[Federal Register: June 15, 2007 (Volume 72, Number 115)]
[Proposed Rules]               
[Page 33180-33181]



Office of the Secretary

32 CFR Part 285

[RIN 0790-AI21]

DoD Freedom of Information Act (FOIA) Program

AGENCY: Department of Defense.

ACTION: Proposed rule.


SUMMARY: The Department of Defense is proposing to update current 
policies and procedures to reflect the DoD FOIA Program as prescribed 
by Executive Order 13392. The proposed changes will ensure appropriate 
agency disclosure of information, and offer consistency with the with 
the goals of section 552 of title 5, United States Code.

DATES: Comment must be received on or before August 14, 2007. Do not 
submit comments directly to the point of contact or mail your comments 
to any address other than what is shown below. Doing so will delay the 
posting of the submission.

ADDRESSES: You may submit comments, identified by docket number and or 
RIN number and title, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submission from members of the public is to make these submissions 
available for public viewing on the Internet at http://regulations.gov 

as they are received without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: Mr. James Hogan (703) 696-4699.


Executive Order 13132, ``Federalism''

    It has been certified that this rule does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of Government.

Executive Order 12630, ``Government Actions and Interference With 
Constitutionally Protected Property Rights''

    It has been certified that this rule does not:
    (1) Place a restriction on a use of private property;
    (2) Involve a permitting process or any other decision-making 
process that will interfere with, or otherwise prohibit, the use of 
private property; or
    (3) Regulate private property use for the protection of public 
health or safety.

Executive Order 12866, ``Regulatory Planning and Review''

    It has been certified that this rule does not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribunal governments or 
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

Executive Order 13045, ``Protection of Children From Environmental 
Health Risks and Safety Risks''

    It has been certified that this rule does not present any 
environmental health or safety effects on children.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    It has been certified that this rule does not contain a Federal 
mandate that may result in the expenditure by State, local and tribunal 
governments, in aggregate, or by the private sector, of $100 million or 
more in any one year.

National Environmental Policy Act

    It has been certified that this rule does not significantly affect 
the quality of the human environment.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that this rule does not impose reporting or 
recordkeeping requirements under the Paperwork Reduction Act of 1995. 
The reporting and recordkeeping requirements have been submitted to OMB 
for review.

List of Subjects in 32 CFR Part 285

    Freedom of information.

    Accordingly, 32 CFR part 285 is proposed to be revised to read as 


285.1 Purpose.
285.2 Applicability and scope.
285.3 Policy.
285.4 Responsibilities.
285.5 Information requirements.

    Authority: 5 U.S.C. 552.

Sec.  285.1  Purpose.

    This part:
    (a) Update policies and responsibilities for implementing the DoD 
FOIA Program in accordance with 5 U.S.C. 552 (commonly known as the 
    (b) Continues to authorize 32 CFR part 286 to implement the FOIA 
    (c) Implements E.O. 13392 within the Department of Defense.
    (d) Continues to delegate authorities and responsibilities for the 
effective administration of the FOIA Program consistent with DoD 
Directive 5105.53.\1\

    \1\ Copies of DoD Directives, Instructions, and Publications may 
be obtained at http://www.dtic.mil/whs/directives/.


Sec.  285.2  Applicability and scope.

    This part applies to:

[[Page 33181]]

    (a) The Office of the Secretary of Defense (OSD), the Military 
Departments, the Chairman of the Joint Chiefs of Staff, the Combatant 
Commands, the Office of the Inspector General of the Department of 
Defense, the Defense Agencies, the DoD Field Activities, and all other 
organizational entities in the Department of Defense (hereafter 
referred to collectively as the ``DoD Components'').
    (b) National Security Agency/Central Security Service records, 
unless the records are exempt according to 50 U.S.C. 402.
    (c) Defense Intelligence Agency, National Reconnaissance Office, 
and National Geospatial-Intelligence Agency records, unless the records 
are exempt according to 50 U.S.C. 403-5e, 10 U.S.C. 424 and 455, or 
other applicable law.

Sec.  295.3  Policy.

