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The Freedom of Information Act Reference Guide |
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I. Introduction The Freedom of Information Act (FOIA), 5 U.S.C. § 552, was enacted in 1966 and generally provides that any person has a right to request access to federal agency records. All agencies of the Executive Branch of the United States Government are required to disclose records under the FOIA upon receiving a written request for them, except for those records (or portions of them) that are protected from disclosure by the nine exemptions and three exclusions of the FOIA. The Occupational Safety and Health Review Commission (OSHRC) is an Executive Branch agency subject to the FOIA. The Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, created OSHRC as an independent federal agency, providing administrative trial and appellate review, to decide contests of citations or penalties resulting from inspections of American work places by the Occupational Safety and Health Administration (OSHA), which is a part of the Department of Labor. OSHRC, therefore, functions as a two-tiered administrative court, with established procedures for (1) conducting hearings, receiving evidence and rendering decisions by its Administrative Law Judges, and (2) providing for discretionary review of Administrative Law Judge decisions by a panel of Commissioners when appellate review is granted. Thus, the vast majority of the records maintained by OSHRC are case files involving contests of OSHA citations or penalties. This Reference Guide is designed to familiarize you with the specific procedures for submitting a FOIA request to OSHRC. The process is neither complicated nor time consuming. Following the guidance below will make it more likely that you will receive the records that you are seeking in the shortest amount of time possible. This Reference Guide also includes descriptions of the types of records maintained by OSHRC, some of which are readily available through means other than the FOIA, including through the World Wide Web. OSHRC’s home page on the World Wide Web is at www.oshrc.gov; in particular, OSHRC’s FOIA home page is at www.oshrc.gov/foia/foia.html. The formal rules for submitting FOIA requests to OSHRC are set fort in 29 C.F.R. Part 2201. These regulations can be accessed through OSHRC’s FOIA home page at http://www.oshrc.gov/foia/regs_implementing_foia.html. II. Access to Certain Records Without a FOIA Request As required by the FOIA, OSHRC has made certain records, created on or after November 1, 1996, available through its World Wide Web site at www.oshrc.gov. If you have access to the World Wide Web, you will not need to make a FOIA request to obtain access to these records. These records include: (1) final opinions and orders made in the adjudication of cases; (2) copies of records that have been the subject of a FOIA request and that also are the subject of sufficient public interest that OSHRC believes that other persons are likely to request (or already have requested) them; and (3) OSHRC’s annual FOIA report, which includes such information as the number of FOIA requests received by the agency, the amount of time taken to process requests, the total amount of fees collected by the agency, information regarding the backlog of pending requests, and other information about the agency’s handling of FOIA requests. OSHRC also maintains an on-site reading room where you may view printed copies of available materials. The on-site reading room at OSHRC’s national office is located at 1120 20th Street, NW, 9th Floor, Washington, DC 20036. III. Where to Make a Request If you wish to receive the quickest possible response to your FOIA request, you should direct your FOIA request to the FOIA Disclosure Officer in OSHRC’s FOIA Requester Service Center at the address and/or fax below:
If you send your request to the wrong office at the Commission, your request will still be processed, but the time for responding to it will begin to run when it is actually received by the FOIA Requester Service Center. IV. How to Make a Request You may make a FOIA request for any agency record. However, this does not mean that we necessarily will disclose any information sought. The FOIA only provides for the release of pre-existing records and does not require the agency to do research for you, to analyze data, to answer written questions, or to create records to respond to a request. Further, there are statutory exemptions and exclusions that authorize the withholding of information of an appropriate sensitive nature. When OSHRC does refuse to disclose information to you, we will specify the reason, i.e., the exemption under which the particular record is being withheld. No special form is required to file a FOIA request. However, requests must be in writing and should be submitted in person, by mail or courier, or by fax. OSHRC currently does not accept requests through the Internet. You should write the words “Freedom of Information Act Request” on the envelope or cover and in your letter so that the request will be directed to the FOIA Requester Service Center. Be as specific as possible in identifying the documents you are requesting. You should include any file designations or other descriptions, if known. This is not an absolute requirement, but the more specific you are about the records or types of records you seek, the more likely and/or more promptly we will be able to locate those records. For example, for records related to a case before OSHRC, specifying the OSHRC docket number, employer name, and/or inspection number will enable us to locate the records you seek more quickly. We also recommend that you include, along with your address, a telephone number at which you can be reached in the event we need to contact you about your request. V. Time for Response Under the FOIA, federal agencies are required