§102.117. Freedom of Information Act Regulations: Agency materials including formal documents available pursuant to the Freedom of Information Act; requests for described records; time limit for response; appeal from denial of request; fees for document search, duplication, and review; files and records not subject to inspection.
29 C.F.R. § 102.117
Introduction. This subpart contains the Rules that the National Labor Relations Board (Agency) follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. The Rules in this subpart may be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (OMB Guidelines). Some records will be made available on the Agency's Web site at www.nlrb.gov to facilitate public access. Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552(a), are processed under § 102.119.
FOIA Officials. The following are designated as the Agency's FOIA officials with responsibilities for complying with the FOIA:
FOIA Officer. The Assistant General Counsel for the FOIA Branch is the Agency's designated FOIA Officer.
Chief FOIA Officer. The Associate General Counsel for the Division of Legal Counsel is the Agency's designated Chief FOIA Officer.
FOIA Public Liaison. The official(s) designated by the Chief FOIA Officer is the Agency's FOIA Public Liaison, with overall responsibilities for assisting in reducing delays, increasing transparency, understanding the status of requests, and assisting in the resolution of disputes. The designated FOIA Public Liaison is available on the Agency's Web site.
Authority to respond to requests and administrative appeals. The FOIA Officer has the authority to act upon and respond on behalf of the Board and the General Counsel to all requests for Agency records, except for records maintained by the Agency's Office of the Inspector General. The Office of the Inspector General has the authority to respond to all requests for records maintained by that Office. The Chief FOIA Officer has the authority to respond on behalf of the Chairman of the Board and the General Counsel to all administrative appeals of adverse determinations. The Chief FOIA Officer's authority includes responding, on behalf of the Chairman of the Board, to appeals of initial determinations made by the Office of the Inspector General.
Records made available. Records that are required by the FOIA under 5 U.S.C. 552(a)(2) may be accessed through the Agency's Web site at www.nlrb.gov.
Formal documents. The formal documents constituting the record in a case or proceeding are matters of official record and, until officially destroyed pursuant to applicable statutory authority, are available to the public pursuant to the procedures in this section.
Certification of records. The Executive Secretary will certify copies of all formal documents maintained by the Board upon request made a reasonable time in advance of need and payment of lawfully prescribed costs. The Deputy General Counsel will certify copies of any record maintained by, or originating from, the Office of General Counsel and any division, branch, or office organizationally overseen by the Office of the General Counsel, including any Regional, Subregional, or Resident Office.
Making FOIA requests to the Agency—
Content of requests—
Description of records sought. Requests for records must be in writing and must reasonably describe the record so as to permit its identification and location. To the extent possible, requesters may include specific information, such as the NLRB case number, case name, date(s) of record(s) requested, and/or full name of the party, author, or recipient of the record(s) in question. Requesters should include as much detail as practicable about the records sought. Requesters may contact the FOIA Public Liaison to discuss the records sought and to receive assistance in describing the records.
Assumption of fees. Requests must contain a specific statement assuming financial responsibility for the direct costs of responding to the request in accordance with paragraph (d)(2) of this section.
Specificity requirement. Requests that do not reasonably describe the records sought or assume sufficient financial responsibility for responding to the request, or that otherwise fail to comply with this section, may delay the Agency's response to the request.
Transmission of requests. Requests for records maintained by the Agency should be made to the FOIA Branch, which is located in the Agency's Washington, DC headquarters. The FOIA Branch is responsible for responding to requests for records originating from, or maintained by, the Board and the Office of the General Counsel, including Regional, Subregional, and resident offices. Requests for records maintained by the Agency's Office of the Inspector General may be made directly to that office.
Requesters may file FOIA requests electronically through the Agency's Web site (https://www.nlrb.gov), which is the preferred method of submission to allow for prompt receipt, including for requests for records maintained by the Agency's Office of the Inspector General. FOIA requests may also be made by mail to the Agency's Washington, DC headquarters address, by email to the Agency's designated mailbox, or by facsimile. The mailing address, email address, and facsimile number are available on the Agency's Web site.
