Under the Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552, any person may make a written request for records maintained by the NLRB; however, some of these records may be privileged from disclosure by the nine exemptions and three exclusions specified in the Act. The formal rules for making FOIA requests to the NLRB are set forth in the multi-volume Code of Federal Regulations at 29 C.F.R. Sec. 102.117 (link is external), which is available online from this link or in any law library. In most cases, though, this reference guide should provide you with the basic information you will need.
II. Types of Records Maintained by the NLRB
The two primary missions of the NLRB are: (1) to conduct secret-ballot elections to determine whether employees want union representation, and (2) to investigate and remedy unfair labor practices by employers and unions. Thus, the vast majority of the records maintained by the NLRB are those in specific representation or unfair labor practice case files. We also maintain statistical data with respect to our operations and periodically issue memoranda relating to our mission.
III. Access to Certain Records Without a FOIA Request
The NLRB has made certain of its records available through links to an Electronic Reading Room. If you have access to the Internet, you need not make a FOIA request for those records. They include: (1) final opinions and orders made in adjudicating recent cases; (2) final statements of policy and interpretations that have not been published in the Federal Register; and (3) other documents that the Agency determines are of general public interest and are likely to be the subject of repeated requests.
For the purposes of determining fees, FOIA requesters are divided into three categories:
- Commercial requesters, who may be charged fees for the time required to search for records and to review the records to determine whether to release them, and for photocopying;
- Educational or noncommercial scientific institutions and representatives of the news media, who are charged only for photocopying expenses after the first 100 pages; and
- Other requesters, who are charged only for searches and photocopying, with no charge for the first two hours of search time or for the first 100 pages of photocopies.
Charges for all categories of requesters are: $3.10 per quarter-hour or portion thereof of clerical time; $9.25 per quarter-hour or portion thereof of professional time; and 12¢ per page of photo duplication. In all cases, if the total amount to be charged does not exceed $5.00, the NLRB will not charge any fee.
If you are advised or expect that a fee will be charged, you may request a waiver of those fees. However, fee waivers are limited to situations in which a requester can demonstrate that the disclosure of the requested information is likely to contribute significantly to public understanding of the operations and activities of the government and is not primarily in the commercial interest of the requester. Requests for information from individuals pertaining to themselves or cases in which they are involved generally fall into the category of commercial requests.
V. Expedited Processing
Under certain conditions you may be entitled to have your request processed on an expedited basis. However you should be aware that whenever a request is expedited, this may result in additional delay for previous requesters who have been waiting for a response. Because the NLRB typically processes FOIA requests within 20 working days, we ordinarily will not process a request ahead of other previous requests unless there will be a serious threat to an individual's rights if the request is not acted on more expeditiously. The FOIA requires that requests be processed on an expedited basis if made by a person primarily engaged in disseminating information to the public and the information is urgently needed to inform the public concerning some actual or alleged government activity.
Requests for expedited processing must be accompanied by a statement setting forth the reasons why the request should be expedited. You should certify that the reasons you give are true and correct. We will notify you of our decision whether to expedite your request within 10 days after receiving your letter. If we deny your request for expedited processing, you will be advised of your right to submit an administrative appeal, which will be handled promptly.
VI. What to expect in response to your FOIA Request
Once we have processed your request and any fee issues have been resolved, we will send you a written response and will include all documents that can be disclosed to you. The response letter will advise you of whether any information is being withheld pursuant to one or more of the exemptions to the FOIA. If pages of information have been withheld in full, we will specify the number of pages being withheld or make a reasonable effort to estimate the volume of the withheld information. Finally, our written response will explain how you may file an appeal from this initial decision.
The exemptions that most often apply to requests made to the NLRB are:
- Exemptions (b)(6) and (b)(7)(C): protects information concerning other individuals that, if released, would constitute an unwarranted invasion of their personal privacy (under (b)(6)), or that could reasonably be expected to constitute an unwarranted invasion of their personal privacy (under (b)(7)(C)).
- Exemption (b)(5): protects certain inter- and intra-agency memoranda, including those setting forth internal recommendations from staff and those that contain attorney work product.
- Exemption 7: protects certain records in law-enforcement investigatory files, including records whose release would interfere with an ongoing proceeding and records that would reveal confidential sources or enable someone to avoid complying with the law.
Finally, the FOIA does not require the agency to do research for you, to analyze data, to answer written questions, or to create records to respond to a request.
VII. Appeal Rights
You may file an administrative appeal within 28 calendar days from the service of our response if you are not satisfied with our response. You may disagree with our decision to withhold information or you may believe that there are additional records we failed to locate. You may also file an appeal if we have denied your request for expedited processing or a fee waiver, or if you disagree with the fee category in which we placed you. There is no specific form or particular language needed to file an administrative appeal, but it will help if you enclose a copy of the initial determination from which you are appealing.
Appeals are reviewed by the Associate General Counsel for the Agency’s Division of Legal Counsel, who will make an independent determination as to whether your request was properly processed. Under the FOIA, the reviewing office is required to make a determination on your administrative appeal within 20 working days. That office may: (1) affirm the initial determination in full, in which case it will identify which exemptions (if any) have been appropriately claimed; (2) affirm part of the initial determination (identifying the applicable exemptions), but release to you other information previously withheld; or (3) reverse the initial determination and release to you all the information you requested.
VIII. Judicial Review
After your administrative appeal has been decided, if you still believe that the NLRB has not handled your FOIA request in accordance with the law, you have a right to challenge the agency's action in a lawsuit filed in federal court, through the litigation process known as "judicial review." Judicial review ordinarily requires that you have filed an administrative appeal and have received a response. However, if the NLRB fails to respond to either your initial request or your appeal within the time limits specified in the FOIA, you may file suit as soon as those time limits have expired.
If you do bring a court action, you may file your suit in a federal district court in any of the following places: (1) where you reside, (2) where you have your principal place of business (if any), (3) in the District of Columbia, or (4) where the records are located, if they are not located in the District of Columbia. If you have waited until you have received an administrative appeal determination, that final administrative response letter will advise you of your right to seek judicial review. You have six years to file suit from the time your right to sue begins.
Finally, please understand that attorneys and employees of the NLRB are prohibited from giving legal advice to members of the public on Freedom of Information Act litigation.