FISCAL YEAR 2006 REPORT OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ON ITS ADMINISTRATION OF THE FREEDOM OF INFORMATION ACT (FOIA), 5 U.S.C. section 552 AND THE PRIVACY ACT (PA), 5 U.S.C. section 552(a)

The U.S. Equal Employment Opportunity Commission

I. Basic Information Regarding Report

1. Name, title, address and telephone number of person to be contacted with questions about the report

   Stephanie D. Garner
   Assistant Legal Counsel/FOIA Public Liaison
   EEOC
   Office of Legal Counsel
   1801 L Street, NW, 6th floor
   Washington, DC 20507
   (202) 663-4640
   (202) 663-7026 (TTY)
   (202) 663-4639 (fax)
   FOIA@eeoc.gov (e-mail)

2. Electronic address for report on the World Wide Web

   http://www.eeoc.gov/foia/index.html

3. How to obtain a copy of the report in paper form

   A paper copy of the report may be requested by submitting a written request to:

   Stephanie D. Garner
   Assistant Legal Counsel/FOIA Public Liaison
   EEOC
   Office of Legal Counsel
   1801 L Street, NW, 6th floor
   Washington, DC 20507
   (202) 663-4640
   (202) 663-7026 (TTY)
   (202) 663-4639 (fax)
   FOIA@eeoc.gov (e-mail)

II. How To Make A FOIA Request

FOIA requests should be made in accordance with the Commission's regulations at 29 C.F.R. 1610.7.   The regulations can be accessed on the World Wide Web at:  http://www.eeoc.gov/foia/1610.html

1. Names, address, and telephone numbers of all individual agency components and offices that receive FOIA requests

   See 29 C.F.R. 1610.4 and the agency's FOIA web page at https://www.eeoc.gov/foia/contact-us for the EEOC FOIA contacts.

2. Brief description of the agency's response time ranges

   The average response time ranges were 10-25 working days.

3. Brief description of why some requests are not granted

   The majority of fiscal year 2006 Freedom of Information Act (FOIA) requests received by the Commission were for materials contained in the Commission's investigative case files that involved charges of discrimination filed pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, the Age Discrimination in Employment Act, 29 U.S.C. 621-633, the Equal Pay Act, 29 U.S.C. 206(d), and the Americans with Disabilities Act, 42 U.S.C. 12101-213.  Sections 706(b) and 709(e) of Title VII, 42 U.S.C. 2000e-5(b) and 8(e), and section 107 of the ADA, 42 U.S.C. 12117 prohibit Commission employees from making Title VII or ADA charges, conciliation materials, required reports and case file information public.  In certain instances, parties to the charge are entitled to access to the disclosable portions of the charge file.  Examples of non-disclosable material in charge files are discussed in detail in section XII of this report.

