEDOM OF INFOR- (2) Any Military Service member or MATION ACT PROGRAM civilian employee of DLA (or his per- sonal representative) against whom a Sec. domestic civil action or proceeding is 1285.1 Purpose and scope. brought for damage to property, or for 1285.2 Policy. personal injury or death, on account of 1285.3 Definitions. his operation of a motor vehicle 1285.4 Responsibilities. (Government- or privately-owned) in 1285.5 Procedures. the scope of his employment (28 U.S.C. 1285.6 Fees and fee waivers. 2679) will: 1285.7 Reports. (i) Upon receipt of process and plead- APPENDIX A TO PART 1285—GAINING ACCESS ings or any other information regard- TO DLA RECORDS ing the commencement of such action AUTHORITY: 5 U.S.C. 552. or proceeding, immediately inform the SOURCE: 56 FR 65423, Dec. 17, 1991, unless Head of his activity and Counsel as otherwise noted. specified in paragraph (f)(1) of this sec- tion. § 1285.1 Purpose and scope. (ii) Promptly deliver all process and pleadings served upon him, or an at- This rule provides policies and proce- tested true copy thereof, to Counsel. dures for the DLA implementation of (3) Upon receipt of information or DoD 5400.7–R, 1 DoD Freedom of Infor- process and pleadings pursuant to para- mation Act Program. It applies to HQ graph (f)(1) or (2) of this section, Coun- DLA and all DLA field activities and sel will promptly prepare and process takes precedence over all DLA regula- reports in accordance with the appro- tions that supplement the FOIA pro- priate portions of AR 27–40 except that: gram. A list of mailing addresses for (i) If the incident giving rise to the DLA activities is provided at appendix litigation was occasioned by an act or A to this part. omission of a member of the Navy or Marine Corps, or a member of the Air § 1285.2 Policy. Force, information and reports re- (a) General. The public has a right to quired to be furnished to The Judge information concerning the activities Advocate General of the Army will be of its Government. DLA policy is to furnished instead to The Judge Advo- conduct its activities in an open man- cate General of the Navy and Air Force ner and provide the public with a max- respectively. imum amount of accurate and timely (ii) If the litigation is under the Fed- information concerning its activities, eral Tort Claims Act and no adminis- consistent always with the legitimate trative claim has been filed, Counsel public and private interests of the will immediately advise the U.S. At- American people. A DLA record re- torney and furnish him a report of all quested by a member of the public who information the activity has with re- follows rules established herein shall spect to the claim and an affidavit by be withheld only when it is exempt the Claims Investigating Officer to the from mandatory public disclosure effect that no administrative claim has been filed. Two copies of the foregoing 1 Copies may be obtained, at cost, from the will be provided to the appropriate National Technical Information Service Military Service Judge Advocate Gen- (NTIS), 5285 Port Royal Road, Springfield, eral. If an administrative claim has VA 22161–2171.

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under the FOIA. In order that the pub- (e) Avoidance of procedural obstacles. lic may have timely information con- DLA activities shall ensure that proce- cerning DLA activities, records re- dural matters do not unnecessarily im- quested through public information pede a requester from obtaining DLA channels by news media representa- records promptly. DLA activities shall tives that would not be withheld if re- provide assistance to requesters to help quested under the FOIA should be re- them understand and comply with pro- leased upon request. Prompt responses cedures established by this rule and to requests for information from news any rules published by the DLA media representatives should be en- PLFA’s. couraged to eliminate the need for (f) Prompt action on requests. When a these requesters to invoke the provi- member of the public complies with sions of the FOIA and thereby assist in the procedures established in this rule providing timely information to the for obtaining DLA records, the request public. Similarly, requests from other shall receive prompt attention; a reply members of the public for information shall be dispatched within 10 working should continue to be honored through days unless a delay is authorized. When appropriate means even though the re- a DLA activity has a significant num- quest does not qualify under FOIA re- ber of requests, e.g., 10 or more, the re- quirements. quests shall be processed in order of re- (b) Control system. A request for ceipt. However, this does not preclude records that invokes the FOIA shall an activity from completing action on a request which can be easily answered, enter a formal control system designed regardless of its ranking within the to ensure compliance with the FOIA. A order of receipt. A DLA activity may release determination must be made expedite action on a request regardless and the requester informed within the of its ranking within the order of re- time limits specified in this rule. Any ceipt upon a showing of exceptional request for DLA records that either ex- need or urgency. Exceptional need or plicitly or implicitly cites the FOIA urgency is determined at the discretion shall be processed under the provisions of the activity processing the request. of this rule, unless otherwise required (g) Public domain. Nonexempt records by paragraph (m) of this section. released under the authority of this (c) Compliance with the FOIA. DLA rule are considered to be in the public personnel are expected to comply with domain. Such records may also be the FOIA and this rule in both letter made available in reading rooms to fa- and spirit. This strict adherence is nec- cilitate public access. Exempt records essary to provide uniformity in the im- released pursuant to this rule or other plementation of the DLA FOIA pro- statutory or regulatory authority, gram and to create conditions that will however, may be considered to be in promote public trust. To promote a the public domain only when their re- positive attitude among DLA per- lease constitutes a waiver of the FOIA sonnel, each DLA Primary Level Field exemption. When the release does not Activity (PLFA) will establish edu- constitute such a waiver, such as when cation and training programs described disclosure is made to a properly con- in part 286, subpart H, of this title. stituted advisory committee or to a Training materials, including supple- Congressional committee, the released ments, will be coordinated with DLA- records do not lose their exempt sta- XAM prior to publication or issuance. tus. Also, while authority may exist to (d) Openness with the public. DLA disclose records to individuals in their shall conduct its activities in an open official capacity, the provisions of this manner consistent with the need for se- rule apply if the same individual seeks curity and adherence to other require- the records in a private or personal ca- ments of law and regulation. Records pacity. not exempt from disclosure under the (h) Creating a record. (1) There is no Act shall, upon request, be made read- obligation to create nor compile a ily accessible to the public in accord- record to satisfy an FOIA request. A ance with rules promulgated herein, DLA activity, however, may compile a whether or not the Act is invoked. new record when doing so would result

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in a more useful response to the re- mation about a record may be divided quester or be less burdensome to the into two broad categories. activity provided the requester does (i) Category I is file-related and in- not object. The cost of creating or com- cludes information such as type of piling such a record may not be record (for example, memorandum), charged to the requester unless the fee title, index citation, subject area, date for creating the record is equal to or the record was created, and originator. less than the fee which would be (ii) Category II is event-related and charged for providing the existing includes the circumstances that re- record. Fee assessments shall be in ac- sulted in the record being created or cordance with § 1285.6 of this part and the date and circumstances sur- part 286, subpart F, of this title. rounding the event the record covers. (2) With respect to electronic data, (3) Generally, a record is not reason- the issue of whether records are actu- ably described unless the description ally created or merely extracted from contains sufficient Category I informa- an existing database is not always tion to permit the conduct of an orga- readily apparent. Consequently, when nized, nonrandom search based on the responding to FOIA requests for elec- activity’s filing arrangements and ex- tronic data where creation of a record, isting retrieval systems, or unless the programming, or particular format are record contains sufficient Category II questionable, DLA activities should information to permit inference of the apply a standard of reasonableness. In Category I elements needed to conduct such a search. The decision of the DLA other words, if the capability exists to activity concerning reasonableness of respond to the request and the effort description must be based on knowl- would be a business-as-usual approach, edge of its files. If the description en- then the request should be processed. ables DLA activity personnel to locate However, the request need not be proc- the record with reasonable effort, the essed where the capability to respond description is adequate. does not exist without a significant ex- (4) The following guidelines deal with penditure of resources, thus not being a requests for personal records. Ordi- normal business-as-usual approach. narily, when only personal identifiers (i) Description of the requested record. are provided in connection with a re- (1) Identification of the record desired quest for records concerning the re- is the responsibility of the member of quester, then only records retrievable the public who requests a record. The by personal identifiers need be requester must provide a description of searched. The search for such records the desired record that enables DLA to may be conducted under Privacy Act locate the record with a reasonable procedures contained in DLAR 5400.21. 2 amount of effort. When a DLA activity No record may be denied that is releas- receives a request that does not reason- able under the FOIA. ably describe the requested record, it (j) Possession and control. A record shall notify the requester of the defect. must exist and be in the possession and The requester may be asked to provide control of DLA at the time of the the type of information outlined in search to be considered subject to this paragraph (i)(2) of this section. Activi- rule and the FOIA. Mere possession of ties are not obligated to act on the re- a record does not presume Agency con- quest until the requester responds to trol. Information created or originated the specificity letter. When prac- by another activity shall be referred to ticable, DLA activities shall offer as- that activity for release determination sistance to the requester in identifying and direct response to the requester. the records sought and in reformu- (1) Referring requests. A DLA activity lating the request to reduce the burden having no responsive records to an on the agency in complying with the FOIA request may refer the request to Act. another DLA activity, DoD component, (2) The following guidelines are pro- vided to deal with ‘‘fishing expedition’’ 2 Copies may be obtained, at cost, from requests and are based on the principle DASC-PD, Cameron Station, Alexandria, VA of reasonable effort. Descriptive infor- 22304–6130.

