FEDERAL MEDIATION AND CONCILIATION SERVICE

UNITED STATES GOVERNMENT

WASHINGTON, DC 20427

Office of the General Counsel

2014 Chief FOIA Officer Report to the Department of Justice

Pursuant to the Attorney General’s FOIA Guidelines

Overview

The Federal Mediation and Conciliation Service (FMCS) is a small, independent agency 

composed of 233 employees. Commensurate with its size, the FMCS received 152 FOIA 

requests during the time frame covered by this report (March 12, 2013 to date),

* processed 136

requests to conclusion, and, with five exceptions, closed all of these within 20 business days.

The average response time for all 136 cases was 5.6 days. Only four of these requests were

denied in their entirety, while the response to 7 requests had information redacted. Ten cases 

were backlogged as of the end of the reporting period. One appeal was received and affirmed

during this period within 24 days due to the U.S. Government shutdown. See, Steps Taken to 

Improve Timeliness, infra.

The FMCS had only a single part-time FOIA Officer (Chief FOIA Officer or CFO) and

no other formal FOIA structure. IT support was available as needed on an ad hoc basis. The 

former non-Chief FOIA Officer retired effective November 30, 2012 and has not been replaced

due to budget constraints. Under these circumstances, and as demonstrated below, the vast 

majority of the Attorney General’s FOIA Guidelines, either are not applicable to an agency of 

this size with limited personnel, processing a relatively small number of requests, or have been 

implemented previously.

I. Steps Taken to Apply the Presumption of Openness

During all of the 2014 CFOY, the Chief FOIA Officer has personally responded to all 

FOIA requests. Hence, on the basis of personal knowledge, and having undertaken all 

reasonably available steps toward this end as demonstrated herein, the Chief FOIA Officer can 

attest to the fact that the FMCS’s FOIA activities are conducted with a presumption of openness. 

The FMCS lacks the personnel and resources to conduct in-house training and, due to 

conflicts with his other responsibilities, the CFO was unable to attend outside training such as 

that offered by the Department of Justice (DOJ). However, the CFO intends to make outside 

training a priority for the coming CFOY and intends to attend DOJ’s “The Freedom of 

Information Act for Attorneys and Access Professionals” course scheduled for May 13-14, 2014

 

* The 2014 Chief FOIA Officer Year or “2014 CFOY.”
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in Washington, D.C. Similarly, the FMCS did not engage in any outreach activity. The Agency 

did, however, post all of its quarterly FOIA reports for FY 2013.

Since it has utilized exemptions in only a small number of cases, the FMCS has not had 

occasion to make discretionary releases of otherwise exempt information. However, were such a

potential opportunity to present itself, the Agency would utilize a balancing test to determine 

whether or not to make a discretionary disclosure. Specifically, the FMCS would balance the 

benefit to the requester and the public of releasing the information against the harm of making 

the disclosure in the specific factual context of the individual case.

The FMCS’s pattern of full and partial disclosures has been consistent from CFOY to 

CFOY, when considered in the context of the number of cases processed each year. Thus, in the 

2010 CFOY, the Agency processed a total of 142 requests, of which 82 were full grants, one was 

a partial grant and none were full denials. Of the 135 requests processed in the 2011 CFOY, 70

were full grants, 4 were partial grants and there were no full denials. Similarly, in the 2012

CFOY, the FMCS processed a total of 91 requests, of which 41 were full grants, 9 were partial 

grants and none were full denials. Of 75 requests processed in the 2013 CFOY, 31 were full 

grants, 9 were partial grants and there were no full denials. Finally, of the 136 requests the

FMCS processed in 2014 CFOY, 38 were full grants, 7 were partial grants, and 4 were full

denials.

II. Steps Taken to Ensure that This Agency Has an Effective System in Place for 

Responding to Requests

Since the CFO’s responsibility is a part-time function of the Deputy General Counsel, and 

since there are no other FOIA personnel, the FMCS has no employees which have, or can be,

converted to the Government Information Specialist job series. This has been confirmed by the 

Agency’s Human Resources department.

As noted above, the average response time for all cases, including those requesting 

expedited processing, was a mere 5.6 days; the average time for processing the 4 cases 

requesting expedited consideration was only one (1) day or one-tenth of the ten-day time period 

suggested as acceptable by the DOJ for cases requesting expedited handling. In light of this 

efficient processing, the small size of the Agency, the relatively few number of cases it 

processes, and the fact that processing is centrally controlled, the Agency does not require 

complex systems to operate effectively and efficiently. Hence, for example, the FMCS received 

only one referral and no consultation requests during 2014 CFOY, and, hence, has no need for 

special procedures for dealing with these situations.

The Chief FOIA Officer currently determines and prepares the appropriate response in all

cases. He is training an Administrative Assistant in a supporting role but not as a prospective 

FOIA Officer. The FMCS uses a variety of systems to ensure effective responses including, for 

example, dedicated electronic filing, log in/out, request tracking and email communication with 

requesters. Three IT personnel have been specially designated to provide information support: 

one is dedicated to website posting, another to technical support and a third to records retrieval. 

In one instance, where a requester was dissatisfied with the Agency’s FOIA response, mediation 
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services offered by OGIS at NARA were suggested. Finally, given the Agency’s small size, 

there is substantial overlap among FOIA and Open Government personnel, which necessarily 

results in significant interaction between these two functions.

