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NATIONAL LABOR RELATIONS BOARD Freedom of Information Act Annual Report

Fiscal Year 2009

I. BASIC INFORMATION REGARDING REPORT

1. For questions about this Report contact: Jacqueline A. Young FOIA Officer National Labor Relations Board 1099 14th Street, NW Suite 10600 Washington, DC 20570

(202) 273-3840 jacqueline.young@nlrb.gov

  • 2. Report may be obtained through the Internet at: www.nlrb.gov/nlrb/about/foia/09Report.pdf
  • 3. Report may also be obtained by making a request to the address listed above.

    • II. MAKING A FOIA REQUEST

  • 1. Information concerning the different agency components that receive FOIA requests is located on the NLRB's FOIA Home Page at: http://www.nlrb.gov/FOIA/where_to_write.aspx
  • 2. All federal agencies, including the NLRB, are required under the FOIA to provide records upon receiving a written request, except for those documents that are protected from disclosure by the FOIA 's nine exemptions and three exclusions. The most common reasons why some requests are not granted by the NLRB are because requesters seek information protected by the following FOIA exemptions:
    • • 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.
    • Exemptions (b)(6) and (b)(7)(C): protect information concerning other individuals that, if released, would constitute an invasion of their personal privacy.
    • Exemptions (b)(7)(A) (b)(7)(D) and (b)(7)(E): protect certain records in law-enforcement investigatory files, including records the release of which would interfere with an ongoing proceeding and records that would reveal confidential sources or enable someone to avoid complying with the law.
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    III.

  • 1.
  • 2.

    • ACRONYMS, DEFINITIONS, AND EXEMPTIONS

    Agency-specific acronyms or terms used in this Report:

  • a. NLRB - National Labor Relations Board
  • b. FOIA - Freedom of Information Act (5 U.S.C. § 552)
  • c. FY - Fiscal Year
  • d. P.A. - Privacy Act (5 U.S.C. § 552a)

    • Include the following definitions of terms used in this Report:

  • a. Administrative Appeal – a request to a federal agency asking that it review at a higher administrative level a FOIA determination made by the agency at the initial request level.
  • b. Average Number – the number obtained by dividing the sum of a group of numbers by the quantity of numbers in the group. For example, of 3, 7, and 14, the average number is 8.

    • Backlog – the number of requests or administrative appeals that are pending atc.

    an agency at the end of the fiscal year that are beyond the statutory time period for a response.

  • d. Component – for agencies that process requests on a decentralized basis, a “component” is an entity, also sometimes referred to as an Office, Division, Bureau, Center, or Directorate, within the agency that processes FOIA requests. The FOIA now requires that agencies include in their Annual FOIA Report data for both the agency overall and for each principal component of the agency.
  • e. Consultation – the procedure whereby the agency responding to a FOIA request first forwards a record to another agency for its review because that other agency has an interest in the document. Once the agency in receipt of the consultation finishes its review of the record, it responds back to the agency that forwarded it. That agency, in turn, will then respond to the FOIA requester.
  • f. Exemption 3 Statute – a federal statute that exempts information from disclosure and which the agency relies on to withhold information under subsection (b)(3) of the FOIA.
  • g. FOIA Request – a FOIA request is generally a request to a federal agency for access to records concerning another person (i.e., a “third-party” request), or concerning an organization, or a particular topic of interest. FOIA requests also include requests made by requesters seeking records concerning themselves (i.e., "first-party requests) when
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    those requesters are not subject to the Privacy Act, such as non-U.S. citizens. Moreover, because all first-party requesters should be afforded the benefit of both the access provisions of the FOIA as well as those of the Privacy Act, FOIA requests also include any first-party requests where an agency determines that it must search beyond its Privacy Act “systems of records” or where a Privacy Act exemption applies, and the agency looks to FOIA to afford the greatest possible access. All requests which require the agency to utilize the FOIA in responding to the requester are included in this Report.

    Additionally, a FOIA request includes records referred to the agency for processing and direct response to the requester. It does not, however, include records for which the agency has received a consultation from another agency. (Consultations are reported separately in Section XII of this Report.)

  • h. Full Grant – an agency decision to disclose all records in full in response to a FOIA request.
  • i. Full Denial – an agency decision not to release any records in response to a FOIA request because the records are exempt in their entireties under one or more of the FOIA exemptions, or because of a procedural reason, such as when no records could be located.
  • j. Median Number – the middle, not average, number. For example, of 3, 7, and 14, the median number is 7.
  • k. Mulit-Track Processing – a system in which simple requests requiring relatively minimal review are placed in one processing track and more voluminous and complex requests are placed in one or more other tracks. Requests granted expedited processing are placed in yet another track. Requests in each track are processed on a first in/first out basis.

