8.1.6: Freedom of Information Act (FOIA)

Ensure that President Obama’s instructions regarding the “Presumption of Openness” are carried out to the fullest.

Other Information:

Freedom of Information Act (FOIA) The U.S. Department of Labor (DOL) has taken several steps at the Departmental level to ensure that President Obama’s instructions regarding the “Presumption of Openness” are carried out to the fullest. Immediately upon receipt of the January 21, 2009 memoranda, the Department disseminated the information to all Agency Heads. In addition, the Office of the Solicitor (SOL) promptly forwarded the instructions to all personnel with FOIA responsibilities. In June of 2009 DOL-wide FOIA training was held with the new policy being the centerpiece of the training. Both the Director and Chief of Staff of the Department of Justice’s (DOJ) Office of Information Policy participated in the training and DOL’s Deputy Secretary gave a key note speech stressing his commitment to openness. These steps build on the efforts DOL made to improve its FOIA process in response to Executive Order 13392 and the OPEN Government Act amendment to FOIA. DOL is a diverse agency with responsibilities ranging from enforcing worker protection laws to collecting labor statistics to overseeing worker benefit programs, the unemployment insurance program and providing labor certifications for worker visas. As a result, DOL has a decentralized FOIA program to meet the needs of each component’s FOIA customers. For our enforcement agencies, the most frequent type of FOIA request is a request from an attorney or an individual engaged in or contemplating, private litigation related to a matter investigated by DOL. For example, an attorney pursuing or defending a private tort suit related to a workplace accident investigated by OSHA will request OSHA’s investigation file. Another frequently requested type of record is a labor certification file sought by an immigration attorney. A final type of frequently requested record is a first party request that is responded to under the Privacy Act for a claim file such as an injured Federal employee requesting a copy of his/her Federal Employees’ Compensation Act claim file. In order to best respond to this diversity of requests, each agency has been given flexibility to design a program that meets its needs. Most agencies have delegated their disclosure responsibilities to officials at the Office Director or Division Chief level in Washington, as well as to their regional offices. Others have delegated their field FOIA responsibilities to district or area offices. Conversely, some small agencies handle all of their FOIA requests centrally in Washington, DC. The differing agency practices are explained partly by the number of requests that agencies receive and partly by the nature of the programs they administer. In FY 2009 DOL received 16,726 FOIA requests. OSHA received roughly 50% of these requests (8,328). During that same period the number of DOL’s backlog grew substantially from 416 to 619. A number of factors may have contributed to the increase, including for example, the diversion of resources to transition efforts and in the case of at least one agency to comply with a statutory requirement of the ARRA. Another factor appears to have been a slowing of processing time due to the learning curve associated with implementing the new policy. DOL is taking steps to implement a plan to reduce the backlog by 10% a year. The components are reporting their backlogs quarterly and are being told to close their 10 oldest requests each year. Our first quarter data call showed that significant progress was being made as the number of backlogged cases has been reduced from 619 to 541 or a reduction of 12.6%. In addition, DOL has recognized that, although it has made great strides in promoting openness, it needed to make changes in the structure of its FOIA program to continue to meet the increasing FOIA administrative, management, and oversight responsibilities. Therefore, DOL is establishing an Office of Information Services (OIS) within the Office of the Solicitor. The OIS mission is to coordinate the FOIA administrative functions at the Department of Labor. It will provide FOIA guidance to all DOL personnel with FOIA responsibilities (consulting with legal advisors as necessary); perform DOL-wide FOIA training to ensure that all DOL FOIA personnel adhere to OMB, DOJ, and White House guidance; maintain the FOIA tracking system/database serving all DOL components, and improve it over time to allow the public and all DOL components to review the status of FOIA request; assist in resolving disputes between FOIA requesters and DOL agencies and coordinate and file any reports needed on DOL’s FOIA operations, including the FOIA annual report and Chief FOIA Officer’s report. In many instances, these functions were formerly being performed by attorneys in SOL who had other responsibilities, including litigation, which would often have to take priority over these duties. By creating an office dedicated to these responsibilities, DOL will be better able to manage its FOIA program to promote greater openness. Currently, there are three significant FOIA cases pending that involve the Department of Labor. In UtahAmerican Inc. v. MSHA (DDC 08-CV-1780), the plaintiff is a target of criminal and civil investigations in connection with the two tragic accidents that occurred at the Crandall Canyon Mine in Utah, in August 2007, in which several miners and three rescuers were killed. The records sought are being withheld pursuant to exemption 7(A) of the FOIA because their disclosure could be expected to harm the ongoing investigations. In Dolin, Thomas & Solomon v. DOL (WDNY 08-CV-6181) the plaintiff is seeking records related to the drafting of three Wage and Hour opinion letters. Litigation is continuing despite the fact that DOL re-reviewed the documents originally withheld in light of the Holder FOIA memoranda and released over 1,000 pages of previously withheld material. The final significant FOIA case is National Right to Work v. DOL, (DDC 09-CV-02205), seeks records concerning Secretary Solis and Deputy Solicitor Deborah Greenfield including records concerning their communications with labor unions as well as records concerning the union financial reporting requirements. Briefs have not yet been filed in this case. Additional information about our FOIA process is available at http://www.dol.gov/dol/foia/.

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