Sec.

701.1 Policies and procedures for making records available to the public.

701.2

701.8

701.4 701.5

Official records in civil court. Production of official records in absence of court order.

Deviations.

Certificates of full faith and credit. AUTHORITY: The provisions of this Part 701 issued under secs. 5031, 6011, 70A Stat. 278, 375, as amended, sec, 301, 80 Stat. 379; 5 U.S.C. 301, 10 U.S.C. 5031, 6011. Interpret or apply sec. 552, 80 Stat. 383, Rule 27 of Federal Rules of Criminal Procedure, Rule 44 of Federal Rules of Civil Procedure; 5 U.S.C. 552, 18 U.S.C. App. Rule 27, 28 U.S.C. App. Rule 44. E.O. 10501, 18 FR. 7049, 3 CFR 1949-1953 Comp. p. 979, as amended; E.O. 10561, 19 F.R. 5963, 3 CFR 1954-1958 Comp. p. 205.

SOURCE: The provisions of this Part 701 appear at 26 FR. 11715, Dec. 7, 1961, unless otherwise noted.

§ 701.1 Policies and procedures for making records available to the public. (a) Purpose. This section implements 5 U.S.C. 552 and DoD Instruction 5400.7 of June 23, 1967 (32 F.R. 9666), and sets forth policies and procedures for making records available to the public.

(1) Records available. It describes the kinds of documentary material or records that:

(i) Must be made available to the public, and procedures to be used in making them available, by (a) publishing them in the FEDERAL REGISTER, (b) providing the opportunity to read and copy them, with current indexes, and (c) providing copies when they are identified adequately.

(ii) Do not need to be made available to the public under the exemptions of 5 U.S.C. 552, and DoD Instruction 5400.7 of June 23, 1967 (32 F.R. 9666), and procedures for identifying them. Except for security classification markings which are used to identify material or records not releasable for reasons of national defense or foreign policy, the term "For Official Use Only" (FOUO) is the only designation, other than distribution statements which may be used to identify material or records not to be released to the general public.

(2) Reviews to preclude unnecessary withholding. It provides for review of refusals to release documentary material or records, to preclude unnecessary or

unauthorized withholding, and for responding to court actions taken to compel release of documentary material or records determined by proper authority to be within the exemptions stated in paragraph (h) of this section and authorized by 5 U.S.C. 552 and DoD Instruction 5400.7 of June 23, 1967 (32 F.R. 9666).

(b) Supersession. Those portions of SECNAVINST 5570.2A of June 6, 1957, Policy governing the custody, use, and preservation of Department of Defense official information which requires protection in the public interest, which are in conflict with this section, are hereby superseded (see paragraph (i) (6) of this section).

(c) Scope and applicability—(1) Intent. This section applies to requests for Department of the Navy records, and access thereto, received from any member of the public. It is not intended to limit release of information to the Congress, or to Federal agencies, or to Federal Government employees whose official duties entitle them to the records or information. Requests from Members of Congress are governed by SECNAVINST 5730.12 (Provisions of Information to Congress), and by section 1-1006.1 of the Armed Services Procurement Regulation (see § 1-1006.1 of this title). The furnishing of information for General Accounting Office audits is governed by SECNAVINST 5741.2D (Relations with the General Accounting Office). Receipt of service of process is governed by DoD Directive 5530.1 (Acceptance of Service of Process (32 F.R. 7019)). National Security Agency official records and information are exempted from the provisions of this section by P.L. 86-36 (50 U.S.C. 402 note).

(2) Other authorities. Directives or other authorities providing more detailed procedures for specific categories of records or information, to the extent consistent with 5 U.S.C. 552 and DoD Instruction 5400.7 of June 23, 1967 (32 F.R. 9666) and this section, include but are not limited to:

(i) Public Affairs Regulation, NAVSO P1035-release to news and other public information media.

(ii) BUPERSINST 1070.12 and Marine Corps Manual, paragraph 1070 (also, for Headquarters, Marine Corps, HQO

P5000.3A, Chapter 30)-release of information from the personnel records of members and former members of the Navy and Marine Corps.

(iii) Federal Personnel Manual, Chapters 293, 294, and 339-release of information from active and inactive civilian personnel records.

(iv) Manual of the Medical Department, U.S. Navy, NAVMED P-117, Chapter 23, section III-release of information from active and inactive medical records.

(v) Armed Services Procurement Regulation (ASPR) 1-329, and Navy Procurement Directives (NPDS)-release of procurement records and information.

