[Code of Federal Regulations]
[Title 32, Volume 6]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR1285.3]

[Page 278-280]
 
                        TITLE 32-NATIONAL DEFENSE
 
                  CHAPTER XII--DEFENSE LOGISTICS AGENCY
 
PART 1285_DEFENSE LOGISTICS AGENCY FREEDOM OF INFORMATION ACT PROGRAM
--Table of Contents
 
Sec. 1285.3  Definitions.

    The following terms and meanings shall be applicable:
    (a) ``(a)(1) material''. Material described in 5 U.S.C. 552(a)(1) 
consisting of descriptions of central and field organizations and, to 
the extent that they affect the public, rules of procedures, 
descriptions of forms available, instruction as to the scope and 
contents of papers, reports, or examinations, and any amendment, 
revision, or report of the aforementioned.
    (b) ``(a)(2) material''. Material described in 5 U.S.C. 552(a)(2) 
encompassing:
    (1) Final opinions, including concurring and dissenting opinions, 
and orders made in the adjudication of cases, as defined in 5 U.S.C. 
551, that may be cited, used, or relied upon as precedents in future 
adjudications.
    (2) Statements of policy and interpretations that have been adopted 
by the agency and are not published in the Federal Register.
    (3) Administrative staff manuals and instructions, or portions 
thereof, that establish DLA policy or interpretations of policy that 
affect a member of the public. This provision does not apply to 
instructions for employees on tactics and techniques to be used in 
performing their duties or to instructions relating only to the internal 
management of the DLA activities. Examples of manuals and instructions 
not normally made available include but are not limited to the 
following:
    (i) Those issued for audit, investigation, and inspection purposes 
or those that prescribe operational tactics, standards of performance, 
or criteria for defense, prosecution, or settlement of cases.
    (ii) Operations and maintenance manuals and technical information 
concerning munitions, equipment, systems, and foreign intelligence 
operations.
    (c) Administrative appeal. A request made under the FOIA by a member 
of the general public asking the appellate authority to reverse an 
initial denial authority's decision to withhold all or part of a 
requested record, to review a ``no record found'' determination, to 
reverse a decision to deny a request for waiver or reduction of fees, or 
to review a category determination for fee assessment purposes.
    (d) Agency record. (1) The products of data compilation, such as all 
books, papers, maps and photographs, machine readable materials, or 
other documentary materials, regardless of physical form or 
characteristics, made or received by an agency of the United

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States Government under Federal law in connection with the transaction 
of public business and in DLA's possession and control at the time the 
FOIA request is made.
    (2) The following are not included within the definition of the word 
``record'':
    (i) Objects or articles, such as structures, furniture, vehicles and 
equipment, whatever their historical value or value as evidence.
    (ii) Administrative tools by which records are created, stored, and 
retrieved, if not created or used as sources of information about 
organizations, policies, functions, decisions, or procedures of a DLA 
activity. Normally, computer software, including source code, object 
code, and listings of source and object codes, regardless of medium, are 
not agency records. (This does not include the underlying data which is 
processed and produced by such software and which may in some instances 
be stored with the software.) Exceptions to this position are outlined 
in paragraph (d)(3) of this section.
    (iii) Anything that is not a tangible or documentary record, such as 
an individual's memory or oral communication.
    (iv) Personal records of an individual not subject to agency 
creation or retention requirements, created and maintained primarily for 
the convenience of an agency employee and not distributed to other 
agency employees for their official use.
    (v) Information stored within a computer for which there is no 
existing computer program for retrieval of the requested information.
    (3) In some instances, computer software may have to be treated as 
an agency record and processed under the FOIA. These situations are rare 
and shall be treated on a case-by-case basis. Examples of when computer 
software may have to be treated as an agency record are:
    (i) When the data is embedded within the software and cannot be 
extracted without the software. In this situation, both the data and the 
software must be reviewed for release or denial under the FOIA.
    (ii) Where the software itself reveals information about 
organizations, policies, functions, decisions, or procedures of a DLA 
activity, such as computer models used to forecast budget outlays, 
calculate retirement system costs, or optimization models on travel 
costs.
    (iii) See part 286, subpart C, of this title for guidance on release 
determinations of computer software.
    (4) A record must exist and be in the possession and control of DLA 
at the time of the request to be considered subject to this rule and the 
FOIA. There is no obligation to create, compile, or obtain a record to 
satisfy an FOIA request.
    (5) If unaltered publications and processed documents, such as 
regulations, manuals, maps, charts, and related geophysical materials 
are available to the public through an established distribution system 
with or without charge, the provisions of 5 U.S.C. 552(a)(3) normally do 
not apply, and requests for such need not be processed under the FOIA. 
Normally, documents disclosed to the public by publication in the 
Federal Register also require no processing under the FOIA. In such 
cases, DLA activities should direct the requester to the appropriate 
source to obtain the record.
    (e) Appellate authority. The Director, DLA, or his designee, except 
for fee waivers and category determinations. The appellate authority for 
such appeals is the Staff Director, Office of Administration, HQ DLA.
    (f) DLA activity. An element of DLA authorized to receive and act 
independently on FOIA requests. A DLA activity has its own FOIA manager, 
initial denial authority, and office of counsel.
    (g) Electronic data. Those records and information which are 
created, stored, and retrievable by electronic means. This does not 
include computer software, which is the tool by which to create, store, 
or retrieve electronic data. See paragraphs (d)(2)(ii) and (d)(3) of 
this section for a discussion of computer software.
    (h) FOIA request. A written request for records made by any person, 
including a member of the public (U.S. or foreign citizen), an 
organization, or a business, but not including a Federal agency or a 
fugitive from the law, that either explicitly or implicitly invokes the 
FOIA, DoD 5400.7-R, DLAR 5400.14,

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this rule, or DLA activity supplementing regulations or instructions.
    (i) Initial denial authority (IDA). An official who has been granted 
authority by the Director, DLA, to withhold records requested under the 
FOIA for one or more of the nine categories of records exempt from 
mandatory disclosure or to issue a ``no record'' determination. These 
include the Directors (or equivalent) of HQ DLA Primary Staff Elements 
(PSE's) and the Commanders (or equivalent) of PLFA's. For fee waiver and 
requester category determinations, the initial denial authority is the 
FOIA manager or head of the FOIA unit.
    (j) Public interest disclosures. Those disclosures which shed light 
on DLA performance of its statutory duties and thus inform citizens 
about what their government is doing. The ``public interest'', however, 
is not fostered by disclosure of information about private citizens that 
is accumulated in various governmental files that reveals little or 
nothing about an agency's or official's own conduct. The public interest 
is one of several factors considered in determining if a fee waiver is 
appropriate (see part 286, subpart F, of this title).
    (k) Releasing official. Any individual with sufficient knowledge of 
a requested record or program to allow him or her to determine if harm 
would come through release. Releasing officials are at all levels and 
may be selected to review a particular document because of their 
expertise in the subject area. The level must be high enough to make 
sure that releases are made according to the policies outlined here. The 
authority to release records of a routine nature, such as fact sheets or 
local directories, may be delegated to any individual at the discretion 
of the denial authority. In doubtful cases, releasing officials may 
consult with the FOIA staff or servicing counsel prior to release.