FOIA MANUAL APPENDIX

(PROCEDURAL PORTION)

FOIA MANUAL (PROCEDURAL PORTION) APPENDIX (“PA”)

CONTENTS

I. Sample Letters:

A. Procedural Issues

1. Appeal Rights

2. Adequate Search

3. Continuing Request

4. Files Destroyed

5. No Requirement to Answer Questions or Create Documents

6. No Requirement to Provide an Index of Documents

7. Referral of Request to Office Where Documents Are Held

8. Suggestion to Renew Request when Case Closes

9. Segregability

10. Requirement to Advise Requester of Amount of Documents Withheld

11. Time Extension to Consult with Other Agency Offices

12. Request for Documents without Case Name and/or Number Provided

13. Record Does Not Exist

B. Exemption 2

1. Letter to Requester Who Requests All Documents in an Investigative File

2. Letter to Requester where the Information Sought Includes Documents or Records Previously Submitted by, Addressed to or Copied to Requester

3. Letter to Requester Who Requests All Documents in an Investigative File Regarding the “Low 2” Material in the File

4. Letter to Requester Who Makes Follow-up Request for “Low 2” Material

5. Letter to Requester Who Makes Specific Request for “Low 2” Material

6. Letter to Requester Who Makes Request for “High 2” Material

C. Exemption 4

1. Letter to Requester Indicating Need to Follow Executive Order Procedures Prior to Disclosure of Possible Exemption 4 Material

2. Letter to Submitter Who Has Submitted Records Containing Arguably Confidential Commercial Information

3. Letter to Submitter Who Has Designated Material As Confidential Commercial Information

4. Letter to Submitter Announcing Decision to Withhold Records Pursuant to Exemption 4

5. Letter to Requester Announcing Decision to Withhold Records Pursuant to Exemption 4

6. Letter to Submitter Announcing Decision to Disclose Notwithstanding Objection

7. Letter Notifying Requester of Reverse FOIA Action by Submitter

8. Letter Notifying Submitter of the Commencement of FOIA Action by Requester

9. Sample Appendix 1 for Exemption 4—List of Documents Released in Full or in Redacted Form

10. Sample Appendix 2 for Exemption 4—List of Documents Withheld as Arguably Covered by or Designated as Confidential Commercial Information under Exemption 4 of the FOIA

D. Exemption 5

1. Where Information Sought is Protected by Exemption 5's Deliberative Process Privilege

2. Where Information Sought is Protected by Exemption 5's Attorney Work-Product Privilege

3. Where Information Sought is Protected by Exemption 5's Attorney-Client Privilege

E. Exemption 6

1. Where Information sought is Protected by FOIA Exemption 6

F. Exemption 7

1. Exemption 7(A) (Open Cases)

2. Exemption 7(C) (Individual Privacy Information) (Open or Closed Case)

3. Exemption 7(D) (Confidential Source Identification) (Open or Closed Case)

4. Exemption 7(E) (Law Enforcement Techniques and Procedures) (Open or Closed Case)

5. Glomar Response under Exemption 7(D)

G. Affidavits

1. Letter to Requester who requests Board Agent-prepared affidavits

2. Letter to Requester who requests Non-Board Agent-prepared affidavits and/or witness statements

H. Fees and Fee Waivers

1. Failure to Assume Costs

2. Advising Requester, with history of prompt payment, that processing fees will exceed $250

3. Advising Requester, with no history of payment, where fees are likely to exceed $250 that Agency will require advance payment prior to processing of the request

4. Failure to pay for previous request

5. Advising Requester that the specified amount it is willing to pay has been exceeded

6. Aggregation of requests

7. De minimis fees

8. Delinquent requesters

9. Fee Category

a. Commercial Use

b. Education Institutions and Representatives of the News Media

c. All Other Requesters

10. Notifying Requester of Processing Fee Information and requirement of timely payment

11. Fee waiver or fee reduction

II. Sample Forms

A. FOIA Cover Sheet/ NLRB Form 4933 (Blank)

B. Filled in Sample Cover Sheet

C. FOIA Time Log FOIA Form (Blank)

D. Filled in Sample FOIA Time Log

E. FOIA Inventory Form (Blank)

F. Filled in Sample FOIA Inventory--Open Case

G. Filled in Sample FOIA Inventory--Closed Case

III. Sample Redacted Documents

A. Telephone Log: Marked for Redaction

B. Telephone Log: Redacted

C. Internal Memorandum: Marked for Redaction

D. Internal Memorandum: Redacted

E. Closed Case Affidavit: Marked for Redaction

F. Closed Case Affidavit: Redacted

IV. Policy Statements:

A. Attorney General FOIA Policy Statement:: October 4, 1993

B. Updated Attorney General FOIA Policy Statement: May 1, 1997

V. Agency Document Index

I. Sample Letters

It is suggested that the Regional Offices in their responses to FOIA requests use the following sample language. However, because of the variety of circumstances that can arise under the FOIA, it is recommended that the Regional Offices first review the Procedural and Substantive Portions of this FOIA Manual to ensure that the sample language set forth in this Appendix is appropriate. Further, as noted in the Manual, the FOIA processor should first contact the requester by telephone with any questions pertaining to a FOIA request. Confirming letters should be sent to the requester reflecting any agreements reached. If there are any questions concerning the use of the sample letters, please contact the Headquarters FOIA Officer.

A. Procedural Issues

1. Appeal Rights (A section on appeal rights should be included in every Determination Letter just prior to the signature block of the letter.):

The undersigned is responsible for the above determination. You may obtain a review thereof under the provisions of the NLRB's Rules and Regulations, 29 C.F.R. 102.117(c)(2)(ii) by filing an appeal with the General Counsel, National Labor Relations Board, Washington, D.C., 20570, within 20 days (excluding Saturdays, Sundays and legal holidays) from the receipt of this letter. Any appeal should contain a complete statement of the reasons upon which it is based.

2. Adequate Search (The language set forth herein should also be included in every Determination Letter.):

In accordance with the FOIA, the Agency has conducted a reasonable search for the documents.

3. Continuing Request:

Because the Freedom of Information Act, 5 U.S.C. 552, does not obligate the Agency to provide documents on a continuing basis, you will receive no further responses to your request. Mandel Grunfeld and Herrick v. U.S. Customs Service, 709 F.2d 41 (11th Cir. 1983); Blazy v. Tenent, 979 F. Supp. 10, 17 (D.D.C. 1997), aff'd 1998 WL 315583 (D.C. Cir. May 12, 1998); Church of Scientology v. IRS, 816 F.Supp. 1138 (W.D. Tex. 1993).

4. Files Destroyed:

The files for these cases have been destroyed by the Federal Records Center pursuant to this Agency's file retention policy. Under this policy, case files are retained for a six-year period, which commences at the close of the calendar year during which the case is closed. The files are then destroyed unless they are selected for permanent retention based on their legal significance. The cited cases were closed in [year] and their files were not permanently retained. Accordingly, there are no documents maintained by this Agency that are responsive to your request.

5. No Requirement to Answer Questions or Create Documents:

The Freedom of Information Act, 5 U.S.C. Section 552, generally provides that any person has a right, enforceable in court, of access to federal agency records, except to the extent that such records, or portions thereof, are protected from disclosure by one of the nine exemptions or three special law enforcement record exclusions. Accordingly, the FOIA applies only to “records” maintained by federal agencies, and does not require an agency to create documents or to answer questions. Therefore, to the extent that your request requires the Agency to create documents or concerns answers to specified questions, your request is denied.

6. No Requirement to Provide an Index of Documents:

Finally, to the extent that you are requesting the Agency to provide you with an index of documents in the files, it is settled that such indexes are not required during the administrative stage of a FOIA request. See, for example, Judicial Watch v. Clinton, 880 F. Supp. 1, 11 (D.D.C. 1995), aff'd, 76 F.3d 1232 (D.C.Cir. 1996).

7. Referral of Request to Office Where Documents Are Held:

Pursuant to a search of the records of this Office, [select appropriate choice(s)] we were able to locate several documents encompassed by your request. I have enclosed those documents. [Or ] Those documents are partially or fully exempt under the FOIA, (See sample exemption letters herein for explanation of exemption) [Or] We were unable to locate any responsive documents. To the extent that there may be documents maintained by the [General Counsel or the Board's Executive Secretary in Washington, D.C and/or in the Regional Office that has jurisdiction over the State of ( )(Region )], I am referring your request to those offices, pursuant to the Board's Rules and Regulations, 29 C.F.R. 102.117(c)(1). The applicable time limit for their responses will be calculated from the date of receipt by those offices of your letter, which is being forwarded as of this date.

8. Suggestion to Renew Request When Case Closes:

Finally, some documents in the file may become disclosable after the case closes, that is, once a Board decision issues, there has been full compliance with a settlement, or the case has otherwise been closed under Agency procedures. Accordingly, you may wish to renew your request at that time.

9. Segregability:

a.) Where document[s] is [are] partially disclosable because the nonexempt information can be segregated and disclosed:

The enclosed portion[s] of the requested document[s] is [are] being provided to you because they were found to be reasonably segregable from the exempt portions of that [those] document[s].

b.) Where non-exempt information in the document[s] is withheld because the nonexempt information is not segregable and therefore disclosable:

The Agency has carefully reviewed the document[s] and has determined that there is no reasonably segregable nonexempt information which can be disclosed. In this regard, it was concluded that the non-exempt material is so inextricably intertwined with the exempt material that it would be impossible to reasonably segregate meaningful portions of the non-exempt information from the exempt information without imposing an inordinate burden and result in a useless disclosure.

