Model Guide for Government Employees Concerning the Processing
of Requests for Environmental Information
Building Environmental Citizenship to Support Transboundary
Pollution Reduction in the Danube: A Pilot Project in Hungary
and Slovenia
Prepared by the Regional Environmental Center, Resources for
the Future and New York University Law School
HANDBOOK:
PRACTICAL GUIDANCE FOR ADMINISTERING
ACCESS TO INFORMATION
This Handbook contains guidance and information that
will help government employees manage their
responsibilities for responding to citizen requests for
environmental information. It contains answers to
commonly asked questions about how to implement legal
authorities for information access. The Handbook
identifies and explains specific procedures for
accepting, logging, routing and responding to
information requests. Discussions of legal questions
are found in the document, when legal analysis is
appropriate and useful.
In addition, the Handbook has a number of sample letters
and forms that can be used as models for responding to
requests. The model letters will reduce the workload of
government employees as specific requests are received,
and will provide standardized guidance that will
facilitate responses.
Much of the material in this Handbook was adapted from
U.S. EPA's Freedom of Information Act Manual (1992
Edition), but formatted so that country-specific
information can be inserted. In the absence of country-
specific policies, examples from U.S. law and practice
are provided. The purpose of doing this is to provide
ideas and guidance; however, it is understood that each
country must develop its own policies and laws to fit
its own needs. Each part of the Handbook that has
information specific to U.S. practices is highlighted in
yellow, to alert the reader.
Many of the issues that are addressed in the Handbook
require government decision makers to make policy
judgments and decisions specific to the needs of their
own country and circumstances. We therefore recommend
that the Handbook be considered a "living" document, and
that sections be amended and updated or deleted (and the
U.S. information deleted) as specific country policies
and practices are formulated.
HANDBOOK CONTENTS
Tab/Page
CHAPTER 1: GENERAL INFORMATION ..................
A 1-1
1. Purpose .............................
1-1
2. Policy ..............................
1-1
3. Authority ...........................
1-1
4. Definitions and Options .............
1-1
5. Time Requirements ...................
1-3
6. Responsibilities ....................
1-4
7. Delegation of Authority .............
1-5
8. Accountability ......................
1-6
9. Overview of the information request
process .............................
1-7
CHAPTER 2: LOGGING, ROUTING AND FILE-KEEPING
OF INFORMATION REQUESTS.................. B 2-1
1. Information Office Procedures for Initial
Handling of Requests ..............
2-1
2. Requests Addressed Directly to
Action/Field Offices ..............
2-2
3. Information Act Files and Request
Log................................
2-3
CHAPTER 3: GUIDANCE TO ACTION OFFICES
ON INITIAL RESPONSE TO REQUESTS ......
C 3-1
1. Make Sure the Request Falls Under
the Information Act ................
3-1
a. Guidelines ......................
3-1
b. Oral Requests ...................
3-1
c. Requests from Other Government
Agencies ......................
3-2
d. Requests from Parliament ..........
3-2
f. Future Records ..................
3-2
g. Personal Records of Employees ...
3-3
2. Responding to Information Requests .....
3-6
a. Description of the Records ......
3-6
b. Voluminous Records...............
3-6
c. Locate the Records ..............
3-6
CHAPTER 4: FEES AND FEE WAIVERS .................
D 4-1
l. General Procedures ...................
4-l
a. Initial Review ....................
4-1
b. Categories of Request..............
4-2
c. Determining the Request Category ..
4-2
d. Fees to be Charged.................
4-3
e. Evaluating the Determination.......
4-4
f. Calculating the Fees...............
4-5
g. Costs Not Chargeable...............
4-7
h. Assuring Payment ..................
4-8
i. Prepayment of Fees.................
4-8
j. Billing ...........................
4-9
2. Public Interest Fee Waivers
or Reductions ........................
4-14
a. General Requirement ...............
4-14
b. Policy ............................
4-14
c. Procedures ........................
4-14
d. Assistance in Making Decisions ....
4-l6
e. Criteria ..........................
4-16
f. Reduction in Fees .................
4-21
h. Appeals ...........................
4-22
i. Court Review of Denials ...........
4-23
3. Administrative Fee Waivers ...........
4-23
4. Delinquent Requesters ................
4-23
CHAPTER 5: RELEASING RECORDS.....................
E 5-1
1. Who May Release ......................
5-1
2. What May Be Released .................
5-1
3. Time Frame ...........................
5-2
4. Preparing Release Letters ............
5-3
5. Recordkeeping ........................
5-4
CHAPTER 6: WITHHOLDING RECORDS ..................
F 6-1
1. Who May Withhold .....................
6-1
2. What May Be Withheld .................
6-1
3. Prior Disclosure .....................
6-2
4. Time Frame ...........................
6-3
5. Denial Letter ........................
6-4
6. Partial Denial .......................
6-6
7. Recordkeeping ........................
6-7
CHAPTER 7: EXEMPTIONS AND EXCLUSIONS ............
G 7-1
1. Overview .............................
7-1
2. The Exemptions ..................
7-2
a. Exemption 1 National Defense/
Foreign Policy .....
7-2
b. Exemption 2 Internal Ministry Rules
7-2
c. Exemption 3 Information Exempt
under Other Statutes
7-3
d. Exemption 4 Trade Secrets/Commercial
Financial Information
7-3
e. Exemption 5 Inter- and Intra-Ministry
Memoranda ..........
7-3
f. Exemption 6 Personal Privacy .....
7-8
g. Exemption 7 Records Compiled for Law
Enforcement Purposes
7-12
h. Exemption 8 Records of Financial
Institutions .......
7-14
3. Exclusions ...........................
7-14
CHAPTER 8: BUSINESS CONFIDENTIALITY
H
8-1
1. Authority ............................ 8-
1
2. Introduction ......................... 8-
1
3. Action by Ministry Office to
Determine Confidentiality .......... 8-
2
4. Final Confidentiality Determination
by Legal Office ......................
8-5
5. Previous Confidentiality or
Class Determination ................ 8-6
6. Disclosure with Consent of
Affected Business .................. 8-6
7. Disclosure of CBI Other than
Under Information Act.................
8-7
CHAPTER 9: DISCRETIONARY RELEASE ...................
I 9-1
1. When to Use .......................... 9-
1
2. When Not to Use ...................... 9-
1
3. Discretionary Release on Appeal ...... 9-
1
CHAPTER 10: APPEALS .................................
J 10-1
1. Right to Appeal ......................
10-1
2. Time Frame for Receiving Appeals......
10-1
3. Time Frame for Responding to Appeals..
10-1
4. Procedure.............................
10-2
5. Issuing Determinations................
10-3
6. Judicial Review.......................
10-4
CHAPTER 11: ANNUAL REPORT AND RECORDKEEPING .............
K 11-1
1. ............
11-1
2. ..........................
11-3
3. Records Retention Schedules ..........
11-4
APPENDIX I: SAMPLE LETTERS/MEMOS...............
L
A. Response to Request for Future Records
B. Clarifying a Vague or Overly Broad Request
C. Notifying Requester That Records Cannot Be Obtained
Promptly
D. Notifying Requester that Records are Available for Sale
Elsewhere
E. Notification that Records Do Not Exist
F. Notification That Records are Possessed Only by Another
Ministry or Authority
G. Request for payment Owed on Earlier Request
H. Request for Prepayment
I. Fee Waiver Justification Letter
J. Language for Fee Waiver/Reduction Denial
K. Request for Information Request Refund
L. Extension of Ten-Day Time Limit
M. Release Letter With Records
N. Release Letter Without Records
O. Denial Letter
P. Partial Denial Letter
Q. Request for Substantiation From An Affected Business
R. Initial Denial Based on Claim of Business
Confidentiality
APPENDIX II: [insert national law].............
N1
APPENDIX III: [insert national regulations ...
O2
APPENDIX IV: RECORDS RETENTION SCHEDULES [insert national
rules if they exist .......
P
APPENDIX V: CONTACT LIST OF INFORMATION PERSONNEL AT
MINISTRY............................
Q
APPENDIX VI: PRACTICAL GUIDANCE FOR RECORDS MANAGEMENT
1 The relevant country statute should be inserted as Appendix III
2 The relevant country regulations should be inserted as Appendix IV
CHAPTER 1: GENERAL INFORMATION
1. PURPOSE
This Handbook provides guidance on policy and procedures
for implementing [insert Slovenian law] [insert Hungarian
law]
2. POLICY
It is the [Ministry's] policy to make the fullest possible
disclosure of Information without unjustifiable expense or
unnecessary delay to any requester.
All documents containing policies, procedures and guidance
relating to public access to Ministry records must be
submitted to the Ministry Information Officer for review and
concurrence prior to issuance and implementation.
3. AUTHORITY
a. The legal authority for providing environmental
information upon request is found at [insert relevant
legislative acts].
b. Regulations concerning implementation of these legal
requirements are found at [insert relevant regulations
or guidance].
4. DEFINITIONS & OPTIONS
a. Definitions
1) What is a valid request for environmental
information? It is a request for [insert Aarhus
language] The request need not specifically refer
to the specific legal provisions.
2) What is an Ministry record? "Record" means
[insert Aarhus language] (for discussion about
personal notes, see Chapter 3, Section 1.g).
3) Who can make a request for environmental
information? Any individual (including non-
citizens), corporation or association, public
interest group, and local, State or foreign
government can make a request.
1-1
b. Options for Handling Requests. Generally speaking, an
office has four options in handling a request for existing,
located records. These options may be applied singularly or
in combination for a given request:
1) Release documents. Make all records available to
the requester upon receipt of a request (see
Chapter 5) unless they fall under one of the legal
exemptions.
2) Withhold documents. An office may withhold
records only if they fall under one of the legal
exemptions (see Chapter 7).
3) Partially withhold documents. If documents
contain both exempt and non-exempt information,
the non-exempt information must be disclosed if
the exempt material is reasonably capable of being
separated, and the necessary deletions can be made
without making the document unintelligible (see
Chapter 6, Section 6).
4) Discretionary release. [ US policy: An office
may release internal Ministry rules, inter- and
intra-Ministry memos, and records or information
compiled for law enforcement purposes, even though
they legally can be denied. As a matter of
policy, EPA encourages disclosure of these records
if no important government purpose is served by
withholding, (i.e., release would not cause
significant harm to the Ministry). (See Chapter
9.)
5. TIME REQUIREMENTS
a. Initial Determinations. [U.S. policy: Ordinarily, there
is a 10-workday time limit in which to make an initial
determination on whether to release or withhold records
requested under FOIA. The first day is the date when the
Ministry or Regional Information Office receives the request.
Excluded from that period is any time taken by the requester
to provide EPA with additional information needed to identify
the records or the time required by the Ministry to secure
prepayment of fees or assurance of payment.]
b. Appeals. [U.S. policy: Any person whose request for an
existing, located records has been denied, in whole or in
part, has a right to appeal the determination. This appeal
1-2
should be mailed to the Ministry Information Office no later
than 30 calendar days after the day the requester receives the
Ministry's denial. The Legal Office then has 20 workdays to
review the appeal and to determine whether the records were
properly withheld.]
c. Extensions. [U.S. policy: An extension of up to 10
workdays total may be taken on the due date for the initial
determination or appeal determination. For the initial
determination, an extension may be taken only if the search
involves extensive records, physically distant records, or
consultation with another Ministry or another office within
the Ministry. Total extension time taken on initial
determinations and appeal determinations may not exceed 10
workdays.
For example, if an extension of three workdays is taken
for issuing the initial determination, an extension taken
during the appeal period can only be for seven workdays or
less. If an initial determination cannot be issued in 10
workdays, the action office should provide written notice to
the requester concerning the status of the request by the
tenth day. The written notice should inform the requester
that an extension is being taken, cite the reasons for the
extension, and give the date by which the Ministry reply will
be made.
6. RESPONSIBILITIES
a. Ministry Information or Public Relations Office. [U.S.
policy: Coordinates and oversees Information Release program,
develops and reviews information procedures, policies and
guidance, provides advice to Ministry Information personnel in
the program and Regional offices, coordinates initial fee
waiver decisions, routes and tracks FOIA requests, monitors
Ministry information activities, maintains official and public
files related to the Ministry's information access program,
monitors quality and timeliness of responses, and provides
training or training opportunities to Ministry information
personnel.
b. Legal Office.
c. Office of Communications, Education and Public Affairs.
d. Program Office Information Coordinators. Route requests
to appropriate action offices within their program, track
requests for timeliness, monitor quality of response, and
provide guidance to program personnel (with help if needed
from the Ministry Information or Public Relations Office or
1-3
from the Legal Office).
e. Regional or District Information Offices. Route requests
to appropriate action offices within their Region or district,
track information requests, provide guidance to Regional
personnel (with help if needed from the Ministry Information
Office), coordinate initial fee waiver decisions, submit
materials for the annual information report, keep official
files, monitor quality and timeliness of responses, and
provide training and current information to Regional
information personnel.
f. Action Offices. Analyze requests, locate records,
contact requester as needed, examine records, delete exempt
material, prepare and issue responses, release records, and
when appropriate, prepare and issue Bill for Collection, and
issue initial fee waiver decisions.
g. Financial Management Offices. Ensure all bills for
collection related to Information requests are recorded
promptly. Prepare follow-up billing for all uncollected
information requests. Reconcile receivables against
information provided by Information Offices. Collect fees
related to information requests.
7. DELEGATION OF AUTHORITY provide information on what levels of
officials/employees can make particular decisions about
release or withholding documents.
a. Authority to Issue Information Policies and Procedures. The
[insert name of appropriate Officer] is the Ministry official
authorized to [insert responsibilities]
b. Authority to Issue Initial Determinations.
This authority (insert specific name of or citation to
legal authority) may be re-delegated to [identify appropriate
re-delegation levels].
Any re-delegation of authority must be written and copies
of the official re-delegation must be kept on file.
c. Authority to Issue Determinations on Appeals
1) [U.S. policy: The Chief Lawyer in the Legal Office
is the Ministry Official authorized to make legal
determinations on written appeals of initial
denials of records and fee waiver denials. This
authority has been redelegated in writing to
[insert titles of appropriate persons]. These re-
1-4
delegations are on file in the Legal Office and
the Ministry Information Office.
2) The Associate Administrator for the Office of
Communications Education and Public Affairs is the
Ministry official authorized to review records for
discretionary release on appeal as required (see
Chapter 9). This authority may be redelegated to
the insert title of appropriate person].
8. ACCOUNTABILITY
Ministry employees will be held accountable for their
decisions with respect to the release or withholding of
information, the waiver of payment, and/or the appeals
process. [mention any special laws or provisions about how
government employees are held accountable]
9. OVERVIEW
This section provides a checklist for responding to
information requests. Offices may find this useful as a
summary of the steps in the process.
a. Checklist for Responding to an information Request
1) Read the request.
o Is it a request for records?
o Does it "reasonably describe" the
record(s) sought? Is it clear what
the requester wants?
o Is the request overly broad in scope or is it
well defined?
o Would discussion with the requester help to
define, clarify or narrow the scope of the
request?
2) Determine the Category of the Request.
o Is the identity of the requester clear?
o Which fee category does the
requester fall into?
1-5
o Does the identity of the requester
or the use of the documents
requested need further
clarification?
3) Resolve questions about fees with the requester.
o Has the requester indicated a willingness to
pay the cost of searching for, reviewing and
copying records, as appropriate?
o Has the requester asked for a fee waiver?
o Should you obtain prepayment or an assurance
of payment?
o Have you charged the appropriate fees for the
assigned category?
4) Identify and locate the records.
o Do the records exist?
o Are the records in the Ministry's possession and
control?
o Should another Ministry be consulted and/or
deferred to?
o Was your search for the records adequate to
ensure that all records within the scope of the
request were identified and located?
o If your office and another Ministry office both
have copies of the records, consult to determine
which office would be the more appropriate
office to determine the release status of the
records.
5) Review the records.
o Are there any exempt records or portions of
records?
o Do any of the records contain Confidential
Business Information (CBI)?
6) Prepare the response.
o Itemize records or portions of records to be
1-6
disclosed.
o Itemize records or portions of records to be
withheld and cite the statutory authority for
withholding them (i.e., applicable
exemption(s)).
o Include names and titles or positions of each
person responsible for the denial.
o Include procedures for appealing the denial.
