(a) Responsibilities. The DoD Component receiving a FOIA request for a record that it maintains is responsible for making a determination on the request and responding to the FOIA requester. In determining which records are responsive to a request, a DoD Component ordinarily will include only records in its possession as of the date that it begins its search. If any other date is used, the DoD Component shall inform the requester of that date. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), is not considered responsive to a request.
(b) Authority to deny requests. DoD Components will designate one or more Initial Denial Authorities (IDA) with the authority to deny any requests for records that are maintained by that agency.
(c) Re-routing of misdirected requests. DoD Components receiving a misdirected FOIA request for records clearly originating with another DoD Component (e.g. the Air Force receives a FOIA request for a Navy contract) will route the FOIA request to the appropriate DoD Component and inform them of the date the FOIA request was initially received. Additionally, it will advise the FOIA requester of the routing of the request. This routing requirement only applies to those FOIA requests directed to a DoD Component that seek documents for which the DoD is responsible. If it is known that responsibility for the requested records rests with a non-DoD Federal agency (e.g., Department of State), then the DoD Component need only advise the FOIA requester to submit the FOIA request to the proper Federal agency. DoD Components will not route misdirected FOIA requests to a Defense Criminal Investigation Organization or Intelligence Community component without first contacting the other component or agency for guidance.
(d) Consultation, referral, and coordination. When reviewing records located in response to a request, the DoD Component may determine that another DoD Component or Federal agency also should determine whether the record is exempt from disclosure under the FOIA. As to any such record, the DoD Component shall proceed in one of the following ways:
(1) Consultation. When records originating with a DoD Component that is initially processing a request contain information of interest to another DoD Component or other Federal agency, the DoD Component initially processing the request should typically consult with all interested DoD Components or other Federal agencies prior to making a release determination. The DoD Component initially processing the request, under these circumstances, will ultimately respond to the requester and release any responsive material. The consulted DoD Component will notify the sending DoD Component or other Federal agency when the consultation is received and the consultation tracking number.
(2) Referral.
(i) When the DoD Component initially processing the request believes that a different DoD Component or other Federal agency is best able to determine whether to disclose the record, the DoD Component typically should refer the responsibility for responding to the request regarding that record to that agency. Ordinarily, the agency that originated the record will be presumed to be best able to make the disclosure determination. Under these circumstances, the DoD Component or other Federal agency receiving the referral will ultimately make a release determination on the records and respond to the requester.
(ii) Whenever a DoD Component refers a record to another DoD Component or Federal agency, it will document the referral, refer a copy of the referred record, and notify the requester of the referral, informing the requester of the name and FOIA address of the DoD Component or Federal agency to which the record was referred.
(3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the DoD Component or agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. Under these circumstances, the consultation process is the appropriate means for coordination. See § 286.7(d)(1). For example, if a non-law enforcement agency responding to a request for records on a living third party locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if a DoD Component locates within its files material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the DoD Component that received the request should coordinate with the originating DoD Component or agency to seek its views the disclosure of the record. The release determination for the record should then be conveyed to the requester by the DoD Component that originally received the request.
(4) Timing of responses to consultations and referrals. All consultations and referrals received by the DoD Component will be processed according to the date that the FOIA request was initially received by a Federal agency.
(5) Agreements regarding consultations and referrals. DoD Components may establish written agreements with other DoD Components or other Federal agencies to eliminate the need for consultations or referrals with respect to particular types of records, providing these agreements do not conflict with this rule, or another law, rule, or regulation.
[82 FR 1197, Jan. 5, 2017, as amended at 83 FR 5197, Feb. 6, 2018]