32 CFR 1285.3 - Definitions.

§ 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 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, 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.
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