Title: Freedom of information Act Report Date: 01/14/10 NATIONAL SCIENCE FOUNDATION FREEDOM OF INFORMATION ACT REPORT FOR OCTOBER 1, 2008 THROUGH SEPTEMBER 30, 2009 I. BASIC INFORMATION: A. Point of Contact: Leslie A. Jensen, NSF FOIA Officer Office of the General Counsel 4201 Wilson Blvd, Room 1265 Arlington, VA 22230 (703) 292-5065 B. Electronic Address for report: The FY 2009 FOIA Report for the National Science Foundation (NSF) will be available as one of the choices under the References section of the FOIA page on the NSF web site: http://www.nsf.gov/policies/foia.jsp. C. Paper Copies of report: Paper copies can be requested from the Point of Contact listed above. II. HOW TO MAKE A FOIA REQUEST: NSF policy is to make the fullest possible disclosure of information and records to any requester, without unnecessary expenses or delay. NSF’s “Public Information Handbook” is available electronically as one of the choices under the References section of the FOIA page on the Foundation’s web site: http://www.nsf.gov/publications/pub_summ.jsp?ods_key=nsf07135. There are four basic agency requirements for making a FOIA request: (1) the request must be in writing (mailed correspondence, fax, or email) and include the requester’s mailing address; (2) the envelope and letter content must identify the request as a FOIA request; (3) the request must provide enough detail to allow identification of the requested records; and (4) the request must include agreement to pay fees chargeable under NSF’s fee schedule. A. Agency Components: Requests for records of the agency should be sent to the NSF FOIA Officer, Office of the General Counsel, Room 1265, 4201 Wilson Blvd, Arlington, VA 22230. Phone: 703-292-5065, Fax: 703-292-9041. Email: foia@nsf.gov. Requests for documents maintained by the Office of the Inspector General should be addressed directly to the OIG, FOIA, Room 1135, 4201 Wilson Blvd, Arlington, VA 22230. Phone: 703-292-7100. Email: oig@nsf.gov B. Why some requests are not granted: Requests for records may not be granted if the records do not exist; if records have been transferred to the ownership of the National Archives and Records Administration (NARA); if records contain predecisional information that if released would cause harm to NSF’s decision-making processes; if records contain personal and/or proprietary information; if records contain information compiled for law enforcement purposes; or if the requester asked for information specifically prohibited from disclosure by other statutes. III. ACRONYMS, DEFINITIONS, AND EXEMPTIONS: 1. Agency-specific terms and acronyms: NSF - National Science Foundation – The National Science Foundation was established by Congress to promote progress in science and engineering. The agency does so primarily through grants and cooperative agreements with colleges, universities, K-12 school systems, businesses, information science organizations and other research institutions throughout the U.S. 2. Basic terms: a. Administrative Appeal – a request to a federal agency asking that it review at a higher administrative level a FOIA determination made by the agency at the initial request level. b. 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 8. c. Backlog – the number of requests or administrative appeals that are pending at an agency at the end of the fiscal year that are beyond the statutory time period for a response. d. Component – for agencies that process requests on a decentralized basis, a “component” is an entity, also sometimes referred to as an Office, Division, Bureau, Center, or Directorate, within the agency that processes FOIA requests. The FOIA now requires that agencies include in their Annual FOIA Report data for both the agency overall and for each principal component of the agency. e. Consultation – the procedure whereby the agency responding to a FOIA request first forwards a record to another agency for its review because that other agency has an interest in the document. Once the agency in receipt of the consultation finishes its review of the record, it responds back to the agency that forwarded it. That agency, in turn, will then respond to the FOIA requester. f. Exemption 3 Statute – a federal statute that exempts information from disclosure and which the agency relies on to withhold information under subsection (b)(3) of the FOIA. g. FOIA Request – a FOIA request is generally a request to a federal agency for access to records concerning another person (i.e. a “third-party” request), or concerning an organization, or a particular topic of interest. FOIA requests also include requests made by requesters seeking records concerning themselves (i.e., “first-party” requests) when those requestors are not subject to the Privacy Act, such as non-U.S. citizens. Moreover, because all first-party requesters should be afforded the benefit of both the access provisions of the FOIA as well as those of the Privacy Act, FOIA requests also include any first-party requests where an agency determines that it must search beyond its Privacy Act “systems of records” or where a Privacy Act exemption applies, and the agency looks to FOIA to afford the greatest possible access. All requests which require the agency to utilize the FOIA in responding to the requester are included in this report. Additionally, a FOIA request includes records referred to the agency for processing and direct response to the requester. It does not, however, include records for which the agency has received a consultation from another agency. (Consultations are reported separately in Section XII of this Report.) h. Full Grant – an agency decision to disclose all records in full in response to a FOIA request. i. Full Denial – an agency decision not to release any records in response to a FOIA request because the records are exempt in their entireties under one or more of the FOIA exemptions, or because of a procedural reason, such as when no records could be located. j. Median Number – the middle, not average, number. For example, of 3, 7, and 14, the median number is 7. k. Multi-Track Processing – a system in which simple requests requiring relative minimal review are placed in one processing track and more voluminous and complex requests are placed in one or more other tracks. Requests granted expedited processing are placed in yet another track. Requests in each track are processed on a first in/first out basis. i. Expedited Processing – an agency will process a FOIA request on an expedited basis when a requester satisfied the requirement for expedited processing as set forth in the statute and in agency regulations. ii. Simple Request – a FOIA request that an agency using multi-track processing places in its fastest (non-expedited) track based on the low volume and/or simplicity of the records requested. iii. Complex Request – a FOIA request that an agency using multi-track processing places in a slower track based on the high volume and/or complexity of the records requested. l. Partial Grant/Partial Denial – in response to a FOIA request, an agency decision to disclose portions of the records and to withhold other portions that are exempt under the FOIA, or to otherwise deny a portion of the request for a procedural reason. m. Pending Request or Pending Administrative Appeal – a request or administrative appeal for which an agency has not taken final action in all respects. n. Perfected Request – a request for records which reasonably describes such records and is made in accordance with published rules stating the time, place, fees (if any) and procedures to be followed. o. Processed Request or Processed Administrative Appeal – a request or administrative appeal for which an agency has taken final action in all respects. p. Range in Number of Days – the lowest and highest number of days to process requests or administrative appeals. q. Time Limits – the time period in the statue for an agency to respond to a FOIA request (ordinarily twenty working days from receipt of a perfected FOIA request). 