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Absentee-Shawnee Tribe of Indians of Oklahoma


Freedom of Information Act Handbook.

Freedom of Information Act Handbook.


This Freedom of Information Act Handbook is designed to provide policy and guidance for administering and implementing the Freedom of Information Act (FOIA) by the Absentee Shawnee Tribe of Oklahoma. It is to be used in conjunction with the Tribe's Code of Laws and other administrative guidelines as may be issued by the Executive Committee of the Tribe.


It is the Tribe's policy to make records available to the greatest extent possible in keeping with the spirit and intent of the FOIA. The Tribe will furnish the records promptly to any member of the tribal public upon written request and in accordance with the fees specified herein.


The policy and procedures set forth herein cover all records and informational materials generated, maintained, and controlled by the Tribe, save and except those which are listed later in this Handbook as EXEMPTIONS. Additionally, these procedures do not apply to:

1. Opinions in the adjudication of cases, statements of policy and interpretations, and administrative staff manuals that have general circulation.

2. Records of information compiled for law enforcement purposes and covered by the disclosure exemption, IF:

i. The subject of the investigation or proceeding is not aware of its pendency, AND

ii. Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.

3. Informant records maintained by a criminal law enforcement component of the Tribe under an informant's name or personal identifier, if requested by a third party according to the informant's name or personal identifier unless the informant's status as an informant has been officially confirmed.


1. “Tribe” means the Absentee Shawnee Tribe of Oklahoma.

2. “Act” and “FOIA” mean the Freedom of Information Act.

3. “Action office” means the office that is responsible for preparing the response to a FOIA request.

4. “Appeal” means a written notice the Tribe receives when-

a. Records have been withheld; or

b. A request has been denied because of failure to describe requested records or for other procedural deficiency, or when it has been determined that the requested records do not exist or cannot be found.

5. “Commercial or financial information” means records provided to the Tribe by a submitter that contain material arguably exempt from release under 5 USC   552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm.

6. “Direct costs” means those expenditures which the Tribe incurs in searching for and duplicating documents to respond to a FOIA request.

7. “Duplication” means the process of making copies of documents in response to a FOIA request. Such copies may take the form of paper, microfilm, audiovisual materials, or machine-readable documentation. The Tribe will provide materials in the form in which they are stored and maintained, unless it is more feasible to provide them in another form.

8. “FOIA request” means a written request for records made by the tribal public that specifically invokes the Act. However, the Tribe may treat a request for records that does not specifically invoke the Act as a FOIA request.

9. “Individual” is any person, institution, or company.

10. “Initial denial” means the first letter sent to the requester denying either part or all of the FOIA request for a record.

11. “Record” means all books, papers, maps, charts, plats, plans, architectural drawings and microfilm; all machine readable materials such as magnetic tape, disks, and drums; all audiovisual material such as still photos, sound and video recordings, and all other documentary materials, regardless of physical form or characteristics, made or received by the Tribe in pursuance of Federal or Tribal laws or in connection with the transaction of public business and preserved or appropriate for preservation by the Tribe as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities, or because of the informational value to the recorded data.

12. “Requester” means any individual who has asked in writing to see or to receive a copy of a Tribal record.

13. “Responsible official” means the person who is charged with preparing the response to the FOIA request.

14. “Review” means the process of examining documents located in response to FOIA request to determine whether any portion of any document located is permitted to be withheld and the subsequent processing of documents for disclosure by excising exempt material or otherwise preparing them for release.

15. “Search” means all the time spent looking for material that is responsive to a FOIA request, including line-by-line or page-by-page search to determine whether a record is responsive, even if the search fails to locate records or the records located are determined to be exempt from disclosure. Searches may be done manually or by computer using proper programming.

16. “Submitter” means someone other than a representative of the Tribe who provides information to the Tribe.

17. “Workday” means a regular working day. It does not include weekends or legal holidays.


The following types of requests are not covered under the FOIA:

1. A request by an employee of a Federal agency acting in an official capacity.

2. A request from a congressional committee or subcommittee on a subject within its jurisdiction.

3. A request by an individual for records about himself/herself, except that an individual may invoke the FOIA to obtain records pertaining to himself/herself.

