NI35-17

"Series Number"

BY ORDER OF CINCNORAD

26 January 1996

"Date of Instruction - Spell Month Out Completely"

Public Affairs/Public Information

"Series Title"

PROCESSING REQUESTS FOR NORAD RECORDS

"Long Title - Type In All Capital Letters"

This instruction requires all requests for North American Aerospace Defense Command (NORAD) information be processed through the Directorate of Public Affairs for review and response since NORAD is not covered by the United States Freedom of Information Act (US FOIA) or the Canadian Access to Information Act (ATIA). It applies to staff elements of Headquarters, NORAD, regions, sectors, and the NORAD Computer Services Squadron. This instruction does apply to members of the Armed Forces Reserves and National Guard.

SUMMARY OF REVISIONS
Changed publication from regulation to instruction, which conforms to current Information Management (IM) policies. Changed title of publication from "Applicability of US Freedom of Information Act and the Canadian Access to Information Act" to "Processing Requests for NORAD Records". Added several new references. Added paragraph 4.1.1. regarding counterdrug information. Added paragraph 4.4. regarding classified NORAD documents. Added User Fees (paragraph 4.5), and defined the fee schedule for researching and processing requests for documents and materials.

1. References:

1.1. DoD Directives 5200.1-R, Information Security Regulation.

1.2. DoD Directive 5400.7-R, Department of Defense Freedom of Information Act Program.

1.3. DoD Directive 7230.7, User Fees.

1.4. Title 5, United States Code (U.S.C.), Sections 551 and 552

1.5. Treasury Board of Canada Access to Information Act, 1983.

1.6. 33 United States Treaties, (UST) 1277.

1.7. NUHOI35-16, Security and Policy Review.

2. Applicability.

2.1. Title 5 U.S.C., Section 552, the Freedom of Information Act (FOIA), is a United States (US) statute and is only applicable to US agencies as defined in Title 5 U.S.C., sections 551 and 552. NORAD is a

binational command established by international agreement (ref 1.6.) subject to the control of both Canadian and US government agencies as defined in the Act and consequently is not subject to the US FOIA.

2.2. The Canadian Access to Information Act (ATIA) applies only to those Canadian Government institutions and those classes of records which are listed in the Access Register. NORAD is not listed in the register and is, therefore, not subject to the Canadian ATIA. Those agencies listed should respond to requests for NORAD records as required by the Canadian ATIA and local policy.

3. Policy. NORAD, while not subject to the US FOIA or Canadian ATIA, is still a military organization funded by the taxpayers of both nations and, as such, should follow the spirit and intent of both laws. Therefore, it is HQ NORAD policy that US FOIA and Canadian ATIA requests be processed and the information or records requested be provided unless they meet guidelines for non-release due to security classification. The potential for embarrassment is not a valid reason for protecting or not releasing the information. The deputy director (N/PAD) for NORAD Public Affairs, or that person's designated representative, is the coordination officer and the Joint Secretary (JS) is the authority for release. Each case is reviewed on an individual basis. If the request requires an inordinate amount of research and processing time then user fee schedule/procedures listed in paragraph 4.5. will be used.

4. Procedures:

4.1. FOIA Requests Received by US Government Agencies for NORAD Records or Information in Their Possession. Process these requests according to the FOIA. US Government agencies may request releasibility comments from HQ NORAD before making a final release decision. Coordinate these comments with N/PAD. NORAD Headquarters directorates and field units receiving this type of request refer it to N/PAD.

4.1.1. Requests for Counterdrug (CD) Related Information. Information relating to NORAD CD operations often originates from non-DoD government agencies, such as US Customs Service or the Drug Enforcement Agency. Release of information from these drug law-enforcement agencies must be approved by the agency in question prior to further dissemination.

4.2. Requests for Records or Information Received by HQ NORAD and Staff Functions. Any requests received by Headquarters staff for records or information citing FOIA or ATIA should be sent immediately to N/ PAD for coordination and appropriate action. Final release and signature authority is vested with the JS.

4.3. Requests for Records or Information Received by NORAD Regions, Sectors, and the Computer Services Squadron. A timely response will be made, signed by the unit commander or vice commander after coordination with N/PAD. See sample response at attachment 1.

4.4. Requests for Classified NORAD Records. Any requests received for NORAD classified records should be sent immediately to N/PAD for declassification processing in accordance with paragraphs 1.1. and 1.7.

4.5 User Fees. (U.S. and Canadian Procedures)

4.5.1. Fee Restrictions. (Note - Subparagraphs 4.5.1.1. and 4.5.1.2. pertain to U.S. only. The Director of Corporate Administration (DCA), National Defence Headquarters, Ottawa, Canada, reviews each request on a case-by-case basis and does not distinguish between individuals, commercial firms,

educational/scientific firms, or the media. Normally, DCA charges a $10.00 (Canadian dollars) base line fee for search, review, and preparation of documents, but this amount varies according to special calculation tables used to process the request based upon time, volume, etc.)

4.5.1.1. Individual. First two hours of search time and first 100 pages of duplication will be provided without charge.

4.5.1.2. Commercial Firms. Will be billed full amount with no time or page restrictions.

4.5.2. Fee Assessment. (U.S. only. See Note 4.5.1. above)

4.5.2.1. Commercial. Requester must indicate willingness to pay all search, review and duplication costs.

4.5.2.2. Education, Scientific Institution, or News Media. Must indicate willingness to pay duplication charges in excess of 100 pages if more than that is desired.

4.5.2.3. All Others. Must indicate willingness to pay search in excess of two hours or 100 pages of records.

4.5.3. Collection of Fees and Fee Rates. (U.S. and Canadian)

4.5.3.1. Search Time. U.S. Professional (GS9-15) - $25 per hour. (US currency ) or $10 per hour in Canadian dollars if a specific search is conducted in Canada by DCA, NDHQ.

4.5.3.2. Review Time. Same as search time for U.S. professionals. Canadian - $10 per hour.

4.5.3.3. Page Duplication. In excess of 100 pages, a charge of $.25 per page (US currency) or a calculated fee based on hours required to reproduce the documents (Canadian).

4.5.3.4. Checks Payable. Make checks payable to Defense Accounting Officer (US) or Receiver General of Canada. (Upon receipt of invoice and prior to the request being mailed out.)

Note: Where requests for records or information are made that cross the NORAD/USSPACECOM borders, the response from each command will be coordinated with the applicable release authority of the other and the Judge Advocate (JA) legal advisor.

RODNEY S. LUSEY, Colonel, USA
Joint Secretary

Attachment:
Sample Letter Format

SAMPLE LETTER (USE AS A GUIDELINE ONLY)

(NORAD Command Letterhead)

NORAD Address and Office Indicator

Name and Complete Mailing Address of Recipient

Dear

This reply is in response to your letter dated..........requesting.........(insert applicable statements from either paragraph 2.1. or 2.2. depending on whether it is a FOIA or ATIA request).

It is NORAD policy to release records or information where the documents or information are not security classified and are cost efficient to provide. In this case we are pleased to provide the attached as requested. (In this case we are sorry to inform you that we cannot grant your requests as the documentation is considered unclassified sensitive or classified). (In this case you are required to make a check payable to Defense Accounting Officer for US search or Receiver General of Canada for a Canadian search for the amount of ......)

Thank you for your interest in NORAD and its continuing mission.

(Signed by JS or responsible unit field commander)

Attachments:
(as required/applicable)