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| ## OIG Manual               | **U.S.         |        | ![]         |
|                             | Department of  |        | (media/imag |
|                             | Labor**        |        | e2.png){wid |
|                             |                |        | th="1.25in" |
|                             | ### **O        |        | heigh       |
|                             | ffice of Inspe |        | t="1.25in"} |
|                             | ctor General** |        |             |
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| ## Inspector General        | **Chapter: 5 - |        |             |
|                             | Information**  |        |             |
| ## Directive                |                |        |             |
+-----------------------------+----------------+--------+-------------+
|                             | **Title:       |        |             |
|                             | PROCEDURES FOR |        |             |
|                             | HANDLING**     |        |             |
|                             |                |        |             |
|                             | **FREEDOM OF   |        |             |
|                             | INFORMATION    |        |             |
|                             | ACT**          |        |             |
|                             |                |        |             |
|                             | **AND PRIVACY  |        |             |
|                             | ACT REQUESTS** |        |             |
+-----------------------------+----------------+--------+-------------+
| **Number: 5-300**           |                | *      |             |
|                             |                | *Date: |             |
|                             |                | Sep    |             |
|                             |                | tember |             |
|                             |                | 5,     |             |
|                             |                | 2003** |             |
+-----------------------------+----------------+--------+-------------+

1.  **PURPOSE.**

This directive prescribes policies, establishes uniform procedures, and
assigns responsibilities for responding to Freedom Of Information Act
(FOIA) and Privacy Act requests for Office of Inspector General (OIG)
records. This directive rescinds IGD 5-300-1, Procedures For Handling
Freedom Of Information, Privacy Act And Congressional Requests, dated
8/2/83.

2.  **SCOPE.**

This directive applies to all OIG offices and employees.

**3. BACKGROUND.**

a\. [Freedom of Information Act (FOIA).]{.underline} The [Freedom of
Information Act (5 USC 552)](http://www.usdoj.gov/foia/) is a disclosure
statute. It requires government agencies to publish and release
information about their procedures, rules, and regulations, and to make
available for public inspection and copying such records as agency final
opinions, statements of policy, interpretations of law, administrative
staff manuals, and instructions having an effect on the public. Records
requested (either by mail, electronic mail or facsimile), which are
sufficiently described and identifiable, are to be made available to the
public within twenty (20) working days from the receipt of the request
(either electronically or hardcopy).

When appropriate, agencies may utilize various statutory exemptions to
withhold records which are requested under the FOIA. See Appendix A.
However, in each case the justification for withholding agency
documents, or parts thereof, must be explained fully and in writing.
FOIA requestors may appeal non-disclosure determinations to the
Solicitor of Labor and further appeals are available in federal District
Court. The FOIA is applicable to agency records which already exist or
may be compiled without great difficulty or burden. Agencies do not have
to create records in response to FOIA requests, nor do they have to
respond to questions.

b\. [Privacy Act.]{.underline} The [Privacy Act of 1974 (5 USC
552a)](http://www.usdoj.gov/foia/privstat.htm) is both a disclosure and
a non-disclosure statute. It applies to records which contain certain
personal information about individuals, for example, information about
an individual's education, financial transactions, medical history,
criminal history, and employment history. The Privacy Act requires
agencies to provide individuals with access to most records pertaining
to themselves which are maintained under their name or personal
identifier. Individuals are permitted to obtain copies of these records
and to request corrections or amendments to them unless the applicable
"system of records" is exempt from disclosure. For example, OIG
investigatory records are exempt from disclosure under the Privacy Act.
At the same time, the Privacy Act prohibits agencies from disclosing
most personal information to third parties. If a third party request for
Privacy Act information is made from outside the Department of Labor,
disclosure must fall within a published "routine use" and must be
"compatible" with the reason for the collection of the information. If a
third party request for Privacy Act information is made from inside the
Department of Labor, the requesting party must have an articulated "need
to know" the requested information. These determinations are often made
on the basis of previous administrative and judicial decisions, and
[individual OIG employees should not make Privacy Act disclosure
determinations]{.underline} without consulting with the OIG Disclosure
Officer or the Office of Legal Services. See Section 5,
"Responsibilities," infra. See, also, OIG IGD 5-220-02, "Collecting and
Maintaining Privacy Act Information."

c\. [Joint FOIA/Privacy Act Requests.]{.underline} A request for
information received by the OIG may be identified as an FOIA request, a
Privacy Act request, or as a joint FOIA/Privacy Act request. The policy
of the Department of Labor, including the OIG, is to treat the request,
regardless of how it is identified, so that the maximum amount of
information is disclosed within the constraints of the law.

**4. POLICY.**

The policy of the OIG is to provide full and responsible disclosure of
identifiable records and information consistent with such competing
public interests concerning national security, proprietary rights,
personal privacy, and obligations of confidentiality as recognized by 5
USC 552 and 5 USC 552(a). Departmental policy, as well as OIG policy,
provides that any written request for records (via mail, facsimile or
electronic mail), regardless of whether the request cites the FOIA or
the Privacy Act, will be answered in accordance with the procedures
found in the FOIA, the Privacy Act, and in 29 C.F.R. Part 70.