(vi) U.S. Navy Regulations, SECNAV INST 5800.7 (JAG Manual) and SEC NAVINST 5602.1A-litigation matters and release and authentication of records to the courts and other government agencies (see § 701.2-5).

(d) Policy (1) General. It is the policy of the Department of the Navy, consistent with 5 U.S.C. 552 and DoD Instruction 5400.7 of June 23, 1967 (32 F.R. 9666), to make available to the public the maximum amount of information concerning its operations and activities. Exemptions to the requirement for disclosure shall be made in accordance with paragraph (h) of this section, and the release procedures prescribed in paragraph (j) of this section.

(2) Availability of exempt information. Information exempt from public disclosure under the provisions of paragraph (h) of this section should be made available to the public when its disclosure is not inconsistent with statutory requirements (see paragraph (h)(3) of this section) or with OPNAVINST 5510.1C, Department of the Navy Security Manual for Classified Information, and when appropriate officials of the Department of the Navy determine that no significant purpose would be served by withholding the information. The determination of whether a significant purpose is served by withholding information under the provisions of paragraph (h) of this section is within the sole discretion of the Department of the Navy.

(3) Withholding information. Records, including all types of documents or related material, may be withheld from the public only as authorized by 5 U.S.C. 552 and DoD Instruction 5400.7 of June 23, 1967 (32 F.R. 9666) and this section. In no event shall the determination that requested information comes within any of the specific exemptions of 5 U.S.C. 552

and DoD Instruction 5400.7 of June 23, 1967 (32 F.R. 9666) or this section, or that the information has not been properly requested, be influenced by the possibility that its release might suggest administrative error or inefficiency, or might embarrass the Department of the Navy or one of its military or civilian officials.

(e) Federal Register publication. Subject to the exemptions set forth in paragraph (h) of this section, a current description of where, how, and by what authority the Department of the Navy performs its functions will be published in the FEDERAL REGISTER for the guidance of the public.

(1) Insuring publication. Responsibilities for insuring publication of this material are assigned to the heads of Navy Department components, commanders of naval systems commands, and the Commander, Military Sea Transportation Service by SECNAVINST 5800.4 which designates the Judge Advocate General of the Navy as this Department's representative regarding FEDERAL REGISTER publication matters. In deciding which information to publish, responsible officials will consider the fundamental objective of informing all interested persons how to deal effectively with the Department of the Navy. They will review information of the type described to ensure that it, together with each change, revision or cancellation, is sent to the Judge Advocate General for publication on an up-to-date basis in the FEDERAL REGISTER.

(2) Information to be published. Subject to the exemptions set forth in paragraph (h) of this section, information published in the FEDERAL REGISTER will include:

(1) Organization, places, and methods. The central and field organization of the Department of the Navy, and the established places at which, the officers from whom, and the methods whereby the public may secure information, make submittals or requests, and obtain decisions.

(ii) Procedures and related rules. The procedures by which the Department of the Navy conducts its business with the public, both formally and informally, including procedural rules which must be followed, descriptions of forms which must be completed or the sources from which they may be obtained, and instructions on the scope and content of any papers, reports, or examinations re

quired to be submitted pursuant to such rules.

(iii) Policy direction. Directives (Navy Instructions and Notices; Marine Corps Orders and Bulletins), regulations, manuals, policy memoranda, statements or interpretations of policies, and other substantive rules of general applicability affecting the public.

(3) Referencing information published elsewhere. With the approval of the Director of the Federal Register, the requirement for publication in the FEDERAL REGISTER (1 CFR, Part 20, June 1, 1967, 32 F.R. 7899) may be satisfied by reference in the FEDERAL REGISTER to other publications readily available to the class of persons affected, and containing the information which must otherwise be published in the FEDERAL REGISTER. In such cases, the following apply:

(i) In order to be eligible for incorporation by reference, the matter must be in the nature of published data, criteria, standards, specifications, techniques, illustrations, or other published information reasonably available to members of the class affected thereby.

(ii) Incorporation by reference is not acceptable as a complete substitute for promulgating, in full text, material required to be published by 5 U.S.C. 552 and DoD Instruction 5400.7 of June 23, 1967 (32 F.R. 9666) and this section.

(iii) Incorporation by reference is acceptable as a means of avoiding unnecessary repetition, within the promulgated document, of published information already reasonably available to the class affected. Examples include:

(a) Construction standards promulgated by a professional association of architects, engineers, or builders.

(b) Codes of ethics promulgated by professional organizations.

(c) Forms and formats publicly or privately published and readily available to the persons required to use them.