10. Requirement to Advise Requester of Amount of Documents Withheld: [1]

As required by Section 552(b) of the FOIA, 5 U.S.C. 552(b), the Agency hereby informs you that it has not provided you with approximately [insert number of] pages of information in response to your request under the FOIA.

11. Time Extension to Consult with Other Agency Offices: [2]

This is in response to your letter of [date] to [addressee] received in this Office for reply on [date] in which you request, pursuant to the Freedom of Information Act (FOIA), a copy of [identify document requested]. As we have discussed and you have agreed to, the Agency needs an extension of time of [10 working days or more, state the amount of time agreed to] because [select appropriate choice(s)] of the need to search for and collect records from other offices of the Agency [or ] the Federal Record Center, [or] to consult with other offices of the Agency] [or] to consult with other agencies that have a substantial interest in the requested documents, [or] to search for, collect and review a voluminous number of documents. Accordingly, the Agency will require another [ten or more] working days, until [date] to respond.

12. Request for Documents Without Case Name and/or Number Provided: [3]

This Agency does not maintain its casehandling records by subject matter classification. Generally, Board records, to the extent they exist, are maintained by the case number and the name of the relevant union and/or employer. Accordingly, if there are any documents responsive to your request in a particular file, we are unable to access that material since you have failed to provide us with a case name and/or number. Requests designated by subject matter rather than by case name and/or number do not reasonably describe the records sought as required by the FOIA. See 5 U.S.C. Section 552 (a)(3). In order to allow us to proceed with your request, please contact this Office to clarify your request.

[or]

The Board does not maintain its casehandling records in a manner which permits them to be retrieved by personal identifiers. [4] Generally, Board records, to the extent they exist, are maintained by the case number and the name of the relevant union and/or employer. Accordingly, if there are any documents responsive to your request in a particular file, we are unable to access that material since you have failed to provide us with a case name and/or number. Requests designated by personal identifier rather than by case name and/or number do not reasonably describe the casehandling records sought as required by the FOIA. See 5 U.S.C. Section 552 (a)(3). In order to allow us to proceed with your request, please contact this Office to clarify your request.

13. Record Does Not Exist: [5]

Apart from considerations under the Freedom of Information Act, the document requested can not be provided as it does not exist.

B. Exemption 2

Procedural Manual p. 37 n.74

1. Letter to Requester Who Requests All Documents in An Investigative File

This letter is in response to your letter of [insert date], where you request all documents in [named] investigative file(s) under the Freedom of Information Act ("FOIA"). [This or These] file(s) contain[s] formal documents including the charge, dismissal or denial letters, and other non-confidential material, such as [identify documents such as collective bargaining agreements, newspaper clippings and arbitrator's decisions]. These documents are being forwarded to you.

Procedural Manual p. 37 n.74

2. Letter to Requester Where the Information Sought Includes Documents or Records Previously Submitted by, Addressed to or Copied to Requester

In addition, we are not providing [describe the requested documents, if you wish] documents submitted by you or previously addressed or copied to you (or your client) during the investigation of the charge with the understanding that you should already possess these documents. If this understanding is incorrect, please submit a written request for the specific previously furnished records or documents you wish us to provide.

Procedural Manual p. 39 n. 79

3. Letter to Requester Who Requests All Documents in An Investigative File Regarding the “Low 2” Material in the File

Further, the file[s] contain[s] routine administrative material, such as internal transmittal slips, NLRB casehandling forms, return receipt slips and envelopes which are not being forwarded at this time because we assume that you do not want this material. In fact, this information constitutes internal trivial administrative material of no genuine public interest and is automatically exempt under Exemption 2, 5 U.S.C. �552(b)(2). See, e.g. Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992). However, within its discretion, the Agency does disclose such information, after appropriate deletions have been made to protect privacy and confidentiality interests privileged from disclosure by FOIA Exemptions 6, 7(C) and 7(D), as well as information privileged by Exemption 5, if any. If our assumption is incorrect and you do want this material, please make a written request addressed to the Regional Director (or the undersigned) and the documents, with the appropriate deletions, will be forwarded to you.

(See, Sample follow-up Letter to Requester Who Makes Follow-Up Request for “Low 2” Material.)

Procedural Manual p. 39 n. 79

4. Letter to Requester Who Makes Follow-Up Request for "Low 2" Material

This letter responds to your [insert date] letter, in which you request [describe "low 2 " information] which was not previously provided to you in response to your Freedom of Information Act ("FOIA") request of [insert date]. This information constitutes internal trivial administrative material of no genuine public interest and is automatically exempt under Exemption 2, 5 U.S.C. �552(b)(2). See, e.g. Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992). Within its discretion, however, the Agency has decided to disclose this information, after appropriate deletions have been made to protect privacy and confidentiality interests privileged from disclosure by FOIA Exemptions 6, 7(C) and 7(D), as well as information privileged by Exemption 5, if any.

Procedural Manual p. 39, n. 79

5. Letter to Requester Who Makes Specific Request for "Low 2" Material

The information you requested, which includes [insert description of requested documents, i.e. internal transmittal slips, NLRB casehandling forms including computer forms, return receipt slips, envelopes, and facsimile cover sheets (which contain no substantive exempt material)], constitutes internal trivial administrative material of no genuine public interest and is automatically exempt under Exemption 2, 5 U.S.C. �552(b)(2). See, e.g. Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992). Within its discretion, however, the Agency has decided to disclose this information, after appropriate deletions have been made to protect privacy and confidentiality interests privileged from disclosure by FOIA Exemptions 6, 7(C) and 7(D), as well as information privileged by Exemption 5, if any.

No specific mention of sample in Manual

6. Letter to Requester Who Makes Request for "High 2" Material [6]

This letter is in response to your letter of [insert date], where you request [describe requested material] under the Freedom of Information Act ("FOIA"). After a complete search and a review of the responsive documents, the undersigned has determined that the documents [and/or] portions of the documents you have requested are privileged from disclosure under FOIA Exemption 2, 5 U.S.C. 552(b)(2) (“high 2”). [If the documents are not entirely protected, include: Those portions of the responsive documents that are not exempt are attached.] Your request is, therefore, denied [in whole or in part].

Exemption 2 privileges from disclosure substantial internal matters such as procedural manuals and guidelines, where disclosure “significantly risks circumvention of agency regulations or statutes.” See Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992); Crooker v. ATF, 670 F.2d 1051, 1054 (D.C.Cir. 1981 (en banc)). The withheld portion of [describe the information sought by the requester and set forth briefly the reasons why the documents are internal and why disclosure would be harmful e.g. GC and OM Memoranda contains instructions to the General Counsel's regional staff concerning the prosecution of unfair labor practice cases.] Accordingly, production of this material could risk circumvention of the law because it would “benefit those attempting to violate the law and avoid detection.” Crooker v. ATF, 670 F.2d at 1054.

C. Exemption 4

Procedural Manual p. 35, n. 69

1. Letter To Requester Indicating Need To Follow Executive Order

Procedures Prior To Disclosure of Possible Exemption 4 Material [7]

The records you request contain information [arguably covered by FOIA Exemption 4, 5 U.S.C. � 552 (b)(4)] and/or [which has been designated as confidential by the submitter of the records] [select appropriate choices]. Accordingly, the agency will undertake the following evaluation process with respect to these records [attach redacted documents] and/or [attach a list of documents as an Appendix to the letter, see attached] or [restate portion of request calling for confidential information] being withheld at this time. We ask that you review the [redacted documents and/or list or restated description] and identify those documents which you still want as part of your FOIA request. After we receive your response noting those redacted or withheld documents you continue to request, we will compile the requested documents and send them to the submitter, who must be given the opportunity to assert objections to disclosure under the applicable governing legal standard enunciated in [insert either] National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974) [or]Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871 (D.C. Cir. 1992) (en banc), cert. denied, 507 U.S. 984 (1993).] See Executive Order No. 12,600, 3 C.F.R. 235 (1988), reprinted in 5 U.S.C. � 552 note (1994).

Procedural Manual p. 36, n. 71

2. Letter To Submitter Who Has Submitted Records Containing

Arguably Confidential Commercial Information

Pursuant to Executive Order No. 12,600,¹ I wish to inform you that a Freedom of Information Act (“FOIA”) request has been made for the attached records or list [attach redacted documents] and/or [attach a list of documents as an Appendix to the letter, see attached].

Our review of these records indicates that they were submitted to the agency by [you/your organization], and that they may contain information arguably covered by FOIA Exemption 4, 5 U.S.C. � 552(b)(4). Accordingly, we are providing you with the opportunity to object to disclosure of these records by submitting a written opposition within 10 working days of the date of this letter. If you do not submit a timely written objection, the agency may assume that the requested records do not contain information covered by Exemption 4.

Your written opposition to disclosure should specify those portions of the records which you assert should not be disclosed, and should state in detail all grounds upon which disclosure is opposed, including [insert either] [where information was required to be submitted] whether and how disclosure of the records is likely to cause substantial competitive harm to your organization and is likely to impact on the government's ability to obtain reliable information in the future [or where information was voluntarily submitted] whether or not the information contained in the records is customarily disclosed to the public and whether the government will be ensured continued and full availability of the information if disclosure is required. See Critical Mass Energy Project v. NRC, 975 F.2d 871, 879-80 (D.C. Cir. 1992). Factual assertions in your written submission should, if appropriate, be supported by declarations or affidavits; however, any information you provide in support may itself be subject to disclosure under the FOIA.

If, after review of your submission, the agency determines to disclose the requested records, you will be sent a written statement briefly explaining the agency's decision and indicating a designated disclosure date.

