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Because of their diverse missions, Department of Labor agencies have
widely varying experiences in carrying out their FOIA responsibilities. Some
consistently receive many FOIA requests, and others receive very few. Some
agencies are more likely to be the object of public attention, whereas personal
concerns may be the main focus of FOIA requests that other agencies receive.
Some agencies more than others are the repository of especially sensitive,
private, confidential, or FOIA exempt information. Because of this diversity,
the Department of Labor administers its FOIA program on a decentralized basis
at the initial request level.
Decentralization has led to DOL agencies adopting a variety of FOIA
practices. Some agencies run a very structured FOIA program. Others operate
with considerably greater flexibility. The differing agency practices are
explained partly by the number of requests that agencies receive and partly by
the nature of the programs they administer. Other differences, however, may
have no solid policy or pragmatic basis but may result from the unique culture
of each agency or the lack of significant agency experience with FOIA.
The relatively short time available and the wide decentralization of the
FOIA program — both in the national and regional offices — limited
the Department's ability to conduct a comprehensive, definitive study of its
FOIA practices. Nevertheless, consultation with agency FOIA personnel, DOL
employees actively involved in the administration of FOIA programs, and
Departmental leadership facilitated the compilation of sufficient baseline
information to conduct a meaningful review and select areas of improvement. As
the discussion of these areas of improvement indicates, the gathering of
information about DOL's practices will be an ongoing process. We include below
a summary of the results of our study.
1. Communication with Requesters.
When DOL agencies receive FOIA requests, their practices of
communicating with requesters differ. Most agencies typically send a written
acknowledgement to the requester, but some do not and may rely on phone or
other forms of communication. There is little agency consistency in these
acknowledgement letters or other communications. Some agencies tell requesters
when they can expect a response, but others do not. Some agencies tell
requesters when their request will be referred to another office, but some do
not attempt to estimate the additional time that this referral will add. Most
appear to resolve fee issues before processing the request. Some agencies
appear to make a special effort to communicate with the requester concerning
the scope of the request. Such discussions are believed to be very helpful,
because they can lead to more focused requests and responses that meet
requester needs with less cost to the requesters. Some agency letters may
provide information about persons to contact for questions and complaints.
There appears to be little contact between agencies and their requester
communities to seek their perceptions of the agencies' FOIA programs.
2. Web Presence and Proactive Disclosure.
The Department of Labor Web site provides information on FOIA to assist
potential FOIA requesters. See http://www.dol.gov/dol/foia/main.htm. The Web
site includes a "Guide for Requesting FOIA Records," a list of the Department's
FOIA disclosure officers, links to the FOIA Requester Service Centers
established pursuant to the Executive Order, links to the FOIA Web sites of
individual agencies, and links to the Department of Labor's annual FOIA reports
dating back to 1996. Not all of the information is in user-friendly form and
some is outdated, and not all links are operable. For example, the list of FOIA
disclosure officers is reproduced from an appendix to the Department's FOIA
regulations and does not contain electronic cross-links, while pages under the
FOIA "Electronic Reading Rooms" section are not functioning properly.
Individual Department of Labor agencies commonly have extensive Web
sites in which they post materials of interest to their constituencies and the
public. These agency Web sites are designed to allow the information they
contain to be accessed in a variety of ways, such as by topic or by audience,
and agencies periodically review their sites, including the use of focus groups
or usability testing, to ensure that the information contained in them is easy
to find and use. The agencies Web sites include, for example, compliance
assistance information and guidance, statistical information, and information
about the functions of the various DOL agencies. As might be expected, agencies
that receive many FOIA requests have more formal procedures for the regular
posting of commonly requested documents and for assuring that the public is
aware of their availability. One agency is in the process of exploring how one
of its more popular major databases can be posted on the web in searchable
form. This would reduce the need to respond to individual FOIA requests
regarding that database. If other agencies similarly examined their databases,
they might also avoid the need to expend resources responding to individual
FOIA requests.
3. FOIA Tracking and Control Systems.
Department of Labor agencies use various methods to track the progress
of FOIA requests. Most agencies use computer-based tracking and control tools,
sometimes combined with manual tracking. In some cases, diverse parts of a
major DOL agency may use different methods. Some agencies use software, such as
spreadsheet programs, to track requests. These programs might be used, for
example, to record the requester's name, date of request, items being
requested, date request was received, due date, date of response, and final
disposition. The Department of Labor has developed a computerized FOIA
Tracking/Control tool which has been made available to all of its agencies.
