[Code of Federal Regulations]
[Title 32, Volume 6]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR806.29]

[Page 26-32]
 
                        TITLE 32-NATIONAL DEFENSE
 
                CHAPTER VII--DEPARTMENT OF THE AIR FORCE
 
PART 806--AIR FORCE FREEDOM OF INFORMATION ACT PROGRAM--Table of Contents
 
Sec. 806.29  Administrative processing of Air Force FOIA requests.

    (a) This section is a checklist format of processing steps and 
explanations of Air Force and DoD guidance. Each MAJCOM may elect to 
prepare its own checklists to tailor FOIA processing actions within its 
own organizations to meet their specific needs, so long as it remains 
consistent with guidance contained in DoD 5400.7-R, DoD Freedom of 
Information Act Program, and this part.
    (b) Procedures: FOIA requests.
    (1) Note the date the request was received, give the request a 
unique identifier/number, and log the request.
    (2) Assess the request to determine initial processing requirements:
    (3) Determine what Air Force elements may hold responsive records.
    (i) Are responsive records kept at the same or different 
installations?
    (ii) Is referral of (all/part) of the request required?
    (4) Determine appropriate processing track (simple/complex/
expedited). (Air Force FOIA offices without backlogs do not multitrack 
FOIA requests.)

    Note: Requesters have a right to appeal an adverse tracking decision 
(for example, when it is determined their request will not be 
expedited). Also, if their request qualifies for the complex track, tell 
requesters so they may limit the scope of their request in order to 
qualify for the simple track. FOIA managers must assess a request before 
placing it into a specific processing track, and must support their 
actions should the requester appeal. If a request is determined to be 
complex, or is not expedited when the requester sought expedited 
processing, you must advise the requester of the adverse tracking 
decision in writing. See Sec. 806.27 for sample language for this kind 
of letter to a requester.

    (i) Simple. Defines a request that can be processed quickly, with 
limited impact on the responding units. The request clearly identifies 
the records, involves no (or few) complicating factors (e.g., there are 
few or no responsive records, involves only one installation and there 
are no outside OPRs, involves no classified records (Exemption 1), a law 
exempts the responsive records from disclosure (Exemption 3), no 
contractor-submitted records (Exemption 4), no deliberative process/
privileged materials (Exemption 5), records contain no (or limited) 
personal privacy information/did not come from Privacy Act systems of 
records concerning other individuals (Exemption 6), release of records 
would have minimal impact on law enforcement (Exemption 7); no time 
extensions expected, other than the additional 10-workdays allowed in 
situations outlined in the FOIA). If the requested data must come from 
electronic records, response can be completed on a ``business-as-usual'' 
basis; requires no (or limited) reprogramming of automated information 
systems and would cause no significant interference with operation of 
information systems by processing a simple request/providing a

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response in the electronic format requested.
    (ii) Complex. Defines a request whose processing will take 
substantial time, will cause significant impact on responding units. 
Complications and delays are likely (e.g., the request is vague (poor 
description of records, unclear who or when records were created), 
records are massive in volume, multiple organizations will receive 
tasking, records are classified (Exemption 1), records came from another 
command/service/a nongovernment source (Exemption 4), records are part 
of the Air Force's decision-making process, and not incorporated into a 
final decision (IG/audit reports, legal opinions, misconduct or mishap 
investigations etc.) or are attorney-client records (Exemption 5), 
records are largely personal information on another individual or came 
from Privacy Act systems of records (Exemption 6), records describe law 
enforcement activities or information from (and/or identities of) 
confidential sources (Exemption 7); response cannot be completed on a 
``business as usual'' basis and would require extensive reprogramming or 
cause significant interference with operation of the automated 
information systems. (Advise requester, in writing, of right to limit 
the scope of their request in order to qualify for simple track.)
    (iii) An expedited request is when a requester asks for expedited 
processing and explains the compelling need (imminent threat to life or 
physical safety; urgently needed by a person primarily engaged in 
disseminating information; due process; or humanitarian need) for the 
requested information. In order to receive expedited processing, 
requesters must provide a statement certifying their ``demonstration'' 
(description) of their specific ``compelling need'' or due process/
humanitarian need is true and correct to the best of their knowledge. 
When a requester seeks expedited processing, FOIA offices must respond 
in writing to the requester within 10 calendar days after receipt of the 
request approving or denying their request for expedited processing. 
Requesters have a right to appeal an adverse decision (e.g., when it is 
determined their requests will not be expedited). There are four 
categories of FOIA requests that qualify for expedited processing:
    (A) The requester asserts a ``compelling need'' for the records, 
because a failure to obtain records quickly could reasonably be expected 
to pose an imminent threat to the life or physical safety of an 
individual.
    (B) The requester asserts a ``compelling need'' for the records, 
because the information is ``urgently needed'' by an individual engaged 
in disseminating information to inform the public (primarily news media 
requesters; and could also include other persons with the ability to 
disseminate information).

