crew: sec: regarding steps taken to improve foia responses: foi and privacy act processing guidance...

8/7/2019 CREW: SEC: Regarding Steps Taken to Improve FOIA Responses: FOI and Privacy Act Processing Guidance for Liaison

1/16

SEC FO/A/PA Liaison Guidance

FREEDOM OF INFORMATIONAND PRIVACY ACT

PROCESSING GUIDANCE FORLIAISONS

Revised August 27, 2010 Page 1


2/16

SECFOIA/PA Liaison Guidance

FOIA AND PRIVACY ACTPROCESSING GUIDANCE FOR LIAISONS

Table of Contents1. Overview of Office of Freedom of Information and Privacy ActOperations (FOlA/PA Office)2. FOlA/PA Statutes and Regulations

3. The FOIALiaison Role4. FOlA/PA Reference Materials5. FOlA/PA Training6. Overview of FOlA/PA Request Process7. FOlA/PA Specialist Responsibilities8. FOWPA Liaison Responsibilities9. FOIA Reports and Recordkeeping10. FOIAXpress Guidance for Liaisons

- REVISIONCHRONOLOGY-

Revised August 27,2010 Page 2


3/16

SECFOIA/PALiaison Guidance

FOIA AND PRIVACY ACTPROCESSING GUIDANCE FOR LIAISONS

The purpose of this memorandwn is to provide guidence to persons designated asFOIALiaisons for conducting records searches and responding to the FO!A/PAOffice when a FOIA request is referred to the program office or division.

1. Overview of Office of Freedom of Information and Privacy ActOperations (FOIAIPA Office).The mission of the FOIA/PA Office is to facil itate the Commission's response toFOIA and Privacy Act requests and to manage the processing of requests, thetracking system, and reporting functions as mandated by the statute. All FOIAand PA requests received by the Commission are processed through the Officeof FOIA and PA Operations. The Commission has a centralized FOIA & PAprocess, therefore, no requests are considered "received" by the Commissionuntil received in the FOrA/PA Office. The FOIA/PA Office staff receives andassigns tracking numbers for all incoming requests. FOIA Research Specialistsperform initial research on requests to determine which officers) may holdrecords responsive to the request. The request may then be referred to theFOIA Liaisonrs) for the appropriate offices.The FOIA/PA Office also receives all incoming appeals of denials under theFOIA and Privacy Act. Once a FOIA or PA request has been denied in full orgranted in part, or a finding of "no responsive records" is rendered, therequestor is provided appeal rights instructing the submission of an appeal to theOffice of the General Counsel (OGC). However, the FOIA/PA Office receives allincoming appeals, assigns a tracking number and forwards the appeal to the OGCfor direct response to the requestor.2. FOIAIPA Statutes and Regulations.The Freedom of Information Act (FOrA), 5 USC 552. the Privacy Act (PA), 5USC 552a, and the Commissions FOIA and PA regulations. 17 CFR 200.80, maybe accessed via the FOrA/PA page on the INSIDER.



4/16

SECFO/A/PA Liaison Guidance

3. The FOIA Liaison Role.A. FOJA Responsibility Commission-wide: The Chairman, in her November

2009 message to all employees, stated:"As an SEC employee, you may be called upon to locate or reviewdocuments that are responsive to a FOIA request. It i s your responsibilityto do so in a timely manner so that a prompt response can be provided tothe requestor. The public's interest about our work is at an all-time high,and this presents an opportunity to illustrate the dedication and effort thatyou put forth everyday on behalf of the investor community and theAmerican public. !!See the full message at:http';/Jj]sider.sec.gor-/,vhats hapPt'ning/clt the sec/no vember 200!J/chairma n - f ( ) J ~ 1 - 1 1 2 3 2 0 0 9 . h [ m l

B. Liaison Purpose: Each division and program office director designatesone or more FOrA liaisonrs) as con tact points for th e FOrA/PA Office andto receive and coordinate responses to FOIA requests which are refer redto the division or program office. Each division and program office musthave at least one staff member designated as the primary FOrA Liaison. Itis recommended tha t each primary liaison have at least one alternateliaison. A FOrA liaison should be of sufficient g rade o r experience withinth e office to be knowledgeable about the work and the records of th eprogram entity; the staff member should have the time and ability toaccurately search for records or direct other staff members to conductsearches and perform document-by-document reviews, i f necessary; andthe liaison should be able to provide a written response to the FOrA/PAOffice responding to the referral in a t imely and accurate manner. FOrAl iaisons should have knowledge of the law (FOrA and Privacy Act) which iscommensurate with the volume and complexity of referrals to the programoffice.