_______________________

^1.See 3 C.F.R. 235 (1988), reprinted in 5 U.S.C. � 552 note (1994).

Procedural Manual p. 36, n. 71

3. Letter To Submitter Who Has Designated Material As

Confidential Commercial Information

Pursuant to Executive Order No. 12,600,¹ I wish to inform you that a Freedom of Information Act (“FOIA”) request has been made for the attached records or list [attach redacted documents] and/or [attach a list of documents as an Appendix to the letter, see attached].

[You/your organization] previously has designated these records as confidential commercial information. However, after reviewing the FOIA request and the responsive records, I believe that the Board may be required to disclose the records to the requester. See 5 U.S.C. � 552(a)(3).

You may object to the disclosure of these records by submitting a detailed written opposition within 10 working days of the date of this letter. Failure to respond within the specified time period will result in an Agency determination that you have no objection to the disclosure of the information.

Your written opposition should specify those portions of the records which you assert should not be disclosed, and should state in detail all grounds upon which disclosure is opposed, including [insert either] [where information was required to be submitted] whether and how disclosure of the records is likely to cause substantial competitive harm to your organization and is likely to impact on the government's ability to obtain reliable information in the future [or where information was voluntarily submitted] whether or not the information contained in the records is customarily disclosed to the public and whether the government will be ensured continued and full availability of the information if disclosure is required. See Critical Mass Energy Project v. NRC, 975 F.2d 871, 879-80 (D.C. Cir. 1992). Factual assertions in your written submission should, if appropriate, be supported by declarations or affidavits; however, any information you provide in support may itself be subject to disclosure under the FOIA.

If, after review of your submission, the Agency determines to disclose the requested records, you will be sent a written statement briefly explaining the agency's decision and indicating a designated disclosure date.

________________________

^1. See 3 C.F.R. 235 (1988), reprinted in 5 U.S.C. � 552 note (1994).

Procedural Manual p. 37, n. 72

4. Letter to Submitter Announcing Decision To Withhold Records

Pursuant To Exemption 4

After a careful review of the FOIA request, the responsive records and your written opposition to disclosure of records requested under the FOIA, the agency has determined that the records requested are privileged from disclosure pursuant to FOIA Exemption 4, 5 U.S.C. � 552(b)(4). This privilege exempts from disclosure (i) voluntarily submitted commercial or financial information provided that the submitter does not “customarily” disclose the information to the public and provided that disclosure would be likely to interfere with the continued and full availability of the information to the government, or (ii) compelled information likely to cause substantial harm to the competitive position of the person from whom it was obtained and likely to impact on the government's ability to obtain reliable information in the future. See Critical Mass Energy Project v. NRC, 975 F.2d 871, 879-80 (D.C. Cir. 1992), cert. denied, 113 S.Ct. 1579 (1993); National Parks & Conservation Ass'n v. Morton,498 F.2d 765, 766 (D.C. Cir. 1974).

You may seek judicial review of this determination by filing a complaint in an appropriate United States District Court. See 5 U.S.C. 552(a)(4)(B).

Procedural Manual p. 37, n. 72

5. Letter to Requester Announcing Decision To Withhold Records

Pursuant To Exemption 4

After a careful review of your FOIA request, the responsive records, and the submitter's objections, the agency has determined that the records requested are privileged from disclosure pursuant to FOIA Exemption 4, 5 U.S.C. � 552(b)(4). This privilege exempts from disclosure (i) voluntarily submitted commercial or financial information provided that the submitter does not “customarily” disclose the information to the public and provided that disclosure would be likely to interfere with the continued and full availability of the information to the government, or (ii) compelled information likely to cause substantial harm to the competitive position of the person from whom it was obtained and likely to impact on the government's ability to obtain reliable information in the future. See Critical Mass Energy Project v. NRC, 975 F.2d 871, 879-80 (D.C. Cir. 1992), cert. denied, 113 S.Ct. 1579 (1993); National Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 766 (D.C. Cir. 1974).

Procedural Manual p. 37, n.72

6. Letter To Submitter Announcing Decision To Disclose

Notwithstanding Objection [8]

The agency has carefully reviewed your written objections to disclosure of [describe the requested records] under the FOIA. For the following reasons, we have decided not to sustain your objections and instead to release the records to the FOIA requester:

[insert explanation of reasons why each of the submitter's objections were not sustained]

Accordingly, the Board intends to release these records to the FOIA requester on or after [insert date which is at least 10 working days after date of this letter].

Procedural Manual p. 37, n. 73

7. Letter Notifying Requester of Reverse FOIA Action By Submitter

This is to notify you that on [date] the submitter of the business/commercial records which you requested under the Freedom of Information Act ("FOIA") has filed an action against the Agency in the United States District Court for the District of ________ seeking to prevent the disclosure of the records.

[insert additional details as appropriate]

Procedural Manual p. 37, n. 73

8. Letter Notifying Submitter of the Commencement of FOIA Action By Requester

This is to notify you that on [date] the requester of the records which you have submitted to the Board has filed a lawsuit under the Freedom of Information Act (“FOIA”) against the Agency in the United States District Court for the District of _______. The FOIA lawsuit, among other things, seeks the disclosure of the requested records.

[insert modifications and/or additional details as appropriate]

9. Sample Appendix 1 for Exemption 4

List of Documents Released In Full Or In Redacted Form

10. Sample Appendix 2 for Exemption 4

List of Documents Withheld As Arguably

Covered By or Designated as Confidential Commercial Information Under Exemption 4 of the Freedom of Information Act

D. Exemption 5

No specific mention of sample in manuals

1. Where Information Sought is Protected By Exemption 5's

Deliberative Process Privilege

This is in response to your request of [insert date of letter] under the Freedom of Information Act (FOIA), 5 U.S.C � 552 et seq. for [restate the information sought in the request]. After a complete search and review of the responsive documents, the undersigned has determined that the information you have requested is privileged from disclosure under FOIA Exemption 5, 552(b)(5), as deliberative process material. [If there are factual portions that can be disclosed include: The enclosed portions of the requested document[s] [is or are] being provided to you because they were found to be reasonably segregable from the exempt portions of that [those] document[s]. 5 U.S C. 552(b).] [Or if there are no factual portions that can be disclosed include: The Agency has carefully reviewed the document[s] and has determined that there is no reasonably segregable nonexempt information which can be disclosed, 5 U.S C. 552(b). In this regard, it was concluded that [select appropriate choice(s)] the factual material is so inextricably intertwined with the privileged deliberative material that its disclosure would expose or cause harm to the Agency's deliberations or decision-making process [and/or] the very act of separating the significant facts from the insignificant facts in a file constitutes an exercise of deliberative judgment by agency personnel [and/or] it is impossible to reasonably segregate meaningful portions of the factual information from the deliberative information without imposing an inordinate burden and result in a useless disclosure.] Your request is, therefore, denied [in whole or in part].

The requested information consists of intra- or inter-[select one or both if appropriate] agency memoranda which would not be available by law to a party in litigation with this Agency. FOIA Exemption 5 has been construed to exempt those documents normally privileged in the civil discovery context. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). It is designed to protect and promote the objectives of fostering frank deliberation and consultation within the Agency in the predecisional stage, and to prevent a premature disclosure that could disrupt and harm the Agency's decisionmaking process. See, NLRB v. Sears, Roebuck & Co., 421 U.S. at 150-151, 152. The protected status of a predecisional document is not altered by the subsequent issuance of a decision, by the agency opting not to make a decision or by the passage of time. See, e.g., Wolfe v. HHS, 839 F.2d 768, 776 (D.C. Cir. 1988) (en banc); Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 13 (D.D.C. 1995), aff'd. 76 F.3d 1232 (D.C. Cir. 1996).

The information you have requested was prepared in order to assist the agency decision makers in arriving at their [select either or both] decision [or] policy recommendation and formed a part of the agency's deliberative process in making such a [select either or both] decision [or] policy recommendation.

[include brief statement of reasons why the information requested falls within this category]

No specific mention of sample in manuals

2. Where Information Sought is Protected By Exemption 5's Attorney Work-

Product Privilege

This is in response to your request of [insert date of letter] under the Freedom of Information Act (FOIA), 5 U.S.C � 552 et seq. for [restate the information sought in the request]. After a complete search and a review of the responsive documents, the undersigned has determined that the information you have requested is privileged from disclosure under FOIA Exemption 5, 552(b)(5), as attorney work-product material. Your request is, therefore, denied.

FOIA Exemption 5's attorney work-product privilege protects documents and other memoranda that reveal an attorney's mental impressions and legal theories and that were prepared by an attorney, or a non-attorney supervised by an attorney, in contemplation of litigation. See Hickman v. Taylor, 329 U.S. 495, 509-510 (1947); U.S. v. Weber Aircraft Corp., 465 U.S. 792 (1984) ; FTC v. Grolier, Inc., 462 U.S. 19 (1983); U.S. v. Nobles, 422 U.S. 225, 239 n.13 (1975). Additionally, the protection provided by Exemption 5 of the FOIA for attorney work-product material is not subject to defeat even if a requester could show a substantial need for the information and undue hardship in obtaining it from another source. See, FTC v. Grolier, Inc., 462 U.S. at 28 (1983). Further, the protection against disclosure of work-product documents extends even after litigation is terminated and the case for which they were created is closed. Id.

The information you seek here contains an evaluation and analysis of the critical facts and legal theories governing the case and other similar matters, thereby falling squarely within the protection of Exemption 5's attorney work-product privilege.

