text:
Office of the Secretary, Department of Labor.
This final rule amends the Department of Labor's regulations under the Freedom of Information Act (“FOIA”). The regulations have been revised to update and streamline the language of several procedural provisions and to incorporate changes brought about by the amendments to the FOIA under the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016. Additionally, the regulations have been updated to incorporate changes in the agency's administrative structure.
This final rule is effective January 23, 2017.
Ramona Branch Oliver, Director, Office of Information Services, 202-693-5391 (this is not a toll free number) or 1-877-889-5627 (TTY). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at (800) 877-8839.
On August 17, 2016, the Department of Labor published a Notice of Proposed Rule Making (NPRM) to revise its existing regulations under the FOIA found at 29 CFR part 70, to update and streamline the language of several procedural provisions and to incorporate changes brought about by the amendments to the FOIA under the OPEN Government Act of 2007, Public Law 110-175, 121 Stat. 2524, and the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538 (enacted June 30, 2016). The Department invited comments through October 17, 2016.
Discussion of Comments: Preparation of the NPRM and this finalization of the Start Printed Page 7667Department's updated FOIA regulation satisfied the requirement in Section 3 of the FOIA Improvement Act of 2016 that each agency review and revise its FOIA regulation to be consistent with the statutory requirements.
Interested persons were afforded the opportunity to participate in the rulemaking process through submission of written comments to the proposed rule during the open comment period. In total, the Department received six submissions in response to its proposed rule, including comments from two Federal agencies, as well as internal comments from a component of the Department. Due consideration has been given to each of the comments received and, in response, the Department has made several modifications to the rule. These modifications include clarifying, revising, or expanding various provisions, withdrawing a provision, retaining existing language for certain other provisions, and making technical edits, such as correcting Web site links.
One commenter expressed concern that the use of the phrase “or financial” is superfluous in the first clause of subsection § 70.2(j) (defining submitter), because that phrase is already included in the definition of “confidential commercial information” in subsection (b). The Department has determined that including “or financial” is helpful in identifying different types of information. As such, DOL declines to make the requested change.
One commenter suggested that the definition of “unusual circumstances” in § 70.2(k)(3) should state that consultation could occur “. . . with another agency or among two or more components of the Department having a substantial interest in the determination of the request.” The Department agrees that the proposed change will enhance the rule's clarity, and so the revised final rule adopts this proposed language.
One commenter suggested that the regulation does not include the use of exclusions and that if DOL would have any opportunity to use an exclusion, they should be addressed. The Department agrees with this comment and has incorporated by reference the law enforcement exclusions in subsection (c) of the FOIA at §§ 70.3 and 70.20(b).
One commenter noted that the Department makes many (a)(2) proactive disclosures by posting materials on DOL Web sites other than the Department's specific FOIA Web site pages, for which a URL was included in this section of the NPRM. Accordingly, the commenter suggested removing a specific link to the Department's FOIA Web page and instead stating more generally that records may be accessed through the Department's Web site. The Department agrees with the comment, and the final rule has been revised to remove the specific URL.
Three commenters expressed concern regarding DOL's decision to continue to have a single central email box for the receipt of FOIA requests, and raised a number of points regarding whether this creates inefficiencies in DOL's FOIA processing. Specifically, § 70.19(a) of the NPRM states, consistent with the Department's existing FOIA regulation at 29 CFR 70.19(b), that any FOIA request submitted electronically, by email, must be submitted to a single email address.
One commenter requested that DOL clarify that even though DOL's FOIA program is decentralized, DOL will receive all electronic submission to one inbox and that each request will then be sent to the appropriate component for processing. That same commenter expressed concern that the NPRM language regarding a central email inbox may be in conflict with the NPRM at § 70.19(b), which states that requesters should submit their request directly to the component that maintains the records sought. The same commenter suggested that if DOL has a single email address for electronic submissions, it should make clear that the requester must designate the component to which the request is directed. One of the commenters sought to confirm that requests submitted electronically are not automatically subject to the “routing” provision, under which the time processing clock does not begin until a request is received in the proper component or until ten days after receipt anywhere in the Department. This same commenter flagged that § 70.19(b)(2) of the NPRM provides that requesters who do not know where to submit their request can email it to the same central email address indicated for all requests submitted electronically in (a), and that “routing” procedures might then apply. The same commenter asked how DOL will know which requests need to be “routed” vs. those that are just being submitted electronically to a particular component. The commenter also stated that when requesters indicate the component (or components if they are submitting to more than one), it does not seem appropriate for DOL to “route” these requests because this is the only way they may be submitted electronically. The commenter asked whether DOL considered establishing email addresses to receive electronic submissions for all components. The commenter noted that this approach would seem to allow requests to get where they need to go more efficiently.
