SORT: 5400.10
DOCI: DODI 5400.10
DATE: 19910124
TITL: DODI 5400.10, OSD Implementation of DoD "Freedom of Information
Act" (FOIA) Program, January 24, 1991, ASD(PA)
References: (a) DoD Instruction 5400.10, "OSD Implementation of DoD
Freedom of Information Act Program," August 20, 1981
(hereby canceled)
(b) DoD Directive 5400.7, "DoD Freedom of Information
Act Program," May 13, 1988
(c) DoD 5400.7-R, "DoD Freedom of Information Act
Program," October 1990, authorized by DoD Directive
5400.7, May 13, 1988
(d) Title 5, United States Code, Section 552, "Freedom
of Information Act (FOIA)," as amended
(e) through (g), see enclosure 1
A. REISSUANCE AND PURPOSE
This Instruction reissues reference (a), and implements
references (b) and (c) by establishing policy, assigning
responsibilities, and prescribing procedures for the effective
administration of the DoD FOIA (reference (d)) Program in the Office
of the Secretary of Defense and by the Chairman, Joint Chiefs of
Staff and Joint Staff, under reference (d).
B. APPLICABILITY
This Instruction applies to the Office of the Secretary of
Defense (OSD); the Chairman, Joint Chiefs of Staff and Joint Staff;
the Unified Commands; other activities assigned to the OSD for
administrative support (hereafter referred to collectively as "OSD
Components"); and to OSD Components' field activities, when
designated by the Assistant Secretary of Defense (Public Affairs)
(ASD(PA)) in concurrence with the Read of the OSD Component
involved. The term "DoD Components," as stated herein, refers to
the Military Departments and separate Defense Agencies, as in
reference (c).
C. POLICY
It is DoD policy to:
1. Promote public trust by making the maximal amount of
information available to the public on the operation and activities
of the Department of Defense, consistent with DoD responsibility to
ensure national security.
2. Make available to the public the unclassified information,
documents, and forms previously provided to the public as part of
the DoD service.
3. Answer promptly all FOIA (reference (d)) requests for
information and records under established procedures and practices.
4. Place the authority to deny FOIA initial record requests
with the Heads of OSD Components.
5. Maintain, publish, and make available for inspection current
indices in the public reading room, Room 2C757, Pentagon. Fees shall
not be charged for any inspection of those materials. Fees may be
charged, in accordance with DoD 5400.7-R, chapter VI, (reference
(c)), for furnishing copies of such materials.
6. Release records to the public unless the records are exempt
from mandatory disclosure, as outlined in chapter III of reference
(c).
D. RESPONSIBILITIES
1. The Assistant Secretary of Defense (Public Affairs)
(ASD(PA)) shall:
a. Direct and administer the DoD FOIA Program within the
OSD. The ASD(PA) shall designate the Director, Freedom of
Information and Security Review (DFOISR), as the office of record
and point of contact (POC) for the OSD Components in matters
pertaining to the DoD FOIA (reference (d)) Program.
b. Establish policies and procedures to ensure compliance
with and implementation of DoD Directive 5400.7 (reference (b)) and
reference (c).
c. Serve as the central POC within the OSD for the receipt
of all FOIA (reference (d)) initial requests for records of the OSD
Components, except the Unified Commands and the OSD Components
designated by the ASD(PA).
d. Forward FOIA requests for records from the public to
the OSD Component having responsibility for the requested record,
and maintain a staff action control system to ensure that action is
taken within the time limit established in DoD 5400.7-R (reference
(c)).
e. Prepare responses to requesters from input provided by
the OSD Components and collect for deposit with the Director of
Administration and Management, Office of the Secretary of Defense
(DA&M,OSD), assessable fees in accordance with reference (c).
f. Establish a reading room where the public may inspect
and copy available records.
g. Perform the duty of appellate authority for appeals
that are submitted as a result of initial denials by the OSD
Components for records and fee assessments.
h. Maintain a data base on FOIA activities in a format
that meets the requirements of chapter VII of reference (c) and in a
manner that affords rapid retrieval.
i. Authorize the Unified Commands and specific field
activities of an OSD Component to receive, process, grant, deny,
collect, and deposit assessable fees for FOIA requests for records
for which those Unified Commands and field activities have primary
responsibility. All authorizations by the ASD(PA) shall be
coordinated with the Head of the OSD Component concerned.
j. Develop and submit the "DoD Annual Report to Congress"
as required by reference (d).
k. Conduct educational training for the OSD Components on
the requirements and implementation of the FOIA.
