the prospective witness. An oversea commander may in his discretion, operations of the Department of the Army permitting, authorize the prospective witness to use, in travel outside the United States, military transport or military aircraft on a spaceavailable basis without cost to the District of Columbia.

(3) Witnesses for a State or private litigant.

(i) Status of witness. If authorized to appear as a witness for a State or private litigant, and the testimony to be given relates to information obtained in the performance of his regular, official duties, a military member may attend in a duty status. If authorized to appear as a witness but his testimony does not relate to information obtained in the performance of his regular, official duties, a military member may be granted a pass or administrative absence where appropriate under AR 630-5, or be required to take ordinary leave to attend. However, military members appearing as expert witnesses on behalf of a State or private litigant will be required to take ordinary leave. The status of a civilian employee will be determined in accordance with FPM 630.10-3. See paragraph (1)(i) of this section for status of witnesses in cases of medical care recovery claims under section II, chapter 5, AR 27-40.

(ii) Travel arrangements. Travel arrangements for attendance of military or civilian personnel authorized to appear as witnesses for a State or private litigant normally will be made by the requesting party with the individual concerned. Appropriate orders will be issued by the local commander when necessary.

(iii) Travel expenses. Travel and subsistence expenses of the witness, other than such monetary allowances for subsistence as may normally be furnished to enlisted personnel pursuant to Department of Defense Pay and Allowances Entitlements Manual (DODPM), chapter 1, may not be paid by the United States. They are solely a matter between the witness and the party seeking his appearance. Witnesses ordinarily should be advised to require advance payment of such expenses. Military personnel authorized

to appear in a pass, duty, or administrative absence status are not entitled to receive witness attendance fees, but may accept travel and subsistence expense money from the requesting litigant. All witness fees tendered the military member will be remitted to the Treasurer of the United States. A civilian employee authorized to appear in his official capacity will accept the authorized witness fees, in addition to the allowance for travel and subsistence, and make disposition of the witness fees as instructed by his personnel office (FPM 630.10-3g).

(iv) Space available travel. Space available transportation may be utilized to the continental United States port of debarkation as authorized by paragraph 4-4, DOD 4515.13-R.

(i) Witnesses before foreign tribunals. (1) Requests or subpoenas from a foreign government or tribunal for military personnel and civilian employees stationed or employed within that country to be interviewed or to appear as a witness will be forwarded to the staff judge advocate of the command exercising general courts-martial jurisdiction over the unit to which the individual is assigned, attached, or employed. The staff judge advocate will determine whether

(i) A consideration listed in paragraph (b) of this section applies.

(ii) The information requested is releasable under the criteria of § 516.4.

(iii) The approval of the American Embassy should be obtained because the person is attached to the Embassy staff or a question of diplomatic immunity otherwise may be involved.

(2) If the judge advocate determines that the United States has an interest in the litigation (see § 516.3 (a) (3)), the commander may authorize the interview or order the individual's attendance in a temporary duty status with full entitlement to travel and per diem allowances. The United States will be presumed to have an interest in the litigation if it is bound by treaty or other international agreement to insure the attendance of such personnel.

(3) If the judge advocate determines that the United States does not have an interest in the litigation, the commander may authorize the interview

fense (DoD) Freedom of Information Act Program (§ 518.1 above) in the Army. This Regulation incorporates and amplifies Department of Defense (DoD) Regulation 5400.7-R.

(b) Applicability. This AR applies to

(1) Active Army;

(2) Army National Guard;

(3) US Army Reserve;

(4) Organizations for which Department of Army (DA) is the Executive Agent.

(c) Scope. (1) This Army Regulation (AR) governs written requests that invoke the Freedom of Information Act from sources outside the Department of Army (DA). It does not preclude release of records to agencies or individuals in the federal government for official work or duties. Section 518.14(b) gives procedures for release of personnel information to government agencies outside DoD.

(2) Service members and civilian employees of the DA may, as private citizens, request DA or other agencies' records under the FOIA. They must prepare requests at their own expense and not during duty or working hours. They may not use government equipment or supplies to prepare personal FOIA requests.