DOL has considered these comments and—for the reasons explained below—has determined that DOL's FOIA program can be administered most effectively with a single central email inbox for receipt of FOIA requests, but that some clarification to the regulatory text of § 70.19 can be made to explain DOL's process and address the commenters' concerns. DOL has established an effective method to receive and assign incoming FOIA requests received by email. DOL has established a single centralized FOIA mailbox, which is actively monitored by staff within the Department's central FOIA office, the Office of Information Services. Staff who monitor the FOIA mailbox are responsible for ensuring that FOIA requests are appropriately directed to the agency component(s) identified by the requester or to the appropriate component(s) in instances where the requester has failed to identify a component or has identified the wrong component. Receipt in the central FOIA email inbox does not automatically add 10 additional days for “routing,” rather, the Department has established an operational performance measure that tracks whether requests are routed to the agency component(s) likely to maintain responsive records within two business days of receipt. By having a centralized FOIA email inbox monitored by FOIA staff, the Department has ensured that FOIA requests are not received at email addresses that are not regularly monitored, or sent to DOL staff who are not involved in FOIA processing and may not know what to do with an incoming FOIA request.
For these reasons, the Department has determined to retain the concept of a Start Printed Page 7668central incoming FOIA email inbox. However, DOL has modified the language of § 70.19(a) in several ways to increase public clarity and promote efficient logging and assignment of incoming FOIA requests. The final text adds language to § 70.19(a) and (b) further explaining the Department's process, and indicating that requesters should, when emailing in requests, identify the component or components to which they are submitting their FOIA request in order to facilitate the timely assignment and processing of their request. The final rule also seeks to clarify the circumstances under which the time to respond begins to run, by moving the last clause of § 70.19(b)(2) from the NPRM into a separate provision at § 70.19(b)(3), and clarifying that if a requester submits a FOIA request to the incorrect DOL FOIA component, or sends a request to the Department's central FOIA office or mailbox without identifying the component(s) to which the request is submitted, the time to respond begins to run when the request is received by the proper component, but no later than 10 working days after receipt in any component identified in Appendix A or in the Office of Information Services.
One commenter raised concerns with the provision at § 70.20(a) providing that the Department's Office of Information Services may coordinate responses when “it is determined that records responsive to a request may be located in multiple components of the Department.” The commenter suggested that this provision might add an obligation beyond the requirements of the FOIA, for example, requiring one component to conduct searches at those other components and process those records.
The Department disagrees that this provision, which is not a procedural change from the existing regulation, creates new or additional responsibilities. This provision does not mandate that OIS coordinate responses, or that one component undertake searches of other components' records. Rather this provision recognizes that there may be circumstances where similar or the same documents are maintained by multiple components of the Department, and it is appropriate to coordinate search, review and response, for example, through use of coordinated search terms. Although DOL's FOIA program is decentralized, it remains one agency and seeks to speak in one voice on matters of disclosure of documents that may be duplicative or have overlapping equities across the agency. In addition, this comment raises a policy question related to how DOL structures its FOIA operation, and the Department has determined that it will continue its present program administration and flexibility in the operation of the Department's FOIA program. Accordingly, the final rule adopts the provision as proposed.
Also, in reference to § 70.20(d), one commenter suggested that the language be altered because, as written, it does not authorize the Department to consult with the Office of White House Counsel, which is neither an “agency” nor a Department component. The Department does not believe a revision is necessary because the regulatory language recognizes that consultation or referral may occur with “another component . . . of the Federal Government.” The Department believes that this adequately covers instances where DOL might need to consult with the Office of White House Counsel.
One commenter suggested that § 70.20 should include language on “coordination” to cover situations where referring records may not be appropriate, and gave as an example instances where a referral would reveal classified information. The Department does not believe this change is necessary, as the Department does not have original classification authority pursuant to the prevailing executive order on national security classification and, likewise, does not have the authority to downgrade or declassify documents.
One commenter suggested that § 70.21(b) should require the Department's acknowledgement letter to indicate the date of receipt of the request. The Department declines to make this change as it is beyond the scope of the current statutory requirement. It is also unnecessary to DOL's FOIA program because Departmental policy is that acknowledgment letters should provide requesters with a link to the public FOIA portal, which provides the requester with the date of receipt. The final rule adopts the provision as proposed.
One commenter suggested that the wording of § 70.21(e)(5) of the NPRM, regarding the “Content of the denial,” incorrectly implies that “adverse determination” and “denial” are different in kind, and suggested combining the subparts of (5) into (e). The commenter stated that any denial is an adverse determination and must include notification of appeal rights as well as the availability of OGIS and the FOIA Public Liaison. The Department concurs that the language of § 70.21(e)(5) in the NPRM potentially led to confusion. In response to this comment, the Department has combined subsections (4) and (5) of this provision in the final rule.
