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Secretary of Labor Thomas E. Perez
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Results of the Review

I. General

Because of their diverse missions, Department of Labor agencies have widely varying experiences in carrying out their FOIA responsibilities. Some consistently receive many FOIA requests, and others receive very few. Some agencies are more likely to be the object of public attention, whereas personal concerns may be the main focus of FOIA requests that other agencies receive. Some agencies more than others are the repository of especially sensitive, private, confidential, or FOIA exempt information. Because of this diversity, the Department of Labor administers its FOIA program on a decentralized basis at the initial request level.

Decentralization has led to DOL agencies adopting a variety of FOIA practices. Some agencies run a very structured FOIA program. Others operate with considerably greater flexibility. 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. Other differences, however, may have no solid policy or pragmatic basis but may result from the unique culture of each agency or the lack of significant agency experience with FOIA.

The relatively short time available and the wide decentralization of the FOIA program — both in the national and regional offices — limited the Department's ability to conduct a comprehensive, definitive study of its FOIA practices. Nevertheless, consultation with agency FOIA personnel, DOL employees actively involved in the administration of FOIA programs, and Departmental leadership facilitated the compilation of sufficient baseline information to conduct a meaningful review and select areas of improvement. As the discussion of these areas of improvement indicates, the gathering of information about DOL's practices will be an ongoing process. We include below a summary of the results of our study.

1. Communication with Requesters.

When DOL agencies receive FOIA requests, their practices of communicating with requesters differ. Most agencies typically send a written acknowledgement to the requester, but some do not and may rely on phone or other forms of communication. There is little agency consistency in these acknowledgement letters or other communications. Some agencies tell requesters when they can expect a response, but others do not. Some agencies tell requesters when their request will be referred to another office, but some do not attempt to estimate the additional time that this referral will add. Most appear to resolve fee issues before processing the request. Some agencies appear to make a special effort to communicate with the requester concerning the scope of the request. Such discussions are believed to be very helpful, because they can lead to more focused requests and responses that meet requester needs with less cost to the requesters. Some agency letters may provide information about persons to contact for questions and complaints. There appears to be little contact between agencies and their requester communities to seek their perceptions of the agencies' FOIA programs.

2. Web Presence and Proactive Disclosure.

The Department of Labor Web site provides information on FOIA to assist potential FOIA requesters. See http://www.dol.gov/dol/foia/. The Web site includes a "Guide for Requesting FOIA Records," a list of the Department's FOIA disclosure officers, links to the FOIA Requester Service Centers established pursuant to the Executive Order, links to the FOIA Web sites of individual agencies, and links to the Department of Labor's annual FOIA reports dating back to 1996. Not all of the information is in user-friendly form and some is outdated, and not all links are operable. For example, the list of FOIA disclosure officers is reproduced from an appendix to the Department's FOIA regulations and does not contain electronic cross-links, while pages under the FOIA "Electronic Reading Rooms" section are not functioning properly.

Individual Department of Labor agencies commonly have extensive Web sites in which they post materials of interest to their constituencies and the public. These agency Web sites are designed to allow the information they contain to be accessed in a variety of ways, such as by topic or by audience, and agencies periodically review their sites, including the use of focus groups or usability testing, to ensure that the information contained in them is easy to find and use. The agencies Web sites include, for example, compliance assistance information and guidance, statistical information, and information about the functions of the various DOL agencies. As might be expected, agencies that receive many FOIA requests have more formal procedures for the regular posting of commonly requested documents and for assuring that the public is aware of their availability. One agency is in the process of exploring how one of its more popular major databases can be posted on the web in searchable form. This would reduce the need to respond to individual FOIA requests regarding that database. If other agencies similarly examined their databases, they might also avoid the need to expend resources responding to individual FOIA requests.