III. Definitions Used in the Report

1. FOIA/PA request -- Freedom of Information Act/Privacy Act request. A FOIA request is generally a request for access to records concerning a third party, an organization, or a particular topic of interest. A Privacy Act request is a request for records concerning oneself; such requests are also treated as FOIA requests.
2. Initial Request -- a request to a federal agency for access to records under the Freedom of Information Act.
3. Appeal -- a request to a federal agency asking that it review at a higher administrative level a full denial or partial denial of access to records under the Freedom of Information Act, or any other FOIA determination such as a matter pertaining to fees.
4. Processed Request or Appeal -- a request or appeal for which an agency has taken a final action on the request or the appeal in all respects.
5. Multi-track processing -- a system in which simple requests requiring relatively minimal review are placed in one processing track and more voluminous and complex requests are placed in one or more other tracks. Requests in each track are processed on a first-in/first out basis. A requester who has an urgent need for records may request expedited processing (see below).
6. Expedited processing -- an agency will process a FOIA request on an expedited basis when a requester has shown an exceptional need or urgency for the records which warrants prioritization of his or her request over other requests that were made earlier.
7. Simple request -- a FOIA request that an agency using multi-track processing places in its fastest (non-expedited) track based on the volume and/or simplicity of records requested.
8. Complex request -- a FOIA request that an agency using multi-track processing places in a slower track based on the volume and/or complexity of records requested.
9. Grant -- an agency decision to disclose all records in full in response to a FOIA request.
10. Partial grant -- an agency decision to disclose a record in part in response to a FOIA request, deleting information determined to be exempt under one or more of the FOIA's exemptions; or a decision to disclose some records in their entireties, but to withhold others in whole or in part.
11. Denial -- an agency decision not to release any part of a record or records in response to a FOIA request because all the information in the requested records is determined by the agency to be exempt under one or more of the FOIA's exemptions, or for some procedural reason (such as because no record is located in response to a FOIA request).
12. Time limits -- the time period in the Freedom of Information Act for an agency to respond to a FOIA request (ordinarily 20 working days from proper receipt of a "perfected" FOIA request).
13. "Perfected" request -- a FOIA request for records which adequately describes the records sought, which has been received by the FOIA office of the agency or agency component in possession of the records, and for which there is no remaining question about the payment of applicable fees.
14. Exemption 3 statute -- a separate federal statute prohibiting the disclosure of a certain type of information and authorizing its withholding under FOIA subsection (b)(3).
15. Median number -- the middle, not average, number. For example, of 3, 7, and 14, the median number is 7.
16. Average number -- the number obtained by dividing the sum of a group of numbers by the quantity of numbers in the group. For example, of 3, 7, and 14, the average number is

IV. Exemption 3 Statutes

The exemption 3 statutes relied on were sections 706(b) and 709(e) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-5(b) and 8(e) and section 107 of the ADA, 42 U.S.C. 12117. These sections prohibit Commission employees from making Title VII or ADA charges, conciliation materials, required reports and case file information public.

The Commission's use of the third exemption has been upheld by the courts. The landmark case supporting the Commission's position is EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981). There was no litigation involving the Commission's use of this exemption in FY 2006.

V. Initial FOIA/PA Access Requests

1. Number of initial requests (total of the numbers in lines one and two, minus the number in line three, should equal the number in four)
   1. Number of requests pending as of end of preceding fiscal year 1,840 ¹
   2. Number of requests received during current fiscal year 16,875
   3. Number of requests processed during current fiscal year 16,936
   4. Number of requests pending as of end of current fiscal year 1,779 (This line has also been entered on line VII.B.1.)
2. Disposition of initial requests
   1. Number of total grants 973
   2. Number of partial grants 10,787
   3. Number of denials 1,758
   4. Number of times each exemption was used (counting each exemption once per request)
      1. Exemption 1  0
      2. Exemption 2  132
      3. Exemption 3  1,576
      4. Exemption 4  11
      5. Exemption 5  10,574
      6. Exemption 6  454
      7. Exemption 7(A)  749
      8. Exemption 7(B)  1
      9. Exemption 7(C)  1,941
      10. Exemption 7(D)  107
      11. Exemption 7(E)  0
      12. Exemption 7(F) 0
      13. Exemption 8  0
      14. Exemption 9  0
   5. Other reasons for nondisclosure (total) 3,418
      1. no records 1,284
      2. referrals 335
      3. request withdrawn 199
      4. fee-related reason 95
      5. records not reasonably described 17
      6. not a proper FOIA request for some other reason 159
      7. not an agency record 43
      8. duplicate request 113
      9. Others 1,173
         1. records destroyed 184
         2. request converted to section 83² 374
         3. records lost 615