The Final Rule includes a new provision of Section 70.21(e)(5) that states “Engaging in dispute resolution services provided by OGIS is a voluntary process. If the Department agrees to participate in the mediation services provided by OGIS, it will Start Printed Page 7669actively engage as a partner to the process in an attempt to resolve the dispute.” This change is in response to a comment received on Section 70.22.
The NPRM at Sec. 70.22(a) identified as one circumstance in which a FOIA requester could file an appeal “a component's failure to respond to the request within the time limits.” One commenter objected to this language on grounds that there is no response to appeal when the DOL component to which a FOIA request was submitted has not provided a timely response, and that a requester does not need to administratively appeal in order to exhaust administrative remedies. The Department declines to remove the reference to “a component's failure to respond to the request within the time limits” as an example of a circumstance that may prompt an administrative appeal because many requesters are not inclined to seek judicial review on the basis of a delayed response to a pending FOIA request and would rather seek to obtain disclosure of information through the administrative appeals process. Although a requester does not have to exhaust his or her administrative remedies on timeliness issues where no initial response has been provided, the Department believes that the better practice under FOIA is to continue to make an administrative appeal available to requesters, and that eliminating this option may result in requesters believing that litigation is necessary when an administrative process may more quickly and cost effectively address the requester's concern.
One commenter raised a concern with the wording of § 70.22(a) in that it does not identify the ability of a requester to appeal from a failure of the Department to respond in a timely manner to a request for expedited processing, or to appeal in the event that the Department refuses to provide responsive records in a requested format. As Sec. 70.21 provides, a FOIA requester may file an administrative appeal in response to any denial or adverse determination. Section 70.22(a) provides examples of when a requester may seek a de novo review through the Department's FOIA administrative appeal process, but the list is not intended to be an exhaustive identification of the bases for appeal. To assist the public, the Department has revised this provision in the final rule to make clear that it provides examples rather than an exhaustive list.
One commenter suggested that in the third sentence, “Consistent with the statute” should be removed, noting that the Freedom of Information Act, as amended, does not require notification about services provided by OGIS in appeals letters, but rather that any such inclusion is based on guidance from the Office of Information Policy. In response to this comment, the Department has modified the language in the final rule and removed the phrase “consistent with the statute” from this provision.
One commenter suggested that § 70.25(a) should note that the routing of requests may impact timing. The commenter recommended adding the following language, “In instances involving misdirected requests that are re-routed pursuant to § 70.20(c) of this subpart, the response time will commence on the date that the request is received by the proper component's office that is designated to receive requests, but in any event not later than 10 working days after the request is first received by any component's office that is designated by these regulations to receive requests.” The Department agrees with this comment and has added the suggested language to the final rule.
One commenter suggested removing the clause “unless there are exceptional circumstances within the meaning of 5 U.S.C. 552(a)(6)(C)” from § 70.25(a) and noted that only a court can make a determination that there are exceptional circumstances. The Department agrees with this comment, and has removed this provision from the final rule.
In relation to § 70.25(c)(1), one commenter suggested that, as a practical matter and looking at agency response times, agencies tend to need more than ten additional days when there are unusual circumstances requiring extension of processing times. The commenter suggested that the language stating “this extension should not ordinarily exceed ten business days” be removed. The Department agrees with this comment, and has removed this phrase from the final rule.
One commenter suggested that the Department was creating an unnecessary administrative burden by requiring in § 70.25(e)(3) that a person seeking expedited processing as a member of the media establish that “he or she is a person whose main professional activity or occupation is information dissemination . . .” Consistent with administrative guidance, the Department believes that to meet the standard for expedited processing under the FOIA statute (see 5 U.S.C. 552(a)(6)(E)(v)(II)) a requester who is not a full-time member of the news media must establish that he or she is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester's sole occupation. DOL does not believe that requiring the requester to meet the statutory standard is unnecessarily burdensome. Therefore, the final rule adopts the provision as proposed in the NPRM.
One commenter recommended that Executive Order 12,600 be cited consistently in §§ 70.26(a) and (g)(3). The Department agrees with this comment and has edited these sections for consistency in the final rule.
One commenter suggested that § 70.26(e) and (f)(3) should be modified to provide that the “reasonable period” that a submitter has to object to the agency's proposed treatment of the submitter's material will be at least five business days from the date that the Start Printed Page 7670submitter receives the agency's notice. The Department declines to make this change. The NPRM provision at § 70.26(e) indicates that a submitter will be provided with a “reasonable time to respond” to a notice from the agency, but also notes that the response date will be specified in the submitter's notice provided in accordance with Executive Order 12,600. Furthermore, the time provided to a submitter for responding is based upon the volume and complexity of the materials requested. Section 70.26(f)(3) does not discuss response time periods. The final rule adopts both provisions as proposed.
