Chief FOIA Officer Report for 

National Indian Gaming Commission 

March 2010 

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I. Steps Taken to Apply the Presumption of Openness 

1. Description 

 The National Indian Gaming Commission (NIGC) is a small federal 

agency of approximately 115 employees nationwide. Our primary mission is to 

regulate gaming activities on Indian lands for the purpose of shielding Indian 

tribes from organized crime and other corrupting influences; to ensure that Indian 

tribes are the primary beneficiaries of gaming revenue; and to assure that gaming 

is conducted fairly and honestly by both operators and players. To Achieve these 

goals, the Commission is authorized to conduct investigations; undertake 

enforcement actions, including the issuance of violation, assessment of civil fines, 

and/or issuance of closure orders; conduct background investigations; conduct 

audits; and review and approve, where appropriate, Tribal gaming ordinances and 

agreements. The FOIA office handles all agency requests and has a staff of one 

employee. 

 In keeping with President Obama’s FOIA Memorandum of January 21, 

2009 and Attorney General Holder’s FOIA Memorandum of March 19, 2009, the 

NIGC’s FOIA office has taken a hard look at the way it processes agency 

documents pursuant to FOIA requests. Documents generated in the course of the 

agency’s mission of regulating gaming on Indian lands routinely contain 

confidential and proprietary information. When processing this type of 

information every effort has been made to make discretionary disclosure of 

information that would normally be heavily protected pursuant to exemption 

(b)(4). This process has involves working with the submitter of documents to 

discuss any competitive harm if the information is released. Documents are now 

routinely processed in part whenever they cannot be released in full. When 

requests are for a gaming-related contract, such as a development, lease, or 

consulting agreement, which by their nature contain trade secrets and commercial 

or financial information, a review is made of similar documents previously 

released to look for standard pitches commonly used, to ensure that this 

information is not withheld in current release. The FOIA office received 67 

requests during fiscal year 2009 and 107 requests in fiscal year 2008. The 

application of (b)(4) was applied in 34% of releases in fiscal year 2009 as 

opposed to 33% of releases in fiscal year 2008. 

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 Another area closely scrutinized is our application of exemption (b)(5). 

Requests for documents, working papers and emails concerning decisions or 

opinions are usually originate within the Office of General Counsel (OGC). The 

vast majority of documents created by OGC are for the most part inter-agency or 

intra-agency memorandums or letters which would not be available by law to a 

party other than an agency in litigation with the agency. The documents may 

contain information which disclosure "would reveal the attorneys' thought 

processes and litigation strategy and would reveal the agency's deliberations prior 

to the decision or opinion”. Every effort is made to reduce redactions and make 

partial releases of information while protecting the privileges of this exemption. 

The application of (b)(5) was applied in 15% of releases in fiscal year 2009 while 

24% of releases in fiscal year 2008 applied this exemption. 

 The NIGC has received three appeals in each of fiscal years 2009 and 

2008. In fiscal year 2009, two appeals were remanded for additional release and 

one appeal was upheld. In fiscal year 2008, two appeals were remanded for 

additional release and one appeal was withdrawn. Appeal were reviewed and 

responded to within the 20 day period per 25 C.F.R. § 517.8. 

 Though NIGC receives a low volume of requests, we strive to release as 

much information as possible. The FOIA Officer attends all training supplied 

through the Department of Justice, Office of Information Policy in order to keep 

up with current policy. President Obama’s FOIA Memorandum of January 21, 

2009 and Attorney General Holder’s FOIA Memorandum of March 19, 2009 are 

available in electronic format for agency personnel on our internal shared drive. 

2. Disclosure Comparisons 

 We have a slight increase in the number of requests released in full and 

releases in part for fiscal year 2009. Of the 67 requests received during fiscal year 

2009, 14 requests or 20% were granted in full. This is a 1% increase over fiscal 

year 2008, wherein of the 107 requests received in 2008, 23 requests or 21% were 

granted in full. Of the requests where partial releases were made, 28 or 41% were 

released in part in fiscal year 2009 and 42 or 39% were released in part in fiscal 

year 2008. This is an increase of 2%. 

II. Steps Taken to Ensure that Your Agency has an Effective System 

for Responding to Requests

 The NIGC has one employee to handle all FOIA requests for the agency. 

