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DIRECTIVES TRANSMITTAL Number 150.001
EEOC
09/19/2008

SUBJECT: DISCLOSURE OF INFORMATIONUNDER THE FREEDOM OF INFORMATION ACT

PURPOSE: This transmittal revises EEOC Order 150.001,which prescribes procedures for disclosing Commission documents pursuant to the Freedom of Information Act (FOIA), as amended, 5 U.S.C. § 552, and Subpart A of 29 C.F.R. Part 1610. The revisions reflect the Commission's current organizational structure and incorporate updates in FOIA policy and law.

EFFECTIVE DATE: September 19, 2008

DISTRIBUTION: W

OBSOLETE DATA AND FILING INSTRUCTIONS: EEOC Order 150.001, Disclosure of Information under the Freedom of Information Act, dated January 23, 1998, as amended, is obsolete and should be removed from the directives reference files and destroyed.

                                            /s/
                                       Reed L. Russell
                                       Legal Counsel



GENERAL MANAGEMENT
External Relations

1. SUBJECT. DISCLOSURE OF INFORMATIONUNDER THE FREEDOM OF INFORMATION ACT.

2. PURPOSE. This transmittal revises EEOC Order 150.001, which prescribes procedures for disclosing Commission documents pursuant to the Freedom of Information Act (FOIA), as amended, 5 U.S.C. § 552, and Subpart A of29 C.F.R. Part 1610. The revisions reflect the Commission's current organizational structure and incorporate updates in FOIA policy and law.

3. EFFECTIVE DATE. September 19, 2008

4. ORIGINATOR FOIA Programs, Office of Legal Counsel.

5. BACKGROUND. Upon receipt of a request for reasonably described records made in accordance with published agency rules, the FOIA requires each federal agency to determine whether to disclose the records to the requester within 20 working days.(1) The FOIA does not require an agency to provide copies of records that are published and offered for sale. Additionally, section 552(b) exempts specified classes of records from the public access requirements. Official records of the Equal Employment Opportunity Commission (EEOC) disclosed pursuant to the FOIA shall be furnished only in accordance with the FOIA, 5 US.C. § 552, FOIA Updates issued by the Office of Legal Counsel, Commission regulations at 29 C.F.R. Part 1610 and this Order. Arbitrary or capricious withholding of requested information by Commission officers or employees may constitute the basis for discipline. See 5 U.S.C. § 552(a)(4)(F). Accordingly, no request made under the FOIA should be denied by any officer or employee except in a decision issued by the following authorized officials: the Legal Counsel; the Assistant Legal Counsel, FOIA Programs; a Regional Attorney, or their designees, including a District Director or other enforcement staff, as referenced herein.

DISTRIBUTION: W

To the extent not prohibited by other laws, the EEOC will disclose records whenever an authorized official or designee, including a District Director or other enforcement staff, determines that disclosure is in the public interest notwithstanding authorization under the FOIA to withhold such information.

NOTE: Officers and employees of the Commission may continue to furnish to the public, informally and without compliance with the procedures contained in this Order, information and records that have been furnished customarily in the regular performance of their duties (e.g., items listed on the EEOC Publications List), except in cases where an entity submits a written request that specifically refers to the FOIA as a means of disclosure. This includes copies of the Commission's federal sector decisions. All requests and appeals under the FOIA are to be controlled by the Office of Legal Counsel.

6. OPEN GOVERNMENT ACT OF 2007. President Bush signed the Openness Promotes Effectiveness in our National Government Act of2007 (or The OPEN Government Act), on December 31, 2007. The Act made several amendments to the FOIA, including expanding the provisions of Executive Order 13392: Improving Agency Disclosure of Information (E.O. 13392, Dec. 14, 2005). Specifically, the Act:

  • required agencies to designate a Chief FOIA Officer who further designates one or more FOIA Public Liaisons;
  • required agencies to establish one or more FOIA Requester Centers to serve as the first place that a FOIA requester can contact to seek information concerning the status of their FOIA request and appropriate information about FOIA responses issued by the EEOC;
  • expanded the definition of news media;
  • established tolling of time limits for agencies to act upon FOIA requests;
  • provided for increased recovery of attorneys' fees and litigation costs by FOIA requestors if information is i~proper1y withheld by the government;
  • required agencies to provide tracking numbers for FOIA requests and status information for FOIA requesters;
  • required agencies to prepare additional reports concerning FOIA administration and new reports concerning agencies' FOIA programs from the Government Accountability Office (GAO), the Department of Justice (DOJ), the Office of the Special Counsel (OSC), and the Office of Personnel Management (OPM); and
  • established an Office of Government Information Services (OGIS) to review FOIA policies and procedures, conduct audits, and offer mediation services.