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or Federal agency if, after consultation (iv) Within DLA, an activity shall or- with such activity, component, or dinarily refer an FOIA request for a agency, the intended recipient con- record that it holds but that was origi- firms that it has the requested record. nated by another activity or that con- In cases where the DLA activity receiv- tains substantial information obtained ing the request has reason to believe from another activity to that activity that the existence or nonexistence or for direct response after coordination the record may in itself be classified, and obtaining concurrence from the ac- that activity shall consult the DoD tivity. The requester shall then be no- component having cognizance over the tified of such referral. DLA activities record in question before referring the shall not, in any case, release or deny request. If the DoD component that is such records without prior consulta- consulted determines that the exist- tion with the other activity. ence or nonexistence of the record is in (3) On-loan documents. A DLA activ- itself classified, the requester shall be ity shall refer to the agency that pro- so notified by the DLA activity origi- vided the record any FOIA request for nally receiving the request, and no re- investigative, intelligence, or any ferral shall take place. Otherwise, the other type of records that are on loan request shall be referred to the other to DLA for a specific purpose if the DoD component, and the requester records are restricted from further re- shall be notified of any such referral. lease and so marked. However if, for in- Any DLA activity receiving a request vestigative or intelligence purposes, that has been misaddressed shall refer the outside agency desires anonymity, the request to the proper address and a DLA activity may only respond di- advise the requester. rectly to the requester after coordina- tion with the outside agency. (2) Referring records. (i) Whenever a (4) General Accounting Office (GAO) record or a portion of a record is, after documents. On occasion, the DoD re- prior consultation, referred to another ceives FOIA requests for GAO docu- DLA activity, DoD component, or to a ments containing DoD information. Government agency outside of the DoD Even though the GAO is outside the ex- for a release determination and direct ecutive branch and not subject to the response, the requester shall be in- FOIA, all FOIA requests from GAO doc- formed of the referral. Referred records uments containing DoD information shall only be identified to the extent received either from the public or on consistent with security requirements. referral from GAO will be processed (ii) A DLA activity shall refer an under the provisions of the FOIA. FOIA request for a classified record (5) Agencies not subject to the FOIA. A that it holds to another DoD compo- DLA activity may refer an FOIA re- nent or agency outside the Department quest for any record that originated in of Defense if the record originated in an agency outside the DoD or that is the other DoD component or outside based on information obtained from an agency or if the classification is deriv- outside agency to the agency for direct ative. In this situation, provide the response to the requester after coordi- record and a release recommendation nation with the outside agency, if that on the record with the referral action. agency is subject to FOIA. Otherwise, (iii) A DLA activity may refer a re- the DLA activity must respond to the quest for a record that it originated to request. another DoD component or agency (6) Time to respond. DLA activities when the record was created for the use that receive referred requests shall an- of the other DoD component or agency. swer them in accordance with the time The DoD component or agency for limits established by the FOIA and this which the record was created may have rule. Those time limits shall begin to an equally valid interest in with- run upon proper receipt of the referral holding the record as the DLA activity by the PLFA FOIA manager to re- that created the record. In such situa- spond. tions, provide the record and a release (7) Accumulating fees. Requesters re- recommendation on the record with ceiving the first two hours of search the referral action. and the first 100 pages of duplication

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without charge (see part 286, subpart F, who cite or imply the FOIA or both of this title) are entitled to such only Acts will have their requests processed once per request. Consequently, if a under the time limits of the FOIA and DLA activity, after completing its por- the exemption and fee provisions of the tion of a request, finds it necessary to Privacy Act. refer the request to another DLA activ- (4) Requesters who seek access to ity or another DoD component to ac- Agency records and who cite or imply tion their portion of the request, the the Privacy Act, the FOIA, or both will referring activity shall inform the re- have their requests processed under the cipient of the expended amount of FOIA. search time and duplication cost to (5) Requesters should be advised in date. final responses why their request was (k) Requests for authentication of processed under a particular act. records. FOIA requests for authentica- (n) Reading rooms. (1) DLA activities tion of records shall be authenticated may provide a facility or room where with an appropriate seal, whenever the public may inspect and copy or necessary, to fulfill an official Govern- have copied the so-called ‘‘(a)(2)’’ mate- ment or other legal function according rial (see § 1285.3(b) of this part). At to DLA Regulation 5105.5. 3 This serv- those activities where it is impractical ice, however, is in addition to that re- to set up a formal reading room, the quired under the FOIA and is not in- FOIA manager will arrange for a re- cluded in the FOIA fee schedule. DLA view of ‘‘(a)(2)’’ material at a suitable activities may charge for the service at time and location. Identifying details a rate of $5.20 for each authentication. that, if revealed, would create a clearly (l) Records management. FOIA records unwarranted invasion of personal pri- shall be maintained and disposed of in vacy may be deleted from ‘‘(a)(2)’’ mate- accordance with DLA Manual 5015.1. 4 rials prior to placement in reading (m) Relationship between the FOIA and rooms. However, in every case, jus- the Privacy Act. Not all requesters are tification for the deletion must be fully knowledgeable of the appropriate stat- explained in writing. The public’s right utory authority to cite when request- to inspect first and then decide what is ing records. In some instances, they to be copied applies only to ‘‘(a)(2)’’ ma- may cite neither Act but will imply terial. Activities may elect to place one or both Acts. For these reasons, other documents in their reading room, the following guidelines are provided including so-called ‘‘(a)(1)’’ material to ensure that requesters receive the (see § 1285.3(a) of this part), as a means greatest amount of access rights under to provide public access to such docu- both Acts: ments and allow the public to first in- (1) Requesters who seek records spect them before copying. When ap- about themselves contained in a Pri- propriate, the cost of copying may be vacy Act system of records and who imposed on the person requesting the cite or imply the Privacy Act, will material in accordance with § 1285.6 of have their requests processed under the this part and part 286, subpart F, of provisions of the Privacy Act, 5 U.S.C. this title. 552a. (2) ‘‘(a)(2)’’ materials index. Each activ- (2) Requesters who seek records ity maintaining a reading room shall about themselves which are not con- maintain an index of the ‘‘(a)(2)’’ mate- tained in a Privacy Act system of rials that are issued, adopted, or pro- records and who cite or imply the Pri- mulgated after 4 July 1967. No ‘‘(a)(2)’’ vacy Act, will have their requests proc- materials issued, promulgated, or essed under the provisions of the FOIA, adopted after 4 July 1967 that are not since they have no access rights under indexed and either made available or the Privacy Act. published may be relied upon or used or (3) Requesters who seek records cited as precedent against any indi- about themselves which are contained vidual unless such individual has ac- in a Privacy Act system of records and tual and timely notice of the contents of such materials. Each index shall be 3 See Footnote 2 to § 1285.2(i)(4). arranged topically or by descriptive 4 See Footnote 2 to § 1285.2(i)(4). words rather than by case name or

