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#   FOIA Guide

The Federal Mine Safety and Health Review Commission (“the Commission”) produced this guide to help members of the public obtain documents or records from the Commission. The Guide describes the Commission and the primary records that it maintains. It also sets forth the procedures for obtaining records from the Commission pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), as well as the procedures for obtaining records through other formal and informal means.

On June 30, 2016, President Obama signed into law the FOIA Improvement Act of 2016. The Act addresses a range of procedural issues, many of which are now reflected here in the Commission’s updated FOIA Guide. The Commission’s FOIA Rules, 29 C.F.R. § 2702, have also been updated to reflect mandates required by the FOIA Improvement Act and provides additional information not found here in the Guide.

**Content**I. The Commission’s FunctionII. Agency RecordsIII. Requests for Documents and Records Pursuant to the FOIAIV. Access to Certain Records Without a FOIA Request

**I. The Commission’s Function**

The Commission is an independent adjudicative agency that provides administrative trials and appellate review of legal disputes arising under the Federal Mine Safety and Health Act of 1977 (“Mine Act”). The Commission’s Administrative Law Judges decide cases at the trial level. The five-member Review Commission provides appellate review of the Judges’ decisions. Commissioners are appointed by the President and confirmed by the Senate. Review of a Judge’s decision by the Review Commission is not a matter of right but requires the affirmative vote of at least two Commissioners.

Most of the cases accepted for review are generated from petitions filed by parties adversely affected by a Judge’s decision. However, the Review Commission can also direct a case for review on its own motion. A Judge’s decision that is not accepted for review becomes a final, non-precedential order of the Commission. Final decisions and orders of the Commission may be appealed to the United States Courts of Appeals.

**II. Agency Records**

Because of the Commission’s limited role as an adjudicatory agency, the categories of documents found in agency files are limited as well. Specifically, records fall into two general types: documents created by agency personnel while performing the Commission’s work, and documents created by others but currently under agency control. The latter type consists mainly of documents submitted by parties during the adjudication of Mine Act cases. The case files typically contain documents such as legal pleadings, orders, decisions, transcripts of hearings, and exhibits.

Below is a brief description of the primary types of documents and records that are maintained by the Commission.

**A. Final Decisions and Orders.**

Final determinations of the Commission are set forth in decisions and orders which are published monthly. Individual Commission decisions as well as the monthly publications may be accessed electronically through the Commission’s website at: http://www.fmshrc.gov/decisions . Commission decisions are also available through subscription by contacting: Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. The decisions are also available for in-person review, by appointment only, at the Commission’s headquarters located at 1331 Pennsylvania Avenue, NW, Suite 520N, Washington, D.C. 20004-1710.

**B. Case Files.**

Files for all cases brought before the Commission are maintained in electronic format. These files include all documents generated in connection with contested cases, including briefs and other pleadings filed in cases appealed to the U.S. Courts of Appeal. Audio recordings of Commission meetings are maintained in digital format and can be found on the Commission’s website at https://www.fmshrc.gov/meetings-arguments/meetings .

**C. Rules of Procedure.**

Rules governing proceedings before the Commission are published in the Code of Federal Regulations at 29 C.F.R. Part 2700. Changes to these governing regulations are published in the Federal Register. These publications are available at most law libraries and many public libraries. These regulations may also be accessed electronically on the Commission’s website at https://www.fmshrc.gov/rules/procedural-rules-29-cfr-part-2700 and are available for in-office review, by appointment only, at the Commission’s headquarters.

**D. Correspondence.**

The Commission maintains copies of correspondence to and from the Commission Chairman, other Commissioners, and its Executive Director relating to the agency’s official functions, including budgetary and appropriation matters.

**E. Computer System.**

The Commission utilizes a computer network system at its headquarters and all field offices. The Commission and its employees use the network system to maintain and store records, conduct legal research, obtain information relevant to the Commission’s work, and communicate by means of electronic mail and other virtual workplace platforms.

**F. GILS Records.**

The Government Information Locator Service (“GILS”) is designed to assist the public and agencies in locating and accessing information throughout the federal government. The Commission has developed GILS records that provide users with information regarding access to various public records including: (1) audio recordings of Commission meetings; (2) the Commission’s official files; (3) the Commission’s Internet site; (4) bound volumes of Commission decisions; (5) the Commission’s FOIA Guide; (6) records located in the Commission’s library; and (7) bound indices of Commission decisions. The Commission’s GILS records are accessible via the internet by searching the Commission’s website at: http://www.fmshrc.gov.