[include brief statement of reasons why the information requested falls within this category]

No specific mention of sample in manuals

3. Where Information Sought is Protected By Exemption 5's Attorney-Client Privilege [9]

This is in response to your request of [insert date of letter] under the Freedom of Information Act (FOIA), 5 U.S.C � 552 et seq. for [restate the information sought in the request]. After a complete search and a review of the responsive documents, the undersigned has determined that the information you have requested is privileged from disclosure under FOIA Exemption 5, 552(b)(5), as confidential communications within the attorney-client privilege. Your request is, therefore, denied.

The attorney-client privilege protects from disclosure "confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice." Mead Data Central, Inc. v. U.S Department of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977). The privilege extends to communications between an attorney and all agents or employees of the agency or organization. Id. at 253, n. 24. Exemption 5 protection under this privilege exists herein because the information requested involves communications wherein “the government is dealing with its attorneys as would any private party seeking advice to protect personal interests.” See Scott Paper Co. v. U.S., 943 F. Supp. 489, 499 (E.D. Pa. 1996).

[include brief statement of reasons why the information requested falls within this category]

E. Exemption 6

No specific mention of sample in manuals

1. Where Information Sought is Protected by FOIA Exemption 6

This is in response to your request of [insert date of letter] under the Freedom of Information Act (FOIA), 5 U.S.C � 552 et seq. for [restate the information sought in the request]. After a complete search and a review of the responsive documents, the undersigned has determined that the documents [and/or] portions of the documents you have requested are privileged from disclosure under FOIA Exemption 6, 5 U.S.C. 552(b)(6). [If the documents are not entirely protected, include: Those portions of the responsive documents that are not exempt are attached.] Your request is, therefore, denied [in whole or in part].

Exemption 6 permits agencies to withhold information about individuals in “personnel and medical and similar files” where the disclosure of the information "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(6). The “files” requirement covers all information which “applies to a particular individual.” U.S. Dept. of State v. Washington Post Co., 456 U.S. 595, 601-602 (1982). Exemption 6 requires agencies to balance the public's right to disclosure against the individual right to privacy. The kind of public interest involved is information which if disclosed would “shed [ ] light on an agency's performance of its statutory duties.” U.S. Dept. of Justice v. Reporters Committee for the Freedom of the Press, 489 U.S. 749, 773 (1989).

The information sought includes the following recognizable privacy interests [set forth briefly the privacy interests, e.g. home addresses and phone numbers]. You have not satisfied your burden of proof as to the public interest in disclosure. See Carter v. U.S. Dept. of Commerce, 830 F.2d 388, 390-391 nn. 8 & 13 (D.C.Cir. 1987.) The information sought is therefore exempt from disclosure under Exemptions 6 [in whole or in part].

F. Exemption 7

No specific reference in manuals

1. Exemption 7(A) (Open cases)

This is in response to your request of [insert date of letter] under the Freedom of Information Act (FOIA), 5 U.S.C � 552 et seq. for [restate the information sought in the request]. After a complete search and review of the responsive documents, the undersigned has determined that the documents you have requested are entirely privileged from disclosure under FOIA Exemption 7(A), 5 U.S.C. 552(b)(7)(A). Your request is, therefore, denied.

FOIA Exemption 7(A) allows an agency to withhold records included in an investigatory file in a pending or prospective proceeding when disclosure "could reasonably be expected to interfere with enforcement proceedings." See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978). [If this case is closed but related to a pending proceeding, include: Further, even if a proceeding is closed the exemption is applicable where disclosures could be expected to interfere with a related pending proceeding. See New England Medical Ctr. Hosp. v. NLRB, 548 F.2d 377, 386 (1^st Cir. 1976).] The FOIA is not intended to function as a private discovery tool. Robbins Tire, 437 U.S. at 242. The disclosure of the documents that are in the Board's file and encompassed by your request would harm the unfair labor practice proceedings by providing advance access to the Board's case. The protections of Exemption 7(A) extend to any document whose release would enable a respondent or potential respondent to tailor a defense or otherwise obtain an unfair litigation advantage by premature disclosure. See Ehringhaus v. F.T.C., 525 F. Supp. 21, 23-24 (D.D.C. 1980); Swan v. SEC, 96 F.3d 498, 499-500 (D.C.Cir. 1996). Further, disclosure of investigatory records in an open case, including affidavits, would risk witness intimidation, thereby interfering with enforcement proceedings. Robbins Tire, 437 U.S. at 239-241.

[If affidavits are involved, see sample letters to requesters who request Board and non-Board agent-prepared affidavits in this Appendix.].

2. Exemption 7(C) (Individual privacy information) (Open or Closed Case):

This is in response to your request of [insert date of letter] under the Freedom of Information Act (FOIA), 5 U.S.C � 552 et seq. for [restate the information sought in the request]. After a complete search and review of the responsive documents, the undersigned has determined that the documents you have requested are privileged from disclosure [in whole or in part] under FOIA Exemption 7(C), 5 U.S.C. 552(b)(7)(C). [If the documents are not entirely protected, include: Those portions of the responsive documents that are not exempt are attached.] Your request is, therefore, denied [in whole or in part].

Exemption 7(C), 5 U.S.C. 552(b)(7)(C), permits agencies to withhold information compiled for law enforcement purposes where disclosure of the information "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Individuals named in a law enforcement investigation, including third parties mentioned in investigatory files, as well as witnesses and informants who provide information during the course of an investigation, have such a privacy interest. See Nation Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 894 (D.C.Cir. 1995); Van Bourg, Allen, Weinberg & Roger v. NLRB, 751 F.2d 982, 985 (9^th Cir. 1985). Further, Exemption 7(C) requires the balancing of the individual right to privacy against the public's right to disclosure. The kind of public interest involved is information which if disclosed would “shed [ ] light on an agency's performance of its statutory duties.” U.S. Dept. of Justice v. Reporters Committee for the Freedom of the Press, 489 U.S. 749, 773 (1989).

The information sought includes the following recognizable privacy interests [set forth briefly the privacy interests, e.g. home addresses and phone numbers]. You have not satisfied your burden of proof as to the public interest in disclosure. See Carter v. U.S. Dept. of Commerce, 830 F.2d 388, 390-391 nn. 8 & 13 (D.C.Cir. 1987.) The information sought is therefore exempt from disclosure under Exemption 7(C) [in whole or in part].

3. Exemption 7(D) (Confidential source identification) (Open or Closed Case):

This is in response to your request of [insert date of letter] under the Freedom of Information Act (FOIA), 5 U.S.C � 552 et seq. for [restate the information sought in the request]. After a complete search and review of the responsive documents, the undersigned has determined that the documents you have requested are privileged from disclosure [in whole or in part] under FOIA Exemption 7(D), 5 U.S.C. 552(b)(7)(D). [If the documents are not entirely protected, include: Those portions of the responsive documents that are not exempt are attached.] Your request is, therefore, denied [in whole or in part].

Exemption 7(D) protects against the disclosure of “records or information compiled for law enforcement purposes [which] could reasonably be expected to disclose the identity of a confidential source . . . .” The documents sought contain information provided under a specific assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred. In order to protect the Board's confidential sources, the information is therefore exempt [in whole or in part] from disclosure.

4. Exemption 7(E) (Law enforcement techniques and procedures)

(Open or Closed Case) [10]

This is in response to your request of [insert date of letter] under the Freedom of Information Act (FOIA), 5 U.S.C � 552 et seq. for [restate the information sought in the request]. After a complete search and review of the responsive documents, the undersigned has determined that the documents you have requested are privileged from disclosure [in whole or in part] under FOIA Exemption 7(E), 5 U.S.C. 552(b)(7)(E). [If the documents are not entirely protected, include: Those portions of the responsive documents that are not exempt are attached.] Your request is, therefore, denied [in whole or in part].

Exemption 7(E) protects from forced disclosure records that "would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." The withheld portion of [describe the information sought by the requester and set forth briefly the reasons why disclosure would be harmful e.g. GC and OM Memoranda contains instructions to the General Counsel's regional staff concerning the prosecution of unfair labor practice cases.] Production of this material could reasonably be expected to risk circumvention of the law because it would afford litigants advance knowledge of the General Counsel's investigatory and prosecutorial strategies.

Procedural Manual, p. 48, n.98

5. Glomar Response under Exemption 7(D)

This is in response to your request of [insert date of letter] under the Freedom of Information Act (FOIA), 5 U.S.C � 552 et seq. for the affidavit[s] of [the named individual(s)]. Exemption 7(D), 5 U.S.C. 552(b)(7)(D), protects against the disclosure of “records or information compiled for law enforcement purposes [which] could reasonably be expected to disclose the identity of a confidential source . . . .” While in this case, in order to protect its confidential sources, the Board neither admits nor denies the existence of the affidavit[s] you seek, such affidavit[s], if [it or they], exist[s] would be protected from disclosure. See Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976). Your request is, therefore, denied. [11]

G. Affidavits

No specific mention of sample letter in manuals

1. Letter to Requester who requests Board Agent-prepared affidavits

This is in response to your request of [insert date of letter] under the Freedom of Information Act (FOIA), 5 U.S.C � 552 et seq. for Board agent-prepared affidavits. After a complete search and review of the responsive documents, the undersigned has determined that the documents you have requested are entirely privileged from disclosure under FOIA Exemptions 5 and 7(A) [only if this is an open case or there is an open related proceeding], 5 U.S.C. 552(b)(5) and (7)(A) and [in whole or in part] privileged under FOIA Exemptions 4, 6, 7(C) and 7(D), 5 U.S.C. 552(b)(4), (6), (7)(C) and 7(D). Your request is, therefore, denied.

