|September 16, 2008|
The Freedom of Information Act Guide
The Freedom of Information Act (FOIA), is found in Title 5 of the United States Code, Section 552. It was enacted in 1966 and provides that any person has the right to request access to federal agency records. The FOIA does not, however, provide a right of access to records held by state or local government agencies or private businesses or individuals.
This guide will familiarize you with the specific procedure for making a FOIA request to the Department of Labor (Department or DOL). The process is neither complicated nor time-consuming. Following the procedure will help you obtain the information you are seeking in the shortest amount of time. This guide also includes descriptions of the types of records maintained by different component of the Department, some of which are available through the Privacy Act or other disclosure statutes. (e.g., ERISA, LMRDA)
Initially, it is important to know that there is no central office in the Department that processes FOIA requests for all DOL components. Each component responds to requests for its own records. Therefore, before sending a request to the Department of Labor, you should determine whether this component is likely to have the records you are seeking. See III below.
The formal rules for submitting FOIA requests to the Labor Department are set forth in Part 70 of Title 29 of the Code of Federal Regulations. These regulations are available in law libraries and Federal Depository Libraries.
All DOL components make certain types of records available in reading rooms, and available electronically. If you come into a reading room or have access to the Internet, you will not need to make a FOIA request to obtain access to these records. Such records include: (1) final opinions and orders made in adjudicating cases; (2) final statements of policy and interpretations which have not been published in the Federal Register; (3) administrative staff manuals and instructions to staff that affect a member of the public; and (4) copies of records that have been the subject of a FOIA request and are of sufficient public interest that the agency believes other persons are likely to request them. The agency's Annual FOIA Report which includes such information as the number of requests received by the agency, 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 is also available through the World Wide Web.
Within the Labor Department, each component processes its own FOIA requests. Therefore, your request will receive the quickest possible response if it is addressed directly to the disclosure officer for the component that you believe has the records you are seeking. A description of Labor Department components and the disclosure officers and their addresses are provided for your information.
The functions of each component are also summarized in the "United States Government Manual." The "United States Government Manual" is issued annually by the Government Printing Office and is available in most public libraries. It may be purchased by writing to: The Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954. To obtain the current price you may call (202) 512-1800. In addition, the "United States Government Manual" can be accessed electronically at the Government Printing Office.
It is recommended that you address your request to a specific disclosure officer. You should include the notation "Attention: FOIA Request" on the front of your request envelope and also at the beginning of your request letter. In this way you will be sure that the disclosure officer receives your request without delay.
If you believe the Labor Department maintains the records you are seeking but are uncertain about which component has the records, you may send your request to: Division of Legislation and Legal Counsel, Office of the Solicitor, Room N-2428, 200 Constitution Avenue, N.W., Washington, D.C. 20210, Attention: FOIA Request. Personnel in that division will forward your request to the component(s) of the Labor Department that they believe maintain the records you are seeking.
The Department of Labor does not require a special form in order to make a FOIA request. Requests must be in writing, either handwritten or typed. Requests may be submitted by fax, courier services, mail, or to firstname.lastname@example.org. Although, as discussed immediately below, certain information may be required from a requester.
Your request should be as specific as possible with regard to names, dates, time frames, places, events, subjects, etc. If known, you should include any file designations or descriptions of the records you want. You do not have to give a requested record's name or title, but the more specific you are the more likely it will be that the record you seek can be located. For example, if you have been interviewed by a law enforcement component (such as the Occupational Safety and Health Administration) in connection with a law enforcement investigation and you request a copy of the interview report, your listing of the date and location of the interview, and the name of the interviewing agent and subject of the investigation will be helpful in deciding where to search and in determining which records respond to your request.
In order to protect your privacy, when you make a written request for information about yourself you must provide either a notarized statement or a statement signed under penalty of perjury stating that you are the person you claim to be. You may fulfill this requirement by: (1) having your signature on your request letter witnessed by a notary, or (2) pursuant to 29 U.S.C. 1746 (2) including the following statement just before the signature on your request letter: "I declare under penalty of perjury that the foregoing is true and correct. Executed on [date]." If you request information about yourself and do not provide one of these statements, your request cannot be processed under the Privacy Act. This requirement helps to ensure that private information about you will not be disclosed to anyone else.
A FOIA request can be made for any agency record. This does not mean, however, that the Labor Department will disclose every record sought. There are statutory exemptions that authorize the withholding of information of an appropriately sensitive nature. When the Labor Department withholds information, it ordinarily must specify which exemption of the FOIA permits the withholding. You should be aware that the FOIA does not require agencies to do research for you, to analyze data, to answer questions, or to create records in order to respond to a request.
In those cases in when the disclosure officer can not process your request due to the lack of necessary information, you will be contacted and additional information will be requested.