to respond to a FOIA request within 20 working days, i.e., excluding Saturdays, Sundays, and legal holidays. This time period does not begin until the request is actually received by the FOIA Requester Service Center. An agency is not required to send out the releasable documents by the last business day; it can send you a letter informing you of its decision and then send you the documents within a reasonable time afterward. OSHRC makes every effort to respond to FOIA requests as quickly as possible. In many cases, we are able to respond to FOIA requests within 20 working days. However, there may be instances where we cannot make an initial determination of the FOIA request within 20 working days. Under the FOIA, OSHRC may extend the response time for an additional 10 working days when we need to: (1) search for and collect records from one of OSHRC’s regional offices or off-site storage facilities; (2) search for, collect and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request; or (3) consult with another agency having a substantial interest in the determination of the request. When OSHRC needs to extend the time period, we will notify you of this in writing and offer you the opportunity to modify or limit your request. Alternatively, you may agree to a different timetable for the processing of your request. You may check on the status of your FOIA request by contacting the FOIA Requester Service Center, 1120 20th Street, N.W., Room 941, Washington, D.C. 20036-3457; Telephone (202) 606-5700; Fax (202) 606-5417. If you have concerns about the service you have received following an initial response to a FOIA request, you may contact OSHRC’s FOIA Public Liaison at the same address, telephone number and fax number. VI. Expedited Processing Under certain conditions you may be entitled to have your request processed on an expedited basis. However, you should be aware that whenever a request is expedited, this may result in additional delays for previous requesters who have been waiting for a response. Because OSHRC typically processes FOIA requests within 20 working days, we ordinarily will not process a request ahead of other previous requests unless there will be a serious threat to someone’s life or physical safety if the request is not acted on more expeditiously. The FOIA also requires that requests for processing on an expedited basis shall be granted if made by a person primarily engaged in disseminating information to the public and the information is urgently needed to inform the public concerning some actual or alleged government activity. If you request expedited processing, you must submit a written statement setting forth the reasons why the request should be expedited. You must also certify that the reasons you give are true and correct. We will notify you of our decision whether to expedite your request within 10 calendar days after receiving your request. If we deny your request for expedited processing, you will be advised of your right to submit an administrative appeal, which will be handled promptly. VII. Fees There is no initial fee to file a FOIA request. However, the FOIA provides that an agency is entitled to charge certain fees depending on the particular category of FOIA requester you fall into. For purposes of determining fees only, the FOIA divides requesters into three categories:
OSHRC currently charges 25 cents per page for photocopying. Rates for searching for and processing records vary depending on whether the person handling the work is a professional or a clerical employee. In all cases, if the total fee does not exceed a minimum amount, currently $10, OSHRC will not charge any fee at all. You may always include in your request letter a specific statement limiting the amount that you are willing to pay in fees. If you do not do so, we will assume that you are willing to pay fees of up to a certain amount, currently $25. If we determine that the total fees will exceed $25, we will advise you of the estimated amount and offer you an opportunity to narrow your request in order to reduce the fees. If you continue to want all of the records involved, we will confirm your commitment to pay the estimated fees in writing. Be aware that you may be required to pay fees even if the search does not locate any responsive records or, if the records are located, they are determined to be exempt from disclosure. You ordinarily will not be required to actually pay the fees until the records have been processed and are ready to be sent to you. If, however, you have failed to pay fees in the past, or if the estimated fees exceed $250, you will be required to pay the estimated fees in advance – that is, before the records even are processed. If you fail to pay fees within 30 days of billing, you will be charged interest on your overdue balance, and OSHRC will not proceed with any further requests from you until payment in full has been made. The current schedule of fees, effective October 27, 2006, is as follows:
VIII. Fee Waivers If you expect or are advised that a fee will be charged, you may request a waiver of those fees. However, fee waivers are limited to situations in which a requester can show that the disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government and is not primarily in the commercial interest of the requester. Requests for fee waivers from individuals who are seeking records pertaining to themselves usually do not meet this standard because such disclosures usually will not result in any increase of the public’s understanding of government operations andactivities. However, individuals are not charged searching and reviewing fees pertaining to records about themselves, but can be charged for duplication of those records. Privacy Act, 5 U.S.C. § 552a(f)(5). In addition, a requester’s inability to pay fees is not a legal basis for granting a fee waiver. (Note that the granting of a fee waiver, which is