FREEDOM OF INFORMATION AND PRIVACY ACT PROCESSING GUIDANCE FOR LIAISONS

Revised August 27,2010

Page 1

FOIA AND PRIVACY ACT PROCESSING GUIDANCE FOR LIAISONS

Table of Contents

1. Overview of Office of Freedom of Information and Privacy Act Operations (FOIA/P A Office)

2. FOIA/P A Statutes and Regulations

3. The FOIA Liaison Role

4. FOIA/PA Reference Materials

5. FOIA/P A Training

6. Overview of FOIA/P A Request Process

7. FOIA/P A Specialist Responsibilities

8. FOIA/PA Liaison Responsibilities

9. FOIA Reports and Recordkeeping

10. FOIAXpress Guidance for Liaisons

- REVISION CHRONOLOGY-

Revised August 27,2010

Page 2

FOIA AND PRIVACY ACT PROCESSING GUIDANCE FOR LIAISONS

The purpose of this memorandum is to provide guidance to persons designated as FOIA Liaisons for conducting records searches and responding to the FOlA/PA Office when a FOIA request is referred to the program office or division.

1. Overview of Office of Freedom of Information and Privacy Act Operations (FOIA/PA Office).

The mission of the FOIA/PA Office is to facilitate the Commission's response to FOIA and Privacy Act requests and to manage the processing of requests, the tracking system, and reporting functions as mandated by the statute. All FOIA and PA requests received by the Commission are processed through the Office of FOIA and PA Operations. The Commission has a centralized FOIA & PA process, therefore, no requests are considered "received" by the Commission until received in the FOIA/PA Office. The FOIA/PA Office staff receives and assigns tracking numbers for all incoming requests. FOIA Research Specialists perform initial research on requests to determine which officers) may hold records responsive to the request. The request may then be referred to the FOIA Liaisonts) for the appropriate offices.

The FOIA/PA Office also receives all incoming appeals of denials under the

FOIA and Privacy Act. Once a FOIA or PA request has been denied in full or granted in part or a finding of "no responsive records" is rendered, the requestor is provided appeal rights instructing the submission of an appeal to the Office of the General Counsel (OGC). However, the FOIA/PA Office receives all incoming appeals, assigns a tracking number and forwards the appeal to the OGC for direct response to the requestor.

2. FOIA/P A Statutes and Regulations.

The Freedom of Information Act (FOIA), 5 USC 552, the Privacy Act (PA) , 5 USC 552a, and the Commissions FOIA and PA regulations, 17 CFR 200.80, may be accessed via the FOIA/PA page on the INSIDER.

Revised August 27,2010

Page 3

SEC FOJAjPA Liaison Guidance

3. The FOIA Liaison Role.

A. FOIA Responsibility Commission-wide: The Chairman, in her November 2009 message to all employees, stated:

('As an SEC employee, you may be called upon to locale or review documents that are responsive to a FOfA request. It is your responsibility to do so in a timely manner so that a prompt response can be provided to the 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 that you put forth everyday on behalf of the investor community and the American public. rr

See the full message at:

http.//insider.sec.gov/whats happening/at the sec/november 200g/ci1airm an-foia-] 123200.9.htmi

B. Liaison Purpose: Each division and program office director designates

one or more FOIA liaisonrs) as contact points for the FOIA/PA Office and to receive and coordinate responses to FOLA requests which are referred to the division or program office. Each division and program office must have at least one staff member designated as the primary FOIA Liaison. It is recommended that each primary liaison have at least one alternate liaison. A FOIA liaison should be of sufficient grade or experience within the office to be knowledgeable about the work and the records of the program entity; the staff member should have the time and ability to accurately search for records or direct other staff members to conduct searches and perform document-by-document reviews, if necessary; and the liaison should be able to provide a written response to the FOINPA Office responding to the referral in a timely and accurate manner. FOIA liaisons should have knowledge of the law (FOTA and Privacy Act) which is commensurate with the volume and complexity of referrals to the program office.