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numbering system so that members of ity listed in appendix A. FOIA man- the public can readily locate material. agers will inform requesters of the lo- Case name and numbering arrange- cation and time the requested record ments, however, may also be included may be examined. Requesters may be for the convenience of the DLA activ- charged for the cost to reproduce cop- ity. Such materials issued, promul- ies subject to the guidelines § 1285.6 of gated, or adopted before 4 July 1967 this part and part 286, subpart F, of need not be indexed but must be made this title. available upon request if not exempted (r) Requests for copies of records. Indi- under part 286, subpart C, of this title. viduals seeking copies of DLA records (3) DLA publications and PLFA sup- should address their FOIA requests to plements may, at the discretion of the the FOIA manager of the appropriate DLA activity, be regarded as ‘‘(a)(2)’’ activity. Addresses and brief descrip- material and placed in reading rooms tions of functions are included in ap- subject to the restrictions in paragraph pendix A to this part. (o)(2) of this section. Otherwise, re- (s) Requests from private parties. The quests for publications will be handled provisions of the FOIA are reserved for according to paragraph (o)(1) of this persons with private interests as op- section. posed to Federal Governments seeking (o) Publications of DLA regulations, official information. Requests from pri- manuals, handbooks, and uncontrolled vate persons will be made in writing forms. (1) Since most DLA publications and will clearly show all other address- are available to the public through the ees within the Federal Government to publications distribution sales outlet, whom the request was also sent. This the requester may be referred to that procedure will reduce processing time outlet. requirements and ensure better inter- (2) Requests for DLA publications and intra-agency coordination. DLA which are classified, marked ‘‘FOR OF- activities are under no obligation to es- FICIAL USE ONLY,’’ or have limited tablish procedures to receive hand de- distribution statements will be referred livered requests. Release for records to to the issuing activity for release de- individuals under the FOIA is consid- termination and, if appropriate, formal ered public release of information, ex- denial. Such publications will not be cept as provided for in paragraph (g) of placed in reading rooms. However, this section and § 286.13(a) of this title. where a public reading room also (t) Requests from government officials. serves as an activity’s library, re- Requests from Members of Congress for stricted publications may be main- records on behalf for a Congressional tained provided they are appropriately Committee, Subcommittee, or either safeguarded and not commingled with House sitting as a whole will be proc- other nonensitive regulations. essed according to DLA Regulation (3) For DoD regulations, manuals, di- 5400.12. 5 Requests from officials of for- rectives, handbooks and similar eign governments which do not invoke issuances, the FOIA manager may refer the FOIA shall be referred to HQ DLA- the requester to the National Tech- I or the appropriate foreign disclosure nical Information Service (NTIS), 5285 channel for processing and the re- Port Royal Road, Springfield, VA quester so notified. Requests invoking 22161–2171. the FOIA from the following govern- (p) Exemptions. The types of records ment officials will be considered the described in part 286, subpart C, of this same as any other requested and proc- title may be withheld in whole or in essed according to this rule: part from disclosure under the FOIA (1) Officials of State or local govern- unless otherwise prescribed by law. ments. (q) Requests for the examination of (2) Members of Congress seeking DLA records. Only those materials de- records on behalf of their constituents. scribed as ‘‘(a)(2)’’ (and ‘‘(a)(1)’’ at the (3) Officials of foreign governments. discretion of the PLFA head) are sub- (u) Privileged release to U.S. Govern- ject to the examination clause of the ment officials. (1) Records determined to FOIA. Such requests will be submitted directly to the appropriate DLA activ- 5 See Footnote 2 to § 1285.2(i)(4).

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be exempt from public disclosure under instruction as to the scope and con- one or more of FOIA exemptions may tents of papers, reports, or examina- be authenticated and released to U.S. tions, and any amendment, revision, or Government officials requesting them report of the aforementioned. on behalf of Federal governmental bod- (b) ‘‘(a)(2) material’’. Material de- ies, whether legislative, executive, ad- scribed in 5 U.S.C. 552(a)(2) encom- ministrative, or judicial, as follows: passing: (i) To a Committee or Subcommittee (1) Final opinions, including concur- of Congress or to either House sitting ring and dissenting opinions, and or- as a whole in accordance with DoD Di- ders made in the adjudication of cases, rective 5400.4. 6 as defined in 5 U.S.C. 551, that may be (ii) To the Federal courts, whenever cited, used, or relied upon as prece- ordered by officers of the court as nec- dents in future adjudications. essary for the proper administration of (2) Statements of policy and interpre- justice. However, receipt of a subpoena tations that have been adopted by the duces tecum does not automatically agency and are not published in the compel disclosure of DLA records. To FEDERAL REGISTER. qualify for privileged release under this (3) Administrative staff manuals and section, the subpoena must be signed instructions, or portions thereof, that by the judge of a court of competent establish DLA policy or interpretations jurisdiction. A subpoena which has of policy that affect a member of the been sent through FOIA channels and public. This provision does not apply to signed by a litigating attorney, a sub- instructions for employees on tactics poena service agent, or an official of a and techniques to be used in per- state or local court will be treated as forming their duties or to instructions any other FOIA request and subject to relating only to the internal manage- the exemptions in part 286 subpart C, of ment of the DLA activities. Examples this title. Consult with Counsel before of manuals and instructions not nor- acting on such subpoenas. mally made available include but are (iii) To other Federal Agencies, both not limited to the following: executive and administrative, as deter- (i) Those issued for audit, investiga- mined by the DLA Director or des- tion, and inspection purposes or those ignee. that prescribe operational tactics, (2) Disclosure under these privileged standards of performance, or criteria release circumstances does not set a for defense, prosecution, or settlement precedent for disclosure to the general of cases. public under the FOIA. (ii) Operations and maintenance (3) DLA activities shall inform offi- manuals and technical information cials receiving records under the provi- concerning munitions, equipment, sys- sions of this paragraph that those tems, and foreign intelligence oper- records are exempt from public release ations. under the FOIA and are privileged. (c) Administrative appeal. A request DLA activities will also advise officials made under the FOIA by a member of of any special handling instructions. the general public asking the appellate See part 286, subpart D, of this title for authority to reverse an initial denial marking requirements under privileged authority’s decision to withhold all or release circumstances. part of a requested record, to review a ‘‘no record found’’ determination, to re- § 1285.3 Definitions. verse a decision to deny a request for The following terms and meanings waiver or reduction of fees, or to re- shall be applicable: view a category determination for fee (a) ‘‘(a)(1) material’’. Material de- assessment purposes. scribed in 5 U.S.C. 552(a)(1) consisting (d) Agency record. (1) The products of of descriptions of central and field or- data compilation, such as all books, pa- ganizations and, to the extent that pers, maps and photographs, machine they affect the public, rules of proce- readable materials, or other documen- dures, descriptions of forms available, tary materials, regardless of physical form or characteristics, made or re- 6 See Footnote 1 to § 1285.1. ceived by an agency of the United

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States Government under Federal law cies, functions, decisions, or procedures in connection with the transaction of of a DLA activity, such as computer public business and in DLA’s posses- models used to forecast budget outlays, sion and control at the time the FOIA calculate retirement system costs, or request is made. optimization models on travel costs. (2) The following are not included (iii) See part 286, subpart C, of this within the definition of the word title for guidance on release deter- ‘‘record’’: minations of computer software. (i) Objects or articles, such as struc- (4) A record must exist and be in the tures, furniture, vehicles and equip- possession and control of DLA at the ment, whatever their historical value time of the request to be considered or value as evidence. subject to this rule and the FOIA. (ii) Administrative tools by which There is no obligation to create, com- records are created, stored, and re- pile, or obtain a record to satisfy an trieved, if not created or used as FOIA request. sources of information about organiza- (5) If unaltered publications and proc- tions, policies, functions, decisions, or essed documents, such as regulations, procedures of a DLA activity. Nor- manuals, maps, charts, and related mally, computer software, including geophysical materials are available to source code, object code, and listings of the public through an established dis- source and object codes, regardless of tribution system with or without medium, are not agency records. (This charge, the provisions of 5 U.S.C. does not include the underlying data 552(a)(3) normally do not apply, and re- which is processed and produced by quests for such need not be processed such software and which may in some under the FOIA. Normally, documents instances be stored with the software.) disclosed to the public by publication Exceptions to this position are out- in the FEDERAL REGISTER also require lined in paragraph (d)(3) of this section. no processing under the FOIA. In such (iii) Anything that is not a tangible cases, DLA activities should direct the or documentary record, such as an in- requester to the appropriate source to dividual’s memory or oral communica- obtain the record. tion. (e) Appellate authority. The Director, (iv) Personal records of an individual DLA, or his designee, except for fee not subject to agency creation or re- waivers and category determinations. tention requirements, created and The appellate authority for such ap- maintained primarily for the conven- peals is the Staff Director, Office of ience of an agency employee and not Administration, HQ DLA. distributed to other agency employees (f) DLA activity. An element of DLA for their official use. authorized to receive and act independ- (v) Information stored within a com- ently on FOIA requests. A DLA activ- puter for which there is no existing ity has its own FOIA manager, initial computer program for retrieval of the denial authority, and office of counsel. requested information. (g) Electronic data. Those records and (3) In some instances, computer soft- information which are created, stored, ware may have to be treated as an and retrievable by electronic means. agency record and processed under the This does not include computer soft- FOIA. These situations are rare and ware, which is the tool by which to cre- shall be treated on a case-by-case basis. ate, store, or retrieve electronic data. Examples of when computer software See paragraphs (d)(2)(ii) and (d)(3) of may have to be treated as an agency this section for a discussion of com- record are: puter software. (i) When the data is embedded within (h) FOIA request. A written request the software and cannot be extracted for records made by any person, includ- without the software. In this situation, ing a member of the public (U.S. or for- both the data and the software must be eign citizen), an organization, or a reviewed for release or denial under the business, but not including a Federal FOIA. agency or a fugitive from the law, that (ii) Where the software itself reveals either explicitly or implicitly invokes information about organizations, poli- the FOIA, DoD 5400.7–R, DLAR 5400.14,

