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FOIA

The Freedom of Information Act Reference Guide

I. Introduction

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, generally provides that any person has a right to request access to federal agency records. All agencies of the Executive Branch of the United States Government are required to disclose records under the FOIA upon receiving a written request for them, except for those records (or portions of them) that are protected from disclosure by the nine exemptions and three exclusions listed in the FOIA. Agencies are expected to administer the FOIA with a presumption in favor of disclosure, and respond to FOIA requests promptly and in a spirit of cooperation. The Occupational Safety and Health Review Commission (the Commission) is an Executive Branch agency subject to the FOIA. 

The Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. §§ 651-678, created the Commission as an independent federal agency, providing administrative hearings and appellate review, to decide contests of citations or penalties resulting from inspections of American work places by the Occupational Safety and Health Administration (OSHA), which is a part of the Department of Labor. The Commission, therefore, functions as a two-tiered administrative court, with established procedures for (1) conducting hearings, receiving evidence, and rendering decisions by its Administrative Law Judges, and (2) providing for discretionary review of Administrative Law Judge decisions by a panel of Commissioners. Thus, the vast majority of the records maintained by the Commission are case files involving contests of OSHA citations or penalties.

This Reference Guide is designed to familiarize you with the specific procedures for sending a FOIA request to the Commission. The process is neither complicated nor time-consuming. Following the guidance below will make it more likely that you will receive the records that you are seeking in the shortest amount of time possible. This Reference Guide also describes the types of records maintained by the Commission, some of which are already available to the public on the Commission's website. The Commission’s website can be found at www.oshrc.gov;  the Commission’s FOIA home page can be found at www.oshrc.gov/foia/foia.html; and the Commission’s electronic Reading Room (e-FOIA Reading Room) can be found at http://www.oshrc.gov/foia/foia_reading_room.html

The rules for sending a FOIA request to the Commission are listed in 29 C.F.R. Part 2201. These rules can be found on the Commission’s FOIA home page at http://www.oshrc.gov/foia/regs_implementing_foia.html

II. Access to Certain Records Without a FOIA Request

The Commission makes certain records available for inspection and copying through its electronic Reading Room (e-FOIA Reading Room) at http://www.oshrc.gov/foia/foia_reading_room.html.  If you have access to the World Wide Web, you will not need to make a FOIA request to obtain access to these records.  These records include:

(1) Final decisions, including concurring and dissenting opinions, remand orders, as well as Administrative Law Judge decisions pending the Commission’s review issued as a result of adjudication of cases;

(2) The Commission’s Rules of Procedure and guides to those procedures;

(3) Any agency policy statements and interpretations adopted by the Commission and not published in the Federal Register;

(4) Any administrative staff manuals that affect the public;

(5) Copies of records that have been released to a person under the FOIA that, because of the subject matter, the Commission determines have become or are likely to become the subject of subsequent requests for substantially the same records; and

(6) A general index of records referred to in (5).

The Commission’s annual FOIA reports, which include such information as the number of FOIA requests received by the agency, the amount of time taken to process requests, the total amount of fees collected by the agency, information regarding any backlog of pending requests, and other information about the agency’s handling of FOIA requests, are available at http://www.oshrc.gov/foia/foia_annual_reports.html.

The Commission also maintains an on-site reading room where you may, upon request, access the agency’s e-FOIA Reading Room and print copies of available materials. The on-site reading room at the Commission’s National Office is located at 1120 20th Street, NW, 9th Floor, Washington, DC 20036-3457. Requests to access records at our on-site reading room must be made in writing to the FOIA Requester Service Center and indicate a preferred date and time for the requested access. The Commission reserves the right to arrange a different date and time with the requester, if necessary.

III. Where & Where to Make a Request

To receive the quickest possible response, please direct your FOIA request to the Commission’s FOIA Requester Service Center at the address and/or fax number below:

FOIA Request
Occupational Safety and Health Review Commission
FOIA Requester Service Center
1120 20th Street, NW, 9th Floor
Washington, DC  20036-3457
Phone: (202) 606-5700
Fax:  (202) 606-5417

If you send your request to the wrong office at the Commission, your request will still be processed, but the time for responding to it will begin only once it is received by the FOIA Requester Service Center.

