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National Indian Gaming Commission 

Chief FOIA Officer Report 

March 2011 

I. Steps Taken to Apply the Presumption of Openness 

1. Description 

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

agency of approximately 113 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 notices 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, which is exempt under FOIA exemption 

(b)(4). The Indian Gaming Regulatory Act mandates that all information coming 

within the purview of FOIA exemptions (b)(4) and (b)(7) must be kept 

confidential, with the only exception being that when such information indicates a 

violation of Federal, State, or Tribal law, it is provided to the appropriate law 

enforcement officials. 25 U.S.C. § 2716. Thus, when processing this type of 

information every effort has been made to release nonexempt material after 

consulting with submitter of material. Likewise, when requests for gaming- 
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related contracts, such as a development, lease, or consulting agreement, which by 

their nature contain trade secrets and commercial or financial information, are 

received, a review is made of similar documents previously processed and 

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

information is not withheld in current release. 

 Moreover, documents are routinely processed in part whenever they 

cannot be released in full. The FOIA office received 70 requests during Fiscal 

Year 2010 and 67 requests in Fiscal Year 2009. The application of (b)(4) was 

applied in 27% of releases in Fiscal Year 2010 as opposed to 34% of releases in 

Fiscal Year 2009. 

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

Requests for documents, working papers, and emails concerning agency decisions 

or legal advice or opinions 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 – 

meaning that the majority of the documents would be privileged in the civil 

litigation discovery context. Every effort is made to reduce redactions of 

information under exemption (b)(5). The application of (b)(5) was applied in 8% 

of releases in Fiscal Year 2010 while 15% of releases in Fiscal Year 2009 applied 

this exemption. 

 The NIGC received two FOIA appeals in Fiscal Year 2010 and three 

appeals in Fiscal Year 2009. In Fiscal Year 2010, both appeals were upheld. In 

Fiscal Year 2009, two appeals were remanded for additional release and one 

appeal was upheld. Appeals were reviewed and responded to within the 20 day 

period in accordance with NIGC FOIA regulations, 25 C.F.R. § 517.8. 

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

much information as possible. Concerning requests for high profile material, in 

addition to the FOIA Officer’s review, the program office responsible for the 

records will review the proposed release and application of exemptions to 

determine whether discretionary release of additional material is possible. At this 

time, we do not track the number of cases where discretionary releases were 

made, and therefore, cannot provide statistics as to the amount or extent of 

discretionary releases. However, we will be tracking discretionary releases for 

Fiscal Year 2011. 

Finally, the FOIA Officer attends all training supplied through the 

Department of Justice, Office of Information Policy in order to keep up with 

current policy and guidelines. 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 access by all agency personnel on our 

internal shared drive. 
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 As of this time, the agency has not created any new internal guidance to 

address the presumption of openness. Nonetheless, to ensure that the presumption 

of openness is being applied, regular meetings are attended by agency personnel 

to discuss ways to improve openness and transparency as well as to discuss 

potential new postings of documents to our website not otherwise available except 

through FOIA requests. Moreover, the agency enhanced the search capability of 

all PDF documents on its website as well as improved the website’s indexing and 

search functions. Thus, the agency is addressing access to information and 

transparency. 

2. Disclosure Comparison 

 There is a 6% increase in the number of requests released in full for Fiscal 

Year 2010. Of the 72 requests processed during Fiscal Year 2010, 19 requests or 

26% were granted in full. Of the 67 requests processed during Fiscal Year 2009, 

14 requests or 20% were granted in full. Of the requests where partial releases 

were made, 23 requests or 31% were released in part in Fiscal Year 2010 and 28 

or 41% were released in part in Fiscal Year 2009. This is a decrease of 10%. 

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 

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

information is entered into an electronic spreadsheet. The request letter is then 

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

offices where records could reasonably be located. Attention is focused on 

working with agency personnel to complete search requests within the requested 

14 day time period or sooner and providing assistance in locating and copying 

responsive documents. Once search requests are returned with responsive 

documents, a quick review of the responsive documents is performed to determine 

how long 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. § 552(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 
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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.) 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, then, copied for a redacted release to requester. 

Release of redacted documents are scanned and saved in an electronic format for 

easy retrieval in any future requests and possible posting on the NIGC webpage. 