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this rule, or DLA activity viding guidance and instructions to supplementing regulations or instruc- PLFA’s and PSE’s. tions. (2) Designates a FOIA manager to ad- (i) Initial denial authority (IDA). An minister the DLA FOIA program. official who has been granted authority (3) Serves as the point of contact for by the Director, DLA, to withhold referring members of the public to the records requested under the FOIA for proper DLA source for Agency records. one or more of the nine categories of (4) Serves as appellate authority on records exempt from mandatory disclo- fee waivers and category determina- sure or to issue a ‘‘no record’’ deter- tions. mination. These include the Directors (5) Serve as initial denial authority (or equivalent) of HQ DLA Primary for record denials where more than one Staff Elements (PSE’s) and the Com- PSE is involved or where a PSE has manders (or equivalent) of PLFA’s. For made a determination that the re- fee waiver and requester category de- quested record cannot be found. terminations, the initial denial author- (6) Submits required reports to the ity is the FOIA manager or head of the Office of the Assistant Secretary of De- FOIA unit. fense, Public Affairs. (j) Public interest disclosures. Those (7) Collects and deposits fees for disclosures which shed light on DLA FOIA services performed at HQ DLA performance of its statutory duties and and DASC. thus inform citizens about what their (b) The General counsel, HQ DLA-G: (1) government is doing. The ‘‘public inter- Provides legal advice and assistance to est’’, however, is not fostered by disclo- HQ DLA PSE’s and, where appropriate, sure of information about private citi- PLFA’s in determining decisions to zens that is accumulated in various withhold records. governmental files that reveals little (2) Processes appeals to the Director, or nothing about an agency’s or offi- DLA, of denials to provide records or cial’s own conduct. The public interest ‘‘no record’’ determinations. is one of several factors considered in (3) Coordinates denial actions with determining if a fee waiver is appro- Office of the General Counsel, DoD, and priate (see part 286, subpart F, of this the Department of Justice, as appro- title). priate. (k) Releasing official. Any individual (4) Ensures that case files of FOIA with sufficient knowledge of a re- appeals are maintained for 6 years quested record or program to allow him after final agency decision. or her to determine if harm would (c) The Staff Director, Office of Public come through release. Releasing offi- Affairs, HQ DLA-B, serves as a coordi- cials are at all levels and may be se- nating office for the release of informa- lected to review a particular document tion to the news media where potential because of their expertise in the sub- for controversy exists. ject area. The level must be high (d) The Staff Director, Office of Con- enough to make sure that releases are gressional Affairs, HQ DLA-Y, serves as made according to the policies outlined a coordinating office on final responses here. The authority to release records to FOIA requests from members of the of a routine nature, such as fact sheets Congress. or local directories, may be delegated (e) The heads of the DLA principal staff to any individual at the discretion of elements (PSE’s): (1) Appoint an indi- the denial authority. In doubtful cases, vidual to serve as FOIA monitor. Let- releasing officials may consult with ters of appointment will be forwarded the FOIA staff or servicing counsel to DLA-XAM. prior to release. (2) Forward to DLA-XAM any FOIA request received directly from the pub- § 1285.4 Responsibilities. lic so that the request may be adminis- (a) The Staff Director, Administration, tratively controlled. HQ DLA-X: (1) Has overall responsi- (3) Ensures that provisions of this bility for establishment and implemen- regulation are followed in processing tation of the DLA FOIA program, pro- requests for records from the public.

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(4) Coordinate requests with other (4) Sign letters of denial and ‘‘no HQ DLA staff elements to the extent record’’ determinations after coordina- considered necessary. tion with Counsel. (5) Coordinate any proposed denial (5) Refer cases of significance to with the General Counsel. DLA-XAM for review and evaluation (6) Serve as initial denial authority. when the issues raised are unusual, (7) Ensure that FOIA case files of de- precedent setting, or otherwise require nials are maintained for 6 years and special guidance. that full releases are maintained for 2 (6) Establish safeguards to ensure years. that FOUO material is protected. (8) Make initial determinations to re- (7) Establish procedures to ensure lease records or designate individuals that a record is maintained of all FOIA to make such determinations. requests for logistical data (data on (f) The PSE FOIA monitors: (1) Process magnetic tape extracted from any of and control all FOIA requests received the DLA automated data processing from DLA-XAM. (ADP) systems). The record will con- (2) Make sure established suspenses tain the requester’s name and address, are met. the date of the request, what informa- tion was requested, and what informa- (3) Request extensions of time from tion was furnished. This record will be DLA-XAM when necessary and within kept for five years. the limits of § 1285.5(j) of this part. (8) Inform Public Affairs offices in (4) Gather cost estimates when re- advance when they intend to withhold quested. or partially withhold a record if it ap- (5) Ensure costs for processing each pears that the withholding action may Freedom of Information Act request be challenged in the media. are properly recorded. (h) Freedom of Information Act man- (6) Coordinate proposed full and par- agers at all levels: (1) Establish proce- tial denials with DLA-XAM prior to dures to receive, control, process, and signature by the PSE director. For- screen FOIA requests. To provide for ward a copy of the final response and rapid retrieval of information, FOIA cost information to DLA-XAM. managers will maintain a central log (g) The heads of DLA primary level of all incoming FOIA requests. field activities (PLFA’s): (1) Designate a (2) Review requests to determine if FOIA manager to administer the DLA they meet the requirements of 5 U.S.C. FOIA program within the PLFA. For- 552. Determine category of the re- ward the name, address, and telephone quester before assigning the request for number of the manager to DLA-XAM. search. Provide instructions to the (2) Ensure that the provisions of this searching office on fees and time limits regulation are followed in processing for response. requests for records from members of (3) Consult with requesters, where the public. necessary, to determine requester cat- (3) Provide facilities where members egory and to resolve fee issues. of the public may examine and copy (4) Establish training and education the following documents: program for those personnel who may (i) DLAH 5805.1 7, DLA Organization be involved in responding to FOIA re- Directory. quests. (ii) DLAH 5025.1 8, DLA Index of Pub- (5) Approve requests for formal ex- lications. tensions of time and notify requesters (iii) DLAM 5015.1, Files Maintenance in writing of the extension. and Disposition. (6) Grant or deny requests for fee (iv) Copies of local directories or in- waivers or requester category deter- dexes. minations and provide DLA-XAM with (v) Any other available ‘‘(a)(1)’’ or a copy of each such denial. ‘‘(a)(2)’’ material. (7) Establish procedures to ensure that § 1285.5(1) of this part regarding 7 See Footnote 2 to § 1285.2(i)(4). consultation with submitters of infor- 8 See Footnote 2 to § 1285.2(i)(4). mation is complied with.

