************************************************************** Educational CyberPlayGround http://www.edu-cyberpg.com/ ************************************************************** Net Happenings Mailing List Net Happenings Service <http://www.edu-cyberpg.com/Community/Subguidelines.html> Subscribe | Unsubscribe | Change Email Preferences - <http://www.edu-cyberpg.com/Community/NetHappenings.html> ************************************************************** National Children's Folksong Repository www.edu-cyberpg.com Integrate Literacy, Music, and Technology into the classroom. ************************************************************** To: The World Wide Web in Education List <wwwedu@xxxxxxxxxxxxxxx> From: "David P. Dillard" <jwne@xxxxxxxxxxxxxxxxxxxxx> Date: Mon, 17 May 2004 11:21:07 -0400 (EDT) Subject: [WWWEDU] Freedom of Information Act Manual (FOIA Manual) Subject: [NetGold] UNITED STATES: GOVERNMENT : FREEDOM OF INFORMATION AND SPEECH: Freedom of Information Act Manual (FOIA Manual) Freedom of Information Act Manual (FOIA Manual) <http://www.nlrb.gov/nlrb/about/foia/substantive_manual.asp> Table of Contents TABLE OF CONTENTS FOR FOIA MANUAL (SUBSTANTIVE PORTION) CONTENTS: I. Purpose of Manual II. Introduction III. Related Statutes A. The Federal Records Act B. The Privacy Act 1. Access Rights 2. Nondisclosure Rules IV. Agency Records and Electronic FOIA A. Agency Records Subject to Potential Disclosure B. Discretionary Use of E-Mail C. Retrieving and Disclosing Electronic Documents/p> D. Electronic Reading Room V. Application of FOIA Privileges VI. Exemption 2 VII. Exemption 4 VIII. Exemption 5 A. Threshold Question of the Applicability of Exemption 5 B. Deliberative Process Privilege C. Attorney Work-Product Privilege D. Attorney-Client Privilege IX. Exemption 6 A. Analytical Approach of Supreme Court in Reporter's Committee 1. Identity of Requester and Specific Purpose of Requester are Irrelevant: 2. Public Interest is Narrowly Defined 3. Establishment of Practical Obscurity Standard 4. Categorical Balancing is Permissible Under Certain Circumstances B. Derivative Uses of the Disclosed Documents Should Not be Considered X. Exemption 7 A. Exemption 7(A) B. Exemption 7(C) C. Exemption 7(D) D. Exemption 7(E) XI. Waiver XII. Section 102.118, Subpoenas, and the FOIA A. Section 102.118 (29 C.F.R. 102.118) B. Subpoenas C. Relationship of 102.118 and Board and Judicial Subpoenas to the FOIA XIII. Fees and Fee Waivers Under the FOIA A. Introduction B. The Statutory Framework C. Statutory Use Categories 1. Commercial Use 2. Educational, Noncommercial Scientific Institutions, and Representatives of the News Media 3. All Other Requesters D. Imposition of Fees 1. Limitations on the Imposition of Fees 2. Chargeable Fees By the NLRB a. Commercial Requesters (Assessed Full Costs of Search, Review and Duplication) b. News Media and Educational Institution Requesters (Free Search and Review; 100 free pages) c. All Other Requesters (2 Free Hours of Search; Free Review; 100 Free Pages) 3. Schedule of Charges E. Principles of General Applicability 1. Aggregation of Requests 2. Interest 3. Assumption of Liability for Fees 4. Advance Payments 5. Estimating costs 6. Fee Waiver and Fee Reduction 7. Appeals of Fee-Related Issues FOIA MANUAL (SUBSTANTIVE SECTION) I. Purpose of Manual This Manual has been prepared by the General Counsel to furnish guidance to Agency employees in making determinations concerning the public release of Agency records under the Freedom of Information Act (FOIA), as amended, [1] and in litigating FOIA-based lawsuits. This FOIA Manual does not constitute a final determination by the General Counsel or the Board concerning the availability of any document; nor does it create legally binding obligations to release or withhold documents. This manual is offered solely for the convenience and assistance of Agency employees who are called upon to process and litigate FOIA requests. This guide supersedes all previous General Counsel and Operations-Management FOIA memoranda, which are hereby rescinded. II. Introduction The core purpose of the FOIA is to shed light on an Agency's performance of its statutory duties. [2] The FOIA has two automatic disclosure provisions5 U.S.C. 552(a)(1) and (a)(2). [3] The first provision requires the publication in the Federal Register of basic information regarding how the agency transacts its business, including its rules and regulations, statements of procedure and its organization and functions. [4] The second automatic disclosure provision requires the creation of conventional and electronic reading rooms, where certain categories of documents are routinely made available for public inspection and copying, unless the materials are promptly published and copies offered for sale. [5] The FOIA's other disclosure provision, 5 U.S.C. 552(a)(3), allows any person