4. A request for information which does not disclose individual information. This type of request usually provides statistical data in a not personally identifiable fashion.


The requirement of the FOIA that records be available to the public refers only to records in existence at the time the FOIA request is made. It does not impose any obligation on the Tribe to create a new record--for example, combining or compiling selected items from manual files, preparing a new computer program, or calculating proportions, percentages, frequency distributions, trends, or comparisons--to respond to a request.


The FOIA applies only to Tribal records, not to the personal records of individual employees. Personal records are not subject to Tribal creation or retention, and are not distributed to other employees for their official use. They are created and maintained primarily for the convenience of the employee. Examples include, but are not limited to, personal calendars of employees, personal reminders of the employee, personal daily logs of activities of the employee, and other items of a related nature.


FOIA requests shall be addressed to the Secretary of the Absentee Shawnee Tribe of Oklahoma. At the Secretary's discretion, he/she may delegate support personnel or other Tribal departments to respond to the request.

The Secretary shall review all incoming requests and determine, in conjunction with the Executive Committee of the Absentee Shawnee Tribe, the action office responsible for preparing the response.

The Secretary shall assign a control number to each request in compliance with a logging system to be developed and maintained by the Secretary. This log should include, but is not limited to, the following:

1. FOIA control number assigned;

2. Name and affiliation of the requester;

3. Date of request;

4. Date of receipt of request;

5. Date response due;

6. Date response signed and remitted to requester;

7. Action office assigned;

8. Subject of request;

9. Disposition--whether granted or denied;

10. Exemptions applied of a denial;

11. Time extensions taken;

12. Fees due and collected, if any;

13. Any other remarks pertinent to the request.

The Secretary should track each request to make sure that deadlines are met, responses are complete and accurate, records are provided, fees are collected, and so forth.


The action office will perform the necessary research and prepare a proposed response which shall then be remitted to the secretary for official response to the requester. Such responsibility shall include the response, along with any concerns of the action office regarding the disclosure or non-disclosure of any part or portion of a given record.


The Tribal Secretary shall maintain the official files for all FOIA appeals. The file consists of the appellant's letter and the Tribe's reply and any related correspondence and supporting documents.

Upon receipt of such appeal, the Secretary shall immediately seek counsel of the Tribal Attorney General to ascertain the proper procedure to be taken in disposition of the appeal.

All appeals shall be in writing from the appellant addressed to the Tribal Secretary.


If any tribal office, department or employee receives an FOIA request directly from the requester, it will be sent immediately to the Office of the Tribal Secretary for proper disposition.

Any tribal office, department or employee who receives an incorrectly routed FOIA request will promptly notify the Tribal Secretary and forward the request to that office for reassignment.

The action office will notify the Tribal Secretary immediately whenever it has been determined that the request cannot be fulfilled in a timely fashion. Such a determination shall be justified by the action office in writing.

When requests for information involve more than one action office, the Secretary shall coordinate responses from each to ensure a uniform response by the Tribe.


The Tribal Secretary will make a determination as to whether a request is subject to the FOIA or merely a request for information. If the requester seeks an answer to a specific question, or an explanation of policy, procedures, or a Tribal action, the Tribe is not required to process the request under the FOIA, unless the requester chooses to do so by written request invoking FOIA.


The Tribe will respond to a given FOIA request within twenty (20) workdays after receipt by the Tribal Secretary. The response will advise the requester of the records the Tribe intends to disclose or to withhold, the exemption(s) authorizing the withholding, and provide sound grounds for withholding the document(s).

As long as the requester has been informed of the Tribe's decision with respect to disclosure or non-disclosure, the Tribe need not release the information within the time limits set forth above. If the records to be disclosed are not provided with the initial response from the Secretary, they will be sent as soon as possible thereafter.

The running of the basic time limit may be delayed under the following conditions:

1. The requester has not stated a willingness to pay fees to be charged for the search and duplication; or

2. The requester has not made a required advance payment for search and duplication.

The 20 workdays will not begin until the request has been clarified or the records reasonably described and any fee issues resolved.

In the following unusual circumstances, the Tribe may extend the time limits prescribed herein:

1. The need to search for and collect the requested records from other sources or establishments that are separate from the Tribe itself;

2. The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records demanded in a single request; or

3. The need to consult with another agency having a substantial interest in the determination of the request or among two or more components of the Tribe having substantial subject matter interest therein.

