2000 Calendar Year Report on Department of Justice Freedom of Information Act Litigation Activities: Compliance Report


DESCRIPTION OF DEPARTMENT OF JUSTICE

EFFORTS TO ENCOURAGE AGENCY

COMPLIANCE WITH THE ACT

During 2000, the Department of Justice, primarily through its

Office of Information and Privacy (OIP), engaged in numerous

activities in discharging the Department's responsibility to

encourage agency compliance with the Freedom of Information Act

(FOIA). A summary description of these activities, which is

required by 5 U.S.C. § 552(e)(5) (1994 & Supp. IV 1998), as amended

by Electronic Freedom of Information Act Amendments of 1996, Pub.

L. No. 104-231, 110 Stat. 3048, is set forth below.

(a) Counseling and Consultations

One of the primary means by which the Justice Department

encouraged agency compliance with the FOIA during 2000 was through

OIP's counseling activities, which were conducted largely over the

telephone by experienced OIP attorneys known to FOIA personnel

throughout the executive branch as "FOIA Counselors." Through this

FOIA Counselor service, OIP provided information, advice, and

policy guidance to FOIA personnel at all federal agencies, as well

as to other persons with questions regarding the proper interpretation or implementation of the Act. OIP has established a special

telephone line to facilitate its FOIA Counselor service -- (202)

514-3642 (514-FOIA) -- which it publicizes widely. (OIP also receives telefaxed FOIA Counselor inquiries, at (202) 514-1009, and

it maintains a Telecommunications Device for the Deaf (TDD) telephone line -- (202) 616-5498 -- which gives it the capability of

receiving TDD calls from speech- or hearing-impaired persons.)

While most of this counseling was conducted by telephone, other

options were made available as well. The counseling services provided by OIP during 2000 consisted of the following:

(1) OIP continued to provide basic FOIA Counselor guidance on

a broad range of FOIA-related topics. Most of the FOIA Counselor

calls received by OIP involve issues raised in connection with

proposed agency responses to initial FOIA requests or administrative appeals, but many are more general anticipatory inquiries

regarding agency responsibilities and administrative practices

under the Act. (The Justice Department specifies that all agencies

intending to deny FOIA requests raising novel issues should consult

with OIP to the extent practicable -- see 28 C.F.R. § 0.23a(b)

(2000) -- and it has been found that such consultations are very

valuable in encouraging agency compliance with the Act.) More than

2500 requests for assistance were received by OIP and handled in

this way during 2000, a continued large volume of such inquiries in

comparison to those received in earlier years.

(2) Frequently, a FOIA Counselor inquiry is of such complexity or arises at such a level that it warrants the direct

involvement of OIP's supervisory personnel, often one or both of

its co-directors or its deputy director. Approximately 250 inquiries of this nature were handled in 2000.

(3) Sometimes a determination is made that a FOIA Counselor

inquiry requires more extensive discussion and analysis by OIP

attorneys, including supervisory attorneys, on the basis of the

information provided by the agency. Such a consultation involves a

meeting or telephone conference call between agency representatives

and OIP attorneys at which all factual, legal, and policy issues

related to the matter are thoroughly discussed and resolved. There

were 49 such formal consultations in 2000, including eleven with

the general counsel or deputy general counsel of the agency

involved. In addition, OIP provided consultation assistance to an

Office of Independent Counsel and an Office of Special Counsel

during the year.

(4) An additional counseling service provided by OIP involves

FOIA matters in litigation, where advice and guidance are provided

at the request of, and in close coordination with, the Justice

Department's litigating divisions. This service involves OIP

reviewing issues and proposed litigation positions in a case from

both legal and policy standpoints, and then recommending positions

that promote uniform agency compliance with the Act. In some such

instances, OIP is asked to consult on litigation strategy and in

the drafting of briefs or petitions to be filed in district court

or a court of appeals. OIP is consulted in all instances in which

the Justice Department must decide whether to pursue a FOIA issue

on appeal. OIP also is regularly consulted in all FOIA matters

that are handled by the Office of the Solicitor General before the

United States Supreme Court. Most often, these litigation

consultations are provided by one or both of OIP's co-directors.

There were approximately 125 such litigation consultations in 2000,

including 31 involving recommendations as to the advisability of

initial or further appellate court review and five involving the

question of whether to seek or oppose certiorari in the Supreme

Court. On one certiorari question, in which the Solicitor General

ultimately decided to authorize the filing of a certiorari

petition, OIP provided an extensive recommendation memorandum that

was relied upon heavily by the Office of the Solicitor General in

seeking Supreme Court review.