to access those records which are not automatically disclosed, as just discussed, and which are not otherwise exempt under one of the nine specific exemptions or three exclusions. [6] Requests under subsection (a)(3) require search, including by electronic means, and review by agency personnel prior to disclosure to the requester. Moreover, this subsection requires that the agency make reasonable efforts to disclose records in the form or format preferred by the requester, including electronic format, where the records are readily reproducible in that format. This subsection also requires that each agency promulgate administrative regulations regarding the time, place, fees and procedures to be followed in making a FOIA request. The NLRB has promulgated Subpart K, Section 102.117 of its Rules and Regulations, which sets forth the Agency's administrative FOIA procedures. Subparagraphs (c) and (d) set forth the administrative procedures that a FOIA requester must follow in making a FOIA request to the Agency, filing an administrative appeal, and exhausting administrative remedies within given time constraints. They also provide for fee category placement, assessment of costs and the standards for determining whether a fee waiver will be granted. Subparagraph (e) incorporates the nine FOIA exemptions by reference and grants to the General Counsel and the Board the right to make discretionary FOIA disclosures. Finally, the FOIA provides that upon complaint, [7] with an answer required within 30 days, [8] United States District Courts have jurisdiction, with de novo review, to enjoin an agency from withholding agency records. If a requester substantially prevails, reasonable attorneys' fees and costs may be awarded. [9] III. Related Statutes A. The Federal Records Act The FOIA controls the disclosure of agency records. However, it does not control whether the Agency is required to maintain particular records, or whether they may be disposed of. Rather, the records creation, management, and disposal duties of federal agencies are set out in a collection of statutes known collectively as the Federal Records Act (FRA), 44 U.S.C. 2101 et seq., 2901 et seq., 3101 et seq., and 3301 et seq. See Public Citizen v. Carlin, 2 F.Supp. 2d 1 (D.D.C. 1997) appeal pending, No. 97-5356 (D.C. Cir. Dec. 29, 1997). The FRA is intended to assure, among other things, [a]ccurate and complete documentation of the policies and transactions of the Federal Government, [c]ontrol of the quantity and quality of records produced by the Federal Government, and [j]udicious preservation and disposal of records. 44 U.S.C. 2902. A portion of the FRA, the Records Disposal Act, 44 U.S.C. 3301 et seq., requires agencies to create schedules for the disposal of their records having no sufficient administrative, legal, research, or other value to warrant their further preservation by the Government, and to obtain the approval of those schedules from the Archivist of the United States. See 44 U.S.C. 3303(3), 3303a. The schedules are created in accordance with National Archives and Records Administration regulations. Pursuant to these provisions, the Agency has obtained approval from the Archivist for the disposition of Agency records. For example, official case files should be transferred to a Federal Records Center two years after the cutoff of the file, which occurs at the close of the calendar year during which the case was closed. The Federal Records Center then destroys the files 6 years after the cutoff. Certain records, however, may be designated for permanent retention. [10] A complete listing of the Agency's Disposition Standards can be found in Appendix I of the Files Management and Records Disposition Handbook, issued by the Library and Records Management Branch. The FRA defines what constitutes an agency record. That definition includes all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them. 44 U.S.C. 3301. Only those documents that meet this definition of record are subject to the requirements of the FRA and the Agency's retention and disposal schedules. However, a separate, generally broader definition of agency record, has developed under FOIA law, including documents (i) created or obtained by an agency, and (ii) under agency control at the time of the FOIA request. See United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989) (see infra for a more detailed discussion of agency records under the FOIA). Thus, while the Agency's schedules may not require that particular documents be retained, the documents, if they exist, nonetheless may be subject to disclosure pursuant to a FOIA request if they meet the definition of agency record under the FOIA. [11] B. The Privacy Act The Privacy Act, 5 U.S.C. 552a et seq., both (i) requires agencies to provide requesters access to their own records, 5 U.S.C. 552a(d)(1), and (ii) prohibits the disclosure of covered records about third parties. 