This FOIA Officer is responsible for working with agency personnel in order to 

facilitate an effective system for responding to requests. When the FOIA Officer 

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receives a new request, a tracking number is assigned to it and the pertinent 

information is entered into an Excel spreadsheet. Request letter is then scanned 

and saved in an electronic format. An email search request is sent to all offices 

where records could be located. These search requests are to be returned within 

14 days. Attention is being focused to working with agency personnel to 

complete search requests within the 14 day time period or sooner and provide 

assistance in locating and copying responsive documents. Once search requests 

are returned a quick review of responsive documents is performed to determine 

how long the processing will take. If processing will exceed the 20 business day 

time period from the date the letter was received, as required by the FOIA, an 

acknowledgement letter is sent to the requester explaining what needs to be done 

to complete processing of the request along with an estimate of the additional 

time needed. The requester may modify his request at this time to shorten the 

processing time. 

 The NIGC has implemented a multi-tracking system when processing 

FOIA requests pursuant to 5 U.S.C. § (a)(6)(D) and 25 C.F.R. § 517.6 (b). 

Requests within each track are processed on a “first-in, first-out” basis. Track 1 is 

for those requests that seek and receive expedited processing. Track 2 is for those 

requests that do not require lengthy consultations with other entities or for 

requests that do not involve voluminous records. Track 3 is for those requests 

that involve voluminous records or records requiring lengthy or numerous 

consultations, to include records that include confidential commercial information 

(See 25 C.F.R. § 517.5 for more information.) Documents are reviewed line-byline using paper copies of documents. Material that is exempted from release 

under FOIA is manually redacted using white out tape, then, copied for a redacted 

release to requester. NIGC has recently begun scanning these redacted documents 

in to an electronic format for easy retrieval in any future requests and possible 

posting on the NIGC Reading Room webpage. We have also completed the 

scanning into electronic format all FOIA releases for the years 2007 and 2008 for 

ease of future retrieval. The Information Technology office supports our mission 

of openness to ensure that documents are posted on our website as requested and 

to create or update web pages as needed. 

 Due to the mission of our agency, the majority of documents contain 

financial and proprietary information. Submitter notices are required under both 

the FOIA and NIGC regulations for information deemed commercial or 

confidential business information. Prior to sending out submitter notices, 

documents are reviewed for information that qualifies for withholding, 

information is highlighted and copies are sent to the submitters explaining why 

the information was withheld. If the submitters believe more information needs 

to be withheld, or the documents need to be withheld in full, they are required to 

provide written justification within 10 days. Extensions on the timeframe are 

generally granted when requested. Submitter response letters are reviewed to see 

if any additional information has been requested to be withheld and whether that 

information qualifies for withholding under any FOIA exemption. This is an area 

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we are working on to speed the completion of the submitter notice requirement. 

We are working telephonically with submitters to discuss questionable 

withholdings to reduce the additional time needed for review. A final 

determination letter is sent to the submitters letting them know the final agency 

action and allowing them an opportunity to seek judicial relief prior to the NIGC 

release of any documents. Once the submitter notices are completed, a final 

release to the requester is made. While we acknowledge there is always room for 

improvement and will implement changes as identified, the current system the 

FOIA Officer has in place for handling and responding to requests is adequate for 

the low volume of requests received. 

III. Steps Taken To Increase Proactive Disclosures 

The NIGC has responded to the need and demand of posting agency 

documents onto our website. We currently have the following material available 

for viewing and downloading via www.nigc.gov : 

 

*All compacts that gaming tribes have in place with their states. 

*All Bulletins issued by the NIGC 

*All enforcement actions issued by the NIGC for violations relating to the Indian 

Gaming Regulatory Act (IGRA) and its implementing regulations. 

*All Commission final agency decisions. 

*All advisory opinions issued by the NIGC’s Office of General Counsel on 

whether certain games fall within the IGRA definition of Class II or Class III 

games. 

*All current tribal gaming ordinances that must be approved by the NIGC 

Chairman before opening a gaming operation as required by the IGRA. 

*All Indian lands advisory opinions issued by the NIGC and the Department of 

the Interior on whether a tribe may game on certain lands. 

*A list of all gaming tribes and their gaming facility locations. 

*Redacted versions of the management contracts approved by the NIGC 

Chairman that are in force between any gaming Indian tribe and its management 

contractor. 

Over the past year, we have proactively posted two additional types of highly 

requested material: Sole Proprietary Interest letters and Management Review 

letters. These letters are issued by the NIGC’s Office of General Counsel in 

response to tribes requesting NIGC review of contracts and agreements on 

whether they constitute management or violate the sole proprietary interest of the 

tribe. 

