2024 Chief FOIA Officer Report - Solicitor of Labor/DOL Chief FOIA Officer Report

U.S. Department of Labor

2024 Chief FOIA Officer Report
Solicitor of Labor/DOL Chief FOIA Officer

(March 13, 2023 through March 11, 2024)

EXECUTIVE SUMMARY

Within the Department of Labor (DOL), day-to-day FOIA operation is decentralized.  As a result, each of the 23 agency components has been given flexibility to design a program that meets its needs.  Most agencies have delegated their disclosure responsibilities to officials at the Office Director or Division Chief level in Washington, as well as to their regional offices or branches.  Others have delegated their field FOIA responsibilities to district or area offices.  Conversely, some small agencies handle all of their FOIA requests centrally in Washington, DC.  The differing agency practices are explained partly by the number of requests that agencies receive and partly by the nature of the programs they administer. 

The Office of the Solicitor (SOL) serves as the focal point for FOIA activities within the Department.  SOL houses the Department's Chief FOIA Officer and FOIA Public Liaison.  In addition, the SOL Management and Administrative Legal Services Division (MALS) houses the Office of Information Services (OIS), Counsel for FOIA, FACA and Privacy Act, as well as the Counsel for FOIA Appeals.  These programmatic and counsel areas are responsible for providing department-wide guidance regarding FOIA compliance, making administrative appeal determinations, defending FOIA litigation, as well as for monitoring FOIA performance measurement for timely responses, backlog reduction initiatives and reporting requirements, including the statutorily mandated FOIA Annual Report.

Although FOIA operations are decentralized, OIS functions as the Department's central FOIA office and has agency-wide responsibility for managing the overarching FOIA program.  During Fiscal Year 2023, DOL received 14,282 FOIA requests and processed 14,219 requests.  Most of these requests were received by the Occupational Safety and Health Administration (OSHA – 55%), followed by the Office of Workers Compensation Programs (OWCP – 11%), the Wage and Hour Division (WHD – 9%), Employment Training Administration (ETA – 6%), and the Mine Safety and Health Administration (MSHA – 5%).  The remaining 14 percent of the requests were processed by the Department's other 18 agency components.

SECTION I: FOIA LEADERSHIP AND APPLYING THE PRESUMPTION OF OPENNESS

The guiding principle underlying the Attorney General's FOIA Guidelines is the presumption of openness. The Guidelines also highlight the importance of agency leadership in ensuring effective FOIA administration. Please answer the following questions about FOIA leadership at your agency and describe the steps your agency has taken to ensure that the presumption of openness is being applied to all decisions involving the FOIA.

A. Leadership Support for FOIA

1. The FOIA requires each agency to designate a Chief FOIA Officer who is a senior official at least at the Assistant Secretary or equivalent level. See 5 U.S.C. § 552(j)(1) (2018). Is your agency's Chief FOIA Officer at or above this level? Yes

2. Please provide the name and title of your agency's Chief FOIA Officer.  The Chief FOIA Officer is Seema Nanda, Solicitor of Labor.

3. What steps has your agency taken to incorporate FOIA into its core mission? For example, has your agency incorporated FOIA milestones into its strategic plan?

FOIA related performance measures and milestones are incorporated at the Departmental level within the DOL Strategic Plan and are regularly captured, tracked, and reported at the highest level to DOL agency component leadership.  Performance measures and milestones are tracked and reported on a quarterly basis as part of both the Department's Financial and Administrative Score Card as well as the SOL Agency Management Plan to promote visibility to the Chief FOIA Officer.

B. Presumption of Openness

4. The Attorney General's 2022 FOIA Guidelines provides that "agencies should confirm in response letters to FOIA requesters that they have considered the foreseeable harm standard when reviewing records and applying FOIA exemptions." Does your agency provide such confirmation in its response letters?

All DOL agency components have been briefed on the foreseeable harm standard and report that they use the standard in all instances where the test is required. Further, all DOL's designated FOIA Coordinators and contacts have received specific training on the foreseeable harm standard as contemplated in the Attorney General's 2022 FOIA Guidelines as it relates to adding language regarding the applicability of the foreseeable harm standard in making disclosures. While guidance as to the suggested standard language has been discussed with DOL's free standing agency components, it has been left to their discretion whether or not the language is included in interim or final response letters. At the time of this reporting, OSHA (which processes the majority of DOL's requests) and MSHA report that they provide applicable exemption language in all response letters to those requesters who receive responsive records with applied redactions. Specifically, OSHA created a model response letter incorporating language regarding foreseeable harm and has distributed across the component.  Likewise, MSHA consistently considers foreseeable harm and has provided the applicable exemption language in all response letters to those requesters that receive responsive records with applied redactions.

As part of OIS's planned Administrative Agency Reviews (self-assessments), OIS plans to ask component agencies about their practices as it relates to implementing the foreseeable harm standard in their review process as well as in communications with requesters. Based on these interactions, DOL should have a more detailed substantive update on how widely the Attorney General's is guidance is being implemented across the Department in future reporting.

5. In some circumstances, agencies may respond to a requester that it can neither confirm nor deny the existence of requested records if acknowledging the existence of records would harm an interested protected by a FOIA exemption. This is commonly referred to as a Glomar response. If your agency tracks Glomar responses, please provide: N/A

• The number of times your agency issued a full or partial Glomar response (separate full and partial if possible);
• The number of times a Glomar response was issued by exemption, (eg., Exemption (7)C – 20 times, Exemption (1) – 5 times).

6. If your agency does not track the use of Glomar responses, are you planning on tracking this information in the future?

DOL only tracks and includes in its annual and quarterly reporting the data required by the DOJ FOIA schema at foia.gov.  That schema does not call for reporting of Glomar responses.  As such, DOL has never tracked or reported on the use of "Glomar" to withhold records in full or in part and has no plans to do so.  To capture accurate data regarding the use of Glomar responses, DOL would have to incur the cost of modifying its FOIA tracking system and train staff on new procedures.

7. Optional – If there are any other initiatives undertaken by your agency to ensure that the presumption of openness is being applied, please describe them here.

The Office of the Chief Financial Officer (OCFO) reports that its intra and internet websites are updated regularly with relevant reporting and an invitation to submit comments and questions. In 2020, DOL-OCFO began publishing and regularly updating its FOIA Logs on DOL.gov quarterly.

