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CHAPTER 1-600 - FOIA AND PRIVACY ACT REQUESTS

1. Purpose and Scope. This Chapter implements the regulations of the Department of Labor regarding 5 U.S.C. section 552, the Freedom of Information Act (FOIA) and the Privacy Act, 5 U.S.C. section 552a, as amended. It establishes the responsibilities and provides guidance for compliance with these Acts in accordance with provisions of Employment Standards Administration (ESA) Manual 4-100. The Office of the Solicitor or Regional Solicitor should be consulted for further guidance required on these matters.

2. Authority. DLMS 5-200/300, ESA Manual 4-100, and 29 C.F.R. Parts 70/71 establish the policies and procedures for the implementation of the FOIA and Privacy Act within the DOL and ESA. The responsible officials within the LHWCA to whom authority for release of information has been delegated are indicated in paragraph 5, below.

3. Policy.

a. Organization of Records. All records shall be placed in such order as to facilitate the identification of records of concern to the public under the Freedom of Information Act (FOIA) and Privacy Act.

b. Aid to Those Seeking Information. ESA will not only comply with the terms of proper requests under the FOIA and Privacy Act but will seek to assist members of the public who have misdirected their requests out of a lack of knowledge of pertinent information systems. Pursuant to the FOIA Amendments of 1996, “Reading Room Records” (i.e., final adjudicatory opinions, specific policy statements, staff manuals) created on or after November 1, 1996, are being made available on DLHWC’s internet Home Page.

c. Press Releases. In instances when information disclosed under the FOIA is of general interest, ESA will cooperate with the Office of Information, Publications and Reports and the Regional Information Officers in the preparation and release of an announcement when appropriate.

d. Statistical Data. Permission may also be granted by OWCP National Office for release of documents or information in district office files in connection with a study being conducted for a legitimate purpose by another agency of the U.S. Government or a contractor of the U.S. Government provided the information is to be used as statistical data about a particular aspect of the agency's work and safeguards are maintained to prevent the identification of any individuals whose files are included in the study, or the disclosure of personal information in the individual records.

e. Personal Information. LHWCA case records are non-public since they contain personal information which may be released only to parties in interest in specific cases of injury or death. All documents contained in LHWCA claim files are covered by the Privacy Act system of records entitled “DOL/ESA-15 Office of Workers’ Compensation Programs, Longshore and Harbor Workers; Compensation Act Case Files.” As a general matter, therefore, disclosure of any documents contained in a LHWCA claim file may be made only in accordance with that Act. Disclosure may be made to the subject of the file (the claimant) and to those persons or entities specified in the routine uses applicable to DOL/ESA-15. See 58 Federal Register (FR) 49,599-600 (September 23, 1993), and the universal routine uses applicable to all DOL systems of records set forth at 63 FR 2,417-18 (January 15, 1998).

f. Internal Communications. Internal memoranda between DOs and the National Office are not to be released to parties outside the Department. This is particularly important in cases involving section 8(f) relief. Such memoranda between the DO and the National Office or the DO and the Regional Solicitor's Office contain information on the Department's handling of a particular section 8(f) application. Since this application may be the subject of a formal hearing, it is not appropriate to reveal the Department's views on the evidence submitted in support of the application or any possible litigation strategy. Therefore, these documents are to be considered privileged correspondence and are not to be released to any party

It should be noted that internal memoranda should not be released in response to a request submitted under either the FOIA or the Privacy Act. The FOIA provides that requests that reasonably describe records in the custody of the agency are to be disclosed unless they fall within one of the nine exemptions to the FOIA. Exemption five (5) provides that staff opinion material found in internal memos, letters, recommendations and any nonfinal pre-decisional material up until the final action taken by the person with the legally delegated authority to take final action is exempt from disclosure. The findings of the responsible federal employee are factual material, not opinion and may be released.

