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April 11, 2006
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| MEMORANDUM FOR:
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REGIONAL ADMINISTRATORS
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| ATTENTION:
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NATIONAL FOIA OFFICER
REGIONAL FOIA COORDINATORS
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| FROM:
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STEVEN F. WITT
Acting Deputy Assistant Secretary
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| SUBJECT:
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Revised Interim Guidelines on Changes in Procedures
for Handling Privacy Act Files and Freedom of
Information Act Requests
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The following procedures replace in their entirety the procedures outlined in paragraph B.5 of
Chapter 1 of the OSHA Whistleblower Investigations Manual (CP 02-03-002; DIS 0-0.9) and
are effective immediately. The Manual is currently under revision, and the new release will
incorporate these changes.
- Investigation Records. Investigation materials or records include interviews, notes,
work papers, memoranda, e-mails, documents, and audio or video tapes received or
prepared by an investigator concerning, or related to the performance of any
investigation, or in the performance of any official duties related to an investigation.
Such original materials are records that are the property of the United States
Government and must be included in the case file. Under no circumstances are
investigation notes and work papers to be destroyed, retained, or used by an employee
of the Government for any private purpose. In addition, files must be maintained and
destroyed in accordance with official agency schedules for retention and destruction or
records. Investigators may retain copies of Final Investigation Reports (FIR) for
reference.
- Disclosure of Information Contained in Investigation Records. The disclosure of
information in investigation records is governed by the Privacy Act (PA), the goal of
which is to protect the privacy of individuals in whose names records are kept, and the
Freedom of Information Act (FOIA), the goal of which is to enable public access to
government records. The guidelines below are intended to ensure that the
whistleblower program meets its obligations under both of these statutes.
- Non-public Disclosure. While a case is under investigation or appeal,
information contained in the case file may be disclosed to the parties in order to
resolve the complaint; we refer to these as non-public disclosures. While a
case is under investigation, disclosure is at OSHA's discretion, although OSHA
encourages the parties to copy one another on all information sent to OSHA,
provided that information doesn't violate privacy of any third parties. Once a
case is closed at the agency level, records not otherwise protected from
disclosure may be disclosed to the parties, upon their request. This non-public
disclosure may occur at any level after the investigative stage, through the
course of any administrative or judicial proceedings, until the final disposition of
the case, either through the administrative or judicial process. The procedures
for non-public disclosures are as follows:
- During an investigation, disclosure of the complaint must be made to the
respondent. Disclosure may also be made of any additional information
provided by the complainant that is pertinent to the resolution of the
complaint. The form and timing of the disclosure are at OSHA's
discretion. If the complaint or information provided by the complainant
contains personal, identifiable information about individuals other than
the complainant, such information where appropriate, should be
redacted before disclosure to the respondent. (This includes
disclosures made in order to provide due process under the preliminary
reinstatement provisions of STAA, AIR21, SOX and PSIA.)
- During an investigation, disclosure must be made to the complainant of
at least the substance of the respondent's response. Other evidence
submitted by the respondent (or the substance of it) may also be
disclosed, so that the complainant can fully respond to the respondent's
position and the investigation can proceed to a final resolution. The
form and timing of the disclosure are at OSHA's discretion. (See II.B.)
- Personal, identifiable information about individuals, other than the
complainant and management officials representing the respondent, that
is contained in the investigative file, such as statements taken by OSHA
or information for use as comparative data, such as wages, bonuses,
the substance of promotion recommendations, supervisory assessments
of professional conduct and ability, or disciplinary actions, should
generally by withheld when such information could violate those
persons' privacy rights, cause intimidations or harassment of those
persons, or impair future investigations by making it more difficult for
OSHA to collect similar information from others.
- In taking statements from individuals other than management officials
representing the respondent, the investigator must make clear to the
individual that he or she has the right to request confidentiality, and if he
or she does so request, his or her identity will be kept confidential to
the extent allowed by law. In addition, upon an individual's request for
confidentiality, the statement itself must be clearly marked in such a way
as to prevent the unintentional disclosure of the confidential statement.