2. The General Counsel of the Department of Defense (GC, DoD)
shall:
a. Provide assistance and advice to the OSD Components in
the processing of initial denials of OSD records.
b. Provide assistance and advice to the ASD(PA) in the
discharge of appellate responsibilities.
c. Coordinate with the Department of Justice (DoD) on all
final appeals for requests records when litigation is likely.
3. The Director of Administration and Management, Office of the
Secretary of Defense (DA&M, OSD), shall:
a. Maintain, publish, and make available for public
inspection current OSD Component indices of materials, as required
by paragraph (a) (2) of 5 U.S.C. 552 (reference (d)).
b. Coordinate and arrange for information affecting the
public, under the FOIA (reference (d)) to be published in the
"Federal Register."
c. Receive and deposit in the U.S. Treasury fees collected
under the FOIA by the DFOISR.
4. The Heads of OSD Components shall:
a. Process FOIA requests received from the DFOISR in
accordance with this Instruction and DoD 5400.7-R (reference (c)).
b. Designate initial denial authorities (IDAs) who are
authorized to deny initial requests for records under the FOIA, and
designate an office as the POC for FOIA matters. Provide written
notice to the DFOISR of those IDAs and POCs, including notice of
changes. The IDA shall be the Head of the OSD Component, or a
delegated representative authorized to deny information on their
behalf.
c. Provide the DFOISR TWO copies of all OSD records
approved for release. Records that originated outside of the OSD
that are in the possession of an OSD Component and that are
responsive to a request shall also be forwarded to the DFOISR in TWO
copies, so the records may be referred to the originating office or
Agency for a final release determination. When there is a
significant DoD interest in the non-OSD originated records, they
shall be reviewed and staffed, and a recommended DoD release
determination provided with the records to the DFOISR.
d. Coordinate with other OSD and DoD Components who have a
significant interest in a requested record before making a final
decision on its releasability. In order to adhere to the time
requirements of the FOIA (reference (d)), coordination with Agencies
outside the Department of Defense that have a significant interest
in the requested records shall be accomplished with action officers
having the subject matter expertise. If such coordination cannot be
accomplished, then the DFOISR shall coordinate with external
Agencies. The DFOISR shall effect all coordination with the
National Security Council.
e. Coordinate with the Office of the Assistant GC, DoD
(OAGC, DoD), from which it normally receives legal advice on
proposed denials of records.
f. Provide the DFOISR with a justification for the denial,
in whole or in part, of a request for records and identify the
specific exemption(s) claimed.
g. Refer cases to the DFOISR for review and evaluation
when the issues raised are of unusual significance, precedent
setting, or otherwise require special guidance from the DoD FOIA
program manager.
h. Refer all FOIA requests and appeals that are received
directly from the requester to the DFOISR, who shall enter the
request into the OSD formal control system and return the request or
appeal for appropriate action.
i. Provide the DFOISR with a copy of a denied record at
the time an appeal has been forwarded for OSD Component review. The
information recommended for denial shall be bracketed in black
pencil.
j. Establish procedures to mark record copies and to
notify holders of classified records that have been downgraded,
declassified, or reclassified as a result of a review under the
FOIA.
k. Provide instructions to employees who administer FOIA
matters under this Instruction, DoD Directive 5400.7, and DoD
5400.7-R (references (b) and (c)).
l. Provide to the DA&M, OSD, quarterly updates for the
index of final opinions, statements of policy, and administrative
staff manuals and instructions that affect the public (DoD 5025.1-I,
part V, reference (e)). Forward updates no later than 15 days
before the end of each calendar quarter to:
OSD Records Administrator
Washington Headquarters Services
Room 5C315, Pentagon
Washington, DC 20301-1400
E. PROCEDURES
1. General. A request for a record under the FOIA (reference
(d)) may be denied only on the determination that:
a. The requested record is exempt under the FOIA. (See DoD
5400.7-R, paragraph 1-504 and chapter III (reference (c).)
b. The requester has failed to comply with the procedural
requirements imposed by paragraph 5-100 of reference (c).