C. Liaison Listing and e-mail accounts: A listing of FOIA liaisons ismaintained by the FOIA/PA Officer and posted on the INSIDER web page.The FOIA/PA Officer also maintains e-mail groups for liaisons, listed inMS Outlook by searching "#FOIA". The Office of the General Counsel andthe Division of Corporation Finance maintain their own FOIA mailboxes.



5/16


D. Liaison Use of FOIAXpress: All liaisons are placed in a user group fortheir division or program office in FOIAXpress . and in an e-mail accountfor the user group. Referrals are forwarded to FOIA liaisons via the e-mail account which is embedded in FOIAXpress. See paragraph 10 forinformation on FOIAXpress.

E. Changes or Additions to FOIA Liaison Designation: Any changes oradditions to the FOIA liaisonrs) for an office should be promptly e r mailedto the FOIA Officer at [email protected]. All changes to the liaison list, theFOIAXpress user group and the #FOIA Outlook e-mail accounts aremanaged by the FOIA/PA Officer . New users may request access toFOIAXpress via the ITSM Self-Service Module under SEC Technology onthe OIT INSIDER page @ http://wapps.sec.gov/oitintranet.

F. Payroll Activity Code: Liaisons should keep t rack of daily time spent onFOIA processing duties by using activity code 4.3.1 in Quicktime to recordtheir FOIA workload.

4. FOIA!PA Reference Materials.The FOIA/PA page on the INSIDER provides internal guidance and informationfor FOIA lia isons and all staff including links to reference material including:

SEC FOIA and Privacy Act Regulations; The Freedom of Information Act C5 USC 552); The Privacy Act (5 USC 552a); SEC Privacy Act System of Records Notices (SORN's); SEC Confidential Treatment Rule 83 07 CFR 200.83); SEC Annual FOIA Reports; Department of Justice Guide to the FOIA; Department of Justice FOrA Post (includes on-going litigation updates.

Attorney General Announcements and information for the FOrAcommunity); Department of Justice l is tings of all agency FOrA/PA Officers; and FOrA/PA Training availability



6/16


5. FOlA/PA Training.Liaisons may obtain training on the FOrA and Privacy Acts through the followingsources via links on the FOrNPA rNSIDER page:

SEC University sponsors FOrNPA training annually; Department of Justice (DO]); ASAP (American Society of Access Professionals) Graduate School (formerly USDA Graduate School),

6. Overview of FOIA!PA Request Process.A. Agency Receipt of FOWPA Requests and Appeals: The FOrA Office

receives all FOrA and Privacy Act requests and subsequent appeals via email account ([email protected]), fax or postal mail. FOrA and PA requests andappeals are received in the FOrA/PA Office 24 hours a day, includingweekends. Some requests are dated days or months in advance of receipt,however, the statutory time frame for response does not begin until therequest is received in the FOrA/PA Office.

B. Receipt of Requests by Other Offices: Should any other office receive arequest for non-public records or information from a member of thepublic, which is outside the normal course of business (or authority torelease information - such as access requests) for the receiving office orentity, the request should immediately be forwarded to the FOrNPA Officefor tracking and coordination of response. The FOrA/PA Office routinelycoordinates requests for the release of sensitive information under theFOrA and PA, as well as to Congressional members, with the Offices ofthe General Counsel, Public Affairs, and Legislative Affai rs . All requestsand responses are tracked in the e-FOrA tracking system (FOrAXpress) toensure accuracy, completeness and consistency of responses from theCommission.

C. Tracking of FOIA and PA Requests: Once received in the FOrA/PA Office,all FOrA requests, PA requests and appeals are date-stamped, scannedinto the FOrAXpress (FX) tracking system, and assigned a request number.The requestor is immediately notified of the receipt of the request andgiven the request tracking number for future correspondence. The FOrArequest number is in the following format as shown in the example:



7/16

SECFOJAjPA Liaison Guidance

lO-01234-FOJAo The first 2 digits = fiscal year reques t received;o The next 5 digits = chronological numbering of requests as received

for the fiscal year;o The suffix which denotes th e type of request, as follows:

FOIA - Freedom of Information Act request FOPA- FOIA and Privacy Act request APPS - Appeal GOVT - Government Agency referral to SEC REMD - Remand on appeal CONG- Request from Congressional CHAI - Request directed to Chairman's Office PAAM - Privacy Act amendment FIFO - First-In, First-Out

D. Initial Review, Research and Referra l o f FOIA requests: Each FOIA requestis assigned to a FOIA Research Specialist within th e FOIA/PA Officewhose role is to facilitate processing of the request within 20 workingdays. If a requester is granted" expedited treatment" the request will beresponded to as soon as possible and as an agency priority. TheResearch Specialist will review the content of the request and searchappropriate Commission databases. including SEC websites, to determineth e existence of responsive records, and how best to obtain those recordsfor review and processing under the FOIA. Once the request has beenreviewed, the Special is t may contact the requestor for further informationor clarification, and/or may need to request addit ional t ime for processing.After initial review and research is completed, the FOIA Specialist mayforward the request to one or more program officers) or division FOIAl iaisonrs) for review of the request and to search for and provideresponsive records back to the FOIA Research Specialist. If the requesthas been granted exped ited t reatment , the liaison office will be notified toprioritize the processing.The FOIA Office will provide a referral memo to the liaison off ice andattach a complete copy of th e incoming request. The full request isprovided to the liaisonts) to preclude any discrimination regarding therequester or stated motives for the request and any confusion on theinterpretation of the content of the request.



8/16

SECFOIAjPALiaison Guidance

The liaison is directed to provide the FOrA Office a recommendation as toreleasability in full or in part of the requested records; and if any recordsor portions thereof are to be denied, the FOrA exemption should be cited.In addition, the liaison is directed to respond to the request within aspecified period of time in order to comply with the statutory responsetime, including expedited treatment as well as when additional time (over20 days) has been secured.

E. Receipt of Liaison Response: Once the liaison response is received in theFOrA/PA Office, the response is scanned into the FOIAXpress trackingsystem and the Specialist will prepare a response to the request reflectingthe recommendation of the liaison office and the availability of responsiverecords. All redacting of records will be done by ForA ResearchSpecialists using FOIA specific redaction tools in FOIAXpress.

F. Requests for Confidential Treatment under Rule 83 (17 CFR 200.83):Certain records submitted to the Commission, normally in conjunction withan Enforcement investigation, may also have a submission requestingconfidential treatment (CT) in the event that a FOIA request is receivedfor the submitted materials. In the event that records requested underFOrA are marked as "CT requested" and/or bates stamped indicating theyare part of a CT submission, the FOIA Office will contact the submitter torequest a substantiation of the request for CT. Once substantiation isreceived by the FOIA Office. the liaison may be asked to review andcomment on the basis claimed for confidential treatment. The FOIA Officewill notify the submitter of the determination to grant or deny CT forwhich the basis is Exemption 4 of the FOIA (5 USC 552(b)(4)).

G. Review of Final or Partial FOIA or PA Responses: Final or partial FOIA andPA responses may be provided for review prior to release to the programoffice or division, the Office of Public Affairs, the Office of the GeneralCounsel, the Office of Legislative Affairs and the Office of the Chairman.Should a division or program office specifically want to review the finalresponse before it is released, the FOIA Specialist should be notified bythe liaison by stating the request in the recommendation memo (seeparagraph 8.D.)



9/16

SEC FOlA/PA Liaison Guidance

7. FOIA!PA Specialist Responsibilities.A. Referral Memo to Liaison: The FOrA Research Specialist assigned to

process the request will forward an e-mail containing a FOrA ReferralMemo to the appropriate Iiaisonts) including a copy of the FOrA request.Any additional information in the case can be viewed in FOIAXpress. AllFOrA liaisons have been placed in user groups in FOrAXpress: and eachdesignated liaison has access to the cases assigned to the user group. Allreferrals are done via FOrA e-mail accounts, which contain the names ofthe liaisons for the division or program office.

B. Reviewing andRedacting Responsive Records: The FOJA Staff has th er es po ns ib il it y to do a document by document review of responsive recordsprovided by agency components which are considered to be responsive toth e request and to officially redact and prepare those docum ents forrelease. Liaison offices should not redact documents for release. TheFOrA Staff will process the records for a final response, applyingexemptions and preparing records for release. The FOrA Office will scanresponsive documents into the FOrAXpress document managementcomponent and will electronically apply a redaction layer to the records.Electronically redacted records can be reviewed by others prior torelease, including FOrA management and often the Office of the GeneralCounsel.