7. RESPONSIBILITIES

a. The Chairperson will

(1) appoint a senior official to serve as the ChiefFOIA Officer.

b. The Chief FOIA Officer or designee will:

(1) appoint one or more supervisory officials to serve as FOIA Public Liaisons;

(2) establish and appropriately staff at least one FOIA Requester Center;

(3) prepare and submit all required plans and reports under the OPEN Government Act of 2007 to the Attorney General, the OMB Director and/or the President's Management Council as appropriate; and

(4) provide to the Director, Library and Information Services Division, all reports that are required to be published on the EEOC's public website by The OPEN Government Act of 2007.

c. The Legal Counsel or designee will:

(1) establish controls and agency procedures for handling FOIA requests and appeals;

(2) have published in the Federal Register all information approved by the Commission that is required to be published by the FOIA; and

(3) provide training or trainin~ materials to Commission employees as appropriate.

d. The Assistant Legal Counsel. Advice and External Litigation Division, or designee will:

(1) within 20 working days of their receipt, render decisions on appeals from requesters whose requests for information were denied by the Assistant Legal Counsel, FOIA Programs, or designee and include notice to the appellants of the right to file a civil action in the U.S. District Court for the district in which the appellant resides or has his principal place of business, in the district where the records are located, or in the District of Columbia.

e. The Assistant Legal Counsel. FOIA Programs, or designee will:

(1) within 20 working days of their receipt, render decisions on appeals from requesters whose requests for information were denied by a Regional Attorney or designee, including a District Director or other enforcement staff, and include notice to the appellants of the right to file a civil action in the U.S. District Court for the district in which the appellant resides or has his principal place of business, in the District where the records are located, or in the District of Columbia;

(2) grant or deny FOIA requests, except on those matters for which authority is. delegated to the Regional Attorneys or designee, and inform individuals whose requests are denied of their appeal rights under 29 C.F.R. § 1610.11;

(3) inform individuals whose requests are neither granted nor denied, due to a negative search result and/or the request not being reasonably described, of their appeal rights under 29 C.F.R. § 1610.11;

(4) provide advice to Regional Attorneys or designees on the FOIA and 29 C.F.R. Part 1610;

(5) prepare an annual FOIA report, to be submitted to the Department of Justice in accordance with 5 U.S.C. § 552(e)(1);

(6) determine what materials will be made available for public inspection and copying; and

(7) determine when, where, and for what fee requested records will be disclosed, and forward collected fees to the National Business of the Department of Interior or designee.

f. The FOIA Public Liaison will:

(1) establish controls and procedures for the FOIA Requester Center;

(2) provide training or training materials to FOIA Requester Center staff as appropriate; and

(3) provide to the Director, Library and Information Services Division, all information concerning the FOIA Requester Center that is required to be published on the EEOC's public website.

g. Office Directors, both Headquarters and Field, will:

(1) promptly provide requested information or assistance to the Legal Counsel, Office of Legal Counsel staff, or Regional Attorney or designee; and

(2) familiarize their employees with the requirements of the FOIA and this Order.

h. Headquarters Office Directors additionally will:

(1) ensure that any FOIA requests received by their offices will be hand delivered to the Assistant Legal Counsel, FOIA Programs, before close of business on the day the request is received unless other arrangements are made;

(2) provide to the Director, Library arid Information Services Division, and to each District, Field, Area and Local Office one copy of each notice, proposed rule or final regulation published by the Commission in the Federal Register;

(3) provide to the Director, Library and Information Services Division, and to each District, Field, Area and Local Office copies of other materials that the Legal Counselor designee determined should be publicly available for inspection and copying in public reading rooms under the FOIA; and

(4) provide to the Director, Library and Information Services Division, an electronic copy of records listed in subsections (2) and (3) above if the record was created on or after November 1, 1996.

i. District Office Directors additionally will:

(1) maintain a public reading area in which the materials listed in Appendix A are available for public inspection and copying;

(2) ensure immediate delivery to the Regional Attorney or designee of all FOIA requests received;

(3) advise all staff within the district to comply with instructions issued by the Regional Attorney or designee pertaining to FOIA requests; and

(4) assure that any employee delegated responsibility for FOIA will receive adequate training to perform those responsibilities.

j. Field, Area and Local Office Directors additionally will:

(1) maintain the materials listed in Appendix A for public inspection and copying; and

(2) ensure immediate delivery to the Regional Attorney or designee of all FOIA requests received.

k. Regional Attorneys or designee, including a District Director or other enforcement staff, will:

(1) review all FOIA requests;

(2) inform oral requesters of29 C.F.R. § 1610.5,which requires that FOIA requests be in writing (by hand, typewritten, fax or e-mail);

(3) instruct Field, Area and Local Office Directors to fill requests for any information that is listed in Appendix A;

(4) determine whether to grant FOIA requests involving information listed at 29 C.F.R. § 1610.7(a);