(3) Requests for DA records will be denied only on the grounds authorized in this AR, the Defense Acquisition Regulation (DAR), and the Federal Personnel Manual (FPM); limits in other ARs do not automatically apply to FOIA requests. Information about drug or alcohol use of personnel is not covered under this AR; see AR 600-85.

(4) Release of some records may also be affected by the programs which created them. They are discussed in the following regulations:

(i) Inspector General reports-AR 20-1.

(ii) Claims reports-AR 27-20. (iii) Patents, inventions, and copyrights-AR 27-60.

(iv) U.S. Accounting Office auditsAR 36-20.

(v) Litigation: release of information and appearance of witnesses-AR 27-40.

(vi) Medical records-AR 40-2 and AR 40-400.

(vii) Technical reports-AR 70-31.

(viii) Aircraft accident investigations-AR 95-1, AR 95-5, and AR 20-1.

(ix) Criminal investigation activities-AR 195-2.

(x) Military police files-AR 190-45. (xi) Army Public Affairs: Public information, general policies on release of information to the public-AR 3605.

(xii) Foreign nationals, release of information-AR 380-10.

(xiii) U.S. Army Intelligence and Security Command investigation filesAR 381-45.

(xiv) Safety reports and records-AR 385-40.

(xv) Alcohol and drug abuse records-AR 600-85.

(xvi) Military personnel records-AR 640-10.

(xvii) Civilian personnel recordsCPRS 296-31, 700, and 752-1; FPM chapters 293, 294, and 339; and AR 230-2.

(xviii) National Security classified information-DOD 5200.1-R and AR

380-5.

(xix) Procurement matters-Defense Acquisition Regulation (DAR) and the Army Defense Acquisition Regulation Supplement (ADAR).

(xx) Policies and procedures for allowing persons outside the Executive Branch to do unofficial historical research in classified Army recordsparagraph 7-105e, AR 380-5.

§ 518.2 Department of Defense (DoD) public information.

(a) Public information. The public has a right to information concerning the activities of its government. DoD policy is to conduct its activities in an open manner and provide the public with a maximum amount of accurate and timely information concerning its activities, consistent always with the legitimate public and private interests of the American people. A DoD record requested by a member of the public who follows rules established by proper authority in the Department of Defense shall be withheld only when it is exempt from mandatory public disclosure under the FOIA. In the event a requested record is exempt under the FOIA, it may nonetheless be released when it is determined that

no governmental interest will be jeopardized by the release of the record. In order that the public may have timely information concerning DoD activities, records requested through public information channels by news media representatives that would not be withheld if requested under the FOIA should be released upon request. Prompt responses to requests for information from news media representatives should be encouraged to eliminate the need for these requesters to invoke the provisions of the FOIA and thereby assist in providing timely information to the public. Similarly, requests from other members of the public for information should continue to be honored through appropriate means even though the request does not qualify under FOIA requirements.

(b) Control System. (1) A request for records that invokes the Freedom of Information Act (FOIA) shall enter a formal control system designed to ensure compliance with the FOIA. A release determination must be made and the requester informed within the time limits specified in this Regulation. Any request for Department of Defense (DoD) records that either explicitly or implicity cites the FOIA shall be processed under the provisions of this Regulation or under the Privacy Act, when the request is from the subject of the records requested. In this case, the records requested must be in a system of records, and be retrieved by reference to the requester's name or other personal identifier.

(2) A Privacy Act request for access to records should also be processed as an FOIA request. If any part of the requested material is to be denied, it must be considered under the substantive provisions of both the Privacy Act and the Freedom of Information Act. Any withholding of information must be justified under an exemption in each Act.

§ 518.3 Definitions.

As used in this Regulation, the following terms and meanings shall be applicable.

(a) FOIA request. A written request for Department of Defense (DoD) records, made by a member of the public, that either explicitly or implic

itly invokes the FOIA, DoD Directive 5400.7, this Regulation, or DoD Component supplementing regulations or instructions. This AR is DA's supplementing regulation.

(b) Agency records. (1) The products of data compilation, regardless of physical form or characteristics, made or received by a DoD Component in connection with the transaction of public business and preserved by a DoD Component primarily as evidence of the organization, policies, functions, decisions, or procedures of the DoD Component.

