The Freedom of Information Act Reference Guide

I. Introduction

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, was enacted in 1966 and generally provides that any person has a right to request access to federal agency records. All agencies of the Executive Branch of the United States Government are required to disclose records under the FOIA upon receiving a written request for them, except for those records (or portions of them) that are protected from disclosure by the nine exemptions and three exclusions of the FOIA. Agencies are expected to administer the FOIA with a presumption in favor of disclosure, and respond to FOIA requests promptly and in a spirit of cooperation. The Occupational Safety and Health Review Commission (OSHRC) is an Executive Branch agency subject to the FOIA.

The Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. §§ 651-678, created OSHRC as an independent federal agency, providing administrative hearings and appellate review, to decide contests of citations or penalties resulting from inspections of American work places by the Occupational Safety and Health Administration (OSHA), which is a part of the Department of Labor. OSHRC, therefore, functions as a two-tiered administrative court, with established procedures for (1) conducting hearings, receiving evidence, and rendering decisions by its Administrative Law Judges, and (2) providing for discretionary review of Administrative Law Judge decisions by a panel of Commissioners when appellate review is granted. Thus, the vast majority of the records maintained by OSHRC are case files involving contests of OSHA citations or penalties.

This Reference Guide is designed to familiarize you with the specific procedures for submitting a FOIA request to OSHRC. The process is neither complicated nor time consuming. Following the guidance below will make it more likely that you will receive the records that you are seeking in the shortest amount of time possible. This Reference Guide also includes descriptions of the types of records maintained by OSHRC, some of which are readily available through means other than the FOIA, including through the World Wide Web. OSHRC’s home page on the World Wide Web is at www.oshrc.gov; in particular, OSHRC’s FOIA home page is at www.oshrc.gov/foia/foia.html.

The rules for submitting FOIA requests to OSHRC are set forth in 29 C.F.R. Part 2201. These regulations can be accessed through OSHRC’s FOIA home page at http://www.oshrc.gov/foia/regs_implementing_foia.html.

II. Access to Certain Records Without a FOIA Request

OSHRC has made certain records available for inspection and copying through its electronic Reading Room (e-FOIA Reading Room) at http://www.oshrc.gov/foia/foia_reading_room.html. If you have access to the World Wide Web, you will not need to make a FOIA request to obtain access to these records. These records include: (1) final decisions, including concurring and dissenting opinions, remand orders, as well as Administrative Law Judge decisions pending OSHRC review issued as a result of adjudication of cases; (2) OSHRC’s Rules of Procedure and Guides to those procedures; (3) agency policy statements and interpretations adopted by OSHRC and not published in the Federal Register, if any; (4) administrative staff manuals that affect a member of the public, if any; (5) copies of records that have been released to a person under the FOIA that, because of the subject matter, OSHRC determines have become or are likely to become the subject of subsequent requests for substantially the same records; and (6) a general index of records referred to in (5).

OSHRC’s annual FOIA reports, which include such information as the number of FOIA requests received by the agency, the amount of time taken to process requests, the total amount of fees collected by the agency, information regarding any backlog of pending requests, and other information about the agency’s handling of FOIA requests, are available at http://www.oshrc.gov/foia/foia_annual_reports.html.

OSHRC also maintains an on-site reading room where you may, upon request, access the agency’s e-FOIA Reading Room and print copies of available materials. The on-site reading room at OSHRC’s National Office is located at 1120 20th Street, NW, 9th Floor, Washington, DC 20036-3457. Requests to access records at our on-site reading room must be made in writing to the FOIA Requester Service Center and indicate a preferred date and time for the requested access. OSHRC reserves the right to arrange a different date and time with the requester, if necessary.