7) Purge exempt portions of information.
o Prepare the records for disclosure/non-
disclosure by segregating exempt records or
portions of records from non-exempt portions.
8) Prepare the Bill for Collection Form according to
government rules.
9) Issue the response, enclosing records to be
disclosed and the Bill for Collection Form (if
appropriate).
[U.S. Policy:
o Maintain one copy of the response and bill (if
appropriate) for the action office file.
o Send two copies of the response and one copy of
the bill (if appropriate) to the Information
Officer.
o Send one copy of the response to the Information
Coordinator (if appropriate).
o Promptly send three copies of the bill (if
appropriate) to the Servicing Financial Office,
along with a copy of the initial request and
response.
o Maintain a copy of the withheld records for 60
days so they can be made available promptly upon
request to the Legal Office in the event of an
appeal.
1-7
CHAPTER 2: RECORD KEEPING, LOGGING, ROUTING AND FILE-KEEPING OF FOIA
REQUESTS
l. PROCEDURES FOR MINISTRY INFORMATION OFFICES REGARDING INITIAL
HANDLING OF REQUESTS
a. Register the Request. A request must be:
o
date stamped,
o
assigned a Request Identification Number (RIN),
o
assigned a response due date,
o
assigned a fee category,
o
entered on the Information Request Register,
o
attached to a completed Control Form,
o
attached to a Bill for Collection Form, and
o
delivered within 24 hours (preferably hand-
carried) to the office responsible for preparing
the reply.
b. Acknowledge the Request. Upon receipt of an information
request, the Ministry Information Office should acknowledge
receipt of the request to the requester immediately after
carrying out the log-in procedures described above. The
acknowledgement informs the requester of the date of receipt
and the assigned RIN number.
c. Multiple Responsible Offices. If more than one office
will provide material for a reply, one office [insert name of
central ministry office] should coordinate the overall
response.
d. Route the Request to the appropriate office for reply.
1) U.S. EPA procedures: Route a Request from
headquarters to [District] [Regional Offices].
When a request is routed from headquarters to a
regional or district office, the recipient office
[insert name of central ministry office] takes
the steps outlined in 1.a and 1.b above (assigning
the RIN number, logging and acknowledging the
2-1
request) and faxes the request to the District or
Regional Information Office for proper routing
within the Region using the same RIN number.
2) Route a Request from Regional/District Offices to
HQ. If a District/Regional Information Office
receives a request for records that are held only
in Headquarters, another Regional Office, or a
field office, the office should immediately remove
the request from its tracking system and fax the
request to the [insert name of central ministry
office]. At the same time, the requester must be
notified that the request is being transferred to
the [insert name of central ministry office] for
response.
3) Never Re-Route Between Program Offices. Offices
should never re-route requests directly to other
Program Offices. All re-routing should be through
the [insert name of central ministry office] or
Regional Information Office as appropriate.
2. REQUESTS ADDRESSED DIRECTLY TO ACTION/FIELD OFFICES
a. Action Offices. If an organizational unit or Ministry
official receives correspondence directly that is identifiable
as an information request, the recipient should be immediately
transferred, if possible hand-carried, to the Central
Information Office. NOTE: No response should be sent out
until the office is actually assigned responsibility by the
Information Office to respond to the request.
3. KEEPING RECORDS AND FILES OF INFORMATION REQUESTS AND RESPONSES
Applicable laws concerning the handling of government
records and files include [insert specifics].
a. Types of Files.
1) Official Files. The Ministry and Regional
Information Offices should maintain an official
file on each information request they receive.
The official file should include copies of the
incoming request, the Control Form, the Ministry's
response, the Bill for Collection Form (if
appropriate), follow-up correspondence, any appeal
and appeal determinations, and any intra-Ministry
2-2
communications concerning the request.
2) Public File. Each Information Office may
maintain, at its own option, a separate public
file to help facilitate processing responses for
information requests for Ministry files. The
public file shall include only the copies of each
information request, the Ministry's response, and
any appeal and appeal determination. These
documents shall be purged of any personal
information.
3) Information Coordinators' Files. Information
Coordinators may keep files to facilitate their
responsibilities for routing and tracking requests
assigned to action offices. However,
Coordinators' files are not a substitute for
official files.
4) Request Log. Each Information Office shall
maintain an Information Request Log, purged of
personal information.
5) Action Office Files. Each action office shall
maintain the incoming request, Control Form, a
copy of the response, a copy of the withheld
documents or a list adequate to identify the
records, the Bill for Collection Form, follow-up
correspondence and any communications concerning
the request which may be needed in the event of an
appeal or litigation.
b. Disclosure to the public of files related to the information
request process.
1) Rule. Such files may not be made available to a
member of the public without a written request
from the person seeking the records.
2) Background. [U.S. policy: The Privacy Act
prohibits the disclosure of information in systems
of records to the public unless the FOIA requires
disclosure. The FOIA requires disclosure of
certain Ministry FOIA files which have been purged
of personal Information (e.g., Public File,
Request Log).
3) U.S. policy: Purging FOIA Files. Before
disclosing files concerning information requests,
2-3
the files must be reviewed and purged of:
o Home addresses and phone numbers and other
personal information the disclosure of which
would constitute a clearly unwarranted invasion
of personal privacy within the meaning of
Exemption [insert number of exemption].
o Any other information, such as confidential
business Information or internal communications
reflecting Ministry deliberations, which is
exempt from disclosure under the law.
NOTE: Corporate account numbers should also be
purged.
2-4
CHAPTER 3: GUIDANCE TO ACTION OFFICES ON INITIAL RESPONSE TO REQUESTS
1. MAKE SURE THE REQUEST IS ONE THAT IS AUTHORIZED UNDER THE LAW
a. General Guidelines. Always contact the Ministry or
Regional Information Office as appropriate when there is doubt
with respect to the cases described below.
U.S. rule:
1) Inquiries for Documents that are not government
Records. Requests for records that are published
by non-government organizations and are readily
available to the public are generally not handled
under FOIA. The response to the requester should
indicate that the documents are not government
records.
2) Inquiries for Answers to Specific Questions. If
the requester seeks answers to specific questions,
the Ministry is not required to respond, except to
indicate that it is not responding, and why.
However, if the questions can fairly be read as
constituting a request for access to records, the
action office should process the request under
FOIA.
b. Responding to Oral Requests. [insert appropriate
Hungarian/Slovenian rule] FOIA requests must be in
writing. In certain cases, offices should ask that
oral requests be put in writing and treated as FOIA
requests. Those special circumstances are discussed
below.
1) If the record is unquestionably releasable and
readily available, (e.g., EPA publications, press
releases, information sheets prepared for general
distribution), release the record but do not treat
it as a FOIA request. Fees shall be assessed in
accordance with the FOIA policy and billing
procedures (see Chapter 4).
2) If the record (or part of the record) may be
subject to withholding and/or is not readily
available, ask the requester to submit a written
request to the appropriate Ministry or Regional
Information Office.
NOTE: Whenever there is any doubt about the releasability
or the availability of information requested orally, ask that
the request be made in writing.
3-1
c. Responding to Requests from Other Federal Agencies. [insert
local rule]
d. Responding to Congressional Requests. Congressional
requests are of two types:
1) A written request from an individual Member of
Congress is treated as a FOIA request.
2) A request is considered to be from the Congress if
it is a written request signed by the Speaker of
the House, President of the Senate, or chair of a
committee or subcommittee concerning matters
within their jurisdiction. Such requests are not
processed as FOIA requests.
e. Responding to Requests from the General Accounting Office
(GAO)3. Requests from GAO must be answered but not as FOIA
requests.
f. Future Records. The authority allowing citizens to
request information only establishes requirements for
disclosure of existing records. It does not require the
government to place a requester's name on a distribution list
for records as they become available. Sample letter A
provides language for responding to requests for future
records.
g. Personal Records of Employees. The Information Act only
applies to Ministry records, not to the personal records of
individual Ministry employees. If personal records are
responsive to an information request, the Ministry should
notify the requester that the personal records exist but are
not covered by the Information Law since they are not Ministry
records, and accordingly that they will not be provided.
1) "Personal Record" Considerations. In determining
whether documents are personal records, the
following criteria be considered.
o
Creation - Was the document created by an
Ministry employee on Ministry time, with
Ministry materials, at Ministry expense? If
not, then it probably is not an Ministry
3 The General Accounting Office is the investigative arm of Congress and
supports the Congress in meeting its Constitutional responsibilities and to
help improve the performance and accountability of the federal government. GAO
examines the use of public funds, evaluates federal programs and activities,
and provides analyses, options, recommendations, and other assistance to help
the Congress in its oversight, policy, and funding decisions.
3-2
document on that basis alone.
o
Content - Does the document contain
substantive information? If not, then it
probably is not an Ministry record, on that
basis alone.
o
Purpose - Was the document created solely for
an individual's personal convenience? Alter-
natively, to what extent was it created to
facilitate government business?
o
Distribution - Was the document distributed to
anyone else for any reason, such as for a
business purpose? How wide was the
circulation?
o
Use - To what extent did the document's author
actually use it to conduct government
business? Did others use it?
o
Maintenance - Was the document kept in the
author's possession, or was it placed in an
official Ministry file?
o
Disposition - Was the document's author free
to dispose of it at his or her personal
discretion? What was the actual disposal
practice?
o
Control - Has the Ministry attempted to
exercise control over the document by
requiring that it be retained on file for a
specified time? Did it do so by requiring the
document be created in the first place? If
so, such records are always Ministry records.
o
Separability - Is there any practical way to
segregate any personal information in the
document from official business Information?
o
Revision - Was the document revised or updated
after the fact for recordkeeping purposes?
2) Application of the Considerations. The following
examples illustrate the analysis and application
of the considerations to be made.
o
Example 1. An employee brings a paper to the
office that has been prepared for a class she
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is attending at a local university. The
employee shows the paper to her friends during
lunch and asks for their comments. The
subject matter of the paper relates to her
work in the government.
The paper is a personal record and not an
Ministry record. The document was not created
on Ministry time, with Ministry materials nor
at Ministry expense. While the content
relates to Ministry matters, it was not
created to facilitate Ministry business nor
was it relied upon or used in conducting
Ministry business. The distribution was
limited to friends and was not for any
business purpose. The record was not placed
in Ministry files, and the employee was free
to remove it from the Ministry's offices and
to dispose of it at her discretion.
o
Example 2. An employee keeps old yellow
telephone message slips that indicate the
names of the callers, the dates and times of
the calls, and the telephone numbers where the
callers can be reached.
The message slips, in this instance, are not
Ministry records. Although created by the
employee's secretary at Ministry expense, the
documents contain no substantive information,
i.e., why the call was made. The documents
were created solely for the employee's
personal convenience and were not used by
anyone other than the employee. The message
slips, in this instance, were retained by the
employee and not placed in Ministry files.
The employee was free to destroy the notes at
his or her discretion.
o
Example 3. A supervisor keeps an appointment
calendar on her desk on which she notes
upcoming meetings. On occasion, she notes
personal meetings. Her secretary notes
appointments that have been scheduled for her
supervisor.
The calendar is not an Ministry record. As in
the previous example, the record was created
by Ministry employees on Ministry time and at
Ministry expense. However, the calendar
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contains little, if any, substantive
information. The calendar was created for the
supervisor's personal convenience so that she
could organize both her personal and business
appointments. It was not intended for use by
other office employees and was not distributed
to other employees. The Ministry did not
require the supervisor to maintain the
appointment calendar. The calendar could be
destroyed at any time by the supervisor.
NOTE: When calendars are maintained on a
Local Area Network (LAN) and can be accessed
by others, the calendars are Ministry records.
o
Example 4. An Office Director has a daily
agenda prepared listing the activities for
each day of the upcoming week. The agenda is
circulated to his staff to inform them of the
schedule.
The daily agenda is an Ministry record. The
document, created at Ministry expense by an
Ministry employee, was in fact circulated to
the staff for a business purpose. It was
created for the express purpose of
facilitating the daily activities of the
office. Any personal matters could be easily
segregated from the business material.
U.S. EPA policy:
NOTE: Administrators of EPA make copies of their official
appointment calendar available to the public, and require
political-level appointments in the Agency (e.g. the Deputy
Administrator, Assistant Administrators, Associate
Administrators, Regional Administrators, the General Counsel,
and Staff Office Directors), to do the same.
3) Assistance. If any action office is having
difficulty determining whether a particular
document is an Ministry record or a personal
record, it should contact the appropriate legal
office for guidance.
2. PROCEDURAL GUIDANCE FOR RESPONDING TO INFORMATION REQUESTS
a. Make Sure the Request Adequately Describes the Records.
Carefully read the description of the records sought. If the
description of the records is not sufficient to identify and
locate the records, contact the requester (by telephone if
possible) and assist him/her in the identification of the
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records sought and in formulating the request (see sample
letter B, Appendix I). If the description remains
insufficient to reasonably identify and locate the records,
notify the requester in writing and send a copy to the
appropriate information Office so that the request may be
closed out. Before doing this, make every reasonable effort
to identify and locate the requested records.
b. Discuss Requests for Voluminous Records. If the request
is extremely broad or involves a substantial number of records
(e.g. ten file drawers of records on the XYZ Superfund site),
contact the requester (by telephone if possible) and provide
him/her with a full description of the records and the
estimated costs (which may include search, copying and review
depending on the category of the request) of the records to
ensure that the requester wants all records (see sample letter
B, Appendix I).
c. Locate the Records. Locate the records as promptly as
possible. A list of possible outcomes to the search for
records follows. The appropriate response to each outcome is
either described or referenced.
For records believed to be within the Environment Ministry's
possession:
1) The records requested are believed to be within
the Environment Ministry's possession and may be
obtained promptly. The next step is to make an
initial determination as to whether (or what
portion of) the records may be released (see
Chapters 5 and 6).
2) The records requested are believed to be within
the Environment Ministry's possession but cannot
be obtained promptly. When a record cannot be
obtained promptly by the action office (e.g., the
records are located in a separate storage area),
the action office should call and write the
requester (see sample letter C, Appendix I),
notify him/her of the delay and provide a
projected date when the record is likely to be
sent. If, after a thorough search, the records are
determined not to exist, follow the instruction
for requested records that do not exist (see
Section c.7 below).
3) Some or all of the records exist but are in the
possession of another office of the same Ministry.
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In this case, promptly contact the appropriate
Information Office for rerouting or coordinating
of the Ministry's response.
4) The records are available in a public reading
room. Call the requester, inform him/her of the
availability of the documents in a public reading
room, and ask whether he/she would prefer to have
the documents sent or to review them in the public
reading room. If the requester chooses to use the
public reading room, confirm this in writing and
send a copy of the confirmation to the information
Office. If the requester prefers to have the
records sent, follow normal Information Act
procedures.
5) For records held by the Environment Ministry, but
originating in another government office. When a
request for records includes records originating
in another Federal Ministry either: 1) respond to
the request after consulting with the originating
Ministry on whether the records should be
releasable, if necessary, or 2) transfer
responsibility for responding to the other
Ministry. Whenever the request is referred to
another Ministry, the requester should be notified
in writing with a copy sent to the appropriate
Information Office so that the request may be
closed out.
6) The records have been published by the Government.
Information may be sent to the requester if
readily available within the Environment Ministry
(e.g., a Notice already provided to the public).
If the information is commonly available outside
of the Environment Ministry (e.g., a manual
available from a different government office),
notify the requester where he/she may obtain it
and what it will cost (see sample letter D,
Appendix I). Send a copy of the letter to the
appropriate Information Office so that the request
may be closed out.
For records not in the Environment Ministry's possession:
7) The records requested do not exist. After
thoroughly searching for the requested records and
determining that they do not exist, write the
requester that the records do not exist and
include appeal language (see sample letter E,
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appendix I). Send a copy to the appropriate
Information Office so that the request may be
closed out of the information tracking system.
8) The records exist but are, for example, in
storage. Records that have been retired for
storage are still considered government records.
These records must be obtained and processed
according to normal information request
procedures. (See section c.2 above.)
9) The records exist but are only in the possession
of another government office or a local or
district office. Notify the requester in writing
(see sample letter F, Appendix I) that the
requested records are not in the government's
possession and indicate that they can contact the
appropriate Ministry or local office in question.
A copy of the letter should be sent to the
appropriate Information Office so that the request
may be closed out.