2. Processing FOIA Cases Within the OSD
a. The DFOISR of the Office of the ASD(PA) (OASD(PA)) is
the office of record and POC for OSD Components in matters
pertaining to the DoD FOIA Program.
b. The DFOISR shall deliver a FOIA request to the OSD
Component having responsibility for the requested record. Any FOIA
request received by an OSD Component from a source other than the
DFOISR shall be directed to the DFOISR without delay for formal
entry into the FOIA control system. The OSD Component should
commence work on the request, pending its return from the DFOISR.
c. A FOIA request shall be sent by the DFOISR to the OSD
Component having responsibility for the records, along with SD Form
466, "Freedom of Information Action (Cover Sheet)"; SD Form 472,
"Request Information Sheet"; DD Form 2086, "Record of Freedom of
Information (FOI) Processing Cost"; and DD Form 2086-1, "Record of
Freedom of Information (FOI) Processing Cost for Technical Data" (if
appropriate). The SD Form 472, the DD Form 2086, and the DD Form
2086-1 (if appropriate) shall be completed and returned to the
DFOISR with the documents located as a result of the search. Do not
forward information denied in total at the initial request stage.
If an appeal should result, information denied in total shall be
forwarded to the DFOISR for appellate review. Instructions for
information denied in part are in paragraph E.2.g, below. The OSD
Components are reminded that their responsibility for document
searches also extends to the Federal Records Center, Suit land, MD,
if the documents have been retired to that center under AI 15
(reference (f)).
d. A FOIA request forwarded to an OSD Component by the
DFOISR may not be declined, except when responsibility of the
records sought is challenged. When possible, the OSD Component
should identify on the SD Form 472 the specific OSD Component, DoD
Component, or other Government Agency that has responsibility for
the record. A lack of specificity by the requester that suggests
records of other DoD Components or Agencies may also fit the broad
category of the request is not sufficient cause to challenge
responsibility.
e. The DFOISR shall assign a suspense to each request
dispatched to the OSD Components. The suspense shall be met by a
decision to grant the request, in whole or in part, or a decision to
fully deny the request, or by a petition from the OSD Component's
IDA stating the specific number of additional days required and the
reasons. Requests for extensions shall be made to the DFOISR at
least 3 working days before the suspense date. Extensions of time
shall be granted on a case-by-case basis depending on the reasons
that may justify "unusual circumstances." Extensions may not exceed
5 working days, unless it has been determined that the records are
located outside the immediate area of the organization receiving the
FOIA (reference (d)) request for action.
f. When a request is granted, TWO copies of the requested
record, a completed SD Form 472, DD Form 2086, and DD Form 2086-1
(if appropriate) shall be delivered to the DFOISR, Room 2C757,
Pentagon. When a copy of the record cannot be made available by the
suspense date, the delay shall be explained on the SD Form 472 and a
date established as to the record's availability.
g. When a request is denied in part, two excised copies of
the requested record shall be delivered to the DFOISR. The excised
copies shall clearly reflect the denied information by means of
BLACKENED areas, which are SUFFICIENTLY BLACKENED as to reveal no
information. The best means to ensure illegibility is to cut out
the information from a copy of the document and reproduce the
appropriate pages. If the document is classified, all
classification markings shall be lined through with a single black
line, which still allows the marking to be read. The document shall
then be stamped "Unclassified." OSD Components are reminded that
the FOIA requires release of segregable information not otherwise
exempt. Minimally, review for segregability shall be at the
paragraph level. Completed copies of the SD Form 472, DD Form 2086,
and DD Form 2086-1 (if appropriate) shall be returned with the
packet. When the denial is based on a security classification
according to the criteria in DoD 5200.1-R (reference (g)), the
explanation shall indicate that a current review of the record
supports continued classification. That explanation shall also
contain specific rationale that supports the decision for continued
classification of the requested record. All denials of information
require the coordination of the OSD Component's General Counsel
(GC), and the signature of the IDA on the SD Form 472.