    Note: ``Urgently needed,'' in this case, means the information has a 
particular value that will be lost if it is not disseminated quickly. 
This normally would apply to a breaking news story of general public 
interest. Information of historical interest only, or sought for 
litigation or commercial activities would not qualify, nor would the 
fact a news media entity had an internal broadcast deadline of its own, 
which was unrelated to the ``news breaking nature'' of the information 
itself, cause the requested information to qualify as ``urgently 
needed.''

    (C) Failure to obtain records quickly could cause imminent loss of 
substantial due process rights or providing the information quickly 
would serve a ``humanitarian need'' (i.e., disclosing the information 
will promote the welfare and interests of mankind). While FOIA requests 
falling into these third and fourth categories can qualify for expedited 
processing, process them in the expedited track behind the requests 
qualifying for expedited processing based on ``compelling need'' (the 
first two types of expedited FOIA requests).
    (5) Determine fee category of requester (commercial/educational---
noncommercial scientific institution--news media/all others) and assess 
fee issues. When all assessable costs are $15.00 or less, waive fees 
automatically for all categories of requesters. Assess other fee waiver 
or reduction requests on a case-by-case basis.
    (6) Apply fee waiver/fee reduction criteria in appropriate cases 
(when requester asks for fee waiver/reduction).
    (7) Find the responsive Air Force records (if any).

[[Page 28]]

    (i) Send the request to the appropriate OPRs to search for 
responsive records and to decide whether to recommend release of any 
responsive records. Include a DD Form 2086, Record of Freedom of 
Information (FOI), or a DD Form 2086-1, Record of Freedom of Information 
(FOI) Processing Cost for Technical Data, in each request. The OPR must 
complete and return the appropriate forms and statements to the FOIA 
office.
    (ii) If the OPRs find no responsive records, or if the OPRs desire 
to withhold any responsive records from release to the requester, the 
OPRs must provide a written certificate detailing either their 
unsuccessful search, or their reasons why the documents should be 
withheld from release under the FOIA; the written OPR statements must 
accompany the copies of the records the OPR desires to withhold as the 
FOIA action is processed (e.g., include it in any denial or appeal 
file).

    Note: If any part of a FOIA request is denied, and the requester 
appeals that denial, include all forms, certificates and documents 
prepared by the OPRs in the FOIA appeal package required in paragraph 
(d)(5) of this section.