Requests not made through the Agency's Web site should be clearly marked to indicate that they contain a request for records under the Freedom of Information Act.
Requests made to an Agency division, branch, or any office other than the FOIA Branch will be forwarded to the FOIA Branch by the receiving office, but in that event, the applicable time limit for response set forth in paragraph (i) of this section will be calculated from the date of receipt by the FOIA Branch. The receiving office will normally forward the request to the FOIA Branch within 10 days of the initial receipt.
Requests made to the Agency for records that originated with another governmental agency may be referred to that agency.
Processing of FOIA requests—
Timing of response. The Agency ordinarily responds to FOIA requests according to their order of receipt. An initial determination will be issued within 20 working days (i.e., exempting Saturdays, Sundays, and legal public holidays) after the receipt of a request. Responsive records are released at the time of the determination or, if necessary, at a time thereafter on a rolling basis.
Expedited treatment. A request for expedited processing may be made at any time during the pendency of a FOIA request or appeal. Requests and appeals will be taken out of order and given expedited treatment when warranted. A requester must provide sufficient justification to grant such processing by showing that any one of the following circumstances exists:
The lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
There is an urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information; or
The loss of substantial due process rights; or
(1) There is widespread and exceptional media interest and possible questions exist about the government's integrity which may affect public confidence.
(2) Within 10 calendar days of receipt of a request for expedited processing, the Agency will decide whether to grant it and will notify the requester of the decision. Once the determination has been made to grant expedited processing, the request will be given priority and processed as soon as practicable. If a request for expedited processing is denied, the Agency will act expeditiously on any appeal of that decision.
Initial determination of requests. Within 20 working days after receipt of a request by the FOIA Branch, a determination will be made whether to comply with such request, and the requester will be notified in writing of that determination. In the case of requests made for records maintained by the Agency's Office of the Inspector General, that determination will be made by the Office of the Inspector General. Requesters will be made aware of their right to seek assistance from the Agency's FOIA Public Liaison.
Grants of requests. If the determination is to comply with the request, the records will be made promptly available to the person making the request and, at the same time, a statement of any charges due in accordance with the fee schedule provisions of paragraph (d)(2) of this section will be provided.
Denials of requests. If the determination is to deny the request in any respect, the requester will be notified in writing of that determination. The determination will set forth: The reason(s) for the denial; the name and title or position of each person responsible for the denial; and an estimate of the volume of records or information withheld, in number of pages or in some other reasonable form of estimation: However, 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. The determination will also inform the requester of the right to seek dispute resolution services from the Agency's FOIA Public Liaison or the Office of Government Information Services, as well as the right to appeal the adverse determination under the administrative appeal provisions of paragraph (c)(2)(v) of this section.
Adverse determinations may consist of: A determination to withhold any requested record in whole or in part; a determination that a requested record does not exist or cannot be located; a determination that what has been requested is not a record subject to the FOIA; a determination on any disputed fee matter, including a denial of a request for a fee waiver or reduction or placement in a particular fee category; and a denial of a request for expedited treatment. An adverse determination to an administrative appeal by the Chief FOIA Officer will be the final action of the Agency. An adverse determination will inform the requester of the right to seek dispute resolution services from the Agency's FOIA Public Liaison or the Office of Government Information Services, as well as the right to appeal the adverse determination under the administrative appeal provisions of paragraph (c)(2)(v) of this section.
Records containing business information. Business information obtained by the Agency from a submitter will be disclosed under the FOIA only consistent with the procedures established in this section.
For purposes of this section— (1) Business information means commercial or financial information obtained by the Agency from a submitter that may be protected from disclosure under Exemption 4 of the FOIA.
(2) Submitter means any person or entity from whom the Agency obtains business information, directly or indirectly. The term includes corporations; state, local, and tribal governments; and foreign governments.