One commenter suggested a change to § 70.38(a), which states that “request” in the costs subpart includes any request and any appeal. The commenter suggested removing the reference to the FOIA appeal stage on grounds that no fees are assessed on appeal, noting that while a request may be remanded on appeal for further processing, any subsequent fees apply to the underlying request, not the appeal. The Department agrees with this comment, and the final rule removes references to FOIA appeals.
Regarding the definition of “representative of the news media” in the NPRM at § 70.38(i)(3), one commenter asked that DOL remove two uses of the word “qualifying” from the phrase “qualifying news media entity” because inclusion of the word “qualifying” gives the impression that a news media entity must meet some separate or additional qualification standard. The commenter suggested that the phrase “news media entity” is sufficient. The Department agrees with this comment. The final rule removes the word “qualifying” from this provision.
Two commenters noted that, in § 70.40(c) and (d), DOL has identified four types of requesters for fee purposes, and suggested that these groups could be combined into three. The Department has determined that identifying four types of requesters is helpful to distinguish between different types of requesters that communicate with the Department. As such, the Department declines to make the change requested, and the final rule adopts the provision as proposed.
One commenter noted that § 70.40(e)(1)(iii) of the NPRM states that if a search requires transportation of the searcher to the location of the records, or of the records to the searcher, all transportation costs in excess of $5 may be added to search costs. The commenter raised questions about this provision and whether it was an appropriate cost to pass on to the requester. In response to the comments received, the Department is removing this provision from the final rule as unnecessary. The Department notes that this provision has been in effect since 2006 when the DOL last published its FOIA regulations (see 71 FR 30762), but is not aware of any instance in which such costs have been assessed.
One commenter noted that § 70.40(e)(2) of the NPRM states that a FOIA component may require the requester to provide any medium requested other than paper. The commenter raised questions about this provision and whether it was an appropriate burden to pass on to the requester. In response, the Department is removing this provision from the final rule as unnecessary. The Department notes that this provision has been in effect since 2006 when DOL last published its FOIA regulations (see 71 FR 30762), but is not aware of any instances where this provision was applied.
One commenter asked if DOL has evaluated the actual cost of reproducing paper copies identified in § 70.40(e)(2) (FOIA requests) and 70.53(c) (requests for documents from the Office of Labor-Management Standards). The commenter suggested that, with the use of commercial vendors, actual costs are likely close to 5 or 10 cents per page, rather than the 15 cent per page costs included in the NPRM. DOL notes that it does not typically use commercial vendors to help fulfill requests for paper-based records in response to FOIA requests, and therefore that comparison may not be applicable here. Furthermore, as the NPRM states, reproduction cost also reflects the time associated with reproducing the documents being provided. Accordingly, DOL declines to make a change to the cost of the duplication of paper-based records. The final rule adopts the provision as proposed.
Regarding the NPRM provisions regarding limitations on fee charges, one commenter suggested that § 70.40(e)(4)(i) should use language that more closely matches the statutory language. The commenter suggested that section (4) should note what the “certain fees” are, and suggested, that, as written, this provision does not account for the possibility of the exception in § 70.40(e)(4)(ii). Additionally, the commenter suggested that § 70.40(e)(4)(ii) should be edited to state “and more than 5,000 pages are necessary to respond to the request,” noting that “deemed to be responsive” is potentially more restrictive. The Department agrees that this comment has identified some potentially confusing language, and has accordingly modified § 70.40(e)(4) to incorporate the recommended change.
In addition to the changes made as a result of specific comments and Departmental feedback, this final rule includes changes already identified in the NRPM (see 81 FR 54770) to include changes in language and structure of the existing regulation and to codify changes based on the FOIA Improvement Act of 2016. As an additional administrative update, the Department is also making a change to § 70.27 (Preservation of records) to update the National Archives and Records Administration's General Records Schedule which governs the disposition of FOIA case files and related records from GRS 14 to GRS 4.2: Information Access and Protection Records.
Regulatory Flexibility Act: The Secretary of Labor, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Under the FOIA, agencies may recover only the Start Printed Page 7671direct costs of searching for, reviewing, and duplicating the records processed for requesters, and only for certain classes of requester and when particular conditions are satisfied. Thus, fees assessed by the Department are nominal. Further, the “small entities” that make FOIA requests, as compared with individual requesters and other requesters, are relatively few in number.
Executive Order 12,866: This regulation has been drafted and reviewed in accordance with Executive Order 12,866, § 1(b), Principles of Regulation. The Office of Management and Budget has determined that this rule is not a “significant regulatory action” under Executive Order 12,866, § 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by OMB.