(2) The following are not included within the definition of the word "record":

(i) Library and museum material made, acquired, and preserved solely for reference or exhibition.

(ii) Objects or articles, such as structures, furniture, paintings, sculpture, three-dimensional models, vehicles and equipment, whatever their historical value, or value as evidence.

(iii) Commercially exploitable resources, including but not limited to, formulae, designs, drawings, maps and charts, map compilation manuscripts and map research materials, research data, computer programs, and technical data packages that were not created and are not utilized as primary sources of information about organizations, policies, functions, decisions, or procedures of a DoD Component.

(iv) Unaltered publications and processed documents, such as regulations, manuals, maps, charts and related geophysical materials, that are available to the public through an established distribution system with or without charges.

(v) Anything that is not a tangible or documentary record, such as, an individual's memory or oral communication.

(vi) Personal notes of an individual not made available to other persons in an agency and not filed with agency records.

Regulation. There is no obligation to create, compile, or obtain a record to satisfy an FOIA request.

(c) DoD component. An element of the Department of Defense, authorized to receive and act independently on FOIA requests. A DoD Component has its own initial denial authority (IDA) or authorities and its own appellate authority. DA is a DoD Component.

(d) Initial denial authority. An official who has been granted authority by the head of a DoD Component to withhold records requested under the FOIA for one or more of the nine categories of records exempt from mandatory disclosures.

(e) Appellate authority. The head of the DoD Component or the Component head's designee having jurisdiction for this purpose over the record. DA's appellate authority is the Office of General Counsel.

(f) Administrative appeal. A request by a member of the general public, made under the FOIA, asking the appellate authority of a DoD Component to reverse an IDA decision to withhold all or part of a request record or to deny a request for waiver or reduction of fees.

(g) Segregable portions. Any reasonable part of a record remaining after information that is exempt from disclosure under the FOIA is deleted.

(h) Law Enforcement Investigation. Investigations made by commands or agencies with law enforcement responsibilities relating to crime, waste, or fraud and for national security reasons. These investigations may include gathering evidence for criminal prosecutions and for civil or regulatory proceedings.

§ 518.4 Policy.

(a) Compliance with the Freedom of Information Act. DoD personnel are expected to comply with the provisions of the FOIA and this Regulation in both letter and spirit. This strict adherence is necessary to provide uniformity in the implementation of the DOD FOIA Program and to create conditions that will promote public trust.

(b) Openness with the public. The Department of Defense shall conduct its activities in an open manner con

sistent with the need for security and adherence to other requirements of law and regulation. Records not specifically exempt from disclosure under the Act shall, upon request, be made readily accessible to the public in accordance with rules promulgated by competent authority, whether or not the Act is invoked.

(1) Operations Security (OPSEC). DA officials who release records under the FOIA must also consider OPSEC. The Army implementing directive is AR 530-1.

Section 518.14 gives the procedure for FOIA personnel and the IDA to follow when an FOIA request appears to involve OPSEC.

(2) DA Form 4948-R (Freedom of Information Act (FOIA)/Operations Security (OPSEC) Desk Top Guide). This form lists references and information frequently used for FOIA requests related to OPSEC. The name and telephone number of the command FOIA/OPSEC advisor will be entered on the form. Persons who routinely deal with the public (by telephone or letter) on such requests should keep the form on their desks as a guide.

NOTE: DA Form 4948-R will be locally reproduced; See figure 1-1.

(c) Avoidance of procedural obstacles. DoD Components shall ensure that procedural matters do not unnecessarily impede a requester from obtaining DoD records promptly. Components shall provide assistance to requesters to help them understand and comply with procedures established by this Regulation and any supplemental regulations published by the DOD Components.

(d) Prompt action on requests. When a member of the public complies with the procedures established in this Regulation for obtaining DoD records, the request shall receive prompt attention; a reply shall be dispatched within 10 working days, unless a delay is authorized. Requests by individuals for access to records about themselves shall be processed under the Privacy Act procedures, as implemented by DODD 5400.11, outlined in this Regulation, provided such records are contained in a system of records and are retrievable

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