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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 [wais.access.gpo.gov] [DOCID:fr27oc06-17] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Office of the Secretary [DOD-2006-OS-0106] 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 http://www.dtic.mil/whs/directives/corres/pdf/52001r_0197/p52001r.pdf . [Copy of Appendix 3: http://cryptome.org/p52001r-ap3.pdf (50KB)] --------------------------------------------------------------------------- List of Subjects in 32 CFR Part 286 Freedom of information. PART 286--DOD FREEDOM OF INFORMATION ACT PROGRAM REGULATIONS 0 Accordingly, by the authority of 10 U.S.C. 301, 32 CFR part 286 is amended as follows: [[Page 62941]] 0 1. The authority citation for 32 CFR part 286 continues to read as follows: Authority: 5 U.S.C. 552. 0 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] BILLING CODE 5001-06-M ----------------------------------------------------------------------- [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 CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE (CONTINUED) PART 286_DOD FREEDOM OF INFORMATION ACT PROGRAM REGULATION--Table of Contents 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 Intelligence). (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 release. (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 EXEMPT FROM MANDATORY DISCLOSURE 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 disposal. (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.-----------------------------------------------------------------------