MSHA FOIA Frequently Asked Questions
The Office of Standards, Regulations and Variances (OSRV) provides guidance to ensure compliance with FOIA, particularly to increase the quality and timeliness of FOIA responses; reduce the backlog of pending FOIA requests; and review the effectiveness of each Program Area’s FOIA processes.
The FOIA specifies two requirements for a request:
- the request must "reasonably describe" the records sought, and
- the request must be made in accordance with DOL’s published FOIA regulations (see https://arlweb.msha.gov/readroom/2006004885.pdf )
No. The regulations specify that a person is not required to title a request for government records a "FOIA request." MSHA should use sound administrative discretion when determining the nature of the request. For example, a first-party access request that cites only the Privacy Act of 1974 should be processed under both that statute and under the FOIA.
No. FOIA requests can be made for any reason whatsoever. Because the purpose for which records are sought has no bearing upon the merits of the request, FOIA requestors do not have to explain or justify their requests.
The requester's reason for making a FOIA request may, however, be considered in the context of certain procedural decisions made during the course of processing a request; this is the case, for example, when the agency is deciding whether to grant expedited processing, or to waive fees, or when a court is deciding whether to award attorney fees and costs to a successful FOIA plaintiff.
If you receive a FOIA request by mail or fax, you should give it to the designated FOIA Coordinator for your program area. That person will log it in and assign it to the appropriate person for response. You should contact the National FOIA Office at (202) 693-9466 to identify the appropriate FOIA Coordinator or visit https://arlweb.msha.gov/readroom/FOIADisclosureOfficers.pdf for assistance
All records are “FOIAable”; however, not all records can be released under the FOIA. Congress established certain categories of information that are not required to be released in response to a FOIA request because release would be harmful to an agency or private interest. Therefore, some or parts of records can be withheld if protected by an exemption. Even if an exemption applies, agencies may use their discretion to release information when there is no foreseeable harm in doing so and disclosure is not otherwise prohibited by law.
Discretionary disclosure is the disclosure of information that could properly be withheld under FOIA, but that DOL determines can be released because disclosure will not result in foreseeable harm to an interest protected under FOIA.
There are nine exemptions listed in the Freedom of Information Act which protect: (1) classified information; (2) internal personnel rules and practices of an agency; (3) records protected from release by other statutes; (4) trade secrets and commercial or financial information that is privileged or confidential; (5) inter- or intra-agency memoranda which would not be available by law to a party in litigation with the agency; (6) personal privacy of individuals; (7) investigatory records compiled for law enforcement purposes; (8) bank examining data used by those supervising financial institutions; and (9) geological or geophysical information on maps concerning wells.
Yes. All FOIA responses must be signed by a Disclosure Officer (an official of the Department of Labor who has authority to disclose records under FOIA).
Yes, you should always keep track of your time. Tracking will assist in determining fees charged in excess of $15.
If the cost to process the FOIA request is over $15, you must charge a fee unless a fee waiver is granted. The specific fee depends on the type of requester. There are three main types of fees that may be charged:
(a) Search Fees (to seek, manually or by automated means, Department records for the purpose of locating records in response to a request):
- $5 per quarter hour for clerical employee search
- $10 per quarter hour for professional or supervisory personnel search
(b) Review Fees (the process of examining records, including audio- visual, electronic mail, etc., located in response to a request to determine whether any portion of the located record is exempt from disclosure and accordingly may be withheld):
- $5 per quarter hour when performed by a clerical employee
- $10 per quarter hour when performed by professional or supervisory personnel.
- Not to include time spent resolving general legal or policy issues
(c) Duplication Fees (the process of making a copy of a record necessary to respond to a request. Such copy can take the form of paper, microform, audio-visual materials or electronic records (e.g., magnetic tape or disk):
- $0.15 per page
Actual cost for special format other than paper copy (e.g., tape or disk) and for other related services
The specific fee is determined by the type of requestor. FOIA established three categories that agencies use to determine if fees will be charged:
- Commercial requesters may be charged fees for searching for records, reviewing the records, and photocopying them;
- News media, educational or noncommercial scientific institutions are charged for photocopying, after the first 100 pages;
- All other requesters (requesters who do not fall within either of the preceding two categories) are charged for photocopying after 100 pages and for time spent searching for records in excess of two hours.
Yes, if the requestors have not specified in their request a maximum amount they are willing to pay and if you believe the request will result in a fee of $25 or more. In that case, you should contact the requestors prior to gathering the material for the request and obtain a commitment in writing from them to pay the estimated cost.
- Yes, where a Disclosure Officer estimates that fees to be charged will be more than $250.00, the Disclosure Officer can require the requester to make an advance payment of an amount up to the entire anticipated fee before beginning to process the request.
- The Disclosure Officer may waive the advance payment where the Disclosure Officer receives a satisfactory assurance of full payment from a requester who has a history of prompt payment of an amount similar to the one anticipated by the request.
To pay by credit card, requester should contact MSHA Finance Office, at 303-231-5872.
Check or money orders should be payable to the Department of Labor – MSHA and mail to:
Mine Safety and Health Administration
Post Office Box 25367, DFC
Denver, CO 80225-0367
Contact the requestor (a phone call is acceptable) to seek clarification. Once clarification has been achieved, always obtain the clarification in writing (an email is acceptable) and make it part of the file.
Once a FOIA request is received, MSHA has 20 working days in which to make a determination on the request. In "unusual circumstances," an agency can extend the twenty-day time limit for processing a FOIA request if it tells the requester in writing why it needs the extension and when it will make a determination on the request. The FOIA defines "unusual circumstances" as (1) the need to search for and collect records from separate offices; (2) the need to search for, collect, and examine a voluminous amount of records "demanded in a single request"; and (3) the need to consult with another agency or two or more agency components.
MSHA can provide for the expedited processing of a FOIA request if the requester can show "compelling need" in one of two ways: 1) by establishing that the failure to obtain the records quickly "could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;" or, 2) if the requester is a "person primarily engaged in disseminating information," by demonstrating that an "urgency to inform the public concerning actual or alleged Federal Government activity" exists. MSHA must determine whether to grant expedited processing within 10 calendar days of receipt of the request by the proper FOIA office.
Promptly send an acknowledgement letter to the requester citing one or more of the unusual circumstances. Provide the requester a realistic estimated completion date and allow an opportunity to modify the request, or to arrange for an alternative timeframe for completion.
You should give copies of "sensitive" FOIA requests to OSRV when you receive them. Examples include requests from major institutional stakeholders or requests seeking information on subjects of national significance, as well as media requests.
Responses must be reviewed by OSRV and MSHA’s Solicitor’s Division prior to release.
FOIA procedures apply to everyone who handles FOIA requests in MSHA. You must always keep a hard copy of the original FOIA request and any amendments to that request. Additionally, you should maintain the following information in your FOIA file:
- Copies of all documents that are withheld in full;
- Sanitized and unsanitized copies of documents that are being withheld in part; and
- Copies of documents that are being released in full.
All appeals are handled by the Department of Labor's Solicitor's Office, Division of Legislative and Legal Counsel, and should be addressed directly to that office. The Solicitor's Office will notify you as to what information it will need to respond to an appeal.
MSHA’s FOIA page at https://arlweb.msha.gov/readroom/readroom.htm which includes links to DOJ and DOL external FOIA websites.