Proactive disclosure of Departmental records.
Requirements for making a request.
Responsibility for responding to requests.
Appeals from denial of requests.
Form and content of action on appeals.
Time limits and order in which requests and appeals must be processed.
Statutes specifically providing for setting of fees.
Charges assessed for the production of records.
Waiver or reduction of fees.
Authority: 5 U.S.C. 301; 29 U.S.C. 551 et seq.; 5 U.S.C. 552, as amended; Reorganization Plan No. 6 of 1950, 5 U.S.C. Appendix, 29 U.S.C. 1026 (106), 5 U.S.C. app. 11., Executive Order. 12,600, 52 FR 23781, 3 CFR, 1988 Comp., p. 235. This part also implements the public information provisions of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. 435, see § 70.53 below; the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1026 (106), see § 70.54 below; and the Federal Advisory Committee Act (FACA), 5 U.S.C. app. 11, see § 70.40(i) below.
(a) This part is organized as follows: Subpart A contains general information about Department of Labor policies and procedures; subpart B sets forth the procedures for obtaining access to records of the Department; subpart C contains the Department's regulations on fees; and subpart D sets forth the procedures for obtaining access to certain public records. Appendix A contains a list of all Department of Labor FOIA components from which records may be obtained.
(b) This part contains the rules that the Department of Labor follows in processing requests for records under the Freedom of Information Act (FOIA), as amended, 5 U.S.C. 552. The rules in this part should be read together with the text of the FOIA, which provides additional information about access to records maintained by the Department. Additionally, the Department's “Guide to Submitting Requests under the FOIA” and related documents contain helpful information about the specific procedures particular to the Department with respect to making FOIA requests, and descriptions of the types of records maintained by different components of the Department. These references are available at http://www.dol.gov/dol/foia/guide6.html.
(d) As set forth in § 70.3 of this part, the Department operates its FOIA program with a presumption of openness and withholds records or information under the FOIA only when the Department reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or when disclosure is prohibited by law.
(e) The Department has a decentralized system for processing requests, with each component handling requests for its own records. Each component has a FOIA Customer Service Center that can assist individuals in locating records and address questions regarding pending FOIA requests. A list of the Department's Customer Service Centers is available at http://www.dol.gov/dol/foia/RequestorServiceCenters.htm.
(f) The Secretary has designated a Chief FOIA Officer for the Department. Contact information for the Chief FOIA Officer is available on the Department's FOIA Web site, http://www.dol.gov/dol/foia/. The Office of Information Services (OIS), which is located within the Office of the Solicitor, provides Department level guidance and oversight for the Department's FOIA program and supports the statutorily-based responsibilities of the DOL Chief FOIA Officer.
(g) The Department has a designated FOIA Public Liaison who can assist individuals in locating records of a particular component and with resolving issues relating to the processing of a pending FOIA request. Information concerning the DOL FOIA Start Printed Page 7672Public Liaison is available at http://www.dol.gov/sol/foia/liaison.htm. The DOL FOIA Public Liaison is responsible for assisting in reducing delays in FOIA processing, increasing transparency and understanding, providing information concerning the status of requests, and assisting in the resolution of disputes.
(d) FOIA Component means an official component of the Department that has authority to disclose or withhold records under the FOIA and to which requests to inspect or copy records in its custody should be addressed. Department of Labor components are listed in Appendix A to this part.
(j) Submitter means any person or entity from whom the Department receives or obtains confidential commercial or financial information, directly or indirectly. The term submitter includes, but is not limited to, corporations, labor organizations, non-profit organizations, and local, state, and tribal and foreign governments.
(3) The need for consultation, which will be conducted with all practicable speed, with another agency or among two or more components of the Department having a substantial interest in the determination of the request.
All agency records, except those exempt from mandatory disclosure by one or more provisions of 5 U.S.C. 552(b) or the law enforcement exclusions in 5 U.S.C. 552(c), will be made promptly available to any person submitting a written request in accordance with the procedures of this part. The Department will withhold records under the FOIA only when the Department reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or is prohibited by law. Whenever the Department determines that full disclosure of a requested record is not possible, the Department will consider whether partial disclosure is possible and will take reasonable steps to segregate and release nonexempt material. As set forth in Sec. 70.4, the Department proactively identifies and discloses records of interest to the public.
Records that are required by the FOIA, 5 U.S.C. 552(a)(2), to be made available for public inspection in an electronic format may be accessed through the Department's Web site. Each component is responsible for determining which of its records are required to be made publicly available, as well as identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. Each component must review and update its Web site of posted records and indices on an ongoing basis.