III. Where to Make a Request

To receive the quickest possible response, you should direct your FOIA request to OSHRC’s FOIA Requester Service Center at the address and/or fax number below:

Freedom of Information Act Request
Occupational Safety and Health Review Commission
FOIA Requester Service Center
1120 20th Street, NW, 9th Floor,
Washington, DC 20036-3457
Phone: (202) 606-5700
Fax: (202) 606-5417

If you send your request to the wrong office at OSHRC, your request will still be processed, but the time for responding to it will begin only once it is received by the FOIA Requester Service Center.

IV. How to Make a Request

You may make a FOIA request for any agency record. No special form is required. However, requests must be made in writing and should be submitted by mail, electronic mail, courier, fax, or in person. You should write the words "Freedom of Information Act Request" on the envelope or fax cover sheet and in your letter so that the request will be directed to the FOIA Requester Service Center. If you wish to submit a FOIA request by electronic mail, contact the FOIA Requester Service Center at (202) 606-5700 for an electronic mail address.

Be as specific as possible in identifying the documents you are requesting. You should include any file designations or other descriptions, if known. The more specific you are about the records or types of records you seek, the more likely and/or more promptly we will be able to locate those records. For example, if you are seeking records related to a case before OSHRC, specifying the OSHRC docket number, employer name, and/or inspection number will enable us to locate the records you seek more quickly. We also recommend that you include, along with your address, a telephone number at which you can be reached in the event we need to contact you about your request. OSHRC may seek further clarification of your request in order to provide responsive material.

Please be aware that the FOIA only provides for the release of pre-existing records and does not require the agency to do research for you, to analyze data, to answer written questions, or to create records to respond to a request. Further, there are statutory exemptions and exclusions that authorize the withholding of information of an appropriate sensitive nature. When OSHRC does not disclose information to you, we will specify the reason, i.e., the exemption under which the particular record is being withheld. OSHRC retains the discretion to disclose additional information if warranted.

V. Time for Response

Under the FOIA, federal agencies are required to respond to a FOIA request within 20 working days, i.e., excluding Saturdays, Sundays, and legal holidays. This time period does not begin until the request is actually received by the FOIA Requester Service Center. An agency is not required to send out the releasable documents by the last business day; it can send you a letter informing you of its decision and then send you the documents within a reasonable time afterward.

If we need to seek further information from you, OSHRC will wait to begin the time period for responding to your request until you provide the necessary information. This procedure, known as "tolling," can be used only once by the agency for the purpose of seeking additional information. OSHRC may also toll, as many times as are necessary, the time period for responding to your request to clarify with you any issues regarding fee assessment. In either case, once the agency receives your response to a request for information or clarification, the tolling period ends and the 20-working day response period begins or restarts.

OSHRC makes every effort to respond to FOIA requests as quickly as possible. In many cases, we are able to respond to FOIA requests within 20 working days. However, there may be instances where we cannot make an initial determination of the FOIA request within 20 working days. Under the FOIA, OSHRC may extend the response time for an additional 10 working days when we need to: (1) search for and collect records from one of OSHRC’s regional offices or off-site storage facilities; (2) search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request; or (3) consult with another agency having a substantial interest in the determination of the request. When OSHRC needs to extend the time period, we will notify you of this in writing and offer you the opportunity to modify or limit your request. Alternatively, you may agree to a different timetable for the processing of your request.

OSHRC assigns each incoming request with an individualized tracking number and provides that number to the requester. For any response that will take ten or more days to process, OSHRC will send you a postcard indicating the request’s receipt date and its assigned tracking number. You may check on the status of your FOIA request, including the date on which OSHRC received your request and an estimated date of completion, by contacting the FOIA Requester Service Center, 1120 20th Street, NW, 9th Floor, Washington, DC 20036 3457; Telephone (202) 606-5700; Fax (202) 606-5417.

If you have concerns about the service you have received following an initial response to a FOIA request, you may contact OSHRC’s FOIA Public Liaison at the same address, telephone number and fax number. The FOIA Public Liaison is responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of any disputes.

