What does the FOIA provide?
The Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552 is the law that gives any member of the public access to certain non-exempt records and other information that relates to the functions, decisions, and operations of federal agencies such as the NLRB. The following reference guide is an overview of the NLRB’s FOIA rules and procedures, explains what types of NLRB records are maintained and available, what fees you may be required to pay, and what to expect once you file a FOIA request. Note: the formal regulations for making FOIA requests to the NLRB may be found at 29 C.F.R. Sec. 102.117 (link is external).
It is important to note that the FOIA provides for access to records or information maintained by an agency; it does not require the agency to do research for you, to analyze data, to answer written questions, or to create records to respond to a request.
What types of records are maintained by the NLRB?
The primary functions of the NLRB are: 1) to decide, when petitioned by employees, if an appropriate bargaining unit of employees exists for collective bargaining, 2) to determine by secret-ballot election whether employees in a business wish to be represented by a labor union (representation cases, or R-cases), and 3) to investigate and remedy alleged unfair labor practices by employers and unions (unfair labor practice cases or C-cases).
Thus, the majority of records maintained by the NLRB are those in specific representation case or unfair labor practice case files. The publicly available records in these cases are available at any stage of the proceeding. The investigatory records in these cases are not available until a case closes, as they are protected from disclosure by certain FOIA exemptions such as:
- Exemption (b)(4): protects certain confidential commercial information submitted by charged parties,
- Exemption (b)(5): protects certain inter- and intra-agency memoranda, including records setting forth internal recommendations from Regional and HQ staff and records that contain attorney work product,
- Exemption (b)(6): protects personnel, medical or similar information about individuals who are referenced in case files that, if released, would constitute a clearly unwarranted invasion of their personal privacy,
- Exemption (b)(7)(A): protects records or information contained in an open case file, which could interfere with a pending investigation or enforcement proceeding or open, related proceeding,
- Exemption (b)(7)(C): protects records or information compiled for law enforcement purposes about individuals that could reasonably be expected to constitute an unwarranted invasion of their personal privacy,
- Exemption (b)(7)(D): protects information that could reveal confidential witness sources.
The NLRB also maintains statistical data with respect to our operations and periodically issues memoranda relating to our mission.
What NLRB records can I access without a FOIA request?
You do not always need to file a FOIA request to obtain records or get information about the NLRB. The NLRB routinely makes a wide variety of information about its decisions and actions available to the public through this website.
The NLRB has made certain of its records available through links to the NLRB’s FOIA E-Library. They include: 1) final opinions and orders made in adjudicating recent cases; 2) final statements of policy and interpretations that have not been published in the Federal Register; 3) administrative staff manuals and instructions to staff that affect a member of the public, and 4) other documents that the NLRB determines are of general public interest and are likely to be the subject of repeated requests.
Frequently requested records are also available through FOIAonline.
If I do file a FOIA request, do I have to pay a fee?
The answer is maybe, depending upon what FOIA fee category you are placed in. The NLRB may charge certain categories of requesters for search and/or review of records, and duplication in some circumstances. Your FOIA request must specify the amount of FOIA fees you are willing to pay. If you are a member of the news media or an educational institution, these requester categories are not charged for search or review time. Providing this information in your request will assist the FOIA Branch in determining the appropriate fee category and/or fees for your request.
Requester Category Do search fees apply? Do review fees apply? Do duplication fees apply? Commercial Use Yes Yes Yes Educational / Scientific Institution No No Yes (first 100 pages, or equivalent volume, free) Representative of the News Media No No Yes (first 100 pages, or equivalent volume, free) All Other Requester (General Public) Yes (first 2 hours free) No Yes (first 100 pages, or equivalent volume, free)
Charges for search and review time are $37.00 per hour or portion thereof of professional time; and $0.12 per page of duplication. NLRB regulations require that you agree to pay for the costs incurred in responding to the request.
Please note that commercial requesters may be charged fees even if our search does not locate any responsive records. Also, if the search results in identifying responsive records that are exempt from disclosure under the FOIA, you still will be responsible for paying the charged fees.
May I seek a waiver of fees?
Under certain circumstances, the NLRB may grant a requester a waiver or reduction of fees. If you wish to seek a waiver of fees, you must submit a written statement to the NLRB (through FOIAonline or by written request) which affirmatively addresses the statutory requirements, set forth below.
NOTE: Representatives of media and educational requesters are not charged fees for search and review; thus, there is no need for these requesters to seek a fee waiver if seeking electronic copies of records.