MSHA creates a culture of transparency, fosters public trust, and aligns its practices with the principles of the presumption of openness. For example: 1) Provided training to agency staff involved in processing FOIA requests, emphasizing the importance of the presumption of openness and providing guidance on its application; 2) Conducted periodic reviews of the agency's practices to ensure compliance with the presumption of openness and identify areas for improvement; 3) Prioritized timely responses to FOIA requests, adhering to statutory deadlines and avoiding unnecessary delays;4) Instead of full denials, considered redacting sensitive information from documents to release as much information as possible; and, 5) Conducted regular training for agency employees to reinforce the importance of the presumption of openness in government operations. In addition to the specific tasks reference above, FOIA Coordinators consult with subject matter experts, MSHA's FOIA Officer and the Solicitor's Division to discuss responsive documents and obtain guidance to ensure the presumption of openness is applied consistently and regularly. In instances where documents are discovered that did not originate in a MSHA specific program area, those documents are sent to the proper office for consultation and a determination as to what information can and cannot be released. Throughout the consultation process, presumption of openness is emphasized.

SECTION II: ENSURING FAIR AND EFFECTIVE FOIA ADMINISTRATION

The Attorney General's FOIA Guidelines provide that "[e]nsuring fair and effective FOIA administration requires . . . proper training, and a full understanding of FOIA obligations by the entire agency workforce." The Guidelines reinforce longstanding guidance to "work with FOIA requesters in a spirit of cooperation." The Attorney General also "urge[s] agency Chief FOIA Officers to undertake comprehensive review of all aspects of their agency's FOIA administration" as part of ensuring fair and effective FOIA administration.

A. FOIA Training

1. The FOIA directs agency Chief FOIA Officers to ensure that FOIA training is offered to agency personnel. See 5 U.S.C. § 552(a)(j)(2)(F). Please describe the efforts your agency has undertaken to ensure proper FOIA training is made available and used by agency personnel. Yes.  Wee response to question 2 below.

2. Did your FOIA professionals or the personnel at your agency who have FOIA responsibilities attend substantive FOIA training during the reporting period such as that provided by the Department of Justice? Yes

3. If yes, please provide a brief description of the type of training attended or conducted and the topics covered.

DOL has provided significant training through varied event and programs to ensure FOIA program staff received substantive training during the program period, including a multi-day training conference, a multi-day training on the Department's FOIA system, on-demand trainings in the Department's portal and regular briefings for FOIA staff:

2023 Virtual FOIA Training Conference

On June 6 and 7, 2023, OIS hosted a FOIA Training Conference.  The lecture styled training was hosted in person and simultaneously broadcasted via WEBEX to over 500 employees from each DOL agency component.  The two-day event took place from 12:45pm (EST) to 5:00pm (EST) each day.

The training was designed is to train Department of Labor FOIA professionals and others with FOIA related responsibilities,  on a variety of topics, including a FOIA Administrative Processing Overview; FOIA Exemptions Overview; Privacy Act and SORNS; FOIA Exemption 5; FOIA and Records Management Interface; Administrative Appeals and Litigation Considerations; Fees and Fee Waivers; FOIA Exemption 4; Overview of the FOIAXpress Case Management System; Exemption 7(D) and Investigative Files; FOIA Best Practices and Process Management; Third Party Subpoenas; and an Open Forum Question and Answer Session

2023 FOIAXpress Training

On October 17 and 18, 2023, the Department hosted a two-day session aimed at teaching users about managing the lifecycle of a FOIA request, from inception to resolution, using the Department's FOIA tracking system, FOIAXpress.  On October 19, 2023, the agency held a FOIAXpress training regarding the use of the systems "Electronic Document Review" (EDR) functionality, which helps batch, group and deduplicate emails and other electronic records for the purposes of processing them for disclosure. 

DOL LearningLink Courses  

The Department also provides FOIA training for managers and FOIA Service Center staff via its LearningLink, DOL's e-Training solution which provides employees access to a one-stop portal of training programs and services. The Department requires that all new and current employees with FOIA responsibilities utilize the Learning Link On-line Module for FOIA training.  FOIA professionals may choose one or two FOIA e-learning training courses; "FOIA e-Learning Professionals Training" and "FOIA e-Learning Employees Training."  The first module is an in-depth course specifically designed for FOIA professionals, addressing all of the major procedural and substantive requirements of FOIA.  The second course is a brief module designed for all employees that provide limited FOIA support and highlights ways in which employees can assist their agencies in the administration of the FOIA statute. Both courses were created by the Department of Justice.

Training Videos on the DOL FOIA LaborNet Page

The Office of Information Services (OIS) has made available to DOL employees via its internal LaborNet page, a series of videos that contain segments of sessions that were pre-recorded from prior DOL FOIA training conferences.  In 2023, a recording of the entire Virtual FOIA Training Conference was added for viewing.  OIS added a video library that contained FOIAXpress training modules.  The FOIAXpress segments continue to service as an excellent reference source for both new FOIA staff and other professionals who require a refresher regarding the Department's FOIA case management system. 

In November 2023, OIS posted segments from the FOIAXpress refresher trainings that were conducted the prior month.  It has also made a concerted effort to encourage FOIA staff to take part in other training opportunities such as those that are provided by the U.S. Department of Justice, as well as other organizations that offer comprehensive FOIA instruction.

Quarterly FOIA Briefings

DOL through the Office of Information Services, holds quarterly FOIA Coordinator briefings in which all FOIA contacts Department-wide are encouraged to attend.  The primary purpose of the sessions is to share best practices and offer administrative and procedural guidance to staff.  During FY 2023, FOIA Coordinators were also briefed on FOIAXpress functionality through scheduled demonstrations and question and answer sessions. Other topics of interest included FOIA reporting, backlog reduction plans and FOIA administrative process guidance.

4. Please provide an estimate of the percentage of your FOIA professionals and staff with FOIA responsibilities who attended substantive FOIA training during this reporting period.

98.5%

5. OIP has directed agencies to "take steps to ensure that all of their FOIA professionals attend substantive FOIA training at least once throughout the year." If your response to the previous question is that less than 80% of your FOIA professionals attended training, please explain your agency's plan to ensure that all FOIA professionals receive or attend substantive FOIA training during the next reporting year.  N/A

6. Describe any efforts your agency has undertaken to inform non-FOIA professionals of their obligations under the FOIA. In particular, please describe how often and in what formats your agency provides FOIA training or briefings to non-FOIA staff; and if senior leaders at your agency received a briefing on your agency's FOIA resources, obligations and expectations during the FOIA process?