VI. Appeals

1. Number of appeals
   1. Number of appeals received during current fiscal year 321
   2. Number of appeals processed during current fiscal year 321
2. Disposition of appeals
   1. Number Completely Upheld 98
   2. Number Partially Reversed 125
   3. Number Completely Reversed 17
   4. Number of times each exemption was used (counting each exemption once per request)
      1. Exemption 1 0
      2. Exemption 2 0
      3. Exemption 3 50
      4. Exemption 4 0
      5. Exemption 5 164
      6. Exemption 6 6
      7. Exemption 7(A) 40
      8. Exemption 7(B) 0
      9. Exemption 7(C) 73
      10. Exemption 7(D) 5
      11. Exemption 7(E) 0
      12. Exemption 7(F) 0
      13. Exemption 8 0
      14. Exemption 9 0
   5. Other reasons for nondisclosure (total) 81
      1. no records 2
      2. referrals 0
      3. request withdrawn 9
      4. fee-related reason 52
      5. records not reasonably described 0
      6. not a proper FOIA request for some other reason 6
      7. not an agency record 0
      8. duplicate request 0
      9. other 12 (remanded)

VII. Compliance With Time Limits/Status of Pending Requests

1. Median
   1. Ordinary requests
      1. number of requests processed 16,508
      2. median number of days to process 19
   2. Complex requests
      1. number of requests processed 0
      2. median number of days to process 0
   3. Requests accorded expedited processing
      1. number of requests processed 428
      2. median number of days to process 4
2. Status of pending requests
   1. Number of requests pending as of end of current fiscal year 1,779 (Enter this number from line V.A.4)
   2. Median number of days that such requests were pending as of that date 10

VIII. Comparison With Previous Year (Optional)

1. Comparison of number of requests received 16,875 in FY06 vs. 16,282 in FY 05, a 3.5% increase
2. Comparison of numbers of requests processed 16,936 in FY 06 vs. 16,232 in FY 05, a 4.2% increase
3. Comparison of median number of days requests were pending as of end of fiscal year 10 in FY 06 vs. 10 in FY 05, no change
4. Other statistics significant to agency 748 requests for expedited processing received and 428 requests for expedited processing granted
5. Other

IX. Costs/FOIA Staffing

1. Staffing levels.
   1. Number of full-time FOIA personnel 4
   2. Number of personnel with part-time or occasional FOIA duties (in total work-years) 41.65
   3. Total number of personnel (in work-years) 45.65
2. Total costs (including staff and all resources).
   1. FOIA processing (including appeals) $2,499,564.00
   2. Litigation-related activities (estimated) $25,973.00
   3. Total costs $2,525,537.00
   4. Comparison with previous year (optional) $1,992,901.00 (+27%)

X. Fees

1. Total amount of fees collected by agency for processing requests $23,949.00
2. Percentage of total costs 0.94%

XI. FOIA /PA Regulations

XII. Report on FOIA Executive Order Implementation

The Commission amended its Agency Improvement Plan on October 23, 2006 to include information on the Backlog Reduction, including the goal, steps to be taken, time milestones, means of measurement and time period for improvements.

The exemptions authorize federal agencies to withhold information covering: (1) classified national defense and foreign relations information, (2) internal agency rules and practices, (3) information that is prohibited from disclosure by another federal law, (4) trade secrets and other confidential business information, (5) inter-agency or intra-agency communications that are protected by legal privileges, (6) information whose disclosure would invade someone's personal privacy, (7) information compiled for law enforcement purposes, (8) information relating to the supervision of financial institutions, and (9) certain geological information. The three exclusions, which are not used by the Commission, pertain to especially sensitive law enforcement and national security matters. Even if information may be withheld under the FOIA, the EEOC still may disclose it as a matter of administrative discretion if disclosure is not prohibited by any law and would not cause any foreseeable harm. A summary of the exemptions follows:

EXEMPTION 1 - Exemption 1 allows for the withholding of national security information concerning the national defense or foreign policy that has been properly classified in accordance with the substantive and procedural requirements of the current national security classification executive order, Executive Order 12958, signed by President Bush on March 25, 2003. EEOC does not use this exemption.

EXEMPTION 2 - Exemption 2 exempts records from mandatory disclosure that are "related solely to the internal personnel rules and practices of an agency." Examples of information routinely withheld under Exemption 2 are rules relating to parking facilities, regulation of lunch hours, performance standards, sick leave policy, and similar types of information. Use of this exemption has increased with recent concerns regarding homeland security. EEOC very rarely uses this exemption.

