Visuals
Chapter 3 Chapter 3
U. S. copyright law excludes Government works prepared solely by offi- cers and employees of the Government as part of their official duties from
3.11 Authorship
3.12.2 Unclassified Controlled Information
There are types of unclassified information that require control beyond the normal requirements for unclassified information; they fall into the general category of unclassified controlled information. While it is unlikely that all
hUnless indicated otherwise, the information in Section 3.12 was obtained from the Handbook: DOD 5200.1-PH,25 and DOD 5200.1-R.26
Front Matter 77
types of unclassified controlled information will appear in a defense-related technical report, the following are described in DOD 5200.1-R26 and pre- sented here:
For Official Use Only (FOUO) information.
Sensitive But Unclassified (SBU) (formerly Limited Official Use) information. This originates in the Department of State.
Drug Enforcement Administration (DEA) sensitive information.
DEA is part of the Department of Justice.
DoD Unclassified Controlled Nuclear Information (DoD UCNI).
Sensitive information (Computer Security Act of 1987).
As prescribed herein, all unclassified controlled information markings, except for DEA sensitive information, should be placed at the bottom of the front cover, title page, back cover, and each page containing unclassified controlled information. Portion markings are required for FOUO informa- tion in unclassified technical reports. DEA sensitive information should be marked at the top and bottom of the same pages.’
Classified technical reports may contain unclassified controlled informa- tion, and those portions and pages should be indicated. (Chapter 4, Fig- ures 4-6 and 4-8 [pages 165 and 173, respectively] show page and portion markings.) However, the overall classified technical report should not be considered unclassified controlled information, and, thus, these notices should not appear on the front cover, title page, and back cover of a classi- fied technical report.
3.12.2.1 For Official
Use
Only (FOUO)FOUO is the most common type of unclassified controlled information to appear in defense-related technical reports. FOUO is not a classification;
rather, it indicates sensitive but unclassified information exempt from man- datory public release under the Freedom of Information Act (FOIA). Spe- cifically, FOUO designates “information that has not been given a security classification pursuant to the criteria of an Executive Order, but which may
be withheld from the public a
exemptions to the FOIA. Information exempt under the Privacy Act should also be marked FOUO.
While classified technical reports are exempt from mandatory public re- lease under the FOIA (Title 5 U.S. Code [U.S.C.] §552[b][1]), they should not be additionally marked FOUO as an overall classification: “No other
‘Figures herein that refer to unclassified controlled information d o not indicate this additional requirement for DEA sensitive information.
78 How To Prepare Defense-Related Scientific and Technical Reports material shall be considered FOUO and FOUO is not authorized as an ane- mic form of classification to protect national security
interest^."^^
However, as previously stated, unclassified portions of a classified technical report may be additionally assigned an FOUO designation.The FOUO designation should only be applied to unclassified technical reports if one or more of the following exemptions28 to public release under the FOIA are applicable:
Information that pertains solely to the internal personnel rules and practices of DoD (Title 5 U.S.C. s552 [b][2]). This exemption is en- tirely discretionary.
Information specifically exempted by statute or where the statute es- tablishes particular criteria for withholding (Title 5 U.S.C. §552 [b][3]). The language of the statute must clearly state the information will not be disclosed; therefore, there is no discretion.
Information such as trade secrets or commercial or financial informa- tion obtained from a person or organization outside the Government on a privileged or confidential basis when disclosure of the informa- tion is likely to cause competitive harm to the company, impair the Government’s ability to obtain necessary information in the future, or impair some other legitimate Government interest (Title 5 U.S.C.
$552 [b][4]). There is no discretion.
Interagency and intraagency memoranda or other internal documents that are deliberative in nature-containing subjective evaluations, opinions, internal advice, and recommendations-and are also part of the decisionmaking process (Title 5 U.S.C. $552 [b][5]). Th‘ 1s ex- emption concerns documents that would normally be considered
“privileged” or protected from release during the discovery process of a civil lawsuit when litigants obtain information from one another.
An organization’s legal counsel should be consulted to determine whether the record in question would normally be made available through discovery. This type of information is in contrast to factual matters that may be the basis on which an evaluation or advice is provided. Such facts may also be withheld if they are not severable or if protected by other exemptions. This exemption is entirely dis- cretionary.
Personal information contained in a Privacy Act system of records (including personnel and medical files) that, if disclosed to a request- or other than the person whom the information is about, would result in a clearly unwarranted invasion of personal privacy and could sub- ject the releaser to civil and criminal penalties (Title 5 U.S.C. §552 [b][6]). The information must be identifiable to a specific individual
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and not freely available from sources other than the Federal Govern- ment (thus requiring FOIA action by third party requester). There is no discretion.
