WHD FOH
| Tracking # |
2022-F-06841 |
| Submitted | March 17, 2022 |
| Est. Completion | None |
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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 Sur Legal, a 501(c)(3) legal services non-profit based on Atlanta, Georgia, I hereby request access to the Field Operations Handbook currently in effect for the Wage and Hour Division, as well as Tables of Contents and/or Indices for prior versions in effect between January 21, 2021 and the present.
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: Department of Labor, Wage and Hour Division
March 23, 2022
Andrew Free Sent via email to requests@muckrock.com<mailto:requests@muckrock.com>
Muck Rock News
411A Highland Avenue
Somerville, MA 02144-2516
Dear Mr. Free:
The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) received your Freedom of Information Act (FOIA) request dated March 17, 2022, wherein you requested access to the Field Operations Handbook currently in effect for the Wage and Hour Division, as well as Table of Contents and/or Indices for prior versions in effect between January 21, 2021 and the present.
Your FOIA request has been assigned the tracking number 2022-F-06841. You may use this tracking number to check the status of your request on the DOL FOIA Public Portal at https://efoia.dol.gov/app/CheckStatus.aspx. Please refer to this number in any future correspondence about your request.
As you may well know, the federal government nationwide remains open to perform mission critical functions and operations. Many of our staff members are working remotely consistent with guidance from the Office of Personnel Management for maximum telework flexibilities, due to the COVID-19 pandemic. WHD is continuing to process FOIA requests during this time. However, WHD receives a large volume of requests and is experiencing a significant backlog. The current backlog has created an exceptional circumstance and we may be unable to process your request within the statutory time frame.
Please let me know if you have any questions or concerns regarding this matter by contacting Susan R. Velasquez by email at Velasquez.Susan.R@dol.gov<mailto:Velasquez.Susan.R@dol.gov>.
Sincerely,
Susan R. Velasquez
Government Information Specialist
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on March 17, 2022. Please let me know when I can expect to receive a response. You had assigned it reference number #2022-F-06841.
Thanks for your help, and let me know if further clarification is needed.
From: Department of Labor, Wage and Hour Division
Good Morning,
Thank you for your email. At this time your FOIA request is in que for second line review. Unfortunately, due to the pandemic, this has created a significant backlog, which we are tirelessly working to reduce. I apologize for any inconvenience this may have caused.
You may continue to check the status of your request on the DOL FOIA Public Portal at https://efoia.dol.gov/app/CheckStatus.aspx
Thank you for your inquiry.
Respectfully,
Susan R. Velasquez
Government Information Specialist
From: Andrew Free
Thank you for this information, Susan. We really appreciate it. What is “second line review”?
Best regards,
Andrew Free
From: Department of Labor, Wage and Hour Division
Mr. Free,
Your request has been placed in que for supervisor review. Unfortunately there are still many requests ahead of yours that still need to be reviewed. Thank you for your inquiry.
Respectfully,
Susan R. Velasquez
Government Information Specialist
From: Andrew Free
Susan,
Thanks very much for this explanation. Two quick follow-ups:
1. Was there something we could have done differently that would have streamlined the request and gotten it out of “supervisor review”? Is there anything we can do now to move that forward?
2. Can DOL WHD FOIA estimate the rough date by which it will complete processing of these request and make records available to Sur?
Thanks again,
Andrew Free
From: Department of Labor, Wage and Hour Division
Mr. Free,
It is standard procedure that all FOIA requests are reviewed by a supervisor prior to release, even if the request has been streamlined. Due to the immense backlog caused by the COVID pandemic, we are still trying to catch up to the many requests we’ve received. Unfortunately I am unable to provide you with an estimated date of completion. Thank you for your inquiry.
Respectfully,
Susan R. Velasquez
Government Information Specialist
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on March 17, 2022. Please let me know when I can expect to receive a response. You had assigned it reference number #2022-F-06841.
Thanks for your help, and let me know if further clarification is needed.
From: Department of Labor, Wage and Hour Division
Mr. Free,
See attached letter regarding your 2022-F-06841 FOIA request.
Thank you for your inquiry.
Respectfully,
Susan R. Velasquez
Government Information Specialist
From: Andrew Free
Thank you for this communication. We appreciate that DOL is dealing with a backlog, and acknowledge the generally wide latitude the agency has in trying to tackle these problems. However, the Act specifically provides the instances in which the agency may excuse itself from statutory requirements based on volume of requests — specifically, the 10-day extension in response. By contrast, the Act does not permit agencies to exempt themselves from the requirements of the Act. See 5 USC 552(a)(4)(a)(viii)(II)(aa).
The requested records appear to be “administrative staff manuals that affect the public” under Section 552(a)(2)(C). Consequently, they are subject to mandatory disclosure. No backlogged request should be necessary to produce it. Moreover, the language of 552(a)(7)(B)(II) imposes an obligation on the agency to do what we have requested irrespective of agency burden.