    • i. Expedited Processing – an agency will process a FOIA request on an expedited basis when a requester satisfies the requirements for expedited processing as set forth in the statute and in agency regulations.

    ii. Simple Request – a FOIA request that an agency using multitrack processing places in its fastest (non-expedited) track based on the low volume and/or simplicity of the records requested.

    iii Complex Request – a FOIA request that an agency using multitrack processing places in a slower track based on the high volume and/or complexity of the records requested.

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  • l. Partial Grant/Partial Denial – in response to a FOIA request, an agency decision to disclose portions of the records and to withhold other portions that are exempt under the FOIA, or to otherwise deny a portion of the request for a procedural reason.
  • m. Pending Request or Pending Administrative Appeal – a request or

    • administrative appeal for which an agency has not taken final action in all respects.

  • n. Perfected Request – a request for records which reasonably describes records and is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed.
  • o. Processed Request or Processed Administrative Appeal – a request or administrative appeal for which an agency has taken final action in all respects.
  • p. Range in Number of Days – the lowest and highest number of days to process requests or administrative appeals.
  • q. Time Limits – the time period in the statute for an agency to respond to a FOIA request (ordinarily twenty working days from receipt of a perfected FOIA request).

    • 3. Following are concise descriptions of the nine FOIA exemptions:

  • a. Exemption 1: classified national defense and foreign relations information
  • b. Exemption 2: internal agency rules and practices
  • c. Exemption 3: information that is prohibited from disclosure by another federal law.
  • d. Exemption 4: trade secrets and other confidential business information
  • e. Exemption 5: inter-agency or intra-agency communications that are protected by legal privileges
  • f. Exemption 6: information involving matters of personal privacy
  • g. Exemption 7: records or information compiled for law enforcement purposes, to the extent that the production of those records (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions, or (F) could reasonably be expected to endanger the life or physical safety of any individual.
  • h. Exemption 8: information relating to the supervision of financial institutions
  • i. Exemption 9: geological information on wells
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    5

    IV. EXEMPTION 3 STATUTES

    The NLRB did not rely on any Exemption 3 statutes during the fiscal year covered by this report (FY 2009).

    Statute Type of Information Withheld Case Citation Number of Times Relied upon per Component Total Number of Times Relied upon by Agency
    N/A N/A N/A N/A N/A

    V. FOIA REQUESTS

    A. Received, Processed and Pending FOIA Requests

    AGENCY OVERALL Number of Requests Pending as of Start of Fiscal Year Number of Requests Received in Fiscal Year Number of Requests Processed in Fiscal Year Number of Requests Pending as of End of Fiscal Year 117 5583 5625 75
    B.(1) Disposition of FOIA Requests - All Processed Requests AGENCY OVERALL Number of Full Grants Request With-drawn T O T A L Number of Full Denials Based on Reasons Other than Exemptions Number of Partial Grants/ Partial Denials Number of Full Denials Based on Exe-mptions Other *Explain in chart below Duplicate Request Not Agency Record Improper FOIA Request for Other Reason Fee-Related Reason All Records Referred to Another Compon-ent or Agency 4356 498 387 40 175 165 2 2 0 0 0 0 5625 Records Not Reasonably Described No R e c o r d s
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    B. (2) Disposition of FOIA Requests - "Other" Reasons for "Full Denials Based on Reasons Other than Exemptions" from Section V, B (1) Chart

    TOTAL N/A

    Description of "Other" Reasons for Denials from Chart B (1) & Number of Times Those Reasons Were Relied Upon

    N/A

    B. (3) Disposition of FOIA Requests - Number of Times Exemptions Applied

    Ex.

    Ex.

    Ex.

    Ex.

    Ex.

    Ex.

    Ex.

    Ex.

    Ex.

    Ex.

    Ex.

    Ex.

    Ex.

    Ex.