Records or information compiled for law enforcement purposes? i.e., civil, criminal, or military law, including the implementation of Executive orders or regulations issued pursuant to law (Title 5 U.S.C. §552 [b][7]). This exemption is the law enforcement counter- part of the previous exemption and is discretionary with the excep- tion of an unwarranted invasion of personal privacy of a living per- son or surviving family members of the person identified in the record or could reasonably be expected to endanger the life or physi- cal safety of any individual.
Certain records related to the examination, operation, or condition reports prepared by, on behalf of, or for use by an agency for regula- tion of supervision of financial institutions (Title 5 U.S.C. $552 Geological and geophysical information and data (including maps) concerning wells (Title 5 U.S.C. §552 [b][9]).
Examples of the preceding exemptions are provided in AD-A 423 966.28 As stated previously, FOUO technical reports, like other unclassified controlled information, should be marked in a manner similar to classified technical reports.
[bl [Sl).
An unclassified [technical report] containing FOUO information shall be marked “For Official Use Only” at the bottom on the outside of the front cover (if any), on each page containing FOUO information [not necessarily every page], and on the outside of the back cover.
[portion]
[The title page should be marked like the front cover. If pos- sible, a date or event when the marking may be removed should be included; Section 3.12.8 provides guidance.]
Within a classified [technical report], an individual page that contains both FOUO and classified information shall be marked at the top and bottom with the highest security classification of information appear-
jChapter 4, Figure 4-1 (page 148), Figure 4-3 (page 152), Figure 4-5 (page 159), and Fig- ure 4-7 (page 167) show examples of FOUO portion marking in the executive summary and main body of an unclassified technical report. Chapter 5 , Figure 5-1 (page 190), Fig- ure 5-3 (page 193), Figure (page 197), and Figure 5-7 (page 200) show examples of FOUO portion markings in an unclassified appendix.
80 How To Prepare Defense-Related Scientific and Technical Reports ing on the page. Individual paragraphs [portions] shall be marked at the appropriate level, as well as unclassified or FOUO, as appropriate.
Within a classified [technical report], an individual page that contains FOUO information but no classified information shall be marked “For Official Use Only” at the top and bottom of the page,
[portion]
FOUO material transmitted outside the Department of Defense re- quires application of an expanded marking to explain the significance of the FOUO marking. This may be accomplished by typing or stamp- ing the following statement on the record prior to transfer:
This document contains information exempt from mandatory dis- closure under the FOIA.
Exemption@) finsert applicable citation@), e.g., 5 U.S.C. 552 (b) (3)l a pplies/apply.
FOUO information may be disseminated within DoD Components and between officials of DoD Components and DoD contractors, con- sultants, and grantees to conduct official business for the Department of Defense. Recipients shall be made aware of the status of such infor- mation, and transmission shall be by means that preclude unautho- rized public disclosure. Transmittal documents shall call attention to the presence of FOUO
attachment^.^^
Sensitive But Unclassified (SBU) Information
SBU information originates in the Department of State and is equivalent to FOUO information and should be marked equivalently in DoD technical reports.
Drug Enforcement Administration (DEA) Sensitive Information
DEA sensitive information originates in DEA. DoD unclassified technical reports containing this information should be marked DEA Sensitive at the top and bottom of the front cover, title page, and back cover. Each page of an unclassified DoD technical report containing DEA sensitive information should also be marked DEA Sensitive at the top and bottom of the page;
classified DoD technical reports should be marked the same if the individu- al page is unclassified.
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3.1 2.2.4 DoD Unclassified Controlled Nuclear Information UCNI)
DoD UCNI is unclassified information on security measures (including se- curity plans, procedures, and equipment) for the physical protection of DoD Special Nuclear Material (SNM), equipment, or facilities. Information is designated DoD UCNI only when it is determined that its authorized disclo- sure could reasonably be expected to have a significant adverse effect on the health and safety of the public or the common defense and security by in- creasing significantly the likelihood of the illegal production of nuclear weapons or the theft, diversion, or sabotage of DoD SNM, equipment, or facilities.
The front cover, title page, and back cover of unclassified technical re- ports should be marked DoD Unclassified Controlled Nuclear Informa- tion if they contain DoD UCNI. Any other page containing DoD UCNI information should also be marked. DoD UCNI material transmitted out- side DoD should contain the following expanded marking on the front cov- er and title page:
Department of Defense
Unclassified Controlled Nuclear Information Exempt from Mandatory Disclosure
(5 U.S.C. 552 [b][3], as authorized by 10 U.S.C. 128)
3.12.2.5 Sensitive Information (Computer Security Act of 1987)
The Computer Security Act of 1987 established requirements for the protection of certain information in the Federal Government’s automated information systems. This information is referred to as “sensitive” and is defined in the Act. “Sensitive” information guidelines are similar to FOUO guidelines.
The front cover, title page, and back cover of unclassified technical re- ports should be marked Sensitive if they contain this type of information.