You may make a FOIA request for any agency record. No special form is required. However, requests must be made in writing and should be sent by mail, electronic mail, courier, fax, or in person. You should write the words "FOIA Request" on the envelope or fax cover sheet and in your letter so that the request will be directed to the FOIA Requester Service Center. If you wish to send a FOIA request by electronic mail, contact the FOIA Requester Service Center at (202) 606-5700 for an electronic mail address.

Be as specific as possible in identifying the documents you are requesting. You should include any file designations or other descriptions, if known. The more specific you are about the records or types of records you seek, the more likely and/or more promptly we will be able to locate those records. For example, if you are seeking records related to a case before the Commission, specifying the Commission docket number, employer name, and/or inspection number will enable us to locate the records you seek more quickly. We also recommend that you include, along with your address, a telephone number at which you can be reached if we need to contact you about your request. The Commission may seek further clarification of your request in order to provide responsive material.

Please be aware that the FOIA only provides for the release of pre-existing records and does not require the agency to do research for you, to analyze data, to answer written questions, or to create records to respond to a request. Further, there are statutory exemptions and exclusions that authorize the withholding of information of an appropriate sensitive nature. When the Commission does not disclose information to you, we will specify the reason, such as the exemption under which the particular record is being withheld. The Commission retains the discretion to disclose additional information if warranted.

IV. Time for Response

Under the FOIA, federal agencies are required to respond to a FOIA request within 20 working days, excluding Saturdays, Sundays, and legal holidays. This time period does not begin until (1) the request is received by the FOIA Requester Service Center; (2) the request reasonably describes the records sought; and (3) there is no remaining question about the payment of applicable fees. The Commission is not required to send the documents that respond to your request by the last business day; it can send you a letter telling you of its decision and then send the documents to you within a reasonable time afterward.

If we need further information from you, the Commission will pause the time period for responding to your request until you provide the necessary information. This procedure, known as “tolling,” can be used only once by the agency for the purpose of seeking additional information. The Commission may also toll, as many times as are necessary, the time period for responding to your request to clarify with you any issues regarding fee assessment. In either case, once the agency receives your response to a request for information or clarification, the tolling period ends and the 20-working day response period restarts.

The Commission makes every effort to respond to FOIA requests as quickly as possible. In many cases, we are able to respond to FOIA requests within 20 working days. However, there may be instances where we cannot make an initial determination of the FOIA request within 20 working days. Under the FOIA, the Commission may extend the response time for an additional 10 working days when we need to:

(1) Search for and collect records from one of the Commission’s regional offices or off-site storage facilities;

(2) Search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request; or

(3) Consult with another agency having a substantial interest in the determination of the request.
When the Commission needs to extend the time period, we will notify you of this in writing and offer you the opportunity to modify or limit your request. Alternatively, you may agree to a different timetable for the processing of your request.

The Commission assigns each incoming request with an individualized tracking number and provides that number to the requester. For any response that will take ten or more days to process, the Commission will send you a postcard indicating the request’s receipt date and its assigned tracking number. You may check on the status of your FOIA request, including the date on which the Commission received your request and an estimated date of completion, by contacting:

FOIA Requester Service Center
1120 20th Street, NW, 9th Floor
Washington, DC 20036‑3457
Telephone: (202) 606-5700
Fax: (202) 606-5417

V. FOIA Public Liaison

If you have concerns about the service you have received following an initial response to a FOIA request, you may contact the Commission’s FOIA Public Liaison at the same address, telephone number and fax number. The FOIA Public Liaison is responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of any disputes.

VI. Expedited Processing

Under certain conditions, you may be entitled to have your request processed on an expedited basis. The Commission will grant expedited processing if there is a serious threat to someone’s life or physical safety if the request is not acted on more expeditiously or if requested by a person primarily engaged in disseminating information to the public and the information is urgently needed to inform the public concerning some actual or alleged government activity. If you request expedited processing, you must provide the reasons for your request in writing. You must also certify that the reasons you give are true and correct. The Commission will notify you of its decision within 10 calendar days after receiving your request for expedited processing. If we deny your request for expedited processing, you will be advised of your right to an administrative appeal, which will be handled promptly.