10) The records exist but are in the possession of a
government contractor. If requested records are
held by a contractor but are not located at the
Environment Ministry, as a general rule, they are
not Ministry records. This would be true, for
example, of contractor working papers that have
not been turned over to the Ministry. Such
requests should be closed out of the Information
Act tracking system following the procedures
discussed in Section c.7 above for records that do
not exist. Records in the possession of a
contractor may be Ministry records when the
contractor is functioning as a custodian of the
records for the Ministry.
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CHAPTER 4: FEES AND FEE WAIVERS
1. GENERAL PROCEDURES
U.S. rule: The Ministry is authorized to charge requesters
the direct cost for document search, duplication and review.
In some cases (for reasons discussed below), these costs are
not charged. The law also provides for a public interest fee
waiver or fee reduction. The requirements for these waivers
are listed in Section 2 later in this Chapter.
a. Initial Review
instructions below reflect EPA policy and should be modified
for Hungarian or Slovenian policy
1) The action office should first estimate as
accurately as possible the cost to the government
of conducting a search, reviewing and copying
costs, if appropriate, (using the fee schedule in
Section 1.f below).
2) If the fees are less than [$25.00 or insert
appropriate number] or if the cost of collecting
the fees would otherwise exceed the amount
collected, no fees will be charged.
3) If the request falls within one of the following
categories, no fees will be charged. (Note that
some of the categories are not considered as
requests subject to FOIA [see Chapter 3]).
o Requests by individuals for records about
themselves. Fees will be waived only for the
first copy.
o Requests by the Congress.
o Requests by another Federal Ministry including
the supervisory and investigatory offices such
as General Accounting Office.
o Requests by a government contractor or
assistance recipient (e.g., a grantee) when the
records are needed in order to perform work
required by the contract, grant or cooperative
agreement.
4) If the request asks for a public interest fee
waiver or reduction in fees, the action office, in
conjunction with the Information Office and the
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appropriate legal office, should determine whether
the fee waiver or fee reduction request should be
granted. (See Section 2, page 4-14)
b. Categories of Requests. U.S. Policy: All requests must
be assigned to one of the following four categories:
o
Commercial Use
o
Educational and Non-Commercial Scientific
Institution
o
Representative of the News Media
o
All Other
Each category of request has a corresponding fee level.
How requests should be categorized and the fee level
associated with each category are outlined below.
c. Determining the Category of the Request. Consider both
the identity of the requester and the requester's intended use
of the information requested. To help the Information Office
make an accurate determination of a request's category, the
following definitions are provided.
Commercial Use: a request from or on behalf of one who
seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or
the person on whose behalf the request is made.
Non-Commercial Scientific Institution: an institution
that is not operated on a commercial basis as that term is
defined above and which is operated solely for the purpose
of conducting scientific research, the results of which
are not intended to promote any particular product or
industry.
Educational Institution: a preschool, a public or private
elementary or secondary school, an institution of
undergraduate higher education, an institution of graduate
higher education, an institution of professional education
and an institution of vocational education, which operates
a program or programs of scholarly research.
Representative of the News Media: any person actively
gathering news for an entity that is organized and
operated to publish or broadcast news to the public. The
term news means information that is about current events
or that would be of current interest to the public.
d. Fees to be Charged. U.S. Policy: Using the above
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definitions as a guide in categorizing a request, fee levels
will be determined based upon the following schedule:
1) Commercial Use Requests. If the request is for
records for a commercial use, the requester is
charged for the time spent searching for the
requested records, reviewing the records to
determine whether any should be disclosed and for
the cost of each page of duplication. Fees will
also be charged for search and review of records
even if there is ultimately no disclosure of
records. If total fees are less than $25.00, no
charge will be made (see administrative fee
waiver, page 4-23).
2) Requests From Educational and Non-Commercial
Scientific Institutions. If the request is from
an educational or non-commercial scientific
institution involved in scholarly or scientific
research and is not for a commercial use, the
requester will only be charged for the duplication
cost of the records. No charge will be made for
the first 100 pages of duplication or for the time
spent searching for and reviewing responsive
records. Final charges should be calculated by
totaling the cost of duplication and then
subtracting the cost of 100 pages of duplication.
If this amount is less than $25.00, no charge
will be made (see administrative fee waiver, page
4-23).
3) Requests From Representatives of the News Media.
If the request is from a representative of the
news media and is not for a commercial use, the
requester will only be charged for the duplication
cost of the records requested. No charge will be
made for the first 100 pages of duplication or for
the time spent searching for and reviewing
responsive records. The final charge should be
calculated by totaling the cost of duplication and
then subtracting the cost of 100 pages of
duplication. If this amount is less than $25.00,
no charge will be made (see administrative fee
waiver, page 4-23).
4) All Other Requests. If the request cannot be
categorized under the three types of requests
defined above, the requester will only be charged
for the search and duplication costs of the
records requested. No charge will be made for the
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first two hours of search time and the first 100
pages of duplication or the time spent reviewing
the record to determine whether it should be
disclosed. The final charges should be calculated
by totaling the fees for search time and
duplication and then subtracting the cost of two
hours of search time and 100 pages of duplication.
If this amount is less than $25.00, no charge
will be made (see administrative fee waiver, page
4-23). Fees will be charged for the search of
records even if there is ultimately no disclosure
of records.
e. Evaluating the Determination. Once the Information
Office has carefully considered both the identity of the
requester and the intended use of the information, an accurate
determination of a request's category will usually be made.
o
Example 1: A local newspaper requests the release
of records for use in a story they are doing on an
environmental issue. Such a request should be
considered as being made by a representative of
the news media and not for commercial use. The
newspaper should be charged accordingly (i.e., for
the duplication costs of the records excluding the
first 100 pages).
At the same time the newspaper has been cited by
EPA for a number of violations at one of its
facilities. The newspaper has requested records to
use in the course of any legal action that might
be brought involving the alleged violations.
Though the request is from a representative of the
news media, the records requested are for a
commercial use. The request should be treated as
a commercial use request and the newspaper should
be charged accordingly (i.e., for the search,
review and duplication costs of the records).
o
Example 2: A professor at a graduate institution
of higher learning has submitted two separate
requests for records. One request is for records
that will be used in a university-sponsored
research project. This request is made on behalf
of an educational institution involved in
scholarly research. The requester should be
charged for the duplication costs of the records
excluding the first 100 pages.
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The second request is for information the
professor is going to incorporate into a database
which he plans to market to the general public.
The information requested is for a commercial use
and the professor should be charged accordingly
(i.e., for the search, review and duplication
costs of the records).
o
Example 3: A university student requests records
that she needs to complete her doctoral
dissertation. Though the student is enrolled at an
educational institution, her request for records
is being made solely for her personal use and not
on behalf of the university which she attends.
Also, the records requested are not for commercial
use but for a scholarly purpose. The request
should be categorized under all other requests and
the requester should be charged accordingly (i.e.,
for the search and duplication costs of the
records excluding the first two hours of search
time and the first 100 pages of duplication).
f. Calculating the Fees. After determining the category of
the request and the corresponding fee level, a calculation of
fees should be made. The fee schedule is as follows:
1) Search Time. Search time--both manual and
computer-- includes all time spent looking for
material that is responsive to a request including
page-by-page or line-by-line identification of
material within documents. Charges for search
time will be made as follows:
o Manual search for records.
U.S. Federal Personnel pay category GS-8 and
below. $4.00 will be charged for each 1/2 hour
or any portion thereof.
Personnel GS-9 and above. $10.00 will be
charged for each 1/2 hour or any portion
thereof.
(Example: If a GS-11 employee spends 40 minutes
locating responsive records, the cost for
searching is $20.00.)
Contractor. When a search for records is
performed by a contractor, requesters will be
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assessed actual direct charges up to but not
exceeding $10.00 per 1/2 hour.
o Computer Search for records.
Personnel GS-8 and below. $4.00 will be charged
for each 1/2 hour or any portion thereof.
Personnel GS-9 and above. $10.00 will be
charged for each 1/2 hour or any portion
thereof.
PLUS
o Computer System Time. Charges will be made for
actual computer resource usage as indicated on the
computer run printout, when available.
o Other Search Costs. Other search costs may
include, but are not limited to, computer system
time, contractor programming time, and the
transportation of records (when required as a part
of the search). These should be charged at the
actual direct cost to EPA.
2) Review Time. Review time is the time spent
examining records responsive to a request to
determine whether any portion of the records
should be withheld. It also includes the process
of excising and otherwise preparing a document for
release. Review time can only be charged to
commercial users. (NOTE: Review time does not
include the time spent resolving legal or policy
issues regarding the application of exemptions).
Personnel GS-8 and below. $4.00 will be charged
for each 1/2 hour or any portion thereof.
Personnel GS-9 and above. $10.00 will be
charged for each 1/2 hour or any portion
thereof.
3) Duplication Costs
o Paper Copy of Paper Original. 15 cents per copy.
o Computer Printout. 15 cents per page.
o Other Duplication Costs. Other duplication costs
may include, but are not limited to, the
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reproduction of photographs, microfilms,
microfiche, or magnetic tapes; computer printouts;
and the transportation of records (when required
in order to reproduce documents). These will be
charged at the actual direct cost to EPA.
NOTE: Two-sided copying is considered 2
copies or 30 cents.
4) Certification or Authentication of Records. $25.00
will be charged per certification or
authentication regardless of the volume of records
being certified or authenticated.
g. Costs not chargeable. No charge may be made:
1) for the delivery of records to the requester (e.g.
mailing costs).
2) for the time spent purging documents of exempt
information (except for commercial use requests).
3) for the time spent duplicating records (this is
included in the 15 cents per copy charge).
4) for preparing and reviewing the information
request response.
5) for materials prepared for free distribution to
the public. A charge for duplication may be made
when printed copies are exhausted and additional
photocopies are necessary.
6) for responding to a request by an individual for
one copy of a record retrievable by the requesting
individual's name or personal identifier from a
Privacy Act System of records.
h. Assure Payment of Fees. If the action office estimates
that the request would require payment of fees equal to or
greater than $25.00, and a fee waiver has not been requested,
(see Section 2, page 4-14), the action office should see if
the requester's letter assures that fees will be paid up to
the estimated amount.
If the letter does not provide the assurance of payment,
the action office should check with the requester (by
telephone if possible) to see if he/she agrees to pay up to
the estimated amount. Normally, the requester is not required
4-7
to make the actual payment in advance (see section i. below).
NOTE: The requester may wish to modify the request and limit
the records sought to bring the fees to an amount he or she is
willing to pay. Action offices should be prepared to assist
requesters in modifying their requests. In having a requester
assure payment of fees, observe the following guidelines:
1) If the final fees to be charged exceed the amount
agreed to by the requester, contact the requester
again to obtain a revised assurance to pay.
2) All discussions with the requester concerning fees
should be documented in writing by the action
office (offices may want to document such
conversations using Conversation Record Form, OF-
271).
3) The records may be released only after the
requester has agreed (verbally or in writing) to
pay the fees.
4) Time used by the action office to secure pre-
payment or assurance of payment is excluded from
the mandatory 10-workday response period.
5) The action office must keep the appropriate
Information Office apprised of all actions taken
with respect to the payment of fees. This
includes furnishing a copy of all correspondence
to the Information Office.
i. Prepayment of Fees. US Policy: An action office may
require a requester to make a prepayment of fees equal to the
estimated amount only if:
1) a requester has previously failed to pay a fee in
a timely fashion; see Section 4, page 4-23 on
Delinquent Requesters), or
2) the action office estimates or determines that the
actual amount of fees will exceed $250.00 and the
requester has no history of payment. If the
prepayment is not received within 30 days after
the date of billing, the request will not be
processed and will be closed. (NOTE: If the fees
will exceed $250.00 and the requester has a
history of prompt payment of fees, the action
office will notify the requester of the
anticipated charges and obtain an assurance of
4-8
payment. If no assurance is given, the request
will not be processed and will be closed).
j. Billing Requesters
this is how billing is handled by US EPA:
1) Billing Procedures. If the requester has assured
payment of fees, the action office shall determine
the fees, complete the Bill for Collection (EPA
Form 2505-4) and enclose it with the response
letter and requested records. The Bill for
Collection Form must be typed and completed as
follows:
o Enter U.S. Environmental Protection Ministry in
the block captioned "Bureau/Office for
Remittance Payable."
o Enter the "lock box" address in the block
captioned "Address for Mailing Payment." (See
Lock Box Addresses under Section j.4, page 4-
13.)
o Enter the assigned RIN number in the block
captioned "Bill No."
o Enter the date of response in the block
captioned "Date." (The Bill for Collection
should be dated the same date as the reply
letter.)
o Enter the name and address of the requester in
the inset block under the heading "Payer."
o In the block under the heading "Description,"
type "FREEDOM OF INFORMATION ACT PAYMENT
REQUEST." Give all the details relating to
information requested and fees charged for
search, review or duplicating records (as
appropriate) including such items as: computer
system time; contractor computer programming
time; reproduction of photographs, microfilms,
or magnetic tape; computer printouts; and trans-
portation of records.
o Enter the total amount of payment requested in
the columns under the heading "Amount Due."
o Enter, at the bottom of the form, the name and
telephone number of the responsible official to
contact if there are any questions.
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o Include with the bill the Fee Schedule and
Payment and Procedures form.
o Make sure to remind the requester in the
response letter to refer to the RIN number when
paying the bill.
A Sample Bill for Collection Form is attached at
Appendix II.
2) Simultaneously Distribute the Bill for Collection
as follows:
o Mail the original to the information requester
along with the prompt payment procedures form,
reply letter and records.
o Forward copies to the appropriate Headquarters
Financial Management Office (Attention: Accounts
Receivable) (see Contact List, Appendix Viand to
the appropriate Freedom of Information Office
together with two copies of the response letter.
o Retain a copy together with a copy of the
response letter, request letter and other
documents for action office files.
3) Billing for Prepayment. If the requester has not
paid timely or has no history of payment and the
action office estimates the fees will exceed
$250.00, an advance payment may be requested
before proceeding with the search for records (see
sample letter H, Appendix I).
Ask the requester to please include the RIN number
on the check or money order.
If after 30 days the action office has not been
notified by the Financial Management Office of
receipt of advance payment, the action office
should call the Financial Management Office and
confirm that no payment has been received. The
action office shall close the file on the request
and forward a written notification to the
appropriate Freedom of Information Office and the
appropriate Financial Management Office.
If the advance payment is more than the actual
cost, a refund shall be made in accordance with
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the procedures described in Section j.6,
page 4-14.
4) Method of Payment. All payments shall be in the
form of a check or money order payable to the
"U.S. Environmental Protection Ministry."
ADDRESSES FOR PAYMENTS
[insert addresses here]
5) Tracking Payments. [insert procedures for
tracking payments]
6) Refund of Payment. If a refund is due, the action
office shall notify the appropriate Financial
Management Office and the appropriate Freedom of
Information Office in writing (see sample memo K,
Appendix I). Upon receipt of written notification
from the action office that a refund is due, the
Financial Management Office initiates a refund and
prepares EPA Form 2500-3, General Ledger Code
Sheet, to record the transactions in the
accounting system. As a matter of policy, refunds
of amounts under $1.00 are not issued unless
specifically requested.
2. PUBLIC INTEREST FEE WAIVERS OR FEE REDUCTIONS
a. General Requirement. The Information Law provides that
documents shall be furnished without any charge or at a
reduced charge if disclosure of the information is in the
public interest because it is likely to contribute
significantly to public understanding of the operations or
activities of the government and is not primarily in the
commercial interest of the requester.
b. Fee Waiver Policy. Requesters asking for a fee waiver
or reduction must present information in support of such a
request. The mere fact that a fee waiver or reduction has been
requested does not automatically mean that a fee waiver or
reduction should be granted.
c. Procedural Guidelines
1) Initial Decision on Waiver. The action office
assigned responsibility for responding to an
initial request, in conjunction with the
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Information Office and legal office if guidance is
needed, makes the initial decision on any request
for a public interest fee waiver or reduction.
This decision requires full understanding of the
records being requested.
2) Obtain Needed Information. The Information Office
will communicate with the requester if additional
information is needed to determine whether the fee
waiver or reduction is to be granted (see Section
2.e, page 4-16 and sample letter I, Appendix I).