(4) Actual and timely notice. No member of the general public can be required to resort to, or be adversely affected by, any matter that is required to be published in the FEDERAL REGISTER, unless the material has been published in the FEDERAL REGISTER, or he has otherwise received actual and timely notice of the contents of that material.

(f) Inspection and copying of opinions, orders, and manuals—(1) Types of information made available. Subject to the exemptions set forth in paragraph (h) of this section, the Department of

the Navy will make available for public inspection and copying the categories of information listed in subdivision (ii) of this subparagraph, unless such materials are published and offered for sale.

(i) Responsibilities. It is the responsibility of Department of the Navy officials who create or issue these materials to ensure their availability to members of the public, by providing copies of any such materials to the appropriate facility specified in subparagraph (2) of this section. The Administrative Officer, Navy Department will establish such additional procedures as are necessary to ensure their availability and provide for the preparation and maintenance of a current index, or indexes, of all such materials.

(ii) Categories. The following will be made available:

(a) All final opinions (including concurring and dissenting opinions) and orders made in adjudications (as defined in 5 U.S.C. 551) that may be used, cited, or relied upon as precedent in future adjudications.

(b) Statements of policy and interpretations of less than general applicability, which affect the public but are not published in the FEDERAL REGISTER.

(c) Administrative staff manuals and instructions, or portions thereof, which establish Department of the Navy policy, or interpretation of policy that are, determinative of the rights of members of the public. This provision does not apply to instructions for employees on the methods and techniques, or tactics, to be used in performing their duties, or to instructions relating only to the internal management of the Department. Examples of manuals and instructions not normally made available are:

(1) Those issued for audit and inspection purposes, or those which prescribe operational tactics, standards of performance, or criteria for defense, prosecution, or settlement of cases.

(2) Operations and maintenance manuals and technical information concerning munitions, equipment, and systems.

(d) Materials that are published in the FEDERAL REGISTER, when such action is feasible.

(iii) Examples. The following are illustrative of the information that normally will be made available for public inspection and copying:

(a) Navy Regulations, General Orders, Department of the Navy directives and

manuals of public interest, Navy Procurement Directives, and the Armed Services Procurement Regulation.

(b) Final decisions of the Boards of Review created under the Uniform Code of Military Justice, decisions of the Armed Services Board of Contract Appeals, and decisions of the Navy Contract Adjustment Boards.

(iv) Technical manuals and related information. Technical manuals and data will be made available to Department of the Navy contractors, to bidders on Department of the Navy contracts, and to purchasers of surplus or obsolete military equipment or weapons, for inspection and copying, or for purchase, in accordance with OPNAVINST 5510.1C, Department of the Navy Security Manual for Classified Information; NAVMATINST 4000.17, Distribution Statements (Other than Security) on Technical Documents; and Navy Comptroller Manual, Vols. 3 and 4, paragraphs 035885 to 035888, and 043145 (Parts 288 and 289 of this title), with the Armed Services Procurement Regulations, and with directives issued by the sponsoring systems command.

(v) Cost. The cost to the Department of the Navy of copying any of the foregoing materials will be imposed on the person requesting the copy, in accordance with paragraph (g) (3) (i)(b) of this section.

(vi) Deletion of identifying details. Identifying details, which if revealed would be a clearly unwarranted invasion of privacy (see paragraph (h) (6) of this section), may be deleted from a final opinion, order, statement of policy, interpretation, staff manual, instruction, or record made available for inspection and copying. In every such case, the justification for the deletion must be fully documented. Reasons for the deletion include the protection of privacy in a person's (a) business affairs, (b) medical matters, and (c) private family matters, including humanitarian considerations. "Person," as appropriate, includes an individual, partnership, association, or public or private organization. Under no circumstances should there be given any written or oral justification for the deletion of details which, by raising inferences, could be even more injurious than the invasion of privacy which the deletion of the details is intended to avoid. A rubber stamp, reading substantially as follows, may be used for the

purpose of documenting the justification for the deletion:

Activity location

Date

Identifying details have been deleted, pursuant to 5 U.S.C. 552, for one or more of the reasons indicated in paragraph 6a(6) of SECNAVINST 5720.42, to prevent a clearly unwarranted invasion of personal privacy which would result from disclosure of those details.