g. Copying of Records. The Privacy Act provides the individual who is the subject of the records with the right to inspect or copy those records. If the individual requests a copy of a record under the Privacy Act, the first copy is made available to the requester or an individual designated by the requester at no charge. In addition, no charges will be assessed for the time spent searching for the record pursuant to a Privacy Act request. Copies of the record may be made by the requester in the DO on the DO copying machine or the record may be copied by DO personnel. However, the record should not be sent out to be copied by a private copying service, nor should employees of such a private copying service be permitted to copy records on district office copying equipment. Employees of private copying services are not permitted access to records collected and maintained in Privacy Act systems. Access to such records is limited to the individual who is the subject of the record, such person's parent or guardian if the person is a minor or has been declared incompetent, or to the representative designated by such individual. Requirements for identification are contained in 29 C.F.R. section 71.5.

4. Definitions.

a. Request. To come under the FOIA or the Privacy Act, a request must be for an existing record. It is not necessary to create a record in response to a request. The request should be in writing.

b. Public Record. The FOIA covers records that are considered public. Nine specific exemptions are provided to cover records and parts of records that are considered non-public.

c. Disclosure Officer. The Disclosure Officer is a person designated as being responsible for answering requests under either Act.

d. Disclosure. Records may be disclosed by providing the requester with copies of the records which were requested or by providing that person with access to the records.

e. Personal Information. Personal information is information in governmental files about the aspects of a person's life.

5. Responsibilities.

a. Disclosure Officer. The following officials are designated as Disclosure Officers for the LHWCA for purposes of both the FOIA and the Privacy Act:

(1) National Office (NO).

(a) Director, OWCP

(b) Director, DLHWC

(2) District Office (DO).

(a) Regional Directors (RD)

(b) District Director (DD)

b. Duties of Disclosure Officers. Disclosure Officers are responsible for the proper maintenance of all information systems under their jurisdiction as well as for final decisions concerning requests under the Acts. To avoid confusion of responsibilities under these Acts with other administrative responsibilities concerning records, they are made records custodians for the purposes of complying with the subpoenas and for the orderly retirement/destruction of records in keeping with National Archives and Records Service approved records schedules. Disclosure Officers are:

(1) Liable for their actions. If a suit contesting a refusal to disclose information under the FOIA is held against the Government and the Court finds the refusal to be "arbitrary and capricious," the Disclosure Officer or the alternate acting in that person's stead is subject to OPM investigation and any disciplinary action which may be recommended to DOL as a result.

(2) Subject to a $5,000 fine under the Privacy Act if a court finds them to have unlawfully disclosed material covered under the Act or to have failed to publish notice of a system of records covered under the Act.

(3) Authorized, where necessary, to delegate responsibility for carrying out the tasks of the Disclosure Officer with respect to the maintenance of records systems and the preparation of responses to requests. However, the authority and liability cannot be delegated short of designating additional Disclosure Officers.

(4) Responsible for ensuring that persons maintaining records or likely to receive requests under each Act are familiar with the relevant procedures and responsibilities. Training (formal or in-house) should be arranged for all such personnel.

(5) Responsible for ensuring that a contractor and the contractor's employees understand that the disclosure of any record (covered or not) is accomplished by the Disclosure Officer and not the contractor. (Section 3m of the Privacy Act makes contractors and their employees working on records covered by the Privacy Act liable under the Act.)

(6) Responsible for ensuring that information in case records is disclosed only in accordance with the Privacy Act. Only parties in interest are permitted access to the case record, and only these parties may receive copies of documents from the case file. Medical records and information may also be disclosed. However, if medical reports contain information of a nature that could be extremely injurious or shocking to the employee or claimant wishing to see his or her records (e.g., terminal conditions, social diseases, psychiatric illness, etc.), that person should be informed that the medical records or information will be released to his or her representative or treating physician.

