C3.5.1. Freedom of Information Act (FOIA). Records containing security assistance-related information, including LOAs and FMS procurement contracts, are released in accordance with the Freedom of Information Act, 5 U.S.C. §552 as implemented in DoD 5400.7-R, DoD Administrative Instruction 108, and DoDM 5200.01 Vol. 1, DTM-04-009, and DTM-04-010.

C3.5.1.1. Any request under the FOIA for an LOA or FMS procurement contract should be referred to the appropriate legal counsel of the DoD Component for action. Proposed final decisions to withhold or release, in whole or in part, LOAs already accepted or in preparation must be coordinated with DSCA (Office of General Counsel). The DoD Component need not coordinate an FMS procurement contract with DSCA.

C3.5.1.2. Under FOIA Exemption 4, 5 U.S.C. §552(b)(4), commercial or financial information provided to the USG in confidence by a person (including an agency of a foreign government or a domestic or foreign business) may be exempt from disclosure to the public, if it is the type of information that is not released by the submitter; if disclosure is likely to cause substantial competitive harm to the submitter; if disclosure is likely to impair the ability of the USG to obtain necessary commercial or financial information in the future; or if disclosure will harm other legitimate USG interests. This exemption is intended to protect both the interests of commercial entities that submit proprietary information to the government and the interests of the government in receiving continued access to such data. Such information is to be marked “For Official Use Only” in compliance with DoDM 5200.01 Vol. 1. If the DoD Component determines that it may be required to disclose commercial information obtained from a person, corporation, or foreign government, it should notify the submitter of the information in accordance with DoD 5400.7-R, and E.O. 12600.

C3.5.1.3. Under FOIA Exemption 3, 5 U.S.C. §552(b)(3) and 10 U.S.C. §130c, effective October 1, 2000, information provided by, made available by, or produced in cooperation with, a foreign government or international organization may be withheld from release. DoD Components must ensure the foreign entity has met all of the requirements outlined in the Section 130c in order to justify the withholding of information pursuant to the FOIA.

C3.5.2. Release of Unclassified Information. Except as provided in Section C3.1.1.2., unclassified information pertaining to systems for which the purchaser has been authorized release may be provided by the USG to the purchaser country or international organization, as appropriate, for purposes related to security cooperation.

C3.5.3. Foreign Government Information (FGI). Information provided by a foreign government (both classified and unclassified) in confidence is held in confidence. Similar information produced by the USG as a result of a joint arrangement with a purchaser is also held in confidence. DoD 5200.1-R, DTM-04-009, DTM-04-010, provides instructions for protecting such information. FGI is classified in accordance with DoD 5200.1-R, DTM-04-009, DTM-04-010. FGI classification decisions should be honored and under no circumstances modified without the express written consent of the Government that provided the information. Requests for mandatory review for the declassification of FGI are processed in accordance with DoD 5200.1-R, DTM-04-009, DTM-04-010.

C3.5.4. Technical Data.

C3.5.4.1. Definition of Technical Data. The ITAR defines technical data as: information, other than software, that is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles. This includes information in the form of blue prints, drawings, photographs, plans, instructions, or documentation; classified information relating to defense articles and services; information covered by an invention secrecy order; and software, as defined in the 22 CFR Part 121.8(f), directly related to defense articles. Technical data does not include information concerning general scientific, mathematic, or engineering principles commonly taught in schools, colleges and universities, or information in the public domain. It also it does not include basic marketing information on function or purpose or general system descriptions of defense articles.

C3.5.4.2. Release of Technical Data. Releasability of technical data is considered in the same manner as other potentially sensitive parts of the program. In accordance with 22 CFR Part 124.2, the release of technical data is limited to the provision of training in basic operations and maintenance of defense articles lawfully exported. This specifically excludes the release of technical data for training in support of intermediate and depot level maintenance. Release in support of intermediate and depot level maintenance must be reviewed to ensure that the Technical Data Package (TDP) does not contain information that can be used for design, development, or production of an item. Controlled Unclassified Information (CUI) may be exempt from public disclosure under 5 U.S.C. §552 (Freedom of Information Act) and must be reviewed in foreign disclosure channels before release to foreign Governments or international organizations.

