QUESTIONS AND ANSWERS: FOIA REQUESTS FOR CHARGE FILES

What is the Freedom of Information Act (FOIA)?

The FOIA is the statute that requires federal agencies to disclose agency records to the public, except to the extent that either the record or a portion of the record is protected from disclosure by one of FOIA’s nine exemptions.

Charging Party FAQs Regarding File Disclosure

1. I filed a charge alleging discrimination against my employer. How do I make a FOIA request to obtain a copy of my charge file?

After the Commission has completed its investigation, but before the 90 day Notice of Right to Sue (NRTS) period expires, you can request a copy of your charge file by:

• Sending a written request;
• Identifying it as a “FOIA request”;
• Including the charge number;
• Reasonably identifying the information being sought; and
• Directing it to the appropriate EEOC Regional Attorney.

Requests for charge files should be directed to the Regional Attorney responsible for the district, field, area or local office that investigated your charge. If you are not certain regarding the correct address, a complete list is available at http://www.eeoc.gov/foia/index.html.

2. What is the cost of making a FOIA request?

There is no charge associated with submitting a FOIA request for a charge file. However, if locating the charge file or a specific document(s) in the file takes more than 2 hours, you will be charged for search time. You will not be charged for copies of the first 100 pages of your charge file. However, after the 100 “free” pages, you will be charged 15 cents per page.

3. How can I check on the status of my FOIA request?

You can check on the status of the FOIA request by contacting the FOIA Requester Service Center by telephone at (202) 663-4300, or by fax at (202) 663-4639, or by contacting the FOIA Programs staff member identified in the acknowledgement letter at the telephone number indicated.

4. How long will it take to receive a copy of my charge file?

The FOIA specifies that a determination is to be provided within 20 working days, excluding Saturdays, Sundays and federal holidays, after receipt of the request. The 20 working day period does not begin until the request is received by the appropriate Regional Attorney. If a determination cannot be issued within the 20 working days permitted by the FOIA, a 10 working day extension is permitted in unusual circumstances. If it is not possible to issue a determination after the extension, the EEOC will contact you and attempt to negotiate a new due date or to refine the request.

For additional information regarding the circumstances under which an extension is taken and the type of determination letter that you may expect, please refer to the EEOC’s FOIA Reference Guide, Time for Response section located at http://www.eeoc.gov/foia/hb-5.html. The time frames for EEOC response are also set forth in the FOIA at 5 U.S.C.§552 (a)(6)(A) and at 29 C.F.R. §1610.9(b) of the EEOC’s regulations.

5. Can my request for a copy of my charge file denied?

Yes. The two most common reasons for denying a request are:

• If you request the file before EEOC has completed its proceedings, the request will be denied pursuant to exemption (b)(7)(A) of the FOIA. That exemption allows us to deny a request to prevent interference with an ongoing proceeding. Our concern is that the premature release of documents while the file is open may interfere with the EEOC investigation; or
• If you received a Notice of Right To Sue but did not use it within 90 days to access your file or to file suit, the request will be denied pursuant to exemption (b)(3). After the time to file a lawsuit expires, the CP is considered a member of the public. Sections 706(b) and 709(e) of Title VII of the Civil Rights Act of 1964 and Section 107 of the Americans With Disabilities Act (ADA) prohibit disclosure of charge files to members of the public. If you request a file after receipt of a NRTS, you will be asked for a copy of your court complaint, so that we can verify that we may disclose the file to you.

6. My charge file contains information about what happened to me. Why would some information be withheld?

All records will be made available unless the information contained in the record is exempted from disclosure. The FOIA contains nine exemptions and three exclusions which provide the only bases for nondisclosure. Exemptions permit agencies to withhold certain types or categories of agency records from disclosure. For example, exemption (b)(5), the most frequently used exemption by the EEOC, allows the agency to withhold records that reflect the analyses and recommendations of EEOC personnel generated for the purpose of advising the agency of possible action. This exemption protects the agency’s deliberative process and covers internal communications that are deliberative in nature.

7. Does my employer get a copy of the charge file?

Your employer cannot obtain a copy of the charge file unless the following two requirements are met:

• The Notice of Right to Sue has been issued; and
• You filed a complaint in court on the charge.

8. Are co-workers able to get a copy of the charge file under the FOIA?

No. Only the CP and Respondent may obtain copies of the charge file and only if certain requirements are met. Your charge file will not be disclosed to third parties.

9. The Regional Attorney did not give me all of the documents or deleted some information from some of the documents. Can I appeal this?

Yes. When a request for records has been denied completely or partially, the requester may appeal within 30 calendar days of receipt of the regional attorney’s determination letter. The following procedure must be followed:

• The appeal must be in writing;
• Addressed to the Assistant Legal Counsel, FOIA Programs, mailed to the EEOC at 1801 L Street, NW, Washington, D.C. 20507;
• Clearly labeled as a “FOIA appeal”; and
• Must include a copy of the Regional Attorney’s determination letter. If the Regional Attorney’s determination letter is not included with the requester’s appeal, the appeal is not “perfected.” As a result the requester will receive a letter stating that he/she is not in compliance with the regulations and instructing the requester to provide a copy of the Regional Attorney’s determination letter.
• Failure to follow the regulations will delay the time within which the appeal will be reviewed and a determination issued.

