December 31, 2008

**OCIO DIRECTIVE 2009-003**

To: Heads of Bureaus and Offices

From: Sanjeev (Sonny) Bhagowalia /s/

Chief Information Officer

Chief FOIA Officer

Subject: OPEN Government Act Provisions Taking Effect on December 31,
2008

**[Purpose]{.underline}:** This directive updates the policy and
procedures for administering and implementing the Freedom of Information
Act (FOIA) in the Department of the Interior (DOI) to incorporate the
provisions of the *Openness Promotes Effectiveness in our National
Government Act of 2007* (also called the *OPEN Government Act of 2007*)
that become effective on December 31, 2008. The Department's FOIA
regulations (43 CFR Part 2, Subpart C) and the FOIA Handbook (383 DM 15)
will be revised accordingly.

**[Background]{.underline}:** On December 31, 2007, President Bush
signed the *Open Government Act of 2007*, P.L. No. 110-175, amending the
FOIA for the first time since 1996. The amendments address several
procedural areas dealing with agency FOIA administration and codify some
provisions of Executive Order (E.O.) 13392 ("Improving Agency Disclosure
of Information"). Some amendments went into effect immediately; others
(discussed below) become effective on December 31, 2008. (For a copy of
the FOIA containing the *OPEN Government Act* *Amendments*, go to
<http://www.usdoj.gov/oip/amended-foia-redlined.pdf>.)

**[Scope]{.underline}:** The provisions discussed in this directive will
be used by all DOI bureaus and offices in processing requests under the
FOIA.

**[Time Frame]{.underline}:** These provisions take effect on December
31, 2008, and affect FOIA requests perfected on or after that date.

**[Policy]{.underline}:** Bureaus and offices are expected to comply
fully with the *OPEN Government Act of 2007* and DOJ guidance for
implementing the Act (see DOJ's guidance in the *FOIA Post* at
<http://www.usdoj.gov/oip/foiapost/mainpage.htm>).

**NOTE: In this directive, statutory response times expressed in days
always mean "workdays."**

1\. [Requirement to forward misdirected requests to proper agency FOIA
office/Start date for 20-day response.]{.underline} This provision only
applies to perfected requests that are received by a bureau or office
("bureau") designated by DOI regulation to receive FOIA requests and
that are being forwarded to one or more other DOI FOIA offices for
processing. (It does not apply to situations in which a request is sent
to the wrong agency.) When a request is misdirected to the "wrong" FOIA
office within an agency, the 20-day time period for agency response will
begin on the date the request is first received by the proper FOIA
office, but not later than ten days after the "wrong" FOIA office
received it. Thus, if a request is addressed to the wrong DOI FOIA
office, that office must now, by law, promptly forward the request to
the correct DOI FOIA office(s) for response. The start date for the
20-day response period is as follows:

-   If the proper FOIA office receives the request within ten days of
    the date the request was received by the wrong FOIA office, the
    20-day response time period begins on the date the request was
    received in the proper FOIA office.

-   If the proper FOIA office receives the request after ten days, the
    20-day response time period will begin on the tenth day from the
    date the request was received by the wrong office whether or not the
    proper FOIA office has received it yet.

-   If the proper FOIA office subsequently determines a forwarded
    request is not perfected, the date the request was received by the
    wrong FOIA office has no effect on the start of the 20-day time
    period; the 20-day time period will start on the day the request is
    perfected.

Attached are examples of situations that bureaus/offices may encounter
that illustrate how this provision should be interpreted in practice.

To ensure the proper DOI FOIA office gets its full 20 days to respond to
requests, all bureaus designated by DOI regulation to receive FOIA
requests must now promptly review all requests as soon as they are
received to determine if they are the proper FOIA office to process the
request. If not, they must get the request to the proper FOIA office
within ten days.

Bureaus should track the receipt and forwarding of misdirected requests
to appropriate office(s) in case a requester calls to inquire about
his/her request. The office forwarding the request should attach a cover
sheet to it notifying the receiving office that the request is being
forwarded for action. The office forwarding the request should notify
the requester of the referral. The office that receives and processes
the forwarded request should inform the requester in its acknowledgment
letter of the date it received the request.

Since the initiation of the 20-day response period depends on the date a
request is received by any DOI FOIA office, bureaus receiving
misdirected requests must either date stamp or note the date of receipt
directly on the request. Likewise, the proper FOIA office must also note
the date it received the forwarded request. The proper FOIA office must
enter the actual date it received the request in the electronic FOIA
tracking system (EFTS) under "date received" consistent with the
procedures in Section 1 of this Directive. (DOJ guidance at
<http://www.usdoj.gov/oip/foiapost/2008foiapost31.htm>.)

2\. [Limitation on stopping the clock on statutory response
time.]{.underline} This provision only applies to requests that have
been perfected and for which the 20-day response period has already
begun. There are two scenarios in which a DOI FOIA office can stop the
clock once a (perfected) request has been received. First, the FOIA
office can go back to a requester once, stopping the clock, to obtain
non-fee related information it needs to process the request. If the FOIA
office needs to go back again to the requester for clarification, the
clock cannot be stopped to negotiate with the requester the second time.
Second, a FOIA office may stop the clock as many times as it needs to
when it is necessary to resolve fee issues. (DOJ guidance is at
<http://www.usdoj.gov/oip/foiapost/2008foiapost29.htm>.)