VII. Fees

There is no initial fee to file a FOIA request. However, the FOIA provides that an agency is entitled to charge certain fees for processing a request depending on the particular category of FOIA requester you fall into. 
For purposes of determining fees only, the FOIA divides requesters into three categories:

(1) Commercial requesters may be charged fees for searching for records, “processing” the records (reviewing them to determine the possible applicability of FOIA exemptions), and photocopying them;

(2) Education or noncommercial scientific institutions and representatives of the news media charged only for photocopying expenses, after the first 100 pages of copies; and 

(3) All other requesters are charged only for record searches and photocopying — and there is no charge for the first two hours of search time or for the first 100 pages of photocopies. 

If responsive records are not provided within any time limit described in section IV and no unusual or exceptional circumstances (as those terms are defined in the FOIA) apply to the processing of the request:

(1) The Commission will not assess search fees, and

(2) The Commission will not assess duplication fees for education or noncommercial scientific institutions and representatives of the news media.

The Commission currently charges 25 cents per page for photocopying. Rates for searching for and processing records vary depending on whether the person handling the work is a managerial, professional, or clerical employee. In all cases, if the total fee does not exceed a minimum amount, currently $10, the Commission will not charge any fee at all.

You may include in your request letter a specific statement limiting the amount that you are willing to pay in fees. If you do not do so, we will assume that you are willing to pay fees of up to a certain amount, currently $25. If we determine that the total fees will exceed $25, we will advise you of the estimated amount and offer you an opportunity to narrow your request in order to reduce the fees. If you continue to want all of the records involved, we will confirm your commitment to pay the estimated fees in writing, at which time your request will be considered received for processing. Be aware that you may be required to pay fees even if the search does not locate any responsive records or, if the records are located, the Commission determines that they are exempt from disclosure.

You ordinarily will not be required to pay the fees until the records have been processed and are ready to be sent to you. If, however, you have failed to pay fees in the past, or if the estimated fees exceed $250, you will be required to pay the estimated fees in advance – that is, before the records are processed. If you fail to pay fees within 30 days of billing, you will be charged interest on your overdue balance, and the Commission will not proceed with any further requests from you until payment in full has been made. 

Type of Fee

Amount of Fee

 

 

Threshold Amount
(Amount below which fees will not be assessed)

$10

 

 

Search and Review Hourly Fees

 

     Clerical (GS-9 and below)

$23

     Professional (GS-10 through GS-14)

$46

     Managerial (GS-15 and above)

$76

 

 

Duplication cost per page

$0.25

 

 

Computer printout copying fee

$0.40

 

 

Searches of computerized records

Actual cost to the Commission, but will not exceed $300 per hour, including machine time and the cost of the operator and clerical personnel.

 

 

Certification Fee

$35 per authenticating affidavit or declaration. (Note:  Search and review charges may be assessed in accordance with the rates listed above.)

VIII. Fee Waivers

If you expect or are advised that a fee will be charged, you may request a waiver of those fees. However, fee waivers are limited to situations in which a requester can show that the disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government, and is not primarily in the commercial interest of the requester. Requests for fee waivers from individuals who are seeking records pertaining to themselves usually do not meet this standard because such disclosures usually will not result in any increase of the public's understanding of government operations and activities. However, individuals are not charged searching and reviewing fees pertaining to records about themselves, but can be charged for any duplication of those records. Privacy Act, 5 U.S.C. § 552a(f)(5).  In addition, a requester’s inability to pay fees is not a legal basis for granting a fee waiver.  (Note that the granting of a fee waiver, which is done on a general public-interest basis under the statute, is entirely separate and distinct from the limitations on fees that are discussed in Section VII.)

IX. Initial Determination of a FOIA Request

Once we have processed your request and any fee issues have been resolved, we will send you a written initial determination letter.  In the vast majority of cases, we will include any documents that can be disclosed along with the initial determination letter, though in some cases the documents themselves may be sent within a reasonable time afterward. The FOIA provides access to all federal agency records (or portions of those records), except for those records that are withheld under any of nine exemptions or three exclusions (the reasons for which an agency may withhold records from a requester). The initial determination letter will advise you whether any information is being withheld or redacted pursuant to one or more of the exemptions. When a record is being withheld in its entirety, the Commission will specify the number of pages being withheld or will make a reasonable effort to estimate the volume of the withheld information. When a portion of a record is redacted, we will indicate on the released portion of the record each redaction and the exemption under which the redaction is made.

