This file is available on a Cryptome DVD offered by Cryptome. Donate $25 for a DVD of the Cryptome 10-year archives of 35,000 files from June 1996 to June 2006 (~3.5 GB). Click Paypal or mail check/MO made out to John Young, 251 West 89th Street, New York, NY 10024. Archives include all files of cryptome.org, cryptome2.org, jya.com, cartome.org, eyeball-series.org and iraq-kill-maim.org. Cryptome offers with the Cryptome DVD an INSCOM DVD of about 18,000 pages of counter-intelligence dossiers declassified by the US Army Information and Security Command, dating from 1945 to 1985. No additional contribution required -- $25 for both. The DVDs will be sent anywhere worldwide without extra cost.


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]                         



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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.



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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.

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    \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)]



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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



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[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.

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

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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.

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

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

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    (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.







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