(b) FOIA Update/FOIA Post

During 2000, the Justice Department undertook a transition

from its FOIA Update newsletter to a more high-tech and cost-efficient counterpart named FOIA Post. The Justice Department's

FOIA Update newsletter was published from 1979 to 2000, in a paper

format that became increasingly antiquated with the passage of

time. So in 2000, the Department developed FOIA Post, a new means

of disseminating Freedom of Information Act-related information to

federal agencies that has now been established on the Department's

FOIA Web site.

As of 2001, FOIA Post will serve as a primary means of FOIA

policy dissemination and as an efficient vehicle for communicating

FOIA-related information to agency FOIA personnel and others who

are interested in the Act's administration. It will include the

same types of FOIA guidance and information features that were

disseminated in paper form through FOIA Update, but it will do so

in a more efficient electronic form that also can make effective

use of electronic "links" to referenced documents and other sources

of information in a Web-based format.

This natural evolution to Web-based governmentwide information

dissemination for the FOIA not only takes advantage of the cost-efficiencies of electronic communication, it also is in keeping

with the Act's growing emphasis on the disclosure of agency

information to the public electronically, through use of the

Internet and the World Wide Web, under the provisions of the

Electronic FOIA amendments. Just as individual agency FOIA Web

sites have become a vital means by which the FOIA is administered

at all federal agencies, agencies can now look to the Justice

Department's FOIA Web site for the most recent postings of information regarding matters of governmentwide FOIA administration.

The Department recommends that this part of its FOIA Web site

(www.usdoj.gov/oip/foiapost/mainpage.htm) be electronically "bookmarked" by all agency FOIA personnel and others interested in the

Act for this purpose.

All issues of FOIA Update for the years 1979-2000 have now

been placed on the Department of Justice's FOIA Web site, where

they are available electronically -- and are "keyword searchable" -- for ready reference purposes. Additionally, guidance items from

FOIA Update (and now from FOIA Post) are used in all Justice

Department FOIA-training programs and are made available for such

programs offered by the Graduate School of the United States

Department of Agriculture (including those formerly conducted by

the Office of Personnel Management) and by the American Society of

Access Professionals nationwide.

Published in FOIA Update during 2000 were eight discussions of

new FOIA decisions handed down by district courts and courts of

appeals, together with a more extensive discussion of the decision

by the United States Supreme Court in United States v. Weatherhead,

528 U.S. 1042 (1999), to vacate and thus nullify a lower court

decision that had ordered the Department of State to disclose

information that had been classified on national security grounds.

OIP also compiled an updated list of the principal FOIA administrative and legal contacts at all federal agencies for the use

and reference of FOIA personnel governmentwide, which was both

published in FOIA Update and made available electronically through

the Justice Department's FOIA site on the World Wide Web. Through

FOIA Update, OIP also provided announcements of Freedom of

Information Act and Privacy Act training opportunities scheduled

nationwide during the year. In future years, both of these

reference items will continue to be disseminated through FOIA Post.

(c) Additional FOIA Reference Materials

In 2000, OIP completed a major updating of its principal FOIA

reference volume -- which primarily contains the "Justice

Department Guide to the Freedom of Information Act," an extensive

discussion of the FOIA's many exemptions and procedural aspects.

Entitled the Freedom of Information Act Guide & Privacy Act Overview, this reference volume also contains an overview discussion of

the provisions of the Privacy Act of 1974 prepared by OIP in

coordination with the Office of Management and Budget, as well as

the texts of both access statutes.

The "Justice Department Guide to the Freedom of Information

Act" was updated and expanded to more than 650 pages in length in

2000, in an improved font style, and it made comprehensive use of

electronic citations (i.e., WESTLAW and LEXIS) wherever possible,

in lieu of citations to slip opinions, for more convenient reference purposes. For this revised edition of the "FOIA Guide," OIP

entirely restructured and subdivided its "Procedural Requirements"

Section, in accordance with expanded legal requirements under the

Act, and it also added new subsections to two sections of the "FOIA

Guide" in order to more comprehensively address the Act's "reasonably segregable" requirements in accordance with developing case

law.

OIP distributed courtesy copies of the 2000 Freedom of Information Act Guide & Privacy Act Overview to each federal agency, to

various congressional offices, and to other interested parties.

OIP also facilitated its wide distribution within the executive

branch at a low per-copy cost and made it available without cost

through the Justice Department's FOIA-training programs. Additional copies of the Guide & Overview were made available to agencies and to the public through the Government Printing Office at a

cost of $48 per copy. OIP also placed the major component parts of

the Guide & Overview on the Justice Department's FOIA Web site

(where they can be accessed at www.usdoj.gov/oip/04_7.html) to

afford electronic access to them as well.