A submitter of business information will use good faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers to be protected from disclosure under Exemption 4. These designations will expire 10 years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period. The Agency will provide a submitter with prompt written notice of a FOIA request or administrative appeal that seeks its business information wherever required under paragraph (c)(2)(iv)(C) of this section, except as provided in paragraph (c)(2)(iv)(F) of this section, in order to give the submitter an opportunity to object to disclosure of any specified portion of that information under paragraph (c)(2)(iv)(D) of this section. The notice will either describe the business information requested or include copies of the requested records or record portions containing the information. When notification of a voluminous number of submitters is required, notification may be made by posting or publishing the notice in a place reasonably likely to accomplish notification.
Notice will be given to a submitter whenever: The information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or the Agency has reason to believe that the information may be protected from disclosure under Exemption 4.
The Agency will allow a submitter a reasonable time to respond to the notice described in paragraph (c)(2)(iv)(B) of this section. If a submitter has any objection to disclosure, it is required to submit a detailed written statement. The statement must specify all grounds for withholding any portion of the information under any exemption of the FOIA and, in the case of Exemption 4, it must show why the information is a trade secret or commercial or financial information that is privileged or confidential. In the event that a submitter fails to respond to the notice within the time specified in it, the submitter will be considered to have no objection to disclosure of the information. Information provided by a submitter under this paragraph may itself be subject to disclosure under the FOIA.
The Agency will consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose business information. Whenever the Agency decides to disclose business information over the objection of a submitter, the Agency will give the submitter written notice, which will include: A statement of the reason(s) why each of the submitter's disclosure objections was not sustained; a description of the business information to be disclosed; and a specified disclosure date, which will be a reasonable time subsequent to the notice.
The notice requirements of paragraphs (c)(2)(iv)(B) and (E) of this section will not apply if: The Agency determines that the information may not be disclosed; the information lawfully has been published or has been officially made available to the public; disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or the designation made by the submitter under paragraph (c)(2)(iv)(B) of this section appears obviously frivolous—except that, in such a case, the Agency will, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information.
Whenever a requester files a lawsuit seeking to compel the disclosure of business information, the Agency will promptly notify the submitter.
Whenever the Agency provides a submitter with notice and an opportunity to object to disclosure under paragraph (c)(2)(iv)(B) of this section, the Agency will also notify the requester(s). Whenever the Agency notifies a submitter of its intent to disclose requested information under paragraph (c)(2)(iv)(E) of this section, the Agency will also notify the requester(s). Whenever a submitter files a lawsuit seeking to prevent the disclosure of business information, the Agency will notify the requester(s).
Administrative appeals.
An appeal from an adverse determination made pursuant to paragraph (c)(2)(iii) of this section must be filed within 90 calendar days of the service of the notification of the adverse determination, in whole or in part. Appeals of adverse determinations made by the FOIA Officer or the Office of the Inspector General may be filed with the Division of Legal Counsel in Washington, DC.
As provided in paragraph (c)(2)(iii) of this section, an adverse determination will notify the requester of the right to appeal the adverse determination and will specify where such appeal may be filed. Within 20 working days after receipt of an appeal, the Chief FOIA Officer will make a determination with respect to such appeal and will notify the requester in writing. If the determination is to grant the appeal, the responsive records will be made promptly available to the requester upon receipt of payment of any charges due in accordance with the provisions of paragraph (d)(2) of this section. If the appeal is denied, in whole or in part, the requester will be notified of the reasons for the decision, the name and title or position of any person responsible for the denial, and the provisions for judicial review of that determination under the provisions of 5 U.S.C. Section 552(4)(B).
Before seeking judicial review of an adverse determination, a requester must first submit a timely administrative appeal.
Even if no FOIA appeal is filed, the Chief FOIA Officer may, without regard to the time limit for filing of an appeal, initiate reconsideration of an adverse determination by issuing written notice to the requester. In such event, the time limit for making the determination will commence with the issuance of such notification.
