Number: 

DAO 205-14

SECTION 1. PURPOSE.

This order prescribes detailed instructions for the internal handling and processing of Freedom of Information Act requests received pursuant to DAO 205-12 and 15 CFR Part 4. (For convenience, the latter are attached hereto as they appeared in the Federal Register.)

This revision reflects the delegation of authority to the Assistant General Counsel for Administration to decide Freedom of Information Act appeals, except for appeals for records which were initially denied by the Assistant General Counsel for Administration, which will be decided by the General Counsel.

SECTION 2. AUTHORITY.

This order is issued pursuant to the provisions of subparagraph 5.03e., of DAO 205-12.

SECTION 3. SCOPE AND APPLICABILITY.

This order applies to all officers, employees, and organizational components (including operating units and staff offices) of the Department, and to the processing of FOIA requests received anywhere in the Department.

SECTION 4. REFERENCES.

For use in connection with these instructions, the following materials are attached hereto. Processing cannot be effected without a good working knowledge of the Rules.

Atch. 1 - The Act, as amended.

Atch. 2 - The Rules, i.e., Part 4, Title 15, of the Code of Federal Regulations, with
- an appended copy of DAO 205-12;
- an appended listing of the Department's FOIA facilities; and
- an appended listing of Commerce officials authorized to make initial denials of requests for records.
Atch. 3 - An exhibit copy of Form CD 244, "FOIA Request and Action Record."

SECTION 5. "FOIA REQUEST" DEFINED.

.01 Included. For the purposes of this order, a FOIA request is:

a. Any request by a member of the public (including media representatives) or non-Federal institution to inspect or copy any of the types of materials or indexes explained in paragraph 5.02, of DAO 205-12. These are frequently referred to as "(a) (2) requests" or sometimes as "(a) (5) requests" --- terms which derive from the respective sections of the Act.

b. Any written request for copies of records under the Act which is received from a member of the public (including media representatives) or non-Federal institution. These are referred to as "(a) (3) requests." Section 4.5 of the Rules applies, and paragraph 5.03 of DAO 205-12 pertains.

.02 Excluded.

a. Information requests received by telephone are not deemed to be FOIA requests but, as appropriate, the requester should be courteously referred to an appropriate FOIA facility for assistance.

b. Requests for records or information customarily made available to the public through the Federal Register or as part of the Department's regular information dissemination activities are not considered to be FOIA requests. When a request for records of this type is received, the material should be promptly furnished or the requester informed where it can be obtained (4.6(a) (1)).

c. Requests for records or information that are normally provided by the Department under laws other than the Act (e.g., user charge statutes, per DAO 203-5) are not considered to be FOIA requests. Requests of this type should be promptly referred to the appropriate office charged with compliance with the particular law, and the requester should be promptly notified how the request is being handled (4.6(a) (1)).

SECTION 6. PRIORITY FACTORS.

Every FOIA request shall be processed and handled on a priority basis at all times. Written requests should be transmitted from point to point within the Department by "hand carry" or by automatic facsimile equipment, whenever practical.

.01 Initial Receipt and Action Factor.

a. According to subject matter and type ("(a) (2)" or "(a) (3)," for example) every FOIA request received in any office, mail room, or other activity of the Department shall be immediately referred or delivered to the receiving activity's FOIA facility for processing, i.e., control and action assignment, or transfer. If the appropriate facility cannot be readily determined, the person receiving the request shall contact the nearest FOIA facility or the Assistant General Counsel for Administration for guidance.

b. If a FOIA written request is not properly identified as such, the receiving office, mail room, or other activity shall clearly and prominently mark it "Freedom of Information Request" before delivering it to a FOIA facility. (See 4.5(b) of the Rules.)

.02 "Officially Received" Time Factor.

Since the act contains specific limitations on the length of time the Department can use in responding to the FOIA request for records, the date a request is officially received is a critical factor. Accordingly, an (a) (3) request is deemed to be officially received only when it reaches the appropriate FOIA facility, as explained in 4.5(b) of the Rules.