Exemption 5 protects “inter-agency or intra-agency memoranda or letters which would not be available by law to a party . . . in litigation with the agency." Board agent-prepared affidavits constitute intra-agency memoranda as they are generated by Board agents during the investigation of unfair labor practice charges or in connection with representation petitions. Agency investigators and attorneys generate such statements by asking individuals questions relevant to the Agency's investigation, culling out facts extraneous to the Agency investigation from the answers they receive, and, based on the Board Agent's developing theory of the case, drafting a narrative of the witness' answers that is put in affidavit form. Board agent-prepared affidavits, while setting forth a factual accounting, reveal the perceptions and views of the agency personnel who prepared them as to which facts were deemed relevant, and whether or not the facts would tend to establish violations of the National Labor Relations Act. Further, Exemption 5 has been construed to privilege from disclosure those documents which are “normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). Witness statements, which are obtained by the Agency during its investigation, are clearly attorney work product that would not be routinely available to a party in litigation with the Agency. Hickman v. Taylor, 329 U.S. 495, 510-511 (1947); Martin v. Office of Special Counsel, 819 F.2d 1181, 1184-1186, 1187 (D.C. Cir. 1987).

[INSERT THE FOLLOWING 7(A) PARAGRAPH ONLY IF THIS IS AN OPEN CASE OR THERE IS AN OPEN RELATED PROCEEDING]

FOIA Exemption 7(A) allows an agency to withhold records included in an investigatory file in a pending or prospective proceeding when disclosure "could reasonably be expected to interfere with enforcement proceedings." See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978). [If this case is closed but related to a pending proceeding, include: Further, even if a proceeding is closed the exemption is applicable where disclosures could be expected to interfere with a related pending proceeding. See New England Medical Ctr. Hosp. v. NLRB, 548 F.2d 377, 386 (1^st Cir. 1976).] The FOIA is not intended to function as a private discovery tool. Robbins Tire,

437 U.S. at 242. Moreover, the Supreme Court has determined that because of the risk that witness intimidation might interfere with enforcement proceedings, FOIA Exemption 7(A) exempts from disclosure witness statements in pending unfair labor practice proceedings [or in closed cases related to pending open unfair labor practice proceedings. New England Medical Ctr. Hosp. , 548 F.2d at 386;] Robbins Tire, 437 U.S. at 239-241. There is no doubt that the Board's ability to conduct investigations and obtain relevant information from potential witnesses would be harmed if witnesses were reluctant or unwilling to provide information because of concern that their identities and statements routinely would be disclosed under the FOIA.

I am also withholding the Board agent-prepared affidavits [in whole or in part] under FOIA Exemption 4, 5 U.S.C. � 552(b)(4). Exemption 4 exempts from disclosure (i) voluntarily submitted commercial or financial information provided that the submitter does not “customarily” disclose the information to the public and provided that disclosure would be likely to interfere with the continued and full availability of the information to the government, or (ii) compelled information likely to cause substantial harm to the competitive position of the person from whom it was obtained and likely to impact on the government's ability to obtain reliable information in the future. See Critical Mass Energy Project v. NRC, 975 F.2d 871, 879-80 (D.C. Cir. 1992), cert. denied, 113 S.Ct. 1579 (1993); National Parks & Conservation Ass'n v. Morton,498 F.2d 765, 766 (D.C. Cir. 1974). [See sample letters in this Appendix for Exemption 4 material and consult with Headquarters FOIA Officer if claiming this exemption.]

I am also withholding the affidavits [in whole or in part] under FOIA Exemptions 6 and 7(C), 5 U.S.C. �� 552(b)(6) and (b)(7)(C). Exemption 6 permits agencies to withhold information about individuals in personnel and medical and similar files where the disclosure of the information "would constitute a clearly unwarranted invasion of personal privacy." Exemption 7(C) permits agencies to withhold information compiled for law enforcement purposes where disclosure of the information "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Board agent-prepared affidavits contain matter personal to the individual supplying the statements and to the individuals referred to in the statements. These exemptions protect these privacy interests and require the balancing of the individual right to privacy against the public's right to disclosure. The kind of public interest involved is information which if disclosed would “shed [] light on an agency's performance of its statutory duties.” U.S. Dept. of Justice v. Reporters Committee for the Freedom of the Press, 489 U.S. 749, 773 (1989).

The information sought includes the following recognizable privacy interests [set forth briefly the privacy interests, e.g. home addresses and phone numbers]. You have not satisfied your burden of proof as to the public interest in disclosure. See Carter v. U.S. Dept. of Commerce, 830 F.2d 388, 390-391 nn. 8 & 13 (D.C.Cir. 1987.) The information sought is therefore exempt from disclosure under Exemptions 6 and 7(C) [in whole or in part].

I am also withholding the Board agent-prepared affidavits [in whole or in part] under FOIA Exemption 7(D), 5 U.S.C. � 552(b)(7)(D). Exemption 7(D) protects against the disclosure of “records or information compiled for law enforcement purposes [which] could reasonably be expected to disclose the identity of a confidential source . . . .” The affidavits contain information provided under a specific assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred. In order to protect the Board's confidential sources, the affidavits are therefore exempt [in whole or in part] from disclosure.

[Note that in a closed case, attachments to Board agent-prepared affidavits should be disclosed with appropriate deletions to protect privacy interests, confidential sources, and/or material privileged from disclosure by Exemption 4.]

No specific mention of sample letter in manuals

2. Letter to Requester who requests Non-Board Agent-prepared affidavits

and/or witness statements

This is in response to your request of [insert date of letter] under the Freedom of Information Act (FOIA), 5 U.S.C � 552 et seq. for non-Board agent-prepared affidavits and/or witness statements. After a complete search and review of the responsive documents, the undersigned has determined that the documents you have requested are entirely privileged from disclosure under FOIA Exemption 7(A), 5 U.S.C. 552(b)(7)(A) [only if this is an open case or there is an open related proceeding] and privileged, [in whole or in part], under FOIA Exemptions 4, 6 and 7C), 5 U.S.C. 552(b)(4), (6) and 7(C). Your request is, therefore, denied [or denied in part. The disclosable portions of the non-Board agent-prepared affidavits are attached hereto.]

[INSERT THE FOLLOWING 7(A) PARAGRAPH ONLY IF THIS IS AN OPEN CASE OR THERE IS AN OPEN RELATED PROCEEDING]

FOIA Exemption 7(A) allows an agency to withhold records included in an investigatory file in a pending or prospective proceeding when disclosure "could reasonably be expected to interfere with enforcement proceedings." See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978). [If this case is closed but related to a pending proceeding, include: Further, even if a proceeding is closed the exemption is applicable where disclosures could be expected to interfere with a related pending proceeding. See New England Medical Ctr. Hosp. v. NLRB, 548 F.2d 377, 386 (1^st Cir. 1976).] The FOIA is not intended to function as a private discovery tool. Robbins Tire, 437 U.S. at 242. Moreover, the Supreme Court has determined that because of the risk that witness intimidation might interfere with enforcement proceedings, FOIA Exemption 7(A) exempts from disclosure witness statements in pending unfair labor practice proceedings [or in closed cases related to pending open unfair labor practice proceedings. New England Medical Ctr. Hosp. , 548 F.2d at 386;] Robbins Tire, 437 U.S. at 239-241. There is no doubt that the Board's ability to conduct investigations and to obtain relevant information provided by potential witnesses in non-Board Agent-prepared affidavits and/or witness statements would be harmed if witnesses were reluctant or unwilling to provide information because of concern that their identities and statements routinely would be disclosed under the FOIA.

I am also withholding the non-Board agent-prepared affidavits and/or witness statements [in whole or in part] under FOIA Exemption 4, 5 U.S.C. � 552(b)(4). Exemption 4 exempts from disclosure (i) voluntarily submitted commercial or financial information provided that the submitter does not “customarily” disclose the information to the public and provided that disclosure would be likely to interfere with the continued and full availability of the information to the government, or (ii) compelled information likely to cause substantial harm to the competitive position of the person from whom it was obtained and likely to impact on the government's ability to obtain reliable information in the future. See Critical Mass Energy Project v. NRC, 975 F.2d 871, 879-80 (D.C. Cir. 1992), cert. denied, 113 S.Ct. 1579 (1993); National Parks & Conservation Ass'n v. Morton,498 F.2d 765, 766 (D.C. Cir. 1974). [See sample letters in this Appendix for Exemption 4 material and consult with Headquarters FOIA Officer if claiming this exemption.]

I am also withholding the affidavits/witness statements [in whole or in part] under FOIA Exemptions 6 and 7(C). 5 U.S.C. �� 552(b)(6) and (b)(7)(C). Exemption 6 permits agencies to withhold information about individuals in personnel and medical and similar files where the disclosure of the information "would constitute a clearly unwarranted invasion of personal privacy." Exemption 7(C) permits agencies to withhold information compiled for law enforcement purposes where disclosure of the information "could reasonably be expected to constitute an unwarranted invasion of personal privacy." These non-Board agent-prepared affidavits and/or witness statements contain matter personal to the individual supplying the statements and to the individuals referred to in the statements. These exemptions protect these privacy interests and require the balancing of the individual right to privacy against the public's right to disclosure. The kind of public interest involved is information which if disclosed would “shed [ ] light on an agency's performance of its statutory duties.” U.S. Dept. of Justice v. Reporters Committee for the Freedom of the Press, 489 U.S. 749, 773 (1989).