C L·· L·· d e-rnail l(bX2)

. raison 1stmg an e-ma1 accounts:

Revised August 27,2010

Page 4

SEC FOJAjPA Liaison Guidance

D L·· U f FOIAX . . l(b)(2)

. IalSOn se 0 - press. I

I

(bX2J

E. Changes or Additions to FOIA Liaison Designation: l(b~2)

(bX2J

I

F. Payroll Activity Coder)(2)

r~

4. FOIA/PA Reference Materials.

The FOIA/FA page on the INSIDER provides internal guidance and information for FOIA liaisons and all staff including links to reference material including:

• SEC FOIA and Privacy Act Regulations;

• The Freedom of Information Act (5 USC 552);

• The Privacy Act (5 USC 552a);

• SEC Privacy Act System of Records Notices (SORN's);

• SEC Confidential Treatment Rule 83 (17 CFR 200.83);

• SEC Annual FOIA Reports;

• Department of Justice Guide to the FOIA;

• Department of Justice FOJA Post (includes on-going litigation updates, Attorney General Announcements and information for the FOIA community);

• Department of Justice listings of all agency FOIA/FA Officers; and

• FOIA/FA Training availability

Revised August 27,2010

Page 5

5. FOIA/P A Training.

Liaisons may obtain training on the FOIA and Privacy Acts through the following sources via links on the FOIA/PA INSIDER page:

• SEC University sponsors FOIA/PA training annually;

• Department of Justice (DOJ);

• ASAP (American Society of Access Professionals)

• Graduate School (formerly USDA Graduate School).

6. Overview of FOIA/P A Request Process.

A. Agency Receipt of FOIA/PA Requests and Appeals: The FOIA Office receives all FOIA and Privacy Act requests and subsequent appeals via email account (foiapa@sec.gov), fax or postal mail. FOIA and PA requests and appeals are received in the FOIA/PA Office 24 hours a day, including weekends. Some requests are dated days or months in advance of receipt, however, the statutory time frame for response does not begin until the request is received in the FOIA/PA Office.

B. Receipt of Requests by Other Offices: Should any other office receive a request for non-public records or information from a member of the public, which is outside the normal course of business (or authority to release information - such as access requests) for the receiving office or entity, the request should immediately be forwarded to the FOIA/PA Office for tracking and coordination of response. The FOIA/PA Office routinely coordinates requests for the release of sensitive information under the FOIA and PA, as well as to Congressional members, with the Offices of

the General Counsel, Public Affairs, and Legislative Affairs. All requests and responses are tracked in the e-FOIA tracking system (FOIAXpress) to ensure accuracy, completeness and consistency of responses from the Commission.

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

Revised August 27,2010

Page 6

lO-01234-FOIA

o The first 2 digits = fiscal year request received;

o The next 5 digits = chronological numbering of requests as received for the fiscal year:

o The suffix which denotes the 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

• CHAl - Kequest directed to Chairman's Office

• PAAvI - Privacy Act amendment

• FIFO - First- In, First-Out

D. Initial Review, Research and Referral of FOIA requests: Each FOIA request is assigned to a FOIA Research Specialist within the FOIA/PA Office whose role is to facilitate processing of the request within 20 working days. If a requester is granted "expedited treatment" the request will be responded to as soon as possible and as an agency priority. The

Research Specialist will review the content of the request and search appropriate Commission databases, including SEC websites, to determine the existence of responsive records, and how best to obtain those records for review and processing under the FOIA. Once the request has been reviewed, the Specialist may contact the requestor for further information or clarification, and/or may need to request additional time for processing. After initial review and research is completed, the FOIA Specialist may forward the request to one or more program officers) or division FOIA liaisonts) for review of the request and to search for and provide responsive records back to the FOIA Research Specialist. If the request has been granted expedited treatment, the liaison office will be notified to prioritize the processing.

The FOIA Office will provide a referral memo to the liaison office and attach a complete copy of the incoming request. The full request is provided to the liaisont s) to preclude any discrimination regarding the requester or stated motives for the request and any confusion on the interpretation of the content of the request.

Revised August 27,2010

Page 7

The liaison is directed to provide the FOIA Office a recommendation as to releasability in full or in part of the requested records; and if any records or portions thereof are to be denied, the FOIA exemption should be cited. In addition, the liaison is directed to respond to the request within a specified period of time in order to comply with the statutory response time, including expedited treatment as well as when additional time (over 20 days) has been secured.

