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FOIA Update: FOIA Focus: C. Nicholas Kalcounos

FOIA Update
Vol. V, No. 1

FOIA Focus: C. Nicholas Kalcounas

While FOIA analysts are the "front line troops" in responding to the more than 250,000 access requests that annually deluge the Federal Government, a second type of FOIA officer -- the administrative appeals official -- is also vital to an agency in carrying out its mandate under the Freedom of Information Act. The appeals officer has the delicate task of reviewing already processed documents in order to make an independent judgment about the correctness of co-workers' nondisclosure decisions. Often the appeals officer's job will involve conflict with agency program officers who think that too much is being released, as well as with requesters who contend that just the opposite is true. In short, the appeals officer, unloved and unsung, provides the agency with its last opportunity to ensure the correctness of its FOIA determinations before a FOIA requester takes his case to court.

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"It's a problem in keeping the balance," says C. Nicholas Kalcounos of his job as an appeals official. Kalcounos is Director of the Freedom of Information and Privacy Act Appellate Office at the Small Business Administration.

To Kalcounos and his staff of three Freedom of Information Act specialists come approximately 200 appeals yearly. Initial requests are handled at the more than 100 SBA branch, district, or regional offices where the first disclosure determinations are made. Responses to initial requests carry an "appeals" paragraph (as required by statute) that directs the dissatisfied requester to Kalcounos' staff at SBA's central office.

Kalcounos personally scans the appeals as they arrive in twice-daily mail deliveries and makes assignments to his staff of FOIA specialists. The most difficult cases generally go to Beverly Linden, who is the office's senior analyst.

As an appeals matter is assigned, the pertinent files are requested from the field office in which the initial request was processed. Once the files arrive, the FOIA appeals specialist reviews all material withheld at the initial level. It is possible that a document search could be ordered widened at that point, but Kalcounos observes that because of the nature of SBA programs it is rarely necessary to broaden a search on appeal.

It is at this point that the appeals specialist generally confers with the field office and then prepares a "memorandum to the file" setting forth a recommended disposition. "We go to them for an explanation of their decision. If we are convinced that their position is supported by the Act, we continue to withhold. If not, then we release. We're the final word on disclosure for SBA."

Kalcounos personally reviews all the work of his staff, taking as much as several hours on each appeal, although this varies with the complexity of the case. He also takes pride in the timeliness with which his office handles appeals. Rarely does his office seek extensions, he says.

"I will look to see that we have responded to the entire request. It's very easy to get off the track and to answer only one part of a question. Then I will look to see that a proper exemption is cited. Primarily we deal with Exemption 4, but we have Exemption 5 and even Exemption 7 material, too. Then I will review the memo to the file authored by the FOIA appeals specialist and talk with her to see what her thinking is in overturning an initial determination," says Kalcounos. When it is necessary, outside submitters of material to SBA are consulted by the appeals staff and are given a chance to object before a release is made.

"Once a case is concluded we like to go back to the program people and explain what we've done," he emphasizes. Kalcounos says that program and field officers may "mumble and groan some," but by and large they are very cooperative and understand the necessity of the appeals process and the work of his appeals staff.

"In just about every appeal there's something that can be released," Kalcounos says, "and our staff will see it. This is very much in line with the agency's policy of releasing material whenever it is reasonably possible.

"What happens is that the program people are sympathetic to the small business community. No one wants to release material that will harm the competitive position of a small business. On the other hand, we do have these two laws -- the FOIA and the Privacy Act -- and we do have to comply with them or else hurt the agency, so there's the conflict."

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Kalcounos himself is an old hand at balancing several competing considerations and making statutory determinations.

A native Washingtonian, he began his government career as a corporate tax law specialist at the IRS. That was in the early 1970s and Kalcounos was one of a group of IRS employees asked to develop sanitized versions of documents for release under the FOIA. "They sat us down and asked us, 'How would you sanitize these docunents?' From that came their early procedures for making FOIA releases."

Kalcounos next went to the Office of General Counsel at the Federal Election Commission and about seven years ago joined SBA. At first, he was a one-man FOIA office, but within six months his staff began to grow. Today, Kalcounos and his appellate office comprise a separate component within SBA's Office of Hearings and Appeals.

As SBA's first full-time FOIA officer, Kalcounos has developed many of the procedures followed agency-wide on the FOIA and the Privacy Act. He emphasizes the need for training agency access professionals and he personally sees to it that he and his staff attend all of the relevant training available. He also speaks frequently to SBA district and regional counsels to keep them updated on FOIA developments and acts as a consultant to SBA's field and program people on FOIA matters. "We encourage them to call," he says.

In addition, Kalcounos and his staff enjoy an excellent rapport with the litigation section of the SBA general counsel's office. "They are always there when we call," he notes. He also points out that the agency has had only one major setback in a lawsuit stemming from a decision of his. "We lost the Miami Herald case," Kalcounos says, "on a technicality. Still, one loss in seven years isn't bad."

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Updated August 13, 2014