The information sought includes the following recognizable privacy interests [set forth briefly the privacy interests, e.g. home addresses and phone numbers]. You have not satisfied your burden of proof as to the public interest in disclosure. See Carter v. U.S. Dept. of Commerce, 830 F.2d 388, 390-391 nn. 8 & 13 (D.C.Cir. 1987.) The information sought is therefore exempt from disclosure under Exemptions 6 and 7(C) [in whole or in part].

[Note that in a closed case, non-Board agent-prepared affidavits should be disclosed with appropriate deletions to protect privacy interests and/or material privileged from disclosure by Exemption 4.]

H. Fees and Fee Waivers

Again, as noted in the Manual, the FOIA processor should first contact the requester by telephone to clarify any questions pertaining to a FOIA request, including fees. Confirming letters should be sent to the requester pertaining to any agreements reached about a FOIA request.

1. Failure to assume costs:

The FOIA, 5 U.S.C. 552(a)(4)(A)(i), provides that each agency shall promulgate regulations specifying the schedule of fees applicable to the processing of requests under the Act. Assumption of financial liability is required in all requests. 29 C.F.R. 102.117(d)(2)(vi). Your request includes no such undertaking. Accordingly, we are hereby advising you that in order for us to process your request, you will need to inform us in writing that you are willing to assume full financial responsibility for fees. Your request for records will not be deemed received for purposes of the applicable time limits for response until a written assumption of financial liability is received. 29 C.F.R 102.117(d)(vi)(B).

2. Advising Requester, with history of prompt payment, that processing fees will exceed $250:

Under the NLRB Rules and Regulations, 29 C.F.R. 102.117(d)(2)(vi)(A), you are hereby notified that the costs in processing your FOIA request will exceed $250.00. We estimate that the charges in responding to your request will be [$ amount]. In order for us to complete the processing of your request, you will need to advise us in writing that you are willing to assume the financial liability for this estimated amount. The processing of the request will be suspended for purposes of the applicable time limits for response until a written assumption of the new financial liability is received. 29 C.F.R 102.117(d)(vi)(B).

3. Advising Requester, with no history of payment, where fees are likely to exceed $250 that the Agency will require advance payment prior to processing of the request:

This is in response to your FOIA request of [date], which requested [description of request]. Please be advised that we estimate that the cost of processing the request is anticipated to exceed $250.00. The NLRB's Rules and Regulations, 29 C.F.R. 102.117(d)(vi)(A), require that as a requester with no history of payment, advance payment of the fees the Board estimates will be incurred in processing this request is required. Further, the administrative time limits for responding to your FOIA request will begin to run only after such advance payment is made. 29 C.F.R 102.117(d)(vi)(B).

4. Failure to pay for previous request:

The Board's Rules and Regulations, 29 C.F.R 102.117(d)(2)(vi)(B), state that if “a requester has previously failed to pay fees that have been charged in processing a request within 30 days of the date when the notification of fees was sent, the requester will be required to pay the entire amount of fees that are owed, plus interest as provided for in paragraph (d)(2)(v), before the Agency will process a further information request.” Inasmuch as you have not remitted to the Agency the assessed charges with respect to the previous FOIA responses provided to you on [date], no further search will be conducted or documents provided until said moneys are paid in full. Further, under the Board's Rules and Regulations, 29 C.F.R. 102.117(d)(2)(vi)(B), administrative time limits for responding to this request will begin to run only after the Agency has received the required fee payments.

5. Advising Requester that the specified amount it is willing to pay has been exceeded:

In your letter dated [date], you specified that you would only pay [$ amount] toward the processing of your FOIA request. Please be advised that the amount of fees for processing the request will exceed that amount. We estimate that the total cost for processing the request will be approximately [$ amount]. Pursuant to the NLRB's Rules and Regulations, 29 C.F.R. 102.117(d)(2)(vi), we are hereby advising you that in order for us to complete the processing of your request, you will need to inform us in writing that you are willing to assume the financial liability for the new estimated amount. The request for records will not be deemed received for purposes of the applicable time limits for response until a written assumption of the increased financial liability is received. 29 C.F.R 102.117(d)(vi)(B).

6. Aggregation of requests:

The Board's Rules and Regulations, 29 C.F.R. Section 102.117(d)(2)(iii)(B) permits this Agency to aggregate FOIA requests made by the same requester or group of requesters to insure that the proper processing fees are paid, where the Agency “reasonably believes” that a requester is attempting to escape fees by filing a series of requests. Our review of your requests establishes [explain basis for reasonable belief, including dates of requests].

Therefore, please be advised that we are aggregating your requests [dates] and will charge accordingly [set forth estimated charges]. Further, you will need to advise us in writing that you are willing to assume the increased financial liability for the processing of the aggregated requests. Your requests for records will not be deemed received for purposes of the applicable time limits for response until a written assumption of the increased financial liability is received. 29 C.F.R 102.117(d)(vi)(B).

7. De minimis fees:

The cost involved in furnishing this information has been waived pursuant to the Board's Rules and Regulations concerning fees, 29 C.F.R. 102.117(d)(2)(iii)(A).

8. Delinquent requesters:

On [date], this Agency sent you a Determination Letter responding to your request for documents under the FOIA and notifying you of the Agency's determination and the charges due. As of the date of this letter, we have not received payment. Further, as of [31^st day after date of Determination Letter] the Agency has begun to assess interest charges. See 29 C.F.R. 102.117(d)(2)(v). Consequently, you now owe [ $ amount]. Failure to remit these charges immediately will result in your case being forwarded to NLRB Headquarters for collection efforts, including litigation.

9. Fee Category:

a.) Commercial Use:

For the purpose of assessing fees, we have placed you in Category I, as a commercial use requester. This category refers to requests “from or on behalf of one who seeks information for a use or purpose that furthers the commercial trade or profit interests of the requester or the person on whose behalf the request is made.” NLRB Rules and Regulations, 29 C.F.R 102.117(d)(1)(v). [See Proposed Regulations for revised definition.] Placement in the commercial use category depends only on the intended use of the information sought. [Explain why requester falls within this category.] Further, under our regulations, unless a requester makes a “reasonably based showing that [the] requester should be placed in a particular user category, fees will be imposed as provided for in the commercial user category.” NLRB Rules and Regulations, 29 C.F.R. 102.117(d)(2)(ii)(E).

Consistent with this fee category, you will be assessed charges to recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. NLRB Rules and Regulations, 29 C.F.R. 102.117(d)(2)(ii)(A). Charges for all categories of requesters are: [$ amount] per quarter-hour or portion thereof of clerical time; [$ amount] per quarter-hour or portion thereof of professional time; and [$ amount] per page of photoduplication. NLRB Rules and Regulations, 29 C.F.R. 102.117(d)(2)(i).

The undersigned is responsible for the above determination. You may obtain a review thereof under the NLRB Rules and Regulations Section, 102.117(c)(2)(ii), by filing an appeal with the General Counsel, National Labor Relations Board, Washington, D.C. 20570, within 20 days (excluding Saturdays, Sundays, and legal holidays) from the receipt of this letter. Any appeal should contain a complete statement of the reasons upon which it is based.

b.) Educational Institutions and Representatives of the News Media: [12]

For the purpose of assessing fees, we have placed you in Category II, [select appropriate choice] as an educational institution that operates a program or programs of scholarly research, 29 C.F.R. 102.117(d)(1)(vi) [or] as a representative of the news media in that you qualify as a person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public, 29 C.F.R. 102.117(d)(1)(vii).

Consistent with this fee category, you will be assessed charges to recover the full direct costs of duplicating the records sought, but only for those pages in excess of 100 pages. 29 C.F.R. Section 102.117(d)(2)(ii)(B) and (C) and (d)(2)(iii)(A). Charges are [$ amount] per page of photoduplication. NLRB Rules and Regulations, 29 C.F.R. 102.117(d)(2)(i).

[Note that the minimum must be met before any charges are properly assessable. See paragraph 7, supra.]

The undersigned is responsible for the above determination. You may obtain a review thereof under the NLRB Rules and Regulations Section, 102.117(c)(2)(ii), by filing an appeal with the General Counsel, National Labor Relations Board, Washington, D.C. 20570, within 20 days (excluding Saturdays, Sundays, and legal holidays) from the receipt of this letter. Any appeal should contain a complete statement of the reasons upon which it is based.

c.) All other Requesters:

For the purpose of assessing fees, we have placed you in Category III, the “all other requesters” category, because you do not fall within any of the other fee categories. Consistent with this fee category, you will be assessed charges to recover the full reasonable direct costs for searching for the requested document[s] and the duplication of that [those] document[s]. As a requester in this category you will not be charged for the first 100 pages of duplication or the first two hours of search time. 29 C.F.R. Section 102.117(d)(2)(ii)(D). Charges for all categories of requesters are: [$ amount] per quarter-hour or portion thereof of clerical time; [$ amount] per quarter-hour or portion thereof of professional time; and [$ amount] per page of photoduplication. NLRB Rules and Regulations, 29 C.F.R. 102.117(d)(2)(i).

The undersigned is responsible for the above determination. You may obtain a review thereof under the NLRB Rules and Regulations Section, 102.117(c)(2)(ii), by filing an appeal with the General Counsel, National Labor Relations Board, Washington, D.C. 20570, within 20 days (excluding Saturdays, Sundays, and legal holidays) from the receipt of this letter. Any appeal should contain a complete statement of the reasons upon which it is based.