EXEMPTION 3 - Exemption 3(a) allows for the withholding of information prohibited from disclosure by another statute. EEOC routinely uses this exemption to deny access to Title VII and ADA charge files when the requester is not a party to the charge and to withhold EEO survey reports. Sections 706(b) and 709(e) of Title VII and Section 107 of the ADA specifically prohibit disclosure of Title VII and ADA charge files and EEO survey reports to third parties prior to the institution of a proceeding under Title VII or the ADA involving such charge, record or information. Commission employees who do so are subject to fine and/or imprisonment. Exemption 3(b) prohibits agencies from releasing any proposal submitted by a contractor in response to a competitive contract. Information withheld pursuant to the Exemption 3 includes, but is not limited to:

1. Description of supplementation/modification of Agency Improvement Plan
2. Report on agency implementation of its plan, including its performance in meeting milestones, with respect to each improvement area

   The Commission's Fiscal Year 2005 Agency Improvement Plan (Plan) contained six areas selected for review and six areas identified for improvement. Information concerning established time milestones only refers to static time milestones. Several of the time milestones require continual review and revision.

   1. Affirmative Disclosure under Subsection (a)(2)(D) of the FOIA. The Plan established four time milestones. The agency met the three milestones established for fiscal year 2006, and the fourth occurs in calendar year 2007. The Commission published two categories of frequently requested records on our public website and conducted an initial review of FOIA records to ascertain if they are suitable for frequently requested records disclosure.
   2. Proactive Disclosure of Information. The Plan established three time milestones and met all three. The FOIA Public Liaison met with other agency personnel to encourage the use of Section 83 to provide expeditious processing of requests for charge files.
   3. Overall FOIA Website Improvement. The Plan established two time milestones, and the agency met both. The Commission published two FAQ documents on our public website. One document provides basic information regarding the FOIA in general as well as FOIA administration at the EEOC. The second document provides information regarding requests for access to EEOC charge files.
   4. Improvement of FOIA Reference Guide. The Plan established 2 time milestones, and the agency met both. The FOIA Reference Guide was revised and published on our public website. The updated Guide contains in-depth discussion of how the FOIA's exemptions are applied to requests received by the EEOC. We believe the updated Guide is more user-friendly.
   5. E-FOIA Automated Processing. The Plan established three time milestones; the agency met the two milestones established for fiscal year 2006 and the third occurs in calendar year 2007. A memorandum was issued to EEOC Regional Attorneys regarding electronic submissions of requests, and the EEOC FOIA Public Liaison had meetings and discussions with several Departments and Independent Agencies regarding their FOIA workload management.
   6. Backlog Reduction. The Plan established two time milestones, and the agency met both. Five EEOC District Offices reported a backlog of FOIA requests. Reduction goals have been identified and communicated to each office. The EEOC Headquarters Office of FOIA Programs is assisting two EEOC field offices with reducing their backlog in an effort to exceed the established reduction goals.
3. Identification and discussion of any deficiency in meeting plan milestones.

   The Commission met all time milestones established in the Agency Improvement Plan.

4. Additional narrative statement regarding other executive order-related activities (optional)

   The EEOC has established one FOIA Requester Service Center as required by Section 2 of the Executive Order, allowing for contact via telephone, e-mail, fax, postal mail and tty. The Center is staffed by five EEOC employees, including one FOIA Public Liaison.

5. Concise descriptions of FOIA exemptions

   The FOIA provides the public access to all federal agency records (or portions of those records), except for those records that are withheld under nine exemptions and three exclusions.

• Any Title VII or ADA charge file information requested by anyone other than the Charging Party or the Respondent to the charge, such as the charge file or information concerning the existence of charge files.
• Title VII or ADA information requested by the Charging Party or the Respondent after the time limitation for filing a lawsuit has expired and no lawsuit has been filed.
• References to other Title VII or ADA charges in the charge file.
• Information submitted by unsuccessful bidders for contracts with the EEOC.