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(8) Establish procedures for the col- manager receives it provided the re- lection and deposit of fees for FOIA quest has been reasonably described services. and the requester has either agreed to (9) Ensure that cost data is main- pay assessable fees or has provided suf- tained for each case file. ficient justification for a fee waiver. (10) Establish procedures to ensure (d) Screening requests. (1) Before as- that record denials and ‘‘no record’’ de- signing a request for search, the FOIA terminations are signed by the PLFA manager will screen the request for de- initial denial authority and a copy for- fects in the description, the requester warded to DLA-XAM. category, and the issue of fees. FOIA (11) Notify DLA-XAM of requesters managers will notify requesters of any who have failed to pay fees in a timely such defects and, wherever possible, manner. offer assistance to help remedy the de- (12) Prepare and submit reports as re- fects. If the FOIA manager must con- quired. sult with the requester on any of the (13) Consult with public affairs offi- following issues, then the request is cers (PAO’s) to become familiar with not considered to be properly received subject matter that is considered to be and the 10-day time limit does not newsworthy and advise PAO’s of all re- begin or resume until the requester has quests from news media representa- satisfactorily addressed the issue. tives. (i) Payments in arrears. If a requester (14) Establish procedures to provide has failed to pay fees for a previous re- the Congressional Affairs focal point quest, then the FOIA manager need not with an information copy of each FOIA process the current request until the request received from a member of the requester pays the delinquent amount. Congress. In such situations, the FOIA manager (15) Coordinate any proposed supple- will notify the requester of the defect ments or training material with DLA- and provide an opportunity to forward XAM prior to publication or dissemina- payment along with any assessable in- tion. (16) Establish procedures to ensure terest. At that time, the FOIA man- that case files of FOIA releases are ager may, at his or her discretion, de- maintained for two years after cutoff mand that the requester also pay an es- and that denials are maintained for 6 timated fee for the current request. years after cutoff. (ii) Faulty description. If the request (17) Review all proposed full and par- is not reasonably described, the FOIA tial denials prior to signature by the manager will notify the requester of initial denial authority for compliance the defect and advise that a search can- with these rules. not be initiated without more specific information. In making such deter- § 1285.5 Procedures. minations, FOIA managers may con- (a) FOIA channels. If DLA personnel sult with offices of primary interest to receive a FOIA request directly from determine the details that are needed the public that has not been logged in to conduct a search. See also paragraph and processed through the FOIA office, (f)(2) of this section and § 1285.2(i) of they will immediately forward it to the this part. local FOIA manager. (iii) Requester category and fees. The (b) Central log system. Each FOIA FOIA manager will analyze the request manager will maintain a central log of to determine the category of the re- FOIA requests received within the ac- quester. If the category of the re- tivity to ensure compliance with the quester is different than that claimed time limits and accurate cost account- by the requester, the FOIA manager ing, fee assessment, and reporting. will: (c) Time limit. FOIA requests must be (A) Notify the requester that he or responded to within 10 business days she should provide additional justifica- after proper receipt, except in unusual tion to warrant the category claimed circumstances outlined in paragraph (j) and that a search for responsive of this section. A request is considered records will not be initiated until properly received on the date the FOIA agreement has been attained relative

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to the category of the requester. Ab- that search situations will vary among sent further category justification DLA activities and that an estimate is from the requester and within a rea- often difficult to obtain prior to an ac- sonable period of time (i.e., 30 calendar tual search, requesters who desire esti- days), the FOIA manager shall render a mates are entitled to such before com- final category determination, and no- mitting to a willingness to pay. Should tify the requester of such determina- actual costs exceed the actual amount tion, to include normal administrative of the estimate or the amount agreed appeal rights. to by the requester, the amount in ex- (B) Advise the requester that, not- cess of the estimate or the requester’s withstanding any appeal, a search for agreed amount shall not be charged responsive records will not be initiated without the requester’s agreement. until the requester indicates a willing- (f) Internal processing. (1) Upon mak- ness to pay assessable costs appro- ing a determination that the request is priate for the category determined by reasonably described, that the fee issue the FOIA manager. Requesters must has been settled, and that the re- submit a fee declaration appropriate quester does not owe for a prior re- for the following categories: quest, the FOIA manager will assign (1) Commercial. Requesters must indi- the request to the appropriate office of cate a willingness to pay all search, re- primary interest (OPI) for handling and view, and duplication costs. provide instructions on the category of (2) Educational or noncommercial sci- the requester, the fees to be charged or entific institution or news media. Re- waived, and what actions the OPI is to questers must indicate a willingness to take. pay duplication charges in excess of 100 (2) After reviewing a request, the OPI pages if more than 100 pages of records may determine, based on knowledge of are desired. the files and programs, that a request (3) All others. Requesters must indi- is, in fact, not reasonably described. cate a willingness to pay assessable OPI’s will notify FOIA managers of search and duplication costs if more such defects immediately so that fur- than two hours of search effort or 100 ther details may be sought from the re- pages of records are desired. quester. Any delays on the requester’s (iv) Justification for fee waivers. If the part in receiving more detailed infor- requester has asked for a fee waiver mation will not count toward the 10- but failed to provide a justification, day time limit. FOIA managers will ask requesters to (g) Initial determinations—(1) Reasons address the fee waiver criteria in part for not releasing a record. There are 286, subpart F, of this title before fur- seven reasons for not complying with a ther processing the request. FOIA man- request for a record: agers are reminded that with some (i) The request is transferred to an- types of records, a final decision can- other DLA activity, DOD component, not be made on waiver until after the or to another Federal agency. records have been surfaced, reviewed, (ii) The DLA activity determines and the public benefit and previous through knowledge of its files and rea- public availability assessed. sonable search efforts that it neither (2) In cases where there is disagree- controls nor otherwise possesses the re- ment on the category of the requester quested record. Responding officials or there is lack of justification for fee will advise requesters of the right to waiver, the FOIA manager may process appeal such determinations. See para- the request without further contacting graph (i)(5) of this section for details the requester if he or she believes it on processing ‘‘no record’’ responses. can be processed within the automatic (iii) A record has not been described $15 waiver limit. with sufficient particularity to enable (e) Providing estimates. In the situa- the DLA activity to locate it by con- tions described by paragraphs (d)(1)(iii) ducting a reasonable search. and (d)(1)(iv) of this section, DLA ac- (iv) The requester has failed unrea- tivities must be prepared to provide an sonably to comply with procedural re- estimate of assessable fees if desired by quirements, including payment of fees, the requester. While it is recognized imposed by this rule.

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(v) The request is withdrawn by the (i) Response to requester—(1) Time lim- requester. its. Initial determinations to release or (vi) The information requested is not deny a record normally shall be made a record within the meaning of the and the decision reported to the re- FOIA and this rule. quester within 10 working days after (vii) The record is denied in accord- receipt of the request by the FOIA ance with procedures set forth in the manager. When a decision is made to FOIA and this rule. release a record, a copy should be made (2) Reasonably segregable portions. Al- available promptly to the requester though portions of some records may once he has complied with procedural be denied, the remaining reasonably requirements. segregable portions must be released to (2) Acknowledging date of receipt. the requester when it reasonably can When the time for response becomes an be assumed that a skillful and knowl- issue, the official responsible for reply- edgeable person could not reconstruct ing shall acknowledge to the requester the excised information. When a record is denied in whole, the response advis- the date of the receipt of the request. ing the requester of that determination (3) Billing. When fees are being levied, will specifically state that it is not rea- the response to the requester will con- sonable to segregate portions of the tain a billing paragraph. Responding record for release. officials will advise requesters to make (h) Preparing documents for public re- checks or money orders payable to the lease—(1) Material containing For Offi- United States Treasury and forward cial Use Only marks. When a determina- them to the FOIA manager of the tion has been made that a FOUO docu- PLFA that incurred the expense. FOIA ment may be fully released to a re- managers will notify DLA-XAM of quester under any public information names and addresses of requesters who program, the FOUO markings will be have failed to pay after a second billing removed from the requester’s copy has been mailed and 30 days have prior to release. In cases where a per- elapsed without payment. son seeks access to his or her own (4) Full and partial denials. (i) When a record and the record is marked FOUO request for a record is denied in whole to protect that person’s personal or or in part on the basis of one or more proprietary interests, the FOUO marks of the exemptions in part 286, subpart will be deleted from the requester’s C, of this title the initial denial au- copy prior to release, even though the thority shall inform the requester in FOUO status has not been terminated. writing and shall explain to the re- In such cases, the official file copy will quester the basis for the determination retain the FOUO warning. If only por- in sufficient detail to permit the re- tions of a document marked as FOUO quester to make a decision concerning are to be released to the public under appeal. The requester specifically shall the FOIA, then the exempt portions be informed of the exemption(s) on will be taped out, blackened out, which the denial is based. When the whited out, or cut out and a copy re- produced for the requester from the initial denial is based in whole or in marked up copy. Initial denial authori- part on a security classification, the ties will ensure that the deleted por- explanation should include a summary tion cannot be read and that the FOUO of the applicable Executive Order cri- marks have been lined through prior to teria for classification, as well as an release. explanation, to the extent reasonably (2) Material containing classification feasible, of how those criteria apply to markings. The procedures in paragraph the particular record in question. The (h)(1) of this section apply to classified requester shall also be advised of the documents with the exception that the opportunity and procedures for appeal- classified portions will be cut out rath- ing an unfavorable determination to er than blackened, taped, or whited the Director, DLA. out. The classification markings on the (ii) FOIA managers shall forward a requester’s copy will be deleted prior to copy of each letter of denial to DLA- release. XAM, Cameron Station, Alexandria,

