RESOUR> [WWWEDU] Freedom of Information Act Manual (FOIA Manual)

Skip to first unread message


May 18, 2004, 10:42:41 AM5/18/04
From: NetHappenings Moderator
Date: Tue, 18 May 2004 09:39:06 -0500
Subject: RESOUR> [WWWEDU] Freedom of Information Act Manual (FOIA Manual)

Educational CyberPlayGround
Net Happenings Mailing List

Net Happenings Service

Subscribe | Unsubscribe | Change Email Preferences -
National Children's Folksong Repository
Integrate Literacy, Music, and Technology into the classroom.

To: The World Wide Web in Education List <>
From: "David P. Dillard" <>
Date: Mon, 17 May 2004 11:21:07 -0400 (EDT)
Subject: [WWWEDU] Freedom of Information Act Manual (FOIA Manual)

SPEECH: Freedom of Information Act Manual (FOIA Manual)

Freedom of Information Act Manual (FOIA Manual)

Table of 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
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
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


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

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.]

David Dillard
Temple University
(215) 204 - 4584

WWWEDU, The Web and Education Discussion Group


Net Happenings, K12 Newsletters, Network Newsletters



Educational CyberPlayGround Services

Reply all
Reply to author
0 new messages