    (c) Contacts with FOIA requesters and non-Air Force submitters of 
data.
    (1) Contacts with Air Force elements. A FOIA request is considered 
``received'' (and therefore ready to process) when the FOIA office 
responsible for processing the request physically receives it, when the 
requester states a willingness to pay fees set for the appropriate fee 
category, or, if applicable, when the requester has paid any past FOIA 
debts and has reasonably described the requested records. Keep hard/
paper copies of all memoranda documenting requester contacts with Air 
Force elements regarding a pending FOIA request in the requester's FOIA 
file. If the requester contacts Air Force elements telephonically about 
a pending FOIA request, the Air Force member participating in the 
conversation must prepare notes or memorandums for record (MFR), and 
keep those notes or MFRs in the requester's FOIA file. If any part of a 
FOIA request is denied, and the requester appeals that denial, submit 
documentation of requester contacts with Air Force elements in 
chronological order in the FOIA appeal package (see paragraph (d)(1) of 
this section).
    (2) Contacts with the FOIA Requester. See Sec. 806.27 for samples of 
language to use in various types of Air Force FOIA letters. If any part 
of a FOIA request is denied, and the requester appeals that denial, 
submit documents sent by Air Force elements to the requester in the FOIA 
appeal package in chronological order (see paragraph (d)(5) of this 
section). Letters that Air Force FOIA offices may need to send to a FOIA 
requester include:
    (i) An initial notification letter that the FOIA request was 
received. This letter may advise the requester that processing of the 
FOIA request may be delayed because:
    (A) All or part of the requested records are not located at the 
installation processing the FOIA request (see Sec. 806.29(c)(2)(ii)).
    (B) An enormous number of records must be collected and reviewed.
    (C) Other Air Force activities or other agencies, to include (if 
applicable) the nongovernment submitter of information, need to be 
involved in deciding whether or not to release the records.
    (D) If you cannot complete processing of a FOIA request within 20 
workdays, advise the requester of the reasons for the delay and give a 
date (within 30 workdays after receiving the request) when the requester 
can expect a final decision.
    (ii) The initial notification letter may advise the requester all/
part of the request was referred to another Air Force element or 
government activity.
    (iii) The initial notification letter may advise the requester of 
the appropriate fee category. In cases where fees are appropriate, and 
requesters have not agreed to pay for responsive records and fees are 
likely to be more than $15.00, seek assurances that the requester agrees 
to pay appropriate fees. If more information is needed to make a fee 
category determination, or to determine whether fees should be waived/
reduced, inform the requester. FOIA offices may determine fee waiver/
reduction requests before processing a FOIA request; if a fee waiver/
reduction

[[Page 29]]