3. Nine FOIA exemptions: a. Exemption 1: classified national defense and foreign relations information. b. Exemption 2: internal agency rules and practices. c. Exemption 3: information that is prohibited from disclosure by another federal law. d. Exemption 4: trade secrets and other confidential business information. e. Exemption 5: inter-agency or intra-agency communications that are protected by legal privileges. f. Exemption 6: information involving matters of personal privacy. g. Exemption 7: records or information compiled for law enforcement purposes, to the extent that the production of those records (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions, or (F) could be reasonably be expected to endanger the life or physical safety of any individual. h. Exemption 8: information relating to the supervision of financial institutions. i. Exemption 9: geological information on wells. IV. Exemption 3 Statutes A. Exemption 3 Statutes Relied upon to Withhold Information Status Type of Case Citation Number of Total Number of Information Times Relied Times R/elied upon Withheld upon per by Agency Component 35 U.S.C. § 122 Patent pending Irons & Sears v. (Patent Act) applications Dann, 606 F.2d NSF # 13 13 1215, 1219-21 OIG # 0 (D.C. Cir. 1979). 41 U.S.C. § Proposal Hornbostel v. NSF # 3 3 253b(m)(1) documents not U .S. Dep't of OIG # 0 (National Defense incorporated the Interior, Authorization Act into contracts 305 F. Supp. 2d for Fiscal Year 21, 30 (D.D.C. 1997) 2003), summary affirmance granted, No. 03-5257, 2004 WL 1900562 (D.C. Cir. Aug. 25, 2004). V. FOIA REQUESTS A. Received, Processed and Pending FOIA Requests Column 1 Column 2 Column 3 Column 4 Number of Number of Number of Number of Requests Pending Requests Requests Requests Pending as of Start of Received in Processed in as of End of Fiscal Year Fiscal Year Fiscal Year Fiscal Year NSF 1 318 303 16 OIG 2 77 79 0 Agency Overall 3 395 382 16 B. (1) Disposition of FOIA Requests - All Processed Requests Number of Number Number of Full of Full Partial Denials Number of Full Denials Based on Reasons Other than Exemptions Grants Grants/Partial Based on Denials Exemptions All Records Improper Other Referred Records not FOIA Not *Explain No to Another Request Fee-Related Reasonably Request Agency Duplicate in chart TOTAL Records Component Withdrawn Reason Described for Record Request below or Agency Other Reason NSF 84 167 7 19 0 21 0 1 0 1 0 3 303 OIG 3 50 10 7 0 4 0 0 3 0 2 0 79 Agency Overall 87 217 17 26 0 25 0 1 3 1 2 3 382 B. (2) Disposition of FOIA Requests - "Other" Reasons for "Full Denials Based on Reasons Other than Exemptions" from Section V, B (1) Chart Description of "Other" Reasons for Denials from Chart B(1) & TOTAL Number of Times Those Reasons Were Relied upon No awarded proposal. [1] NSF Suspended 3 [2] OIG 0 B. (3) Disposition of FOIA Requests - Number of Times Exemptions Applied Ex.Ex. Ex. Ex.Ex. Ex. Ex. Ex. Ex. Ex. Ex. Ex. Ex. Ex. 1 2 3 4 5 6 7(A) 7(B) 7(C) 7(D) 7(E) 7(F) 8 9 NSF 0 0 16 95 13 213 0 0 0 0 0 0 0 0 OIG 0 0 0 1 3 59 2 0 60 0 0 0 0 0 Agency Overall 0 0 16 96 16 272 2 0 60 0 0 0 0 0 VI. ADMINISTRATIVE APPEALS OF INITIAL DETERMINATIONS OF FOIA REQUESTS A. Received, Processed and Pending Administrative Appeals Number of Number of Number of Number of Appeals Pending Appeals Appeals Appeals Pending as of Start of Received in Processed in as of End of Fiscal Year Fiscal Year Fiscal Year Fiscal Year NSF 0 3 3 0 OIG 0 4 4 0 Agency Overall 0 7 7 0 B. Disposition of Administrative Appeals - All Processed Appeals Number of Number Number Partially Number Completely Appeals Affirmed Affirmed & Partially Reversed/Remanded Closed TOTAL on Appeal Reversed/Remanded on Appeal for Other on Appeal Reasons NSF 2 1 0 0 3 OIG 3 1 0 0 4 Agency Overall 5 2 0 0 7 C.(1) Reasons for Denial on Appeal - Number of Times Exemptions Applied Ex.Ex. Ex. Ex.Ex. Ex. Ex. Ex. Ex. Ex. Ex. Ex. Ex. Ex. 1 2 3 4 5 6 7(A) 7(B) 7(C) 7(D) 7(E) 7(F) 8 9 NSF 0 0 1 1 1 3 0 0 1 0 0 0 0 0 OIG 0 0 0 0 2 4 0 0 4 0 0 0 0 0 Agency Overall 0 0 1 1 3 7 0 0 5 0 0 0 0 0 C. (2) Reasons for Denial on Appeal - Reasons Other than Exemptions Records Appeal Referred Improper Based Other Records notRequest Not Duplicate Solely on No at Request Fee-Related Reasonably for Agency Request Request in Denial of *Explain Records Initial Withdrawn Reason Litigation in chart Request Described Other Recordor Appeal Request for below Level Reasons Expedited Processing NSF 0 0 0 1 0 0 0 0 0 0 0 OIG 0 0 0 0 0 0 0 0 0 0 0 Agency Overall 0 0 0 1 0 0 0 0 0 0 0 C. (3) Reasons for Denial on Appeal - "Other" Reasons from Section VI, C (2) Chart Description of "Other" Reasons for Denial on Appeal from Chart TOTAL C(2) & Number of Times Those Reasons Were Relied upon NSF 0 OIG 0 C. (4) Response Time for Administrative Appeals Median Number Average Number Lowest Number Highest Number of Days of Days of Days of Days NSF 20 13 1 20 OIG 13 15 13 17 Agency Overall 17 14 1 20 C. (5) Ten Oldest Pending Administrative Appeals 10th Oldest 9th8th7th 6th5th4th3rd 2nd Oldest Appeal Appeal Perfected Date of Ten Oldest 0 0 NSF Appeals Number of Days Pending 0 0 Perfected Date of Ten Oldest 0 0 OIG Appeals Number of Days Pending 0 0 Perfected Date of Ten Oldest 0 0 Agency Appeals Overall Number of Days Pending 0 0 VII. FOIA REQUESTS: RESPONSE TIME FOR PROCESSED AND PENDING REQUESTS A. Processed Requests - Response Time for All Processed Perfected Requests SIMPLE EXPEDITED Median Average Lowest Highest Median Average Lowest Highest Number Number Number Number Number Number Number Number of Days of Days of Days of Days of Days of Days of Days of Days NSF 16 22 1 1825 8 21 6 41 OIG 14 13 1 20 0 0 0 0 Agency Overall 15 20 1 1825 8 21 6 41 B. Processed Requests - Response Time for Perfected Requests in Which Information Was Granted SIMPLE EXPEDITED Median Average Lowest Highest Median Average Lowest Highest Number Number Number Number Number Number Number Number of Days of Days of Days of Days of Days of Days of Days of Days NSF 17 24 1 1825 0 0 0 0 OIG 15 14 4 20 0 0 0 0 Agency Overall 16 22 1 1825 0 0 0 0 C. Processed Requests - Response Time in Day Increments Simple Requests 1-20 21-4041-6061-80 81-100101-120121-140141-160 161-180181-200201-300301-400 401+ TOTAL Days Days Days Days Days Days Days Days Days Days Days Days Days NSF 234 60 5 1 1 0 0 0 0 0 1 0 1 303 OIG 79 0 0 0 0 0 0 0 0 0 0 0 0 79 Agency Overall 313 60 5 1 1 0 0 0 0 0 1 0 1 382 Requests Granted Expedited Processing 1-20 21-4041-6061-80 81-100101-120121-140141-160 161-180181-200201-300301-400 401+ TOTAL Days Days Days Days Days Days Days Days Days Days Days Days Days NSF 0 0 0 0 0 0 0 0 0 0 0 0 0 0 OIG 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Agency Overall 0 0 0 0 0 0 0 0 0 0 0 0 0 0 D. Pending Requests - All Pending Perfected Requests SIMPLE EXPEDITED Median Average Median Average Number Number of Number of Number Number of Number of Pending Pending Days Days Days Days NSF 16 10 18 0 0 0 OIG 0 0 0 0 0 0 Agency Overall 16 10 18 0 0 0 E. Pending Requests - Ten Oldest Pending Perfected Requests 10th Oldest Oldest Request Request and 9th 8th 7th 6th 5th 4th 3rd 2nd and Number of Number of Days Days Pending Pending Perfected Date of Ten 9/18/20099/17/20099/11/2009 9/10/20099/9/20099/8/20099/8/2009 9/2/20098/31/20093/23/2009 NSF Oldest Number of Days 9 10 14 15 16 17 17 20 22 135 Pending Perfected Date of Ten 0 0 0 0 0 0 0 0 0 0 OIG Oldest Number of Days 0 0 0 0 0 0 0 0 0 0 Pending Perfected Date of Ten 9/18/20099/17/20099/11/2009 9/10/20099/9/20099/8/20099/8/2009 9/2/20098/31/20093/23/2009 Agency Oldest Overall Number of Days 9 10 14 15 16 17 17 20 22 135 Pending VIII. REQUESTS FOR EXPEDITED PROCESSING AND REQUESTS FOR FEE WAIVER A. Requests for Expedited Processing Median Number Average Number Number Number Number of Days to of Days to Adjudicated Granted Denied Within Ten Adjudicate Adjudicate Calendar Days NSF 0 4 14 100 1 OIG 0 0 0 0 0 Agency Overall 0 4 14 100 1 B. Requests for Fee Waiver Number Number Median Number of Average Number of Granted Denied Days to Adjudicate Days to Adjudicate NSF 0 1 13 13 OIG 0 0 0 0 Agency Overall 0 1 13 13 IX. FOIA PERSONNEL AND COSTS PERSONNEL COSTS Number of Number of Total "Equivalent "Full-Time Full-Time Number of Processing Litigation-Related Total FOIA "Full-Time Costs Costs Costs Employees" FOIA FOIA Staff" Employees" NSF 0 3.6 3.6 320,000.00 0 320,000.00 OIG 0 0.23 0.23 29,224.00 0 29,224.00 Agency Overall 0 3.83 3.83 349,224.00 0 349,224.00 X. FEES COLLECTED FOR PROCESSING REQUESTS Total Amount of Fees CollectedPercentage of Total Costs NSF 1085.72 0.3 OIG 0 0 Agency Overall 1085.72 0.3 XI. FOIA REGULATIONS http://www.nsf.gov/policies/ogc1009.pdf XII. BACKLOGS, CONSULTATIONS, AND COMPARISONS A. Backlogs of FOIA Requests and Administrative Appeals