VI. Expedited Processing

Under certain conditions, you may be entitled to have your request processed on an expedited basis. If you request expedited processing, you must submit a written statement setting forth the reasons for your request. You must also certify that the reasons you give are true and correct. We will notify you of our decision whether to expedite your request within 10 calendar days after receiving your request. If we deny your request for expedited processing, you will be advised of your right to submit an administrative appeal, which will be handled promptly.

Expedited processing shall be granted if there is a serious threat to someone’s life or physical safety if the request is not acted on more expeditiously or if requested by a person primarily engaged in disseminating information to the public and the information is urgently needed to inform the public concerning some actual or alleged government activity.

VII. Fees

There is no initial fee to file a FOIA request. However, the FOIA provides that an agency is entitled to charge certain fees for processing a request depending on the particular category of FOIA requester you fall into.

For purposes of determining fees only, the FOIA divides requesters into three categories:

1. Commercial requesters may be charged fees for searching for records, "processing" the records (i.e., reviewing them to determine the possible applicability of FOIA exemptions), and photocopying them;

2. Education or noncommercial scientific institutions and representatives of the news media are charged only for photocopying expenses, after the first 100 pages of copies; and 

3. All other requesters are charged only for record searches and photocopying – and there is no charge for the first two hours of search time or for the first 100 pages of photocopies. 

If responsive records are not provided within any time limit as described in section V., we will not assess duplication fees for education or noncommercial scientific institutions and representatives of the news media and search fees for commercial and all other requesters, provided that no unusual or exceptional circumstances (as those terms are defined in the FOIA) apply to the processing of the request.

OSHRC currently charges 25 cents per page for photocopying. Rates for searching for and processing records vary depending on whether the person handling the work is a managerial, professional, or clerical employee. In all cases, if the total fee does not exceed a minimum amount, currently $10, OSHRC will not charge any fee at all.

You may include in your request letter a specific statement limiting the amount that you are willing to pay in fees. If you do not do so, we will assume that you are willing to pay fees of up to a certain amount, currently $25. If we determine that the total fees will exceed $25, we will advise you of the estimated amount and offer you an opportunity to narrow your request in order to reduce the fees. If you continue to want all of the records involved, we will confirm your commitment to pay the estimated fees in writing, at which time your request will be considered received for processing. Be aware that you may be required to pay fees even if the search does not locate any responsive records or, if the records are located, they are determined to be exempt from disclosure.

You ordinarily will not be required to pay the fees until the records have been processed and are ready to be sent to you. If, however, you have failed to pay fees in the past, or if the estimated fees exceed $250, you will be required to pay the estimated fees in advance – that is, before the records are processed. If you fail to pay fees within 30 days of billing, you will be charged interest on your overdue balance, and OSHRC will not proceed with any further requests from you until payment in full has been made.

VIII. Fee Waivers

If you expect or are advised that a fee will be charged, you may request a waiver of those fees. However, fee waivers are limited to situations in which a requester can show that the disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government, and is not primarily in the commercial interest of the requester. Requests for fee waivers from individuals who are seeking records pertaining to themselves usually do not meet this standard because such disclosures usually will not result in any increase of the public’s understanding of government operations and activities. However, individuals are not charged searching and reviewing fees pertaining to records about themselves, but can be charged for any duplication of those records. Privacy Act, 5 U.S.C. § 552a(f)(5). In addition, a requester’s inability to pay fees is not a legal basis for granting a fee waiver. (Note that the granting of a fee waiver, which is done on a general public-interest basis under the statute, is entirely separate and distinct from the limitations on fees that are discussed in the previous section.)