Upon receipt of additional Information the
Information Office will send a copy to the action
office and coordinate the fee waiver
determination.
3) Documentation. A decision to deny a fee waiver
request or to grant only a portion of the fee
waiver request (a fee reduction) must be promptly
communicated to the requester by telephone if
possible, with subsequent written documentation.
Any fee waiver request denial must include the
reason for the denial and mention the right to
appeal (see sample letter J, Appendix I). The
requester should be informed that if an appeal is
made, the appeal letter should be addressed to the
Ministry Information Officer.
4) Multiple Copies. The Ministry will consider
waiving or reducing fees only for single copies of
documents. The Ministry is not legally required to
make multiple copies. If additional copies are
requested and are provided at the Ministry's
discretion, full duplication fees will be charged.
5) Delays. The decision to grant or deny a fee
waiver request may be delayed if it is necessary
to identify, by searching, the records requested.
6) Waiver Requests Must Be Written. The requester
must ask for the waiver or reduction of fees in
writing. The Ministry has no responsibility to
ask a requester if a fee waiver is desired.
7) Precedents. FEE WAIVER DETERMINATIONS ARE MADE ON
A CASE BY CASE BASIS. The granting of a fee
waiver for one request does not mean that a fee
waiver will automatically be granted on a later,
related request.
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8) Voluminous Records. When a request involves a
voluminous amount of material and a fee waiver is
requested, the action office should consider
asking the requester to review releasable records
at an EPA
location convenient to the requester and the
Ministry, or consider tailoring the request to
only those records actually sought.
d. Assistance in Making Decisions. Action offices wishing
additional guidance on the Ministry's public interest fee
waiver policy should contact their Information Coordinator or
Information Officer. If additional consultation is needed,
the action office and Information Coordinator or Information
Officer should contact the legal office.
e. Substantive Criteria for Fee Waivers. Requests for public
interest fee waivers or reductions must be decided on a case-
by-case basis. A request for a reduction or waiver of fees
can only be granted if it meets the following two
requirements:
1) disclosure of the information is in the public
interest because it is likely to contribute
significantly to public understanding of
government activities and operations and
2) it is not primarily in the commercial interest of
the requester.
This section discusses how to administer a U.S. legal/policy
issue:
The six enumerated factors elaborated upon below are those
which the new statutory standard, by its plain language,
requires action offices to take into consideration in
determining whether the two basic requirements for a fee
waiver or reduction are met. A careful analysis of the
factors, in sequence, is necessary to lead to a proper
determination of whether a request satisfies the statute's
specific "public interest" requirement.
1) The Subject of the Request: Whether the Subject
of the Requested Records Concerns "the Operations
or Activities of the Government."
The subject matter of the requested records must
specifically concern identifiable operations or
activities of the federal government.
In most cases records possessed by EPA will likely
4-13
meet this threshold. There are cases in which
requested records do not directly concern
government operations or activities, and therefore
would fail to meet it. Requests seeking records
for their intrinsic content rather than their
value with respect to specific government
operations or activities, are not usually expected
to contribute to public understanding of those
operations or activities.
2) The Informative Value of the Information to be
Disclosed: Whether the Disclosure is "Likely to
Contribute" to an Understanding of Government
Operations or Activities.
This requires an analysis of the substantive
content of the disclosable portions of the
requested records in order to determine whether
their disclosure will in fact be informative
regarding the particular government activities or
operations that are connected to the subject
matter of the request. The action office is in
the best position to make this determination.
If the records (or record portions) which can be
released in response to that request contain
nothing that is meaningfully informative on
government operations or activities, then the
requested FOIA disclosure would not contribute to
an understanding of them. The foundations for a
proper fee waiver analysis must be a close
appraisal of the Information to be disclosed with
careful attention to the potential that it holds
for contributing to the public understanding of
government operations or activities.
If the requested Information is already in the
public domain in substantially identical form,
then disclosure of the Information would not be
likely to contribute to an understanding of
government operations or activities, as nothing
new would be added to the public record.
3) Contribution to Understanding of the Subject by
the Public Likely to Result from Disclosure:
Whether Disclosure of the Requested Information
will Contribute to "Public Understanding."
Will disclosure contribute to the understanding of
the public at large, as opposed to the individual
4-14
understanding of the requester or a narrow segment
of interested persons. The proper focus must be
on the contribution to public understanding,
rather than personal benefit to be derived by the
requester. Thus, a requester's indigence, for
example, does not entitle him to a fee waiver;
there must be a credible showing of a contribution
to the public's under-standing that would result
from the disclosure.
A requester's identity and qualifications (e.g.,
expertise in the subject area and ability and
intention to disseminate the Information to the
general public) should be evaluated. Specialized
knowledge is often required to extract, synthesize
and effectively convey information to the public
and requesters vary in their ability to do so.
Where not readily apparent, requesters should be
asked to describe with specificity their
qualifications, the nature of their research, the
purpose for which they intend to use the requested
Information, and their intended means of
dissemination to the public.
Bare assertions by requesters are insufficient
evidence that a contribution to understanding by
the general public will ultimately result from a
disclosure. Generally, representatives of the
news media will be able to satisfy this statutory
requirement.
4) Significance of the Contribution to Public
Understanding: Whether the Contribution to Public
Understanding of Government Operations or
Activities Will be "Significant."
Finally, will an identified contribution to public
understanding of government operations or
activities will be a "significant" one, i.e., such
that the general public's understanding of the
subject matter in question likely will be enhanced
by the disclosure to a significant extent.
This final step in the "public interest" analysis
requires an Ministry to focus as realistically as
possible on the precise nature of the public
contribution likely to result from a disclosure.
It involves an assessment of the likely impact of
the disclosure on the public's understanding of
the subject in question, as compared to the level
4-15
of public understanding of that subject existing
prior to the disclosure.
If the action office determines that the likely
contribution to public understanding is
significant, then the "public interest"
requirement for fee waiver determinations is fully
satisfied.
Once an action office is satisfied that the first
requirement for a fee waiver has been met, the
statute then requires a determination of whether
disclosure of the requested Information is
primarily in the commercial interest of the
requester.
5) The Existence and Magnitude of a Commercial
Interest: Whether the Requester has a Commercial
Interest that Would be Furthered by the Requested
Disclosure.
Does the request involve any commercial interest
of the requester and, if so, determine does the
requester's commercial interest outweighs the
public interest. A "commercial interest" is one
that furthers a commercial, trade or profit
interest as those terms are commonly understood.
Where an action office reasonably believes that
such circumstances suggest the existence of a
commercial interest in disclosure, the requester
should be given an opportunity in the
administrative process to provide further
information rebutting such reasonable inferences
or clarifying the circumstances of the request
where necessary.
Where a commercial interest is found to exist, and
it would be furthered through the disclosure, the
magnitude of that commercial interest must be
assessed.
6) The Primary Interest in Disclosure: Whether the
Magnitude of the Identified Commercial Interest of
the Requester is Sufficiently Large, in Comparison
with the Public Interest in Disclosure, that
Disclosure is "Primarily in the Commercial
Interest of the Requester."
Once it has been determined that the requester has
4-16
a commercial interest, the action office must then
determine whether disclosure of the information
would be "primarily" in that interest. This
requires a balancing of the requester's commercial
interest against the public interest in
disclosure.
If the public interest can fairly be regarded as
outweighing the requester's commercial interest, a
fee waiver or reduction should be granted.
For example, although newsgathering organizations
usually have a commercial interest in obtaining
information, the traditional process of
newsgathering and dissemination by established
news media organizations, as a rule, should not be
considered to be "primarily" in their commercial
interest. On the other hand, the disclosure of
Ministry records to data brokers or others who
compile and market government information for
direct economic return can more readily be
considered as primarily in the commercial
interests of the requester, depending on the
nature of the records and the exact circumstances
of the enterprise.
f. Reduction in Fees. If only a portion of the requested
records for which a fee waiver has been requested will meet
the criteria for granting a waiver, a reduction in fees may be
granted. Examples of when a reduction in fees would be
appropriate include:
1) Part of the records may already be in the public
domain;
2) Some of the records may relate only to the
personal interests of the requester;
3) Some records would have little or no value to the
public if disclosed; or
4) Some records may involve a subject that is not of
public interest.
Fees in these cases should be prorated based on the
percentage of records that meet the fee waiver criteria.
h. Fee Waiver or Fee Reduction Appeals. When an action
office denies a request for a public interest fee
4-17
waiver or reduction, the requester must be
informed in writing of the decision and of the
right to appeal.
3. ADMINISTRATIVE FEE WAIVERS
this section reflects U.S. EPA policy (the policy is under
review and may be changed):
a. Fees Less Than $25.00 Are Waived. EPA does not collect
fees totaling less than $25.00 per request. This reflects the
EPA's determination that the cost to the government of billing
and recording the payment of FOIA fees is at least $25.00. If
the total fee is less than $25.00, the Ministry's response
should include a statement that the fees are waived as de
minimis.
b. Difference Between Advance Fees and Final Fees Is Less Than
$25.00. If the difference between the advance fees and the
actual fees is less than $25.00, the difference is waived and
not billed. This reflects the Ministry's determination, in
accordance with [insert appropriate legal citation], that the
costs of collecting the remaining fees would exceed the amount
outstanding.
c. Each Request Is Separate. As a general rule, each
written request for records will be viewed as a separate
request for fee calculation purposes. However, in cases in
which it appears that a requester has divided the request into
several parts in an attempt to avoid paying fees, the parts
may be considered together for billing purposes. The parts of
the request should relate to records existing in the Ministry
at the time of the first part of the request.
4. DELINQUENT REQUESTERS
Requesters who have not submitted payment within 60 days
are considered "delinquents". The Information Offices will
maintain and share lists of delinquents. If a requester whose
name appears on the delinquent list makes a new request, the
Information Office shall inform the requester that EPA will
not process the request until payment of the overdue fee from
the earlier request is submitted (see sample letter G,
Appendix I).
4-18
CHAPTER 5: RELEASING RECORDS
1. WHO MAY RELEASE RECORDS
a. Authorized Officials. [name the specific ranks of
officers] are authorized under[insert appropriate legal
citation] of the Ministry's Information Act regulations to
issue initial determinations to release records in response to
information requests.
b. Re-delegation of Authority. For responses when records
are to be released in full, the officials named above may re-
delegate their authority downward to any level of Ministry
staff. Chapter 1, Section 7.a, describes the re-delegation
process.
2. WHAT MAY BE RELEASED
a. Presumption to Release. [Hungary] [Slovenia's]
information law is intended as a disclosure law, not a
withholding law. There should be a presumption in favor of
releasing information. Information must be released unless it
falls into one of the nine exemptions or the exclusions
(covered in Chapter 7).
o
All releasable records are subject to public dis-
closure on request, regardless of whether the
requester has shown any justification or need for
the documents requested.
o Some information that is legally exempt is, by
government policy, normally released to the
public. Such discretionary release is discussed
in Chapter 9.
b. Existing Records. Only existing Ministry records are
subject to release. Offices need not create records or
compile new information to respond to an information request.
c. Cut-Off Date for Search. Ordinarily, the Ministry is
responsible for releasing only those records that
exist as of the date of receipt of a request by the
Information Office.
d. Examples of Releasable Records
1) As a general rule of thumb, the following should
5-1
be released: final orders and opinions in
administrative actions; official policy
statements, interpretations and guidelines that
have been adopted by the Ministry; official
government manuals and similar instructions; and
job position descriptions.
2) The type of document per se is not the sole factor
in determining whether records should be released
to the public. Each document--e.g., memo, drafts,
notes--needs to be analyzed on its own merits for
releasability.
e. Consultation. If there are any questions concerning a
document's releasability after reading Chapters 6 and 7,
consult with the appropriate Information and/or legal office.
3. TIME FRAME FOR RELEASING RECORDS
U.S. policy/law:
a. 10-Workday Time Limit
An initial determination to release a requested record
must be made and a letter mailed to the requester by the tenth
workday after receipt of a request by the Information Office.
While this does not mean the requested record must be
released by that date, (e.g., if copying is not yet
completed), the record should be forwarded to the requester
promptly thereafter.
b. Extensions. Under [insert appropriate legal citation]
the 10-workday time limit may be extended up to an additional
10 workdays if it is "absolutely necessary" because of:
o
the need to search for and collect records from
field or other separate offices;
o
the need to search for, collect and examine a
voluminous amount of information;
o
the need to consult with another Ministry or
office within the Ministry.
If an extension is necessary, the responsible action
office should notify the appropriate Information Office and
then contact the requester in writing (see sample letter L,
Appendix I) prior to the end of the initial 10-workday
response period, informing him/her of the extension, why it is
necessary and when the office expects to issue its
determination. A copy of this letter should be sent to the
4-2
appropriate Information Office and Program Information
Coordinator.
c. Legal Recourse. All government personnel responding to
information requests should bear in mind that if a request is
not answered within 10 workdays (or 20 workdays if extended),
the requester may initiate legal action.
4. PREPARING RELEASE LETTERS
a. Basics. Every government information release letter
should:
o
be cordial and convey an attitude of cooperation;
o
include the applicable RIN number;
o
include an itemized enclosure list; or
o
include necessary cc/bcc information for
recordkeeping purposes;
b. Sample Release Letter. A sample full release letter,
acknowledging a positive determination and enclosing the
requested record(s) and index, is included at sample letter M,
Appendix I.
c. Sample Release Letter Without Records. When the requested
record(s) cannot be released simultaneously with the release
determination, language to that effect should be included in
the release letter. A sample release letter without records
is included at sample letter N, Appendix I.
5. RECORDKEEPING
[set our procedures for retaining and storing copies of
response letters.]
4-3
CHAPTER 6: WITHHOLDING RECORDS
1. WHO MAY WITHHOLD RECORDS
a. Authorized Officials. The authority to make initial
determinations to withhold records is delegated to [specify
specific levels by title].
2. WHAT MAY BE WITHHELD
This section discusses U.S. law exemptions; this should be
modified to fit Hungarian/Slovenian law:
a. Exemptions to the right to obtain information. Records
must be released unless they fall into one or more of the
exemption categories established by the law.
b. Partial Denial. If records contain both exempt and non-
exempt information, the non-exempt information must be
disclosed if it is reasonable and possible to separate out the
exempt material, and the necessary deletions can be made
without making the record unintelligible. Section 6 of this
chapter (page 6-6) sets out the procedures for partial denial.
c. Discretionary Release. If a record in EPA's possession
does not fall into one of the exemption categories or
exclusions, its release is mandatory. If the record is
legally exempt by virtue of Exemption 2, 5 or 7 (with the
exception of 7(C) or (D)) of the Act, it nonetheless may be
released at the Ministry's discretion (see Chapter 9).
3. PRIOR DISCLOSURE
a. Effect of Prior Disclosure. If a document has already
been disclosed to the public, depending upon the circumstances
of the release, that fact may impair the ability of the
Ministry to withhold the records in response to a future
request, even if an exemption would otherwise apply.
In general, once a record has been official released in
response to an information request (even mistakenly), that
record cannot later be withheld from a subsequent requester.
An exception would be where, for example, confidential
business information can be released to the business that
submitted the information, but would still be withheld from
other requesters.
b. General Rules Regarding Prior Disclosure
U.S. Policy:
6-1
1) Circulation of records within an Ministry or
between Ministries (i.e. solely within the
government) does not prohibit the Ministry from
subsequently withholding the records.
2) Disclosure of predecisional and deliberative
records to advisory committees or to the Congress
does not prevent future withholding.
3) When an Ministry is compelled to release a
document under limited and controlled conditions
(e.g., release of documents under protective order
in an administrative proceeding), it is not barred
from later invoking applicable exemptions.
4) Where a prior disclosure has fulfilled a
legitimate government purpose (e.g., disclosure of
enforcement information to a delegated State), a
waiver has not necessarily occurred and the
records may be withheld.
5) Where a prior disclosure was unauthorized (e.g., a
"leak"), a waiver has not occurred and the records
may be withheld.
4. TIME FRAME FOR DENYING REQUESTS
a. 10-Workday Time Limit. An initial determination to deny
requested records must be made and mailed to the requester by
the tenth working day after receipt of a request by the
information Office.
b. Extensions. As in the case with releasing records, the
10-workday limit may be extended for up to an additional 10
workdays while considering withholding records if it is
"absolutely necessary" because of:
o
the need to search for and collect records from
field offices or other separate offices;
o
the need to search for, collect and examine a
voluminous amount of information; or
o
the need to consult with another Ministry or
office of the Ministry.