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Virginia 22304–6100. Do not include at- (v) FOIA managers will ensure that a tachments, the incoming request, or copy of each ‘‘no record’’ response letter any backup material. is forwarded to DLA-XAM, Cameron (5) Providing ‘‘no record’’ responses. (i) Station, Alexandria, Virginia 22304– If no documents can be located in re- 6100. Do not include attachments, the sponse to a FOIA request, the initial incoming request, or any backup mate- denial authority will so advise the re- rial. quester. Requesters will also be advised (6) Coordination. OPI’s will ensure that, if they consider the response to that the proposed response is fully co- be adverse, they may file an appeal ordinated with offices having an inter- within 60 calendar days from the date est in the request. Proposed responses of the response. Requesters are to be to FOIA requests from members of the advised to address appeals to the local Congress will be coordinated with FOIA manager and include the case DLA-Y or the local Congressional Af- number and reasons why they believe fairs focal point. the DLA activity should have records (j) Extensions of time—(1) Formal exten- on the subject matter. sions. In unusual circumstances, when (ii) Before a formal ‘‘no record’’ re- additional time is needed to respond, sponse is issued, OPI will verify that the FOIA manager will acknowledge the requester has adequately described the request in writing within the 10- the record. If additional details will aid day period, describe the circumstances the search, then the requester will be requiring the delay, and indicate the asked to provide those details. See anticipated date for substantive re- paragraph (d)(1)(ii) of this section and sponse that may not exceed 10 addi- § 1285.2(i) of this part for procedures for tional working days. Such extensions resolving inadequate descriptions. will be approved on a case-by-case (iii) In cases where the requested basis. In these unusual cases where the record has been destroyed, the initial statutory time limits cannot be met denial authority will confirm that the and no informal extension of time has record was retained for the period au- been agreed to, the inability to process thorized in DLAM 5015.1 before issuing any part of the request within the spec- a formal response. In responding to re- ified time should be explained to the questers in these cases, advise the re- requester with a request that he agree quester that the records were properly to await a substantive response by an destroyed according to Agency rules anticipated date. It should be made for record disposition and give the clear that any such agreement does not right to appeal as outlined in para- graph (i)(5)(i) of this section. However, prejudice the right of the requester to do not ask the requester to provide rea- appeal the initial decision after it is sons why the activity should have the made. Since the requester still retains records. the right to treat this delay as a (iv) Upon receipt of an appeal, the defacto denial with full administrative FOIA manager will direct that a second remedies, such extensions should be search be conducted using any informa- issued only when essential. The un- tion supplied by the requester. If the usual circumstances that may be cited second search produces no documents, to justify delay are: the appeal will be forwarded to HQ (i) Location. The requested record is DLA-G, Cameron Station, Alexandria, located in whole or in part at places Virginia 22304–6100, along with a copy other than the office processing the re- of the case file. The FOIA manager will quest. include the cost information and an ex- (ii) Volume. The request requires the planation of the method of search and collection and evaluation of a substan- the types of offices searched. In cases tial number of records. where the ‘‘no record’’ response was (iii) Consultation. Consulation is re- issued because the records have been quired with other DoD components or destroyed, the FOIA manager will agencies having substantial interest in verify that the records were destroyed the subject matter to determine wheth- as provided for in DLAM 5015.1 and pro- er the records requested are exempt vide a statement to that effect. from disclosure in whole or in part

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under provisions of this rule or should (ii) When a substantial issue has been be released as a matter of discretion. raised, the DLA activity may seek ad- (2) Informal extensions. Where prac- ditional information from the source tical and expedient, the FOIA manager and afford the source and requester or official designated to respond may reasonable opportunities to present negotiate with the requester and ar- their arguments on the legal and sub- range for an informal extension. Such stantive issues involved. extensions may be appropriate in in- (iii) Any objections to release will be stances where the records have to be evaluated and the source provided with ordered from a record repository; a copy of the activity’s final decision. where the record has been sent out for Where a decision is made to release in- commercial printing and is not ex- formation claimed to be exempt, the pected back before the 10-day time has source will be notified that the infor- elapsed; and similar circumstances. mation will be released on a specified (k) Misdirected requests. Misdirected date unless the source seeks a restrain- requests shall be forwarded promptly ing order or takes court action to pre- to the FOIA manager of the DLA activ- vent disclosure. Evaluators are cau- ity, DoD component, or Federal agency tioned that any decision to disclose in- with the responsibility for the records formation claimed to be exempt under requested. The period allowed for re- 5 U.S.C. 552(b)(4) must be made by an sponding to the request misdirected by official equivalent in rank to the ini- the requester shall not begin until the tial denial authority. (iv) When the source advises it will request is received by the FOIA man- seek a restraining order or take court ager of the PLFA that controls the action to prevent release of the record records requested. or information, the FOIA manager will (l) Records of contractors and other notify the requester and suspend action non-U.S. government sources. (1) Execu- on the request until after the outcome tive Order 12600 of 23 June 1987 (52 FR of that court action is known. When 23781) establishes predisclosure notifi- the requester brings court action to cation procedures for confidential com- compel disclosure, the FOIA manager mercial information. When a request is shall promptly notify the submitter of received for a record that was obtained this action. from a contractor or other non-U.S. (2) These procedures are required for Government source or for a record con- those FOIA requests for data not taining information clearly identified deemed clearly exempt from disclosure as having been provided by a con- under exemption (b)(4). If, for example, tractor or other non-U.S. Government the record or information was provided source, the source of the record or in- with actual or presumptive knowledge formation (also known as ‘‘the sub- of the non-U.S. Government source and mitter’’ for matters pertaining to pro- established that it would be made prietary data under 5 U.S.C. 552(b)(4)) available to the public upon request, (see § 286.13(a)(4) of this title) shall be there is no obligation to notify the notified promptly of that request and source. afforded reasonable time (e.g., 30 cal- (3) These coordination provisions also endar days) to present any objections apply to any non-U.S. Government concerning the release, unless it is record in the possession and control of clear that there can be no valid basis DLA from multi-national organiza- for objection. The following procedures tions, such as North Atlantic Treaty will be followed: Organization (NATO) and North Amer- (i) The person designated to respond ican Aerospace Defense Command will provide the source with a copy of (NORAD), or foreign governments. Co- the incoming request, a copy of the ordination with foreign governments documents responsive to the request, under the provisions of this paragraph and a letter of instruction. The notifi- shall be made through the Department cation letter will be addressed to the of State. president of the entity or the entity’s (m) File of initial denials. Copies of all counsel and sent by return receipt initial denials shall be maintained by mail. each DLA activity in a form suitable

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for rapid retrieval, periodic statistical time for the appeal shall not begin compilation, and management evalua- until the requester receives the last tion. such notification. (n) Appeals—(1) General—(i) Appeals to (ii) Time of receipt. An FOIA appeal is record denials. Requesters denied access considered received by DLA when it to records under the provisions of part reaches DLA-G or, in the case of fee or 286, subpart C, of this title may appeal requester category appeals, when it such determinations to the Director, reaches DLA-XAM. Misdirected appeals DLA. The appeal should be accom- should be referred expeditiously to the panied by a copy of the letter denying appropriate office. the initial request and contain the (iii) Time limits to decide appeals. Final basis for disagreement with the initial determinations on appeals normally refusal. shall be made within 20 working days (ii) Appeals to a ‘‘no record’’ finding. after receipt. Requesters have the right to appeal (iv) Delay in responding to an appeal. any ‘‘no record’’ finding to the FOIA (A) If additional time is needed due to manager of the activity that issued the the unusual circumstances described in finding. The letter of appeal should in- paragraph (j) of this section, the final clude the case number and, where ap- decision may be delayed for the num- propriate, reasons why the requester ber of working days (not to exceed 10), believes the activity should have that were not used as additional time records on the subject matter. Using for responding to the initial request. the information supplied by the re- quester, the FOIA manager will direct (B) If a determination cannot be that a second search be conducted. If made and the requester notified within the second search produces no docu- 20 working days, the appellate author- ments, the appeal will be forwarded to ity shall acknowledge to the requester, HQ DLA-G, Cameron Station, Alexan- in writing, the date of receipt of the dria, Virginia 22304–6100, along with a appeal, the circumstances surrounding copy of the case file. The FOIA man- the delay, and the anticipated date for ager will include information on the substantive response. Requesters shall amount of time spent on the request be advised that if the delay exceeds the and provide an explanation of the statutory extension provision or is for method of search and the types of of- reasons other than the unusual cir- fices searched. cumstances identified in paragraph (j) (iii) Appeals to fee waiver denials or re- of this section, they may consider their quester category decisions. Requesters administrative remedies exhausted. may appeal an initial determination They may, however, without regarding placement in a certain fee prejudicing their right of judicial rem- assessment category or waiver or re- edy, await a substantive response. DLA duction of fees when disclosure serves shall continue to process the case expe- the public interest. Requesters will in- ditiously, whether or not the requester clude a basis for disagreement and sub- seeks a court order for release of the mit the appeal to the Staff Director, records, but a copy of any response pro- Office of Administration (Attn: DLA- vided subsequent to filing of a com- XAM), Cameron Station, Alexandria, plaint shall be forwarded to the De- Virginia 22304–6100. partment of Justice. (2) Time limits—(i) Time limits to file (C) When the appellate authority or appeals. The requester shall be advised the authority’s representative must to file an appeal so that it reaches the consult with the requester over an appellate authority no later than 60 issue not previously settled, such as calendar days after the date of the ini- agreement to pay fees for documents tial denial letter. At the conclusion of previously denied, then any delays on this period, the case may be considered the requester’s part will not count to- closed; however, such closure does not ward the 20-day time limit. preclude the requester from filing liti- (3) Response to the requester. (i) When gation. In cases where the requester is an appellate authority makes a deter- provided several incremental deter- mination to release all or a portion of minations for a single request, the records withheld by an IDA, a copy of