(a) General information. The Department of Labor has a decentralized system for responding to requests submitted under the FOIA, as explained in § 70.1 of this part. In addition to processing requests for its own records, each agency component has the ability to receive FOIA requests in writing by mail, delivery service/courier or facsimile at its designated mailing address. However, to enable proper handling, any FOIA request submitted electronically, by email, must be submitted to the Department's central FOIA mailbox at foiarequests@dol.gov. FOIA requests sent electronically to any other email address will not be accepted. A FOIA request submitted via email should designate the component or components to which the requester is submitting his/her request. The Department's central FOIA mailbox is regularly monitored, and requests will be assigned to the appropriate DOL FOIA component.
(b) Request for records. To make a request for records of the Department, whenever possible, a requester should write directly to the FOIA office of the component that maintains the records sought or, if emailing a request to the DOL central FOIA mailbox, should identify the component(s) to which the request is directed. Submitting the request directly to the FOIA office of the component that maintains the records sought, or identifying that component when sending a FOIA request via email, will facilitate the quickest response. The Start Printed Page 7673requester must provide a mailing address to receive correspondence, and it may facilitate processing if telephone and email contact information are provided.
(1) The Department's components for the purposes of the FOIA are listed in Appendix A to this part. The function and mailing address of each Department of Labor component is available on the Department's FOIA Web site at http://www.dol.gov/dol.foia. This page also provides other information that is helpful in determining where to make a request.
(2) Requesters who cannot determine the proper FOIA office component or who are requesting records from multiple components may also send requests to the Office of the Solicitor, Office of Information Services, 200 Constitution Avenue NW., Room N-2420, Washington, DC 20210 or by email to foiarequests@dol.gov.
(3) Pursuant to § 70.25(a), if a requester submits a FOIA request to the incorrect DOL FOIA component, or sends a request to the Department's central FOIA office or mailbox without identifying the component(s) to which the request is submitted, the time to respond begins to run when the request is received by the proper component, but no later than 10 working days after receipt in any component identified in Appendix A or in the Office of Information Services.
(c) Description of records sought. Requesters must describe the record or records sought in sufficient detail to enable Department personnel to locate them with a reasonable amount of effort. To the extent possible, the request should provide enough identifying information to help the component identify the requested records, such as the subject of the record, the date or approximate date when the record was created, the record's title or name, case or file number, reference number, the person or office or the office location that created it, and any other pertinent identifying details. Prior to submitting the request, a requester may wish to consult the references provided in § 70.1 of this part, the relevant FOIA Requester Service Center or the FOIA Public Liaison to discuss the records they are seeking and to receive assistance on how to describe the records.
(3) While an agency component awaits a requester's modified FOIA request, the processing time limits described in § 70.25(a)(1) will be tolled (that is, the processing time clock will be stopped on one occasion only) until clarification is received from the requester.
(b) Authority to grant or deny requests. Pursuant to relevant exemptions under 5 U.S.C. 552(b) or an exclusion under 5 U.S.C. 552(c), the head of a component, or designee, is authorized to grant or to deny any requests for records that are maintained by that component.
(c) Granting a request. After a component makes a determination to Start Printed Page 7674grant a request in full or in part, the component will notify the requester in writing. The component will provide the record in the form or format requested if the record is readily reproducible in that form or format, provided the requester has agreed to pay and/or has paid any fees required by subpart C of this part. The component will determine on a case-by-case basis what constitutes a readily reproducible format. Each component should make reasonable efforts to maintain its records in commonly reproducible forms or formats. The component must notify the requester of the right to seek assistance from the Department's FOIA Public Liaison.
(5) A statement notifying the requester of the right to seek dispute resolution services from the Department's FOIA Public Liaison or the Office of Government Information Services (within the National Archives and Records Administration). Engaging in dispute resolution services provided by OGIS is a voluntary process. If the Department agrees to participate in the mediation services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.
(a) A requester may appeal to the Solicitor of Labor from any adverse determination, including but not limited to when one or more of the following has occurred: A request for access to records has been denied in whole or in part; a requester disputes a determination that records cannot be located or have been destroyed; a requester disputes a determination by a component concerning the assessment or waiver of fees; a requester disputes the denial of a request for expedited processing; or a component fails to respond to a request within the time limits set forth in the FOIA and referenced in 70.25(a). The appeal must be filed within 90 days of the date of the action being appealed.
(b) The appeal must state in writing the grounds for appeal, and it may include any supporting statements or arguments, but such statements are not required. In order to facilitate processing of the appeal, the appeal should include the assigned request number (if applicable), appellant's mailing address and daytime telephone number, as well as copies of the initial request and the component's response. If mailed, the envelope and the letter of appeal should be clearly marked: “Freedom of Information Act Appeal.” Any amendment to the appeal must be in writing and received prior to a decision on the appeal.