**III. Requests for Documents and Records Pursuant to the FOIA**

**A. Introduction**

Records may be obtained from the Commission pursuant to the procedures set forth in the FOIA. The FOIA, which was originally enacted in 1966, provides a statutory right of access to records and documents held by agencies in the executive branch of the Federal Government. The FOIA was amended in several important respects by the Electronic Freedom of Information Act Amendments of 1996, the Open Government Act of 2007, and the FOIA Improvement Act of 2016. Regulations that set forth the procedures for requesting records from the Commission pursuant to the FOIA are published at 29 C.F.R. Part 2702 and were most recently amended in February 2022 (see 87 Fed. Reg. 5393 (Feb. 1, 2022). The Regulations may also be found on the Commission’s website at https://www.fmshrc.gov/rules/foia or requested by contacting the Chief FOIA Officer as indicated below.

Some agency records may be made available without a formal FOIA request. See Section IV below. All other records of a federal agency may be requested from that agency under the FOIA. While the FOIA does not define the term, “agency records” has been construed to refer to documents that are either created or obtained by an agency, and under agency control at the time of the FOIA request. An agency is required only to look for an existing document or record in response to a FOIA request. An agency is not required to create a new record, to collect information it does not have, or to conduct research or analyze data for a requester.

While the FOIA provides generally for the disclosure of records in the possession of agencies and departments of the executive branch of the U.S. Government, it also contains exemptions for nine categories of records that are specifically protected from disclosure. These exemptions protect against the disclosure of information that would harm the privacy of individuals, proprietary interests of businesses, functioning of the government, and other important interests. Information related solely to the internal personnel rules and practices of an agency, and records related to an agency’s internal deliberative processes (except records created 25 years or more before the date on which the records were requested) are also exempt from disclosure under the FOIA. While certain Commission records may be protected from disclosure under one or more of the FOIA’s nine statutory exemptions , the Commission shall withhold information only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption, or disclosure is prohibited by law.

**B. Where and How to Make a Request**

Requests for information pursuant to the FOIA should be made in writing, in accordance with the Commission’s FOIA regulation, 29 C.F.R. § 2702 .3. Any person requesting information from the Commission pursuant to the FOIA should complete section A of the FOIA Request Control Form found here at the Commission’s website. The form may then be submitted directly through the website, or via email, facsimile, postal mail, or personal delivery to our headquarters. Alternatively, requesters may submit a request through the government wide FOIA request portal at https://www.foia.gov/, or may also submit written requests directly via email, facsimile, or postal mail to:

**Chief FOIA Officer****Federal Mine Safety & Health Review Commission****1331 Pennsylvania Ave., NW****Suite 520N****Washington, D.C. 20014****Fax: 202-434-9944****email:****foia@fmshrc.gov**

The words “Freedom of Information Act Request” or “FOIA Request” should be typed in the subject line of an email, printed on the face of the envelope, or on the cover page of a fax.

In order for the Commission to respond to a FOIA request, the request must “*reasonably describe”*the records sought. *See* 5 U.S.C. § 552 (a)(3)(A)(i). A requester should be as specific as possible in identifying a requested document. If any relevant docket numbers or operator names are known, they must be included. Requesters should also specify the format in which they would prefer to receive the information ( *i.e.*, e-mail, mail or facsimile). A person requesting information must provide a name, address, telephone number, and/or e-mail address to facilitate resolution of any questions that may arise during the processing of the request.

Pursuant to the FOIA requirements, the determination of how to respond to a request will generally be made within 20 working days from the date of receipt, absent unusual or extraordinary circumstances.

Under certain conditions, requesters may seek expedited processing of a FOIA request. *See* 29 C.F.R. § 2702.4. Requests for expedited processing should be made as early as possible (generally with the initial request) but may be made at any time. To seek expedited processing, the requester must explain that there is a compelling need for the requested records, for example, that expedited receipt of the records serves a public interest or is necessary to meet with an impeding deadline in a proceeding before the Commission. Decisions on whether to grant requests for expedited processing will be made within 10 days.

**C. Commission Response to Request & Right to Appeal**

Pursuant to the Commission’s FOIA regulations, the Chief FOIA Officer determines whether requested documents may be properly disclosed. Determinations shall be made within 20 working days of receipt of a FOIA Request. If it is determined that “unusual circumstances” exist, the request processing time may be extended for an additional 10 working days. If the time limit is extended, the requester will be timely notified, given an opportunity to limit the scope of the request, and informed of the right to seek dispute resolution services.