h. When a requested record is denied in its entirety under
one or more of the exemptions in the FOIA (reference (d)), as in DoD
5400.7-R, chapter III (reference (c)), the procedures in paragraph
E.2.g., above, apply, except that a copy of the requested record is
not provided to the DFOISR, and the explanation on the SD Form 472
shall state that it is not possible to segregate portions of the
record. A classified document containing unclassified information
may not be denied in total under exemption one of the FOIA, UNLESS
the unclassified information, when taken in aggregate, would reveal
classified information (see paragraph 3-200, number 1, reference
(c)). Denial of unclassified information not meeting that standard
may only be accomplished by exerting one or more of exemptions two
through nine of the FOIA.
i. When an OSD Component cannot locate a requested record
and a "no record" determination is made, the explanation on the SD
Form 472 shall so state and be signed by the IDA. Complete copies
of the SD Form 472 and DD Form 2086, or DD Form 2086-1 (if
appropriate) shall be returned with the packet.
j. Any case referred to the DFOISR, in accordance with
paragraph D.4.g., above, shall be transmitted by memorandum and
signed by the IDA, who establishes the unusual circumstances,
precedent-setting conditions, or other circumstances necessitating
the special attention or guidance of the DoD FOIA program manager.
Unless the OSD Component is notified to the contrary, DFOISR review
or evaluation action does not relieve the OSD Component of the
responsibility of reaching an initial decision on the request within
the established suspense date. DFOISR action shall be accomplished
to provide timely guidance or recommendation.
k. The OSD Components shall coordinate directly with the
FOIA POC or action officers of other OSD and DoD Components that
have an interest and subject matter expertise in the information
under review. Coordination that is required external to OSD and DoD
Components, for which direct contact between action officers cannot
be effected, shall be forwarded to the DFOISR for coordination.
Problems that surface and require the attention or intervention of
the DFOISR shall be presented to the DFOISR early in the time
allotted for staffing an action, so that the statutory time limits
for processing an FOIA request may be met.
3. Processing FOIA Appeals Within the OSD
a. Appeals received in the DFOISR for documents denied by
the IDAs shall be returned to the IDA for reconsideration. As the
appellate review process is the last step before a requester may
file suit in a U.S. District Court, it is imperative that the denied
information be thoroughly reviewed for segregable or total release
under the FOIA (reference (d)). After review, OSD Components shall
obtain concurrence of their GC representative, then return all
documents cleared or approved for release, and all documents, or
portions thereof, recommended for continued denial. The information
to be denied shall be clearly bracketed in black pencil, and the
appropriate FOIA exemption and rationale indicated on the SD Form
472 accompanying the appellate package. The ASD(PA) is the OSD
appellate authority, and as such shall render a final release
determination.
b. Extensions shall be granted on a case-by-case basis,
and may not exceed 5 working days. Request for extensions shall be
made to the DFOISR at least 3 working days before the suspense date.
F. EFFECTIVE DATE
This Instruction is effective immediately.
Pete Williams
Enclosure: Assistant Secretary of Defense
References (Public Affairs)
REFERENCES, continued
(e) DoD 5025.1-I, "DoD Directives System Annual Index,"
January 1990, authorized by DoD Directive 5025.1,
December 23, 1988
(f) OSD Administrative Instruction 15, "OSD Records Management
Program," September 11, 1981
(g) DoD 5200.1-R, "Information Security Program Regulation,"
June 1986, authorized by DoD Directive 5200.1, June 7, 1982
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