C. Review of Final or Partial Responses: The FOrA Office is responsible forscanning all records associated with the request in the electronic case filein FOrAXpress. All full and partial responses to a request are located inthe FOlAXpress case file, which l ia isons can view at any time. Final orpartial FOrA/PA responses may be provided for review prior to release tothe program office or division, the Office of Public Affairs, the Office ofthe General Counsel, the Office of Legislative Affairs and the Office of theChairman. Should a division or program office specifically want to reviewthe final response before it is released, the FOrA Specialist should benotified by the liaison by s ta ting the request in the recommendation memo(see paragraph 8.0.7). The FOlA Officer will forward all responses torequests from the media to the Office of Public Affairs for clearance priorto release.



10/16


8. FOWPA Liaison Responsibilities.A. Time frame for response: All FOrA Referral Memos require a responsefrom the Liaison within the time frame specified in the Referral Memo.Regardless of when the request was received in the Commission, theliaison will generally be given 5 working days to provide a response to theFOrA Office. Depending on the nature of the request, more time may beallocated. If additional time is needed, the liaison should contact the FOrASpecialist as soon as possible to relay the need for addi tional time to therequestor. Should the liaison no t respond within the time frame provided,the FOrA Specialist will follow-up with an addit ional referral memo -which is tracked in FOrAXpress. Non-response to a FOrA Referral Memowill result in contact by a FOrA Manager and may result in an Aging orDelinquency Report to the division or program office head.

B. Review the request and search for records: Upon receipt of a FOrA referralmemo, the liaison should read the request carefully to determine if thereare records within the division or program office which may be responsiveto the request;1. Records located:a. If responsive records are located. obtain the records for review by

the FOrA Office, and draft a recommendation on full or partialrelease of material , to include applicable FOrA exemptions for anywithhold recommendations; orb. Review each document, unless, in the opinion of the FOJA Liaisonand document subject matter experts, an entire group of responsivedocuments (i.e., compliance inspections, open investigations) wil! bewithheld pursuant to a FOIA exemption. Provide a recommendationto the FOJA Office as stated in paragraph 8D.3.b.

2. Records not located: If no responsive records are located within theliaison's program office, notify the FOrA Specialist that no recordscould be located, and/or what program entity may be able to provideresponsive records, if known. (see paragraph 8.0)



11/16


C. Clarification of request: If the liaison needs clarification of the request . orfeels it is too broad and needs more information or a narrowing of thescope of the request in order to proceed, the liaison should contact theFOIA Specialist as soon as possible in order to continue processing of therequest within the response time frame. The options to obtainclarification of the request are as follows:1. The liaison may contact the requestor. If this is done, the liaison

and/or program office entities involved in the contact must provide theFOIA specialist with a summary of the contact with the requestor,including the date and t ime of th e contact and any changes to thesubstance of the request;

2. The l iaison may relay questions/concerns to the FOIA Specialist whowill contact requestor; or3. The l ia ison may ask the FOIA specialist to arrange a conference call or

meeting w/requestor to clarify request.D. Recommendation Memo: A recommendation memo serves as an affidavit

that the FOIA Office requested records of the agency component and thatthe component responded. Liaison responses may be used in defendingappeals and litigation in terms of content of response and in terms ofadequacy of search and may be used to populate declarations of fact forth e court. Therefore, all jjaison responses must be accurate and reflectthe items indicated in items ] - 6 below:1. Description of Records: Description of requested records, or portion

thereof, for which the program office has been asked to provideresponsive records;

2. Description of Search: Description and method used to conduct searchfor responsive records, to include the volume of records searched ifappropriate, the system searched, i .e., CATS, NRSI, ACTS, IRIS, otherdatabase, paper, or other form of search tool;

3. For records located:a) Provide the results of search fo r responsive records - describe

the responsive records located including the volume;



12/16


13/16

SEC FOrA/PA Liaison Guidance

7. Review of final or partial response: Final or partial FOrA/PA responsesmay be provided for review prior to release to the program office ordivision, the Office of Public Affairs, the Office of the General Counsel,the Office of Legislative Affairs and the Office of the Chairman. Shoulda division or program office specifically want to review the finalresponse before it is released, the FOrA Specialist should be notifiedby the liaison in the recommendation memo

E. Providing Releasable Records: The FOrA liaison, or persons designated bythe liaison, should forward to the FOIA/PA Office a copy of the responsiverecords to be released in full; or