In addition to the DOL-wide training described above, DOL component agencies have provided the following targeted learning opportunities which are described below:

The Employment Training Administration (ETA) FOIA Coordinator provides a weekly briefing to supervisors on the scope and volume of incoming FOIA requests for awareness and to promote the effective allocation of staff resources.

FOIA training for all staff has been incorporated into OFCCP's FY2024 Agency Management Plan (AMP) and will be conducted this year.  OFCCP also conducted an annual records management training in FY 2023 that describes what FOIA is and how it interfaces with statutory mandates for records management.

The Office of Administrative Law Judges (OALJ) provides orientation for new judges and new law clerks.  During that orientation, a session is given about the relationship between FOIA and administrative hearings, and what judges and law clerks should do when receiving a FOIA-related issue or assignment.  OALJ's intranet contains information accessible to all OALJ staff regarding FOIA responsibilities and procedures, DOL FOIA Guidance and resources, FOIA Memoranda and Manuals, DOJ FOIA Guide and DOL FOIA Training conference materials in addition to links to other FOIA resources.  Senior leaders are apprised of agency FOIA resources, obligations, and expectations.

The (Office of the Inspector General) OIG conducted small group meetings using PowerPoint presentations that included an overview of the FOIA and OIG employees' responsibilities. One training was administered by the FOIA Officer and the Supervisory Attorney to the Office of Legal Services, another was provided to the Office of Audit.  Senior leaders have positively responded to the Disclosure Office's need for support with added technology.

B. Outreach

7. As part of the standard request process, do your FOIA professionals proactively contact requesters concerning complex or voluminous requests, in an effort to clarify or narrow the scope of the request so requesters can receive responses more quickly?  Yes.

Please describe any such outreach and dialogue and if applicable, any specific examples.

For example, MSHA FOIA Coordinators routinely provide requesters with relevant information to guide them through the FOIA process. They are informed of the approximate time needed to complete the request and are given the opportunities to modify their requests. Requesters are regularly notified of status updates pertaining to their requests such as when requests have been referred to another agency, rerouted to another office, or are delayed. MSHA FOIA Coordinators also direct requestors to data publicly available on MSHA's website if publicly available information will sufficiently respond to the request. These interactions helped ensure that FOIA requests were responded to in the most efficient and timely fashion.

In addition, the DOL FOIA Public Liaison routinely engages with requesters concerning complex or voluminous requests, to clarify or narrow the scope of the request so requesters can receive responses more quickly. In response to FOIA requests for records that may be located in multiple components of the Department, the FOIA Public Liaison reaches out on behalf of the records custodians to narrow the scope of requests, negotiate search terms, adjudicate fee matters and mediates matters regarding response times,  During FY 23, the FOIA Public Liaison addressed more than 600 inquiries from FOIA requesters and DOL agency components regarding the processing of their FOIA requests, addressed numerous inquiries from the public regarding how to submit FOIA requests and addressed general FOIA issues and mediated disputes between requesters and agency components,

8. Outside of the standard request process or routine FOIA Liaison or FOIA Requester Service Center interactions, did your FOIA professionals engage in any outreach or dialogue, with the requester community or open government groups regarding your administration of the FOIA?  For example, did you proactively contact frequent requesters, host FOIA-related conference calls with open government groups, or provide FOIA training to members of the public?  Please describe any such outreach or dialogue and, if applicable, any specific examples of how this dialogue has led to improvements in your agency's FOIA administration.  Yes.

Components provide information regarding specific outreach activities in the table below.

9. The FOIA Improvement Act of 2016 requires additional notification to requesters about the services provided by the agency's FOIA Public Liaison. Please provide an estimate of the number of times requesters sought assistance from your agency's FOIA Public Liaison during Fiscal Year 2023 (please provide a total number or an estimate of the number for the agency overall).

C. Other Initiatives

10. Has your agency evaluated the allocation of agency personnel resources needed to respond to current and anticipated FOIA demands? If so, please describe what changes your agency has or will implement.

The U.S. Department of Labor operates within a decentralized FOIA program.  Although the administrative management of the program is within the Office of the Solicitor, each of its 23 agency components is responsible for determining and allocating agency personnel resources that are necessary in order to respond to their FOIA demands.  To supplement their staffing needs agency components utilized, the Department's "ROAD" detail program where employees have an opportunity to cross over from their respective agencies and for a specified amount of time, they can work within other DOL agency components to gain the experience, knowledge and training necessary to enhance their career paths.  This program has been utilized by a number of components in an effort to gain additional FTE resources that would not otherwise be available to meet their FOIA demands. 

MSHA has evaluated the allocation of agency personnel resources needed to respond to current and anticipated FOIA demands. One of MSHA's program areas hired a full-time coordinator who serves as a dedicated resource, to handle all requests and coordinate FOIA activities with the district offices. This individual will also provide proactive guidance and training to the district FOIA professionals addressing systemic issues, as necessary. They are also working to fill vacated positions throughout the district offices and are utilizing current personnel to respond to FOIA demands.

A new management team in WHD took over in 2022 and has made changes to the resources available to meet the current FOIA demands.  Budget challenges reduce the ability of the agency to hire in general and that includes resources for FOIA.  However, significant improvements to other aspects of the process changed the overall productivity of WHD's FOIA office in FY 2023.  The management team eliminated redundant administrative processes and streamlined other processes where possible, using these efficiencies to increase overall office productivity and improve customer service, The team created a dedicated intake team to manage requests coming into the office and standardized how requests were triaged and handled.  This has led to a decrease in the number of complex or unmanageable requests which has reduced the overall workload and time required to answer a majority of FOIA requests.  This change and the assistance provided by the intake team has increased the number of requests which can be processed within the statutory 20-day time limit.

These changes contributed to the agency's significant reduction in the backlog of FOIA cases to a level not seen in 10 years.  The changes implemented provided an impact in our processing capability and reduced time required to respond to FOIA requests.

EBSA continues working to fill vacant positions. The Regional and National Office FOIA Coordinators have had periods of loss due to general attrition and staff seeking other responsibilities. Passed budgetary funding levels have delayed filling keyed positions. However, EBSA has been striving to fill open positions and keep its staff.