Extension of time to respond to requests. In unusual circumstances as specified in this paragraph (c)(2)(vi), the Agency may extend the time limits prescribed in either paragraph (c)(2)(i) or (iv) of this section by written notice to the requester setting forth the reasons for such extension and the date on which a determination is expected, and notifying the requester of the right to seek dispute resolution services from the Office of Government Information Services. The extension of time will not exceed 10 working days. As used in this paragraph (c)(2)(vi), unusual circumstances means, but only to the extent reasonably necessary to the proper processing of the particular request:
The need to search for and collect the requested records from other offices in the Agency that are separate from the FOIA Branch;
The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are sought in a single request;
(1) The need for consultation, which will be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or with two or more offices in the Agency having a substantial subject matter interest in the request.
(2) If the request cannot be processed within the time limits prescribed above, the Agency will provide the requester with an opportunity to limit the request so that it may be processed within the 10-day extended time limit for response. The requester may also arrange an alternative time frame with the Agency for processing the request or a modified request. The Agency's FOIA Public Liaison is available to assist with any issues that may arise.
Preservation of FOIA request files. The Agency will preserve files created in response to requests for information under the FOIA and files created in responding to administrative appeals under the FOIA until disposition or destruction is authorized by Title 44 of the United States Code or the National Archives and Records Administration's General Records Schedule 4.2, item 020. Records will not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.
Fees. For purposes of this section, the following definitions apply:
Direct costs means those expenditures which are actually incurred in searching for and duplicating and, in the case of commercial use requests, reviewing documents to respond to a FOIA request.
Search— refers to the process of looking for and retrieving records or information responsive to a request. It includes page-by-page or line-by-line identification of material within documents and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format. The Agency will ensure that searches are done in the most efficient and least expensive manner reasonably possible.
Duplication— refers to the process of making a copy of a record, or the information contained in it, necessary to respond to a FOIA request. Such copies can take the form of paper, microfilm, videotape, audiotape, or electronic records (e.g., magnetic tape or disk), among others. The Agency will honor a requester's specified preference of form or format of disclosure if the record is readily reproducible with reasonable efforts in the requested form or format by the office responding to the request.
Review— refers to the process of examining documents located in response to a request that is for commercial use to determine whether any portion of it is exempt from disclosure. It includes processing any documents for disclosure, e.g., doing all that is necessary to redact and prepare them for disclosure. Review time includes time spent considering any formal objection to disclosure made by a business submitter under paragraph (c)(2)(iv) of this section, but does not include time spent resolving general legal or policy issues regarding the application of exemptions.
Commercial use request— refers to a request from or on behalf of a person who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made, which can include furthering those interests through litigation.
Educational institution— refers to a preschool, a public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education, that operates a program of scholarly research. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scholarly research.
Representative of the news media— refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term news means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large and publishers of periodicals (but only in instances where they can qualify as disseminators of news) who make their products available for purchase or subscription by the general public. For “freelance” journalists to be regarded as working for a news organization, they must demonstrate a solid basis for expecting publication through that organization. A publication contract is the clearest proof, but the Agency will also look to the past publication record of a requester in making this determination. To be in this category, a requester must not be seeking the requested records for commercial use. However, a request for records supporting the news dissemination function of the requester will not be considered to be for a commercial use.
Working days,— as used in this section, means calendar days excepting Saturdays, Sundays, and legal holidays.
Fee schedule. Requesters will be subject to a charge of fees for the full allowable direct costs of document search, review, and duplicating, as appropriate, in accordance with the following schedules, procedures, and conditions:
Schedule of charges—
For each one-quarter hour or portion thereof of clerical time $3.10.
For each one-quarter hour or portion thereof of professional time $9.25.
For each sheet of duplication (not to exceed 8 1/2 by 14 inches) of requested records $0.12.
All other direct costs of preparing a response to a request will be charged to the requester in the same amount as incurred by the Agency. Such costs will include, but not be limited to: Certifying that records are true copies; sending records to requesters or receiving records from the Federal records storage centers by special methods such as express mail; and, where applicable, conducting computer searches for information and for providing information in electronic format.
Fees incurred in responding to information requests are to be charged in accordance with the following categories of requesters:
Commercial use requesters will be assessed charges to recover the full direct costs for searching for, reviewing for release, and duplicating the records sought. Requesters must reasonably describe the records sought.