5 U.S.C. 552a(b). For the Privacy Act's access or nondisclosure requirements to apply, the requested documents must be in a record and must be contained in a system of records. See 5 U.S.C. 552a(a)(4)&(5). The Board publishes notices of its systems of records in the Federal Register and on its web site. There currently are twenty systems of records for which the Board has published notice. See 58 Fed. Regis. 57633 (Oct. 26, 1993) and 53 Fed. Regis. 17262 (May 16, 1988) for a list of citations to the Board's system notices. 1. Access Rights. With certain exceptions, the Privacy Act grants a requester a right of access to his record or to any information pertaining to him which is contained in a system of records and is retrievable by the name of the requester. See 5 U.S.C. 552a(d)(1). See also Henke v. Department of Commerce, 83 F.3d 1453, 1460 (D.C. Cir. 1996). The Agency receives very few requests for access to records under the Privacy Act. However, FOIA processors are encouraged to consider whether a requester may be entitled to records under the Privacy Act, even if the request references only the FOIA. [Note that, if a requester has a right of access to his record under the Privacy Act, the Board must release the record even if a discretionary FOIA exemption would permit the Agency to withhold the document under the FOIA. See 5 U.S.C. 552a(t)(1).] Requests for access under the Privacy Act should be addressed to the manager of the system of records containing the requested records. If a Regional Director or Resident Officer receives a request for access to records under the Privacy Act, he or she should contact the Headquarters FOIA Officer, who will forward the request to the appropriate system manager, if any. 2. Nondisclosure Rules. Title 5 U.S.C. 552a(b) prohibits agencies from disclosing any record contained in a system of records, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains. Note that while the exemptions to the FOIA are discretionary, the Privacy Act's nondisclosure provision is mandatory. Thus, unless it has the consent of the covered individual, the Agency must withhold records subject to the Privacy Act's nondisclosure provision. It therefore is particularly important for the FOIA processor to consider whether documents requested under the FOIA may be covered by the Privacy Act's nondisclosure provision. However, there are several statutory exceptions to the Privacy Act's nondisclosure provision, see 5 U.S.C. 552a(b)(1)-(12), including a major exception based on the FOIA. See 5 U.S.C. 552a(b)(2). The FOIA exception requires disclosure to a FOIA requester of a record which otherwise would be nondisclosable under the Privacy Act without the covered individual's consent, but only if the record is disclosable under the FOIA and is not subject to any FOIA exemption. See id.; Dept. of Defense v. FLRA, 114 S. Ct. 1006, 1011-12 (1994). Thus, if a FOIA requester seeks a record that both is disclosable under the FOIA and is covered by the Privacy Act's nondisclosure rules, the request should be handled as follows: a. If the individual to whom the Privacy Act record pertains consents to disclosure, and no FOIA exemption applies, the record must be released under the FOIA; b. If the individual to whom the Privacy Act record pertains consents to disclosure, and one or more FOIA exemptions apply, the record must be withheld unless the Agency exercises its discretion to release the document. c. If the individual to whom the Privacy Act record pertains does not consent to disclosure, and no FOIA exemption applies, that is, disclosure is required under the FOIA, the documents must be released under the FOIA; d. If the individual to whom the Privacy Act record pertains does not consent to disclosure, and a FOIA exemption applies, the FOIA exemption must be asserted and the documents must be withheld under the Privacy Act. [Read the remainder of this manual at the URL above.] Sincerely, David Dillard Temple University (215) 204 - 4584 jwne@xxxxxxxxxxxxxxxx <http://groups.yahoo.com/group/NetGold/> <http://www.edu-cyberpg.com/ringleaders/davidd.html> <http://www.kovacs.com/medref-l/medref-l.html> WWWEDU, The Web and Education Discussion Group http://groups.yahoo.com/group/wwwedu http://www.edwebproject.org/wwwedu.html <>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<> EDUCATIONAL CYBERPLAYGROUND http://www.edu-cyberpg.com Net Happenings, K12 Newsletters, Network Newsletters http://www.edu-cyberpg.com/Community/index.html FREE EDUCATION VENDOR DIRECTORY LISTING http://www.edu-cyberpg.com/Directory/default.asp HOT LIST OF SCHOOLS ONLINE http://www.edu-cyberpg.com/Schools/default.asp Educational CyberPlayGround Services http://www.edu-cyberpg.com/PS/Home_Products.html <>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>~~~~~<>