If an extension is necessary, the responsible action
office should contact the requester in writing (see sample
letter L, Appendix I) prior to the end of the initial 10-day
4-2
response period, informing him/her of the extension, why it is
necessary, and when the office expects to issue its
determination.
c. Legal Recourse. All government personnel responding to
information requests should remember that if a request is not
answered within 10 workdays (or 20 workdays if extended), the
requester may initiate legal action.
5. DENIAL LETTER
a. Basics. Every Ministry information denial letter
should:
1) be cordial and convey an attitude of cooperation,
even if the response is a denial;
2) include the applicable document tracking (RIN)
number;
3) include an itemized list of the withheld records,
a reference and summary of the applicable
Information Act exemption(s) for each (use the
statute for reference purposes), and any
additional information that may help the requester
understand the Ministry's denial. The itemized
list should normally include the type of record,
the author's name (the "to" and "from" in the case
of letters and memoranda), the date, the subject,
the number of pages, the specific statutory
exemption(s), and the reason(s) for withholding.
NOTE: An itemized index should not be included if
there is concern that the denial may disclose the
existence or non-existence of records, see Section
5.c below.
If Exemption 5 or 7 is the basis for the denial
(see Chapter 7), the letter should specify the
particular privilege or Exemption 5 relied upon
(e.g., the deliberative process privilege) or the
particular sub-section of Exemption 7. Ministry
personnel have a duty to apprise the requester of
the bases for the withholding.
In the case of a large number of similar records,
the records may be listed by general category (for
example, 30 bills of lading submitted by company X
relevant to the XYZ Superfund site);
4-3
4) include the name and position of the government
employee responsible for denying a request, if
that person is different from the signer of the
determination letter. NOTE: This requirement is
particularly important in instances where a
request requires multiple action directed by a
lead office;
5) state that the requester has the right to appeal
the initial denial by sending a written appeal to
the Ministry Information Officer within 30 days of
receipt of the denial letter;
6) include the signature and title of the duly
authorized Ministry employee issuing the denial
(generally at the [insert appropriate title] level
or higher); and
7) include necessary cc/bcc information for record-
keeping.
b. Special Circumstances. In some instances, merely
revealing to the requester the existence or nonexistence of
records would mean disclosing information that an exemption is
designed to protect. Under these circumstances action offices
should avoid disclosing the existence or nonexistence of the
records requested. They should issue a denial stating that
the request is denied because "either the records do not exist
or they are exempt from mandatory disclosure under the
applicable legal provision." (See Chapter 7, "Glomar", page
7-9.) U.S. policy: Do not issue such a determination without
the concurrence of the Legal Office.
In certain circumstances action offices may deny the
existence of law enforcement records or information that are
excluded from the disclosure requirements of the Information
Act (see Chapter 7, "Exclusions" page 7-14). U.S. policy: Do
not issue such a determination without the concurrence of the
Legal Office and the Ministry of Justice.
c. Sample Denial Letter. A copy of a sample denial letter
is included at sample letter O, Appendix I.
d. Reminder. Since denial letters usually form the basis
of the Ministry's position during subsequent appeals (and
often in litigation as well), they should be clear, well-
reasoned and comprehensive.
4-4
6. PARTIAL DENIAL OF RECORDS
a. Policy. Some requested documents contain both exempt
and non-exempt information. In such cases, the non-exempt
portion(s) should be forwarded to the requester after the
exempt portions have been deleted.
For example, records or information compiled for law
enforcement purposes that contain both exempt and non-exempt
information should be purged of the exempt information, and
the remainder released. Delete only those portions of the
record that would interfere with or harm the government's
enforcement action and release the portions that would not
harm the enforcement action.
b. Guidelines
1) [insert appropriate legal citation] states that
all "reasonably segregable" material should be
disclosed.
2) Deletions of portions of a record of less than a
sentence in length are encouraged if the meaning
of the sentence is not obscured.
3) Any information otherwise disclosable that is
"inextricably intertwined" with exempt information
may be withheld.
4) To determine which portions of a record must be
deleted, see the discussion of the Information Act
exemptions in Chapter 7.
5) Do not purge proprietary information that belongs
to the specific requester. For example,
confidential business information is generally
available to the submitter of the information.
Personal information about an individual (such as
a Social Security number) is generally available
to that individual.
6) Doubts about the intelligibility of a document
after all necessary deletions have been made
should be resolved in favor of release.
7) Normal fees should be charged for those requests
where records are denied or partially denied (see
Chapter 4, Section 1.f).
c. Sample Partial Denial Letter. Guidelines under Section
4-5
5.a. of this chapter, should be followed in preparing a
partial denial letter. A sample partial denial letter is
included at sample letter P, Appendix I.
d. Reminder. Like full denial letters, partial denial
letters usually form the basis of the Ministry's position
during subsequent appeals (and often litigation as well).
They should, therefore, be clear, well-reasoned and
comprehensive.
7. RECORDKEEPING
a. [insert Hungarian or Slovenian rules concerning
keeping copies of information act responses]
4-6
CHAPTER 7: EXEMPTIONS AND EXCLUSIONS
1. OVERVIEW
The Information Act establishes [fill in correction
number] exemptions which provide the only basis for
withholding information. The exemptions may apply singly or
in combination to a given request. The exemptions are listed
in the box below and discussed at length in the body of the
chapter. If you have questions concerning whether specific
documents may fall under any of the exemptions, consult the
appropriate information or legal office.
U.S. law/policy:
+-----------------------------------------------------+
¦ ¦
¦ Exemption 1 - Matters of National Defense or ¦
¦ Foreign Policy ¦
¦ ¦
¦ Exemption 2 - Internal Ministry Rules ¦
¦ ¦
¦ Exemption 3 - Information Exempted by Other ¦
¦ Statutes ¦
¦ ¦
¦ Exemption 4 - Trade Secrets, Commercial, or ¦
¦ Financial Information (Confidential ¦
¦ Business Information) ¦
¦ ¦
¦ Exemption 5 - Privileged Inter- or Intra-Ministry ¦
¦ Memoranda ¦
¦ ¦
¦ Exemption 6 - Personal Privacy ¦
¦ ¦
¦ Exemption 7 - Records or Information Compiled for ¦
¦ Law Enforcement Purposes ¦
¦ ¦
¦ Exemption 8 - Records of Financial Institutions ¦
¦ ¦
+-----------------------------------------------------+
2. THE EXEMPTIONS
a. Exemption 1 - Matters of National Defense or Foreign Policy.
This exemption authorizes a Ministry to withhold information
concerning national defense or foreign policy.
1) To qualify under this exemption, the information
7-1
must fall under the criteria established by
[insert relevant legal authority} to be classified
in the interest of national defense or foreign
policy.
2) [insert any special rules about classification]
b. Exemption 2 - Internal Ministry Rules. This exemption
protects records "related solely to the internal personnel
rules and practices of a Ministry."
1) Internal matters of a relatively trivial nature
for which there is no substantial and legitimate
public interest in disclosure are encompassed
under this exemption. Examples include: documents
governing staff use of parking facilities;
statements of policy as to sick leave; and file
numbers, routing stamps and other administrative
markings. The rationale for such withholdings is
to prevent unwarranted administrative burden.
2) As a matter of policy, a Ministry can decide to
release records of a trivial nature, even though
such records fall within a legal exemption (see
Chapter 9).
c. Exemption 3 - Information Exempted by Other Statutes. Under
this exemption, information that is specifically exempted from
disclosure by other laws is also exempt from disclosure under
the Information Disclosure Act [insert appropriate legal name
of law or citation].).
1) [if relevant, provide example and explain the
details].
2) U.S. rule: The statute in question must (1) leave
no discretion as to the requirement that matters
be withheld from the public or (2) establish
particular criteria for withholding or refer to
particular types of matters to be withheld.
d. Exemption 4 - Trade Secrets, Commercial or Financial
Information (Confidential Business Information). This exemption
authorizes the withholding of trade secrets and commercial or
financial information obtained from a person and privileged or
confidential. [Hungarian] [Slovenian] regulations elaborating
on Exemption 4 are located at [insert name of law or
regulation]. See Chapter 8 for a detailed discussion of
7-2
procedures to be followed in responding to requests involving
Confidential Business Information (CBI).
e. Exemption 5 - Privileged Inter-Ministry or Intra-Ministry
Memoranda. This exemption allows the Ministry to withhold from
disclosure inter-Ministry or intra-Ministry memoranda or
letters which fall under one or more of the following
privileges:
these reflect U.S. law and policy:
o the deliberative process privilege;
o the attorney work-product privilege;
o the attorney-client privilege;
o the government commercial information privilege;
o the expert witness report privilege;
o the investigative report privilege; and
o the confidential informant privilege (see also
Exemption (b)(7)(D)).
1) Ministry Discretion and Waiver. Following is U.S.
EPA policy: The government is encouraged to
release such documents, unless release would
significantly harm the decisionmaking process.
All of these privileges may have been waived if
the Ministry has disclosed the document to third
parties (see Chapter 6, Section 3 on Prior
Disclosure).
2) Inter- or Intra-Ministry Records. Exemption 5
only applies to records within or between
government agencies.
o Inter-Ministry Records include only those
transmitted between Federal agencies.
o Intra-Ministry Records are those transmitted
within the Environment Ministry and include
reports prepared by outside consultants at the
request of the Ministry.
3) The Privileges under Exemption 5.
The following details the U.S. rules:
o The Deliberative Process Privilege. The purpose
of this privilege is to protect the quality of
the government's decisionmaking process (i.e.,
to protect against premature disclosure of
proposed policies before they are adopted), to
encourage candid and frank discussions among
government officials, and to avoid premature
7-3
disclosure which could mislead the public.
o Predecisional, Deliberative Documents.
Predecisional, deliberative documents are
written prior to the Ministry's final decision
and usually contain recommendations or express
opinions on that decision. These documents
typically discuss the pros and cons of adoption
of one viewpoint or another. In determining
whether a document is predecisional, consider
the document's language and its place in the
Ministry's chain of decisionmaking. Documents
written by a subordinate and transmitted to a
superior are more likely to be predecisional
than those written by a person with final
decision-making authority.
o Drafts of Documents are Often Predecisional.
They must be part of the decisionmaking chain
and either (1) contain language which discusses
or debates the decision being made, or makes
recommendations, such as a memorandum from a
subordinate to a superior which discusses the
effects and pros and cons of the decision; or
(2) represent a tentative expression of the
Ministry's position, as in a draft
administrative order or memorandum which is
being reviewed prior to the adoption of a final
Ministry position.
o Factual Portions of Deliberative Process
Documents Must Ordinarily be Released. Purely
factual portions of documents must not be
withheld, unless they reveal the Ministry's
deliberations or involve some subjective
opinion. Purely factual portions of these
documents must be released if they can be
segregated from the remainder of the document
(see Chapter 6, Section 6).
o Final and Post-Decisional Documents. Final
decision documents and post-decisional documents
may not be withheld under the deliberative
process privilege. These include post-
decisional analyses or explanations of a final
decision as well as descriptions of Ministry
efforts to enforce current Ministry policies.
Documents lose their predecisional status if
they are adopted, either formally or informally,
as the Ministry's final position on a matter, or
7-4
if they are specifically incorporated by
reference in a final Ministry decision.
o Settlement Documents. Some courts have held
that documents transmitted between the
government and third parties during settlement
negotiations are not inter- or intra-Ministry
documents, but have indicated much sympathy for
withholding such documents from public
disclosure for policy reasons. The Department
of Justice has indicated that settlement
documents may be withheld by agencies at the
administrative level, particularly where strong
policy interests militating against disclosure
are present.
o The Attorney Work-Product Privilege. This
privilege allows the withholding of documents
prepared by, or at the direction of, an attorney
in anticipation of possible litigation.
Litigation need not have commenced but it must
be reasonably contemplated. This means that a
specific claim must exist that is likely to lead
to litigation. The privilege is still
applicable after a legal case has ended or even
if it was never begun, as long as the documents
were prepared in reasonable contemplation of
litigation.
Segregable factual materials need not be deleted
from attorney work-product documents since the
facts are generally intertwined with an
attorney's evaluation of the case. The
privilege, however, does not extend to purely
factual documents unless the documents reflect
the results of an attorney's evaluation, or
reveal his/her strategy or thought process.
o The Attorney-Client Privilege. This privilege
applies to confidential communications between
attorney and client. An attorney-client
relationship exists for communications between
an Ministry attorney and an Ministry employee.
The application of this privilege requires that
the communications between the parties be of a
confidential nature. The availability of the
attorney-client privilege is not limited to the
context of litigation. The privilege still
applies when this information is disseminated
within the Ministry to persons involved with the
7-5
matter in question. However, unrestricted
distribution within the Ministry would preclude
the Ministry from claiming the privilege.
o The Government Commercial Information Privilege.
A privilege is available to the government for
information it generates in the process leading
up to the award of a contract. This privilege
expires once the contract is awarded or upon
withdrawal of the contractual offer. An example
of this privilege is cost estimates prepared by
the government and used to evaluate the
construction proposals of private contractors.
o The Expert Witness Report Privilege. Another
privilege that is commonly invoked allows the
withholding of records generated by an expert
witness.
o The Investigative Report Privilege. This
privilege has been applied to protect witness
statements in Inspector General investigations.
o The Confidential Informant Statement Privilege.
Statements obtained from confidential informants
such as statements given to the Inspector
General by witnesses who have been granted
confidentiality, may be withheld.
f. Exemption 6 - Personal Privacy. Exemption 6 permits the
withholding of all information about individuals in
"personnel, medical, and similar files, the disclosure of
which would constitute a clearly unwarranted invasion of
personal privacy."
1. Threshold test: The record must be a personnel,
medical or similar file. This is a relatively
easy test to meet.
o The actual label assigned to the file is of no
significance. Nor does the information have to
be of a highly sensitive or intimate nature.
o If a record can be sanitized so that the
identity of the individual cannot be determined
from the record itself, or from the record in
conjunction with publicly available information,
the record is not a similar file and does not
meet the threshold test for Exemption 6.
7-6
Accordingly, a sanitized copy of the record
should be disclosed.
2. Balancing test: Information that meets the
threshold test may be withheld under Exemption 6
if the invasion of privacy resulting from
disclosure would be clearly unwarranted. To
determine this, the individual's privacy interest
must be balanced against the public interest in
disclosure.
Privacy interest: Encompasses the individual's
reasonable expectation of privacy and control over
the dissemination of personal information about
himself. Individuals have an expectation of
privacy with respect to information which, by its
nature, is personal, embarrassing or otherwise
injurious to the individual.
o Individuals may have a privacy interest in
information which is publicly available, e.g.,
marital status or home address, but there is no
privacy interest in information which is very
well known and clearly in the public domain.
o Businesses and other entities do not have
privacy rights.
Public interest: There is a public interest in a
particular Ministry record if disclosure of that
record sheds light on the operations or activities
of the government. The interest is that of the
general public in knowing what its government is
doing. The information requester's identity,
personal motives or interests (including
commercial interests) in seeking the information
are not relevant to the issue of public interest
and must not be considered in determining if a
public interest exists.
Balancing process: First, determine if the
individual has any privacy interest in the
information. If there is none, the information
must be released even if there is no public
interest. Second, if there is a privacy interest,
determine whether any public interest in the
information exists. If both privacy and public
interests exist, the competing interests must be
weighed against each other and the stronger
7-7
interest prevails. If the privacy interest
outweighs the public interest, the Information is
exempt under Exemption 6 and may not be released
in the Ministry's discretion.
3. Glomar: Occasionally a request for information is
worded in such a way that it would not be possible
to deny the record under Exemption 6 without
revealing the very information which is protected
under the Exemption. For example, drug counseling
records maintained by EPA's Employee Counseling
and Assistance Program are normally withholdable
under Exemption 6. However, if the government
denied an information request for such records in
reliance on Exemption 6, it would be revealing the
existence of such records, the very information
which is protected. To guard against such
inadvertent disclosures, the Ministry may provide
a "Glomar" response; that is, it would neither
confirm nor deny the existence of records in
response to all requests for counseling records.