10. Notifying Requester of Processing Fee information and requirement of timely payment:

The schedule of charges for processing FOIA requests is set forth in the Board's Rules and Regulations, 102.117(d)(2). [Total time spent in hours or fractions thereof] of professional time and [total time spent in hours or fractions thereof] of clerical time were expended in responding to your FOIA request, and [amount] pages were photoduplicated. Consequently, please submit a check for [$ amount] payable to the National Labor Relations Board at the following address:

National Labor Relations Board
Finance Section
Attention: FOIA Processing
1099 14th Street, N.W. Room 7828
Washington, D.C. 20570

Please send me a copy of your check and this letter for our records.

Further, please be advised that timely payment of fees must be made, under protest, if necessary, to avoid being deemed a delinquent requester under the FOIA. If you are deemed a delinquent requester by this Agency, you will be required to make advance payment for any subsequent requests under the FOIA before those requests are processed. NLRB Rules and Regulations, 29 C.F.R. 102.117(d)(2)(vi)(B).

11. Fee waiver or fee reduction:

In your [date] request for documents under the FOIA, you requested that this Agency waive [or reduce] the charges incurred in processing your request. To qualify for a fee waiver [or fee reduction], you must submit a written statement in which you affirmatively establish that such waiver [or reduction] would be in the public interest because disclosure is likely to contribute significantly to the public understanding of the operations or activities of the Government and is not primarily in your own commercial interest. See NLRB Rules and Regulations, 29 C.F.R. 102.117(d)(2)(iv). Each portion of this test, that is that the disclosure of the requested records is “likely to contribute” “significantly” “to the public understanding” of “operations or activities of the government,” must be met in order to qualify for a fee waiver or reduction. See, McClellan

Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1286 (9^th Cir. 1987). Further, the public benefit from disclosure must be balanced against and outweigh the commercial benefit to the requester. Indigence alone, without a showing of public benefit, is insufficient to warrant a fee waiver [or reduction]. See, Ely v. US Postal Service, 753 F.2d 163, 165 (D.C. Cir. 1985).

Inasmuch as [select appropriate choice and give brief explanation supporting your choice] you have not established that the disclosure of the requested information would benefit the public and that the public benefit outweighs your commercial interest, your request for a waiver [or reduction] is denied. [Or] You have established that a certain percentage of the requested records satisfy the fee waiver or reduction test and therefore a partial waiver or reduction of [percentage] is granted. [Or] You have satisfied the fee waiver test and therefore a full fee waiver is granted.

The undersigned is responsible for the above determination. You may obtain a review thereof under the NLRB Rules and Regulations Section, 102.117(c)(2)(ii), by filing an appeal with the General Counsel, National Labor Relations Board, Washington, D.C. 20570, within 20 days (excluding Saturdays, Sundays, and legal holidays) from the receipt of this letter. Any appeal should contain a complete statement of the reasons upon which it is based.

II. SAMPLE FORMS

A. BLANK FOIA COVER SHEET

FOIA REQUEST CONTROL FORM NLRB 4933

SEE HARD COPY OF MANUAL

(OR USE FORM FLOW OR OTHER FORMS SOFTWARE)

B. FILLED IN SAMPLE FOIA COVER SHEET

SEE HARD COPY OF MANUAL

C.FOIA TIME LOG

D. FOIA TIME LOG

E. FOIA INVENTORY

DATE OF REQUEST: DUE DATE:

DATE OF RECEIPT: EOT:

DOCUMENTS

F. FOIA INVENTORY

(OPEN CASE SAMPLE)

DATE OF REQUEST: ____4/2/97 DUE DATE: ___5/5/97

DATE OF RECEIPT: _____4/2/97 EOT:

DOCUMENTS

FOIA INVENTORY (OPEN CASE) 35-CA-10000

FOIA INVENTORY

Case No. 35-CA-10000 (Open Case; FOIA request for whole file)

G. FOIA INVENTORY

(CLOSED CASE SAMPLE)

DATE OF REQUEST: ____4/2/97 DUE DATE: ____5/5/97 (20working

DATE OF RECEIPT: _____4/7/97 EOT: ______ days from receipt)

DOCUMENTS

FOIA INVENTORY (CLOSED CASE) 35-CA-10000

FOIA INVENTORY

Case No. 35-CA-10000 (Closed Case; FOIA request for whole file)

________________________

^1. Attorney work product privilege.

^2. Deliberative process privilege.

III. SAMPLE REDACTED DOCUMENT

A. TELEPHONE LOG MARKED FOR REDACTION

SEE HARD COPY OF MANUAL

B. TELEPHONE LOG REDACTED

SEE HARD COPY OF MANUAL

C. MEMORANDUM MARKED FOR REDACTION

SEE HARD COPY OF MANUAL

D. MEMORANDUM REDACTED

SEE HARD COPY OF MANUAL

E. CLOSED CASE AFFIDAVIT MARKED FOR REDACTION

SEE HARD COPY OF MANUAL

CLOSED CASE AFFIDAVIT MARKED FOR REDACTION- PAGE 2

SEE HARD COPY OF MANUAL

F. STATEMENT REDACTED

SEE HARD COPY OF MANUAL

STATEMENT REDACTED- PAGE 2

SEE HARD COPY OF MANUAL

IV. Policy Statements

October 4, 1993

MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES

SUBJECT: The Freedom of Information Act

President Clinton has asked each Federal department and agency to take steps to ensure it is in compliance with both the letter and the spirit of the Freedom of Information Act (FOIA),5 U.S.C � 552. The Department of Justice is fully committed to this directive and stands ready to assist all agencies as we implement this new policy.

First and foremost, we must ensure that the principle of openness in government is applied in each and every disclosure and nondisclosure decision that is required under the Act. Therefore, I hereby rescind the Department of Justice's 1981 guidelines for the defense of agency action in Freedom of Information Act litigation. The Department will no longer defend an agency's withholding of information merely because there is a "substantial legal basis" for doing so. Rather, in determining whether or not to defend a nondisclosure decision, we will apply a presumption of disclosure.

To be sure, the Act accommodates, through its exemption structure, the countervailing interests that can exist in both disclosure and nondisclosure of government information. Yet while the Act's exemptions are designed to guard against harm to governmental and private interests, I firmly believe that these exemptions are best applied with specific reference to such harm, and only after consideration of the reasonably expected consequences of disclosure in each particular case.

In short, it shall be the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption. Where an item of information might technically or arguably fall within an exemption, it ought not to be withheld from a FOIA requester unless it need be.

It is my belief that this change in policy serves the public interest by achieving the Act's primary objective -- maximum responsible disclosure of government information -- while preserving essential confidentiality. Accordingly, I strongly encourage your FOIA officers to make "discretionary disclosures" whenever possible under the Act. Such disclosures are possible under a number of FOIA exemptions, especially when only a governmental interest would be affected. The exemptions and opportunities for "discretionary disclosures" are discussed in the Discretionary Disclosure and Waiver section of the "Justice Department Guide to the Freedom of Information Act." As that discussion points out, agencies can make discretionary FOIA disclosures as a matter of good public policy without concern for future "waiver consequences" for similar information. Such disclosures can also readily satisfy an agency's "reasonable segregation" obligation under the Act in connection with marginally exempt information, see 5 U.S.C. � 552(b), and can lessen an agency's administrative burden at all levels of the administrative process and in litigation. I note that this policy is not intended to create any substantive or procedural rights enforceable at law.

In connection with the repeal of the 1981 guidelines, I am requesting that the Assistant Attorneys General for the Department's Civil and Tax Divisions, as well as the United States Attorneys, undertake a review of the merits of all pending FOIA cases handled by them, according to the standards set forth above. The Department's litigating attorneys will strive to work closely with your general counsels and their litigation staffs to implement this new policy on a case--bycase basis. The Department's Office of Information and Privacy can also be called upon for assistance in this process, as well as for policy guidance to agency FOIA officers.

In addition, at the Department of Justice we are undertaking a complete review and revision of our regulations implementing the FOIA, all related regulations pertaining to the Privacy Act of 1974, 5 U.S.C. � 552a, as well as the Department's disclosure policies generally. We are also planning to conduct a Departmentwide "FOIA Form Review." Envisioned is a comprehensive review of all standard FOIA forms and correspondence utilized by the Justice Department's various components. These items will be reviewed for their correctness, completeness, consistency, and particularly for their use of clear language. As we conduct this review, we will be especially mindful that FOIA requesters are users of a government service, participants in an administrative process, and constituents of our democratic society. I encourage you to do likewise at your departments and agencies.

Finally, I would like to take this opportunity to raise with you the longstanding problem of administrative backlogs under the Freedom of Information Act. Many Federal departments and agencies are often unable to meet the Act's ten-day time limit for processing FOIA requests, and some agencies -- especially those dealing with high-volume demands for particularly sensitive records -- maintain large FOIA backlogs greatly exceeding the mandated time period. The reasons for this may vary, but principally it appears to be a problem of too few resources in the face of too heavy a workload. This is a serious problem -- one of growing concern and frustration to both FOIA requesters and Congress, and to agency FOIA officers as well.

It is my hope that we can work constructively together, with Congress and the FOIA - requester community, to reduce backlogs during the coming year. To ensure that we have a clear and current understanding of the situation, I am requesting that each of you send to the Department's Office of Information and Privacy a copy of your agency's Annual FOIA Report to Congress for 1992. Please include with this report a letter describing the extent of any present FOIA backlog, FOIA staffing difficulties and any other observations in this regard that you believe would be helpful.

In closing, I want to reemphasize the importance of our cooperative efforts in this area. The American public's understanding of the workings of its government is a cornerstone of our democracy. The Department of Justice stands prepared to assist all Federal agencies as we make government throughout the executive branch more open, more responsive, and more accountable.

