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Freedom of Information Act Manual

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Freedom of Information Act Manual NATIONAL LABOR RELATIONS BOARD FreedomRevision of InformationUnder Act Manual March 2008 Table of Contents I. Purpose of Manual.......................................................... 1 II. Introduction.................................................................... 1 III. Related Statutes ........................................................... 1 A. The Privacy Act......................................................... 1 1. Privacy Act Requirements and Impact ................ 1 a. Privacy Act Requirements........................... 1 b. Privacy Act Impact on Requests for Documents..................................................... 3 2. Rules to Follow ................................................... 4 B. The Federal Records Act .......................................... 5 IV. Agency Records and Electronic FOIA ......................... 1 A. Agency Records Subject to Potential Disclosure...... 1 1. Control Test..........................................................Revision 1 2. Personal Records ................................................ 2 3. E-Mails as Agency Records ................................. 5 B. E-Mail Policy............................................................ 5 C. Retrieving and Disclosing Electronic Documents .... 7 D. Electronic Reading Room........................................ 8 V. ApplicationUnder of FOIA Privileges....................................... 1 VI. Exemption 2 ................................................................ 1 VII. Exemption 4 ................................................................ 1 A. Trade Secret Defined................................................ 2 B. Commercial or Financial Information Defined........... 2 C. Determining Whether Information is Confidential— the Distinction Between Voluntarily Submitted Information and Compelled Information ....................... 3 D. The Test for Compelled Information.......................... 4 E. The Test for Voluntarily Submitted Information ......... 5 F. Reverse FOIA Litigation ............................................ 6 G. Procedure to Follow Where Exemption 4 Arguably Applies .......................................................................7 H. Road Map to Processing Information Arguably Covered by Exemption 4............................................... 9 VIII. Exemption 5 .............................................................. 1 A. Threshold Question of the Applicability of Exemption 5 ................................................................. 1 B. Document is “Normally Privileged in the Civil Discovery Context”........................................................ 4 1. Attorney Work-Product Privilege ......................... 4 2. Deliberative Process Privilege ............................ 7 a. Document Must Be Predecisional............... 8 b. Document Must be Deliberative................ 11 c. Segregation of Factual Material ................ 12 d. Examples of Documents Protected by Deliberative Process Privilege ...................... 13 e. Advice Memoranda, GC Minutes, and the General Counsel’s “GC” and “OM” Memoranda................................................... 15 3. Attorney-Client Privilege.................................... 17 IX. Exemption 6 ................................................................ 1 A. Summary of Exemption 6 Analysis .......................... 1 B. Privacy Interests ......................................................Revision 2 1. Summary of Types of Parties’ Privacy Interests.. 4 2. Examples of Privacy Interests............................. 4 3. Excelsior Lists, Authorization Cards and Documents Indicating Union Support...................... 5 4. Privacy Interests Relating to Job Performance and OtherUnder Personnel Matters................................... 7 5. Other Privacy Interests........................................ 8 C. Analytical Approach of Supreme Court in Reporters Committee..................................................................... 9 1. Identity of Requester and Specific Purpose of Requester are Generally Irrelevant.......................... 9 2. “Public Interest” is Narrowly Defined.................... 9 3. Establishment of “Practical Obscurity” Standard 10 4. “Categorical Balancing” is Permissible Under Certain Circumstances........................................... 11 D. “Derivative Uses” of the Disclosed Documents Should Not Be Considered In Determining Public Interest .....................................................................11 2 E. Glomar Responses to Protect Privacy.................... 13 X. The “Glomar” Principle: When to Neither Confirm nor Deny the Existence of Documents ................................ 1 XI. Exemption 7 ................................................................. 1 1. Definition of Law Enforcement Purpose............... 1 2. Applicability of Exemption 7 to Both Unfair Labor Practice Cases and Representation Cases ............. 3 3. Treatment of Representation Proceedings by Various Circuit Courts .............................................. 4 B. Exemption 7(A) (Open Cases).................................. 6 1. Temporal Nature of Exemption 7(A)..................... 6 2. Need to Articulate Potential Harm if Information is Disclosed.............................................................. 7 3. FOIA Is Not A Discovery Tool ............................... 8 4. Compliance Cases............................................... 9 5. Summary............................................................ 10 C. Exemption 7(C)....................................................... 10 D. Exemption 7(D)...................................................... 15 1. Witness Confidentiality Assurances .................. 19 a. Express Assurances of Confidentiality...... 19 b. Implied AssuranRevisionces of Confidentiality ....... 21 2. Exemption 7(D) Protection Is Rarely Waived.... 23 E. Exemption 7(E)...................................................... 26 F. Exemption 7(F)....................................................... 28 1. Exemption 7(F) Standard ................................... 28 2. The Application of Exemption 7(F) to “Any Individual”...............................................................Under 29 3. Interplay Between 7(F), 7(C), and 7(D).............. 30 4. When to Claim 7(F)............................................ 30 5. Applicability of Glomar ....................................... 31 XII. First-Party Requesters ............................................... 1 A. General Principle: Treat All Requesters Alike .......... 1 B. First-Party Requester Exception.............................. 1 C. Analyzing Requests by First-Party Requesters ....... 3 D. First-Party Requester Fees ..................................... 3 XIII. Waiver ....................................................................... 1 A. Express Authorization.............................................. 2 B. Prior Disclosure of Requested Information .............. 3 1. General Consideration ........................................ 3 3 2. Prior Selective Disclosure .................................... 4 a. Voluntary & Official vs. Mistaken or Unauthorized.................................................. 4 b. Prior Disclosure to One Party Results in Unfairness to Another ..................................... 4 c. Prior disclosure Furthers Legitimate Governmental Purpose.................................. 5 d. Disclosure in Non-FOIA Litigation............... 6 3. Prior disclosure Under the FOIA .......................... 7 XIV. Section 102.118, Subpoenas, and the FOIA .............. 1 A. Section 102.118 (29 C.F.R. § 102.118)..................... 1 B. Subpoenas................................................................2 C. Relationship of Section 102.118 and Board and Judicial Subpoenas to the FOIA.................................... 4 XV. Fees and Fee Waivers Under the FOIA ...................... 1 A. Statutory “Use” Categories ....................................... 1 1. Commercial Use .................................................. 3 2. Educational, Noncommercial Scientific Institutions, and Representatives of the News Media ................. 4 a. Educational Institutions............................... 4 b. RepresentativesRevision of the News Media ........... 6 3. All Other Requesters............................................ 9 B. Imposition of Fees .................................................... 9 1. Limitations on the Imposition of Fees................... 9 2. Chargeable Fees by the Board .......................... 10 a. Commercial Requesters (Assessed Full Under Costs of Search, Review and Duplication).. 10 b. News Media and Educational Institution Requesters (Free Search and Review; 100 free pages).................................................... 12 c. All Other Requesters (Two Free Hours of Search; Free Review; 100 Free Pages) ...... 12 3. Schedule of Charges ......................................... 13 C. Principles of General Applicability .......................... 14 1. Assumption of Liability for Fees ......................... 15 2. Interest............................................................... 15 3. Advance Payments ............................................ 16 4. Estimating Costs ................................................ 17 5. Aggregation of Requests.................................... 17 4 D. Fee Waiver and Fee Reduction.............................. 18 1. Fee Waiver Standard .......................................
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