3\. [Limitation on assessing search (or duplication, if applicable) fees
in certain situations.]{.underline} DOI FOIA offices may no longer
assess search fees (or duplication fees for requesters in the
"educational institution," "non-commercial scientific institution," or
"representative of the news media" fee categories) if they fail to
comply with the 20-day time limit for responding to initial requests or
appeals unless "unusual circumstances" or "exceptional circumstances"
apply to the requests:

> "Unusual circumstances" apply whenever there is a need: a) to search
> for and collect records from offices or establishments outside of the
> office processing the request; b) to search for, collect, and examine
> a voluminous amount of records; or c) for consultations with another
> agency or more than two Departmental components. In this case, a
> statutory time extension must be taken (see Chapter 3.3 of the DOI
> FOIA Handbook).
>
> "Exceptional circumstances" generally apply when the FOIA office
> processing the request has a backlog of pending requests
> [and]{.underline} that office is making reasonable progress in
> reducing its backlog.

If the processing of a request involves \"unusual\" or \"exceptional
circumstances\" as described above, the exception to the rule against
charging fees is met and the FOIA office may assess fees as it normally
would. (NOTE: The Predisclosure Notification Procedures for Confidential
Commercial Information under E.O. 12600 does not meet either of these
exceptions.) This applies even if the bureau exceeds the 30-day time
limit (20 days plus a 10-day extension).

If no "unusual" or "exceptional circumstances" are involved in the
processing of a request and the bureau or office responds after the 20
days have expired, it must not:

-   charge search fees to requesters in the "other" or "commercial" fee
    category

-   charge duplication fees to requesters in the "educational
    institution," "non-commercial scientific institution" or
    "representative of the news media" categories

(DOJ guidance is at
<http://www.usdoj.gov/oip/foiapost/2008foiapost28.htm>.)

4\. [Requirement to assign tracking numbers to requests.]{.underline} As
a matter of DOI policy, bureaus are required to assign tracking numbers
to all FOIA requests and provide the tracking numbers to requesters. To
meet this obligation, the bureau will include the tracking number in the
acknowledgment letter sent to the requester. (The EFTS assigns tracking
numbers for the requests that are in the system and will generate an
acknowledgment letter that includes the tracking number.) DOI FOIA
offices will continue to track all requests they receive in order to
manage their requests effectively and produce the required annual FOIA
report. (DOJ guidance is at
<http://www.usdoj.gov/oip/foiapost/2008foiapost30.htm>.)

5\. [Requirement to provide telephone line or Internet service for
status inquiries.]{.underline} FOIA offices must establish either a
phone line or Internet site for requesters to obtain information about
the status of their requests using assigned tracking numbers by December
31, 2008. Bureaus must be able to provide the date a particular request
was received by the FOIA office and an estimated completion date for the
request. This estimate should be based on the request's processing
track, its place in the processing queue, past experience with similar
requests and the work that is left to be done at the time of the
inquiry. Estimates do not have to be exact, e.g., three weeks, two
months, etc. (DOJ guidance is at
<http://www.usdoj.gov/oip/foiapost/2008foiapost30.htm>.)

Under E.O. 13392 all agencies had to establish FOIA Requester Service
Centers to provide status information to requesters. These Centers, now
codified in the *OPEN Government Act*, can be used to meet this
requirement. DOI's existing FOIA Service Center phone lines fulfill this
requirement as well as DOI's toll-free FOIA number (1-888-603-7119). The
FOIA Liaisons also have been codified in the *OPEN Government Act*. (DOJ
guidance is at <http://www.usdoj.gov/oip/foiapost/2008foiapost30.htm>.)

6\. [Other OPEN Government Act provisions that became effective on
December 31, 2007]{.underline}.

**Revised "record" definition:** The definition of the term "record" is
amended to include any information "maintained for an agency by an
entity under Government contract, for the purposes of records
management."

**Litigation considerations:** As a reminder, on April 28, 2008, the
Department's Chief FOIA Officer issued a memorandum (attached)
discussing two important *OPEN Government Act* provisions. Specifically,
the memorandum addressed provisions in the Act making it easier for FOIA
litigants to qualify to receive attorney fees, and requiring that such
fees be paid out of the agency's annual appropriations. The memorandum
emphasized the need for bureaus to consider the financial consequences
that could result from inadequate, incorrect, or delayed FOIA
processing. Bureaus should carefully consider the ramifications of their
withholdings and ensure that they can be defended under the law.
Individuals making disclosure determinations will consult their
policy-makers and FOIA attorneys as appropriate.

**Note exemption(s) taken next to deletion(s):** Also, in October 2008,
DOJ issued guidance on the new requirement to indicate directly on the
released portion of the record not only the amount of information
deleted, but also the exemption(s) used to withhold the information.
This is consistent with guidance contained in the Department's FOIA
Handbook (383 DM 15, Chapter 3.12) (DOJ guidance is at
<http://www.usdoj.gov/oip/foiapost/2008foiapost26.htm>.)

**[Contacts]{.underline}:** Questions concerning this directive may be
directed to Alexandra Mallus, the Departmental FOIA Officer, by
telephone at (202) 208-5342 or by email at
<alexandra_mallus@ios.doi.gov>, or Rosemary Melendy, Senior FOIA Program
Officer, by telephone at (202) 208-5412 or by email at
<rosemary_melendy@ios.doi.gov>.

Please ensure that this directive is disseminated promptly to all
employees within your bureau involved with processing FOIA requests to
ensure Departmentwide compliance. We appreciate your assistance and
cooperation in this regard.

Attachments - Examples, Determining Start of 20-Day Time Period for
Misdirected Requests

Freedom of Information Act Amendments

cc: Bureau and Office FOIA Officers

Designated FOIA Attorneys

Bureau/Office Chief Information Officers