EXEMPTION 4 - Exemption 4 protects from disclosure information that would reveal "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential." EEOC uses this exemption on occasion. When the EEOC receives a FOIA request for trade secrets or confidential commercial or financial information, it is required by Executive Order 12,600 and its regulations to notify the submitter of the information of the FOIA request and permit the submitter an opportunity to object to disclosure of the record. The requester is advised of the submitter notification.

EXEMPTION 5 - Exemption 5 protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency" from disclosure to the public. EEOC routinely uses this exemption to deny access to internal documents that reflect the internal predecisional deliberations, recommendations, analyses, assessments, and opinions of Commission employees. We also use this exemption to deny access to attorney work product information. Information withheld pursuant to the Exemption 5 includes, but is not limited to:

• Investigative Memoranda
• Recommendations, opinions, analysis, and conclusions that are deliberative in nature
• Predecisional deliberative memorandums analyzing the merits of the case
• Codes signifying the EEOC's predecisional assessment of the merit of a case
• Documents that meet the requirements of attorney-client privilege or attorney work product

EXEMPTION 6 - Exemption 6 protects personal privacy interests in records contained in personnel, medical, and similar files when disclosure of such records would constitute a clearly unwarranted invasion of personal privacy. EEOC routinely uses this exemption to deny access to information such as home addresses, third party names, phone and social security numbers and medical information contained in personnel files. Information withheld pursuant to the Exemption 6 includes, but is not limited to:

• Personnel documents of EEOC employees such as performance appraisals, home addresses and phone numbers, social security numbers, health insurance coverage, and non job-related affiliations
• Personnel documents of third parties in agency charge files which would result in an invasion of personal privacy.

EXEMPTION 7 - Exemption 7 has six sub-parts and is a special exemption that only applies to law enforcement agencies. EEOC is a law enforcement agency. We routinely use certain sub-parts of this exemption. Exemption 7 allows for the withholding of "records or information compiled for law enforcement purposes," with the limitations discussed below:

EXEMPTION 8 - Exemption 8 protects from disclosure matters that are "contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions." EEOC does not use this exemption.

EXEMPTION 9 - Exemption 9 allows for the withholding of "geological and geophysical information and data, including maps, concerning wells." EEOC does not use this exemption.

EXCLUSIONS - The FOIA also contains three specific exclusions regarding criminal records and certain law enforcement records held by the Federal Bureau of Investigations. The EEOC does not maintain or possess any records specifically excluded from coverage.

• Additional statistics
  1. Time range of requests pending, by date of request (or, where applicable, by date of referral from another agency)

     October 13, 2005 to January 23, 2007

  2. Time range of consultations pending with other agencies, by date of initial interagency communication

     The EEOC does not have any pending consultations.

• Attachment: Agency Improvement Plan (in current form)

  The EEOC Report and Plan on Improving Agency Disclosure of Information is attached and can also be accessed on the World Wide Web at: https://www.eeoc.gov/report-and-plan-us-equal-employment-opportunity-commission-required-executive-order-13392-improving

Footnotes

¹This figure is 67 less than reported on the FY 2005 report. Hurricane Katrina caused a disruption of service to our New Orleans Office. As a result of the disruption, information reported for the New Orleans office on the FY 2005 report was incomplete and requests reported as pending had actually been completed.

²Section 83 of the EEOC Compliance Manual provides for access to relevant case files by charging parties, aggrieved persons on whose behalf a charge has been filed, and entities against whom charges have been filed. 29 C.F.R. §1610.17(d). FOIA requests processed by EEOC field offices are subject to review by the Regional Attorneys. FOIA requests that are converted to Section 83 can usually be processed more expeditiously, and some FOIA requesters are amenable to converting their requests to Section 83 for this reason.

This page was last modified on February 8, 2006.