11. How does your agency use data or processing metrics to ensure efficient management of your FOIA workload? For example, case management reports, staff processing statistics, etc. In addition, please specifically highlight any data analysis methods or technologies used.

The Department has a scorecard in which it reports performance metrics to agencies on a quarterly basis.  FOIA timeliness is measured within the scorecard.  In addition, agency components are encouraged to perform soft audits within FOIAXpress by generating customized reports that include backlog and annual report data.

OFCCP has hired 2 additional staff members to assist with the increase of requests that yield voluminous documents.

WHD uses FOIAXpress data and Excel to analyze processing metrics to ensure efficient management of the FOIA workload.  These reports are reviewed twice weekly to manage the incoming requests, closed requests, and backlog count.  Using these reports in general provides a macro-level view of the program overall.  The reports and data tools available through FOIAXpress also assist in the monitoring of the work and productivity of individual analysts assigned case files in the system.  These additional reports provide office management a micro-level view of analyst productivity and workload to address shortfalls and potential areas where re-balancing of the workload is necessary to ensure that maximum effort is deployed in responding to FOIA requests.

MSHA utilizes the data provided by FOIAXpress to ensure efficient management of its FOIA workload. All active and closed requests are monitored daily. In addition to reviewing the data in the system daily, MSHA runs weekly reports that show the number of requests received and processed for the week, as well as for the year. MSHA also tracks the percentage of FOIA requests processed within 20 working days and the number of overdue FOIA requests. Individual program offices utilize Microsoft Excel to track their incoming and outgoing FOIA requests. All of these metrics are shared with MSHA management.

OSHA has a decentralized FOIA program with national, regional, and area offices. OSHA requires all national and regional offices to review their backlogs every two weeks and report that backlog to the National Office FOIA coordinator in OOC. OOC routinely runs fee and backlog reports and discusses any issues of concern with the appropriate action office.  Data on the age of OSHA requests is provided to OSHA processing units to allow emphasis on the oldest requests.

EBSA uses data from FOIAXpress to run reports for tracking active requests and to look at statistical reports on backlog and overdue cases.  EBSA Regional Offices also report weekly to the National Office Lead FOIA Coordinator on Sensitive, Overdue, and On-Hold requests received and reports this information the National Office FOIA Disclosure Officer.  The FOIA Disclosure Officer updates the EBSA Deputy Assistant Secretary for Policy on the status of these requests.

The OIG recently migrated to FOIAXpress for case tracking, correspondence, processing, and reporting.  The agency is able to monitor the case volume, statuses, backlog reduction progress, and case completion progress. In addition, the OIG uses data reports from its legacy Oracle system to run various reports and comparisons that can be pulled for different time periods.  The agency routinely conducts self-assessments and comparisons, by running weekly and quarterly reports for the backlog and processed and open requests, sorted by simple and complex categories of request.

The Office of the Solicitor (SOL) serves as another example.  The agency Lead FOIA Coordinator utilizes the FOIAXpress reports feature to run various customized reports, in an effort to assess FOIA backlog; make determinations regarding the effectiveness and efficiency of SOL's FOIA program; brief leadership; respond to FOIA requests that are seeking detailed information regarding the disposition of requests and determine the agency's ten oldest requests.

OASP uses FOIAXpress to compile reports and conduct weekly discussions to provide up-to-date information as it relates to any FOIA issue(s) that need to be addressed.  A weekly FOIA report is provided to leadership to ensure efficient administration of FOIAs assigned to OASP.

12. Optional -- If there are any other initiatives undertaken by your agency to ensure fair and effective FOIA administration, please describe them here.

MSHA's FOIA officer monitors pending requests and has meetings with management to discuss upcoming FOIA issues and backlog. Additional status meetings were held with individual program offices to answer any questions, ensure requests are handled timely, and identify any obstacles that may hinder the agency in meeting deadlines. MSHA headquarters program offices work closely with their divisions and district offices to ensure uniformity in addressing FOIA responses, as well as serve as the primary point of contract to troubleshoot and provide consistent guidance on critical and complex issues as they arise. FOIA coordinators consult with subject matter experts to ensure appropriate exemptions are applied, and if another program area or government agency should be involved in the processing of a request. Clear and frequent communication with requesters and other FOIA coordinators is also a very important practice to ensure a FOIA system operates efficiently and effectively. MSHA conducts quarterly and annual certification data reviews of the FOIA database to ensure that all FOIA information has been entered, properly coded, all letters and correspondence have been uploaded, tolls are entered and closed correctly, and once completed all requests were properly closed out in the system.

During this reporting period, WHD's FOIA management staff undertook a comprehensive review of the entire FOIA program.  This review identified areas where deficiencies existed on administering the FOIA program and took steps to mitigate those deficiencies, thus reducing WHD's backlog of FOIAs to a 10 year low.  WHD FOIA staff continues to operate in a backlog but has taken steps to manage expectations of requesters, to increase transparency, and reduce miscommunication and misunderstandings.

SECTION III: PROACTIVE DISCLOSURES

The Attorney General's FOIA Guidelines emphasize that "proactive disclosure of information is . . . fundamental to the faithful application of the FOIA." The Guidelines direct agencies to post "records online quickly and systematically in advance of any public request" and reiterate that agencies should post records "in the most useful, searchable, and open formats possible."

1. Please describe what steps your agency takes to identify, track, and post (a)(2) proactive disclosures.

Each DOL agency component is responsible for identifying, tracking and posting proactive disclosures.  The timeline for posting varies for each component.  For example:

The OIG has published more information on its website such as updated FOIA request procedures including how to submit requests using OIG's new and active Public Access Link (PAL).  The link to this information is available on the OIG FOIA website. The FOIA office has also encouraged OIG staff, when possible, to write sensitive audit reports in such a way that they do not include FOIA sensitive information and can be published on the OIG website without disturbing the integrity of the audit report. Further, each of the OIG component areas routinely identify emerging issues such as notable investigations, audits, alerts and upcoming audit projects and they are posted to the OIG website. The website information is routinely maintained and updated by the OIG staff.  

Due to the broad scope of the majority of the requests OIG receives, (for example, "Any and all investigations involving Unemployment Insurance Fraud since 2020…") OIG does not have the means to track and proactively post every individual investigation that may or may not have been included in a final production.