    It is DoD policy to:
    (a) Promote public trust by making the maximum amount of 
information available to the public, in both hard copy and electronic 
formats, on the operation and activities of the Department of Defense, 
consistent with the DoD responsibility to protect national security and 
other sensitive DoD information.
    (b) Allow a requester to obtain records from the Department of 
Defense that are available through other public information services 
without invoking the FOIA.
    (c) Make available, according to the procedures established by 5 
U.S.C. 552, DoD records requested by a member of the public who 
explicitly or implicitly cites the FOIA.
    (d) Answer promptly all other requests for DoD information and 
records under established procedures and practices.
    (e) Release DoD records to the public unless those records are 
exempt from disclosure as outlined in 5 U.S.C. 552.
    (f) Process requests by individuals for access to records 
themselves contained in a Privacy Act system of records according to 
the procedures set forth in 32 CFR part 310 and this part, as amplified 
by 32 CFR part 286.
    (g) Provide FOIA requesters with citizen-centered ways to learn 
about the FOIA process, about DoD records that are publicly available, 
and about the status of a FOIA request and appropriate information 
about the DoD response.

Sec.  285.4  Responsibilities.

    (a) The Director, Administration and Management (DA&M), shall:
    (1) Serve as the DoD Chief FOIA Officer in accordance with E.O. 
    (2) Direct and oversee the DoD FOIA Program to ensure compliance 
with the policies and procedures that govern administration of the 
    (3) Designate the FOIA Public Liaisons for the Department of 
Defense in accordance with E.O. 13392. The FOIA Public Liaison for OSD, 
the Chairman of the Joint Chiefs of Staff, and the Combatant Commands 
shall be appointed from the Defense Freedom of Information Policy 
Office (DFOIPO).
    (4) Prepare and submit to the Attorney General the DoD Annual 
Freedom of Information Act Report as required by 5 U.S.C., and other 
reports as required by E.O. 13392.
    (5) Serve as the appellate authority for appeals to the decisions 
of the respective Initial Denial Authorities within OSD, the Chairman 
of the Joint Chiefs of Staff, the DoD Field Activities (listed in 32 
CFR part 286), and the Combatant Commands. The DA&M or Washington 
Headquarters Services (WHS) staff.
    (6) Prepare and maintain a DoD issuance and other discretionary 
information to ensure timely and reasonably uniform implementation of 
the FOIA in the Department of Defense.
    (b) The Director, WHS, under the authority, direction, and control 
of the DA&M, shall administer the FOIA Program, inclusive of training, 
for OSD and the Chairman of the Joint Chiefs of Staff.
    (c) The General Counsel of the Department of Defense shall:
    (1) Provide uniformity in the legal interpretation of this part.
    (2) Ensure affected OSD legal advisors, public affairs officers, 
and legislative affairs officers are aware of releases through 
litigation channels that may be of significant public, media, or 
Congressional interest, or of interest to senior DoD officials.
    (3) Establish procedures to centralize processing of FOIA 
litigation documents when deemed necessary.
    (d) The Under Secretary of Defense for Intelligence shall establish 
uniform procedures regarding the declassification of national security 
information made pursuant to requests invoking the FOIA.
    (e) The Heads of the DoD Components shall:
    (1) Internally administer the DoD FOIA Program; publish any 
instructions necessary for the administration of this part within their 
Components that are not prescribed by this part or by other DA&M 
issuances in the Federal Register.
    (2) Serve as, or appoint another Component official as, the FOIA 
appellate authority for the Component.
    (3) Establish one or more FOIA Requester Service Centers as 
prescribed by E.O. 13392.
    (4) Submit names of personnel to the DA&M for designation as FOIA 
Public Liaisons.
    (5) Ensure their respective chains of command, affected legal 
advisors, public affairs officers, and legislative affairs officers are 
aware of releases through the FOIA, inclusive of releases through 
litigation channels, that may be of significant public, media, or 
Congressional interest, or of interest to senior DoD officials.
    (6) Conduct training on the provisions of this part, 5 U.S.C. 552, 
and 32 CFR part 286 for officials and employees who implement the FOIA.
    (7) Submit to DFOIPO inputs to the DoD FOIA Annual Report 
prescribed in 32 CFR part 286 and E.O. 13392.
    (8) Make records specified in 5 U.S.C. 552(a)(2), unless such 
records are published and copies are offered for sale, available for 
public inspection and copying in an appropriate facility or facilities, 
according to rules published in the Federal Register. These records 
shall be made availale to the public in both hard copy and electronic 
    (9) Maintain and make current indices of all records available for 
public inspection and copying, a required by 5 U.S.C. 552(a)(2).

Sec.  285.5  Information requirement.

    The reporting requirements of 32 CFR part 286 have been assigned 
Report Control Symbol D-DA&M(A)1365 in accordance with DoD 8910.1-M.

    Dated: June 11, 2007
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, DoD.
[FR Doc. 07-2950 Filed 6-14-07; 8:45 am]