Although most agencies do use this FOIA system, at least in part, only
approximately one-third of initial FOIA requests received by the Department are
tracked through this electronic system. This tool, in addition to tracking
requests, captures all data needed for the Department of Labor's Annual FOIA
Report filed with the Department of Justice. DOL has identified important areas
in which improvements are needed. These areas include: making the system more
user friendly; making it more flexible for entering data; and providing for
easier, more flexible, and more useful data retrieval and report
generation.
4. Use of Electronic Tools in FOIA Processing.
Some agencies use a form of electronic searches as a means of locating
documents responsive to FOIA requests. Sometimes, an internet search will be
conducted to see where the request should be referred, including to a non-DOL
agency. Some agencies deliver some responses to FOIA requests electronically.
With respect to the processing of responses, we are aware of no significant use
of electronic tools to redact exempt materials, either at the initial request
level, or in connection with the processing of appeals.
5. Multi-track processing and Requests for Expedited Processing.
Most agencies appear responsive to requests for expedited treatment of
requests, but most do not use a multi-tracking process to handle FOIA requests.
The absence of multi-tracking appears to be explained, in part, by the fact
that many DOL agencies receive relatively few requests. Multi-tracking agencies
use a three-tier system, consisting of "simple," "complex," and "expedited"
requests.
6. Increase Number of Appeals Processed.
While agencies do have some backlogs and some requests that have been
pending for significant time periods, our study suggests that backlogs are a
more substantial issue at the administrative appellate level. Because the
Department operates a centralized appellate structure, all appeals of initial
agency decisions are funneled through the Office of the Solicitor. As of April
30, 2006, the Department had a FOIA and Privacy Act appeal backlog (cases
pending more than 30 days) of 273 cases, with a monthly average of 17 appeals
processed in 2005. The Department recently has taken the following actions for
the purpose of increasing appeals processing capacity and backlog
reduction:
(a). It has recently hired one GS-14 attorney and one GS-11 paralegal
whose primary duties consist of reviewing FOIA files and drafting appeals
decisions.
(b). It has recently hired new top management in areas relating to
appeals processing. This new management is prioritizing appeals production
activities.
(c). The Department recently obtained the services of a law school
intern who is assisting with appeals. It has also begun a program of actively
soliciting law school interns to supplement its appeals resolution capacity so
that it may maintain one such intern at all times. This arrangement will allow
for staffing flexibility as the backlog fluctuates downward.
7. Staff Expertise and Training.
Development of staff expertise can occur through on-the-job experience,
formal training, or through the ready availability to FOIA staff of relevant
resource information. Through the Office of the Solicitor, the Department has
been very effective over the years in providing training to employees working
in the FOIA area. It has held a number of multi-day agency wide conferences
covering a variety of FOIA-related issues. The Department of Justice
highlighted the Department of Labor's efforts in underscoring the value of
these conferences. See FOIA Post (February 22, 2005).
The Department of Labor can build on this foundation. The practices of
individual DOL agencies with respect to formal training vary significantly.
Many agency employees have attended sessions conducted by the Office of the
Solicitor. Efforts to assure cost-effective formal training for all FOIA staff
are complicated by the fact that some agencies receive few FOIA requests and
therefore have few employees doing substantial FOIA work. Even those agencies
with substantial FOIA responsibilities may have few full-time employees engaged
in FOIA work and many who perform FOIA work along with their other non-FOIA
duties. Using employees to perform FOIA work on a part-time basis can increase
an agency's flexibility in handling unexpected surges and downturns in FOIA
workload. However, the FOIA workload fluctuations of individual employees can
complicate an agency's task of using its resources cost-effectively to provide
meaningful formal training.
With respect to formal training, the practices of agencies vary
significantly. Many agency employees have attended training sessions conducted
by the Office of the Solicitor or have received other formal training. However,
some agencies make training available only to some of their employees, and in
many cases, agency employees appear to have received no formal training.
Agency practices also vary in making FOIA written or electronic
materials available to staff. Some agencies distribute to their employees
written informational materials or instructions that they receive from the
Solicitor's Office or elsewhere, including the Justice Department FOIA and
Privacy Act Guide. Some make informational materials, such as the DOJ FOIA
guide, available on their Web sites or common servers.
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