MSHA's FOIA coordinators will notify MSHA's FOIA officer of requests for records that have been requested three or more times.

WHD has used its FOIA Library to proactively post numerous documents and resources to promote public awareness of its programs and activities to the public.  Agency guidance such as Agency Opinion Letters are available online, workers may search the Workers Owed Wages site to determine if they are owed any back wages, and general enforcement information is available on the Enforcement Database website.    Notwithstanding our commitment to proactive disclosures, certain obstacles exist in deciding on whether it is appropriate to post specific types of information even when they have been requested more than three times.  Due to the nature and scope of WHD's enforcement responsibilities, many of the requests received by component are from 1st party requesters and many of the repeat FOIA requests are generated from separate 1st party requesters.  This type of FOIA release produces records that are not available for release to the general public because of privacy concerns in releasing 1st party information.  While additional steps could be taken to sanitize those records for release, to the general public (or any interested 3rd party requester), there still may be issues regarding the disclosure of information that could adversely impact current investigations or cases in litigation.

2. How long after identifying a record for proactive disclosure does it take your agency to post it?

There is currently no agency policy or mandated timeline in which to post proactive disclosures.

3. Does your agency post logs of its FOIA requests? Yes, as deemed appropriate.

• If so, what information is contained in the logs?

Due to the decentralized structure of the Department's FOIA programs, there are some agencies that post FOIA logs and some that do not because there are no requests for logs. 

FOIAXpress is the Department's FOIA case management system.  Its functionality allows the creation of logs that contain a multitude of fields.  Typically, a responsive log will contain at a minimum the requester name; record number; date of receipt; description; agency assigned and disposition.

• Are they posted in CSV format?  If not, what format are they posted in?

Yes.  However, some logs are posted in pdf format.

4. Provide examples of any material that your agency has proactively disclosed during the past reporting year, including records that have been requested and released three or more times in accordance with 5 U.S.C. § 552(a)(2)(D). Please include links to these materials as well.

OASAM proactively discloses contracting materials for all of DOL's agency components at:https://www.dol.gov/general/FOIA.

5. Beyond posting new material, is your agency taking steps to make the posted information more useful to the public, especially to the community of individuals who regularly access your agency's website?  Yes

OSHA posted over 3,000 webpages of new or revised content in FY2023 across all of its web resource on dol.gov as well as osha.gov.

EBSA has made materials 508 compliant and updated the process in which requesters seek bulk data, such as, the ERISA filing bulk data access by providing user accounts and passwords to requesters who are seeking this data directly from the website.  Previously, these requests were processed in 20 business days and now it takes approximately one day.

The main users of the BLS website are primarily interested in economic data.  The BLS measures labor market activity, working conditions, price changes, and productivity in the U.S. economy to support public and private decision making.  BLS experts quickly and efficiently answer questions from the public.  At the top of every program webpage, you'll find a link to a "contact us" page.  The "contact us" page includes phone numbers, email, and physical addresses for national and regional statistical and information staffs.  Each program maintains a Frequently Requested Materials (FAQ) page and a Handbook of Methods (HOM), which provides detailed methodology on specific BLS data products.

BLS FOIA staff has provided clear instructions on the BLS FOIA public website to differentiate between data requests and FOIA requests in an effort to better serve the public.  If requesters follow the data request process instead of the FOIA request process, they will often receive a faster response and will be put in contact with the subject matter experts. 

6. If yes, please provide examples of such improvements. In particular, please describe steps your agency is taking to post information in open, machine-readable, and machine-actionable formats, to the extent feasible. If not posting in open formats, please explain why and note any challenges.

The Department posts its annual reports in open, machine-readable formats.

OFCCP and OSHA make all of its postings 508 compliant to make its documents available to those with disabilities.

BLS values cooperation with data users and consults with a broad spectrum of users of its data to make its products more useful.  As part of the BLS customer pledge to the public, the Bureau promises to help users understand the uses and limitation of the data. 

The BLS Data Tools main page can be found here: https://www.bls.gov/data/tools.htm

7. Does your proactive disclosure process or system involve any collaboration with agency staff outside the FOIA office, such as IT or data personnel? If so, describe this interaction.

Yes.  The DOL website is managed by the Office of the Assistant Secretary for Administration and Management – Office of the Chief Information Officer (OASAM-OCIO).  All modifications to internal and public facing pages must be approved and implemented by that office.  This means that FOIA Service Center staff must collaborate with that office in order to post proactive disclosures and make changes to their FOIA pages.

The WHD FOIA team collaborates with various offices and staff within and outside WHD.  Within WHD, FOIA team collaborates with the Data Analysis staff, and regional/investigators throughout the nation.  WHD's management has had discussions with the data team about issues that would be in harmony with the FOIA office's goals and initiatives.  These discussions have focused on the concepts of proactive disclosures of records and release of information that could be made available to the public proactively.  But because of the nature of the records and potential law enforcement activity which may be connected to such data sets, determining what can be released proactively without need for exemption under FOIA is an ongoing topic for discussion.

WHD has vast amounts of data, but much of that data contains fields which would be withheld under FOIA due to litigation, for express or implied confidentiality given to witnesses or informants, and because much of the data involves some degree of personal information (PII) which must be redacted prior to release.  Aggregate data is released proactively by the data team, but more specific data regarding individual investigations or complaints are much more sensitive and would not be appropriate for blanket disclosure under FOIA or the Federal Data Strategy.

Another collaboration is with the Department's Public Affairs office on ways WHD could improve its messaging through media by providing additional resources to news media outlets and reduce the need for media to submit FOIA requests for information which could be released by the public affairs office in conjunction with a press release or announcement.

8. Optional -- Please describe the best practices used to improve proactive disclosures and any challenges your agency faces in this area.

OSHA social media posts are 508 compliant. For example, graphics have alternative texts for the visually impaired.  These posts and subscriptions are available in English and Spanish.  Access to these messages can also be viewed on mobile devices.

The 385,445 subscribers to OSHA's newsletter QuickTakes receive "Did You Know?" emails with important safety messages. "Workplace Safety Reminder" subscribers receive detailed and in-depth safety messages.  Finally, "OSHA Alerts" focus attention on worker safety and health issues and solutions aimed at media professionals.