SECTION 7. CONTROLLING AND ACTING ON AN (a) (3) REQUEST.

.01 General.

a. Control. Each (a) (3) request shall be controlled by a FOIA facility of the Department, shall be acted on by the facility or by an office or activity (the "Action Office") to which it is assigned by the facility, and shall be accounted for on a Form CD 244.* This section prescribes relevant procedures and the responsibilities of those involved, and provides sequential instructions for filling out the Form.

b. Form CD 244. In addition to facilitating control over a request, this Form is designed to provide an historical record for purposes of reference, public inspection, and statutory annual reporting. (This statutory reporting requirement will be dealt with in a separate issuance.) The Form is interleaved in 3 copies: White, Yellow, and Pink; it is stocked by the Department Forms store; and each FOIA facility should keep a supply on hand.

c. Applicable Rules. The Rules (at Attachment 2, hereto) shall apply throughout in the handling of all requests. In this order, the pertinent rule is referenced (sometimes parenthetically) by its section or subsection number, e.g., "4.6" or "(4.6(b) (2))," and it should be referred to if a question or problem arise. If the Rules do not resolve the matter, the Assistant General Counsel for Administration should be contacted.

.02 Accountability and Initial Processing of an (a) (3) Request.

The official receipt and initial processing of an (a) (3) request is the responsibility of the appropriate FOIA facility, and shall be recorded on Part I of the Form, as explained in subparagraphs a. through j. of this paragraph.

a. Item 1 - DOC/FOIA Facility. Attachment 2 hereto pertains. The Department's central facility shall use its abbreviation, CRRIF. Other facilities shall use the abbreviation of their operating unit (DIBA, SESA, etc.), plus further standard identification in the case of a facility in the field.

b. Item 2 - Request Number. Use the calendar year plus sequential numbering: 75-1, 75-2, 75-3, etc. (This number plus the Item 1 entry should provide a unique identification for every (a) (3) request received in the Department.)

c. Item 3 - Name, address, etc. The requester's name and address is obviously necessary. The requester's phone number is optional with the requester, but its inclusion could help the Department provide faster service if a question arises concerning the request.

d. Item 4 - Description of records requested. Be explicit, but brief; 4.5(c) of the Rules applies.

e. Item 5 - Facility data is self-explanatory.

f. Item 6 - Request returned or requester contacted. If the facility's review finds the request so defective as to be obviously incapable of processing, this item should be checked and a brief statement of the defect and the facility's action shall be recorded on the reverse side of the White Copy. The applicable subsection of the Rules should be cited. Examples of when this item would be checked are:

1. The request was so broad that the facility knew the Department could not respond. In this situation the facility would contact the requester and help him refine his request (4.6(a) (5)); and

2. The request was obviously for records of another executive agency. In this situation the facility would refer the request to that agency and promptly notify the requester of this referral

(4.6(a) (4)).

g. Item 7 - Request fulfilled by facility. The facility shall complete this item if it grants a request directly and does not assign it to another activity. (For example, when the request is for a copy of a releasable record which is on hand at the facility and which can be readily reproduced.) If item 7 is used, the facility should also complete such Part II items as may be appropriate.

h. Item 8 - Action Assignment. As a matter of policy, action on any given request should be assigned to the head, by title, of the lowest possible organizational level known to have control of the records requested and authority to make them available to the requester, i.e., a disclosure decision. In application, operating unit FOIA facilities shall assign action in accordance with the operating unit's FOIA instructions; at Department level, the CRRIF shall assign action to the director of the appropriate staff office. Any doubts or questions as to the appropriate Action Office should first be resolved over the phone by facility personnel in order to avoid the loss of critical time which an erroneous assignment could incur. (Note: Action should never be assigned to an individual by name, but a facility having certain knowledge that requests for records on a given topic are always reassigned by the Action Office head to a specific individual, may -- if operating unit instructions permit -- send an information copy of the request to the individual concurrent with transmittal of the official copy to the Action Office head.)