Number of Backlogged Requests Number of Backlogged Appeals as of End of Fiscal Year as of End of Fiscal Year NSF 0 0 OIG 0 0 Agency Overall 0 0 B. Consultations on FOIA Requests - Received, Processed, and Pending Consultations Number of Number of Number of Consultation Consultations Consultations Received from Number of Received from Received from Other Agencies Consultations Other Agencies Other Agencies that Were Received from that Were that Were Pending at Your Other Agencies Processed by Pending at Your Agency as of During the Your Agency Agency as of End Start of the Fiscal Year During the of the Fiscal Fiscal Year Fiscal Year Year NSF 0 0 0 0 OIG 0 0 0 0 Agency Overall 0 0 0 0 C. Consultations on FOIA Requests - Ten Oldest Consultations Received from Other Agencies and Pending at Your Agency 10th Oldest Consultation 9th 8th7th6th5th 4th3rd2nd Oldest and Number of Consultation Days Pending Oldest Consultation and Number of 0 N/A NSF Days Pending Number of Days Pending 0 N/A Oldest Consultation and Number of 0 N/A OIG Days Pending Number of Days Pending 0 N/A Oldest Consultation 0 N/A Agency and Number of Overall Days Pending Number of Days Pending 0 N/A D. Comparison of Numbers of Requests from Previous and Current Annual Report - Requests Received, Processed, and Backlogged Number of Requests Received Number of Requests Processed Number Received Number Received Number Processed Number Processed During Fiscal During Fiscal During Fiscal During Fiscal Year from Last Year from Year from Last Year from Year's Annual Current Annual Year's Annual Current Annual Report Report Report Report NSF 314 318 315 302 OIG 39 77 37 77 Agency Overall 353 395 352 379 Number of Backlogged Requests Number of Backlogged Requests as of End of the Fiscal year as of End of the Fiscal Year from Previous Annual Report from Current Annual Report NSF 1 0 OIG 0 0 Agency Overall 1 0 E. Comparison of Numbers of Administrative Appeals from Previous and Current Annual Report - Appeals Received, Processed, and Backlogged 1. Provide the number of administrative appeals received and the number of administrative appeals processed during the fiscal year from last year’s Annual Report and the number of those received and processed during the fiscal year from the current Annual Report. NUMBER OF APPEALS RECEIVED NUMBER OF APPEALS PROCESSED Number Received Number Received Number Processed Number Processed During Fiscal During Fiscal During Fiscal During Fiscal Year from Last Year from Year from Last Year from year's Annual Current Annual Year's Annual Current Annual Report Report Report Report NSF 7 3 7 3 OIG 3 4 3 4 Agency Overall 10 7 10 7 2. Starting with the Annual Report for Fiscal Year 2009, provide the number of backlogged administrative appeals as of the end of the fiscal year from the previous Annual Report and the number of backlogged administrative appeals as of the end of the fiscal year from the current Annual Report. Number of Backlogged Appeals as Number of Backlogged Appeals as of End of the Fiscal year from of End of the Fiscal Year from Previous Annual Report Current Annual Report NSF 0 0 OIG 0 0 Overall 0 0 F. Discussion of Other FOIA Activities (Optional) 1. Provide here any further information about the agency's efforts to improve FOIA administration. * During the 2009 reporting period the NSF developed an electronic FOIA tracking system that logs, tracks and reports NSF’s FOIA program. * NSF receives and replies to the majority of all FOIA requests electronically. * Most pending requests are due to receipt/perfected dates that fell toward the end of the 2009 reporting period, when the 20 working day response becomes due during the 2010 reporting period. * NSF currently has no backlog. * NSF reports a significant number of withholdings under Exemption 6. The majority of Foundation requests are for copies of funded grant proposals. Most funded grant proposals would be released in full. However, every proposal contains personal information that is protected under Exemption 6; thus the high number of citations to that exemption. * FOIA costs increased significantly this reporting period due to the development and implementation of the new electronic FOIA system.