Under certain circumstances, you may be entitled to receive more information under the Privacy Act of 1974 (a separate federal statute) than under the FOIA. Under the FOIA, anyone can request any agency record. Privacy Act requests are more limited and can be made only by U.S. citizens or aliens lawfully admitted for permanent U.S. residence status, who are seeking information about themselves, which is maintained in a system of records by their names or other personal identifiers. Even if a request does not mention the Privacy Act, however, the Labor Department automatically treats requests as being made under both the FOIA and the Privacy Act whenever it is appropriate to do so.
Under the statute, federal agencies are required to respond to a FOIA request within twenty days, excluding Saturdays, Sundays, and legal holidays. This period does not begin until the request is actually received by the disclosure officer of the component that maintains the records sought. If a component is unable to respond to your request by providing you with the releasible documents by the last business day; it can send you a letter informing you of its decision and send the documents within a reasonable time afterward.
Some components of the Labor Department, receive thousands of requests each year. Many of these requests require a line-by-line review of hundreds or even thousands of pages of documents. Although the Labor Department makes every effort to respond to FOIA requests as promptly as possible, in some cases it simply cannot do so within the specified time period.
Under the FOIA, a component may extend the response time for an additional ten business days when: (1) the component needs to collect responsive records from field offices; (2) the request involves a "voluminous" amount of records which must be located, compiled, and reviewed; or (3) the component must consult with another agency which has a substantial interest in the responsive material or with two or more other components of the Labor Department. When such an extension is needed, the component may notify you of this 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.
Under certain conditions you may be entitled to have your request processed on an expedited basis, i.e., within 10 calendar days of the date on which the request was received. However, in an effort to treat all requesters equitably, the Labor Department ordinarily will only expedite a FOIA request in cases in which there is a threat to someone's life or physical safety; the requestor is primarily engaged in disseminating information and has established that the request is urgently needed to inform the public concerning some actual or alleged government activity; or where an individual will suffer the loss of substantial due process rights if the records are not processed on an expedited basis.
There is no initial fee to file a FOIA request and in many cases no fees are charged for processing. By law, an agency is entitled to charge certain fees, which depend on the category into which you fall.
For the purpose of fees only, the FOIA divides requesters into four categories: (1) commercial requesters may be charged fees for searching for records, reviewing the records, and photocopying them; (2) educational or noncommercial scientific institutions are charged for photocopying, after the first 100 pages; (3) representatives of the news media are charged for photocopying after the first 100 pages; and (4) all other requesters (requesters who do not fall into any of the other three categories) are charged for photocopying after 100 pages and for time spent searching for records in excess of two hours. The Labor Department charges $0.15 per page for photocopying. Actual costs are charged for a format other than paper copy, such as computer tapes, disks and videotapes.
You may include in your request a specific statement limiting the amount that you are willing to pay in fees. If you do not do so, the Labor Department will assume that you are willing to pay fees up to $25. If we estimate that the fees for processing your request will exceed $250, we will notify you of the estimate and offer you an opportunity to narrow your request in order to reduce the fees.
If you are advised or expect that a fee will be charged, you may request in writing a waiver of those fees if 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. The mere fact that you are a non-profit organization or a member of the media does not in and of itself qualify for a fee waiver. In addition, a requester's inability to pay is not a legal basis for granting a fee waiver.
The FOIA provides access to all federal agency records (or portions of those records), except those records that are withheld under nine exemptions and three exclusions (reasons for which an agency may withhold records from a requester). The determination letter will advise you of any information that is being withheld pursuant to one or more of the exemptions. When pages are being withheld in their entirety, the component will specify the volume of the materials denied and/or, if feasible, the location of excluded material.
You may file an administrative appeal with the Solicitor of Labor if records responsive to your request are withheld, if you believe that there are records responsive to your request in addition to those records processed by the agency, if your request has not been granted within the time limits set forth in the FOIA, or if your request for expedited processing or a fee waiver is denied. You have ninety (90) days from the denial to file your appeal. Make your appeal in writing and mail it to:
Solicitor of Labor, U.S. Department of Labor, 200 Constitution Ave., NW, Room N-2428, Washington, D.C. 20210, Attn: Freedom of Information Act Appeal
There is no specific form or particular language needed to file an administrative appeal. You should include any initial request number assigned to your request and copies of your initial request and the response of the disclosure officer. Your letter should explain the reasons for your appeal. For example, if you are appealing because you believe there are additional records that have not been located, you should specify why you think such records exist and, if possible, where you believe they might be located.
You may file a lawsuit in Federal Court if the Labor Department fails to respond to either your initial request or your appeal within the time limits discussed above; or if, after your appeal has been decided, you still believe that the Labor Department has not handled your FOIA request in accordance with the law. 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 U.S. District Court for the District of Columbia, or (4) where the agency records are maintained. You have six years to file suit in a District Court from the time your right to sue begins.