DOL FOIA Protocols

Andrew Free filed this request with the Occupational Safety and Health Administration of the United States of America.

It is a clone of this request.

Tracking #

2022-F-08060

Status
Processing

Communications

From: Andrew Free

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

On behalf of the #DetentionKills Transparency Initiative of Al Otro Lado, I hereby request copies of any agency records showing the policies and procedures DOL FOIA Officers require OSHA personnel to follow in responding to FOIA requests. This should include training materials, PowerPoint presentations, tasking forms or templates for electronic tasking, and quality control resources. Any step-by-step instructions for what to do upon receiving a FOIA request will similarly be responsive to this request.

Please task a search that only includes records policies and procedures that are currently in force.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Andrew Free

From: Occupational Safety and Health Administration

Hello Andrew:
OSHA has received your FOIA request 2022-F-08060 and it has been tolled for fees because your request for policy and procedures is a little unclear to me.  The request for training materials is quite broad.  The Department of Labor provides binding regulations at 29 CFR Part 70. OSHA's national office has two official pieces of FOIA policies in Chapter 16 of the Field Operations Manual and Chapter 23 of the Whistleblower Investigations Manual which are currently in force.
But, OSHA has over 90+ area offices, 10 regional offices, and 10 national office directorates in OSHA.  Each manager may have their own separate instructions that cover training or procedures (e.g., the check the fax machine, use thumbdrives for FOIAs as opposed to paper, file FOIAs in this room etc...).  For search fee purposes that would be $40/hour, we would have to ask 90+ managers if they have special administrative instructions or training.  Consequently, we have tolled your FOIA request for fees.
If you wish to discuss or to narrow the scope of your request to only national office policies issued by the national office, please let me know.  If we do not hear from you by May 10, 2022, we will close your request as with drawn.
Viet Ly
Office of Communications
Occupational Safety and Health Administration

From: Andrew Free

Good afternoon,

Under no circumstances should you close this request as withdrawn. Please note today that I have received your communication and will convey it to Sur Legal, the requester. We will make every effort to get back to you by May 10, but if we do not, our position is that your current communication constitutes and improper denial for which you should have informed the requester of their right to appeal, rather than unilaterally closing the request.

We look forward to being back in touch as soon as possible.

Thank you,

Andrew Free

From: Occupational Safety and Health Administration

Hello:
This e-mail is our follow-up to our May 3, 2022 e-mail.  We had asked that you resolve both fee and clarity issues which we raised no later than May 10, 2022.  Because we have not heard from you by May 10, 2022, we are closing your request as not perfected.  No fees are due.
You are free to contact either myself or Mr. Durso should you have any questions.  If you wish to file a new FOIA request, you should consider contacting OSHA first to resolve any questions and file a request at FOIArequests@dol.gov.
Thank you,
Viet Ly Office of Communications Occupational Safety andHealth Administration 202-693-1724 (direct)

From: Andrew Free

I hereby appeal this administrative closure as a denial.

From: Occupational Safety and Health Administration

Good afternoon Mr. Free,

You are correct in that the Department of Labor’s Freedom of Information Act implementing regulations consider a determination that a request does not reasonably describe the records sought is an adverse determination and appeal rights granted. See 29 CFR 70.21(d). Our apology for the oversight. Please find below your appeal rights to request 2022-F-08060.

You have the right to appeal this decision with the Solicitor of Labor within 90 days from the date of this letter. The appeal must state, in writing, the grounds for the appeal, including any supporting statements or arguments. The appeal should also include a copy of your initial request and a copy of this letter.

If you appeal, you may mail your appeal to: Solicitor of Labor, U.S. Department of Labor, Room N-2420, 200 Constitution Avenue, N.W., Washington, D.C. 20210 or fax your appeal to (202) 693-5538. Alternatively, you may email your appeal to foiaappeal@dol.gov; appeals submitted to any other email address will not be accepted. The envelope (if mailed), subject line (if emailed), or fax cover sheet (if faxed), and the letter indicating the grounds for appeal, should be clearly marked: “Freedom of Information Act Appeal.”

In addition to filing an appeal, you may contact the Department’s FOIA Public Liaison, Thomas G. Hicks, Sr. at (202) 693-5427 or hicks.thomas@dol.gov for assistance in resolving disputes.

You also may contact the Office of Government Information Services (OGIS) for assistance. OGIS offers mediation services to resolve disputes between FOIA requesters and federal agencies as a non-exclusive alternative to litigation. Using OGIS services does not affect your right to pursue litigation. You may mail OGIS at the Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road – OGIS, College Park, MD 20740-6001. Alternatively, you may contact OGIS through email: ogis@nara.gov; or the web: www.archives.gov/ogis/about-ogis/contact. Finally, you can call or fax OGIS at: telephone: (main) 202-741-5770 or (toll-free) 1-877-684-6448; or fax: (202) 741-5769.

It is also important to note that the services offered by OGIS, is not an alternative to filing an administrative FOIA appeal.

Chris

Christopher Durso, Esq.
U.S. Department of Labor
National Office FOIA Coordinator
Occupational Safety and Health Administration
200 Constitution Ave., N.W.
Rm N-3647
Washington, DC 20210
202/693-2009

This message may contain information that is privileged or otherwise exempt from disclosure under applicable law. Do not disclose without consulting with the Occupational Safety and Health Administration. If you think you received this-email in error, please notify the sender immediately.

From: Andrew Free

https://www.rcfp.org/journals/news-media-and-law-fall-2014/agencies-want-know-are-you-st/#:~:text=The%20DOJ's%20website%20states%20that,that%20agencies%20should%20%E2%80%9Cafford%20requesters

Nowhere in the statute or regulations are still-interested letters mentioned. Certainly nowhere is the agency given the unilateral power to close a request after seven days. And I notified you we were, in fact, still interested upon receiving this communication.

Not a banner day for openness and transparency.

We will pursue the appeal as we refile.

Thank you,

Andrew Free

From: Occupational Safety and Health Administration

I appreciate that you took the time to speak with me on the phone.
Please have Shelly give me a call.
Thanks,

Viet Ly

From: Andrew Free

Will do.

For the purposes of your internal communications and a potential fix to eFOIA Express, here’s what the DOJ OIP says publicly about Still Interested letters:

“ Providing Requesters with a Reasonable Amount of Time and Method to Respond to “Still-Interested” Inquiries

It is very important that all agencies afford requesters a reasonable amount of time to provide a response to a “still-interested” inquiry. While OIP advised agencies in its 2010 guidance to provide a reasonable amount of time for requesters to respond, OIP believes it is important to establish a floor, or minimum number of days that all agencies provide requesters. *********Going forward, the time period to allow requesters to respond to “still-interested” inquiries should be no shorter than thirty (30) working days.**********

Agencies should also ensure that there is a simple way for requesters to notify the agency if they are still interested in the continued processing of the request. There should be no rigid requirements imposed on the requester as to how they communicate their interest in having the request continued to be processed. For example, a simple response over the telephone, a reply to an email, or checking off a box on a self-addressed form are all examples of easy methods that agencies can make available to requesters so that they can most readily respond to the inquiry.”

https://www.justice.gov/oip/limitations-use-still-interested-inquiries

From: Andrew Free

I hereby appeal this blatantly unlawful use of a Still Interested letter with a seven (7) day response window, and the closure of the case notwithstanding the fact that the agency DID receive a response (just not the one it wanted) within the seven-day period.

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