Educational institution requesters will be assessed charges for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requesters must show that the request is being made under the auspices of a qualifying institution and that the records are not sought for commercial use, but are sought in furtherance of scholarly research. Requesters must reasonably describe the records sought.
Requesters who are representatives of the news media will be assessed charges for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, a requester must meet the criteria in paragraph (d)(1)(vii) of this section, and the request must not be made for commercial use. In reference to this class of requester, a request for records supporting the news dissemination function of the requester will not be considered to be a request for commercial use. Requesters must reasonably describe the records sought.
All other requesters, not elsewhere described, will be assessed charges to recover the full reasonable direct cost of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first 2 hours of search time will be furnished without charge. Requesters must reasonably describe the records sought.
Absent a reasonably based factual showing that a requester may be placed in a particular user category, fees will be imposed as provided for in the commercial use requester category.
Unusual fee circumstances.
In no event will fees be imposed on any requester when the total charges are less than $5, which is the Agency's cost of collecting and processing the fee itself.
If the Agency reasonably believes that a requester or a group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees, the Agency may aggregate those requests and charge accordingly. The Agency may presume that multiple requests of this type made within a 30-day period have been made to avoid fees. Where requests are separated by a longer period, the Agency will aggregate them only where there exists a solid basis for determining that aggregation is warranted under all the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.
Requests for fee waiver or reduction. Documents are to be furnished without charge or at reduced levels if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government and is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest. A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. Where only some of the requested records satisfy the requirements for a fee waiver, a waiver will be granted for those records.
Failure to pay fees. If a requester fails to pay chargeable fees that were incurred as a result of the Agency's processing of the information request, beginning on the 31st day following the date on which the notification of charges was sent, the Agency may assess interest charges against the requester in the manner prescribed in 31 U.S.C. Section 3717. Where appropriate, other steps permitted by federal debt collection statutes, including disclosure to consumer reporting agencies, use of collection agencies, and offset, will be used by the Agency to encourage payment of amounts overdue.
Assumption of financial responsibility for processing requests. Each request for records must contain a specific statement assuming financial liability, in full or to a specified maximum amount, for charges, in accordance with paragraphs (d)(2)(i) and (ii) of this section, which may be incurred by the Agency in responding to the request. If the anticipated charges exceed the maximum limit stated by the person making the request, or if the request contains no assumption of financial liability or charges, the requester will be notified and afforded an opportunity to assume financial liability. In either case, the request for records will not be deemed received for purposes of the applicable time limit for response until a written assumption of financial liability is received. The Agency may require a requester to make an advance payment of anticipated fees under the following circumstances:
If the anticipated charges are likely to exceed $250, the Agency will notify the requester of the likely cost and obtain satisfactory assurance of full payment when the requester has a history of prompt payment of FOIA fees, or require an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment.
If a requester has previously failed to pay fees that have been charged in processing a request within 30 days of the date the notification of fees was sent, the requester will be required to pay the entire amount of fees that are owed, plus interest as provided for in paragraph (d)(2)(v) of this section, before the Agency will process a further information request. In addition, the Agency may require advance payment of fees that the Agency estimates will be incurred in processing the further request before the Agency commences processing that request. When the Agency acts under paragraph (d)(2)(vi)(A) or (B) of this section, the administrative time limits for responding to a request or an appeal from initial determinations will begin to run only after the Agency has received the fee payments required in paragraph (d)(2) of this section.
Fees may be charged even if no documents are provided. Charges may be imposed even though the search discloses no records responsive to the request, or if records located are determined to be exempt from disclosure.
Notes, amendments, and revision history
Source
Source: 82 FR 11768, Feb. 24, 2017, unless otherwise noted.
Authority
Authority: 29 U.S.C. 151, 156. Section 102.117 also issued under 5 U.S.C. 552(a)(4)(A), and § 102.119 also issued under 5 U.S.C. 552a(j) and (k). Sections 102.143 through 102.155 also issued under 5 U.S.C. 504(c)(1).
Source
Source: 24 FR 9102, Nov. 7, 1959, unless otherwise noted.