If an extension is necessary, the action office will notify the Tribal Secretary and prepare a letter to the requester informing him/her of the reason for extension, and the anticipated date of the response. This letter to the requester should be sent prior to the expiration of the basic time limit.


The requester must describe the records sought in sufficient detail to enable an employee familiar with the subject area of the request to locate the records with a reasonable amount of effort.

When a request is overly broad in scope, unfocused, or involves an extreme volume of records or a burdensome search, the Secretary should contact the requester to try to identify and clarify the records sought and to reformulate the request. This may include explaining how the Tribe's records pertinent to the request are filed, indexed, grouped, etc., so that the requester understands how to narrow the request. The Secretary should work with the requester to:

1. Limit the scope of the request to specific components;

2. Clearly define the subject matter;

3. Narrow the scope of the request to a certain timeframe; and

4. Clarify terms within the text of the request.

The 20 workday time limit will not start until the Tribe receives a request reasonably describing the records or clarifying the initial request.

If the request is unclear, the Secretary will contact the requester and when the request requires substantial clarification, the Secretary will ask the requester to submit an amended written request. The basic time limit does not begin until the clarification letter is received.

To avoid unnecessary appeals and litigation, the Tribe will make every effort to keep requesters apprised of the status of their requests as they progress through the system.


The Tribe does not provide expedited service for FOIA requests. Requests are processed on a “First in-First out” basis; however, exceptions may be made in the following circumstances:

1. Whenever an individual's life or personal safety would be jeopardized by failure to act promptly, and

2. Whenever the requested records are needed in connection with a judicial or administrative proceeding and are critical to preserving the requester's “due process rights”, assuming the information is not otherwise available.


The office assigned by the Secretary to handle the request is responsible for:

1. Notifying the Secretary of its recommendation to disclose or withhold the records within the time limits specified herein;

2. Ensuring that an adequate search is conducted and that any records responsive to the request are reviewed properly;

3. Consulting with appropriate offices if a decision is recommended to withhold a record, to release a record exempt from disclosure, or a denial is involved;

4. Obtaining necessary concurrences;

5. Ensuring that legible copies of the records are sent to the requester if not sent with the initial response;

6. Keeping a record of information that has been released or withheld as a reference for future requests and for any appeal filed;

7. Notifying the Secretary of the fees which should be charged to the requester, fully disclosing all search and duplication costs;


When the Secretary decides to release a requested record, he/she will notify the requester as to when and where the record is available for inspection or as the case may be, when and how copies will be provided. If fees are due, a statement regarding the fees and the procedures for payment is to be included within the response letter. In cases where large volumes of records are released, the Secretary may require payment of fees in advance to provision of the requested record(s).


When a given record contains both exempt and non-exempt material, any reasonably segregable part of an otherwise exempt document will be disclosed. When disclosing a record to a requester, the Secretary will indicate all deletions clearly, describing in as much detail as possible, the kind of material deleted, being careful not to reveal the information withheld. Deleting even one word constitutes a partial denial. Before disclosing a record, the Secretary should note the parts withheld, either by marking the original or by keeping a page-by-page list.


The following uniform fee schedule applies to FOIA requests:

1. Review and Search Fees:

Manual searches and reviews by clerical/personnel--$2.30 per quarter hour or fraction thereof.

Manual searches and reviews by professional or managerial personnel in cases where clerical staff would not be able to locate or review the records--$4.50 per quarter hour or fraction thereof.

2. Computerized Records Fees:

Costs for processing a data request will be calculated using a standard rate of $10.00 per quarter hour or fraction thereof. Material costs for paper, diskettes, tapes, etc., will be charged at the latest acquisition price paid by the Tribe for those items.

3. Reproduction Fees:

Pages no larger than 8 1/2 X 14 inches, when reproduced by standard office copying machines--$0.20 per page.

Pages over 8 1/2 X 14, when reproduced by standard office copying machines--$0.25 per page.

Documents requiring special handling--Direct cost of reproduction to the Tribe.

4. Certification of Copies:

For each certificate of verification attached to authenticated copies of records released, the charge will be $0.25 per page.