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The NIGC also posts numerous documents and information related to the 

agency itself, such as organizational charts, Commission structure, Laws & 

Regulations, to name a few. 

IV. Steps Taken to Greater Utilize Technology 

 1. Does your agency currently receive requests electronically. 

Requests have been received electronically by sending requests through 

the ContactUs@nigc.gov email address located on the NIGC website or emailing 

the FOIA Officer directly. 

2. If not, what are the current impediments to your agency 

establishing a mechanism to receive requests electronically. 

The current procedures in place are adequate for the low volume of 

requests received.

3. Does your agency track requests electronically. 

No. All requests are manually entered into an Excel spreadsheet, which 

captures all necessary information concerning request needed for annual 

reporting, and also provides a place for description of documents requested and 

notes detailing action taken and the status of case. Information can be retrieved 

using a request number, requester name, or the subject of request. 

4. If not, what are the current impediments to your agency utilizing a 

system to track requests electronically. 

 The current procedures in place are adequate for the low volume 

of requests received. Funding is an issue as the NIGC is solely funded 

through fees collected from gaming operations under its jurisdiction. 

 5. Does your agency use technology to process requests. 

No. Documents are reviewed line-by-line using paper copies of 

documents. Material that is exempted from release under FOIA is manually 

redacted using white out tape, and then copied for a redacted release to requester. 

NIGC has recently begun scanning these redacted documents in to a database for 

use in any future requests and possible posting on the NIGC Reading Room 

webpage. 

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6. If not, what are the current impediments to your agency utilizing 

technology to process requests. 

The current procedures in place are adequate for the low volume of 

requests received. Funding is an issue as the NIGC is solely funded 

through fees collected from gaming operations under its jurisdiction. 

7. Does your agency utilize technology to prepare your agency Annual 

FOIA Report. 

 No. The FOIA Officer manually prepares the report. 

8. If not, what are the current impediments to your agency utilizing 

technology in preparing your agency Annual FOIA Report. 

The current procedures in place are adequate for the low volume of 

requests received. Funding is an issue as the NIGC is solely funded 

through fees collected from gaming operations under its jurisdiction. 

V. Steps Taken to Reduce Backlogs and Improve Timeliness 

 in Responding to Requests

1. Backlog Status 

The backlog of pending FOIA requests did not decrease for the fiscal year 

2009, it increased by one request. Fiscal year 2008 showed one backlogged 

request and fiscal year 2009 showed two backlogged requests. We have no 

backlog of appeals for either fiscal year 2008 or 2009. 

The NIGC has implemented a multi-tracking system when processing 

FOIA requests pursuant to 5 U.S.C. § (a)(6)(D) and 25 C.F.R. § 517.6 (b). 

Requests within each track are processed on a “first-in, first-out” basis. Track 1 is 

for those requests that seek and receive expedited processing. Track 2 is for those 

requests that do not require lengthy consultations with other entities or for 

requests that do not involve voluminous records. Track 3 is for those requests 

that involve voluminous records or records requiring lengthy or numerous 

consultations, to include records that include confidential commercial information 

(See 25 C.F.R. § 517.5 for more information.). 

 Of the two pending requests backlogged for fiscal year 2009, one request 

was received May 19, 2009, and the second request was received August 18, 

2009. Both of the pending requests were Track 3 requests involving lengthy 

consultations. The May 19, 2009 request was closed December 16, 2009. In 

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2008, the one pending request backlogged was received August 11, 2008 and was 

a Track 3 request involving a voluminous amount of documents. This request 

was closed November 4, 2008. 

2. Backlog Reduction Steps 

The backlogged pending requests of 2008 and 2009 were Track 3 requests 

involving lengthy consultations and a voluminous amount of documents. We are 

working toward handling the consultations in a shorter period by telephonically 

working with submitters on final determination of material. Requesters are being 

consulted when a large volume of responsive documents have been identified to 

determine if all documents need to be processed or if they are willing to negotiate 

what they are requesting. In view of the low volume of requests, current 

procedures are adequate. 

3. Steps to Improve Timeliness 

As stated in a Part V.2 cases are handled in the order that they are 

received, according to tracks. For the small volume of requests received each 

year this system is adequate to process requests in a timely method. Appeals are 

routinely handled within the 20 day period per 25 C.F.R. § 517.8. Once an appeal 

is received, the FOIA Officer gathers the responsive case folder and advises the 

Office of General Counsel of appeal. The attorney assigned to the appeal is given 

the responsive material for handling. This system is adequate to process appeals 

within the timeframe allowed. 

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