request is denied, the requester may appeal that denial; he/she may also 
appeal an adverse fee category determination (e.g., asked for news media 
fees, but was assessed commercial fees.)
    (iv) The initial notification letter may advise the requester the 
request does not sufficiently describe the desired records. If possible, 
help the requester identify the requested records by explaining what 
kind of information would make searching for responsive records easier.
    (v) If Air Force elements can complete a FOIA request within the 
statutory 20-workday processing period, you may elect to send only a 
single letter to the requester, along with responsive records that are 
released to the requester in full.
    (vi) A letter to the requester that the responding FOIA office uses 
multitrack processing due to a significant number of pending requests 
that prevents a response determination from being made within 20 
workdays. This letter advises the FOIA requester that track the request 
is in (simple/complex); in this letter, if expedited processing was 
requested, the requester is advised if the request will be expedited or 
not. If the request is found to be complex, you must advise the 
requester he/she may alter the FOIA request to simplify processing. If 
it is determined the request will not be expedited, the requester must 
be told he/she can appeal. (This may be the initial letter to the 
requester, for Air Force elements with multitrack processing; if that is 
the case, this letter may include sections discussed in 
Sec. 806.29(c)(2)(i)).
    (vii) Subsequent letters to the requester on various subjects (for 
example, releasing requested records; advising reasons for delays; 
responding to the letters, facsimiles or calls; advising the requester 
of referrals to other Air Force units or government activities; involves 
a non-Air Force submitter, etc.).
    (viii) A release letter to the requester, forwarding releasable 
responsive records with a bill (if appropriate).
    (ix) A ``no records'' response letter to the requester if there are 
no responsive records, or, a denial letter, if any responsive records 
are withheld from release. FOIA managers may sign ``no records'' or 
``requested format not available'' responses; they may also sign a 
letter that advises a requester the fee category sought was not 
determined to be appropriate, or that a fee waiver/fee reduction request 
was disapproved, or that a request for expedited processing has been 
denied. An IDA must sign any letter or document withholding responsive 
records. When denying records, you must tell the requester, in writing: 
the name and title or position of the official who made the denial 
determination, the basis for the denial in enough detail to permit the 
requester to make a decision concerning appeal, and the FOIA exemptions 
on which the denial is based. The denial letter must include a brief 
statement describing what the exemptions cover. When the initial denial 
is based (in whole or in part) on a security classification, this 
explanation should include a summary of the applicable executive order 
criteria for classification, as well as an explanation of how those 
criteria apply to the particular record in question. Estimate the volume 
of the records denied and provide this estimate to the requester, unless 
providing such an estimate would harm an interest protected by an 
exemption of the FOIA. This estimate should be in number of pages or, 
for records in other media, in some other reasonable form of estimation, 
unless the volume is otherwise indicated through deletions on records 
disclosed in part. Indicate the size and location of the redactions on 
the records released. You must also tell the requester how he/she can 
appeal the denial.
    (3) Contacts with non-Air Force submitters of data. Before releasing 
data (information or records) submitted from outside the Air Force, 
determine whether you need to write to the submitter of the data for 
their views on releasability of their data. In many cases, this non-Air 
Force data may fall under FOIA Exemption 4. If it appears you must 
contact the submitter of the data, advise the requester in writing that 
you must give the submitter of the data the opportunity to comment 
before the Air Force decides whether to release the information. Give 
the submitter a reasonable period of time (30

[[Page 30]]

calendar days) to object to release and provide justification for 
withholding the documents. If the submitter does not respond, advise the 
submitter in writing that you have not received a reply and plan to 
release the records. Provide the submitter with the reasons the Air 
Force will release the records, and give the submitter your expected 
release date (at least 2 weeks from the date of your letter). This 
permits the submitter time to seek a temporary restraining order (TRO) 
in federal court, if they can convince the judge to issue such an order. 
See Sec. 806.27 for samples of language to use in Air Force letters to 
both the FOIA requester and nongovernment submitters. Remember to 
include a copy of Sec. 806.31 as an attachment to the letter sent to the 
nongovernment submitter.
    (i) The notice requirements of this section need not be followed if 
the Air Force determines that the information should not be disclosed, 
the information has been lawfully published or officially made available 
to the public, or disclosure of the information is required by law.
    (ii) If the submitter objects to release of the records, but the Air 
Force disclosure authority considers the records releasable, tell the 
submitter before releasing the data. Include in the letter to the 
submitter a brief explanation and a specific release date at least 2 
weeks from the date of the letter. Advise the submitter once a 
determination is made that release of the data is required under the 
FOIA, failure to oppose the proposed release will lead to release of 
submitted data. Also advise the requester such a release under the FOIA 
will result in the released information entering the public domain, and 
that subsequent requests for the same information will be answered 
without any formal coordination between the Air Force and the submitter, 
unless the information is later amended, changed, or modified. A person 
equal to, or higher in rank than, the denial authority makes the final 
decision to disclose responsive records over the submitter's objection.
    (iii) When a previously released contract document has been 
modified, any contract documents not in existence at the time of an 
earlier FOIA request that are responsive to a later FOIA request for the 
same contract, will be processed as a first-time FOIA request for those 
newly created documents. Notify the nongovernment submitter of the 
pending FOIA action, and give them the same opportunity to respond as is 
detailed above. Passage of a significant period of time since the prior 
FOIA release can also require Air Force elements to comply with the 
notice requirements in this paragraph.
    (d) Denying all or part of a request. When responsive records are 
withheld from release (denied), the appropriate offices must prepare a 
denial package for the IDA. Air Force elements must send the request, 
related documents, and responsive records through their IDA's FOIA 
office to the IDA for a decision. The denial package must include:
    (1) The FOIA request and any modifications by the requester.
    (2) A copy of the responsive records, including both records that 
may be released and records recommended for denial.
    (3) Written recommendations from the OPRs and an Air Force attorney.
    (4) The exemptions cited and a discussion of how the records qualify 
for withholding under the FOIA. This discussion should also include the 
reasons for denial: to deny release of responsive records requested 
under the FOIA, you must determine that disclosure of the records would 
result in a foreseeable harm to an interest protected by a FOIA 
exemption (or exemptions), that the record is exempt from release under 
one or more of the exemptions of the FOIA, and that a discretionary 
release is not appropriate.
    (5) Any collateral documents that relate to the requested records. 
For example:
    (i) If the requested records came from a non-Air Force or non-U.S. 
Federal Government submitter, include any documents from the submitter 
that relate to the release or denial of the requested records. If you 
are not sure whether or not the non-Air Force or non-U.S. Federal 
Government submitted information is potentially exempt from release 
under the FOIA, contact an Air Force attorney. FOIA Exemptions 3, 4, 5, 
6, and 7 may apply.