10. I cannot wait 20 working days to receive a copy of the charge file. What can I do to obtain the documents more quickly?

Normally, FOIA requests are processed in the order in which they are received. However, FOIA requests may be processed more quickly (“expedited processing”) if the requester demonstrates a “compelling need.” A compelling need means the following:

Failure to obtain the records sooner could reasonably be expected to pose an imminent threat to the life or physical safety of an individual.

A requester seeking expedited processing must submit a statement, certified to be true and correct to the best of that person’s knowledge and belief, explaining in detail the basis for requesting expedited processing with the request.

The requester will receive a determination on the request for expedited processing within 10 working days of its receipt by the appropriate Regional Attorney. 29 C.F.R. §1610.9 (c)(i).

Respondent FAQs Regarding File Disclosure

1. How do I make a FOIA request for a charge file?

After a Charging Party has filed suit against you on a charge, you can request a copy of the charge file by:

• Sending a written request;
• Identifying it as a “FOIA request”;
• Including the charge number;
• Reasonably identifying the information being sought; and
• Directing it to the appropriate EEOC Regional Attorney.

Requests for charge files should be directed to the Regional Attorney responsible for the district, field, area or local office that investigated the charge. 29 C.F.R. §1610.7(a). Please visit our website at http://www.eeoc.gov/foia/index.html for a comprehensive list of our addresses.

2. When can I expect to receive a response to my request?

The FOIA provides 20 working days, excluding Saturdays, Sundays and federal holidays, after receipt of the request to issue a determination. The EEOC’s response time does not begin until the request is received by the appropriate official. 29 C.F.R.1610.7(d) If a determination cannot be issued within the 20 working days permitted by the FOIA, a 10 working day extension is permitted in unusual circumstances. If it is not possible to issue a determination after the extension, the EEOC will contact you and attempt to negotiate a new due date or to refine the request.

The time frame within which the EEOC is to respond is found in the FOIA at 5 U.S.C. § 552 (a)(6)(A) and at 29 C.F.R. §1610.9(b) of the EEOC’s regulations.

3. Why would my request for a copy of the charge file be denied?

The most common reasons for denial of a Respondent’s FOIA request for a charge file are described below.

• If the FOIA request is made before the EEOC has finished its proceedings, your request will be denied pursuant to exemption (b)(7)(A). EEOC considers charges “open” even though the NRTS has been issued and conciliation has failed when the charge is being reviewed as potential EEOC litigation or the charge is being litigated by the EEOC. The basis for the denial is concern that the release of the records will interfere with the investigation.
• If a NRTS is issued at CP’s request but EEOC has not terminated its proceedings, the file is still open and the request will be denied.
• The 90-day period has not expired, and CP has not yet filed suit. CP must file suit on the charge before Respondent will be permitted access to the discloseable materials in the charge file.
• If the EEOC has filed suit on the charge, your request will be denied

4. Why would the Regional Attorney not give me all of the documents or delete some of the information from documents?

The FOIA contains nine exemptions and three exclusions which provide the only bases for nondisclosure.

Exemptions permit agencies to withhold certain types or categories of agency records from disclosure. For example, exemption (b)(5), the most frequently used exemption by the EEOC, allows the agency to withhold records that reflect the analyses and recommendations of EEOC personnel generated for the purpose of advising the agency of possible action. This exemption protects the agency’s analysis and deliberative process and covers internal communications that are deliberative in nature.

5. Can I appeal the Regional Attorney’s decision not to give me all of the material in the charge file?

Yes. The determination letter that you receive from the Regional Attorney advises you of your administrative appeal rights. When a request for records has been denied in whole or in part, the requester may appeal within 30 calendar days. The appeal must:

• Be in writing and addressed to the Assistant Legal Counsel.
• The envelope/cover of the letter must clearly be labeled as a “FOIA appeal.”
• The appeal from a Regional Attorney’s determination must include a copy of the regional attorney’s determination.

Failure to include the Regional Attorney’s determination means that the appeal is not perfected and will result in receipt of a letter informing the requester that he/she is not in compliance with the regulations, and instructing the requester to provide a copy of the initial determination. Failure to follow the regulations delays the EEOC’s response.

6. If Charging Party does not file a lawsuit, can he/she obtain a copy of the file under FOIA?

If CP submits a FOIA request after the EEOC has completed its proceedings and before his right to sue expires, CP will be granted access to the charge file. If CP does not file a lawsuit on the charge and his right to sue expires, the FOIA request will be denied.

Non-Party (Member of the Public) FAQs Regarding File Disclosure

Can my FOIA request for my co-worker’s charge file be denied? We filed charges against our employer on the same day alleging the same type of discrimination.

Yes. There are two reasons why your request will be denied.

• Confidentiality provisions of Title VII and the ADA prohibit EEOC employees from disclosing the charge file to “members of the public” or to individuals who are not parties to the charge. The prohibition is on EEOC employees. Penalties for disclosing the information to a member of the public include both a fine and/or imprisonment; and
• Privacy concerns prevent members of the public from obtaining a copy of the charge file.

This page was last modified on September 29, 2006.

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