5. Postage and Mailing Costs:

Direct cost of postage and mailing to the Tribe.

6. Other Fees:

When a response to a request requires services or materials other than those described in this part, the direct cost of such service or materials to the Tribe will be charged, but only if the requester has been notified of such cost before it is incurred.

7. Waiver of Fees:

The Executive Committee of the Tribe may, at its sole option, choose to waive fees for requesters, however, requesters are not entitled to any automatic free search or duplication costs.

8. Payment of Fees:

The Secretary will process or cause to be processed an Invoice to the requester in the full amount to be charged, identifying all costs and fees, and remit same to the requester at the time the response to the request is made. In those instances where large volumes of records are required by the request, payment may be required prior to surrender of records to the requester. In such instances, the Secretary will notify the requester that prepayment is due and at the same time provide an itemized invoice for the amount.


Under the FOIA there are nine (9) exemptions which serve as a basis for withholding information from the public. The exemptions may apply singly or in combination to a given request. If information does not fall under any of the exemptions, there is no basis for withholding. All nonexempt portions of the document will be released, unless inextricably intertwined with the exempt portions.

If it is unclear to the Secretary as to whether specific documents fall under any of the exemptions, he/she shall seek counsel of the Tribal Attorney General for guidance.

1. Exemption 1--FOIA allows an agency to withhold information concerning the national defense or foreign policy providing that it has been properly classified under EO 12356, National Security Information and any agency regulations implementing that Executive Order.

2. Exemption 2--This exemption relates only to the internal personnel rules and practices of an agency. It encompasses two distinct categories of records:

A. Those dealing with internal matters of a relatively trivial nature for which there is no legitimate public interest or benefit. This exemption is applicable when it would impose an administrative burden on the agency to process the request. Examples may include:

a. Leave slips and time and attendance sheets;

b. Routing slips, surname initials, copy distribution information, and data processing notations.

c. Brief references to previous communications; and

d. Policies and procedures relating to the use of parking facilities, lunch hours, sick and annual leave, etc.

B. Those of a more substantive nature, the disclosure of which would allow circumvention of a statute or regulation, or would impede the effectiveness of the Tribe's activities. Examples may include:

a. Agency procedures, manuals and instructions involving investigatory or security matters, e.g., law enforcement manuals on how to conduct an investigation or audit guidelines, or other security techniques; and

b. Examination questions and answers; crediting plans used in determining the qualifications of a candidate for employment, advancement, or promotion; and criteria for interviewing prospective employees. Release of this type of information would give someone an unfair advantage in the job selection process and may require the agency to create replacement documents.

3. Exemption 3--This exemption allows an agency to withhold records that are specifically exempt from disclosure by statute. Examples include, but are not limited to, the following:

a. Surface Mining Control and Reclamation Act

b. Archaeological Resources Protection Act

c. National Materials and Minerals Policy, Research and Development Act

d. National Historic Preservation Act

e. Indian Gaming Regulatory Act

f. Others

Examples of information withheld under this Exemption include, but are not limited to:

a. Information related to archaeologic and/or historic resources;

b. Information related to gaming activities of the Tribe;

c. Others

4. Exemption 4--This exemption protects trade secrets and commercial or financial information obtained from a person which is privileged or confidential. This exemption is intended to protect both the interests of commercial entities that submit proprietary information to the Tribe and the interests of the Tribe in receiving continued access to such data. If information is generally available to the public or would be made available if requested from the submitter, then exemption 4 protection has been waived. Examples include, but are not limited to:

a. Commercial or financial information received in confidence in connection with bids, contracts, or proposals;

b. Assets, income, profits, losses, and expenditures;

c. Names of consultants, subcontractors, and suppliers;

d. Performance, cost and equipment information;

e. Labor costs, profit margins, and competitive vulnerability;

f. Technical proposals in whole or in part;

g. Resumes and other employee related information;

h. Approach and methodology for accomplishing work set forth in the solicitation;

i. Personal statements given in the course of an inspection, audit, or investigation when such statements are received in confidence;

j. Mineral(s) information, including production data and royalty statistics;

k. Geophysical information--location of oil and gas wells, drilling plans, exploration data, geologic reports, maps, etc.