(5) inform individuals whose requests are denied of appeal rights under 29 C.F.R. § 1610.11; (6) inform individuals whose requests are neither granted nor denied, due to a negative search result and/or the request not being reasonably described, of their appeal rights under 29 C.F.R. § 1610.11;

(7) contact the Assistant Legal Counsel, FOIA Programs, when advice is needed in responding to a FOIA request;

(8) forward to the Assistant Legal Counsel, FOIA Programs, all requests for which the Regional Attorney has not been delegated responsibility;

(9) collect and forward assessed fees, in accordance with 29 C.F.R. Parts 1610.15 and 1610.16,to the Chief Financial Officer or designee;

(10) refuse to accept FOIA appeals and advise submitters of the appeal procedures under 29 C.F.R. § 1610.11;

(11) maintain indexes of FOIA requests as directed by the Legal Counselor designee; and

(12) provide an annual report to the Assistant Legal Counsel, FOIA Programs, after the close of each fiscal year.

l. The Executive Secretariat will:

(1) maintain a record of all final votes cast by the Commissioners for possible disclosure under the FOIA; and

(2) provide the Director, Library and Information Services Division, with copies of comments received on proposed rules.

m. The Director, Planning and Systems Services Division, Office of the ChiefFinancial Officer, will provide the Director, Library and Information Services Division, with a copy of the annual EEOC budget submission to Congress.

n. The Director, Library and Information Services Division, Office of Research, Information and Planning, will:

(1) maintain for public access and copying the materials listed in Appendix A, and any additional materials designated as necessary by the Legal Counsel or designee;

(2) assess and collect fees for-such materials as prescribed in 29 C.F.R. 1610.15, and forward the payments to the Chief Financial Officer or designee; and

(3) maintain a FOIA section on the Commission's external web site containing materials listed in Appendix A and any additional materials designated as necessary by the Legal Counsel where such records were created on or after November 1, 1996.

o. The Chief Financial Officer. Office of the Chief Financial Officer or designee, the Department of Interior, National Business Center, Products & Services, will maintain records of all payments for services rendered pursuant to the FOIA, and will provide, upon request, an annual report to the Assistant Legal Counsel, FOIA Programs, after the close of each fiscal year.

p. All employees are responsible for knowing and observing the requirements of the FOIA, Subpart A of29 C.F.R. Part 1610, and this Order.

8. PROCEDURES FOR DISCLOSING INFORMATION.

a. District Offices. The Regional Attorney (all references to Regional Attorney herein include designee, including a District Director or other enforcement staff), will determine whether to grant or deny the disclosure of requested information within 20 working days of receipt of the request. If granted, the Regional Attorney will designate the anticipated date of disclosure, whether via mailing of copies or inspection. Inspection opportunities, when granted, should be restricted to a reasonable, specified, period of time. The Regional Attorney will ensure that all disclosure determinations are carried out. He or she shall grant disclosure requests for materials listed at 29 C.F.R. §,1610.7(a).

The Regional Attorneys will issue determinations on FOIA requests for records located in their respective District, Field, Area, and/or Local offices in accordance with the FOIA, 5 U.S.C. § 552, FOIA Updates issued by the Office of Legal Counsel, Commission regulations at 29 C.F.R. Part 1610 and this Order. Under no circumstances should the existence of a particular Title VII or Americans with Disabilities Act charge be disclosed to a member of the public. In addition, the identity of an individual who file a confidential complaint pursuant to the Equal Pay Act or the Age Discrimination in Employment Act should not be disclosed.

Upon receipt of a FOIA request that raises novel issues or has an impact beyond the receiving office, the Regional Attorney should contact the Assistant Legal Counsel, FOIA Programs. The Regional Attorney will adhere to 29 C.F.R. Part 1610, implement all FOIA appeal determinations and be guided by those determinations in responding to future requests. Whenever documents are being withheld and/or neither granted .or denied because they are not reasonably described or because of a negative search, the Regional Attorney must state in the response that appeals are governed by 29 C.F.R. § 1610.11; that they must be addressed to the Legal Counsel; and must provide the current mailing address of the EEOC Office of Legal Counsel. The Regional Attorney should not accept FOIA appeals. If the Regional Attorney forwards an entire request to Headquarters, another District Office, or another government agency for response, the requester shall be informed of this action and told that the request will not be deemed received until actually received by the appropriate office or agency. A determination should not be issued on the request.