The best practice for WHD has been the use of its public website to make numerous proactive disclosures, such as Agency Opinion Letters.  Workers may also search the Workers Owed Wages site to determine if they are owed any back wages, and general enforcement information available on the Enforcement Database website.

The primary challenges WHD faces in proactive disclosure of information on a publicly accessible website are the potential for release of personally identifiable information (PII) and potential interference with law enforcement activities or litigation.  These concerns stem from the possibility of harm or retaliation against witnesses, informants, or complainants who provided information or cooperated in an investigation by WHD.

In many cases Wage and Hour Division provides access to information regarding aspects of a particular investigation or complaints filed.  The information made available publicly is scrubbed for potential PII and law enforcement activities.  However, most of WHD's FOIA requests are for information or data sets which are deliberately not included in those publicly available records.  This is a challenge, when many of the requesters are media organizations or other 3rd party individuals with no connection to the information requested.  These 3rd party FOIA requests require review of the records for information which falls into exemption (b)(6) for privacy and exemption (b)(7) for various aspects of law enforcement information.  This requirement for review, hinders the agency's ability to make proactive disclosures of the information on a publicly available website.

SECTION IV: STEPS TAKE TO GREATER UTILIZE TECHNOLOGY

A key component of FOIA administration is using technology to make information available to the public and to gain efficiency in FOIA processing. The Attorney General's FOIA Guidelines emphasize the importance of making FOIA websites easily navigable and complying with the FOIA.gov interoperability requirements. Please answer the following questions to describe how your agency is using technology to improve its FOIA administration and the public's access to information.

1. Has your agency reviewed its FOIA-related technological capabilities to identify resources needed to respond to current and anticipated FOIA demands?  Yes

2. Please briefly describe any new types of technology your agency began using during the reporting period to support your FOIA program.

3. Does your agency currently use any technology to automate record processing? For example, does your agency use machine learning, predictive coding, technology assisted review or similar tools to conduct searches or make redactions? If so, please describe and, if possible, estimate how much time and financial resources are saved since implementing the technology.  Yes

DOL utilizes the FOIAXpress case management system as its sole source for data and processing FOIA requests.  The system contains the functionality that allows for technology assisted review of documents and has the capability to conduct searches, de-dupe, as well as make redactions and store responsive documents.

As part of the IT Modernization Project, the OASAM - Office of the Chief Information Officer (OCIO) developed the Electronically Stored Information (ESI) E-Discovery request system to search more efficiently for agency records.

Components have taken additional steps to leverage technology for more efficient processing.  For example, WHD has invested in providing each FOIA professional with a copy of Adobe Professional.  This software allows for the use of optical character recognition (OCR) to assist in reviewing documents provided to the analysts for review.  The addition of Adobe Professional has assisted with the ability to OCR documents and utilize the features of Adobe to scan for repetitive items within a document set.  However, depending on the nature of the documents, the utility of this feature is somewhat limited.  Typically, our records contain very few repetitive items requiring redaction, so the utility of using this feature outside of the system is somewhat limiting.  It can assist in locating or ensuring that items are not missed in a review of the record set, but that is the only benefit. 

BLS FOIA staff developed and ran a Visual Basic (VBA) code to convert thousands of emails to PDF.  Previously, the agency converted these emails manually, which was an extremely time-consuming process for larger requests.  This script has saved BLS hours of staff labor for large requests.

4. OIP issued guidance in 2017 encouraging agencies to regularly review their FOIA websites to ensure that they contain essential resources and are informative and user-friendly. Has your agency reviewed its FOIA website(s) during the reporting period to ensure it addresses the elements noted in the guidance?

Yes.  For example, OLMS provides their email address, olms-public@dol.gov for the public to submit questions related to any documents or materials posted on their website, including the OLMS Online FOIA Reading Room.    

5. Did all four of your agency's quarterly reports for Fiscal Year 2023 appear on FOIA.gov?

Yes

6. If your agency did not successfully post all quarterly reports on FOIA.gov, please explain why and provide your agency's plan for ensuring that such reporting is successful in Fiscal Year 2024.

N/A

7. The FOIA Improvement Act of 2016 requires all agencies to post the raw statistical data used to compile their Annual FOIA Reports. Please provide the link to this posting for your agency's Fiscal Year 2022 Annual FOIA Report and, if available, for your agency's Fiscal Year 2023 Annual FOIA Report.

https://www.dol.gov/general/foia/reports/annual

8. In February 2019, DOJ and OMB issued joint Guidance establishing interoperability standards to receive requests from the National FOIA Portal on FOIA.gov. Are all components of your agency in compliance with the guidance? Yes

9. Optional -- Please describe the best practices used in greater utilizing technology and any challenges your agency faces in this area.

In addition to FOIAXpress, MSHA's program offices utilize Microsoft Excel to internally track its FOIA requests. MSHA's FOIA Coordinators make extensive use of the Adobe Acrobat Pro redacting tools to redact information in responsive documents. All files are processed electronically and are stored on internal shared drives using a standardized folder structure. For large, complex searches, standardized search parameters are provided to use in Microsoft Outlook and File Explorer searches. The Auto Portfolio plug- in software for Adobe that de-duplicates emails, extracts email file attachments and converts them to PDF format.  In addition, it allows users to convert portfolios, exports email metadata into Excel or HTML formats and expedites the processing of requests for email communications. This software has significantly decreased the review time for our FOIA Coordinators. Adobe Creative Cloud/Premiere is utilized to redact photos and videos including audio tracks. MSHA has found that some responsive files are too large to send through FOIAXpress or regular e-mail. As such, Kiteworks is now used to send very large files to requesters.

SECTION V: STEPS TAKEN TO REMOVE BARRIERS TO ACCESS, IMPROVE TIMELINESS IN RESPONDING TO REQUESTS, AND REDUCE BACKLOGS

The Attorney General's FOIA Guidelines instruct agencies "to remove barriers to requesting and accessing government records and to reduce FOIA processing backlogs." Please answer the following questions to describe how your agency is removing barriers to access, improving timeliness in responding to requests, and reducing FOIA backlogs.

A. Remove Barriers to Access

1. Has your agency established alternative means of access to first-party requested records outside of the FOIA process?

There is no Department-wide uniform policy with respect to how individual agency components provide access to first party requested records outside of the FOIA process.  However, some agencies, like the OIG, provide access to first party requested records outside of the FOIA process when those records are fully releasable to the first party requester or their duly authorized representative, such as to the Human Resources Office.