[[Page 31]]

    (ii) If the requested records came from Privacy Act systems of 
records, include a written discussion of any Privacy Act issues.
    (iii) If any requested records came from another Air Force element, 
or release of the requested records would affect another Air Force 
element, FOIA offices should coordinate with that other element. If the 
FOIA request is not completely referred to the other element, include 
documents from that element.
    (iv) If any requested records are classified, include a written 
certification from a classification authority or declassification 
authority stating the data was properly classified originally, that it 
remains properly classified (per E.O. 12958), and, if applicable, that 
no reasonably segregable portions can be released.
    (e) FOIA appeal actions.
    (1) If an IDA, or a FOIA office responding on behalf of an IDA, 
withholds a record from release because they determine the record is 
exempt under one or more of the exemptions to the FOIA, the requester 
may appeal that decision, in writing, to the Secretary of the Air Force. 
The appeal should be accompanied by a copy of the denial letter. FOIA 
appeals should be postmarked within 60 calendar days after the date of 
the denial letter, and should contain the reasons the requester 
disagrees with the initial denial. Late appeals may be rejected, either 
by the element initially processing the FOIA appeal, or by subsequent 
denial authorities, if the requester does not provide adequate 
justification for the delay. Appeal procedures also apply to the denial 
of a fee category claim by a requester, denial of a request for waiver 
or reduction of fees, disputes regarding fee estimates, review on an 
expedited basis of a determination not to grant expedited access to 
agency records, and for ``no record'' or ``requested format not 
available'' determinations when the requester considers such responses 
adverse in nature.
    (2) Coordinate appeals with an Air Force attorney (and the OPR, if 
appropriate) so they can consider factual and legal arguments raised in 
the appeal, and can prepare written assessments of issues raised in the 
appeal to assist the IDA in considering the appeal. MAJCOM FOIA offices 
and 11 CS/SCSR (for OPRs at HQ USAF and SAF), send all appeals to the 
Secretary of the Air Force through AFLSA/JACL for consideration, unless 
the IDA has reconsidered the initial denial action, and granted the 
appeal.
    (3) If a requester appeals a ``no records'' determination, 
organizations must search again or verify the adequacy of their first 
search (for example, if a second search would be fruitless, the 
organization may include a signed statement from either the records OPR 
or the MAJCOM FOIA manager detailing why another search was not 
practical). The appeal package must include documents (to include a 
certification from the records OPR) that show how the organization tried 
to find responsive records. In the event a requester sues the Air Force 
to contest a determination that no responsive records exist, formal 
affidavits will be required to support the adequacy of any searches 
conducted.
    (4) General administrative matters. FOIA requesters may ultimately 
sue the Air Force in federal court if they are dissatisfied with adverse 
determinations. In these suits, the contents of the administrative 
appeal file are evaluated to determine whether the Air Force complied 
with the FOIA and its own guidance. Improper or inadequate appeal files 
make defending these cases problematic. Include all the documents 
related to the requester's FOIA action in the appeal file. If appeal 
file documents are sensitive, or are classified up to the SECRET level, 
send them separately to AFLSA/JACL, 1501 Wilson Boulevard, 7th Floor, 
Arlington, VA 22209-2403. Make separate arrangements with AFLSA/JACL for 
processing classified appeal file documents TOP SECRET or higher. Cover 
letters on appeal packages need to list all attachments. If a FOIA 
action is complicated, a chronology of events helps reviewers understand 
what happened in the course of the request and appeal. If an appeal file 
does not include documentation described below, include a blank sheet in 
proper place and mark as ``not applicable,'' ``N/A,'' or ``not used.'' 
Do not renumber and