I. Item 9 - Due date. By law, this can be no later than the tenth working day from the date the appropriate facility receives the request.

j. Item 10 - Comments or instructions. This may be used in any manner the facility desires and operating unit instructions permit. For example, a facility could use this block to advise the Action Office that the requester is delinquent in payment of previously due FOIA fees, 4.9(c), or to advise that the request is for records in two or more operating units or Departmental staff offices and that Section 8 of this order applies.

.03 Transmittal for Action.

After completing the first part of the Form, the facility shall:

a. Detach the Pink Copy and place it in a 9-day tickles file (which shall be maintained in every facility) together with a copy of the original request; and,

b. Attach the original request to the White and Yellow copies and effect prompt delivery to the Action Office.

c. At the same time as the request is sent to the action office, a copy of the request and action assignment shall be delivered to the operating unit Public Affairs Officer.

.04 Acting on and Responding to an (a) (3) Request.

Acting on a request is the process of reaching an "initial determination" to grant or deny (wholly or partially) the request. Section 4.6 of the Rules and paragraphs 5.03 and 5.04 of DAO 205-12 apply; and the Action Office shall complete the second part of the Form as explained in subparagraphs a. through g. of this paragraph.

a. Item 11 - Action Office data is self-explanatory.

b. Item 12 - Fee Provisions. See 4.9 of the Rules.

1. Make an estimate of the Collectible Costs and enter it in pencil in the first column of Item 15; then complete lines a. and b. of Item 12.

2. Under certain circumstances as explained in 4.9(b), fees may be waived or reduced. If the provisions of 4.9(b) pertain, line c. of Item 12 shall be checked and a proper explanation attached to the Form.

3. The last two lines of Item 12, d. and e., need posting only when 4.9(c) (6) is applied.

c. Item 13 - Tolling of Time Provisions. At this point, the entries on lines a. and b. of Item 12 and the estimate total in Item 15 shall be compared, and the requirements of 4.9(c) (1) through (3) applied to the comparison. If any of the requirements are found to pertain, the provisions of 4.9(c) (4) and (5) shall be applied; the appropriate Item 13 entry shall be checked; and the time limitations of the FOIA shall be tolled (i.e., suspended) as 4.9(c) (5) provides. (Note: Any action to toll the time under the FOIA could become a legal issue. Whenever Item 13 is used, therefore, the Action Office shall immediately advise the requester (4.9(c) (4)); keep a complete and accurate record or log of its actions; and keep the FOIA Facility concurrently informed.)

d. Item 14 - Initial Determination. This decision on whether or not to grant the request is the important part of the Action Office's responsibility under the Act. Section 4.6 of the Rules apply; and paragraphs 5.03 and 5.04 of DAO 205-12 pertain. There are three steps: evaluation, implementation, and summarization, as explained below.

1. Evaluation. Careful evaluation of a request involves a number of factors which are explained in detail in the Rules. These factors and the pertinent parts of Section 4.6 of the Rules are as follows:

--valid FOIA request? (a) (1);

--reasonably described and locatable records? (a) (2);
--records exist under Action Office control? (a) (3);
--records are in or controlled by another Commerce unit (a) (3) or Federal agency? (a) (4);
--request for a broad group or category of records? (a) (5); (Also see Section 8 of this order.);
--availability of records determinable within 10 days? (b);
--"unusual circumstances" prevail? (b) (2). If so, note the special actions required and keep FOIA facility fully informed.

Special Note: If an Action Office has reason to believe that other organizations within the Department have records that are covered within the request it is processing, it shall immediately bring the matter to the attention of its FOIA facility for coordinated actions, and for possible application of Section 8 of this order.

2. Implementation. After the requested records have been located and reviewed as necessary, the responsible official shall decide either to grant the request in its entirety or to recommend a partial or total denial of the request. If the request is granted, 4.6(b) (4) applies. If a denial is recommended, rule 4.6(b) (5) and paragraph 5.04 of DAO 205-12 apply.