    1 2 3

    4

    5

    6

    7(A)

    7(B)

    7(C)

    7(D)

    7(E)

    7(F)

    8

    9

    AGENCY OVERALL 0 66 0 8 00 200 5 3 0321157 299 221

    VI. ADMINISTRATIVE APPEALS OF INITIAL DETERMINATIONS OF FOIA

    REQUESTS

    A. Received, Processed and Pending Administrative Appeals

    Number of Appeals Number of Appeals Number of Appeals Number of Appeals
    Pending as of Start of Appeals Received in Processed in Fiscal Pending as of End of
    Fiscal Year Fiscal Year Year Fiscal Year
    1 25 24 2

    B. Disposition of Administrative Appeals - All Processed Appeals C.(1) Reasons for Denial on Appeal - Number of Times Exemptions Applied C.(2) Reasons for Denial on Appeal - Reasons Other than Exemptions

    717 0 TOTAL Number Partially Affirmed & Partially Reversed/Remanded on Appeal Number Completely Reversed/Remanded on Appeal Number of Appeals Closed for Other Reasons Number Affirmed on Appeal 240
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    Ex. 1 0 3 Ex. 2 0 Ex. 3 1 Ex. 4 Ex. 5 9 Ex. 6 13 Ex. 7(A) 8 Ex. 7(B) 0 Ex. 7(C) Ex. 7(D) Ex. 7(E) Ex. 9 Ex. 7(F) Ex. 8 15 8 1 0 0 0
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    No Records Records Referred at Initial Request Level Request Withdrawn Fee-Related Reason Records Not Reasonably Described Improper Request for Other Reasons Not Agency Record Duplicate Request or Appeal Request in Litigation Appeal Based Solely on Denial of Request for Expedited Processing Other *Explain in chart below
    4 0 0 1 0 0 0 0 0 0 0

    C.(3) Reasons for Denial on Appeal - "Other" Reasons from Section VI, C (2) Chart C. (4) Response Time for Administrative Appeals

    TOTAL Description of "Other" Reasons for Denial on Appeal from Chart C (2) & Number of Times Those Reasons Were Relied Upon N/A N/A
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    Median Number Average Number Lowest Number of Highest Number
    of Days of Days Days of Days
    19 16 2 29

    C. (5) Ten Oldest Pending Administrative Appeals

    10th Oldest Appeal 9th 8th 7th 6th 5th 4th 3rd 2nd Oldest Appeal
    Date of Receipt of Ten Oldest Appeals N/A N/A N/A N/A N/A N/A N/A N/A 9/30/09 9/28/09
    Number of Days Pending 0 0 0 0 0 0 0 0 < 1 2
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    VII. FOIA REQUESTS: RESPONSE TIME FOR PROCESSED AND PENDING REQUESTS

    A. Processed Requests - Response Time for All Processed Perfected Requests (1)

    1. Provide the median, average and range in number of days to process all perfected requests.

    Lowest Number of Days Average Number of Days Median Number of Days Highest Number of Days Lowest Number of Days Average Number of Days Median Number of Days AGENCY OVERALL EXPEDITED PROCESSING 6 87 1 34 20< 1 < 1

    Highest Number of Days

    b. Processed Requests - Response Time for Perfected Requests in Which Information Was Granted

    1. Provide the median, average and range in number of days to process all perfected requests in which information was granted. ("Granted" refers to full grants and partial grants.)

    Highest Number of Days

    Lowest Number of Days Average Number of Days Median Number of Days Highest Number of Days Lowest Number of Days Median Number of Days Average Number of Days AGENCY OVERALL EXPEDITED PROCESSING 4 66 874 20< 1 < 1

    (1) The NLRB does not use multi-track processing for FOIA requests. C. Processed Requests - Response Time in Day Increments

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    Requests

    AGENCY OVERALL 1-20 Days 21-40 Days 41-60 Days 61-80 Days 81-100 Days 101-120 Days 121-140 Days 141-160 Days 161-180 Days 181-200 Days 201-300 Days 301-400 Days 401+ Days TOTAL 5405 190 9 4 1 0 0 0 0 0 0 00 5609

    Requests Granted Expedited Processing

    AGENCY OVERALL 1-20 Days 21-40 Days 41-60 Days 61-80 Days 81-100 Days 101-120 Days 121-140 Days 141-160 Days 161-180 Days 181-200 Days 201-300 Days 301-400 Days 401+ Days TOTAL 0 0 0 0 0 0 0 0 0 0 0 016 16
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    D. Pending Requests - All Pending Perfected Requests

    AGENCY OVERALL Median Number of Days Number Pending Average Number of Days Median Number of Days EXPEDITED PROCESSING Number Pending 75 7 07 0 0