4. Law Enforcement Records: Exemption 6 would
normally be applicable to protect the personal
privacy of individuals named in law enforcement
files if there is no countervailing public
interest. Exemption 7(C), which protects personal
privacy in the law enforcement context, would also
be applicable
5. Personnel-Related Records on Federal Employees:
the government frequently receives information
requests for personnel-related information on
current and former Ministry employees. Government
employees have privacy rights with respect to the
personal details of their employment and there is
frequently little or no public interest in this
information. However, other personnel information
on government employees is considered available to
the public upon request because it has been
determined by the courts, other authoritative
bodies and/or common practice that there is little
if any privacy interest in this information. Many
records, such as employee applications and
official personnel folders, contain both exempt
and non-exempt information. The following lists
describe the types of personnel-related
information which is frequently subject to
information requests and whether such information
is customarily considered exempt or not under
7-8
Exemption 6.
U.S. policy:
EXEMPT
NOT EXEMPT
Social Security No.
Name/position/organization *
Home addresses & Telephone
Office addresses/ Tel. No. *
No.
Fed./State Gov. salaries
Salaries in the Private
(past and present)/amounts of
Sector
awards
and within grade increases
Evaluations/appraisals
Position descriptions/job
Employment/Education data
standards
not related to qualifications
for Federal employment
Employment/Education data
related to qualifications for
Identities of unsuccessful
Federal employment
applicants for employment or
promotion
Identities of successful
Recommendations for
applicants for employment or
promotions, awards
promotion
College grades
Approved promotions, awards,
7-9
including employee grade and
Birth date/Marital status/
step
similar personal or family
data
Past Federal/State/Military
service and dates of service
Life/health/charity/thrift
*
savings options and
withholding data
Citizenship
Reasons for terminating past
employment
Leave records
* With the exception of
certain sensitive positions
7-10
g. Exemption 7 - Records or Information Compiled For Law
Enforcement Purposes. U.S. policy: Records or information
compiled for law enforcement purposes need not be disclosed in
six specific instances (discussed below).
1) Exemption 7(A): Interference with Law Enforcement
Proceedings. Records or information compiled for
current, pending or anticipated law enforcement
purposes may be withheld where disclosure "could
reasonably be expected to interfere with
enforcement proceedings." Harm to the
government's case in court by premature release of
evidence or information, or damage to the
Ministry's ability to conduct an investigation,
constitutes interference under this exemption.
Damage to a related or similar enforcement
proceeding also constitutes interference.
The government must be able to specifically
articulate the kind of harm that would affect its
case, for example: premature disclosure of the
government's evidence and strategy or the focus of
its investigation, and the possibility that
potential witnesses and sources of information
would be inhibited.
2) Exemption 7(B): Deprive a Person of the Right to
a Fair Trial. Records or information compiled for
law enforcement purposes may also be withheld if
their disclosure "would deprive a person of the
right to a fair trial or an impartial
adjudication."
3) Exemption 7(C): Unwarranted Invasion of Personal
Privacy. Records or information compiled for law
enforcement purposes may be withheld if disclosure
"could reasonably be expected to constitute an
unwarranted invasion of personal privacy." The
public interest in the disclosure of a document
must be balanced against the invasion of privacy
that would result from disclosure. This exemption
pertains to any personal information compiled for
law enforcement purposes.
Courts have recognized the danger of damage to an
individual's reputation simply because his or her
name is mentioned in a record compiled for law
enforcement purposes even though he or she is not
charged. Such information may be released only
7-11
where exceptional interests weigh in favor of
disclosure.
Exemption 7(C) is also used to protect the
identities of law enforcement officials who are
personally involved in compiling records or
information for law enforcement purposes, and to
withhold the names of informers who may not
technically qualify as confidential sources under
Exemption 7(D).
4) Exemption 7(D): Disclose Identity of A
Confidential Source. This allows withholding of
information provided by a confidential source even
if the information was obtainable by other means.
There is no balancing test used in applying this
exemption. To receive protection under this
Section, the Ministry must have given sources an
express promise of confidentiality, or there must
be circumstances from which assurances of
confidentiality reasonably may be inferred.
5) Exemption 7(E): Reveal Techniques, Procedures or
Guidelines. This exemption permits the
withholding of records or information compiled for
law enforcement purposes that "would disclose
techniques and procedures for law enforcement
investigations or prosecution, or would disclose
guidelines for law enforcement investigation or
prosecution if such disclosure could reasonably be
expected to risk circumvention of law."
6) Exemption 7(F): Endanger Life or Safety of Any
Individual. Under this exemption any records or
information compiled for law enforcement purposes
may be withheld if disclosure "could reasonably be
expected to endanger the life or physical safety
of any individual." No balancing test is
required.
h. Exemption 8 - Records of Financial Institutions. This
exemption applies to reports prepared for agencies
responsible for the regulation or supervision of
financial institutions (such as the Federal Reserve
Board).
7-12
7-13
CHAPTER 8: BUSINESS CONFIDENTIALITY
The rules set out below are U.S. rules. It appears that under
current Hungarian and Slovenian rules, it may not be possible
to exempt CBI from disclosure, and that the only remedy for
mis-use of proprietary information may be a civil law suit.
In the event that either country re-thinks this position, the
procedures below will be useful and relevant.
1. AUTHORITY
[Hungary's] [Slovenia's] basic rules concerning
Confidential Business Information (CBI) are set out in [insert
references to relevant laws and regulations]. These special
rules incorporate, modify, or replace the basic rules for
information gathered under these statutes. When basic rules
and the special rules conflict, the provisions of the special
rules should be followed.
2. INTRODUCTION
In the course of its work, the government receives
information that may be entitled to protection from disclosure
for reasons of business confidentiality. In defining what
constitutes "confidential business Information," a reasonable
definition is found in Exemption 4 [insert legal reference],
which allows an Ministry to withhold from disclosure "trade
secrets and commercial or financial Information obtained from
a person and privileged or confidential."
Under Exemption 4, commercial or financial information is
determined to be confidential if its disclosure would be
likely to: (1) impair the government's ability to obtain
necessary information in the future or (2) cause substantial
competitive harm to the person/business from whom the
information was obtained. The second test, that of
substantial competitive harm, is the one most commonly applied
to information in the government's possession because many of
our statutes give us the authority to mandate businesses to
give us information.
3. ACTION BY EPA OFFICE TO DETERMINE CONFIDENTIALITY
a. Initial Determination. An EPA office that possesses
information obtained from a business may need to make an
initial determination of whether the information is entitled
to confidential treatment. This need will arise if a request
for the information is received, or anticipated, or if for any
other reason the office desires to ascertain the confidential
8-1
status of the information. Absent an information request,
there is normally no requirement that an office initiate the
process of making an initial determination of confidentiality.
Under EPA's regulations, business information may not be
disclosed unless EPA has ascertained that there is no claim of
confidentiality applicable to the information (or unless a
final determination of non-confidentiality has already been
made and the appropriate period allowed for comment by the
business has ended).
If an examination of business information reveals that,
even though no applicable confidentiality claim exists, the
affected business might be expected to assert a claim if it
knew the Environment Ministry proposed to disclose the
information, the Environment Ministry office must contact a
responsible official of the business to determine whether the
business asserts a claim. The submitter bears the burden of
substantiating confidentiality. This inquiry can be made by
telephone or equally prompt means, and must inform the
responsible official from the business that any claim the
business wishes to assert must be brought to the action
office's attention by the third working day after such
inquiry. The office should keep a record of the result of this
inquiry (see [insert appropriate legal reference].
The action office need not inquire whether a
confidentiality claim exists if (1) the business failed to
assert a claim at the time the information was provided to the
government, as long as the business was notified at that time
that failure to assert a claim would mean that the government
could make the information available to the public without
notifying the business; (2) the business failed to assert a
claim after receiving the same notice at some other time; or
(3) the business has otherwise waived or withdrawn a claim
covering the information.
Except where the information is clearly not entitled to
confidential treatment (see section 3.b, below), each business
that has asserted a claim should be furnished an opportunity
to comment on (i.e., substantiate) its claim, if such
opportunity has not been furnished previously (see sample
letter Q, Appendix I).
If an information request is pending, the action office
should also send the requester an initial determination that
the records requested may be entitled to withholding under
Exemption 4, and notify the requester that a final
confidentiality determination will be issued by the Ministry's
legal office (see sample letter R, Appendix I). The
8-2
information request is therefore initially denied (see Chapter
6, Section 5).
b. Final Determination (By Action Office). If the EPA action
office determines that business information claimed to be
confidential "clearly is not entitled to confidential
treatment," it may issue a final confidentiality determination
and notify the business of its decision by means of the notice
procedures outlined in section 4.b, below. (Note that the
notice period must expire before the information may be
released.)
Such determinations of clear lack of entitlement to
confidential treatment may only be made by the action office
in such clear-cut cases as, for example, where the office
knows that the claimed information is publicly available
elsewhere. In such cases, no opportunity to comment need be
furnished the business. A copy of any such notice shall be
forwarded promptly to the appropriate legal office.
c. Notice of Opportunity to Comment. When the action office
determines that business information in its possession may be
entitled to confidential treatment (see section 3.a, above),
the office shall provide each affected business with notice
that the Environment Ministry is making a final
confidentiality determination and provide them with an
opportunity to comment (if such notice and opportunity have
not previously been provided). This manual outlines what is
required in connection with such notice, but the action office
should consult [insert appropriate regulations or guidance]
for specific instructions.
The action office must send the notice by certified mail
(return receipt requested), by personal delivery, or by other
means allowing verification of the fact and date of receipt.
At or about the time the written notice is sent, the action
office should also call a responsible official of the business
to let
that person know that the business should expect to receive
the notice shortly and to request that the office be contacted
if the notice does not arrive within a few days.
The written notice should ask the business to comment on
(i.e., substantiate) specific points regarding its
confidentiality claim. Those points are spelled out in
[insert reference to specific law or regulation].
If a request for the information prompted the need to
determine confidentiality, the period for comments should be
8-3
fifteen working days from the time the business received the
written notice. In other cases, the action office should
establish a reasonable period for comment of not less than
fifteen working days from the time of receipt of the notice.
The comment period may be extended at the request of the
business (before the comment due date) with approval by the
appropriate legal office. However, if an information request
for the information is pending, the legal office will not
approve an extension, except in extraordinary circumstances,
without the consent of all persons making the information
request.
The written notice should state that the business's
comments will be treated as entitled to confidential treatment
if so marked unless already possessed by the Ministry in non-
confidential form [reference relevant legal citation].It
should also state that the government will consider a
business's failure to furnish timely comments as a waiver of
the business's confidentiality claim and that, in such event,
the government may release the information in question with no
further notice to the business.
If a business's comments have not been received by the
specified environment ministry action office by the due date
(including any extension), the office should promptly contact
the business to inquire whether it was granted an extension of
time or whether its comments were lost in transmission. If
the comments were lost, duplicate comments should be forwarded
immediately by the business (add relevant legal citation if
any exists].
When comments are received by the action office, it should
forward all relevant materials to the appropriate legal office
so that a final determination of confidentiality may be made.
4. FINAL CONFIDENTIALITY DETERMINATION BY LEGAL OFFICE
Final confidentiality determinations are made by the Legal
Office in accordance with the criteria set out in [add legal
citation]. The Legal Office makes its final determination in
accordance with [add legal citation] under which commercial or
financial information has been held to be confidential if its
disclosure would be likely to either (1) impair the
government's ability to obtain necessary Information in the
future, or (2) cause substantial competitive harm to the
person from whom the Information was obtained. The
government's inquiry usually focuses on the second prong of
the test, that of substantial competitive harm, since the
8-4
first prong applies only to information voluntarily submitted
to the Ministry (i.e., information which the government cannot
require).
a. Final Determination by Legal Office of Entitlement to
Confidential Treatment. If the Legal Office makes a
determination that business information is entitled to
confidential treatment, it informs the business of its
determination, and EPA must maintain the information as
confidential. If a request for the information is pending at
the time, the Legal Office issues the requester a final
determination denying the request [add legal citation].
b. Final Determination by Legal Office of Non-entitlement to
Confidential Treatment. If the Legal Office determines that
business information is not entitled to confidential
treatment, it issues a notice to each affected business of the
denial of the claim. The notice must state the basis for the
determination, that it is a final Ministry action, and that it
is subject to judicial review [add legal citation]. The
notice must also state that the government will not disclose
the information until the tenth working day after the
business's receipt of the notice of denial of its claim.
5. PREVIOUS CONFIDENTIALITY OR CLASS DETERMINATION
In some cases, information claimed as Confidential
Business Information may be the subject of a previous final
confidentiality determination or "class determination". A
class determination is a final confidentiality determination
issued by the legal office covering certain identifiable items
of information and which may be applied thereafter to
information falling within the class.
An action office can check with the appropriate legal
office to find out whether particular claimed information is
the subject of a previous final determination or class
determination.
a. Previous Final Determination. If a previous final
determination exists on particular information, then that
determination controls and no further inquiry of the business
should be made [add legal citation]. If the determination held
that the information was not entitled to confidential
treatment, and the appropriate notice was provided the
business, the information may be disclosed without further
notice. A previous final confidentiality determination may be
modified by the legal office under [add legal citation].
8-5
6. DISCLOSURE WITH CONSENT OF AFFECTED BUSINESS
Before initiating a confidentiality determination, the
government office should consider whether it is possible to
obtain the affected business's waiver, modification, or
withdrawal of its claim of confidentiality in such a way that
will allow disclosure of the needed or requested information
without the necessity of a final determination. For example,
the action office may be able to obtain the affected
business's consent to disclose the useful portion of the
information while the government continues to protect from
disclosure information that is claimed as confidential but the
disclosure of which is not presently needed or requested.
7. DISCLOSURE OF CBI OTHER THAN UNDER FOIA
Business information that is not available to the public
because it has been claimed or determined to be CBI may
nonetheless be disclosed to certain persons in special
circumstances, as set out in [add legal citation] and the
modifications in the special rules. For example, the rules
state the circumstances under which CBI may be disclosed to
other Federal agencies, to authorized representatives, and to
the Congress. These provisions of the regulations should be
consulted to determine when such disclosures are permitted and
the procedures that must be followed. Note especially that
certain conditions must be met before CBI may be disclosed to
Ministry contractors or subcontractors (and that in some cases
such disclosure is not permitted). The special rule
provisions for each statute should be consulted.
8-6
CHAPTER 9: DISCRETIONARY RELEASE
1. WHEN TO USE DISCRETION TO RELEASE RECORDS
a. Policy. As a matter of policy, the Environment
Ministry encourages release of records that are legally exempt
under [add legal citation] unless an important Ministry
purpose is served by withholding the documents.
b. Procedures. In making any discretionary release of
documents, the standard release procedures outlined in Chapter
5 should be followed carefully.
2. WHEN NOT TO USE DISCRETIONARY RELEASE
a. Policy. The Ministry has no discretion to release a
record if a court has prohibited the Ministry from releasing
the record to the public.
3. DISCRETIONARY RELEASE ON APPEAL
Discretionary release on appeals is discussed in Chapter
10, section 4.c.
9-1
CHAPTER 10: APPEALS
1. RIGHT TO APPEAL
Any person whose request for records has been denied in
whole or in part by an initial determination may appeal that
denial. In addition, a person has the right to file an appeal
whenever the Ministry response has indicated no responsive
records have been located. (see sample letter O, Appendix I).
2. TIME FRAME FOR RECEIVING APPEALS
U.S. law and policy:
a. Timely Appeals. To be timely, an appeal must be mailed
to the government within 30 calendar days of the receipt of an
initial denial or a no record response.
b. Untimely Appeals. Appeals mailed to the Environment
Ministry more than 30 calendar days after the receipt of an
initial denial or a no record response may be treated either
as a timely appeal or as an entirely new information request
at the discretion of the Ministry Information Office.
3. TIME FRAME FOR RESPONDING TO APPEALS
a. 20-Day Time Limit. The Legal Office has 20 workdays
from the date the Ministry Information Office receives an
appeal in which to issue a written determination stating which
of the requested records under appeal shall be disclosed and
which shall not be disclosed.
b. Extensions. This time limit may be extended up to an
additional 10 workdays, unless the total of all such exten-
sions including any used during the initial determination
period would exceed 10 workdays.
c. Backlog. Due to the Ministry's backlog of information
appeals, the Legal Office will apprise the appellant (in
writing) of the backlog and the Ministry's policy of
processing appeals on a first-come, first-served basis. The
backlog letter does not predict an appeal decision date, but
indicates that the Ministry will issue its determination as
quickly as possible.