3. Summarization. All elements of the evaluation and implementation shall be summarized in Item 14, of the Form. As a minimum, this summary shall:

--state what decision was reached;

--give the date and means by which the requester was informed of this initial determination, as well as the date, means, purpose, and response to any other contact with the requester;

--describe and explain any "unusual circumstances," delays, or time extensions 4.6(b) (2));
--show the amount of search fees and copying fees collected;
- include the name, position, and phone number of all Commerce officers or employees who were involved or consulted including, in the case of a denial, the name of the attorney in the Office of the General Counsel who cleared the denial;
--when a request is granted, give the approximate date when the records will be sent to the requester;
--when a request is denied, in whole or in part, include a copy (by attachment) of the reply sent to the requester (4.6(b) (5)); and
--such other information as deemed appropriate.

e. Item 15 - Collectible Costs. This is self-explanatory. The Uniform Fee Schedule (4.9) applies.

f. Item 16 - Non-collectible costs. If a request involved services for which no fees can be charged, explain the services and estimate the costs and the time of each Department employee involved. Such services include, but are not limited to: (1) man-hours spend in examining requested records to determine whether they are exempt from mandatory disclosure (Section 552(b) of the Act) or whether, even if exemptible, they should nevertheless be made available in whole or in part;

(2) deleting exempted matter from records so that the remaining portions may be made available;
(3) resolving legal, policy, or other issues affecting access to requested records; and (4) monitoring an inspection of records made available to a requester. Note: The cost of any fees which have been waived under the law shall also be shown and identified in Item 16. It is desirable to track these costs for budgetary reasons.

g. Item 17 - Signature and Filing. After the Form is filled out and reviewed for accuracy and completeness, it shall be signed by the head of the Action Office or his designee, the White Copy shall be returned to the facility with the original of the request and other attachments, as appropriate, and the Yellow retained by the Action Office. In addition, if the request was denied wholly or partially, the head of the Action Office shall forward one well reproduced copy of the request and denial letter to the Assistant General Counsel for Administration per 4.6(b)(6).

SECTION 8. REQUESTS INVOLVING TWO OR MORE OPERATING UNITS.

If a FOIA facility receives a request for records, ((a) (3) of the Act) which could possible encompass records in two or more units of the Department, it shall immediately transfer the request to the Department's Central Reference and Records Inspection Facility. Upon receipt of such a request (either directly or from an operating unit facility), CRRIF shall ascertain and assign lead responsibility to the predominantly interested unit, which shall coordinate and control the processing of the request for the Department.

SECTION 9. APPEALS OF INITIAL DETERMINATIONS.

The Assistant General Counsel for Administration shall receive and respond to the appeals of initially denied requests, except for appeals for records which were initially denied by the Assistant General Counsel for Administration, which shall be decided by the General Counsel. Copies of all appeals and responses shall be sent to the Department's Central Reference and Records Inspection Facility.

SECTION 10. GUIDANCE AND SPECIAL REVIEW REQUIREMENTS.

FOIA facility of Action Office questions of a legal or interpretive nature are to be directed to the Office of the Assistant General Counsel for Administration. Question of an administrative or procedural nature are to be directed to the Director, Office of Information Management. No initial denial or requests for records or appeal denials shall be made without the participation of the officials provided in paragraph 5.04 of the basic DAO 205-12.

SECTION 11. EFFECT ON OTHER ORDERS.

This Order supersedes Department Administrative Order 205-14, dated February 2, 1982.

AT THIS TIME ATTACHMENTS 1, 2, AND 3 ARE NOT ATTACHED

Signed by: Acting Assistant Secretary for Administration ________________________
*Operating units or FOIA facilities wishing to use the Form to keep a record of (a) (2) requests may do so, but only if any numbering system they might employ is separate and distinct from the system prescribed for (a) (3) requests in subparagraph .02b. of this section.