5720 Ser N09B10/2U513175

20 May 02

From: Chief of Naval Operations

To: E-Mail Distribution List (FOIA)

Subj: FOIA POLICY ISSUES (CBRN WEAPONS INFORMATION, FOIA FEES,

FOIA RESPONSE LETTERS, UNIT PRICES, FOUO)

Ref: (a) SECNAVINST 5720.42F

Encl: (1) SECDEF Msg, 151629Z May 02, Subj: Action to Safeguard Information Regarding Weapons of Mass Destruction and Sensitive Homeland

Security Information

(2) Federal Register of 9 May 02, pages 31127-28

1. This policy memo is being e-mailed/faxed to you. It will be posted on our web site at foia.navy.mil under Resource Materials. Please ensure your subordinates are promptly made aware of this information.

2. CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND NUCLEAR (CBRN) WEAPONS INFORMATION: The Department of Defense (DoD) has recently issued interim guidance related to the release of CBRN weapons information [see enclosure (1)]. Accordingly, DON components shall process FOIA requests for CBRN weapons information as follows:

a. Total denials of CBRN weapons information can continue to be handled by the appropriate DON initial denial authority (IDA).

b. The DON is required to coordinate all proposed releases (to include partial denials) with the Director, Freedom of Information and Security Review (DFOISR). To facilitate this coordination, DON activities planning to release any information concerning CBRN weapons in response to a FOIA or Mandatory Declassification Review (MDR) request will forward the request, applicable documents, and a proposed response package to CNO (N09B10) along with the name of their IDA (in the case of FOIA requests). This process is not intended to create an avenue for DON activities to dispose of all their FOIA requests concerning CBRN weapons information, but rather a method to ensure CBRN weapons information is not inadvertently released.

c. This policy will remain in effect only until such time as the classification guidelines are completed by the DoD working group. When the classification guidelines are issued, DON activities will be instructed that they are to employ the guidelines and make independent release determinations.

3. FOIA FEES

a. On 9 May 02, DFOISR published a final rule in the Federal Register regarding a change in FOIA search and review fees [see enclosure (2)]. Duplication and technical data fees remain unchanged. The new fee schedule change takes effect on 1 Jul 02, which means that requests received on or after that date will fall under the new FOIA fee schedule. Please note that the new fee schedule allows activities to recoup search and review costs for contractors at $44 per hour [Note: This does not include submitter notice reviews.] With regard to DD Form 2086, it is being redesigned to capture the new fees. This advance notice is provided to enable activities to update any software that tracks fees.

b. It is imperative that DON activities keep an accurate accounting of all FOIA processing fees. While all processing fees are captured for inclusion in the Annual FOIA Report, only certain fees may be charged to a requester. When charging fees to a requester, DON activities shall apprise the requester what "category" he/she has been placed and provide a breakdown of the fees being charged. For example, "You have been placed in the "All Other" category for the purposes of fees. As such, you are entitled to the first 2 hours of search and 100 pages of duplication for free. The costs involved in processing your request total $___, which is based on an additional two hours of search by a _________ at $___ per hour and an additional ___ pages of duplication at 15 cents per page."

c. Do not begin processing a FOIA request until the FOIA fee issue has been resolved. DON activities who process a request without first resolving the FOIA fee issue may find that they have done the work only to have the requester state he/she does not want the product because of the costs involved. Such a practice is self-defeating and time-consuming.

d. DON activities receive numerous requests that seek FOIA fee waivers. Many contain insufficient justification on which to grant a waiver of fees. Rather than denying the request for waiver and apprising the requester of his/her right to appeal, DON activities are encouraged to pick up the phone and discuss the issue with the requester or return the request and provide the requester with guidance from the FOIA handbook at foia.navy.mil or SECNAVINST 5720.42F on what they need to include in the way of justification so that their request for fee waiver may be considered.

e. There are instances where individuals have outstanding FOIA fees that they owe the Government. In such instances, fees must be resolved before processing additional requests. For example, DON activities receiving FOIA requests from Ms. Barbara Schwarz are advised that she owes FOIA fees to the Department of Veterans Affairs. Accordingly, no action need be taken on any of her requests until such time as she provides proof that the bill has been paid.