4. APPEAL PROCEDURE
a. Legal Office. [set out internal government routing
procedures when an appeal is received]
10-1
b. Determinations. The Legal Office makes one of the
following legal determinations in connection with every appeal
for an existing, located record:
1) the record must be disclosed;
2) the record must not be disclosed because a statute
or provision of the regulations so requires; or
3) the record is exempt from mandatory disclosure,
but may legally be disclosed at the Ministry's
discretion.
c. Discretionary Release. [insert internal government
procedures for deciding when to make a discretionary release]
5. ISSUING APPEAL DETERMINATIONS
a. Release on Appeal. If the Legal Office's determination
holds that a record is to be disclosed, the record
will be enclosed with Legal Office's determination
letter (and Bill for Collection, if fees are assessed)
to the appellant.
b. Appeal Denials. If the Legal Office's determination is
to deny an appeal in whole or in part, the Legal Office sends
the appellant a copy of its determination, in which the
rationale for withholding the record (or portions of the
record) is
explained. It also forwards a copy of the determination to
the appropriate action office and Information Program
Coordinator and sends two copies to the Ministry Information
Officer.
6. JUDICIAL REVIEW
a. Judicial Review. Whenever the Legal Office issues a
determination denying an appeal, or indicating no responsive
records exist, it states that the appellant has the right to
seek judicial review of the final Ministry decision by
complaint filed in the [insert name of appropriate court].
b. Action Office's Role. U.S. policy: In the event an
appellant files suit against the Ministry under the
information law, the Department of Justice represents the
Ministry with assistance from EPA attorneys. The action
office responsible for responding to the initial request is
actively involved in the preparation of submissions to the
10-2
court such as affidavits and indices.
10-3
U.S. Law and Policy:
CHAPTER 11: ANNUAL REPORT AND RECORDKEEPING
l. ANNUAL REPORT TO CONGRESS [this section sets out
responsibilities among government offices if an annual report
is required.]
3. RECORDS RETENTION SCHEDULES FOR FILES RELATED TO INFORMATION
REQUESTS
Files related to information requests are maintained by
calendar year, and should be retained in accordance with
[insert appropriate authority for records retention
requirements]. The schedules below are maintained by the
[insert name of the office in the Ministry that takes this
responsibility].
1. MINISTRY AND REGIONAL INFORMATION OFFICES
a. Information Request Control Files.
Files maintained for
control purposes in
responding to requests,
including registers and
similar records listing
date, nature, and purpose
of request and name and
address of requester.
1. Registers or listing. Destroy 6 years after
(e.g., log)
date of last entry.
2. Other files.
Destroy 6 years after
final action by the
Ministry or after final
adjudication by courts,
whichever is later.
b. Information Request Report
Files.
Recurring reports and
one-time information
requirements relating to
the Ministry
implementation of
Information Act
requirements, including
11-1
annual reports.
Permanent.
1. Annual reports at
Departmental/Ministry
level.
Destroy when 2 years old
or sooner if no longer
needed for administrative
2. Other reports.
use.
c. Information Act
Administrative Files.
Destroy when 2 years old
Records relating to the
or sooner if no longer
general Ministry
needed for administrative
implementation of its
use.
information
responsibilities,
including notices,
memoranda, routine
correspondence, and
related records.
2. HEADQUARTERS AND REGIONAL PROGRAM OFFICES (Action
offices)
a. Information Requests
files.
Files created in response
to requests for
information under the
Information Act
consisting of the
original request, a copy
of the reply thereto, and
all related supporting
files which may include
official file copy of
requested record or copy
thereof.
1) Correspondence and
supporting
documents
(EXCLUDING the
official file copy of
the records requested
11-2
if filed herein).
o
Granting access to Destroy 2 years after
all the requested date of reply.
records.
o
Responding to
requests for non-
existent records;
to requesters who
provide inadequate
descriptions; and
to those who fail
to pay Ministry
reproduction fees.
-
Request not
Destroy 2 years after
appealed.
date of reply.
-
Request
Destroy 6 years after
appealed.
final determination by
Ministry or 3 years after
final adjudication by
courts, whichever is
later.
o
Denying access to
all or part of the
records requested.
Destroy 6 years after
a. Request not
date of reply.
appealed.
Destroy 6 years after
b. Request
final determination by
appealed.
Ministry or 3 years after
final adjudication by
courts, whichever is
later.
2) Official file copy of
Dispose of in accordance
requested records.
with approved Ministry
disposition instruction
for the related records,
or with the related
11-3
information requests,
whichever is later.
3. LEGAL OFFICE
a. Appeals from Ministry
decisions about
information requests.
Files created in
responding to
administrative appeals
under the Information Act
for release of
information denied by the
Ministry, consisting of
the appellant's letter, a
copy of the reply
thereto, and related
supporting documents,
which may include the
official file copy of
Destroy 6 years after
records under appeal or
final determination by
copy thereof.
Ministry or 3 years after
final adjudication by
1) Correspondence and
courts, whichever is
supporting documents
later.
(EXCLUDING the file
copy of the records
under appeal if filed Dispose of in accordance
herein).
with approved Ministry
disposition instruction
for the related record,
2) Official file copy of or with the related
records under appeal. information requests,
whichever is later.
Information Act files are maintained by calendar year and
should be retained in accordance with the Ministry's Records
Retention Schedules. The Schedules are included in Appendix
V.
NOTE: Once a record is responsive to an information request,
the records retention schedules for information requests
dictate how long that record must be retained by the action
office.
11-4
11-5
APPENDIX I: SAMPLE LETTERS AND FORMS
SAMPLE LETTER A
RESPONSE TO REQUEST FOR FUTURE RECORDS
(insert correct date)
Re: Information Request # [RIN]
Dear Mr./Mrs./Ms. (name of requester):
This is in response to your request for information
pursuant to [insert name of appropriate law] dated (date of
request), regarding (nature of request).
The [insert appropriate name of law] Act does not require
the government to place a requester's name on a distribution
list for automatic receipt of certain kinds of records as they
become available. The Act only establishes requirements for
disclosure of existing records.
However, you may submit future requests under the [insert
appropriate legal reference] Act, if you desire to ascertain
whether such records have been created and are available. Any
such letter(s) should reference the period of time for which
records are being requested.
Sincerely,
Signature and Title
bcc: Ministry Information Office
SAMPLE LETTER B
CLARIFYING A VAGUE OR OVERLY BROAD REQUEST
(insert correct date)
Re: Information Request RIN
Dear Mr./Mrs./Ms. (name of requester):
This letter concerns your [insert appropriate name of
legal] Act request of (date of request), regarding (nature of
request).
In reviewing your request, we find your description of
the records is not sufficient to allow us to identify and
locate the records you seek. We have tried unsuccessfully to
reach you by telephone to clarify your request. We cannot
process your request without further information. Please
contact (name of employee) of my office at (telephone) at
your earliest convenience.
If we have not heard from you by (insert date*), we will
assume that you are no longer interested in pursuing your
request, and your file will be closed.
Sincerely,
Signature and Title
bcc: Ministry Information Office
*Normally, 30 days should be adequate.
SAMPLE LETTER C
NOTIFYING REQUESTER THAT RECORDS CANNOT BE OBTAINED PROMPTLY
(insert correct date)
Re: Information Request RIN
Dear Mr./Mrs./Ms. (name of requester):
This letter concerns your [insert appropriate name of
legal] Act request of (date of request), regarding (nature of
request).
I wish to advise you that we have not been able to obtain
the record(s) you requested due to (reason for delay). We are
making every effort to obtain the record(s) and hope to
complete our response to you by (projected date of release).
I regret the inconvenience this may have caused. Please
contact (name of employee) of this office at (telephone) if
you have any questions.
Sincerely,
Signature and Title
bcc: Ministry Information Office
SAMPLE LETTER D
NOTIFYING REQUESTER THAT RECORDS ARE AVAILABLE FOR SALE
ELSEWHERE
(insert correct date)
Re: Information Request RIN
Dear Mr./Mrs./Ms. (name of requester):
This is in response to your [insert appropriate name of
legal] Act request of (date of request), regarding (nature of
request).
The information you requested may be purchased from
(e.g., the National Technical Information Service (NTIS), 5285
Port Royal Road, Springfield, VA 22161. Their telephone
number is 703-487-4600. (Indicate the cost of the
document(s), if known.))
Any further questions regarding this information
should be directed to (NTIS).
Sincerely,
Signature and Title
bcc: Ministry Information Office
NOTE: Many services can provide documents only if an
identification or order number is known. Provide the
requester with the document order number and price if
available.
SAMPLE LETTER E
NOTIFICATION THAT RECORDS DO NOT EXIST
(insert correct date)
Re: Information Request RIN
Dear Mr./Mrs./Ms. (name of requester):
This is in response to your [insert appropriate name of
legal] Act request of (date of request).
I wish to advise you that the Ministry has no records
responsive to your request. If you consider this response to
be a denial, you may appeal it by addressing your written
appeal to the [insert name and address of appropriate person].
Sincerely,
Signature and Title
bcc: Ministry Information Office
SAMPLE LETTER F
NOTIFICATION THAT RECORDS ARE POSSESSED ONLY BY ANOTHER
MINISTRY OR AUTHORITY
(insert correct date)
Re: Information Request RIN
Dear Mr./Mrs./Ms. (name of requester):
This is in response to your [insert appropriate name of
legal] Act request of (date of request), regarding (nature of
request).
This is to advise you that the records you requested are
not in the possession of the Environment Ministry, but may be
available from (name and address of other Ministry or Office).
You may wish to contact (name of other Ministry or Office)
directly.
Sincerely,
Signature and Title
bcc: Ministry Information Office
SAMPLE LETTER G
REQUEST FOR PAYMENT OWED ON EARLIER REQUEST
(insert correct date)
Re: Information Request RIN (RIN number of
request on which payment is still due)
Dear Mr./Mrs./Ms. (name of requester):
We have received your letter of (date) requesting
information from the Ministry of Environment under the [insert
appropriate name of legal] Act. A review of our records
indicates that you made another request that was assigned
Request Identification Number RIN (number of request on which
payment is still due). You were billed (amount) for costs
related to processing that request. Attached is a copy of the
Bill for Collection sent to you at that time requesting
payment. There is no indication in our records that you have
paid the amount due.
Pursuant to [insert appropriate legal reference], we will
not process your current request until you pay the amount due
on your earlier request or furnish proof (in the form of a
receipt or cancelled check) that the bill was paid.
Please make your check or money order payable to the
[insert appropriate office name], refer to the RIN number
indicated above, and attach the top portion of the enclosed
Bill for Collection.
Sincerely,
Signature and Title
Enclosure
bcc: Financial Management Division
SAMPLE LETTER H
REQUEST FOR PREPAYMENT
(insert correct date)
Re: Information Request RIN
Dear Mr./Mrs./Ms. (name of requester):
This letter concerns your [insert appropriate name of
legal] Act request of (date of request).
Pursuant to [insert appropriate legal reference],
"Prepayment or Assurance of Payment," it will be necessary for
you to prepay the costs associated with your request. Upon
receipt of your payment, we will complete the processing of
your request and forward the requested records to you.
Enclosed is a Bill for Collection requesting prepayment.
This represents our best estimate of cost at this time.
Please return the top portion of the form with your check or
money order payable to [insert appropriate office and
address]. Your check or money order should refer to the
[insert appropriate name of legal] Act Request Number (listed
above).
Sincerely,
Signature and Title
Enclosure
bcc: Ministry Information Office
SAMPLE LETTER I
FEE WAIVER JUSTIFICATION LETTER
(insert correct date)
Re: Information Request
Dear Mr./Mrs./Ms. (name of requester):
Your [insert appropriate name of legal] Act request did
not contain sufficient information to enable the Ministry to
make a determination on your fee waiver request.
The [insert appropriate name of legal] Act of 1986
provides that "Documents shall be furnished without any charge
or at a charge reduced below the fees established under clause
(ii) if disclosure of the information is in the public
interest because it is likely to contribute significantly to
public understanding of the operations or activities of the
government and is not primarily in the commercial interest of
the requester." In order to evaluate whether the statutory
standard authorizing a fee waiver or reduction has been met,
we will need additional information upon which to base our
determination. Your response should include:
(i) A clear statement of your interest in the
requested documents, the use proposed for
the documents and whether you will derive
income or other benefit from such use;
(ii) a statement of how the public will benefit
from such use and from the release of the
requested documents;
(iii) if specialized use of the documents or
information is contemplated, a statement of
your qualifications that are relevant to
the specialized use;
(iv) a statement indicating how you plan to
disseminate the documents or information to
the public; and
(v)
additional information you deem relevant
to your request for a fee waiver
If we have not heard from you by (15 working days), we
will issue a determination based upon the information provided
in your request letter.
Sincerely,
Signature and Title
SAMPLE LETTER J
LANGUAGE FOR FEE WAIVER/REDUCTION DENIAL
The following provides some guidance concerning what wording
should be used in release, partial release and discretionary
release letters that also acknowledge a fee waiver/reduction
denial. ¦
The statutory test for evaluating fee waiver requests is
whether release of the information "is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the
government and is not primarily in the commercial interest of
the requester." I have considered six factors in determining
whether your request satisfies this statutory standard: (1)
whether the subject of the requested records concerns the
operations or activities of the government; (2) whether the
disclosure is likely to contribute to an understanding of
government operations or activities; (3) whether disclosure of
the requested information will contribute to the understanding
of the general public; (4) whether the disclosure is likely to
contribute "significantly" to public understanding of
government operations and activities; (5) whether you have a
commercial interest that would be furthered by the requested
disclosure; and (6) whether any such commercial interest
outweighs the public interest in disclosure.
On the basis of all of the information available to me I
have concluded that your fee waiver request (or a portion of
your fee waiver request) must be denied because (state the
basis for denying the fee waiver for all or part of the
requested records). If you desire to appeal this fee waiver
(or reduction) denial, you should submit a written appeal to
[insert name and address of appropriate office]. Any appeal
should refer to the Request Identification Number listed
above, the date of this determination, and my name, title and
address (or the name, title and address of the person
directing issuance of the denial).
SAMPLE MEMO K
REQUEST FOR INFORMATION REQUEST REFUND
(insert correct date)
SUBJECT: Request for information payment refund
FROM:
(Responding Office)
THRU:
Information Officer
TO:
Financial Management Office
Please process a refund check in the amount of $ to
the following individual:
Mr. John Doe
Jane Doe, Inc.
123 Anywhere Lane
Anytown, U.S. 56789
RIN #:
TYPE REASON FOR REFUND HERE
(see example below)
Advance payment of $ was received on (date).
Actual charges of $ were incurred in filling the
information request.
If you need further information, please contact (name)
on (telephone #).
cc: Information Coordinator
----------------------------------------------------------------
(TO BE COMPLETED BY Information OFFICE)
REFUND APPROVED IN THE AMOUNT OF: $
INFORMATION OFFICER
DATE OF APPROVAL
NOTE: After approval, the Information Office will send this
memo to the Financial Management Office.
SAMPLE LETTER L
EXTENSION OF TEN-DAY TIME LIMIT
(insert correct date)
Re: Information Request RIN
Dear Mr./Mrs./Ms. (name of requester):
This is in response to your [insert appropriate name of
legal] Act request of (date of request). An extension of the
time required to comply with your request is necessary.
The reason for the extension is (are):
+--+
+--+ The need to search for and collect the requested
records from offices that are physically
distant from this office. [insert appropriate
legal citation]
+--+
+--+ The need to search for, collect, and
appropriately examine a voluminous amount
of separate and distinct records involved
in your request. [insert appropriate legal
citation]
+--+
+--+ The need for consultation, which shall be
conducted with all practicable speed, with
another Ministry or office having a
substantial subject-matter interest in your
request. [insert appropriate legal
citation]
An initial determination is expected by (date of expected
determination).
