E.O. 12333 IOB reporting memorandums (Office of Naval Intelligence)

Re: FOIA #DON-NAVY-2017-001446

Mr. Ryan Martin

This responds to your Freedom of Information Act request emailed to the
Office of Naval Intelligence (ONI) for "IOB reporting memorandums sent to
the Intelligence Oversight Board, from 2010 to the present, in relation to
the quarterly reporting requirement under E.O. 12333 for Heads of Elements
of the Intelligence Community to report "intelligence activities of their
elements that they have reason to believe may be unlawful or contrary to
executive order or presidential directive." Your request was assigned the
above referenced FOIA number.

ONI consulted the Naval Intelligence Activity (NIA), Inspector General (IG)
who advised your request is unclear and it requires clarification. The
following information is provided to assist you. ONI does not send
quarterly report memorandums to the Intelligence Oversight Board (IOB).
When the Commander of ONI has reason to believe ONI may have conducted
intelligence activities contrary to Executive Order (EO) 12333 ONI reports
this activity to the NIA IG. The NIA IG reports all questionable activity
quarterly to the Department of Navy (DON) Inspector General (NAVINGEN N2).
The NAVINGEN N2 consolidates all DON quarterly reports into one consolidated
quarterly report and sends it to the Department of Defense Senior
Intelligence Oversight Official (SIOO). In accordance with EO 12333 the
SIOO is the senior official responsible for determining "unlawful or
contrary to EO 12333 intelligence activities" for the intelligence
community. The SIOO then provides the Intelligence Oversight Board with its
quarterly report memorandum. NAV IG also advised that in compliance with
the Secretary of the Navy Records Disposition Manual M-5210.1 Intelligence
Collection Records related to collection actions are destroyed by the DON
when three years old. For quarterly reports submitted to the IOB your
request should be made directly to the Department of Defense.

You requested to be informed of processing fees prior to processing your
request. Although there are no fees associated with your request the
following information is provided regarding fees and fee waivers. FOIA fees
are established at 32 CFR 286.29 and are set by SECNAVINST 5720.42F (1999)
at $12.00 per hour for clerical services, $25.00 per hour for professional
search and review and .15 cents per page for duplication. A computer search
consists of two parts for assessing fees; human time and machine time.
Human time is all the time spent by humans performing the necessary tasks to
prepare the job for a machine to execute the run command (i.e. entering
specific search terms or commands.) If execution of a run requires
monitoring by a human that time is also assessed as a computer search.
Machine time involves only direct costs of the central processing unit
(CPU), input/output devices, and memory capacity used in the actual computer
configuration. Copies of software include all actual cost of duplicating
the disc which includes operator's time and cost of the medium.

The FOIA provides for three categories of requesters and fees are assessed
according to the requester type. The three requester categories are as
follows.

a. Commercial use requester: Commercial requesters are responsible for all
reasonable fees associated with search, review, and duplication of all
records.

b. Educational institutions, noncommercial scientific institutions, and
representatives of the new media requester: Are responsible for duplication
fees less 100 free pages.

c. All Other requesters who do not fall within either of the preceding two
categories are responsible for all search fees, less the first two hours and
all duplication fees less the first 100 pages.

An agency's determination of the appropriate category for an individual
requester is dependent upon the intended use of the information sought, and
also, for some on the identity of the requester. You have stated you are
not requesting this information for commercial use. Noncommercial
educational/scientific institutions requesters must use the information for
a scholarly research goal of the institution and not the goal of the
requester. Representatives of the news media must use their editorial
skills to turn the raw materials into a distinct work, and then have a means
to distribute it to an audience (i.e. the public). If the requester does
not intend to use the information for the above stated purposes then the
requester is considered an "all other" requester. Based on your request you
are considered an "all other" requester.

Although there are no fees associated with your request, ONI has denied your
request for a fee waiver as you do not meet the statutory requirements in
which to grant one. For your future reference the following information is
provided regarding fee waivers. A fee waiver is granted when a two-pronged
test is met. First, the requested information must be in the public
interest (i.e. it must be of current interest to the public and not in the
primary interest of the requester). To be in the public interest the
subject of the request must concern 1) "operations an activities of the U.S.
Government"; 2) disclosure of the information must "contribute
significantly" to the public's understanding of the government's operations
or activities and 3) the requester must use the information for original
works and have a method to disseminate the information to the public. The
second prong of the test is the request must not be in the commercial
interest of the requester. Based on your request it does not appear as
though you meet the first part of the two prong test. Merely stating that
the information will be made available to the public does not meet the
requirements of the first prong.

If you are unsatisfied with this response, you may contact the Navy FOIA
Public Liaison at DONFOIAPublicLiaison@navy.mil or by telephone at
703-697-0031. Please ensure you have your assigned FOIA number available.
Alternatively, if you believe ONI has denied your request you may appeal to
the Office of the Judge Advocate General, Department of the Navy, ATTN:
FOIA APPEALS, 1322 Patterson Avenue SE, Suite 3000, Washington Navy Yard, DC
20374-5066.

ONI will take no further action on this request and there are no fees
associated with processing this request. My point of contact information is
provided below.

Sincerely
JEANA WATSON
Freedom of Information/Privacy Act Manager
Office of Naval Intelligence
301-669-2048
jwatson@nmic.navy.mil