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27 October 2006

[Federal Register: October 27, 2006 (Volume 71, Number 208)]
[Rules and Regulations]               
[Page 62940-62941]
From the Federal Register Online via GPO Access []



Office of the Secretary


32 CFR Part 286

DoD Freedom of Information Act Program Regulation

AGENCY: Department of Defense.

ACTION: Final rule.


SUMMARY: This documents removes Subpart D, ``For Official Use Only'' 
(FOUO) from 32 CFR part 286, ``DoD Freedom of Information Act Program 
Regulations'' and reserves that subpart for future use. Removing this 
from 32 CFR part 286 will eliminate confusion of the authoritative FOUO 
guidance and who is the authority on FOUO. This removal will alleviate 
any further uncertainty, avoid duplication of FOUO guidance, and is 
considered an administrative action.

DATES: Effective Date: November 27, 2006.

FOR FURTHER INFORMATION CONTACT: Mr. Stephen Fisher, 703-696-4697.

SUPPLEMENTARY INFORMATION: The Under Secretary of Defense 
(Intelligence) (USD(I)) is responsible for FOUO guidance. This guidance 
(FOUO) is included in Appendix 3 of DoD 5200.1-R \1\ which is the 
current FOUO guidance for the Department of Defense.

    \1\ Copies may be obtained at

[Copy of Appendix 3: (50KB)]


List of Subjects in 32 CFR Part 286

    Freedom of information.


Accordingly, by the authority of 10 U.S.C. 301, 32 CFR part 286 is 
amended as follows:

[[Page 62941]]

1. The authority citation for 32 CFR part 286 continues to read as 

    Authority: 5 U.S.C. 552.

2. 32 CFR part 286 is amended by removing and reserving subpart D.

    Dated: October 23, 2006.
L.M. Bynum,
OSD Federal Register Liaison Officer, DoD.
[FR Doc. 06-8908 Filed 10-26-06; 8:45 am]



[32CFR286 Part D added.]

[Code of Federal Regulations]
[Title 32, Volume 2]
[Revised as of July 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR286]

[Page 669-671]
                       TITLE 32--NATIONAL DEFENSE
Subpart D_For Official Use Only

Sec.  286.15  General provisions.

    (a) General. Information that has not been given a security 
classification pursuant to the criteria of an Executive Order, but which 
may be withheld from the public because disclosure would cause a 
foreseeable harm to an interest protected by one or more FOIA exemptions 
2 through 9 (see subpart C of this part) shall be considered as being 
for official use only (FOUO). No other material shall be considered 
FOUO, and FOUO is not authorized as an anemic form of classification to 
protect national security interests. Additional information on FOUO and 
other controlled, unclassified information may be found in DoD 5200. 1-R 
or by contacting the Directorate for Security, Office of the Assistant 
Secretary of Defense (Command, Control, Communications, and 
    (b) Prior FOUO application. The prior application of FOUO markings 
is not a conclusive basis for withholding a record that is requested 
under the FOIA. When such a record is requested, the information in it 
shall be evaluated to determine whether disclosure would result in a 
foreseeable harm to an interest protected by one or more FOIA exemptions 
2 through 9. Even if any exemptions apply, the record shall be released 
as a discretionary matter when it is determined that there is no 
foreseeable harm to an interest protected by the exemptions.
    (c) Historical papers. Records such as notes, working papers, and 
drafts retained as historical evidence of DoD Component actions enjoy no 
special apart from the exemptions under the FOIA.
    (d) Time to mark records. The marking of records at the time of 
their creation provides notice of FOUO content and facilitates review 
when a record is requested under the FOIA. Records requested under the 
FOIA that do not bear such markings shall not be assumed to be 
releasable without examination for the presence of information that 
requires continued protection and qualifies as exempt from public 
    (e) Distribution statement. Information in a technical document that 
requires a distribution statement pursuant to DoD Directive 5230.24 \8\ 
shall bear that statement and may be marked FOUO, as appropriate.

    \8\ See footnote 1 to Sec.  286.1(a).

Sec.  286.16  Markings.

    (a) Location of markings. (1) An unclassified document containing 
FOUO information shall be marked ``For Official Use Only'' at the bottom 
on the outside of the front cover (if any), on each page containing FOUO 
information, and on the outside of the back cover (if any). Each 
paragraph containing FOUO information shall be marked as such.
    (2) Within a classified document, an individual page that contains 
both FOUO and classified information shall be marked at the top and 
bottom with the highest security classification of information appearing 
on the page. Individual paragraphs shall be marked at the appropriate 
classification level, as well as unclassified or FOUO, as appropriate.
    (3) Within a classified document, an individual page that contains 
FOUO information but no classified information shall be marked ``For 
Official Use Only'' at the top and bottom of the page, as well as each 
paragraph that contains FOUO information.

[[Page 670]]

    (4) Other records, such as photographs, films, tapes, or slides, 
shall be marked ``For Official Use Only'' or ``FOUO'' in a manner that 
ensures that a recipient or viewer is aware of the status of the 
information therein.
    (5) FOUO material transmitted outside the Department of Defense 
requires application of an expanded marking to explain the significance 
of the FOUO marking. This may be accomplished by typing or stamping the 
following statement on the record prior to transfer:

This document contains information
under the FOIA. Exemption(s) ------ applies/apply.