The disposition of an appeal will be issued by the Solicitor of Labor or designee in writing. A decision affirming, in whole or in part, the decision below will include a brief statement of the reason or reasons for the affirmance, including the FOIA exemption or exemptions relied upon, and its relation to each record withheld. The appeal determination will advise the requester of the availability of the mediation services of the Office of Government Information Services (OGIS) as a non-exclusive alternative to litigation. The appeal will also notify the requester of the statutory right to judicial review of the denial by the United States District Court for the judicial district in which the requester resides or maintains his or her principal place of business, the judicial district in which the requested records are located, or the District of Columbia. If it is determined on appeal that a record should be disclosed, the record will be provided in accordance with the decision on appeal. If it is determined that records should be denied in whole or in part, the appeal determination will include an estimate of the volume of records or information withheld, in number of pages or in some other reasonable form of estimation. This estimate does not need to be provided if the volume is otherwise indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption.
(a) Time limits. The FOIA establishes a 20 business day deadline for regular requests and appeals, and a 10 calendar day time limit for making determinations regarding expedited processing. Components of the Department of Labor will comply with the time limits required by the FOIA for responding to and processing requests and appeals. In instances involving misdirected requests that are re-routed pursuant to § 70.20(c) of this subpart, Start Printed Page 7675the response time will commence on the date that the request is received by the proper component's office that is designated to receive requests, but in any event not later than 10 working days after the request is first received by any component's office that is designated by these regulations to receive requests. A component or the designated appeal authority will notify a requester whenever they are unable to respond to or process the request or appeal within the time limits established by the FOIA.
(2) A request for expedited processing may be made at the time of the initial request for records or at any later time. For a prompt determination, a request for expedited processing must be received by the proper component. Requests based on paragraphs (e)(1)(i) through (iv) of this section must be submitted to the component that maintains the records requested.
(a) In general. Confidential commercial information will be disclosed under the FOIA only in accordance with this section and Executive Order 12,600, “Predisclosure Notification Procedures for Confidential Commercial Information” (3 CFR 1988 Comp., p.235).
(2) A component has reason to believe that the information requested under the FOIA may be protected from disclosure under Exemption 4, but has not yet determined whether the information is Start Printed Page 7676protected from disclosure under that exemption or any other applicable exemption.
Each component will preserve all correspondence relating to the requests it receives under this part, and all records processed pursuant to such requests, until disposition or destruction of such correspondence and records is authorized by Title 44 of the United States Code or the National Archives and Records Administration's General Records Schedule 4.2. Records are not to be destroyed while they are the subject of a pending request, appeal, or lawsuit under the Act.
(a) Request, in this subpart, includes any request, as defined by § 70.2(f) of this part.
(c) Duplication means the process of making a copy of a record necessary to respond to a request. Such copy can take the form of paper, microform, audio-visual materials or electronic records (such as a CD or other media).
(d) Search means the process of looking for and retrieving records or information that are responsive to a FOIA request. It includes page-by-page or line-by-line identification of information within records and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format. FOIA components will ensure that searches are done in the most efficient and least expensive manner reasonably possible. A search does not include the review of material, as defined in paragraph (e) of this section, which is performed to determine whether material is exempt from disclosure.
(f) Commercial use request means a request from or on behalf of a person who seeks information for a use or purpose that furthers his or her commercial, trade or profit interests, which can include furthering those interests through litigation. When considering fee issues, components will determine, whenever reasonably possible, the use to which a requester will put the requested records. When it appears that the requester will put the records to a commercial use, either because of the nature of the request Start Printed Page 7677itself or because a component has reasonable cause to doubt a requester's stated use, the component will provide the requester a reasonable opportunity to submit further clarification.
(2) Operates a program or programs of scholarly research. To qualify under this definition, the program of scholarly research in connection with which the information is sought must be carried out under the auspices of the academic institution itself as opposed to the individual scholarly pursuits of persons affiliated with an institution. For example, a request from a professor predicated upon research funding granted to the institution would meet its requirements. A request from a professor seeking information that will assist in the writing of a book, independent of his or her institutional responsibilities, would not qualify under this definition.
(i) Representative of the news media means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. Examples of news media entities include television or radio stations that broadcast “news” to the public at large and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, as well as news organizations that operate solely on the internet. Alternative media may be considered to be news media entities. These examples are not all inclusive.
(3) A freelance journalist will be treated as a representative of the news media if the person can demonstrate a solid basis for expecting publication of matters related to the requested information through a news media entity. A publication contract with a news media entity satisfies this requirement. An individual's past publication record with such organizations is also relevant in making this determination.