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the records so released should be for- mail, certified mail, certificates of warded promptly to the requester after mailing and return receipts. However, compliance with any preliminary pro- their use should be limited to instances cedural requirements, such as payment where it appears advisable to establish of fees. proof of dispatch or receipt of FOIA (ii) Final refusal to provide a re- correspondence. quested record must be made in writing (p) Receipt accounts. The Treasurer of by the DLA Director or his designee. In the United States has established Re- the case of fee appeals, final refusal to ceipt Account 3210 for use in depositing waive or reduce fees must be made in search, review, and duplication fees writing by the Staff Director of Admin- collected under the FOIA. Upon receipt istration. Record denial responses, at a of payment, the FOIA manager will minimum, shall conform to the fol- forward the check or money order to lowing: DFAS/CO/PDG, P.O. Box 182317, Colum- (A) The basis for the refusal shall be bus, Ohio 43218–2317. FOIA managers explained to the requester with regard will advise DFAS that the check is to to the applicable statutory exemption be deposited to accounting classifica- or exemptions invoked. tion 21R3210.0004. This account will not, (B) When the final refusal is based in however, be used for depositing re- whole or in part on a security classi- ceipts for technical information re- fication, the explanation shall include leased under the FOIA, industrially- a determination that the record meets funded activities, and non-appropriated the cited criteria and rationale of the funded activities. Instead, payments governing Executive Order, and that for these shall be deposited to the ap- this determination is based on a declas- propriate fund. sification review, with the explanation of how that review confirmed the con- § 1285.6 Fees and fee waivers. tinuing validity of the security classi- The rules and rates published in part fication. 286, subpart F of this title apply to this (C) The response shall advise the re- rule. For purposes of computer search, quester that the material being denied DLA has established rates of $20 per does not contain meaningful portions minute of central processing unit time that are reasonably segregable. for mainframe computer use and $20 (D) The response shall advise the re- per hour of wall clock time for personal quester of the right to judicial review. computer use. These rates represent (4) Consultaton. (i) Final refusal in- average operational costs and may be volving issues not previously resolved used when the actual computer cost or that are known to be inconsistent cannot be determined. with rulings of other DoD components ordinarily should not be made without § 1285.7 Reports. first consulting with the Office of the The reporting requirement outlined General Counsel of the Department of in this rule is assigned Report Control Defense. Symbol DD-PA(A)1365 and will be pre- (ii) Tentative decisions to deny pared according to part 286, subpart G, records that raise new or significant of this title. legal issues of potential significance to other agencies of the Government shall APPENDIX A TO PART 1285—GAINING be provided to the Department of Jus- ACCESS TO DLA RECORDS tice, Attn: Office of Legal Policy, Of- fice of Information and Policy, Wash- I. General ington, DC 20530. The Defense Logistics Agency was estab- (5) Records management. Case files of lished pursuant to authority vested in the appeals shall be retained by DLA-G or, Secretary of Defense and is an agency of DoD in the case of fee or requester category under the direction, authority, and control appeals, by DLA-XAM for a period of of the Assistant Secretary of Defense (Pro- duction and Logistics) and is subject to DoD six years to meet the statute of limita- policies, directives, and instructions. DLA is tions of claims requirement. made up of a headquarters and 22 Primary (o) Special mail services. DLA activi- Level Field Activities (PLFA’s). DLA does ties are authorized to use registered not have a central repository for its records.

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FOIA requests, therefore, should be ad- and plumbing accessories to complex repair dressed to the FOIA Office of the DLA activ- parts for mechanical, construction, and ity that has custody of the record desired. In automotive equipment, and for military air- answering inquiries regarding FOIA re- craft, surface ships, submarines, combat ve- quests, DLA personnel will assist requesters hicles, and missile systems. in determining the correct DLA activity to b. Defense Electronics Supply Center address their requests. If there is uncer- (DESC). Responsible for the acquisition, tainty as to the ownership of the DLA record management, and supply of more than one- desired, the requester may be referred to the half million electronic components such as FOIA manager of the DLA activity most resistors, capacitors, tubes, transformers, likely to have the record or to HQ DLA- microcircuits, and components for various XAM. communications and weapons systems. c. Defense Fuel Supply Center (DFSC). II. Description of DLA’s Central and Field Serves as material manager for bulk petro- Organization leum and coal and is responsible for its A. HQ Defense Logistics Agency, Cameron worldwide supply, storage, and distribution. Station, Alexandria, Virginia 22304–6100 d. Defense Industrial Supply Center (DISC). Buys and manages industrial items The headquarters is organized by broad such as bearings, ferrous and nonferrous functional area and includes the following metals, electrical wire, gasket material, and offices and directorates: certain mineral ores and precious metals. Office of the Director. e. Defense Personnel Support Center Executive Director, Contracting. (DPSC). Buys and manages food, clothing, Executive Director, Supply Operations. and medical supplies for all the armed serv- Executive Director, Technical and Logistics ices, some Federal agencies and authorized Services. foreign governments. Executive Director, Contract Administra- f. Defense General Supply Center (DGSC). tion. Buys and manages such categories of mate- Executive Director, Quality Assurance. rials as electrical hardware, materials han- Executive Director, Program and Technical dling equipment, kitchen and laundry equip- Support. ment, woodworking and metalworking ma- Staff Director, Congressional Affairs. chines, photographic supplies, and precision Staff Director, Public Affairs. measuring instruments. Staff Director, Command Security. 2. Depots. DLA depots are responsible for Staff Director, Administration. the receipt, storage, and distribution of Staff Director, Civilian Personnel. DLA-managed materiel. The principal depots Staff Director, Contracting Integrity. are: Staff Director, Military Personnel. Defense Distribution Region West (DDRW) Staff Director, Small and Disadvantaged Defense Distribution Region East (DDRE) Business Utilization. Defense Depot Memphis (DDMT) Staff Director, Installation Services and En- Defense Depot Ogden (DDOU) vironmental Protection. 3. Service centers. DLA operates six service Assistant Director, Information Systems and centers which provide technical and logistics Technology. services. The service centers are: Assistant Director, Policy and Plans. a. Defense Logistics Services Center General Counsel. (DLSC). Responsible for maintenance of the Comptroller. Federal Supply Catalog System, including the development and dissemination of cata- B. The PLFA’s. loging and item intelligence data to the The 22 PLFA’s are organized into six sup- Military Departments and other authorized ply centers, four depots, six service centers, customers. and six contract districts. b. Defense Reutilization and Marketing 1. Supply centers. The six supply centers are Service (DRMS). The central clearinghouse responsible for materiel management of as- for the reutilization, donation, sale, or dis- signed commodities and items of supply re- posal of DoD-owned excess property, includ- lating to food, clothing, textiles, medical, ing scrap and waste. chemical, petroleum, industrial, construc- c. Defense Industrial Plant Equipment tion, electronics, and general items of sup- Center (DIPEC). Manages the reserve of DoD- ply. The six supply centers are: owned industrial plant equipment. The cen- a. Defense Construction Supply Center ter repairs, rebuilds, and updates equipment (DCSC). Buys and manages construction ma- to avoid new procurement costs. terials, automotive, and construction equip- d. DLA Administrative Support Center ment components, and many repair parts (DASC). Provides general administrative used by the Military Services and other Fed- support to designated DLA activities. eral agencies. Manages items ranging from e. Defense National Stockpile Center common commercial items such as lumber (DNSC). Maintains the national reserve of

