SEC FO/A/PA Liaison Guidance

FREEDOM OF INFORMATION
AND PRIVACY ACT
PROCESSING GUIDANCE FOR
LIAISONS

Revised August 27, 2010 Page 1

 SEC FOIA/PA Liaison Guidance

FOIA AND PRIVACY ACT

PROCESSING GUIDANCE FOR LIAISONS

Table of Contents

1. Overview of Office of Freedom of Information and Privacy Act

Operations (FOlA/PA Office)

2. FOlA/PA Statutes and Regulations

3. The FOIA Liaison Role

4. FOlA/PA Reference Materials

5. FOlA/PA Training

6. Overview of FOlA/PA Request Process

7. FOlA/PA Specialist Responsibilities

8. FOWPA Liaison Responsibilities

9. FOIA Reports and Recordkeeping

10. FOIAXpress Guidance for Liaisons

- REVISION CHRONOLOGY-

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FOIA AND PRIVACY ACT

PROCESSING GUIDANCE FOR LIAISONS

The purpose of this memorandwn is to provide guidence to persons designated as

FOIA Liaisons for conducting records searches and responding to the FO!A/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 (FOIAIP A 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 FOrA/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 Liaisonrs) 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. FOIAIPA Statutes and Regulations.

The Freedom of Information Act (FOrA), 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 FOrA/PA page on the INSIDER.

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3. The FOIA Liaison Role.

A. FOJA Responsibility Commission-wide: The Chairman, in her November

2009 message to all employees, stated:

"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 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. !!

See the full message at:

http';/Jj]sider.sec.gor-/,vhats hapPt'ning/clt the sec/no vember 200!J/chairm
an-f()J~1-11232009.h[ml

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

one or more FOrA liaisonrs) as contact points for the FOrA/PA Office and
to receive and coordinate responses to FOIA 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 FOrA Liaison. It
is recommended that each primary liaison have at least one alternate
liaison. A FOrA 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 FOrA/PA
Office responding to the referral in a timely and accurate manner. FOrA
liaisons should have knowledge of the law (FOrA and Privacy Act) which is
commensurate with the volume and complexity of referrals to the program
office.

C. Liaison Listing and e-mail accounts: A listing of FOIA liaisons is

maintained by the FOIA/PA Officer and posted on the INSIDER web page.
The FOIA/PA Officer also maintains e-mail groups for liaisons, listed in
MS Outlook by searching "#FOIA". The Office of the General Counsel and
the Division of Corporation Finance maintain their own FOIA mailboxes.

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D. Liaison Use of FOIAXpress: All liaisons are placed in a user group for
their division or program office in FOIAXpress. and in an e-mail account
for the user group. Referrals are forwarded to FOIA liaisons via the e-
mail account which is embedded in FOIAXpress. See paragraph 10 for
information on FOIAXpress.

E. Changes or Additions to FOIA Liaison Designation: Any changes or

additions to the FOIA liaisonrs) for an office should be promptly e mailed
r

to the FOIA Officer at foiapa@sec.gov. All changes to the liaison list, the
FOIAXpress user group and the #FOIA Outlook e-mail accounts are
managed by the FOIA/PA Officer. New users may request access to
FOIAXpress via the ITSM Self-Service Module under SEC Technology on
the OIT INSIDER page @ http://wapps.sec.gov/oitintranet.

F. Payroll Activity Code: Liaisons should keep track of daily time spent on
FOIA processing duties by using activity code 4.3.1 in Quicktime to record
their FOIA workload.

4. FOIA!PA Reference Materials.

The FOIA/PA 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 C5 USC 552);
• The Privacy Act (5 USC 552a);
• SEC Privacy Act System of Records Notices (SORN's);
• SEC Confidential Treatment Rule 83 07 CFR 200.83);
• SEC Annual FOIA Reports;
• Department of Justice Guide to the FOIA;
• Department of Justice FOrA Post (includes on-going litigation updates.
Attorney General Announcements and information for the FOrA
community);
• Department of Justice listings of all agency FOrA/PA Officers; and
• FOrA/PA Training availability

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5. FOlA/PA Training.

Liaisons may obtain training on the FOrA and Privacy Acts through the following
sources via links on the FOrNPA rNSIDER page:

• SEC University sponsors FOrNPA training annually;

• Department of Justice (DO]);
• ASAP (American Society of Access Professionals)
• Graduate School (formerly USDA Graduate School),

6. Overview of FOIA!PA Request Process.

A. Agency Receipt of FOWPA Requests and Appeals: The FOrA Office

receives all FOrA and Privacy Act requests and subsequent appeals via e-
mail account (foiapa@sec.gov), fax or postal mail. FOrA and PA requests and
appeals are received in the FOrA/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 FOrA/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 FOrNPA Office
for tracking and coordination of response. The FOrA/PA Office routinely
coordinates requests for the release of sensitive information under the
FOrA 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- FOrA tracking system (FOrAXpress) to
ensure accuracy, completeness and consistency of responses from the
Commission.