(d) Types of charges that will be assessed for each type of request— (1) Commercial use request. When a requester makes a commercial use request, search costs, duplication costs and review costs will be assessed in their entirety.
(2) Duplication costs. The standard copying charge for records in black and white paper copy is $0.15 per page. This charge includes the operator's time to duplicate the record. When responsive information is provided in a format other than 81/2 x 11 or 11 x 14 inch black and white paper copy, such as computer tapes, disks and color copies, the requester may be charged the direct costs of the tape, disk, audio-visual or whatever medium is used to produce the information, as well as the direct cost of duplication, including operator time.
(3) Review costs. Costs associated with the review of records, as defined in § 70.38(e), will be charged for work performed by a clerical employee at a rate of $5.00 per quarter hour when applicable. When professional or supervisory personnel perform work, a rate of $10.00 per quarter hour will be charged, when applicable. Except as noted in this paragraph, charges may Start Printed Page 7678only be assessed for review the first time the records are analyzed to determine the applicability of specific exemptions to the particular record or portion of the record. Thus a requester would not be charged for review at the administrative appeal level with regard to the applicability of an exemption already applied at the initial level. When, however, a record has been withheld pursuant to an exemption which is subsequently determined not to apply and is reviewed again at the appellate level to determine the potential applicability of other exemptions, the costs attendant to such additional review will be assessed.
(i) If there are unusual circumstances (as that term is defined in § 70.25(c)) and the component has provided timely written notice, the component is permitted ten additional days to respond to the request. After the expiration of the ten additional days, the component is no longer permitted to assess search fees or, in the instances of requests from requesters described in § 70.38(h) and (i), duplication fees except as described in paragraph (e)(4)(ii) of this section.
(ii) If there are unusual circumstances (as that term is defined in § 70.25(c)), and more than 5,000 pages of documents are necessary to respond to the request, the component may continue to charge assessable fees for as long as it takes to process the request, provided that the component has provided timely written notice and discussed with the requester via telephone, email, or written mail (or made at least three good-faith attempts to do so) how the requester could effectively limit the scope of the pending request.
(iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to “public understanding.” The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area and ability and intention to effectively convey information to the public will be considered. It will be presumed that a representative of the Start Printed Page 7679news media will satisfy this consideration.
(i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure. The component will consider any commercial interest of the requester (with reference to the definition of “commercial use request” in § 70.38(f) of this subpart), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters will be given an opportunity in the administrative process to provide explanatory information regarding this consideration.
(a) De minimis costs. As noted in § 70.42(a) of this subpart, the Department has determined it will not assess or collect fees below $25.00. In these cases, the cost of collecting and processing a fee equals or exceeds the amount of the fee which would otherwise be assessed. The Department will assess fees where the costs to be assessed, after deduction of any free pages and/or search time, is $25.00 or higher.
(c) Advance payments and billing. (1) Prior to beginning to process a request, the component will make a preliminary assessment of the amount that can properly be charged to the requester for search and review time and copying costs. Where a component determines or estimates that a total fee to be charged under this section will be more than $250.00, the component will require the requester to make an advance payment of an amount up to the entire anticipated fee before beginning to process the request. The component may waive the advance payment where the component receives a satisfactory assurance of full payment from a requester who has a history of prompt payment of an amount similar to the one anticipated by the request.
(b) The documents listed in paragraph (a) of this section are available from: U.S. Department of Labor, Office of Labor-Management Standards, Public Disclosure Room, N-1519, 200 Constitution Avenue NW., Washington, DC 20210. Reports filed pursuant to section 201 of the Labor-Management Reporting and Disclosure Act of 1959 and pursuant to 29 CFR 458.3 implementing the Civil Service Reform Act of 1978 and the Foreign Service Act of 1980 for the year 2000 and thereafter are also available at http://www.union-reports.dol.gov.
(b) The mailing address for the documents described in this section is: U.S. Department of Labor, Employee Benefits Security Administration, Public Documents Room, 200 Constitution Avenue NW., Washington, DC 20210.
The following list identifies the individual agency components of the Department of Labor for the purposes of the FOIA. Each component is responsible for making records in its custody available for inspection and copying, in accordance with the provisions of the FOIA and this part. Unless otherwise specified, the mailing addresses for the following national office components are listed below. Updated contact information for national and regional offices can be found on the DOL Web site at http://www.dol.gov/dol/foia.
1. Office of the Secretary (OSEC).
2. Office of the Solicitor (SOL).
3. Office of Administrative Law Judges (ALJ), 800 K Street NW., Suite N-400, Washington, DC 20001-8002.
4. Office of the Assistant Secretary for Administration and Management (OASAM).
16. Employment and Training Administration (ETA). Job Corps (part of ETA).

matches: § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 1 § 3 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70 § 70