5. Exemption 5--FOIA allows protection of those inter-and intra-agency memoranda and/or letters which would not be available by law to a party in litigation with the agency (i.e. those records which would not be made available routinely through the discovery process--the means by which the parties involved in a lawsuit exchange information prior to a hearing or trial).

This exemption applies to inter-and/or intra-agency records that are transmitted within or among tribal components, or between or among federal agencies and the tribe.

In some circumstances, it may also apply to documents generated or transmitted outside of an agency. It may include documents prepared by outside consultants at the request of an agency and recommendations or advice from federal agencies.

Four of the privileges commonly invoked under Exemption 5 are discussed below:

Deliberative process privilege: This privilege is designed to protect the quality of the agency's decision making process:

a. to encourage candid and frank discussion among agency officials;

b. to protect against premature disclosure of proposed policies before they are finally adopted;

c. to avoid public confusion that might be caused by disclosing reasons and rationales that were not ultimately the basis for an agency action.

In order to use this privilege, the material must be pre-decisional and part of the decision making process in that it includes opinions, recommendations, or deliberations on legal or policy matters. Generally, protected information is analytical and subjective rather than factual. In determining whether a document is pre-decisional, the following should be considered:

a. The document's language and its place in the decision making process. Predecisional, deliberative process documents are written prior to the agency's final decision and usually contain recommendations or opinions, or represent the agency's tentative position on an issue. They typically discuss the pros and cons of the adoption of one viewpoint over another.

b. The decision making authority of the person issuing the document.

c. The direction in which the document flows in the decision making chain. Documents written by a subordinate and transmitted to a superior are most likely to be pre-decisional as opposed to those written by a person who is in a position to make the final decision for the agency.

The deliberative process privilege generally may not be used to withhold purely factual material or the factual portions of deliberative documents. The factual portion must be released where it can be segregated from the remainder of the document. However, if the manner of selecting or presenting those facts would reveal the deliberative process or if the facts are inextricably intertwined with the decision making process, the facts may be withheld.

Drafts of documents are commonly exempt under the deliberative process privilege.

The deliberative process privilege may be used to protect a draft regardless of whether it differs from the final version providing the agency is able to show that it is part of the decision making process and describes the role that the document plays in that process. The only exception is if an agency cites a draft document as binding precedent, adopts it as working agency law, or incorporates it by reference in a final agency decision. If several recommendations are presented in a draft and only one is adopted, the others may be withheld under Exemption 5.

Final and post-decisional documents which discuss, analyze, or explain established policies and decisions may not be withheld under this privilege.

Attorney Work-Product Privilege: This privilege protects documents and other memoranda prepared by an agency attorney in anticipation of litigation, including administrative proceedings. It covers all documents prepared by an attorney or under his/her supervision, such as reports prepared by a consultant or a program employee. Litigation need not have started but it must be reasonably contemplated. The privilege still applies after a case has ended or even if it never was begun, as long as it was reasonably contemplated. Attorney work product documents may be withheld in their entirety.

Attorney-Client Privilege: This privilege applies to confidential communications between an attorney and his/her client, usually an agency employee, relating to a legal matter for which the client has sought professional advice. The privilege is designed to protect the client. Unlike the attorney work-product privilege, the use of the attorney-client privilege is not limited to instances where litigation is expected. However, the information shared between the attorney and client must be confidential. If it is shared with persons outside the attorney-client relationship, Exemption 5 may no longer be used to protect the information.

Government Commercial Information Privilege: This privilege is available to the agency for information that it generates in the course of its business dealings, such as the process leading up to the award of a contract, or for appraisal information associated with the acquisition of real property. The premise is that premature release of such information would put the agency at a competitive disadvantage. However, once the contract is let, property acquired, or the offer withdrawn, the privilege expires. Examples of materials covered include, but are not limited to:

a. Advisory opinions, recommendations, and deliberations which are part of the decision making process;

b. Draft documents regardless of whether they differ from the final version;

c. Information of a speculative, tentative or evaluative nature on such matters as proposed plans to procure, lease or otherwise acquire and dispose of materials, real estate, facilities, or functions, when such information would provide undue or unfair competitive advantage to a private entity in its dealings with the agency, or would impede the activity of the agency;