If a determination is made that the records should be withheld from disclosure, the requester will be informed of the reasons for the denial, the right to seek the dispute resolution services of the Commission’s FOIA Public Liaison or the Office of Government Information Services (“OGIS”), and of the right to appeal the denial.

Appeals of adverse decisions may be made to the Commission within 90 days following notification of the determination. *See* 29 C.F.R. § 2702.5. Determinations of appeals will be made by majority vote of sitting Commissioners within 20 days of receipt. Adverse decisions by the Commission may be appealed by filing a complaint in the United States District Court.

Pursuant to the FOIA, the Commission posts on its website an annual report concerning its responses to requests for information pursuant to the FOIA during the preceding fiscal year. A summary of responses to requests may also be viewed in the Commission’s FOIA Log at https://www.fmshrc.gov/foia/foia_logs .

**D. Dispute Resolution Services**

At any time during the processing of an existing request, a requestor may seek the dispute resolution services of the Commission’s FOIA Public Liaison at https://www.fmshrc.gov/content/foia-public-liaison or the services of the Office of Government Information Services (“OGIS”), by visiting https://www.archives.gov/ogis. If a request is denied in part or in whole, the requestor may enlist the dispute resolutions services of the Public Liaison or OGIS.

**E. Fees & Fee Waivers**

For purposes of determining fees only, the Commission divides requesters into three categories:
                    - Commercial requesters may be charged fees for searching for records, reviewing the records, and duplicating them;
                    - Educational or noncommercial scientific institutions and representatives of the news media (as defined at 5 U.S.C. 552(a)(4)(A)(ii)) are charged only for duplicating records; and
                    - All other requesters are charged only for record searches and duplication.

For requesters in the second and third categories, there is no charge for the first two hours of search time or for the first 100 pages of photocopies. With regard to all requesters, the Commission will waive any fee that is less than $20 because the cost of collecting the fee would be greater than the fee. Additionally, if the Commission fails to comply with an extended time limit, search fees will not be charged (unless more than 5000 pages are necessary to respond to request) or for requestors with preferred fee status, duplication fees will not be charged.

In narrowly defined circumstances, requesters may also proactively request that processing fees be reduced or waived. Such waivers require the requester to demonstrate that disclosure of the requested information would contribute significantly to the public’s understanding of government operations and is not primarily in the commercial interest of the requester.

Further information regarding fee categories, fees for processing FOIA requests, and fee waivers can be found in the Commission’s regulations at 29 C.F.R. §§ 2702.8 – 2702.10 .

**F. Schedule of Fees**

**IV. Access to Certain Records Without a FOIA Request**

The FOIA requires the Commission to make available for public inspection and copying several types of records without the need for a formal FOIA request. 5 U.S.C. § 552(a)(1) & (a)(2) . The Commission fulfills applicable statutory requirements by making materials described below available for inspection and copying in its office, by appointment only, and its FOIA E-Reading Room . Those materials, among others, include:
                    - The Commission’s FOIA Regulations
                    - FOIA Guide
                    - Other Proactive Disclosures
                    - FOIA Logs
                    - General Information about the Commission
                    - Decisions and Orders of the Commission
                    - Informal Commission Documents
                    - Commission Oral Arguments & Meetings
                    - Commission Rules and Regulations
                    - The Federal Mine Safety and Health Act of 1977, as amended by the MINER Act and any subsequent legislation
                    - Latest FMSHRC News
                    - The Commission’s Government Information Locator Service (GILS)
                    - How a Case Proceeds Before the Commission
                    - Guide to Commission Proceedings
                    - Frequently Asked Questions

The Commission’s FOIA E-Reading Room may be accessed at https://www.fmshrc.gov/foia/e-reading-room.

In addition to the records available to the public through the Commission’s FOIA E-Reading Room, other documents of general interest or use to the public have been ***proactively disclosed*** and are available to the public through the Commission’s FOIA page at https://www.fmshrc.gov//guides/foia-guide.

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### The Federal Mine Safety and Health Review Commission

#### 1331 Pennsylvania Avenue, NW,Suite 520NWashington, DC 20004-1710Phone: (202)434-9900TTY/TDD (202)434-4000 ext. 293E-mail: fmshrc@fmshrc.gov