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**FEDERAL MEDIATION AND CONCILIATION SERVICE**

**2100 K Street, NW**

**Washington, DC 20247**

#### OFFICE OF THE GENERAL COUNSEL

June 12, 2006

# MEMORANDUM

TO: Pamela A. Maida

Department of Justice

FROM: Maria A. Fried

Chief Freedom of Information Act Officer

> Federal Mediation and Conciliation Service

SUBJECT: Implementation of Executive Order 13392

> "Improving Agency Disclosure of Information"

On December 14, 2005, President George W. Bush issued Executive Order
13392 "Improving Agency Disclosure of Information." This report is
prepared and submitted pursuant to that order.

## BACKGROUND

The Federal Mediation and Conciliation Service (FMCS) was established by
Title II of the Labor Management Relations Act (Taft-Hartley) in 1947 as
an independent agency of the federal government whose primary mission is
to prevent and minimize labor-management disputes affecting interstate
commerce by providing mediation, conciliation and voluntary arbitration
services. This mission includes both the private and public sectors,
except for the railroad and airline industries, which are covered by the
Railway Labor Act and the National Mediation Board. In addition to
mediating collective bargaining disputes, FMCS offers services in
alternative dispute resolution and conflict management.

FMCS is headquartered in Washington DC. It has two regional offices in
Cleveland, Ohio and Chicago, Illinois and seventy field offices in
forty-three states. It employs 265 employees.

### REVIEW OF FREEDOM OF INFORMATION ACT OPERATIONS

As part of its review, FMCS undertook to evaluate how it currently
handles FOIA requests and identify shortcomings, if any, as they relate
to the way FOIAs are received, how FOIA requests are processed, and
customer feedback. Additionally, FMCS reviewed its web page, considered
whether agency resources were adequate to handle FOIA requests, and
reviewed existing regulations and agency documents pertaining to FOIA.

**A. Characterize Overall Nature of Agency's FOIA Operations:**

Overall, the FOIA operations at FMCS are working well. The volume of
FOIA requests has decreased in recent years because the agency has made
more information readily available to the public by posting it on its
website. As a result, FMCS does not have a backlog in responding to FOIA
requests.

**B. List all areas selected for review:**

a\. How FOIA requests are received

b\. Processing of FOIA Requests

c\. Timeliness of FOIA Responses

d\. Customer feedback

e\. Ease of making FOIA requests to Agency

f\. Agency web page and FOIA on-line access

g\. Review of existing regulations and FOIA reference guide

h\. Knowledge of FOIA by agency personnel

i\. Fee Assessment

**C. Include narrative statement summarizing results of review:**

FMCS is substantially compliant with key components of the Freedom of
Information Act. Specifically, it routinely processes FOIA requests
within twenty working days as required by law and most of its responses
to requests for information result in full disclosure. As part of its
review, the reviewer did identify certain areas for improvement. For
instance, FMCS lacks a mechanism to gauge customer feedback.
Additionally, the agency's FOIA regulation needs substantive and
procedural revisions. FMCS also considered how it could ensure it was
consistent in its application of fees. Although the process of how FMCS
assesses FOIA fees was identified as an area for review, it is not a
recurring problem given the fact that the threshold required for fee
assessment is not routinely met. Nonetheless, this area was deemed
worthy of review and improvement.

As a small agency, all FOIA operations are centralized in the Office of
General Counsel (OGC). Currently, the General Counsel is designated at
the Chief FOIA Officer. Given its small size and the FOIA volume of the
agency, the Chief FOIA Officer is also the FOIA Public Liaison person.
The Office of General Counsel's program manager responds to routine FOIA
requests as part of her assigned duties. This individual is also
referred to as FOIA Program Manager. Complex FOIA requests are reviewed
by one of three attorneys, as part of their assigned duties. At this
time, the agency's FOIA resources appear to be adequate.

FOIAs are typically received by the agency in several ways: These
include electronic mail transmissions to FMCS employees, through the
fmcs.gov mailbox address, regular mail, facsimile or telephonically. If
information is readily available on the agency website, the requestor is
referred to the website. If information is not readily available, the
request is treated as a FOIA and processed accordingly. All requests for
information are handled by the Office of General Counsel. When the
agency's field offices receive requests for information, the requests
are forwarded to the Office of General Counsel for action pursuant to
the FOIA. If a telephonic FOIA request is made, the agency advises the
requestor to submit the request in writing (via electronic mail,
facsimile or letter). Upon receiving a written request, the agency
renders its written response.

Upon receiving a FOIA request, the FOIA program manager determines which
office within FMCS has primary responsibility (OPR) for the records
requested. Upon making such a determination, the request is dispatched
to the appropriate office. The OPR provides the records to the OGC for a
determination as to releasability. Upon review, records or portions
thereof are released as deemed appropriate.

Most of the agency's FOIA responses are processed within twenty working
days as required by law. In the unlikely event that it will take more
than twenty working days to process a FOIA, the FOIA program manager
notifies the requestor of the delay and provides an expected date of
completion. The median date for processing and responding to FOIAs is
eight working days. Most result in full disclosure. In FY 2005, FMCS
received 134 FOIA requests: 116 of these FOIA requests were granted in
their entirety; 12 received a "no records" response; 5 were withdrawn by
the requestor; and 1 was referred to another agency because FMCS did not
maintain the records requested.