C3.5.4.2.1. Release of USG-Owned Technical Data. USG-owned TDPs are released under FMS procedures and only in support of a specifically defined, lawful, and authorized USG purpose. The LOA must cover the full cost of preparation, reproduction, and handling of technical data.

C3.5.4.2.2. Release of Privately Owned Technical Data. Foreign representatives normally request release of privately owned technical data through commercial channels subject to export licensing requirements. If DoD Components release such information under a Security Cooperation program, the owner must authorize its release and the data must be properly marked. The LOA must cover the full cost of preparation, reproduction, and handling.

C3.5.4.3. Requests for Technical Data Packages. TDP requests must specify whether the TDP is to be used for operating and maintaining U.S.-origin defense equipment; for study purposes to determine whether to request production authorization; or for production, follow-on development, or improvement of a U.S. defense article, component, or derivation thereof. The LOA must identify the approved purpose for which the TDP is provided. See Appendix 6 for exact note placement and wording.

C3.5.4.4. Restrictive Markings on TDPs. IAs must ensure the TDP includes markings showing the authorized rights, the security classification, and other restrictions or unauthorized uses. Each separate part of the technical information is marked. If individual part marking is not possible, TDP cover information provides the restrictions. DoD Directive 5230.24 and DoD Directive 5230.25 provide DoD policy and procedures for marking and handling export-controlled technical data that are critical technology.

C3.5.4.4.1. Sale of TDPs for Operation and Maintenance (O&M). TDPs are sold for O&M only if the IA verifies that the article was provided to the purchaser through authorized transfer and there is no other viable means of maintaining the U.S.-origin equipment. The IA provides the LOA (or other documentation that validates the authorized transfer of the U.S.-origin equipment) and Table C3.T2. information to the release and disclosure authority for use in making a release determination. If the proposed release involves classified information or CUI, the decision must be approved by a Designated Disclosure Authority appointed pursuant to DoD Directive 5230.11. See Appendix 6 for the wording of a standard note included in LOAs that contain O&M TDPs.

Table C3.T2. Data Sheet for TDPs Transferred for Operations and Maintenance

C3.5.4.4.2. Sale of TDPs for Study or Production. TDPs are offered for study only when DoD is prepared to release the TDP for production. Foreign manufacture of U.S. equipment benefits the United States when it strengthens friendly defense forces, improves U.S. defense relationships, or enhances interoperability. It may also benefit the United States when it serves to maintain the purchaser’s defense industrial base or to improve general defense capabilities. Requests for TDPs for study or production are normally denied if an article is in limited supply or if foreign production would adversely impact the U.S. industrial base. The IA provides the LOA and information (as specified in Table C3.T3.) to the release and disclosure authority for use in making a release determination. If the proposed release involves classified information or CUI, a Designated Disclosure Authority appointed pursuant to DoD Directive 5230.11 must approve the decision. The purchaser can be provided technical data and authority necessary to operate and maintain or manufacture the defense article through an LOA, through an international agreement (such as for cooperative development), or through the combination of an LOA and a complementary international agreement in the form of a Memorandum of Understanding (MOU) or a Memorandum of Agreement (MOA). See DoD Directive 5530.3. See Appendix 6 for the wording of standard notes included in LOAs that contain TDPs for study or production.

Table C3.T3. Data Sheet for TDPs Transferred for Study or Production

C3.5.4.4.3. Revisioning Services. After TDPs have been approved for transfer, revisioning services can be offered that provide purchasers updates as TDPs are revised. Revisioning services may appear as a separate line item on the LOA transferring the TDP, or they may be offered on a separate LOA. Revisioning services require a unique LOA note shown in Appendix 6. If previous TDP transfer notes on the case require updating, the revisioning services LOA must contain the complete current provisions required for initial transfer of the TDP.