d. Ratings given to job applicants by panel members and the names of panel members;

e. Financial formulas used to determine the financial capability of a contractor;

f. Appraisals generated by the agency or on its behalf;

g. Advisory material in documents prepared on behalf of the agency by consultants;

h. Cost estimates, technical ratings and evaluations, and recommendations for award prepared by the agency;

i. Preaward and market surveys;

j. Facts divulged by a client to his/her attorney in confidence and opinions given by an attorney to his/her client based on those facts;

k. Information gathered by agency investigators under the direction of agency attorneys (work-product);

l. Memoranda that advise an agency of the types of legal challenges it may face in light of a proposed program, potential defenses available to the agency and the likely outcome;

m. Documents related to the possible settlement of litigation;

n. The non-factual portions of predecisional staff papers, containing staff evaluations, advice, opinions, or suggestions;

o. Recommendations contained in official reports of inspection, audits, investigations, or surveys pertaining to safety, security, or the internal management, administration, or operation of the agency;

p. Others similar in nature.

6. Exemption 6--This exemption permits the withholding of information about individuals in personnel, medical, and similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.

To warrant protection, the information must fall within the category of personnel, medical and similar files. The term “similar files” applies to any file or document which pertains to a specifically identifiable person and contains information that is personal. To qualify, the information must involve privacy interest of an identifiable, living person. An agency should not disclose information to the spouse or relative of the subject individual that would not normally be disclosed to any member of the general public.

The most common practice is to obtain written permission from the subject individual prior to release of any such personal information.

Information may be released concerning such matters if all personal identifying information has been deleted. Examples of such information which must be deleted include, but is not limited to:

a. Personal identifying information such as name, social security number, military service number, home address and telephone number, age, place and date of birth, marital status, an individual's party or union affiliation, educational background, and work experience, details of health and insurance benefits, allegations of misconduct or arrests, and information concerning or provided by relatives and references;

b. Payroll information such as number of deductions and the amounts, fringe benefit payments, number of withholding exemptions and net wages, hours worked, and rate of pay per hour;

c. The following types of personnel-related information:

i. Performance appraisals

ii. Supervisory evaluations of a candidate for a particular position

iii. Identities and qualifications of unsuccessful job applicants

iv. The knowledge, skills, abilities and personal characteristics of unsuccessful applicants

v. Reasons for job termination

vi. Results of a complaint by an employee against his/her supervisor

vii. Letters of reprimand and suspension notices

d. Mailing lists that contain personal information where the release would not shed light on the operations or activities of the agency.

e. Records of an employee's medical condition, history, and health test results.

7. Exemption 7--This protects records or information compiled for law enforcement purposes, but only to the extent that the production of such records or information could or would:

a. Reasonably be expected to interfere with enforcement proceedings;

b. Deprive any person of a right to a fair or an impartial adjudication;

c. Could reasonably be expected to constitute an invasion of personal privacy;

d. Could reasonably be expected to disclose the identity of a confidential source;

e. Would disclose guidelines, techniques, and procedures for law enforcement investigations or prosecutions which might be expected to risk circumvention of law;

f. Could reasonably be expected to endanger the life or safety of any individual.

8. Exemption 8--This covers 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. It generally does not apply to records in the Tribe's possession.

9. Exemption 9--This exemption applies to geological and geophysical information and data (including maps) concerning wells. Exemption 9 has been invoked to withhold well logs and maps, seismic reports, and other exploratory findings of oil companies.


Requesters shall have the right to file a written appeal with the Tribe when:

a. Records have been withheld either partially or entirely;

b. A request has been denied because the records cannot be located; or

c. A decision on a request has not been communicated to the requester within the prescribed time limits.


The Secretary of the Tribe will notify the Executive Committee of the Tribe and the Tribal Attorney General immediately upon receipt of a FOIA appeal. Officials who have made decisions on FOIA request denials may be asked to provide pertinent information to either or both of these offices to ensure that appropriate information is made available to them.

Final decisions on appeals are made for the Tribe by the Executive Committee, in session, with guidance provided by the Tribal Attorney General.

Absentee Shawnee Freedom of Information Act Handbook FOIA Hndbk, AST APP FOIA Hndbk FOIA Hndbk