6. Coverage. Requests from the public for information in documents in the custody of ESA should be treated either under the FOIA or the Privacy Act. Requests for copies of publications or for information (rather than documents) are not covered by either Act. Requests for records not covered by the Privacy Act or by individuals other than the covered individual (or his or her attorney, parent, or legal guardian) are requests under the FOIA. The chart in Attachment 1, ESA Manual 4-104, should assist Disclosure Officers in responding to requests for records. Where a request is made by a law enforcement agency, material can be released provided the above requirements of the Privacy Act are fully met. (For further coverage regarding the implementation of the FOIA and Privacy Act, see ESA Manual 4-104a/b.)

a. Privacy Act of 1974 (5 U.S.C. section 552a). The provisions of the Privacy Act are meant to assure the private citizen's rights to confidentiality and secrecy of personal information, including financial and medical history. That statute, in addition to guaranteeing the claimant's access to the information contained in the file, prohibits disclosure to any person unless the subject of the file consents to such disclosure or the request meets one of the exceptions listed in section 552a(b). In as much as the gathering of any information by any source involves some distribution of that information, no matter how slight, the Privacy Act demands extra measure, through classification, secure custody, and restricted release of any information about an individual which is maintained by an agency, and which can be called up or retrieved by name or other personally identifying number or symbol. The effect of the Privacy Act as it relates to compensation matters is to require offices of the OWCP to advise claimants why any information requested of them is necessary, to permit such claimants to have access to any materials which they may have submitted over their own signatures, and to have access to medical reports (subject to certain limitations) and other documents which may have been submitted by other persons in connection with the claim.

b. Freedom of Information Act of 1967 (Pub. L. No. 90-23), as Amended.

(1) The Freedom of Information Act (FOIA) was designed to provide members of the public a defined procedure for obtaining records from the Federal government. The Act was amended by Pub. L. No. 93-502, effective February 19, 1975, to clarify and liberalize the requirements for, and to expedite the disclosure of information to the public. The FOIA requires the publication of indexes of specified agency documents and record materials, provides time limitations for responding to requests, and establishes a system of penalties for non-compliance with the time limitations; requires identification of persons responsible for granting or denying requests; provides for court review of denials, including classified materials; and provides for the levying of charges for searching and copying requested materials.

(2) In each office (National and DOs), the Disclosure Officer is responsible for acknowledging FOIA requests; making a determination as to whether or not the request shall be granted; and either providing the material, or else advising the requester why the request cannot be allowed, in which case the Officer must also advise the requester of the avenues of appeal. The Disclosure Officer must maintain an accurate log of all FOIA requests and their disposition. A record must be kept of the number of denials and the reason therefor.

(3) Time is a critical factor in processing FOIA requests for information. The Disclosure Officer has twenty working days from the date of receipt of an FOIA request to respond. If circumstances prevent the disclosure officer from providing the requested documents within the 20 working days, he/she should advise the requester in writing within the 20 working days of a specific latest date (generally within about 2 weeks) when the first response will be sent.

7. Processing Requests. Procedures for processing requests are detailed in ESA Manual 4-105, including the evaluation of requests, charges for services, denials, identification requirements, and handling of personal records.

8. Records and Reports. The records and reports required in the implementation of the FOIA and Privacy Act are described in ESA Manual 4-106. They include the instructions for:

a. FOIA Indexes. Periodic updating and publication of FOIA indexes.

b. Routine Uses. Informing the public of routine uses under the Privacy Act.

c. Workload. Maintaining records of FOIA workload, Form DL 1-520 (Request Under the Freedom of Information Act).

d. Disclosure. Recording the disclosure of material covered by the Privacy Act, Forms ESA 67a (Privacy Act Record System Log of Disclosures) and ESA 67b (OWCP Case File Privacy Act Disclosure Log).

e. Contractors. Monitoring contractors who generate, manipulate, or maintain records covered by the Privacy Act to prevent unauthorized disclosure.

9. Routine Uses. The routine uses applicable to all Department of Labor systems of records is set forth in the Federal Register at 63 FR 2,417 (January 15, 1998), a copy of which is available from the National Office.

10. Subpoenas. District Directors and National Office personnel should immediately contact their appropriate Solicitor’s office whenever they receive an ALJ or court subpoena, or other request made in connection with ongoing litigation, calling for the production of documents.