3. FOIA Tracking and Control Systems.

Department of Labor agencies use various methods to track the progress of FOIA requests. Most agencies use computer-based tracking and control tools, sometimes combined with manual tracking. In some cases, diverse parts of a major DOL agency may use different methods. Some agencies use software, such as spreadsheet programs, to track requests. These programs might be used, for example, to record the requester's name, date of request, items being requested, date request was received, due date, date of response, and final disposition. The Department of Labor has developed a computerized FOIA Tracking/Control tool which has been made available to all of its agencies. Although most agencies do use this FOIA system, at least in part, only approximately one-third of initial FOIA requests received by the Department are tracked through this electronic system. This tool, in addition to tracking requests, captures all data needed for the Department of Labor's Annual FOIA Report filed with the Department of Justice. DOL has identified important areas in which improvements are needed. These areas include: making the system more user friendly; making it more flexible for entering data; and providing for easier, more flexible, and more useful data retrieval and report generation.

4. Use of Electronic Tools in FOIA Processing.

Some agencies use a form of electronic searches as a means of locating documents responsive to FOIA requests. Sometimes, an internet search will be conducted to see where the request should be referred, including to a non-DOL agency. Some agencies deliver some responses to FOIA requests electronically. With respect to the processing of responses, we are aware of no significant use of electronic tools to redact exempt materials, either at the initial request level, or in connection with the processing of appeals.

5. Multi-track processing and Requests for Expedited Processing.

Most agencies appear responsive to requests for expedited treatment of requests, but most do not use a multi-tracking process to handle FOIA requests. The absence of multi-tracking appears to be explained, in part, by the fact that many DOL agencies receive relatively few requests. Multi-tracking agencies use a three-tier system, consisting of "simple," "complex," and "expedited" requests.

6. Increase Number of Appeals Processed.

While agencies do have some backlogs and some requests that have been pending for significant time periods, our study suggests that backlogs are a more substantial issue at the administrative appellate level. Because the Department operates a centralized appellate structure, all appeals of initial agency decisions are funneled through the Office of the Solicitor. As of April 30, 2006, the Department had a FOIA and Privacy Act appeal backlog (cases pending more than 30 days) of 273 cases, with a monthly average of 17 appeals processed in 2005. The Department recently has taken the following actions for the purpose of increasing appeals processing capacity and backlog reduction:

(a). It has recently hired one GS-14 attorney and one GS-11 paralegal whose primary duties consist of reviewing FOIA files and drafting appeals decisions.

(b). It has recently hired new top management in areas relating to appeals processing. This new management is prioritizing appeals production activities.

(c). The Department recently obtained the services of a law school intern who is assisting with appeals. It has also begun a program of actively soliciting law school interns to supplement its appeals resolution capacity so that it may maintain one such intern at all times. This arrangement will allow for staffing flexibility as the backlog fluctuates downward.

7. Staff Expertise and Training.

Development of staff expertise can occur through on-the-job experience, formal training, or through the ready availability to FOIA staff of relevant resource information. Through the Office of the Solicitor, the Department has been very effective over the years in providing training to employees working in the FOIA area. It has held a number of multi-day agency wide conferences covering a variety of FOIA-related issues. The Department of Justice highlighted the Department of Labor's efforts in underscoring the value of these conferences. See FOIA Post (February 22, 2005).

The Department of Labor can build on this foundation. The practices of individual DOL agencies with respect to formal training vary significantly. Many agency employees have attended sessions conducted by the Office of the Solicitor. Efforts to assure cost-effective formal training for all FOIA staff are complicated by the fact that some agencies receive few FOIA requests and therefore have few employees doing substantial FOIA work. Even those agencies with substantial FOIA responsibilities may have few full-time employees engaged in FOIA work and many who perform FOIA work along with their other non-FOIA duties. Using employees to perform FOIA work on a part-time basis can increase an agency's flexibility in handling unexpected surges and downturns in FOIA workload. However, the FOIA workload fluctuations of individual employees can complicate an agency's task of using its resources cost-effectively to provide meaningful formal training.

With respect to formal training, the practices of agencies vary significantly. Many agency employees have attended training sessions conducted by the Office of the Solicitor or have received other formal training. However, some agencies make training available only to some of their employees, and in many cases, agency employees appear to have received no formal training.

Agency practices also vary in making FOIA written or electronic materials available to staff. Some agencies distribute to their employees written informational materials or instructions that they receive from the Solicitor's Office or elsewhere, including the Justice Department FOIA and Privacy Act Guide. Some make informational materials, such as the DOJ FOIA guide, available on their Web sites or common servers.

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