Janet Reno

May 1, 1997

MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES

FROM: THE ATTORNEY GENERAL

SUBJECT: THE FREEDOM OF INFORMATION ACT

As you know, the President signed legislation last fall to amend and strengthen the Freedom of Information Act ("FOIA"), 5 U.S.C. � 552, as a means of public access to information about the activities of the departments and agencies of the Federal Government.

I am writing to bring to your attention the significant new requirements of this legislation that take effect at different times this year, and also to reemphasize the importance of the Administration's policy of striving for the maximum responsible disclosure of information under the FOIA.

The Electronic Freedom of Information Act Amendments of 1996 ("Electronic FOIA amendments"), P.L. 104-231, 110 Stat. 3048, contain provisions amending the FOIA with respect to records maintained in electronic formats, the timing of agency responses to FOIA requests, the maintenance of reading rooms, and other procedural matters. (Attached is a copy of the amended statute with an accompanying amendment description.) The most significant of these Electronic FOIA amendments are:

• Provisions that confirm that the Act applies to information maintained in electronic formats and establish a "reasonable efforts" standard governing the search for and production of information in electronic form, effective as of March 31, 1997.
• A provision requiring "reading room" treatment for FOIA - processed records that an agency considers likely to be the subject of subsequent FOIA requests, also effective as of March 31, 1997.
• An "electronic reading room" provision that requires agencies to provide electronic availability for their newly created reading room records (i.e., created by the agency on or after November 1, 1996), as of November 1, 1997.
• Provisions that lengthen the Act's time limits for responding to requests, establish procedures for circumstances in which agencies cannot meet those time limits, and establish standards under which FOIA requesters can seek "expedited processing" of their requests. These provisions become effective on October 2, 1997.
• A provision limiting the circumstances under which an agency's backlog may be used to justify a delay in responding to a FOIA request, also effective as of October 2, 1997.
• A provision requiring agencies to prepare reference material or a guide for requesting records from the agency, effective as of March 31, 1997. The Office of Management and Budget has issued guidance to agencies on this subject (copy attached).
• Amendments to the Act's requirements for the filing of annual FOIA reports, effective as of fiscal year 1998, beginning on October 1, 1997.

As provided for in the Electronic FOIA amendments, the Department of Justice will develop annual report guidelines, in consultation with the Office of Management and Budget, for use by all agencies in their compilation of annual report statistics beginning on October 1, 1997. The Department of Justice is preparing to issue implementing regulations and a FOIA reference guide to which agencies can look in their own implementation of the amendments. The Department also will continue to address agency questions concerning the amendments through its publications, training activities, and its FOIA Counselor service.

As your department or agency implements the Electronic FOIA amendments, I urge you to be sure to continue our strong commitment to the openness-in-government principles that President Clinton and I established on October 4, 1993. These principles include applying customer-service attitudes toward FOIA requesters, following the spirit as well as the letter of the Act, and applying a presumption of disclosure in FOIA decision making. Most significant is that an agency should make a discretionary disclosure of exempt information whenever it is possible to do so without foreseeable harm to any interest that is protected by a FOIA exemption; an agency should withhold information under the FOIA only when it is necessary to do so.

These principles remain vital to the continued success of our FOIA policy. They also require that each department and agency place a sustained priority on its FOIA administration responsibilities, including through the elimination or reduction of any backlog of pending FOIA requests. The reduction of existing agency FOIA backlogs will take on heightened significance under the provisions of the Electronic FOIA amendments.

Copies of the statements of FOIA policy that President Clinton and I issued on October 4, 1993, are attached. In furtherance of the President's directives, I ask that you promote our continued commitment to open government by redistributing these policy statements, together with this memorandum and its attachments throughout your department or agency, with particular attention to your agency's recent appointees.

Attachments [ not included ]

V. Agency Document Index

The documents listed herein are frequently requested under the FOIA. This Index will assist FOIA processors by suggesting exemptions for listed documents. This index is not to be used as the sole basis for granting or denying a FOIA request. The FOIA processor should independently analyze each request and each responsive document to determine if the suggested exemption applies. Further, even if the suggested exemption is applicable, redactions may be appropriate and partial disclosure required. (This is especially the case involving the privacy exemptions of 6 and 7(C)). Moreover, because Exemption 7(A) is applicable to all documents if the case is open or related to an open case, that exemption is not separately listed in this Index, but should be considered by FOIA Processors for every FOIA request in every open or open-related case.

[1] Unless the disclosure of the amount of information withheld would “harm an interest protected by [an applicable] exemption,” 5 U.S.C. 552(a)(6)(F) requires that agencies estimate the volume of the denied material and advise the requester of this information.

[2] Before taking an extension of time to respond to a FOIA request, the Regional Office should review the Procedural Portion of the FOIA Manual, p.6, which sets forth the criteria for whether an extension of time is authorized under the FOIA.

[3] Where a requester requests documents without a case name or number provided, the Regional Office should first attempt to contact the requester for clarification. A letter incorporating this language should be sent to document the Agency's attempt to clarify the request.

[4] The Board does maintain a system of records of personnel files of its own employees or applicants, which files are retrievable by personal identifiers. Disclosure of such files is subject to Privacy Act considerations.

[5] This language should not be utilized where the Agency has the document, but the disclosure of the very existence of the document would harm a interest protected under the FOIA. See sample letter in this appendix titled “Glomar Response under Exemption 7(D).”

[6] As set forth in the Substantive Portion of the FOIA Manual, p. 20, the FOIA Officer in Washington should be contacted if the FOIA processor plans to claim a “high 2” exemption.

[7] As set forth in the Substantive portion of the FOIA Manual, p. 25, n. 55, the FOIA processor should consult with the FOIA Officer in Washington in every Exemption 4 case.

[8] Requester will be informed of decision to disclose by the Determination Letter sent after the deadline set forth in the final paragraph of this letter.

[9] If you intend to claim attorney-client privilege, contact the FOIA Officer at Headquarters.

[10] As set forth in the Substantive Portion of the FOIA Manual, p. 64, n. 195, the FOIA Officer in Washington should be contacted if there is any question as to whether or not an Agency manual or guideline memorandum is public or should be protected under Exemption 7(E).

[11] Note that it is important to consistently follow this procedure every time you deny a request that seeks affidavits from named individuals in order to avoid alerting requesters of the existence of such affidavits. See Substantive Portion, FOIA Manual, p. 77, n. 231,

[12] See FOIA Manual, Substantive Portion, p. 77, n. 231 for direction if the requester is a “non-commercial scientific institution.”

[13] Unless otherwise indicated, all documents are protected from disclosure in this open case pursuant to Exemption 7(A).

[14] Attorney work product privilege.

[15] Deliberative process privilege.

[16] Note that all of the suggested exemptions listed for a particular document may not apply. Further, the exemption or exemptions listed before a semi-colon may protect the document from disclosure in full; exemptions listed after a semi-colon may protect parts of the document. When the word “Disclose” is utilized, the documents referred to are either considered public documents or documents otherwise required to be published in the Federal Register and should be released in full. Finally, where the term “Contact Headquarters” appears, the Region is required to contact the General Counsel's FOIA Office in Headquarters for guidance.

[17] The pages noted herein refer to the page or pages in the FOIA Manual where there is a discussion pertaining to the document in the first column. Not every document listed in this Index is expressly referred to in the FOIA Manual. “P” citations refer pages in the procedural part of the Manual and “S” citations refer to pages in the substantive part of the Manual.

[18] For statements prepared by non-Board Agents, see the listing for “Witness Statements” in this Agency Document Index.

[19] However, see footnote 22, infra.

[20] Although Exemption Low 2 applies and protects this document (and others listed herein) from disclosure, the General Counsel has decided that discretionary disclosure is appropriate under Exemption 2 for nearly all trivial administrative material. The Regional Office should therefore not rely on Exemption Low 2 to protect the document from disclosure. See P. 39.

[21] See footnote 20, supra.

[22] The name and work phone number of the Board Agent assigned to the case should be disclosed unless there is evidence that the requester may harass the Board Agent, has done so in the past to other Board Agents, or has a violent or threatening disposition.

[23] Drawing or maps should be disclosed after redacting personal identifiers. If the drawing or map contains commercial information or trade secrets, the Board Agent must analyze whether Exemption 4 applies.

[24] Where the election does not occur, the names of the election observers should be redacted for privacy reasons pursuant to Exemption 6.

[25] See footnote 20, supra.

[26] See footnote 20, supra.

[27] Policy statements such as GC or OM memos normally have a designation at the end of the memo designating whether they are disclosable to the public. The Agency's Freedom of Information Office maintains a list of the memos that have been disclosed in the past and should be contacted if there is any doubt as to whether a particular GC or OM memo should be disclosed in full or in part.

[28] If the grievance is incorporated into a Board Agent prepared affidavit it may be protected under Exemption 5. If it is not incorporated into a Board Agent prepared affidavit, it may need to be redacted for privacy reasons under Exemption 6 and 7(C).

[29] See footnote 20, supra.

[30] Names, addresses, phone numbers, social security numbers, and personal identifiers should be redacted.

[31] See OM Memorandum 99-35 (July 14, 1999).

[32] It is the policy of the Board that if a party attaches Board Agent affidavits or non-Board witness statements to Objections and/or Requests for Review of Representation Cases that those documents are public documents and are to be disclosed as submitted.

[33] See footnote 20, supra.

[34] See footnote 20, supra.

[35] See footnote 32.

[36] See footnote 20, supra.

[37] A signed withdrawal form should be disclosed in full unless it contains additional statements made by the charging party. The additional statements may need to be redacted for privacy reasons under Exemptions 6, 7(C), and 7(D).