2. If yes, please provide examples. If no, please indicate why not. Please also indicate if you do not know.

See response to question 1, above.

3. Please describe any other steps your agency has taken to remove barriers to accessing government information.

The U.S. Department of Labor procured the FOIAXpress case management system in an effort to remove barriers to accessing government information.  The system has functionality that includes the Public Access Link, which enables the citizenry to submit FOIA requests directly to the agency by creating accounts within the system.  The general public is also able to communicate directly with DOL staff who are processing requests via the FOIAXpress built in messaging system.  Requesters are also able to obtain processing status updates, as well as receive responsive documents directly from the system. 

The OASAM FOIA website provides links to general information and other federal agencies, as well as instructions for locating employment records of non-federal workers. The DOL receives numerous requests for employment history from the public. Responses providing instructions on where to locate the information from the government are provided, but it is also included on our webpage.

Additionally, OASAM/OFO has established a Fax number for the public to use which links directly to a mailbox that is monitored by the FOIA coordinators for OFO.OASAM/OFO public FOIA fax number is (972)850-4440 and the mailbox is: eFAX-OASAM-OFO-FOIARequests. 

WHD uses its public website to remove barriers to accessing government information by posting Agency Opinion Letters, allowing workers to search the Workers Owed Wages site to determine if they are owed any back wages, and posting general enforcement information on the Enforcement Database website.  The agency has developed several template letters for FOIA..    WHD has assured that the new templates and letters were 508 compliant through testing and evaluation.

Timeliness

4. For Fiscal Year 2023, what was the average number of days your agency reported for adjudicating requests for expedited processing? Please see Section VIII.A. of your agency's Fiscal Year 2023 Annual FOIA Report.

FY 2023 - Requests for Expedited Processing

5. If your agency's average number of days to adjudicate requests for expedited processing was above ten calendar days, according to Section VIII.A. of your agency's Fiscal Year 2023 Annual FOIA Report, please describe the steps your agency will take to ensure that requests for expedited processing are adjudicated within ten calendar days or less.

The agency has taken the opportunity to highlight the importance of adjudicating timely requests for expediting processing by conducting a FOIA Overview training session at the DOL Virtual FOIA Training Conference that was held in June 2023.  Also, during Quarterly FOIA Coordinators meetings conducted by the Office of Information Services, agency FOIA staff was briefed on various internal FOIA processing measures and metrics that included timeliness with respect to expedited processing.

6. Does your agency utilize a separate track for simple requests? Yes

7. If your agency uses a separate track for simple requests, according to Annual FOIA Report section VII.A, was the agency overall average number of days to process simple requests twenty working days or fewer in Fiscal Year 2023? No

8. If not, did the simple track average processing time decrease compared to the previous Fiscal Year? Yes. The average processing time decreased from an average of 49.16 in FY22 to 24.51 in FY23.

9. Please provide the percentage of requests processed by your agency in Fiscal Year 2023 that were placed in your simple track. Please use the following calculation based on the data from your Annual FOIA Report: (processed simple requests from Section VII.C.1) divided by (requests processed from Section V.A.) x 100.

Simple Requests – FY 2023

10. If your agency does not track simple requests separately, was the average number of days to process all non-expedited requests twenty working days or fewer? N/A

C. Backlogs

BACKLOGGED REQUESTS

11. If your agency had a backlog of requests at the close of Fiscal Year 2023, according to Annual FOIA Report Section XII.D.2, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2022? No

12. If not, according to Annual FOIA Report Section XII.D.1, did your agency process more requests during Fiscal Year 2023 than it did during Fiscal Year 2022?  No

13. If your agency's request backlog increased during Fiscal Year 2023, please explain why and describe the causes that contributed to your agency not being able to reduce its backlog. When doing so, please also indicate if any of the following were contributing factors:

• An increase in the number of incoming requests
• A loss of staff
• An increase in the complexity of the requests received (if possible, please provide examples or briefly describe the types of complex requests contributing to your backlog increase)
• Litigation
• Any other reasons – please briefly describe or provide examples when possible

At the end of FY 2023, the Department's total number of backlogged initial FOIA requests increased by 162 requests, in comparison to the total volume of over 14,000 received and processed requests (14,279 and 14,219 respectively). In FY2023, many DOL agency components reported an increase in the number of FOIA requests seeking access to voluminous amounts of electronic data, including emails. Even searches for FOIA requests that appeared on their face to be simple in nature required agencies to negotiate over search terms and leverage e-discovery tools to search for responsive records among emails and other electronic records platforms. Additionally, electronic searches produced records that required deduplication, the identification and coordination of reviews for sensitive equities and other unique processing issues that extended processing time frames. All of these factors impacted the Department's ability to timely respond to some requests and limited additional resources that could have been used solely for the purposes of targeting the Department's oldest pending requests. In addition, there were a small number of requests with litigation equities that could not be closed because litigation was ongoing.

14. If you had a request backlog, please report the percentage of requests that make up the backlog out of the total number of requests received by your agency in Fiscal Year 2023. Please use the following calculation based on data from your Annual FOIA Report: (backlogged requests from Section XII.A) divided by (requests received from Section V.A) x 100. This number can be greater than 100%. If your agency has no request backlog, please answer with "N/A."

2023 Backlog Percentage Chart

BACKLOGGED APPEALS

15. If your agency had a backlog of appeals at the close of Fiscal Year 2023, according to Section XII.E.2 of the Annual FOIA Report, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2022? No.  The backlog remained the same for both years.

16. If not, according to section XII.E.1 of the Annual FOIA Report, did your agency process more appeals during Fiscal Year 2023 than it did during Fiscal Year 2022? Yes

17. If your agency's appeal backlog increased during Fiscal Year 2023, please explain why and describe the causes that contributed to your agency not being able to reduce its backlog. When doing so, please also indicate if any of the following were contributing factors:

• An increase in the number of incoming appeals
• A loss of staff
• An increase in the complexity of the requests received (if possible, please provide examples or briefly describe the types of complex requests contributing to your backlog increase)
• Litigation
• Any other reasons – please briefly describe or provide examples when possible

18. If you had an appeal backlog, please report the percentage of appeals that make up the backlog out of the total number of appeals received by your agency in Fiscal Year 2023. Please use the following calculation based on data from your Annual FOIA Report: (backlogged appeals from Section XII.A) divided by (appeals received from Section VI.A) x 100. This number can be greater than 100%. If your agency did not receive any appeals in Fiscal Year 2023 and/or has no appeal backlog, please answer with "N/A."