C. Tracking of FOIA and PA Requests: Once received in the FOrA/PA Office,

all FOrA requests, PA requests and appeals are date-stamped, scanned
into the FOrAXpress (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 FOrA
request number is in the following format as shown in the example:

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lO-01234-FOJA

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
• CHAI - Request directed to Chairman's Office
• PAAM - 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
liaisonrs) 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 liaisonts) 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.

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The liaison is directed to provide the FOrA 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 FOrA 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

FOrA/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 ForA Research
Specialists using FOIA specific redaction tools in FOIAXpress.

F. Requests for Confidential Treatment under Rule 83 (17 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
FOrA 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.)

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7. FOIA!PA Specialist Responsibilities.

A. Referral Memo to Liaison: The FOrA Research Specialist assigned to

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

B. Reviewing and Redacting Responsive Records: The FOJA Staff has the
responsibility 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
FOrA Staff will process the records for a final response, applying
exemptions and preparing records for release. The FOrA Office will scan
responsive documents into the FOrAXpress 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 FOrA management and often the Office of the General
Counsel.

C. Review of Final or Partial Responses: The FOrA Office is responsible for

scanning all records associated with the request in the electronic case file
in FOrAXpress. All full and partial responses to a request are located in
the FOlAXpress case file, which liaisons can view at any time. Final or
partial FOrA/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 FOrA Specialist should be
notified by the liaison by stating the request in the recommendation memo
(see paragraph 8.0.7). The FOlA Officer will forward all responses to
requests from the media to the Office of Public Affairs for clearance prior
to release.

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8. FOWPA Liaison Responsibilities.

A. Time frame for response: All FOrA 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
FOrA Office. Depending on the nature of the request, more time may be
allocated. If additional time is needed, the liaison should contact the FOrA
Specialist as soon as possible to relay the need for additional time to the
requestor. Should the liaison not respond within the time frame provided,
the FOrA Specialist will follow-up with an additional referral memo -
which is tracked in FOrAXpress. Non-response to a FOrA Referral Memo
will result in contact by a FOrA Manager and may result in an Aging or
Delinquency Report to the division or program office head.

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

1. Records located:
a. If responsive records are located. obtain the records for review by
the FOrA Office, and draft a recommendation on full or partial
release of material, to include applicable FOrA exemptions for any
withhold recommendations; or
b. Review each document, unless, in the opinion of the FOJA Liaison
and document subject matter experts, an entire group of responsive
documents (i.e., compliance inspections, open investigations) wil! be
withheld pursuant to a FOIA exemption. Provide a recommendation
to the FOJA Office as stated in paragraph 8D.3.b.

2. Records not located: If no responsive records are located within the

liaison's program office, notify the FOrA Specialist that no records
could be located, and/or what program entity may be able to provide
responsive records, if known. (see paragraph 8.0)

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C. Clarification of request: If the liaison needs clarification of the request. or

feels it is too broad and needs more information or a narrowing of the
scope of the request in order to proceed, the liaison should contact the
FOIA Specialist as soon as possible in order to continue processing of the
request within the response time frame. The options to obtain
clarification of the request are as follows:

1. The liaison may contact the requestor. If this is done, the liaison
and/or program office entities involved in the contact must provide the
FOIA specialist with a summary of the contact with the requestor,
including the date and time of the contact and any changes to the
substance of the request;

2. The liaison may relay questions/concerns to the FOIA Specialist who

will contact requestor; or

3. The liaison may ask the FOIA specialist to arrange a conference call or
meeting w/requestor to clarify request.

D. Recommendation Memo: A recommendation memo serves as an affidavit

that the FOIA Office requested records of the agency component and that
the component responded. Liaison responses may be used in defending
appeals and litigation in terms of content of response and in terms of
adequacy of search and may be used to populate declarations of fact for
the court. Therefore, all jjaison responses must be accurate and reflect
the items indicated in items ]- 6 below:

1. Description of Records: Description of requested records, or portion

thereof, for which the program office has been asked to provide
responsive records;

2. Description of Search: Description and method used to conduct search

for responsive records, to include the volume of records searched if
appropriate, the system searched, i.e., CATS, NRSI, ACTS, IRIS, other
database, paper, or other form of search tool;

3. For records located:

a) Provide the results of search for responsive records - describe

the responsive records located including the volume;