f. There are individuals who file numerous requests with an agency. Those individuals may be attempting to break their requests down into a series of requests for the sole purpose of avoiding processing fees. In such instances, SECNAVINST 5720.42F allows DON activities to aggregate requests for the purpose of fees. DON activities receiving FOIA requests from

Mr. Glen Milner, a frequent requester, are asked to provide a copy of any current or future requests they receive from Mr. Milner to CNO (N09B10), along with a breakdown of estimated search and reproduction costs. This is being done since many of his requests relate to the same subject matter and we are considering whether aggregation of FOIA processing fees under paragraph 6i of enclosure (3) to SECNAVINST 5720.42F is appropriate. You may fax the information to 202-685-6580/DSN 325-6580 or e-mail it to navyfoia@hq.navy.mil/. Once received and reviewed, I will apprise you if aggregation is appropriate.

g. The fee category of a FOIA requester can change. DON activities are to determine a requester's fee category based on the subject matter of the requested documents and the requester's intended use of the information.

4. FOIA RESPONSE LETTERS

a. Sample FOIA response letters are available on foia.navy.mil under Resource Materials.

b. When responding to a request wherein no records were found, apprise the requester in your response letter where you conducted your search and if possible indicate the lifecycle for these kinds of records as stated in the records disposal instruction (SECNAVINST 5212.5D).

c. Your response letter is your administrative record. Ensure you include references to all correspondence and telephone calls. Also, when claiming an exemption such as exemption (b)(6), apprise the requester of the kinds of information withheld. For example, " Under 5 U.S.C. 552(b)(6), we withheld the social security numbers and home addresses of our employees, since release would constitute a clearly unwarranted invasion of personal privacy."

5. UNIT PRICES. Just a reminder that DON activities shall follow EO 12,600 (a copy is available under Resource Materials at foia.navy.mil) when processing FOIA requests for the release of unit prices. As a result of recent litigation, any decision to release/deny unit prices shall be based on the competitive harm tests established in National Parks and Conservation Assn v. Morton [498 F.2d 765 (D.C. Cir. 1974)], regardless of solicitation release date.

6. FOR OFFICIAL USE ONLY. Please ensure that any unclassified document that contains information that may be protected from disclosure under exemptions (b)(2) through (b)(9) are marked FOR OFFICIAL USE ONLY as prescribed by Chapter 4 of DoD 5400.7-R, DoD Freedom of Information Act. This includes messages, e-mails, letters, memoranda, etc. When the document also contains privacy protected information, recommend it be marked "FOR OFFICIAL USE ONLY - PRIVACY SENSITIVE - Any misuse or unauthorized disclosure may result in both civil and criminal penalties." Such a marking will ensure agency personnel are aware of their responsibilities to ensure the proper protection of information.

DORIS M. LAMA

By direction

(202) 685-6545/DSN 325-6545

Distribution:

SECNAV (SAL)

OGC

JAG (CODE 13)

JAG (CODE 14)

JAG (CODE 15)

OLA

ASN (F&MC)

ASN (I&E)

ASN (M&RA)

ASN (RD&A)

CNO (N00J)

CNO (N09BL)

CNO (N2J)

CNO (N3N5L)

CNO (N45J)

CMC (ARSE)

BCNR

BUMED

CHINFO

CINCLANTFLT

CINCPACFLT

CINCUSNAVEUR

CNATRA

CNET

CNR

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COMNAVCRUITCOM

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COMNAVMETOCCOM

COMNAVPERSCOM

COMNAVREGHI

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COMNAVREGNE

COMNAVREGNW

COMNAVREGSE

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COMNAVRESFOR

COMNAVSAFECEN

COMNAVSEASYSCOM

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COMNAVSPAWARSYSCOM

COMNAVSPECWARCOM

COMOPTEVFOR

COMSUBLANT

COMSUBPAC

COMNAVSURFLANT

COMNAVSURFPAC

COMNAVSUPSYSCOM

COMSCOM

COMUSNAVCENT

NAVAUDITSVC

NAVINSGEN

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NAVNETOPCEN

NAVOBSY

NAVPGSCOL

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NAVSTRKAIRWARCEN

NAVWARCOL

NCIS

NCPB

NDW

NNMC BETHESDA MD

OCHR

ONI

PRESINSURV

SSP

USNA

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