Purpose. To ensure that the Employment and Training Administration (ETA) responds to requests for H-2A documents in a consistent, open, and accessible manner, while protecting the privacy of employers and workers.

References. Field Memorandum No. 39-89 issued February 9, 1989; Freedom of Information Act (FOIA), 5 USC 552 and 29 CFR Part 70, et seq.

Background. Regional Offices receive many requests for documents pertaining to H-2A orders, including requests for the application package and related material. Some personal documents are clearly excluded from disclosure under FOIA to protect personal privacy. In addition, we recognize that many applications, especially the job order itself, may change significantly after review by the Region and resubmission by the employer. This Field Memorandum describes ETA policy on when correspondence and documents from employers, State Workforce Agencies (SWAs), and others in the control of the Regional Office shall be released. It also discusses the important exemptions to this policy.

Policy.

1. Requests for H-2A Employer Applications and Related Materials

   1. Release of Information

      All H-2A applications and related materials formally filed by an agricultural employer or agent with a Regional Office shall be released except as noted in 4.A.2 below.

      Documents related to the application, such as drafts of applications or employer correspondence furnished to the Regional Office prior to the formal application, shall also be Released. Regional Offices should not delay their decision regarding release of the requested documents beyond the 20 working day legislated FOIA requirement for any reason, including waiting until the application is analyzed and accepted or not accepted, or until a corrected copy is received from the employer. What is in the Region's possession on the date the FOIA request is received is what is subject to the request. However, a request that is made while the application is being analyzed may affect the applicability of FOIA exemptions to the records sought. Documents that are only in the SWA's possession are SWA records, subject to State information disclosure laws but not subject to the FOIA since they are not Federal records.

   2. Documents or Information that may be Withheld

      (a) Commercial and Trade Secret Information

      Employers may, at the time of submission or shortly after, identify specific information as confidential. Regardless of whether the employer has identified information as confidential, the Regional Office should follow the provisions of 29 CFR 70.26. Information of a commercial or trade nature, such as estimated production data, field tonnage yield, capacity of a processing mill, etc., shall be withheld in accordance with the provisions of 5 USC 552(b)(4). The release of such information could result in harm to an employer if it became available to a competitor of the employer.

      (b) Agency Correspondence

      Intra-or interagency memoranda and letters which are not routinely discoverable in the civil discovery context may be withheld in accordance with the provisions of 5 USC 552(b)(5). This includes documents from DOL staff expressing opinions and/or recommendations. All materials involving the deliberative process should be withheld from release providing there is a sound legal basis for withholding. This ensures frank 3 and open discussion between staff prior to agency decision.

      (c) Personal Information

      Personal information about individuals shall be withheld where the disclosure would constitute a clearly unwarranted invasion of personal privacy in accordance with the provisions of 5 U.S.C. 552(b)(6). Farm labor contractors or crew leaders’ names, business addresses, and number of workers in a given crew may be released. The names or any other private information of any specific worker shall not be released. This includes home addresses and telephone numbers, social security numbers, and information about previous employers.

2. Requests for Information about H-2A Appeals

   Requests for information or documents related to an appeal of a Regional Administrator’s decision shall be referred to the Disclosure Officer, Office of the Administrative Law Judges, at the address noted in the determination letter.

3. Requests for Wage Surveys and Earnings Data

   Prevailing wage surveys (ETA 232 reports)prepared by SWAs may be released in summary form. Information identifying or leading to the identification of a specific employer (or worker) shall not be released. Employers volunteer to contribute to the survey process and are assured, to the extent permitted by law, that they will not be identified individually with regard to wages paid or other economic information.

4. Requests for Housing Inspection Reports

   Reports of housing inspections and related documents shall be released unless they are related to an open official investigation.

5. Open‑Ended Requests

   The FOIA does not provide for open-ended requests. The law provides for a requester to ask for specific existing government records which are on file at the time the FOIA request is received.

6. Creating Records

   As identified in 29 CFR 70.5, the FOIA does not require the creation of a new document or computer program. However, an office shall make reasonable efforts to search for requested records in electronic format.

7. Appeals of Response to Initial Request

   A requestor may appeal if the office denies the request in full or in part, or responds that it does not have the record(s) requested. The response should notify the requestor what type of information was not released, why it was not released (specific exemption, etc.), the name and title of the disclosure officer, and that the requestor has the right to appeal the decision to withhold information. For convenience and consistency, you may wish to use the following standard appeal language:

   "Should you wish to appeal this (partial) denial of your request, pursuant to 29 CFR 70.22, you may appeal to the Solicitor of Labor. An appeal must be filed within 90 days from the date of this letter. The appeal must state, in writing, the grounds for appeal including any supporting statements or arguments."

   "To facilitate processing, the appeal should include copies of this letter, and your initial request. The appeal should be addressed to the Solicitor of Labor, U.S. Department of Labor, 200 Constitution Avenue N.W., Washington, D.C. 20210. Both the envelope and the letter of appeal should be clearly marked 'Freedom of Information Act Appeal.'"

   In the case of "no record responses," you may choose to substitute this language for the first sentence:

   "I believe that an adequate search of appropriate files was conducted for the records you requested; therefore, this response, letter, etc., is not a denial of your request. However, you have the right to appeal this finding that no records exist which would respond to your request."

Action Requested. Regional Administrators are requested to inform staff who handles H-2A documents of the information in this Field Memorandum, and to provide a copy to each FOIA liaison.

Inquiries. Questions may be addressed to Charlene Giles, Team Leader, Division of Foreign Labor Certification, at (202) 693-3010.