FOIA policy and definitions

Yes. All non-exempt OSHRC records are available to anyone who requests them, and the Commission will search for records either manually or by automated means unless an automated search would significantly interfere with the automated system's operation.

• The rule makes clear that records exempt under 5 U.S.C. 552(b) or already published under 5 U.S.C. 552(a)(1) are excluded. See Requirement in 2201.4(a) and the general 2201 provision.
• If an automated search would significantly interfere with operations, the FOIA Disclosure Officer may opt for a manual search instead. See Requirement in 2201.4(a).

The OSHRC must make a defined set of records publicly available in the e-FOIA Reading Room, including final decisions, rules of procedure, agency policy statements, staff manuals affecting the public, frequently requested FOIA releases, and a general index for those records.

• The specific list is in 2201.4(b).
• Examples: final decisions and ALJ decisions pending review are listed at 2201.4(b)(1); agency rules and guides are at 2201.4(b)(2).

Final Commission decisions (including concurring and dissenting opinions), remand orders, Administrative Law Judge decisions pending OSHRC review, briefing notices, and other significant orders should be available in the e-FOIA Reading Room.

• This requirement is specifically listed in 2201.4(b)(1).
• If you are looking for a particular decision, check the online reading room first as required by the rule.

Yes. Agency policy statements and interpretations adopted by OSHRC that have not been published in the Federal Register should be made available in the e-FOIA Reading Room when they exist.

• This is explicitly required by 2201.4(b)(3).
• If a policy statement is already published in the Federal Register, it is covered by separate FOIA publication rules and need not be duplicated here.

The Commission must include copies of records previously released under FOIA that have become or are likely to become the subject of subsequent requests for substantially the same records, or records requested three or more times, plus records the Commission deems of significant public interest.

• This is described in 2201.4(b)(5).
• The purpose is to reduce duplication of FOIA processing by proactively posting frequently requested materials.

A member of the public may access the e-FOIA Reading Room onsite by making a written request to the FOIA Requester Service Center that indicates a preferred date and time for access, and the request will be scheduled.

• See the onsite access rules at 2201.4(c).
• The rule also notes that OSHRC may arrange a different date and time with the requester if necessary (see 2201.4(d)).

A 'commercial use request' is one where the requester seeks information to further commercial, trade, or profit interests (including litigation to further those interests), and when commercial use is suspected the FOIA Disclosure Officer must try to determine the requester’s intended use and give the requester a reasonable chance to clarify.

• The definition and process are in 2201.4(d).
• This determination affects fee assessment because commercial requests may incur review costs and different fee calculations.

Direct costs are the actual expenses the Commission incurs in searching for and duplicating records (and reviewing records for commercial requests); they include the employee's basic salary plus 16% for benefits and the cost of duplication machinery, but they exclude overhead like facility heating or lighting.

• The definition and examples are provided in 2201.4(d).
• Direct costs are the basis for charging fees when allowed under FOIA.

'Duplication' means making a copy of a record in any form (paper, microform, audiovisual, electronic, etc.), and the FOIA Disclosure Officer should honor a requester's preferred form or format if the record can be reproduced in that form with reasonable efforts.

• The definition and format preference guidance are in 2201.4(d).
• If a requested format is not readily reproducible with reasonable efforts, the Commission may provide an alternative format and explain any limitations.

An 'educational institution' is defined broadly to include preschools, public or private elementary or secondary schools, undergraduate and graduate institutions, professional education institutions, and vocational education institutions that conduct scholarly research programs.

• The full definition is in 2201.4(d).
• Requesters in this category must show they are authorized under the institution and that the records are sought to further scholarly research, not commercial use.

To qualify, the requester must show the request is authorized by and made under the auspices of the qualifying institution and that the records are sought to further scholarly or scientific research, not for commercial use.

• See the qualification criteria in 2201.4(d).
• The rule emphasizes that the institution must not be operated for commercial purposes and that the research results are not intended to promote a product or industry.

A 'news media requester' is anyone who gathers information of public interest, edits it into a distinct work, and distributes it to an audience (including modern electronic media); to qualify they must not be seeking records for a commercial use, though requests for records that support news-dissemination are not considered commercial use.

• The definition and guidance are in 2201.4(d).
• Freelance journalists must demonstrate a solid basis for expecting publication (e.g., a contract or past publication record).

'Review' includes examining records to determine applicability of FOIA exemptions and preparing records for disclosure (such as redaction), and review costs are recoverable even if a record is ultimately not disclosed.

• The definition and cost rule are stated in 2201.4(d).
• Note that review time excludes time spent resolving general legal or policy issues about applying exemptions.

'Search' means looking for and retrieving records responsive to a FOIA request, including page-by-page or line-by-line identification and reasonable efforts to locate information in electronic formats; searches should be done in the most efficient and least expensive manner reasonably possible.

• The definition and efficiency requirement are in 2201.4(d).
• The rule gives an example that the FOIA Disclosure Officer should not do a line-by-line search if duplicating the whole document would be quicker and cheaper.

A 'working day' is a regular Federal working day and does not include Saturdays, Sundays, or Federal legal public holidays.

• The definition is in 2201.4(d).
• Use this definition when calculating response deadlines and fee estimates tied to working days.

Records maintained for OSHRC by a contractor are considered OSHRC records for FOIA purposes and therefore are subject to the same FOIA requirements.

• This is defined in the term 'Record' in 2201.4(d).
• If a contractor holds the records, the FOIA request should be handled as an OSHRC record request and the contractor must cooperate with the agency’s FOIA processes.

Yes. When the FOIA Disclosure Officer has reasonable cause to doubt a requester's stated use (for example, to confirm whether a request is for commercial use), the officer must provide the requester a reasonable opportunity to submit further clarification.

• This procedure is stated in 2201.4(d).
• The clarification helps determine applicable fee categories and whether review costs apply.

The general index is intended to list records referred to in paragraph (b)(5) (frequently requested or significant records) so the public can find those materials more easily.

• The requirement for a general index is in 2201.4(b)(6).
• Maintaining a clear index reduces redundant FOIA requests by guiding requesters to commonly sought records.

No. Electronic records are treated the same as paper records: any information that would be a FOIA record when maintained by the Commission in any format, including electronic, is available under FOIA.

• See the statement about records in any format in 2201.4(a).
• The FOIA Disclosure Officer should make reasonable efforts to locate and reproduce electronic records in the requester's preferred format when feasible (see 2201.4(d)).

Yes. The FOIA Disclosure Officer must ensure searches are done in the most efficient and least expensive manner reasonably possible and should avoid detailed searches when duplicating a whole document would be quicker and cheaper.

• This efficiency requirement and the example are in 2201.4(d).
• The goal is to balance thoroughness with cost and timeliness for both the requester and the agency.

Administrative staff manuals that affect a member of the public should be made available in the e-FOIA Reading Room if they exist.

• This obligation is specified in 2201.4(b)(4).
• The rule targets internal guidance that has a practical effect on the public so people can learn how the agency applies rules and procedures.