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strategic materials stored for use in event of V. FOIA Mailing Addresses war or other national emergency. f. DLA Systems Automation Center HQ Defense Logistics Agency, Attn: HQ (DSAC). Develops and maintains DLA’s auto- DLA-XAM, Cameron Station, Alexandria, mated and computerized systems. VA 22304–6100. 4. Contract districts. Six districts, each re- Defense Construction Supply Center, Attn: sponsible for contracts covering a multistate DCSC-WXA, 3990 E. Broad Street, Colum- or specialized area, administer materiel con- bus, OH 43216–5000. tracts after they are awarded by the military Defense Electronics Supply Center, Attn: services, defense agencies, some civil agen- DESC-WXA, 1507 Wilmington Pike, Day- cies, and certain foreign governments. The ton, OH 45444–5252. districts are: Defense Fuel Supply Center, Attn: DFSC-DB, Defense Contract Management District Cameron Station, Alexandria, VA 22304– Northeast (DCMDN). 6160. Defense Contract Management District Mid Defense General Supply Center, Attn: DGSC- Atlantic (DCMDM). DB, Richmond, VA 23297–5000. Defense Contract Management District Defense Industrial Supply Center, Attn: North Central (DCMDC). DISC-PPR, 700 Robbins Avenue, Philadel- Defense Contract Management District phia, PA 19111–5096. South (DCMDS). Defense Personnel Support Center, Attn: Defense Contract Management District West DPSC-WXA, 2800 South 20th Street, Phila- (DCMDW). delphia, PA 19101–8419. Defense Contract Management Command Defense Distribution Region East, Attn: International (DCMCI). DDRE-WX, New Cumberland, PA 17070– 5001. III. Requester Requirements Defense Depot Memphis, Attn: DDMT-WX, 2163 Airways Blvd., Memphis, TN 38114– A. Addressing Requests 5000. Address requests to the DLA PLFA most Defense Depot Ogden, Attn: DDOU-G, 800 likely to hold the records (see paragraph V of West 12th Street, Ogden, UT 84407–5000. this appendix for mailing addresses of FOIA Defense Distribution Region West, Attn: managers). If the PLFA is undeterminable, DDRW-WX, Tracy, California 95376–5000. address requests to HQ DLA-XAM for proper Defense National Stockpile Center Attn: routing. Requests must be in writing. DNSC-L, 1745 Jefferson Davis Highway, Crystal Square No. 4, suite 100, Arlington, B. Description of Records. VA 22202–3402. Provide a reasonable description of the Defense Industrial Plant Equipment Center, documents you are seeking. If you have de- Attn: DIPEC-LP, 2163 Airways Blvd., Mem- tailed information which would help reduce phis, TN 38114–5051. the search time involved, please include it in Defense Logistics Services Center, Attn: your request. If you have a document which DLSC-WXA, 74 N. Washington Avenue, references the DLA record you seek, include Battle Creek, MI 49017–3084. a copy of that document. Defense Reutilization and Marketing Serv- ice, c/o Defense Logistics Services Center, C. Fees and fee waivers. Attn: CLSC-WXA, 74 N. Washington Ave- State your willingness to pay fees above nue, Battle Creek, MI 49017–3084. the $15 automatic waiver or provide a jus- DLA Systems Automation Center, Attn: tification for waiver of all or part of the DSAC-E, P.O. Box 1605, Columbus, OH costs. Waiver requests must address with 43216–5002. specificity each of the fee waiver elements in DLA Administrative Support Center, Attn: part 286, subpart F, of this title. DASC-RA, Cameron Station, Alexandria, VA 22304–6130. IV. Availability of DLA Publications Defense Contract Management District Unrestricted DLA regulations, manuals, South, Attn: DCMDS-W, 805 Walker Street, and handbooks may be purchased from the Marietta, Georgia 30060–2789. DLA publications sales outlet. DLA Hand- Defense Contract Management District book 5025.1, Defense Logistics Agency Index Northeast, Attn: DCMDN-WX, 495 Summer of Publications, is published quarterly and Street, Boston, MA 02210–2184. may be used to help you identify publica- Defense Contract Management District tions of interest to you. Orders for this and North Central, Attn: DCMDC-WX, O’Hare other nonrestricted publications may be International Airport, P.O. Box 66926, Chi- placed through DASC-PD, Cameron Station, cago, Il 60666–0926. Alexandria, VA 22304–6130. That office will Defense Contract Management District West, advise you of cost before completing your Attn: DCMDW-WXA, 222 N. Sepulveda order. Blvd., El Segundo, CA 90245–4320.

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Defense Contract Management District Mid (c) The DLA vehicle decal will be Atlantic, Attn: DCMDM-RW, 2800 S. 20th valid for a period of 3 years from the Street, Philadelphia, PA 19101–7478. year and month of issue. Defense Contract Management Command International, Attn: DCMCI-MBW, Wright- (d) Activities will use DLA Form Patterson AFB, OH 45433–5000. 1454, Vehicle Registration/Driver Record, as the basic vehicle registra- PART 1288—REGISTRATION OF PRI- tion and driver record. VATELY OWNED MOTOR VEHI- (e) DLA tenant activities will comply with host installation policies and pro- CLES cedures for registering POV’s.

Sec. § 1288.3 Definitions. 1288.1 Purpose and scope. 1288.2 Policy. Terms used in this part 1288 are con- 1288.3 Definitions. tained in DLAR 5720.1. 1288.4 Responsibilities. 1288.5 Procedures. § 1288.4 Responsibilities. 1288.6 Forms and reports. (a) HQ DLA. (1) The command secu- APPENDIX A TO PART 1288—DECAL SPECIFICA- TIONS rity officer, DLA (DLA-T) will provide staff supervision and assistance to DLA AUTHORITY: 5 U.S.C. 301; DOD Directive activities on matters concerning this 5105.22, June 8, 1978. part 1288. SOURCE: 43 FR 40806, Sept. 13, 1978, unless (2) The inspector general, DLA (DLA- otherwise noted. I) will procure, issue, and control in- § 1288.1 Purpose and scope. spector general (IG) vehicle decals in accordance with § 1288.6 of this part, To prescribe policy and procedures with the exception of the 3-year valida- for the registration, inspection, and tion requirement. (Vehicles bearing marking of privately owned vehicles such decals will be permitted entry to (POV) on Defense Logistics Agency all DLA activities.) (DLA) activities. This regulation is ap- (b) The heads of DLA primary level plicable to individuals serving in or field activities will: employed by the Defense Logistics (1) Insure that personnel adhere to Agency, and to all other individuals the provisions of this part 1288 when subject to motor vehicle registration implemented. requirements set forth in this part 1288 and DLAR 5720.1/AR 190–5/OPNAVINST (2) Procure, issue, and control vehicle 11200.5B/AFR 125–14/MCO 5110.1B, Mili- decals in accordance with this DLAR. tary Police Motor Vehicle Traffic Su- (3) Periodically inform personnel of pervision. the requirements of this DLAR, DLAR 5720.1, and local requirements con- § 1288.2 Policy. cerning the motor vehicle registration (a) The operation of a POV on a DLA program. activity constitutes a conditional (4) Activity/tenant employees are not privilege extended by the Head of the considered visitors and will not be activity. The Heads of DLA primary issued visitor passes. Employees oper- level field activities (PLFA’s) have the ating loaner/rental vehicles may be authority to supplement this regula- temporarily registered in accordance tion to implement additional controls with DLAR 5720.1, paragraph 3–2c. and restraints warranted by existing conditions at a PLFA. For example, § 1288.5 Procedures. commanders of depots and supply cen- (a) Issuance of DLA POV decal and 3- ters may impose searches of vehicles as year validation sticker. (1) One decal will warranted to reduce pilferage, and pro- be affixed to the left front bumper (op- tect Government interests. erator’s side) of a four-wheel vehicle. (b) POV’s permanently registered for An additional decal may be placed on operation on a DLA activity will be the rear bumper of the vehicle. For ve- identified by use of one of the decals hicles not equipped with bumpers and prescribed in this part 1288 (appendices two-wheeled vehicles, the placement of A and B). decals will be determined locally.

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