F. Providing Records to be Redacted. A copy of the responsive recordsmarked to show portions to be deleted under a FOIA exemption.Liaison offices should no t redact documents. Rather, the liaison mayindicate the records or portions thereof which are recommended forexemption from release by annotating a copy of the records via ])bracketing lines or paragraphs with a pale pencil, or 2) by providing a lineby line or page by page description of exempted materials. The FOIAStaff has the responsibility to redact documents provided by the programoffice liaisonts) for public release. The FOIA Staff will process therecords for a final response, applying exemptions and preparing recordsfor release. The FOIA Specialist will scan responsive documents into theFOrAXpress document management component and will electronicallyapply a redaction layer to the records. Electronically redacted recordscan be reviewed by others prior to release, including FOrA managementand often the Office of the General Counsel.

G. Transmit Response to the FOIA Office: Liaison responses(recommendation memos and records) should be e-rnailed [email protected] with a copy of the e-mail to the FOrA Research Specialistwho sent the referral. If necessary, the responsive records may be handcarried to Room 2736, or the specialist can be contacted for pick-up.Responsive records should not be placed in inter-office mail.



14/16

SEC FOlAjPALiaison Guidance

9. FOIA Reports and Recordkeeping.A. ForA Annual Report to DOJ. The FOrA requires that agencies produce a

report of all FOIA activities on a fiscal year basis. The Commission'sAnnual FOIA Reports are posted on the FOIA page at www.sec.goYThe Annual FOIA Report is prepared during Oct thru Dec of each year.Liaisons may be contacted to provide or clarify information regarding theprocessing of referrals sent to their office during the fiscal year. Thecontact would primari ly be to provide input in determining the cost of theFOrA processing to the Commission for the fiscal year.

B. Aging Reports. The FOrA/PA Officer routinely runs reports viaFOIAXpress to determine what requests remain open and aging anddetermine why certain requests remain unresolved. There are manyreasons why a request remains open for a long period of time, includingthe complexity or volume of the request; the need to consult with otheragencies; the confidential treatment substantiation process; and litigation.The lack of response from a liaison office is another common reason whyrequests remain open. When a liaison office does not reply to a FOrAr efer ra l aft er 30 days, this information may be relayed via an "AgingReport" to the program office or division director or office head in orderto resolve any issues relating to the non-response. The FOIA liaison willbe notif ied prior to escalating the issue.

C. FOINPA Request Recordkeeping. The FOIAXpress system contains theofficial electronic case file for all FOIA and PA requests. Liaisons are notrequired to do any official recordkeeping regarding FOrA requests. FOIA,Privacy Act and appeal files are considered temporary administrativerecords and are maintained government-wide in accordance with theNational Archives General Records Schedule (GRS) Number 14. The FOIALiaison may provide any information pertinent to the request to the FOIAOffice for placement in the electronic case file. The FOIA Staff will scanor import any record provided by the liaison into the case file.



15/16


10. FOIAXpress Guidance for Liaisons.FOIAXpress (FX) is an electronic document management system designedspecifically for use in FOIA Offices across the government. The SECFOIA Office purchased and configured this COTS (commercial off-theshelf) product for use by the Commission in 2004. The sys tem is a toolwhereby the FOrA staff can track, coordinate, and respond to FOIA/PArequests. All requests received in the FOIA Office are scanned into theFX system and an electronic case file is created. All further documentsare scanned in and managed electronically. The system tracks andmonitors progress on the complete casework associated with a request.The sys tem does not track the work that goes on in a liaison office.All FOIA liaisons have read-only access to FOIAXpress. The FOIA staffdoes all data entry and scanning in the FX System. Existing users mayaccess the system via the INSIDER under SEC IT Systems by clicking one-FOIA. New users may request access to FOIAXpress via the ITSM SelfService Module under SEC Technology on the OIT INSIDER page @hrtf):/ /\vapps. sec.go'l/0 itin tranet.The FOIA/PA webpage on the INSIDER contains detailed information onthe use of FOIAXpress (FX) for l iaisons.



16/16

SEC FOIA/PA LiaisonGuidance

- REVISION CHRONOLOGY-June 30,2010 Initial Version of Liaison Guidance, as released on July 1,

2010;August 27: 2010 Revision released to update paragraphs 3.E.; 7E.; and 8.E. tofurther define responsibilities for conducting document search

and review',


crew: sec: regarding steps taken to improve foia responses: foi and privacy act processing guidance...

Documents