IX. Initial Determination of a FOIA Request

Once we have processed your request and any fee issues have been resolved, we will send you a written initial determination letter. In the vast majority of cases, we will include any documents that can be disclosed along with the initial determination letter, though in some cases the documents themselves may be sent within a reasonable time afterward. The FOIA provides access to all federal agency records (or portions of those records), except for those records that are withheld under any of nine exemptions or three exclusions (i.e., the reasons for which an agency may withhold records from a requester). The initial determination letter will advise you whether any information is being withheld or redacted pursuant to one or more of the exemptions. When a record is being withheld in its entirety, we ordinarily will specify the number of pages being withheld or will make a reasonable effort to estimate the volume of the withheld information. When a portion of a record is redacted, we normally will indicate on the released portion of the record each redaction and the exemption under which the redaction is made.

The nine FOIA exemptions authorize federal agencies to withhold: (1) classified national defense and foreign relations information; (2) internal agency rules and practices; (3) information that is prohibited from disclosure by another federal law; (4) trade secrets and other confidential business information; (5) inter-agency or intra-agency communications that are protected by legal privileges; (6) information involving matters of personal privacy; (7) records or information compiled for law enforcement purposes, to the extent that the production of those records (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions, or (F) could reasonably be expected to endanger the life or physical safety of any individual; (8) information relating to the supervision of financial institutions; and (9) geological information on wells. In addition, it is highly unlikely that OSHRC will withhold information using the three FOIA exclusions because they pertain to especially sensitive law enforcement and national security matters.

X. Appeals

You may file an administrative appeal within 20 working days of receiving our response to your request. You may disagree with our decision to withhold records or you may believe that there are additional records we failed to locate. You may also file an appeal if we have denied your request for expedited processing or a fee waiver, or if you disagree with the fee category in which we placed you. All appeals must be made in writing and addressed to:

Chairman
Occupational Safety and Health Review Commission
1120 20th Street, N.W., 9th Floor
Washington, D.C.  20036-3457
Fax:  (202) 606-5396

Both the front of the envelope or fax cover sheet and the appeal letter itself should contain the notation "Freedom of Information Act Appeal." Although there is no specific form or particular language needed to file an administrative appeal, it will help if you enclose a copy of the initial determination letter from which you are appealing. You do not need to include copies of any documents disclosed.

The Chairman of the agency reviews all appeals and will independently determine within 20 working days whether your request was properly processed. The Chairman may: (1) affirm the initial determination in full, in which case he or she will identify which exemptions (if any) have been appropriately claimed; (2) affirm part of the initial determination (identifying the applicable exemptions), but release to you other information previously withheld; or (3) reverse the initial determination and release to you all the information you requested.

XI. Judicial Review

After your administrative appeal has been decided by the Chairman, if you still believe that OSHRC has not handled your FOIA request in accordance with the law, you have a right to challenge the agency’s action in a lawsuit filed in federal district court through the litigation process known as “judicial review.” Judicial review ordinarily requires that you have already filed an administrative appeal and have received a response. However, if OSHRC fails to respond to either your initial request or your appeal within the time limits specified in the FOIA, you may file suit in federal district court as soon as those time limits have expired.

If you do decide to bring a court action, you may file in a federal district court in any of the following places: (1) where you reside, (2) where you have your principal place of business (if any), (3) in the District of Columbia, or (4) where the records are located, if they are not located in the District of Columbia. If you wait until you have received an administrative appeal determination, that final administrative response letter will advise you of your right to seek judicial review. You have six years to file suit from the time your right to sue begins.

Finally, please understand that employees of OSHRC are prohibited from giving legal advice to members of the public on FOIA litigation.

XII. Major Information and Locator Systems

OSHRC Web site. Provides access to agency information including: final determinations of the Commission set forth in decisions and orders; procedural rules; budgets; performance reports; press releases; the OSH Act; and job announcements. Final determinations of the Commission are also available in commercial publications.

Case files. Individual files for all cases processed and/or decided by the Commission including all documents filed in a given case. For cases that go to a hearing, the file may contain transcripts of the hearing and any exhibits entered into the record.

Administrative systems. Record management systems for case tracking, payroll/personnel services, procurement services, accounting services, and travel services.

Last Updated: April 5, 2010

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