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b) If the records will not be released to the FOrA/FA Office. provide

a statement that records were located but will not be provided to
the FOrA/FA Office and stating the volume of records (both
paper and electronic) and the reasonts) and exemptions cited for
not providing the records to FOrA; or

c) A finding that responsive records exist in the program office. but

may be duplicative and should be obtained from the official file
which is located in another program office or division & identify
that office;
4. An alternate finding such as:

a) There are no responsive records located in the program office;

b) The records are lost or destroyed;

c) The records do not belong to the Commission (i.e., they

originated with another Federal, State or local government
agency);

d) The records are publicly available Cstate where);

e) The records are sealed or otherwise restricted by court order;

f) The Commission will neither confirm nor deny the existence of

the requested records; or

g) Any other finding.

5. Staffing resources used: The namets) of all persons involved in the

records search, SK rating of the individualts) and estimate of the time
each person spent searching for records. This information will be used
in the Annual FOrA Report and contribute to calculations on the cost of
FOrA processing for the fiscal year.

6. Sign and date: The response should be signed or initialed and dated by
the FOrA liaison;

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7. Review of final or partial response: Final or partial FOrA/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 FOrA Specialist should be notified
by the liaison in the recommendation memo

E. Providing Releasable Records: The FOrA liaison, or persons designated by

the liaison, should forward to the FOIA/PA Office a copy of the responsive
records to be released in full; or

F. Providing Records to be Redacted. A copy of the responsive records

marked to show portions to be deleted under a FOIA exemption.
Liaison offices should not redact documents. Rather, the liaison may
indicate the records or portions thereof which are recommended for
exemption from release by annotating a copy of the records via ])
bracketing lines or paragraphs with a pale pencil, or 2) by providing a line
by line or page by page description of exempted materials. The FOIA
Staff has the responsibility to redact documents provided by the program
office liaisont s) for public release. The FOIA Staff will process the
records for a final response, applying exemptions and preparing records
for release. The FOIA Specialist will scan responsive documents into the
FOrAXpress 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 FOrA management
and often the Office of the General Counsel.

G. Transmit Response to the FOIA Office: Liaison responses

(recommendation memos and records) should be e-rnailed to
foiapa@sec.gov with a copy of the e-mail to the FOrA Research Specialist
who sent the referral. If necessary, the responsive records may be hand
carried to Room 2736, or the specialist can be contacted for pick-up.
Responsive records should not be placed in inter-office mail.

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9. FOIA Reports and Recordkeeping.

A. ForA Annual Report to DOJ. The FOrA requires that agencies produce a
report of all FOIA activities on a fiscal year basis. The Commission's
Annual FOIA Reports are posted on the FOIA page at www.sec.goY
The Annual FOIA 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
FOrA processing to the Commission for the fiscal year.

B. Aging Reports. The FOrA/PA Officer routinely runs reports via

FOIAXpress 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.
The lack of response from a liaison office is another common reason why
requests remain open. When a liaison office does not reply to a FOrA
referral after 30 days, this information may be relayed via an "Aging
Report" to the program office or division director or office head in order
to resolve any issues relating to the non-response. The FOIA liaison will
be notified prior to escalating the issue.

C. FOINPA Request Recordkeeping. The FOIAXpress system contains the

official electronic case file for all FOIA and PA requests. Liaisons are not
required to do any official recordkeeping regarding FOrA 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 FOIA
Liaison may provide any information pertinent to the request to the FOIA
Office for placement in the electronic case file. The FOIA Staff will scan
or import any record provided by the liaison into the case file.

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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
FOIA Office purchased and configured this COTS (commercial off-the-
shelf) product for use by the Commission in 2004. The system is a tool
whereby the FOrA staff can track, coordinate, and respond to FOIA/PA
requests. All requests received in the FOIA Office are scanned into the
FX system and an electronic case file is created. All further documents
are scanned in and managed electronically. The system tracks and
monitors progress on the complete casework associated with a request.
The system does not track the work that goes on in a liaison office.

All FOIA liaisons have read-only access to FOIAXpress. The FOIA staff
does all data entry and scanning in the FX System. Existing users may
access the system via the INSIDER under SEC IT Systems by clicking on
e-FOIA. New users may request access to FOIAXpress via the ITSM Self-
Service Module under SEC Technology on the OIT INSIDER page @
hrtf)://\vapps. sec. go'l/ 0 i tin tranet.

The FOIA/PA webpage on the INSIDER contains detailed information on

the use of FOIAXpress (FX) for liaisons.

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- REVISION CHRONOLOGY-

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

2010;

August 27: 2010 Revision released to update paragraphs 3.E.; 7E.; and 8.E. to
further define responsibilities for conducting document search
and review',

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