The nine FOIA exemptions authorize federal agencies to withhold:

(1) Classified national defense and foreign relations information;

(2) Internal agency rules and practices;

(3) Information that is prohibited from disclosure by another federal law;

(4) Trade secrets and other confidential business information;

(5) Inter-agency or intra-agency communications that are protected by legal privileges;

(6) Information involving matters of personal privacy;

(7) Records or information compiled for law enforcement purposes, to the extent that the production of those records—

(A) Could reasonably be expected to interfere with enforcement proceedings,

(B) Would deprive a person of a right to a fair trial or an impartial adjudication,

(C) Could reasonably be expected to constitute an unwarranted invasion of personal privacy,

(D) Could reasonably be expected to disclose the identity of a confidential source,

(E) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions, or

(F) Could reasonably be expected to endanger the life or physical safety of any individual;

(8) Information relating to the supervision of financial institutions; and

(9) Geological information on wells. 

In addition, Congress also provided special protection in the FOIA for three narrow categories of law enforcement and national security records. The provisions protecting those records are known as “exclusions.”

(1) The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings.

(2) The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant’s status has not been officially confirmed.

(3) The third exclusion is limited to the FBI and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified. 

Records falling within an exclusion are not subject to the requirements of the FOIA. It is highly unlikely that the Commission will withhold information using the three FOIA exclusions because they pertain to especially sensitive law enforcement and national security matters.

X. Appeals

You may file an administrative appeal within 20 working days of receiving our response to your request. You may disagree with our decision to withhold records or you may believe that there are additional records we failed to locate. You may also file an appeal if we have denied your request for expedited processing or a fee waiver, or if you disagree with the fee category in which we placed you. All appeals must be made in writing and addressed to:

FOIA Appeal
Chairman
Occupational Safety and Health Review Commission
1120 20th Street, NW, 9th Floor
Washington, DC  20036-3457
Fax:  (202) 606-5396

Both the front of the envelope or fax cover sheet and the appeal letter itself should contain the notation “FOIA Appeal.”  There is no specific form or particular language needed to file an administrative appeal, and you do not need to include copies of any documents disclosed.

The Commission’s Chairman reviews all appeals and will independently determine within 20 working days whether your request was properly processed.  The Chairman may:

(1) Affirm the initial determination in full, in which case he or she will identify which exemptions (if any) have been appropriately claimed;

(2) Affirm part of the initial determination (identifying the applicable exemptions), but release to you other information previously withheld; or

(3) Reverse the initial determination and release to you all the information you requested.

XI. Judicial Review

After your administrative appeal has been decided by the Chairman, if you still believe that the Commission has not handled your FOIA request in accordance with the law, you have a right to challenge the agency’s action in a lawsuit filed in federal district court through the litigation process known as “judicial review.” Judicial review ordinarily requires that you have already filed an administrative appeal and have received a response. However, if the Commission fails to respond to either your initial request or your appeal within the time limits specified in the FOIA, you may file suit in federal district court as soon as those time limits have expired.

If you do decide to bring a court action, you may file in a federal district court in any of the following places:

(1) Where you reside,

(2) Where you have your principal place of business (if any),

(3) In the District of Columbia, or

(4) Where the records are located, if they are not located in the District of Columbia. 

If you wait until you have received an administrative appeal determination, that final administrative response letter will advise you of your right to seek judicial review. You have six years to file suit from the time your right to sue begins.

Finally, please understand that employees of the Commission are prohibited from giving legal advice to members of the public on FOIA litigation.

XII. Major Information and Locator Systems

The Commission’s Web site. Provides access to agency records including: the Commission’s decisions and orders; procedural rules; budgets; performance reports; press releases; the OSH Act; and job announcements. Final decisions of the Commission are also available in commercial publications.

Case files. Individual files for all cases processed and/or decided by the Commission including all documents filed in a given case. For cases that go to a hearing, the file may contain transcripts of the hearing and any exhibits entered into the record.

Administrative systems. Record management systems for case tracking, payroll/personnel services, procurement services, accounting services, and travel services.

Last Updated: December 10, 2012

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