III. Steps Take to Increase Proactive Disclosures

Over the last ten years, the FMCS has made major additions to the information available 

to the public at its “Fast Track” tab and in its Reading Room located on the Agency’s website

under “Make Contact.” Annually updated Fast Track data includes “Find a Mediator,” The 

FMCS Institute for Conflict Management course offerings and the FMCS Annual Reports. The 

Reading Room information posted pursuant to Section 552(a)(2) of the FOIA, which requires an 

agency to make frequently requested records available, includes often sought data concerning, 

among other things, notices of contract termination (F-7 Notices), arbitration data, and beginning 

and ending work stoppages reports. These data are updated on a monthly basis. These categories 

of Reading Room postings, which were established prior to the 2014 CFOY, have been 

successful in permitting requesters to access this information without filing formal FOIA 

requests, as evidenced by a year- to-year reduction of Agency FOIA requests for these data 

categories of more than 80% since FY 2004. No difficulty has been encountered in posting these 

or any other records.

As in prior years, the FMCS consolidated each Fiscal Year’s 12 monthly reports of 

contract terminations into a single annual report in order to make the retrieval of F-7 data easier. 

This allows a party interested in searching data for all of FY 2013, for example, to select a single 

data set rather than, as previously, having to search and compile data from 12 monthly reports.

However, other than the annualization of monthly data, no additional categories of information 

were identified by the CFO during this reporting period which, if added to Fast Track or the 

Reading Room, would have lessened the burden on requesters.

In order to improve the delivery of FOIA services, and although it does not otherwise 

highlight its proactive activity, the FMCS has added a voluntary customer feedback survey form 

to its Reading Room. This feature functions, inter alia, as a proactive device permitting 

requesters to indicate those types of records that should be made available in the Reading Room 

without a formal request. In addition, the FMCS periodically reviews its FOIA Log to determine 

whether any other categories of information should be added to the Reading Room pursuant to 

Section 552(a)(2).

IV. Steps Taken to Greater Utilize Technology

The FMCS uses a dedicated email address and an internet submission form, which is 

available on its website, to receive electronic requests. This capacity has been in place since FY 

2009. Request processing and tracking systems consist of off-the-shelf email management, word 

processing and Excel spread sheets. The FMCS has engineered two of its major case tracking 

systems to easily retrieve records responsive to the most common types of FOIA requests it 

receives. FOIA requests for email records are handled through a dedicated email archiving and 

retrieval system. In addition, the FMCS is developing a system for sharing, storing and 

searching for its documents. During CFOY 2014, the FMCS continued to enhance its Excel 
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spreadsheet-based tracking system, including functions for its quarterly and annual data 

reporting. 

In light of the FMCS’s excellent track record of prompt and efficient FOIA processing, 

and the relatively small number of FOIA requests it receives, the FMCS does not believe that 

additional investments in technology would be beneficial or cost effective. Dedicated software 

to track FOIA requests is not necessary, for example, where the average time for responding to 

requests is only 5.6 days.

V. Steps Taken to Improve Timeliness in Responding to Requests and Reduce Backlogs

1. The FMCS utilizes a separate track for simple requests. On average, the Agency processed 

simple requests in 7.5 days during FY 2012, 3.5 days during FY 2013, 6.1 days during

CFOY 2013, and 3.7 days in CFOY 2014.

2. The FMCS has had no backlogs between the close of FY 2009 and October, 2013. The 

Agency had no pending cases as of the close of FY 2011, two pending requests (one pending 

4 days and one pending 3 days) at the end of FY 2012 and only one pending request (pending 

two days) as of the close of FY 2013. Pending requests in all prior FYs were closed 

promptly in the subsequent year. As of the close of both FYs 2011 and 2012, the FMCS had 

no pending appeals. The FMCS had one pending appeal at the end of FY 2013, which took 

24 days, including 11 days of the U.S. Government shutdown, or 13 work days, to resolve. 

The FMCS was not engaged in any consultations in FYs 2012 or 2013.

3. There was no reduction in the backlog of requests or appeals in FYs 2011, 2012 or 2013,

because there was no backlog in any of these categories to begin with. In as much as the 

Agency has not incurred any backlogs since FY 2009, it could not take any additional steps 

to reduce backlogs. Pending requests as of the end of FYs 2012 and 2013 were closed within 

20 days of filing. The FMCS did not have occasion to utilize interim responses during FY 

2013. However, the Agency has used interim responses on an ad hoc basis in several 

complex request cases during the 2014 CFOY.

Use of FOIA’s Law Enforcement “Exclusions”

The FMCS did not invoke any law enforcement exclusions in any of its FOIA responses 

during CFOY 2014.

Spotlight on Success

The FMCS wishes to note two successes:

 Despite a very heavy load of recent complex cases requiring significant effort to collect 

and review materials, the FMCS has made an effort improve its response time on simple 

requests. As a result of these efforts, processing time on simple requests dropped from 

6.1 days in 2013 CFOY (34 requests) to 3.7 days in 2014 CFOY (118 requests).
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 The FMCS has been inundated with a substantial number of complex requests seeking 

voluminous quantities of data beginning in November 2013. For the first time, the 

Agency has utilized interim responses to facilitate requester access to this information as 

promptly as possible. As an example, one requester sought all travel related documents 

including vouchers, travel card records, expense receipts, correspondence, conference 

brochures, employee calendars, etc., for fourteen named executives over a two-year 

period. Travel vouchers, which documents were most easily retrievable, were provided 

in a rolling release to the requester while other more difficult to collect material was 

being gathered. The FMCS intends to utilize rolling releases in other pending and future 

cases involving requests for voluminous material as consistent with the “spirit of 

cooperation” sought by President Obama and a step “to improve FOIA operations and 

facilitate information disclosure” as stressed by Attorney General Holder.

Michael J. Bartlett

Chief FOIA Officer

Federal Mediation and Conciliation Service 

March 7, 2014