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FOIA Update: At Commerce Department Decentralization is Key to FOIA Work

FOIA Update
Vol. II, No. 3

At Commerce Department Decentralization is Key to FOIA Work

For the Commerce Department where responsibilities range from taking the census to predicting the weather, decentralization is the approach that works in F0IA administration.

"It gives many people down the line in the programs the authority to grant access to records," says a Commerce official. "Of course, individual FOIA officers, policy specialists and attorneys give assistance . . . . Within a framework set by the department, bureaus have flexibility to use their own procedures for responding to requests. These will vary depending on volume and other factors unique to the bureau."

"There is just no way that one Freedom of Information Office without a large staff could be effective in handling requests for information generated by a myriad of bureaus--everything from Patents and Trademarks to the Bureau of Standards and the International Trade and the Maritime Administrations."

"Besides variety, Commerce deals with many subjects that are highly technical and require substantive expertise on the part of officials deciding whether to release. It is just more efficient to handle FOIA requests at the program level," continues the official.

Coupled with this decentralized approach is a high-level, highly visible information policy office. The Information Policy Division, part of the Office of Organization and Management Systems, reports to the Assistant Secretary for Administration. Headed by Marilyn S. McLennan, the five-year old policy division has departmentwide responsibilities for administering all openness statutes, including the Freedom of Information Act, the Privacy Act, the Federal Advisory Committee Act, and the disclosure portion of the Ethics in Government Act.

Three Missions

The division has three missions: policy, analysis and operations. On the policy-analytical level, the division develops departmentwide rules and performs oversight functions. For example, procedures used by all the various bureaus and offices within the department are reviewed by the analysts in the unit.

One of the division's busiest functions is at the operational level. Division staffers assure that information requests are promptly assigned, acknowledged and adequately answered.

Many initial requests under FOIA come directly to the office located on the fifth floor. "Some are clearly intended for a specific bureau and are immediately forwarded there," says Mrs. McLennan. "Others are multibureau and we coordinate them. Approximately 500--or about one fourth of the yearly requests -- are processed here."

The division staff tracks requests which are answered within the Office of the Secretary as well as others involving responses from several bureaus. Other requests go directly to the various bureaus, and are "tracked and tickled" by FOIA personnel.

Requests for the Office of the Secretary are translated onto Commerce Department Form 244, and a copy of the form is filed in a tickler file. Seven days before the response is due, a division staffer checks with the office handling the inquiry. If the 10-day deadline cannot be met, the staffer explains how to take a statutory extension or suggests calling requesters to negotiate new deadlines.

Information Policy Division personnel also telephone requesters in an effort to narrow or better frame requests. "We find requesters to be very cooperative and in fact, to be both pleased and just a little surprised to receive a personal call from a federal employee," says Mrs. McLennan. "We really want to help and we have a very open policy. I think it shows when we talk to requesters."

On the Legal Side

Besides the half a dozen or so people working in the policy area and the many persons who handle FOIA requests at the bureau level, the Commerce Department has an experienced FOIA legal expert, Joe Levine. "A Commerce attorney must clear all initial denials," he explained. "Although appeals from these initial denials are handled at the bureau level, Alfred Meisner, the assistant general counsel for administration, and an officer from the Office of Public Affairs must concur in all final denials."

Considering the size of the department and its many functions, Commerce has relatively few FOIA requests. "About 2000 requests during calendar year 1980. Information is either very available because it is the kind of material that is in the public domain or is protected by statute and therefore not released," notes Mrs. McLennan.

For the past year, Levine has found that the appeals work load doubled although the number of incoming requests was relatively constant, and the initial denial rate was up slightly.

The percentage of initial denials over the past five years is approximately 20%. Of all initial denials, less than 20 percent are appealed and of these appeals more than 50 percent are revised in whole or in part. What this comes down to is that the public gets what it wants in 80% or more of the cases.

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Updated August 13, 2014