E. Receipt of Liaison Response: Once the liaison response is received in the FOIA/PA Office, the response is scanned into the FOIAXpress tracking system and the Specialist will prepare a response to the request reflecting the recommendation of the liaison office and the availability of responsive records. All redacting of records will be done by FOIA Research Specialists using FOIA specific redaction tools in FOIAXpress.

F. Requests for Confidential Treatment under Rule 83 (I7 CFR 200.83):

Certain records submitted to the Commission, normally in conjunction with an Enforcement investigation, may also have a submission requesting confidential treatment (CT) in the event that a FOIA request is received for the submitted materials. In the event that records requested under FOIA are marked as "CT requested" and/or bates stamped indicating they are part of a CT submission, the FOIA Office will contact the submitter to request a substantiation of the request for CT. Once substantiation is received by the FOIA Office, the liaison may be asked to review and comment on the basis claimed for confidential treatment. The FOIA Office will notify the submitter of the determination to grant or deny CT for which 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 and PA responses may be provided for review prior to release to the program office or division, the Office of Public Affairs, the Office of the General Counsel, the Office of Legislative Affairs and the Office of the Chairman. Should a division or program office specifically want to review the final response before it is released, the FOIA Specialist should be notified by the liaison by stating the request in the recommendation memo (see paragraph 8.D,)

Revised August 27,2010

Page 8

SEC FOJAjPA Liaison Guidance

7. FOIA/P A Specialist Responsibilities.

A. Referral Memo to Liaison: The FOlA Research Specialist assigned to process the request will forward an e+mail containing a FOIA Referral Memo to the appropriate liaisonts) including a copy of the FOrA request. Any additional information in the case can be viewed in FOIAXpress. All FOIA liaisons have been placed in user groups in FOIAXpress; and each designated liaison has access to the cases assigned to the user group. All referrals are done via FOIA e+rnail accounts, which contain the names of the liaisons for the division or program office.

B. Reviewlng and Redacting Responsive Records: The FOlA Staff has the resoonsibility to do a document by document review of responsive records provided by agency components which are considered to be responsive to the request and to officially redact and prepare those documents for release. Liaison offices should not redact documents for release. The FOIA Staff will process the records for a final response, applying exemptions and preparing records for release. The FOIA Office will scan responsive documents into the FOIAXpress document management component and will electronically apply a redaction layer to the records. Electronically redacted records can be reviewed by others prior to release, including FOIA management and often the Office of the General Counsel.

C. Review of Final or Partial Responses: The FOIA Office is responsible for scanning all records associated with the request in the electronic case file in FOIAXpress. All full and partial responses to a request are located in the FOIAXpress case file, which liaisons can view at any time. Final or partial FOIA/PA responses may be provided for review prior to release to the program office or division, the Office of Public Affairs, the Office of the General Counsel, the Office of Legislative Affairs and the Office of the Chairman. l(b)12)

(bX2)

Revised August 27,2010

Page 9

SEC FOJAjPA Liaison Guidance

8. FOIA!PA Liaison Responsibilities.

A. Time frame for response: All FOIA Referral Memos require a response from the Liaison within the time frame specified in the Referral Memo. Regardless of when the request was received in the Commission, the liaison will generally be given 5 working days to provide a response to the FOIA Office. Depending on the nature of the request, more time may be allocated. If additional time is needed, the liaison should contact the FOIA Specialist as soon as possible to relay the need for additional time to the

I (b)(2) requestor. I

I

B. Review the request and search for records: Upon receipt of a FOlA referral memo, the liaison should read the request care full V to determine if there are records within the division or program office which may be responsive to the request;

[b)(2)

Revised August 27,2010

Page 10

SEC FOJAjPA Liaison Guidance

(b)(2)

Revised August 27,2010

Page 11

SEC FOJAjPA Liaison Guidance

(b)(2)

Revised August 27,2010

Page 12

SEC FOJAjPA Liaison Guidance

(b)(2)

E. Providing Releasable Records: The FOIA liaison, or persons designated by the liaison, should forward to the FOIA/P A Office a copy of the responsive records to be released in full; or

F. Providing Records to be Redacted.l(b)(2) (bH2)

I

_ _ ... l(bH2)