[[Page 32]]

move the other items up. If any part of the requester's appeal is 
denied, the appeal package must include a signed statement by the IDA, 
demonstrating the IDA considered and rejected the requester's arguments, 
and the basis for that decision. This may be a separate memorandum, an 
endorsement on a legal opinion or OPR opinion, or the cover letter which 
forwards the appeal for final determination. Include in the cover letter 
forwarding the appeal to the Secretary of the Air Force the name, phone 
number and e-mail address (if any) of the person to contact about the 
appeal. The order and contents of appeal file attachments follow.
    (i) The original appeal letter and envelope.
    (ii) The initial FOIA request, any modifications of the request by 
the requester or any other communications from the requester, in 
chronological order.
    (iii) The denial letter.
    (iv) Copies of all records already released. (An index of released 
documents may be helpful, if there are a number of items. If the records 
released are ``massive'' (which means ``several cubic feet'') and AFLSA/
JACL agrees, an index or description of the records may be provided in 
place of the released records. Do not send appeal files without copies 
of released records without the express agreement of AFLSA/JACL. Usually 
AFLSA/JACL requires all the released records in appeal files. If you do 
not send the released records to AFLSA/JACL when a FOIA requester has 
appealed a partial denial, retain a copy of what was released for 6 
years.)
    (v) Copies of all administrative processing documents, including 
extension letters, search descriptions, and initial OPR recommendations 
about the request, in chronological order.
    (vi) Copies of the denied records or portions marked to show what 
was withheld. If your organization uses a single set of highlighted 
records (to show items redacted from records released to the requester), 
ensure the records are legible and insert a page in the appropriate 
place stating where the records are located. (An index of denied 
documents may be helpful, if there are a number of items. If the records 
denied are ``massive'' (which means ``several cubic feet'') and AFLSA/
JACL agrees, an index or description of the records may be provided in 
place of the denied records. Do not send appeal files without copies of 
denied records without the express agreement of AFLSA/JACL. Usually 
AFLSA/JACL requires all the denied records in appeal files. If you do 
not send the denied records to AFLSA/JACL, when a FOIA requester has 
appealed a denial, retain a copy of what was denied for 6 years.)
    (vii) All legal opinions in chronological order. Include a point-by-
point discussion of factual and legal arguments in the requester's 
appeal (prepared by an Air Force attorney and/or the OPR). If the IDA 
does not state in the cover letter he/she signed, that he/she considered 
and rejected the requester's arguments, asserting the basis for that 
decision (e.g., the IDA concurs in the legal and/or OPR assessments of 
the requester's arguments) include a signed, written statement 
containing the same information from the IDA, either as a separate 
document or an endorsement to a legal or OPR assessment. Include any 
explanation of the decision-making process for intra-agency documents 
denied under the deliberative process privilege and how the denied 
material fits into that process (if applicable).