5.  **RESPONSIBILITIES.**

The authority for releasing OIG maintained information to parties
outside the OIG rests with the Inspector General. This authority has
been delegated to the Assistant Inspectors General and to the OIG
Disclosure Officer.

a\. [All OIG employees]{.underline} must:

1\. Accept FOIA and Privacy Act requests for OIG records which are made
by members of the public. It is not necessary that the requests
specifically cite or refer to the FOIA or the Privacy Act. Any request
for OIG records, or information which may be contained in OIG records is
considered to be a formal request.

2\. Forward all FOIA and Privacy Act requests, or any other requests
which ask for OIG records, to:

Disclosure Officer

U. S. DEPARTMENT OF LABOR

OFFICE OF INSPECTOR GENERAL

Office of Legal Services

Room S-5506

200 Constitution Avenue, N.W.

Washington, D.C. 20210

For requests which ask for audit or investigative documents and do not
ask for records containing any personal information about individuals,
OIG employees may provide the requested records if it is clear that the
requested records, [in their entirety]{.underline}, have already been
made available [to the general public]{.underline}, for example, OIG
Semiannual Reports, final audit and evaluations reports, and press
releases concerning criminal investigations. Further, such requests do
not need to be in writing; telephone or other oral requests are
permitted in this limited circumstance.

If there are [any]{.underline} questions or doubts as to whether a
document has been previously released to the general public, in its
entirety, the request should be forwarded immediately to the OIG
Disclosure Officer. If the request is not in writing, the requestor
should be asked to put the request in writing and send it directly to
the Disclosure Officer.

b\. [All AIGs and Heads of OIG Regional Offices]{.underline} are
responsible for ensuring that their offices assist the Disclosure
Officer when requested by:

> 1\. Searching their files when requested by the Disclosure Officer;

2\. Identifying all records or information responsive to a FOIA or
Privacy Act request;

> 3\. Determining and reporting the status of the matter (audit or
> investigation) related to the request (i.e., open, closed, pending);
>
> 4\. Noting any objections the release of the records or portions
> thereof;
>
> 5\. Forwarding the records to the Disclosure Officer.

c\. The [OIG Disclosure Officer]{.underline} is responsible for:

> 1\. Coordinating, processing, and controlling all FOIA/Privacy Act
> requests directed to the OIG whether received in the National office
> or regional or field offices;
>
> 2\. Obtaining responsive records and information from appropriate OIG
> component offices;
>
> 3\. Maintaining appropriate records concerning FOIA/Privacy Act
> policies, procedures, requests, responses, and related correspondence;
>
> 4\. Reviewing all documents prior to their release to the requestor;
>
> 5\. Consulting with the Office of Legal Services for purposes of
> assisting in making a release determination;
>
> 6\. Preparing response letters to requesters, and preparing
> FOIA/Privacy Act reports of a statistical or administrative nature
> which may be requested by Members of Congress, by agency officials, or
> as required by law.

6.  **REQUESTS FROM DEPARTMENT OF LABOR PERSONNELOR OTHER GOVERNMENT
    AGENCIES.**

The provisions of the FOIA do not apply to Federal agencies, including
Department of Labor offices outside the OIG. However, the guidelines
established in section 5, supra, should be used for requests from DOL
personnel or offices, or other federal, state, or local agencies, for
OIG records. When requests are made for records containing personal
information, or for other non-public records, for example, audit work
papers or investigative files, OIG employees should consult with the
Disclosure Officer or the Office of Legal Services.

**7. CONGRESSIONAL REQUESTS.**

See IGD 5-500, "Congressional Requests for OIG Records."

**8. SUBPOENAS ISSUED TO OIG EMPLOYEES.**

OIG employees who receive a subpoena or other court order to provide
testimony related to their official OIG duties, or to provide OIG
documents, should immediately inform the Office of Legal Services. No
documents or information should be provided without consulting with the
Office of Legal Services. See IGD 4-740, "Subpoenas Served on OIG
Employees."

**9. EFFECTIVE DATES AND CANCELLATION**

This directive rescinds IGD 5-300-1, Procedures For Handling Freedom Of
Information, Privacy Act And Congressional Requests, dated 8/2/83.

This Directive is effective immediately and will remain in effect until
canceled or superseded. It requires implementation of action items, and
contains information of a continuing nature.

###### APPENDIX A

# THE FREEDOM OF INFORMATION ACT

**EXEMPTIONS AND EXCLUSIONS**

The Freedom of Information Act, 5 U.S.C. Section 552, as amended,
generally provides that any person has a right, enforceable in court of
access to federal agency records, except to the extent that such records
(or portions thereof) are protected from disclosure by one of nine of
exemptions or by one of three special law enforcement record exclusions.