G. Transmit Response to the FOIA Office:

(bI12)

Revised August 27,2010

Page 13

SEC FOJAjPA Liaison Guidance

9. FOIA Reports and Recordkeeping,

A. FOlA Annual Report to DOJ. The FOJA requires that agencies produce a report of all FOJA activities on a fiscal year basis. The Commission's Annual FOJA Reports are posted on the FOJA page at www.sec.gov

The Annual FOJA Report is prepared during Oct thru Dec of each year. Liaisons may be contacted to provide or clarify information regarding the processing of referrals sent to their office during the fiscal year. The contact would primarily be to provide input in determining the cost of the FOJA processing to the Commission for the fiscal year.

B. Aging Reports. The FOJA/PA Officer routinely runs reports via FOJAXpre.ss to determine what requests remain open and aging and determine why certain requests remain unresolved. There are many reasons why a request remains open for a long period of time. including the complexity or volume of the request; the need to consult with other agencies; the confidential treatment substantiation process; and litigation.

(bX~)

C. FOWP A Request Recordkeeoinz, The FOJAXpress system contains the official electronic case file for all FOJA and PA requests. Liaisons are not required to do any official recordkeeping regarding FOJA requests. FOIA, Privacy Act and appeal files are considered temporary administrative records and are maintained government-wide in accordance with the National Archives General Records Schedule (GRS) Number 14. The FOJA Liaison may provide any information pertinent to the request to the FOJA Office for placement in the electronic case file. 'The FOrA Staff will scan or import any record provided by the liaison into the case file.

Revised August 27,2010

Page 14

SEC FOJAjPA Liaison Guidance

10. FOIAXpress Guidance for Liaisons.

FOIAXpress (FX) is an electronic document management system designed specifically for use in FOIA Offices across the government. The SEC

(bK2)

Revised August 27,2010

Page 15

- REVISION CHRONOLOGY -

June 30, 2010 Initial Version of Liaison Guidance. as released on July 1, 2010,'

August 27, 2010 Eevision released to update paragraphs 3.R.,· 7.R.,' and B.R. to further detine responsibilities for conducting document search and review.

Revised August 27,2010

Page 16

Office of Freedom ofInformation Act (FOrA) Services

Page 1 of 1

Insider Home > Divisions & Offices > Headquarters Offices > ForA

FOIA

Office of Freedom of Information Act (FOIA) Services

FOIA Public Liaisons

SEC Headquarters

Room 2736, Station Place II 100 F Street, NE Washington, DC 20549-2736

Celia Winter, FOIA Officer

Brenda Fuller, FOIA Branch Manager

Dave Henshall, FOIA Branch Manager

Ligia Glass, FOIA Branch Manager

John Livornese, FOIA Branch Manager

Office of FOIA Services

The Office is responsible for receiving and responding to requests for non-public records under the Freedom of Information Act (ForAr 5 USC 552) and the Privacy Act (5 USC 552a). Frequently requested non-public records include records compiled in investiqations, consumer complaints, and registration related exhibits. The Office will release non-public records unless they are protected by an exemption in the FOIA. In cases where the staff can reasonably segregate or delete exempt information from a requested record, they will honor the request for the rest of the record. For complete information on how to make a Freedom of Information Act request, please go to the FOIA section on the SEC's public Website.

The Office also responds to requests for public information which has not been published to the SEC Website under the ForA (5 USC 552(a)). These requests are routinely for older paper registration filings and other routine releases of the Commission which pre-date 1996. For complete information on requesting documents, please see How to Request Public Documents.

ror« Office phone: (202) 551-7900

ForA FAX: (202) 772-9336 & 9337

ForA Office e-mail: foiapa@sec.gov

j d ivisions_officesjhqojfoiajfoia_index. htm I

file:IIC:\Documents and Settings\sifordm\My Documents\Office of Freedom ofInformati... 11/22/2010

\ :MEMORANDUM

. March 17,2010

To: David M. Becker General Counsel

From: Mark D. Cahn

Deputy General Counsel

Richard M. Humes ,iM Associate General Co1\tSel

Re: OIG Audit Report No. 465 - Recommendation regarding separation of roles between initial Freedom ofInformation Act requests and subsequent appeals

In an audit report entitled "Review ofthe SEC's Compliance with the Freedom of Information Act" (Report No. 465, issued Sept. 25, 2009), the Office ofthe Inspector General (OIG) recommended that "[t]he Office ofGenera1 Counsel shall provide and enforce a clear policy of the separation of roles and responsibilities and stipulate that Office of General Counsel lawyers who provide advice and counsel regarding any initial Freedom ofInfonnation Act request shall not participate in the appeal process." In response to that recommendation, the Office of the General Counsel (OGC) is adopting the following policies and procedures.