In order to determine that a requester is entitled to a fee waiver or reduction, the NLRB must conclude that two statutory, and conjunctive, requirements have been satisfied. Pursuant to the FOIA and NLRB Rules and Regulations, fees shall be reduced or waived if the disclosure of the requested information is “in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government” and that disclosure of the information “is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii); 29 C.F.R. § 102.117(d)(2)(iv).
The NLRB applies a six-factor test in deciding fee waiver requests. The first four factors address the public interest requirement: 1) whether the subject matter of the requested records, in the context of the request, specifically concern identifiable “operations or activities of the government;” 2) in order for the disclosure to be “likely to contribute” to an understanding of specific government operations or activities, whether the disclosable portions of the requested information will be meaningfully informative in relation to the subject matter of the request; 3) whether disclosure will contribute to “public understanding,” as opposed to the individual understanding of the requester or a narrow segment of interested persons; and 4) whether disclosure will contribute “significantly” to public understanding of government operations or activities. Once a determination is made that the public interest requirement is met, the NLRB then assesses whether disclosure of the information is not primarily in the requester’s commercial interest, considering two additional factors: 5) whether as a threshold matter, the request involves any commercial interest of the requester that would be furthered by the disclosure, and 6) a balance of the requester’s commercial interest against the identified public interest in disclosure to determine which interest is primary. To qualify for a fee waiver, all six factors must be met.
What if I want expedited processing?
Pursuant to the FOIA and NLRB Rules and Regulations, a request for expedited processing will be afforded only in limited circumstances. Specifically, the NLRB has determined that expedited processing may be warranted in instances involving: 1) an imminent threat to the life or physical safety of an individual; 2) an urgency to inform the public about an actual or alleged government activity, by a person engaged in disseminating such information; 3) a danger of loss of substantial due process rights; or 4) widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence. 5 U.S.C. § 552(a)(6)(E)(v); 29 C.F.R. § 102.117(c)(2)(ii). If you wish to request expedited processing, you must submit a written statement to the NLRB which affirmatively addresses these requirements in sufficient detail.
A decision on a request for expedited processing is made within 10 days of the request. Please be aware that expedited processing is not “next day” service. Expedited processing if granted, means that the NLRB will put your request ahead of others.
What should I expect in response to a FOIA request?
In processing FOIA requests, the NLRB first determines whether to grant any associated request for expedited processing or fee waiver, and if necessary, will contact a requester to resolve any potential fee issues or to clarify the description of the records sought. Once initial processing issues are resolved, the FOIA professional will search for and review any responsive records to determine if they are releasable or exempt from disclosure. Once the FOIA Branch has processed your request, you will receive a written response, any responsive records, and an invoice, if applicable. The response letter will advise you if any records or any portions of the records are exempt pursuant to the FOIA.
Do I have appeal rights?
You may file an administrative appeal of an adverse FOIA determination within 90 days of the date of your response letter. The 90-day period begins on the calendar day after the date of the letter. Any appeal should contain a complete statement of the reasons upon which your appeal is based. Adverse determinations may include the FOIA determination, denials of expedited processing, fee category placement, and/ or a denial of a fee waiver.
Administrative FOIA appeals are reviewed and decided by the Associate General Counsel in the NLRB’s Division of Legal Counsel within 20 working days of receipt of the appeal. The Associate General Counsel may: 1) affirm the initial determination in full; 2) reverse a part of the determination and release some information previously withheld; or 3) reverse the initial determination and release to you all the information you requested.
You may obtain a review of this determination under the NLRB Rules and Regulations, 29 C.F.R. § 102.117(c)(2)(v), by filing an administrative appeal with the Division of Legal Counsel (DLC) through FOIAonline at: https://foiaonline.gov or by mail or email at:
Chief FOIA Officer
National Labor Relations Board
1015 Half Street, S.E., 4th Floor
Washington, D.C. 20570
Please be advised that contacting any NLRB official (including the FOIA Specialist, Attorney-Advisor, FOIA Officer, or the FOIA Public Liaison) and/or OGIS does not stop the 90-day appeal clock and is not an alternative or substitute for filing an administrative appeal.
Can I file a lawsuit about my FOIA request?
After your administrative appeal has been decided, if you still believe that the NLRB has not handled your FOIA request in accordance with the law, you have a right to challenge the NLRB's action in a lawsuit filed in federal court, through the litigation process known as "judicial review." Judicial review ordinarily requires that you have filed an administrative appeal and have received a response.
Please understand that attorneys and employees of the NLRB are prohibited from giving legal advice to members of the public on Freedom of Information Act litigation.