- Appropriate, relevant, necessary and compatible investigative records
may be disclosed to other federal agencies responsible for investigating,
prosecuting, enforcing, or implementing the general provisions of the
statutes whose whistleblower provisions are enforced by OSHA, if
OSHA deems such disclosure to the compatible with the purpose for
which the records were collected.
- Appropriate, relevant, necessary and compatible investigative records
may be shared with another agency or instrumentality of any
governmental jurisdiction within or under the control of the United
States for a civil or criminal law enforcement activity, if the activity is
authorized by law, and if that agency or instrumentality has made a
written request to OSHA, signed by the head of the agency, specifying
the particular records desired and the law enforcement activity for
which the records are sought.
When such a request for records is received, the supervisor must
immediately notify RSOL of its receipt, so that the disclosure may be
made in full compliance with 5 USC 552a, subsection (b)(7) and 29
CFR 2.21 (Third Party Subpoena Regulation [Touhy regs.]).
- Trade Secrets and Confidential Business Information (CBI). If, during the
course of an investigation, the respondent has identified any evidence submitted as a
trade secret or confidential commercial or financial information, and the investigator has
no reason to question such identification, this information will be labeled "Confidential
Business Information," or "CBI". If requested, assurance may be made in writing that
the information will be held in confidence to the extent allowed by law, and that, under
Executive Order 12600, submitters of confidential commercial or financial information
will be notified in writing of a pending FOIA request for disclosure of such information
and will be given an opportunity to comment on the impact of any potential disclosure
before the Agency reaches a decision regarding its disclosure. As required by the
Executive Order, if this agency does not agree with the submitter that materials
identified by the business submitter as CBI should be protected, business submitters
must be notified in writing and granted reasonable time to protest the release in a court
of competent jurisdiction.
- Public Disclosure. FOIA requests from non-party requesters must be directed to the
appropriate Disclosure Officer. Upon receipt of a FOIA request relating to a closed
case, the Disclosure Officer must process the request in compliance with Departmental
FOIA regulations. See 29 CFR Part 70 et seq. and DLMS 5 Chapter 300. The
following definitions should be used in determining whether a case is considered open
or closed:
- Open Cases. If a case is open, information contained in the case file may
generally not be disclosed. In the event that the matter has become public
knowledge because the complainant has released information to the media,
limited disclosure may be made to an equivalent extent. Consultation with OIA
is necessary before disclosure, especially in high-profile cases.
- Closed Cases. Generally, cases under 11(c), AHERA, and ISCA should be
considered closed when a final determination has been made as to whether
litigation will be pursued. In contrast, cases under STAA, EPA, ERA, AIR21,
SOX, or PSIA should generally be considered closed once OSHA has
completed its investigation and issued its determination letter. However, these
cases would be considered open if OSHA is participating as a party in the
proceeding before the ALJ; recommending to RSOL that OSHA participate as
a party in the proceeding; or for any other reason, RSOL believes that it is
appropriate to invoke the continuing application of exemption 7(A) of 5 USC §
552. (However, closure at the OSHA level has no bearing on appropriate,
post-investigative, non-public disclosure of information between the parties
described in paragraph A., above.)
- Statistical Data. Disclosure may be made to Congress, the media,
researchers, or other interested parties, or statistical reports containing
aggregate results of program activities and outcomes. Disclosure may be in
response to requests made by telephone, e-mail, fax, or letter, by a mutually
convenient method. Statistical data may also be posted by the system manager
on the OSHA Web page.
- OSHA-Initiated Disclosure
- The Agency may decide that it is in the public interest or the Agency's interest
to disclose to the media the outcome of a complaint. Disclosure of the
complainant's name, however, may only be done with the consent of the
complainant; otherwise, the disclosure must be without personal identifiers.
- Statistics derived from reports containing aggregate results of program activities
and outcomes may be posted by the system manager on the OSHA Web page.
If you have any questions about the implementation of this policy, please contact Nilgun Tolek,
Director, Office of Investigative Assistance, at 202-693-2531 or tolek.nilgun@dol.gov.
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