Title of Cognizant Officer/Official:

Signature

(2) Where information may be inspected-(i) In the Navy Department. Information described in subparagraph (1) (ii) of this paragraph (other than unpublished decisions of Boards of Review covered in subdivision (i) (b) of this subparagraph) is available for public inspection and copying at the Navy Department Library, or at the Law Library of the Office of the Judge Advocate General, as outlined below. The libraries are open from 0800 to 1630 (8 a.m. to 4:30 p.m.), Mondays through Fridays, except holidays.

(a) Navy Department Library. Located in Room 1241, Main Navy Building, 18th Street and Constitution Avenue NW., Washington, D.C. 20360, this facility maintains an index system by subject matter to materials available. The following are examples of indexes it will maintain for reference by members of the public:

(1) The Marine Corps Directives System Quarterly Checklist and an index to administrative directives in the Navy Directives System Consolidated Subject Index of Unclassified Instructions.

(2) An index to the Armed Services Procurement Regulation.

(3) An index to the decisions of the Armed Services Board of Contract Appeals.

(4) An index to the decisions of the Navy Contract Adjustment Board issued after July 4, 1967.

(5) Any other indexes prepared pursuant to subparagraph (1)(i) of this paragraph, and a master list of available indexes.

(b) Law Library of the Office of the Judge Advocate General. Located in Room 2527 of the Navy Annex, Columbia Pike and Arlington Ridge Road, Arlington, Va. 20370, this facility maintains, and will make available, both published and unpublished decisions of Boards of Review created under the Uniform Code

of Military Justice. (Published decisions are available also at naval bases, as indicated in subdivision (ii) (b) of this subparagraph.)

(ii) In the field. To the extent the material described in subparagraph (1) of this paragraph is received by Navy and Marine Corps field activities ashore, for the regular conduct of their business, it will be made available locally to members of the public, for inspection and copying, under paragraph (j) of this section procedures.

(a) All Navy and Marine Corps shore activities. All naval shore activities maintain a current file of Department of the Navy directives of general applicability, and related indexes; also, directives of less than general applicability pertinent to their operations.

(b) Naval bases and Marine Corps bases. Published decisions of the Boards of Review created under the Uniform Code of Military Justice can be found in "Courts-Martial Reports" maintained by these bases.

(c) Navy Publications and Printing Service Office. Technical manuals and data at field activities will be available as indicated in procurement documents. In some instances they will be made available under clearance procedures prescribed by the sponsoring naval systems command, at the Navy Publications and Printing Service Office, Washington Navy Yard, Building 157-1, Washington, D.C. 20390. A priced listing of technical manuals and data will be compiled and maintained at the NPPSO for reference by Department of the Navy personnel, contractors, bidders on contracts, and purchasers of surplus or obsolete military equipment or weapons.

No

(3) Indexing and availability. order, opinion, statement of policy, interpretation, staff manual, or instruction issued, promulgated, or adopted after July 4, 1967, which is not indexed and either made available or published, may be relied upon, used, or cited as a precedent against any member of the public unless he has actual and timely notice of its terms. If the order, opinion, statement of policy, interpretation, staff manual, or instruction was issued, promulgated, or adopted before July 4, 1967, it need not be indexed, but must be made available in accordance with this paragraph.

(i) In determining whether an order, opinion, statement of policy, interpretation, staff manual, or instruction is

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likely to be used or relied upon as precedent, the primary test shall be whether it is intended to provide binding guidance for decisions or evaluations by subordinates, or for future decisions by the same authority in adjudications of cases affecting the public, where similar facts or issues are presented.

(ii) With regard to the precedential effect of an adjudication, opinions and orders of the Boards of Review exemplify the type that shall be made available for inspection and copying, since they may be relied upon, used, or cited in future adjudications. By contrast, orders and opinions resulting from adjudications, such as those involving internal personnel (including military personnel) proceedings and security proceedings, are not required to be made available to the general public for inspection and copying, since they are not relied upon, used or cited in future adjudications.

(g) Availability of records. Subject to the exemption set forth in paragraph (h) of this section and the procedural requirements of paragraph (j) of this section, any record in the possession of the Department of the Navy shall be made available upon the request of any person. Copies of records which are published, in accordance with paragraph (e) of this section, or made available for inspection and copying, in accordance with paragraph (f) of this section, also should be made available to those who request them, when practicable.

(1) Definition and interpretation of record. In determining whether documentary material qualifies as a record, consideration should be given to the following:

(i) Record defined. The definition of the word "record" for records disposal purposes is contained in 44 U.S.C. 366, which reads: "[It] includes all books, papers, maps, photographs, or other documentary materials, regardless of physical form or characteristics, made or received by any agency of the U.S. Government in pursuance of Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that. agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data contained therein."