    (b) [Reserved]

Sec.  286.17  Dissemination and transmission.

    (a) Release and transmission procedures. Until FOUO status is 
terminated, the release and transmission instructions that follow apply:
    (1) FOUO information may be disseminated within DoD Components and 
between officials of DoD Components and DoD contractors, consultants, 
and grantees to conduct official business for the Department of Defense. 
Recipients shall be made aware of the status of such information, and 
transmission shall be by means that preclude unauthorized public 
disclosure. Transmittal documents shall call attention to the presence 
of FOUO attachments.
    (2) DoD holders of FOUO information are authorized to convey such 
information to officials in other Departments and Agencies of the 
Executive and Judicial Branches to fulfill a government function, except 
to the extent prohibited by the Privacy Act. Records thus transmitted 
shall be marked ``For Official Use Only,'' and the recipient shall be 
advised that the information may qualify for exemption from public 
disclosure, pursuant to the FOIA, and that special handling instructions 
do or do not apply.
    (3) Release of FOUO information to Members of Congress is governed 
by DoD Directive 5400.4. \9\ Release to the GAO is governed by DoD 
Directive 7650.1. \10\ Records released to the Congress or GAO should be 
reviewed to determine whether the information warrants FOUO status. If 
not, prior FOUO markings shall be removed or effaced. If withholding 
criteria are met, the records shall be marked FOUO and the recipient 
provided an explanation for such exemption and marking. Alternatively, 
the recipient may be requested, without marking the record, to protect 
against its public disclosure for reasons that are explained.

    \9\ See footnote 1 to Sec.  286.1(a).
    \10\ See footnote 1 to Sec.  286.1(a).

    (b) Transporting FOUO information. Records containing FOUO 
information shall be transported in a manner that prevents disclosure of 
the contents. When not commingled with classified information, FOUO 
information may be sent via first-class mail or parcel post. Bulky 
shipments, such as distributions of FOUO Directives or testing 
materials, that otherwise qualify under postal regulations, may be sent 
by fourth-class mail.
    (c) Electronically and facsimile transmitted messages. Each part of 
electronically and facsimile transmitted messages containing FOUO 
information shall be marked appropriately. Unclassified messages 
containing FOUO information shall contain the abbreviation ``FOUO'' 
before the beginning of the text. Such messages and facsimiles shall be 
transmitted in accordance with communications security procedures 
whenever practicable.

Sec.  286.18  Safeguarding FOUO information.

    (a) During duty hours. During normal working hours, records 
determined to be FOUO shall be placed in an out-of-sight location if the 
work area is accessible to nongovernment personnel.
    (b) During nonduty hours. At the close of business, FOUO records 
shall be stored so as to prevent unauthorized access. Filing such 
material with other unclassified records in unlocked files or desks, 
etc., is adequate when normal U.S. Government or Government-contractor 
internal building security is provided during nonduty hours. When such 
internal security control is not exercised, locked buildings or rooms 
normally provide adequate after-hours

[[Page 671]]

protection. If such protection is not considered adequate, FOUO material 
shall be stored in locked receptacles such as file cabinets, desks, or 
bookcases. FOUO records that are subject to the provisions of the 
National Security Act of 1959 shall meet the safeguards outlined for 
that group of records.

Sec.  286.19  Termination, disposal and unauthorized disclosure.

    (a) Termination. The originator or other competent authority; e.g., 
initial denial and appellate authorities, shall terminate ``For Official 
Use Only'' markings or status when circumstances indicate that the 
information no longer requires protection from public disclosure. When 
FOUO status is terminated, all known holders shall be notified, to the 
extent practical. Upon notification, holders shall efface or remove the 
``For Official Use Only'' markings, but records in file or storage need 
not be retrieved solely for that purpose.
    (b) Disposal. (1) Nonrecord copies of FOUO materials may be 
destroyed by tearing each copy into pieces to prevent reconstructing, 
and placing them in regular trash containers. When local circumstances 
or experience indicates that this destruction method is not sufficiently 
protective of FOUO information, local authorities may direct other 
methods but must give due consideration to the additional expense 
balanced against the degree of sensitivity of the type of FOUO 
information contained in the records.
    (2) Record copies of FOUO documents shall be disposed of in 
accordance with the disposal standards established under 44 U.S.C. 3301-
3314, as implemented by DoD Component instructions concerning records 
    (c) Unauthorized disclosure. The unauthorized disclosure of FOUO 
records does not constitute an unauthorized disclosure of DoD 
information classified for security purposes. Appropriate administrative 
action shall be taken, however, to fix responsibility for unauthorized 
disclosure whenever feasible, and appropriate disciplinary action shall 
be taken against those responsible. Unauthorized disclosure of FOUO 
information that is protected by the Privacy Act may also result in 
civil and criminal sanctions against responsible persons. The DoD 
Component that originated the FOUO information shall be informed of its 
unauthorized disclosure.