FMCS does not have a process providing for customer feedback.
Occasionally, FMCS does receive e-mails from customers pleased with the
responsiveness and timeliness in which their request was processed. On
one occasion over a three year period, a FOIA customer asked to speak
with the General Counsel because the agency's response to his FOIA
request was not in the computer format he desired. Upon speaking with
the General Counsel, the General Counsel contacted the Information
Technology (IT) staff to ascertain whether a file could be created as
requested. The request was accommodated.

Since FY 2005, most of the records sought under FOIA are available
on-line at FMCS' website. The requests are generally for F-7
notices,[^1] and work stoppage information and FOIA annual reports.
Requestors are directed to the website's FOIA link and are required to
register to obtain this information. As a result of this new on-line
access, FMCS has seen a significant reduction in the amount of FOIA
requests it processes.[^2]

As part of its review, FMCS reviewed its webpage to determine what
information was available to the public. In doing so, the reviewer noted
several areas for improvement. These areas included the absence of
reading rooms and on-line access to electronic records. Also, FMCS has
not yet posted its FOIA Requestor Center on its website but expects to
do so in the next thirty days.

Finally, the reviewer recognized the need to update the agency's FOIA
regulation and the need to train agency individuals involved with the
FOIA process. These individuals included members of the IT staff and the
FOIA program manager. It was determined that in light of the new
requirements in the Executive Order, additional training was necessary.

**D. List all Areas Chosen as Improvement Areas for Agency Plan:**

**1.** Agency web page

**2.** Customer Feedback Survey

**3.** FMCS FOIA regulation

**4.** Training of FOIA Personnel

**5.** Fee Assessment

**E. For each improvement area provide:**

##### Agency Web page 

-   **Statement of Goals:** Facilitate access to F-7 notices, work
    stoppages and annual reports; Provide on-line access to electronic
    data through widely-used (and common) computer applications;
    Establish FOIA requestor center; identify and post agency documents
    on website to reduce FOIA requests.

-   **Steps planned to be taken:** Discuss with IT department to
    determine how to facilitate access to on-line data; identify widely
    used-computer applications; establish FOIA requestor center and post
    on website; review agency documents to determine which are
    appropriate to post on website.

-   **Measurement of success:** Success will be measured via customer
    feedback; reduction in the number of steps it takes to retrieve
    on-line data; reduction in the number and types of FOIA requests.

**Customer Feedback Survey**

-   **Goals:** Develop voluntary customer feedback survey form and post
    it on-line.

-   **Steps planned to be taken:** Consult with other agencies to
    determine whether they have a customer feedback survey; develop
    customer feedback survey; obtain proper approval from OMB (if
    necessary) to collect such information; post customer feedback
    survey; review feedback and note areas of improvement.

-   **Measurement of success:** Implementation of survey and obtaining
    customer feedback.

##### FMCS FOIA Regulation 

-   **Goals:** Revise regulation; Develop a document titled "Frequently
    Asked Questions About FOIA and FMCS."

-   **Steps planned to be taken:** Review other federal agency FOIA
    regulations, revise regulation consistent with this plan; make
    proposed regulation available for public comment and publish in
    federal register; post new regulation and "Frequently Asked
    Questions about FOIA and FMCS" on the agency's website.

-   **Measurement of success:** Publication of final FOIA rules in
    Federal Register; publication of FOIA rules and "Frequently Asked
    Questions about FOIA and FMCS"on the agency's website,

##### Training of FOIA Personnel

-   **Goals:** Ensure FOIA personnel understand new FOIA requirements
    pursuant to Executive Order 13,392 Implementation Guidance.

-   **Steps planned to be taken:** Arrange for an internal training
    session of FOIA personnel regarding the new FOIA requirements and
    implementation plan. Create checklist for processing FOIA requests
    and delineate responsibilities under FOIA.

-   **Measurement of success:** Compliance with checklist to ensure
    proper implementation of plan.

**Fee Assessment**

-   **Goals:** Ensure consistent application of fees.

-   **Steps planned to be taken:** Review and revise current process of
    assessing fees and develop matrix to identify how fees are assessed;
    incorporate fee assessment changes in the FOIA regulation and post
    on website once finalized in federal registry.

-   **Measurement of success:** Develop log that identifies FOIA
    requests, fees assessed, and how those fees were determined;
    consistency of fees as applied will measure success.

**F. For the entire plan, group the improvement areas into the following
time periods:**

> **1. Areas anticipated to be completed by December 31, 2006 --** FOIA
> Requestor Center; Training of FOIA Personnel.
>
> **2. Areas anticipated to be completed by December 31, 2007 --**
> Revise, finalize and publish Agency's FOIA regulation, publish
> "Frequently Asked Questions about FOIA and FMCS" and publish customer
> feedback survey.
>
> **3. Areas anticipated to be completed after December 31, 2007 --**
> None

If you have any questions about this report, please do not hesitate to
contact me at 202-606-5444 or 202-606-8090.

cc: FOIAreporting@omb.eop.gov

[^1]: The National Labor Relations Act requires that employers or the
    representative of the employees who are covered by a collective
    bargaining agreement provide written notice to the other party sixty
    days (health care industry requires 90 day notice) prior to the
    expiration of a proposed termination or modification of a collective
    bargaining agreement. The Act also calls for notice to be provided
    to FMCS. The notice is called a Notice to Mediation Agencies (F-7).

[^2]: In FY 2005, the Agency processed 122 FOIA requests. Prior to
    making this information on-line, the Agency processed 449 requests
    in FY 2004 and 497 in FY 2003.