done on a general public-interest basis under the statute, is entirely separate and distinct from the limitations on fees that are discussed in the previous section.) IX. Initial Determination of a FOIA Request Once we have processed your request and any fee issues have been resolved, we will send you a written initial determination letter. In the vast majority of cases, we will include any documents that can be disclosed along with the initial determination letter, though in some cases the documents themselves may be sent within a reasonable time afterward. The FOIA provides access to all federal agency records (or portions of those records), except for those records that are withheld under any of nine exemptions or three exclusions (i.e., the reasons for which an agency may withhold records from a requester). The initial determination letter will advise you whether any information is being withheld pursuant to one or more of the exemptions. When a record is being withheld in its entirety, we ordinarily will specify the number of pages being withheld or will make a reasonable effort to estimate the volume of the withheld information. The nine FOIA exemptions authorize federal agencies to withhold information covering: (1) classified national defense and foreign relations information; (2) internal agency rules and practices; (3) information that is prohibited from disclosure by another federal law; (4) trade secrets and other confidential business information; (5) inter-agency or intra-agency communications that are protected by legal privileges; (6) information involving matters of personal privacy; (7) records or information compiled for law enforcement purposes, to the extent that the production of those records (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions, or (F) could reasonably be expected to endanger the life or physical safety of any individual; (8) information relating to the supervision of financial institutions; and (9) geological information on wells. In addition, it is highly unlikely that OSHRC will withhold information using the three FOIA exclusions because they pertain to especially sensitive law enforcement and national security matters. X. Appeals You may file an administrative appeal within 20 working days of our response if you are not satisfied with our response. You may disagree with our decision to withhold records or you may believe that there are additional records we failed to locate. You may also file an appeal if we have denied your request for expedited processing or a fee waiver, or if you disagree with the fee category in which we placed you. All appeals must be made in writing and addressed to:
Both the front of the envelope or cover and the appeal letter should contain the notation “Freedom of Information Act Appeal.” Although there is no specific form or particular language needed to file an administrative appeal, it will help if you enclose a copy of the initial determination letter from which you are appealing. You do not need to include copies of any documents disclosed. The Chairman reviews all appeals. The Chairman will make an independent determination as to whether your request was properly processed within 20 working days. The Chairman may: (1) affirm the initial determination in full, in which case he or she will identify which exemptions (if any) have been appropriately claimed; (2) affirm part of the initial determination (identifying the applicable exemptions), but release to you other information previously withheld; or (3) reverse the initial determination and release to you all the information you requested. XI. Judicial Review After your administrative appeal has been decided, if you still believe that OSHRC has not handled your FOIA request in accordance with the law, you have a right to challenge the agency’s action in a lawsuit filed in federal court, through the litigation process known as “judicial review.” Judicial review ordinarily requires that you have already filed an administrative appeal and have received a response. However, if OSHRC fails to respond to either your initial request or your appeal within the time limits specified in the FOIA, you may file suit as soon as those time limits have expired. If you do bring a court action, you may file your suit in a federal district court in any of the following places: (1) where you reside, (2) where you have your principal place of business (if any), (3) in the District of Columbia, or (4) where the records are located, if they are not located in the District of Columbia. If you have waited until you have received an administrative appeal determination, that final administrative response letter will advise you of your right to seek judicial review. You have six years to file suit from the time your right to sue begins. Finally, please understand that attorneys and employees of OSHRC are prohibited from giving legal advice to members of the public on Freedom of Information Act litigation. XII. Major Information and Locator Systems OSHRC Web site. Provides access to agency information including: final determinations of the Commission, set forth in decisions and orders; procedural rules; budgets; performance reports; press releases; the Occupational Safety & Health (OSH) Act; and job announcements. Final determinations of the Commission are also available in commercial publications. Case files. Individual files for all cases processed and/or decided by the Commission including all documents filed in a given case. For cases that go to a hearing, the file may contain transcripts of the hearing and any exhibits entered into the record. Administrative systems. Record management systems for case tracking, payroll/personnel services, procurement services, accounting services, and travel services. |
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| Last Updated: January 15, 2008 |
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