Sincerely,
Signature and Title
bcc: Ministry Information Office
SAMPLE LETTER M
RELEASE LETTER WITH RECORDS
(insert correct date)
Re: Information Request RIN
Dear Mr./Mrs. Ms. (name of requester):
This is in response to your Information request of
(request date), regarding (nature of request).
I am enclosing a copy/copies of the records which is/are
responsive to your request. The cost of providing this
information is . An itemized invoice covering the
charges for processing your request is enclosed. Please
forward your check or money order, made payable to the [insert
name of Ministry], within 30 days of the date of this
response. Your check should refer to the RIN number above and
should be accompanied by the top portion of the enclosed Bill
for Collection. Your prompt payment of the amount indicated
will be appreciated.
Sincerely,
Signature and Title
Enclosures: (index of documents and Bill for Collection.)
bcc: Ministry Information Office
SAMPLE LETTER N
RELEASE LETTER WITHOUT RECORDS
(insert correct date)
Re: Information Request RIN
Dear Mr./Mrs./Ms. (name of requester):
This is in response to your Information request of
(request date), regarding (nature of request).
My office has determined that the record(s) you requested
can be released under the [insert appropriate name of legal]
Act. We are currently copying the information you requested
and will forward it to you (along with an itemized invoice
covering the charges for processing your request by (estimated
date of completion).
Sincerely,
Signature and Title
bcc: Ministry Information Office
SAMPLE LETTER O
DENIAL LETTER
(insert correct date)
Re: Information Request RIN
Dear Mr./Mrs./Ms. (name of requester):
This is in response to your Information request of
(request date), concerning (nature of request).
We are unable to provide you with the requested records
because they are exempt from mandatory disclosure by virtue of
[insert appropriate legal citation] (cite the exemption or
exemptions). An itemized list of the records which are being
withheld along with the basis for withholding is provided on
the enclosure to this letter.
You may appeal this denial by addressing, within 30 days
of your receipt of this letter, your written appeal to the
Information Officer [insert appropriate address]. Your appeal
should include the RIN number listed above, the date of this
determination, and my name, title and address (or the name,
title and address of the person directing issuance of the
denial).
Please contact ( ) at ( ), should you
have any questions concerning this matter.
Sincerely,
Signature and Title
Enclosure: (index of withheld documents)
bcc: Ministry Information Office
NOTE: If you are relying on exemption 5, cite the specific
privilege (e.g., deliberative process privilege). If you are
relying on exemption 7, cite the particular subsection of 7
(i.e., (A), (B), etc.).
SAMPLE LETTER P
PARTIAL DENIAL LETTER
(insert correct date)
Re: Information Request RIN
Dear Mr./Mrs./Ms. (name of requester):
This is in response to your Information request regarding
(nature of request).
Enclosed you will find copies of some of the documents
responsive to your request.
We are unable to provide you with the documents, or
portions of documents, which have been determined to be exempt
from mandatory disclosure by virtue of [cite exemption or
exemptions; insert appropriate legal citation] An itemized
list by categories of the withheld material along with the
basis for withholding is provided on the enclosure to this
letter.
You may appeal this partial denial by submitting a
written appeal to the Information Officer [insert appropriate
address], within 30 days of receipt of this partial denial.
Your appeal should refer to the RIN number listed above, the
date of this determination, and my name, title and address (or
the name, title and address of the person directing issuance
of the partial denial).
Please contact ( ) at ( ), should you
have any questions concerning this matter.
Sincerely,
Signature and Title
Enclosures: (index of documents released and withheld)
bcc: Ministry Information Office
SAMPLE LETTER Q
REQUEST FOR SUBSTANTIATION FROM AN AFFECTED BUSINESS
(insert correct stamp)
Certified Mail
Return Receipt Requested
(Addressee)
Re: (Reference the RIN number and or the information which is
the subject of the final confidentiality determination.)
Dear (name of the representative of the Affected Business):
The Environmental Protection Ministry (EPA) has received
a request under the Information Act [insert appropriate legal
citation] for certain records pertaining to (description of
the information which is the subject of the final
confidentiality determination). You asserted a business
confidentiality claim covering (all or part) of this
information. In accordance with Information Act regulations
[insert appropriate legal citation], the request has been
initially denied to afford you an opportunity to substantiate
your claim before a final determination is made.
This letter is to notify you that the(insert name of
appropriate legal office) will be making a final
confidentiality determination concerning this information. If
you feel that some or all of the above information is entitled
to confidential treatment, please specify which portions of
the information you consider confidential. Please be specific
by page, paragraph and sentence when identifying the
information subject to your claim. Any information not
specifically identified as subject to a confidentiality claim
will be disclosed to the requestor without further notice to
you. For each item or class of information that you identify
as being subject to your claim, please answer the following
questions:
l.
For what period of time do you request that the
information be maintained as confidential? If the
occurrence of a specific event will eliminate the
need for confidentiality, please specify that event.
2.
Information submitted to the government becomes
stale over time. Why should the information you
claim as confidential be protected for the time
period specified in your answer to question #1?
3.
What measures have you taken to protect the
information claimed as confidential? Have you
disclosed the information to anyone other than a
governmental body or someone who is bound by an
agreement not to disclose the information further?
If so, why should the information still be
considered confidential?
4.
Has any governmental body made a determination as to
the confidentiality of the information? If so,
please attach a copy of the determination.
5.
Is the information contained in any publicly
available material such as promotional publications,
annual reports, articles, etc.? Is there any means
by which a member of the public could obtain access
to the information?
6.
For each category of information claimed as
confidential, discuss with specificity why release
of the information is likely to cause substantial
harm to your competitive position. Explain the
nature of those harmful effects, why they should be
viewed as substantial, and the causal relationship
between disclosure and such harmful effects. How
could your competitors make use of this information
to your detriment?
7.
Do you assert that the information is "voluntarily
submitted" as defined at [insert appropriate legal
citation]? If so, explain why, and how disclosure
would tend to lessen EPA's ability to obtain similar
information in the future.
8.
Any other issue you deem relevant.
Please note that you bear the burden of substantiating
your confidentiality claim pursuant to [insert appropriate
legal citation]. Conclusory allegations will be given little
or no weight in the determination. If you wish to claim any
of the information in your response as confidential, you must
mark the response "CONFIDENTIAL" or with a similar designation,
and must bracket all text so claimed. Information so
designated will be disclosed by EPA only to the extent allowed
by, and by means of the procedures set forth in [insert
appropriate legal citation]. If you fail to claim the
information as confidential upon submission it may be made
available to the public without further notice to you.
Your comments must be postmarked or hand delivered to
this office by the 15th working day after your receipt of this
letter. You may seek an extension of time to submit your
comments, but the request must be made to the (appropriate
legal office) before the end of the l5-day period. Except in
extraordinary circumstances, no extension will be made without
the permission of the requester. Failure to submit your
comments within that time will be regarded as a waiver of your
confidentiality claim, and EPA will be free to release the
information.
Should you have any questions in this matter, please call
me at (telephone).
Sincerely,
Signature and Title
NOTE: Please be sure to check with your Information Officer
or Information Coordinator to determine whether the affected
business has designated a specific person or office to receive
this letter. If they have, you must address the request for
substantiation to the designated person or office (see [insert
appropriate legal citation].
SAMPLE LETTER R
INITIAL DENIAL BASED ON CLAIM OF BUSINESS CONFIDENTIALITY
(insert correct date)
Re: Information Request RIN
Dear Mr./Mrs./Ms. (name of requester):
This is in response to your request of (request date) in
which you requested (describe the requested records). I have
determined that the records in question have been claimed
confidential and may contain trade secrets or commercial or
financial information which is exempt from disclosure
under[insert appropriate legal citation]. Pursuant to [insert
appropriate legal citation], your request is being initially
denied because further inquiry by the Ministry of the
Environment is required before a final determination can be
made. We will consult with the third party(ies) in connection
with their business confidentiality claim(s) covering these
records and (the appropriate Ministry legal office) will issue
a final confidentiality determination.
You may appeal this initial denial of your request by
writing to the Information Officer, [insert appropriate
address]. Any appeal must be made within 30 days after your
receipt of this initial denial. A final confidentiality
determination will be made by the (appropriate Ministry legal
office) whether or not you file an appeal, and you will be
notified of the final determination.
You should refer to RIN in any further
correspondence concerning this matter. Please contact (
)
at ( ) if you have any questions.
Sincerely,
Signature and Title
bcc: Ministry Information Office
APPENDIX II V to be inserted
HANDBOOK APPENDIX VI:
PRACTICAL GUIDANCE FOR RECORDS
MANAGEMENT4
What is Records Management?
Records Management is a way of establishing uniform rules for
systematic handling, control and disposition of government
documents and records, so that offices across the Ministry and
government are doing this in consistent ways. Effective
records management should start at the time of the creation of
the documents and end with rules for disposition of documents,
sometimes known as "cradle to grave" control of records.
Why is Records Management Important?
Records Management preserves knowledge as a resource.
Government offices produce papers that contain the history of
their existence and decision process. Preserving those papers
preserves a unique record. The preserved and properly stored
documents make it easier to understand agency action and
decisions.
The maintained records can also help current decisionmakers
make better informed decisions. Good record will help them
understand better the actions of their predecessors.
If government offices anticipate that they will face legal
challenges to, or intra-government investigations of some of
their actions, records management will help preserve necessary
documents to provide a contemporaneous record of their
activities.
A government employee has the responsibility to protect
records in his/her custody, and there may be legal
implications for destroying records without the proper
authority.
4 This section was adapted from materials provided by Chris O'Donnell at the
U.S. EPA.
Following good records management practices will benefit
employees and the government in many ways such as:
o Improving access to information;
o Controlling the growth of materials taking up valuable
office space;
o Reducing operating costs;
o Minimizing litigation risks;
o Safeguarding vital information;
o Supporting better management decision making; and,
o Preserving government history.
What is the connection between Records Management and Access to
Information?
A government body that has clear rules for and organizes its
documents in systematic ways will be able to be more quickly
and efficiently responsive to citizen requests for documents.
It will be more likely to avoid problems such as the release
of inappropriate documents, because the documents will have
been stored and managed in ways that make clear which
documents have been designated as sensitive or containing
confidential information.
Government bodies that have rules for records management will
be more confident that their various sub-components will be
more consistent in responses to requests for information,
because offices will be using consistent systems and
consistent rules.
What is a Record?
Possibly use Aarhus definition here? Each country must define
records according to its own laws and policies. A record can
be anything made or received, in any medium (paper,
electronic, video, etc), that is created in the course of
government business and is necessary to document agency
activities. Records document the organization, functions,
policies, decisions, procedures, operations and other
activities of a government body.
Some examples of records include memoranda created in the
course of government business, personnel records, financial
records and data bases. Records document or facilitate
o Ministry actions;
o The formulation of policies and decisions;
o Committee or staff meetings.
What is a Record Schedule?
A record schedule provides mandatory instructions on
o how long materials are to be kept in the office;
o what happens to materials after they are no longer needed
in the office; and
o how to preserve historically valuable records for
transfer to storage.
Learning from U.S. EPA's Experience
U.S. EPA has a web site -- http://www.epa.gov/records -- that
has questions and answers for records management, best
practices and an electronic newsletter. Although the basic
ground rules are based on U.S. law and policy, they are
helpful for other governments who want to set up basic records
management systems.
A Ten-Step Records Management Plan for Your Office
This document outlines the primary steps to follow to
establish and maintain a records management program for your
office.
Step 1 - Determine who will be responsible and what resources will be
needed.
Establish a project team with representatives from all sub-
units and job series (not just clerical staff) to oversee the
project. The project team should:
o Set up a network of "records liaisons" with a lead person
and liaisons for each office.
o Decide if everything will be done "in house" or if
outside help (e.g., contractors) will be needed.
o Select one office or sub unit in which to initiate the
project. Based on the experience obtained in this one
office, you can estimate the resources needed to do other
offices.
Step 2 - Identify records needed to document the activities and
functions of your office.
Conduct an inventory of the materials in your office. Don't
forget to include empty offices, closets, and other areas
where things may have been stored.
Document, at a minimum, where materials are located, how much
there is, and the format (e.g., paper, electronic, maps,
etc.). (When you have a "snapshot" of the scope of materials
in your office, you may need to go back to Step 1 and review
the resources available to complete the project.)
An inventory will help you identify which materials are:
o Records,
o Reference materials (non-records),
o Personal papers (non-records),
o Extra copies of documents, publications, and forms (non-
records).
The inventory will also help you identify which records would
need to be immediately available in the event of an emergency
(vital records).
Step 3 - Establish your procedures (recordkeeping
requirements).
Now that you know what you have in your office, the project
team needs to determine:
o If records will be kept in a "centralized" area, or
"decentralized" at individual work stations;
· The type of documents that are included in the record
files;
· How draft documents, working papers, and concurrence
copies will be handled.
o Who will be responsible for maintaining the record copy
(records custodian).
Remember Non-record materials such as convenience copies and
personal papers need to be maintained separate from records.
Step 4 - Match your records to the records schedules.
The next step in the project is to match the records
identified in your inventory with available records retention
and disposition schedules, if such exist. Records schedules
provide information on how long records are to be kept in the
office and what happens when they are no longer needed in the
office. If the government has not yet established retention
periods, careful judgments will need to be made about what
kinds of documents are most important to retain. It would be
better to make these judgments with the assistance of high-
level officials in the Ministry and with the support of the
Ministry Legal Office.
Step 5 - Prepare a "file plan."
Now that you know what records you have and what the
appropriate records schedules are, you can begin to organize
them. U.S. EPA records are organized using the Agency file
codes to provide the first level of organization or the "main
category." For example, the file code for Program Management
Files is: PROG 006.
Once you have identified the file code, place them in
alphabetical and numerical order (e.g., CONT 003, PROG 006).
Then, determine if there will be sub-categories or sub-folders
and what they will be. For example:
ADMI 110 - Reports and Statistics
1.0 Annual activity reports
2.0 Personnel reports
2.1 Training
2.2 Travel
Step 6 - Document your recordkeeping requirements and
procedures.
Prepare a document, a file plan, which gives details on:
o How your records are organized and maintained;
o Who is responsible for doing what;
o When it should be done (e.g., annual file retirement);
o What happens to the records when they are no longer
needed in the office.
Include all the decisions you made in steps 1 through 5 (e.g.,
what happens to draft documents).
Step 7 - Clean out old records with no good reason for
retention, using if possible the approved retention
periods.
Once you have documented your file plan you can begin to
organize your records. First, however, it is a good idea to
get rid of those materials in your office which are not
needed. If authorized by the records schedule, you can:
o Retire records to offsite storage which are no longer
needed in the office;
o Transfer permanent records to the National Archives, if
appropriate;
o Recycle materials which have passed their approved
retention period. Remember to shred materials containing
confidential or personal information.
Step 8 - Organize your records.
I
Now you can begin to implement your file plan.
Prepare folders and organize documents within the folders.
Follow the procedures established in your file plan.
Place reference sheets in folders, when necessary, to refer
users to the location of related non-paper materials such as
maps, drawings, videotapes, etc.
Organize electronic documents (e.g., WordPerfect documents,
e-mail messages) residing on individual computer or local
network directories using Ministry file codes, if such are
available.
Remember to spend the majority of your time on the
"mission-related" records and less on administrative or "house
keeping " records such as routine correspondence.
Step 9 - Maintain your records on an on-going basis.
Once everything is organized, it is important to keep it
current and up to date. Be sure to:
o File new materials on a regular basis (e.g., weekly).
o Protect records containing confidential information such
as confidential business information (CBI) or personal
information.
o Establish a check-out system (e.g., "out" cards) to track
the location of your records so you always know where
they are.
o Clean out inactive materials on a regular basis, usually
at the end of the year (as per your written procedures).
o Retire eligible records to appropriate storage or
Archives.
o Clean out superseded or obsolete reference materials.
Step 10 - Train, train, train.
Congratulations! Now you have a file plan. You've cleaned out
all the unnecessary materials and organized the necessary
materials. Your job isn't over yet! You need to be sure all
staff members (and contractors) know about their recordkeeping
responsibilities. Records liaisons need to brief senior
management on the importance of your records management
program and train office staff on how it works.
If you can, help develop training sessions, including basic
records management and records retirement; "Tool kits" giving
more details on how to complete each of these steps; and,
Presentations and handouts you can tailor for your particular
office.
Resources
o This Handbook
o http://www.epa.gov/records