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

confidential financial and proprietary information. Submitter notices are required 

under both the FOIA and NIGC regulations for information deemed commercial 

or financial information that is confidential or privileged. 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 is categorized as 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. However, the FOIA Officer continues to work on 

accelerating the time period needed to complete the submitter notice requirement. 

To that end, the FOIA Officer works telephonically with submitters to discuss 

questionable suggested 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 that 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. The FOIA Office is currently comprised of one individual, 

which has been assessed as adequate because the backlog of requests has 

remained under 4% in the last few years. 

 The Information Technology (IT) 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. IT also provides assistance for searching for 

responsive documents within our email system and other tasked as needed. Thus, 

the IT department provides sufficient support to the FOIA Office. 

 Finally, the FOIA officer, IT personnel, and Open Government personnel 

take part in regular meetings to discuss ways to improve openness and 

transparency within the agency. 
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III. Steps Taken To Increase Proactive Disclosures. 

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

documents onto our website. The FOIA Office continues to update this material 

on the agency’s website as it is issued. As a consequence, the FOIA Office is 

adding new material to the agency’s website on a frequent basis upon each new 

document’s issuance. We currently have the following material available for 

viewing and downloading via www.nigc.gov, which as noted above is continually 

being updated: 

 

*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 legal 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 were approved by the NIGC Chair; 

*All Indian lands advisory legal opinions issued by the NIGC Office of General 

Counsel and the Department of the Interior’s Solicitor’s Office 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 Chair; 

*Redacted versions of the declination letters or other letters issued by the NIGC 

Office of General Counsel in response to tribes or others’ requests for review of 

contracts and agreements for a legal opinion regarding whether the contracts 

constitute a management contract or violate the sole proprietary interest of the 

tribe in its gaming activity. 

The agency also posts numerous documents and information related to the 

agency itself, such as organizational charts, Commission structure, laws and 

regulations, Commission testimony, and press releases, to name a few. As noted 

above, over the past fiscal year, we continued to keep the above information 

current by posting new documents when each document was issued. 

In addition, as of this fiscal year, we took the proactive step of posting a 

new category of material on our website that consists of all letters and comments 

received from tribes and others in response to tribal consultations regarding 

potential regulatory priorities. These materials would not otherwise be available 

except through FOIA requests. Also, as of this fiscal year, the agency’s records 

retention and disposition schedule is available on our website. 

In an effort to routinely identify records that are appropriate for posting on 

the agency’s website, regular meetings are convened and attended by various 

agency personnel to identify records that are appropriate for posting to our 

website that would not otherwise be available except through FOIA requests. 
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Finally, this fiscal year, the agency took steps to enhance the search 

capability of all PDF documents on its website as well as improve the website’s 

indexing and search functions. To proactively increase disclosure of information, 

we routinely review FOIA requests received to ensure that the types of documents 

being requested are available on our website. Thus, the agency has improved 

ways to retrieve information from the website and added new documents to the 

website. 

At this time, the NIGC does not utilize social media in disseminating 

information.

IV. Steps Taken to Greater Utilize Technology. 

 1.) Electronic receipt of FOIA requests: 

a. What proportion of the components within your agency which 

receive FOIA requests have the capability to receive such requests 

electronically? 

 

The NIGC, as a small agency, has only one FOIA office which 

handles all agency requests and has a staff of one employee. 

Nonetheless, when requests for information are conveyed to 

different divisions of the agency by e-mail, those components are 

advised to forward such requests to the FOIA Office to be 

processed as FOIA requests. 

b. To what extent have you increased the number of components 

doing so since the filing of your last Chief FOIA Officer Report? 

There is no increase to the number of components since the filing 

of last year’s report. The NIGC has only one office to handle all 

FOIA requests.

c. What methods does your agency use to receive requests 

electronically? 

The NIGC’s sole FOIA office receives request electronically 

through the info@nigc.gov email address located on the NIGC 

website or by emailing the FOIA Officer directly. And, as 

mentioned above, when requests for information are conveyed to 

different divisions of the agency by e-mail, those components are 

advised to forward such requests to the FOIA Office to be 

processed as FOIA requests. 
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2.) Electronic tracking of FOIA request: 

a. What proportion of components within your agency which receive 

FOIA requests have the capability to track such requests 

electronically? 