Please ask the agency to release these records immediately, as they are subject to mandatory disclosure. If they cannot, please ask the agency to estimate the date on which it will release these records. If they will not, please advise whether DOL intends to self-report this unlawful policy and practice to DOJ OIP, Congress, and the GAO.
Many thanks,
Andrew
From: Department of Labor, Wage and Hour Division
Mr. Free,
My apologies for the delay in processing your FOIA request, however, we are working tirelessly to catch up on the immense backlogged requests on hand. As mentioned earlier, your FOIA request is in queue and awaiting approval status. In addition to the significant amount of backlogged requests, we are experiencing critical staffing shortages, and are working extremely hard to keep up with the workload.
I’ve cc’d my supervisor in this email chain to keep him aware of your FOIA request. I appreciate your patience to this matter, and thank you for your inquiry.
Respectfully,
Susan R. Velasquez
Government Information Specialist
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on March 17, 2022. Please let me know when I can expect to receive a response. You had assigned it reference number #2022-F-06841.
Thanks for your help, and let me know if further clarification is needed.
From: Department of Labor, Wage and Hour Division
Mr. Free,
You’re request is still pending supervisor review. I cannot give you an estimated date of completion because we do have many backlogged requests waiting for approval. Thank you for your inquiry.
Respectfully,
Susan R. Velasquez
Government Information Specialist
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on March 17, 2022. Please let me know when I can expect to receive a response. You had assigned it reference number #2022-F-06841.
Thanks for your help, and let me know if further clarification is needed.
From: Department of Labor, Wage and Hour Division
Mr. Free,
My apologies for just now getting back to you. Your request is still pending supervisor review. Given the number of the many backlogged requests waiting for approval, as well as being short-staffed, I am unable to provide you with an estimated date of completion. Thank you for your inquiry.
Respectfully,
Susan R. Velasquez
Government Information Specialist
From: Andrew Free
Thank you, Ms. Velasquez, but that is not an option lawfully available to the government under 5 USC 552(a)(7)(B)(ii). “Shall” means shall. There’s no other choice. At least not one consistent with the Freedom of Information Act.
If the agency is refusing to comply with the plain language of the statute, which imposes a non-discretionary obligation to provide an estimated response date, or it contends it cannot comply with the statute due to resource constraints, does it intend to self-report to (a) the DOJ Federal Programs Branch; (b) the DOL Inspector General; (c) the Office of Management and Budget; (d) DOL appropriators; or (e) courts in which the agency faces current FOIA litigation?
If not, what steps should we take to help bring the agency into compliance with Congress’s mandate?
Thanks in advance for passing this message to the appropriate supervisory staff and/or counsel. I realize the conditions that lead to these questions are probably far beyond your control or authority. However, now that you’re aware of the gap between what’s being done and what’s required, I trust you’ll work to help us close it?
Best regards,
Andrew
From: Andrew Free
We hereby appeal the agency’s failure to comply wi the timing provisions of the Act.
Andrew Free
#DetentionKills Transparency Initiative
Al Otro Lado
From: Department of Labor, Wage and Hour Division
Mr. Free,
Just want to make sure you know that the FOH is already made available on our public website (listed below):
Field Operations Handbook | U.S. Department of Labor (dol.gov)<https://www.dol.gov/agencies/whd/field-operations-handbook>
Once you review the website, if there are particular chapters you would like to receive, please let me know.
Respectfully,
Susan R. Velasquez
Government Information Specialist
From: Department of Labor, Wage and Hour Division
Re: FOIA 2022-F-06841
From: Andrew Free
Hi Susan,
Unfortunate that you chose to treat this as a final response on the last day of the fiscal, given how out of date several of the chapters are, and given what’s obviously missing. We’ll have to appeal.
Thanks for your email.
Andrew
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on March 17, 2022. Please let me know when I can expect to receive a response. You had assigned it reference number #2022-F-06841.
Thanks for your help, and let me know if further clarification is needed.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on March 17, 2022. Please let me know when I can expect to receive a response. You had assigned it reference number #2022-F-06841.
Thanks for your help, and let me know if further clarification is needed.
From: Department of Labor, Wage and Hour Division
Re: FOIA 2022-F-06841
Mr. Free,
We received an e-mail from MuckRock requesting a status for your case file associated with this case file number 2022-F-06841. I assume that this is some form of auto-generated status e-mail from MuckRock, as our agency sent you a final response letter on 30 September 2022 with the link to the documents you requested. If you require further assistance, please contact Emerique Magyar at 202-693-6075 or via e-mail at magyar.emerique.c@dol.gov.
Respectfully,
Emerique Magyar
Lead Government Information Specialist
From: Andrew Free
We appeal.
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