####### EXEMPTIONS

**[Exemption 1]{.underline}** of the FOIA, 5 U.S.C. Section 552 (b)(1)
protects from disclosure national security information concerning the
national defense or foreign policy, provided that it has been properly
classified in accordance with the substantive and procedural
requirements of an executive order. (The applicable executive order
currently in effect is Executive Order 12,356).

**[Exemption 2]{.underline}** of the FOIA exempts from mandatory
disclosure records \"related solely to the internal personnel rules and
practices of any agency.\" 5 U.S.C. Section 552 (b)(2).

**[Exemption 3]{.underline}**, as amended, allows the withholding of
information prohibited from disclosure by another statute only if that
statute \"(A) requires that the matters be withheld from the public in
such a manner as to leave no discretion on the issue, [or]{.underline}
(B) establishes particular criteria for withholding [or]{.underline}
refers to particular types of matters to be withheld\" 5 U.S.C. Section
552 (b)(3), as amended (emphasis added).

**[Exemption 4]{.underline}** of the FOIA protects \"trade secrets and
commercial or financial information obtained from a person (which is)
privileged or confidential\" 5 U.S.C. Section 552(b)(4).

**[Exemption 5]{.underline}** of the FOIA protects \"inter‑agency or
interagency memorandums or letters which would not be available by law
to a party \... in litigation with the agency.\" 5 U.S.C. Section 552
(b)(5).

**[Exemption 6]{.underline}** permits the government to withhold all
information about individuals in \"personnel and medical files and
similar files\" where the disclosure of such information \"would
constitute a clearly unwarranted invasion of personal privacy.\" 5
U.S.C. Section 552 (b)(6). Of course, this exemption cannot be invoked
to withhold from a requester, information pertaining only to himself.

**[Exemption 7]{.underline}** of the FOIA, as amended, protects from
disclosure \"records or information compiled for law enforcement
purposes, but only to the extent that the production of such law
enforcement records or information **(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, including a State, local, or foreign
agency or authority or any private institution which furnished
information on a confidential basis, and, in the case of a record or
information complied by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, information furnished by 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 if such
disclosure could reasonably be expected to risk circumvention of the
law; or **(F)** could reasonably be expected to endanger the life or
physical safety of any individual\" 5 U.S.C. Section 552 (b)(7), as
amended.

**[Exemption 8]{.underline}** of the FOIA covers matters that are
\"contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions\" 5 U.S.C. Section 552 (b)(8).

**[Exemption 9]{.underline}** of the FOIA covers \"geological and
geophysical information and data, including maps, concerning wells.\" 5
U.S.C. Section 552 (b)(9).

# 

####### EXCLUSIONS

The Freedom of Information Reform Act of 1986 created an entirely new
mechanism for protecting certain especially sensitive law enforcement
matters under new subsection (c) of the FOIA. These three new special
protection provisions, referred to as record \"exclusions,\" now
expressly authorize federal law enforcement agencies, for especially
sensitive records under certain specified circumstances, to \"treat the
records as not subject to the requirements of (the FOIA).\" 5 U.S.C.
Section 552 (C)(1), (C)(2), (C)(3), as enacted.

**[The first]{.underline}** of these provisions, to be known as the
\"(c)(1) exclusion,\" provides as follows:

Whenever a request is made which involves access to records described in
subsection (b)(7)(A) and ‑‑

\(A\) the investigation or proceeding involves a possible violation of
criminal law; and

\(B\) there is reason to believe that (i) the subject of the
investigation or proceeding is not aware of its pendency, and (ii)
disclosure of the existence of the records could reasonably be expected
to interfere with enforcement proceedings, the agency may, during only
such time as that circumstance continues, treat the records as not
subject to the requirements of this section. 5 U.S.C. Section 552
(c)(1).

**[The second]{.underline}** exclusion created by the FOIA Reform Act
applies to a narrower situation, involving the threatened identification
of confidential informants in criminal proceedings. The \"(c)(2)
exclusion\" provides as follows:

Whenever informant records maintained by a criminal law enforcement
agency under an informant\'s name or personal identifier are requested
by a third party according to the informant\'s name or personal
identifier, the agency may treat the records as not subject to the
requirements of (the FOIA) unless the informant\'s status as an
informant has been officially confirmed. 5 U.S.C. Section 552 (c)(2).

**[The third]{.underline}** of these special record exclusions pertains
only to certain law enforcement records that are maintained by the FBI.
The new \"(C)(3) exclusion\" provides as follows:

Whenever a request is made which involves access to records maintained
by the Federal Bureau of Investigation pertaining to foreign
intelligence or counter intelligence, or international terrorism, and
the existence of the records is classified information as provided in
(Exemption 1), the Bureau may, as long as the existence of the records
remains classified information, treat the records as not subject to the
requirements of (the FOIA). 5 U.S.C. Section 552(c)(3).