D. Backlog Reduction Plans

19. In the 2023 guidelines for Chief FOIA Officer Reports, any agency with a backlog of over 1000 requests in Fiscal Year 2022 was asked to provide a plan for achieving backlog reduction in the year ahead. Did your agency implement a backlog reduction plan last year? If so, describe your agency's efforts in implementing this plan and note if your agency was able to achieve backlog reduction in Fiscal Year 2023?

Yes.  The U.S. Department of Labor implemented a backlog reduction plan last year.  However, the agency was not able to achieve a reduction in the overall backlog.

20. If your agency had a backlog of more than 1,000 requests in Fiscal Year 2023, please explain your agency's plan to reduce this backlog during Fiscal Year 2024.

DOL's Target Backlog Reduction Goals

• TARGET 1:  Eliminate all backlogged FOIA requests received by the Department during calendar years 2017 – 2018 by 100% by December 31, 2024.
• TARGET 2:  Take proactive steps to encourage the reduction of the number of backlogged FOIA requests by the Department during calendar years 2019 and 2020 by 100% by September 30, 2025.
• TARGET 3:  Consistent with the Department's standing FOIA Modernization Initiatives, take proactive steps to encourage the reduction by September 30, 2025, of the number of remaining backlogged FOIA requests received by the Department during calendar year 2021 by 50% and by 25% for FOIA requests received during calendar year 2022.
• TARGET 4:  Take proactive steps to encourage the reduction of the overall backlog of FOIA requests by 20% on or before September 30, 2025, in compliance with the Department's backlog reduction goal established in the DOL Financial and Administrative Management Scorecard.

E. Reducing the Age of Requests, Appeals, and Consultations

TEN OLDEST REQUESTS

21. In Fiscal Year 2023, did your agency close the ten oldest pending perfected requests that were reported in Section VII.E. of your Fiscal Year 2022 Annual FOIA Report?  No

Note:  As demonstrated in yellow shading within the above table, the Department closed seven of the ten oldest FOIA initial requests that were reported within the FY 2022 FOIA Annual Report.

22. If no, please provide the number of these requests your agency was able to close by the end of the fiscal year, as listed in Section VII.E of your Fiscal Year 2022 Annual FOIA Report. If you had less than ten total oldest requests to close, please indicate that. (Please see note above)

23. Beyond work on the ten oldest requests, please describe any steps your agency took to reduce the overall age of your pending requests.

Please see the answer provided under Section D. Backlog Reduction Plans.

TEN OLDEST APPEALS

24. In Fiscal Year 2023, did your agency close the ten oldest appeals that were reported pending in Section VI.C.5 of your Fiscal Year 2021 Annual FOIA Report?  Yes

25. If no, please provide the number of these appeals your agency was able to close by the end of the fiscal year, as listed in Section VII.C.(5) of your Fiscal Year 2022 Annual FOIA Report. If you had less than ten total oldest appeals to close, please indicate that. N/A

26. Beyond work on the ten oldest appeals, please describe any steps your agency took to reduce the overall age of your pending appeals.

The FOIA Appeals Unit in the Office of the Solicitor prioritizes closing the top ten oldest appeals every year.  A list of the top ten oldest appeals is created at the beginning of the fiscal year.  All ten cases are assigned at that time and their progress is monitored by the Counsel for FOIA Appeals throughout the fiscal year. The FOIA Appeals counsel regularly invites detailees into the FOIA Appeals Unit to handle simple track cases so the experienced permanent attorney staff can turn their attention to the oldest most complex appeals. Additionally, the FOIA Appeals Unit is in regular contact with requesters who have older pending appeals to determine their continued interest.

TEN OLDEST CONSULTATIONS

27. In Fiscal Year 2023, did your agency close the ten oldest consultations that were reported pending in Section XII.C. of your Fiscal Year 2022 Annual FOIA Report?  No

Note: As demonstrated in yellow shading within the above table, the Department closed five of the seven FOIA Consultations that were reported within the FY 2022 FOIA Annual Report.

28. If no, please provide the number of these consultations your agency was able to close by the end of the fiscal year, as listed in Section XII.C. of your Fiscal Year 2022 Annual FOIA Report. If you had less than ten total oldest consultations to close, please indicate that.   (Please see note above)

ADDITIONAL INFORMATION REGARDING TEN OLDEST

29. If your agency did not close its ten oldest pending requests, appeals, or consultations, please explain why and provide a plan describing how your agency intends to close those "ten oldest" requests, appeals, and consultations during Fiscal Year 2024.

The Department was successful in closing all ten of its oldest reported FOIA Appeals.  There were only seven pending FOIA Consultations pending at the end of FY 2022 and the DOL closed five prior to the end of FY23.

Eight of the ten oldest pending FOIA initial requests were closed during FY 2023.  The 80 percent success rate of this backlog reduction goal has been identified as a Departmental priority for FY 2024.  Therefore, the Department's Office of Information Services has planned to conduct FOIA agency reviews during FY 2024.  This endeavor will enable the Department to identify administrative deficiencies, as well as to discuss best practices and next steps with FOIA Service Center staff regarding the achievement of DOL backlog reduction goals and FOIA efficiency.

F. Additional Information about FOIA Processing

30. Were any requests at your agency the subject of FOIA litigation during the reporting period? If so, please describe the impact on your agency's overall FOIA request processing and backlog. If possible, please indicate the following:  Yes

• The number and nature of requests subject to litigation

At the beginning of FY 2023, DOL had 13 open FOIA cases.  During FY 2023, an additional 17 FOIA cases were filed, and 15 cases were closed.

• Common causes leading to litigation

Most of the cases were brought based upon issues surrounding timeliness with respect to FOIA initial request or FOIA appeals processing.

• Any other information to illustrate the impact of litigation on your overall FOIA administration.

Two of MSHA's FOIA requests related to mine incidents have been the subject of FOIA litigation during the reporting period because of a delay in processing the requests. FOIA requests that involve legal challenges or disputes may take longer to resolve, causing delays in the processing of other requests and adding to the backlog. When this occurs, MSHA reallocates personnel resources to respond to current and anticipated FOIA demands.