Unless the General Counsel determines that the interests of the Commission require otherwise, a decision on an FOIA appeal may be made only by a senior officer who did not participate substantively in processing the initial FOrA request.' Participation in the initial FOrA request that will generally preclude a senior officer from deciding an appeal include:

• advising the FOIA Office with respect to a particular FOIA request in any material way including advising how the FOIA Office should respond to a particular FOIA request or providing any other advice concerning the particular ForA request;

• preparing or substantively reviewing the determination letter on behalf of the FOIA Office.

As used in this memorandum, senior officer refers to the General Counsel, Deputy General Counsel, Associate General Counsel for Litigation and Administrative Practice, and the Solicitor.

General legal or policy advice by an OGC senior officer to the FOIA staff that is not directed to a particular FOIA request shall not be a basis for precluding a senior officer from deciding an appeal. A senior officer who is precluded from deciding the appeal may provide advice to the senior officer deciding the appeal.

The OGC will maintain a log of all FOIA requests that meet the criteria described in the prior paragraph? Senior officers will be responsible for informing the person(s) given responsibility fur the log of FOIA requests that should be included or for putting the items on the log themselves. Because FOIA appeals are generally decided by the Associate General Counsel for Litigation and Administrative Practice (AGC), upon receipt of a FOIA appeal, the responsible staff in the DOC will consult the log to determine if the AGC participated in the initial decision. If so, or ifthe AGC will not be the decision maker on the appeal for any other reason, staffwill determine if any other senior officer also participated in the initial decision and advise the AGC of the relevant facts. The AGC will then advise the General Counsel who will determine which senior officer should decide the appeal.

2 If OGC staff other than a senior officer participates in the initial decision, the

request need not be included on the log.

From the Chairman: Freedom of Information Act Program at the SEC

Insider Home > What's Happening > At the SEC > November 2009

November 2009

From the Chairman: Freedom of Information Act Program at the SEC

Dear Colleagues:

Providing access to information that investors need to make informed investment decisions is one of the SEC's strategic goals. Each year, we receive approximately 10,000 requests under the Freedom of Information Act (FOIA) relating to almost every aspect of the Commission's work.

I am committed to improving our FOIA program so that we respond to requests in a timely manner, treat all requesters equally, and provide as much information as possible without adversely affecting our mission. Success in this area will enhance efforts in achieving our other strategic goals of fostering and enforcing compliance with the Federal securities laws and establishing an effective regulatory environment.

As an SEC employee, you may be called upon to locate or review documents that are responsive to a FOIA request. It is your responsibility to do so in a timely manner so that a prompt response can be provided to the requester. The public's interest about our work is at an all-time high, and this presents an opportunity to illustrate the dedication and effort that you put forth every day on behalf of the investor community and American public.

Earlier this year, the President and Attorney General issued memoranda regarding the importance of the FOIA. They are attached, and I encourage you to take a few minutes and review them.

I have asked Barry Walters, our new Chief FOIA Officer, to keep me posted on our efforts to improve the Commission's FOIA program. Please ensure that you do your part to assist in this effort. As always, thank you for the work you do everyday to protect investors.

Mary

from the President: Memorandum for the Heads of Executive Departments and Agencies on the Freedom of Information Act

~ From the Attorney General: Memorandum for the Heads of ~ Executive Departments and Agencies on the ~reedom of Information Act

jvV[;<its ... happen!ngiat ..... the .... sec/ november .... 2009/c~lili rrna (l-fnia-112 32009. Urn I

http://insider/whats _ happening/at_ the _ sec/november _ 20091 chairman- foia-11232009 .html

Page 1 of 1

10/12/2010