To ensure expeditious handling of FOIA requests, the Regional Attorney should instruct all clerical and professional employees about the importance of the FOIA. Employees shall also be informed of the possible penalties for not complying with the FOIA and this Order. Under 5 U.S.C. § 552(a)(4)(F), prior to any action against an individual agency employee for improper withholding of documents, a court must have: (1) ordered the production of improperly withheld documents, (2) assessed attorney's fees and other litigation costs against the Government, and (3) issued a written finding that agency personnel may have acted arbitrarily and capriciously with respect to the withholding. Employees should also be aware that the unauthorized disclosure of documents protected by the confidentiality provisions contained in sections 706(b) and 709(e) of Title VII, 42 US.C. §§ 2000e-5(b) and 2000e-8(e) and Section 107 of the ADA, 42 U.S.C. § 12117(a), may constitute the basis for discipline.

b. Field, Area, and Local Offices. Upon receipt of a FOIA request, the Director shall immediately notify the Regional Attorney. The Regional Attorney's instructions, including requests for charge file information, shall be fully complied with and expeditiously implemented. To ensure the requisite promptness of response, the Director shall instruct all employees as to the importance of the FOIA, and of potential penalties for not complying with the FOIA and this Order.

c. Headquarters Library. Materials maintained at the Library, see Appendix A, shall be made available to the public for inspection and copying upon request. Such requests that are made in writing require a response within 20 working days of receipt. Requests for information not maintained by the Library shall be hand delivered, on the day of receipt, to FOIA Programs, Office of Legal Counsel.

d. Headquarters Offices. The Office of Legal Counsel is responsible for processing all FOIA requests received at Headquarters. If a Headquarters office receives a request for information that cites the FOIA, it should be hand-delivered, on the day of receipt, to FOIA Programs, Office of Legal Counsel, unless other arrangements are made. The time period for responding to such requests will start to run upon receipt in the Office of Legal Counsel. The Office of Legal Counsel will process and issue determinations on requests in accordance with the FOIA, FOIA Updates issued by the Office of Legal Counsel, Commission regulations at 29 C.F.R. Part 1610, and this Order.

9. TIME LOG, FEE COLLECTIONAND WAIVER. All Commission officers or employees required to respond to a FOIA request will record the time allocated to locating and/or compiling information and any other time expended in the processing of FOIA requests.

All Commission officers and employees: or designees as indicated herein, with authority to issue determinations on FOIA requests, including requests for access to reading room materials, shall assess fees according to the published rates. See 29 C.F.R. § 1610.15. Indirect expenses such as standard mailing costs, office overhead, etc., shall not be considered when assessing the fee. Fees for searches that produce only non-disclosab1e documents or no documents at all shall be assessed in accordance with 29 C.F.R. §§ 1610.15 and 1610.16(b). Assessable fees may be waived pursuant to section 1610.14 if waiver is in the public interest because disclosure will enhance the public understanding of the Agency and its functions, and is not primarily in the commercial interest of the requester Typically, fees should not be assessed where the cost of collecting and processing the chargeable fee equa!s or exceeds the amount of the fee. Collection of fees should be in the form of checks or money orders, made payable to the Treasurer of the United States, and forwarded to the Karen Knoll, Department of the Interior, National Business Center, Products & Services, Mail Stop D-2735, EEOC Processing, 7301 West Mansfield Avenue, Denver, CO 80235-2230.

10. LIST OF APPENDICES.

APPENDIX
TITLE
A
Data To Be Maintained By Designated Commission Offices For Public Access

11. OBSOLETE DATA. EEOC Order 150.001, Disclosure of information under the Freedom of information Act, dated January 23, 1998, is obsolete and shall be removed from directives reference files and destroyed.

_________________
Reed L. Russell
Legal Counsel



APPENDIX A

DATA TO BE MAINTAINED BY DESIGNATED COMMISSION OFFICES FOR PUBLIC ACCESS

The Headquarters reading room is located in the EEOC Headquarters building, and is open to the public by appointment. Reading areas are also located in the respective District Offices. Field, Area and Local Offices shall maintain the information listed below, but are not required to provide a designated reading area if space availability is limited. Any materials listed below that were created on or after November 1, 1996must also be made available via the internet at the Commission's World Wide Web site at http://www.eeoc.gov.

1. District Field. Area and Local Offices shall maintain the following materials

  1. Blank EEOC forms relating to the Commission's procedures as they affect the public;
  2. EEOC's annual reports to Congress, to be distributed by the Office of Communications and Legislative Affairs;
  3. Compliance Manual and Index;
  4. Federal Register entries published by the Commission;
  5. EEOC Orders, including Directives, Supplements, and Notices; and
  6. An equal employment decisions loose leaf service and bound volumes.
  7. The Commission's notices and regulatory amendments which are not yet or have never been published in the C.F.R.

2. Headquarters Library. In addition to the materials listed above, the Headquarters Library shall maintain the following:

  1. Commission budgets submitted to Congress;
  2. Commercially published indexes to the Compliance Manual and the Commission Precedent Decisions; and
  3. Other materials that the Legal Counselor designee determines should be publicly available for inspection and copying in the public reading room under the FOIA.

FOOTNOTES

1. After October 2, 1997, the' time limit for responding to a FOIA request increased from 10 to 20 working days as provided by the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048.