    Average Number of Days

    E. Pending Requests - Ten Oldest Pending Perfected Requests

    Agency Overall 10th Oldest Request and Number of Days 9th 8th 7th 6th 5th 4th 3rd 2nd Oldest Request and Number of Days Pending
    16 09/08/09 16 09/08/09 16 09/08/09 17 09/04/09 17 09/04/09 17 09/04/09 09/03/09 18 19 09/02/09 21 08/31/09 31 08/17/09

    VIII. REQUESTS FOR EXPEDITED PROCESSING AND REQUESTS FOR FEE WAIVER

    A. Requests for Expedited Processing

    Average Number of Days to Adjudicate Median Number of Days to Adjudicate Number Denied AGENCY OVERALL Number Granted 16 1 1 16 Number Adjudicated Within Ten Calendar Days < 1
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    B. Requests for Fee Waiver

    AGENCY OVERALL Number Granted Median Number of Days to Adjudicate Average Number of Days to Adjudicate Number Denied 7 4 88
  • IX. FOIA PERSONNEL AND COSTS
  • X. FEES COLLECTED FOR PROCESSING REQUESTS
    • (The sum of Columns 1 & 2) (At initial request and appeal levels) AGENCY OVERALL Total CostsLitigation-Related Costs Processing Costs Total Number of "Full-Time FOIA Staff" COSTSPERSONNEL Number of "Full-Time FOIA Employees" Number of "Equivalent Full-Time FOIA Employees" $819,518.02 $3,519.45 $823,037.471 6 7
    Percentage of Total Costs AGENCY OVERALL Total Amount of Fess Collected $79,578.97 9.67%
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    XI. FOIA REGULATIONS

    http://www.nlrb.gov/nlrb/about/foia/29-102-117.html

    XII. BACKLOGS, CONSULTATIONS AND COMPARISONS

    A. Backlogs of FOIA Requests and Administrative Appeals

    AGENCY OVERALL Number of Backlogged Requests as of End of Fiscal Year Number of Backlogged Appeals as of End of Fiscal Year 01

    B. Consultations on FOIA Requests - Received, Processed and Pending Consultations

    AGENCY OVERALL 0 2 1 1

    Number of Consultations Received from Other Agencies that were Pending at Your Agency as of Start of the Fiscal Year

    Number of Consultations Received from Other Agencies During the Fiscal Year

    Number of Consultations Received from Other Agencies that were Processed by Your Agency During the Fiscal Year

    Number of Consultations Received from Other Agencies that were Pending at Your Agency as of End of the Fiscal Year

    C. Consultations on FOIA Requests - Ten Oldest Consultations Received from Other Agencies and Pending at Your Agency

    Agency Overall 10th Oldest Consultation and Number of Days Pending 9th 8th 7th 6th 5th 4th 3rd 2nd Oldest Consultation and Number of Days Pending
    N/A N/A N/A N/A N/A N/A N/A N/A N/A 09/14/09
    0 0 0 0 0 0 0 0 0 12
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    D. (1) Comparison of Numbers of Requests from Previous and Current Annual Report Requests Received, Processed and Backlogged

    Number Processed During Fiscal Year from Current Annual Report Number Processed During Fiscal Year from Last Year's Annual Report Number Received During Fiscal Year from Current Annual Report AGENCY OVERALL Number Received During Fiscal Year from Last Year's Annual Report NUMBER OF REQUESTS PROCESSEDNUMBER OF REQUESTS RECEIVED 4651 5583 56254694

    D. (2) Comparison of Numbers of Backlogged Requests from Previous and Current Annual

    Number of Backlogged Requests as of End of the Fiscal Year from Previous Annual Report Number of Backlogged Requests as of End of the Fiscal Year from Current Annual
    AGENCY OVERALL 6 1

    E. (1) Comparison of Numbers of Administrative Appeals from Previous and Current Annual Report - Appeals Received, Processed and Backlogged

    NUMBER OF APPEALS RECEIVED
    NUMBER OF APPEALS PROCESSED

    Number Processed During Fiscal Year

    Number Received Number ProcessedNumber Received

    During Fiscal Year from Last Year's

    During Fiscal Year During Fiscal Year

    from Current Annual Report

    from Current from Last Year's Annual ReportAnnual Report Annual Report

    AGENCY OVERALL 34 25 2435
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    E. (2) Comparison of Backlogged Appeals from Previous and Current Annual Report

    Number of Backlogged Appeals as of End of the Fiscal Year from Previous Annual Report Number of Backlogged Appeals as of End of the Fiscal Year from Current Annual Report
    AGENCY OVERALL 0 0
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