All. 

b. To what extent have you increased the number of components 

doing so since the filing of your last Chief FOIA Officer Report? 

There is no increase to the number of components since the filing 

of last year’s report. The NIGC has only one office to handle all 

FOIA requests. 

c. What methods does your agency use to track requests 

electronically? 

The NIGC tracks requests though an generic data-processing 

system . 

 

 3.) Electronic processing of FOIA requests: 

a. What proportion of components within your agency which receive 

FOIA requests have the capability to process such requests 

electronically? 

The NIGC’s FOIA office does not process requests electronically. 

b. To what extent have you increased the number of components 

doing so since the filing of your last Chief FOIA Officer Report? 

 

There is no increase to the number of components since the filing 

of last year’s report. 

c. What methods does your agency use to process requests 

electronically? 

The NIGC FOIA office does not process requests electronically. 

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. The FOIA Officer scans these 

redacted documents in to a database for use in any future requests 

and possible posting on the NIGC webpage. 

 
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 4.) Electronic preparation of your Annual FOIA Report: 

a. What type of technology does your agency use to prepare your 

agency Annual FOIA Report, i.e., specify whether the technology is 

FOIA specific or a generic data-processing system. 

The FOIA Officer manually prepares the report. The FOIA 

Officer manually retrieves the information for calculation and 

input into the report from the generic data-processing system used 

to track requests. 

b. If you are not satisfied with your existing system to prepare your 

Annual FOIA Report, describe the steps you have taken to increase 

your use of technology for next year. 

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

requests received. 

V. Steps Taken to Reduce Backlogs and Improve Timeliness 

 in Responding to Requests. 

 The agency makes every effort to respond to requests in a timely manner. 

We are working to shorten the submitter process by telephonically working with 

submitters on final determination of non-exempt material. Requesters are being 

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

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

request to specific material. 

This year, the agency’s backlog of pending FOIA requests increased by 

two requests. In Fiscal Year 2009 there were two backlogged requests and in 

Fiscal Year 2010 there were four backlogged requests. We have no backlog of 

appeals for either Fiscal Year 2009 or 2010. All pending requests from Fiscal 

Year 2009 were closed during Fiscal Year 2010. 

 The increase in the backlog of pending requests is the result of the 

complexity of total requests received and the submitter process for determining 

the exempt commercial and financial information that is confidential or 

privileged. At times, the process of submitting documents to the tribe or other 

gaming related company for their review and input on exemption (b)(4) 

information can be lengthy. The increase of three incoming requests for Fiscal 

Year 2010 over Fiscal Year 2009 is negligible and not an issue to the backlog 

increase. This backlog increase was not a result of loss of staff or any other 

cause; rather, it is due to the complexity of the requests. 

As stated in a Part II.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 manner. Appeals are 
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routinely handled within the 20 day period in accordance with NIGC regulations, 

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 the 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. 

 As of this time, the agency has not increased its FOIA staff. The FOIA 

Officer routinely reviews the FOIA tracking log to ensure cases within each track 

are progressing in accordance with the goal of handling each in a timely manner. 

The Chief FOIA Officer is advised of all new FOIA requests. Periodic updates of 

current backlog are provided to the Chief FOIA Officer for review and discussion 

concerning processing requests. 

 In regard to IT improvements to assist with FOIA processing and 

timeliness, as mentioned above, the agency enhanced the search capability of all 

PDF documents on its website and improved the website’s indexing and search 

functions. IT also provides assistance for searching for responsive documents 

within our email system. Otherwise, no IT improvements have been identified 

that would increase the timeliness of responses. 

Spotlight on Success

 The FOIA Officer continues to emphasize dialogue with requesters to 

improve timely disclosures. For example, one FOIA request originally sought 

information that resulted in a voluminous amount of responsive documents. After 

locating responsive documents and doing quick review of them, the FOIA Officer 

reached out to the requester to discuss the material and processing time. Because 

of the dialogue between the FOIA Officer and the requester, the requester 

streamlined her request, which resulted in a significantly reduced number of 

responsive documents. This request was processed and redacted copies of 

documents were released in a short amount of time.