Also made available on the Department's FOIA Web site during

2000 was the "Department of Justice Freedom of Information Act Reference Guide," which was developed in accordance with the Electronic FOIA amendments and is a model for the counterpart reference

guides that are prepared by other federal agencies. This reference

tool for potential FOIA requesters describes the procedural aspects

of making a FOIA request, specifies the different types of records

that are maintained by the Justice Department's many components,

and describes the types of records and information that are available to the public from the Department without the necessity of

making a FOIA request. It consists of fourteen pages, plus

detailed attachments, and it contains much information appropriate

for use by all other federal agencies in their FOIA reference

guides. This electronically available publication was supplemented

in 2000 with additional information regarding the Justice Department's "major information systems," in accordance with a provision

of the Electronic FOIA amendments, 5 U.S.C. § 552(g)(1).

In accordance with another provision of the Electronic FOIA

amendments, 5 U.S.C. § 552(e)(3), the Justice Department in 2000

maintained "a single electronic access point" for the consolidated

availability of the annual FOIA reports of all federal agencies.

In furtherance of this, OIP receives copies of each agency's annual

FOIA report each year and makes these reports promptly available at

its centralized electronic site. These annual reports, beginning

with those for fiscal year 1998, can be readily accessed by the

public on the Department's FOIA Web site at

www.usdoj.gov/oip/04_6.html. Additionally, in 2000 OIP initiated a process of reviewing all agencies' annual reports as they

are sent to it for this purpose, and then contacting individual

agencies to discuss and resolve any identified question or

discrepancy with them. OIP plans to continue to do this in future

years, within an even broader framework of scrutiny.

In 2000, OIP also worked together with the General Services

Administration (GSA) and the Office of Management and Budget to

publish an updated edition of a publication entitled "Your Right to

Federal Records," the federal government's basic public information

brochure on access to agency information. This joint publication

of the Justice Department and the General Services Administration,

which is made available to the general public in brochure form

through GSA's Consumer Information Center, is designed to answer

the basic questions of any person who is interested in exercising

his or her statutory rights under the FOIA and/or the Privacy Act

of 1974 to seek access to records maintained by any federal agency.

Over the years, it consistently has been one of the Consumer Information Center's most heavily requested brochures, and it also is

made available to the public electronically through the Justice

Department's FOIA Web site (where it can be accessed at

www.usdoj.gov/oip/04_7.html).

(d) Training

During 2000, OIP furnished speakers and workshop instructors

for a variety of seminars, conferences, individual agency training

sessions, and similar programs designed to improve the understanding and administration of the FOIA. Sixteen professional staff

members of OIP gave a total of 102 training presentations during

the year, including several training sessions that were designed to

meet the specific FOIA-training needs of individual federal agencies. Such individualized training sessions were conducted for

NASA, the Library of Congress, the Securities and Exchange

Commission, the Agency for International Development, the Defense

Nuclear Facilities Safety Board, and the new Court Services and

Offender Supervision Agency; for the Departments of Transportation,

Health and Human Services, Energy, and the Navy; and for several

individual components of the Department of Justice, including the

Federal Bureau of Investigation. OIP also conducted a special

session on Exemption 4 of the FOIA and "reverse FOIA" cases for the

agencies that regularly deal with procurement-related FOIA issues,

including several sub-agencies of the Department of Defense. OIP

training presentations also were made at the National Freedom of

Information Coalition's Annual Convention, at a forum sponsored by

the Business Information Subcommittee of the American Bar

Association, and at the Graduate School of the United States

Department of Agriculture.

Additionally, the co-directors of OIP gave a total of 80 presentations at various FOIA-training programs, including those held

by the American Society of Access Professionals, the Army Judge

Advocate General's School, the Federal Dispute Resolution

Conference, Inc., the Public Administration Forum, and the American

Library Association. Both co-directors also participated in a

videoconference conducted with several Members of the European

Parliament, together with the Chairman of the House Subcommittee on

Government Management, Information, and Technology, and one

appeared on "Ceska Televize" (Czech Television) in connection with

the implementation of the Czech counterpart to the Freedom of

Information Act.

In conjunction with the Justice Department's National Advocacy

Center, OIP conducted a wide range of FOIA-training programs in

2000, ranging from half-day introductory sessions for non-FOIA personnel to advanced programs for highly experienced FOIA personnel.

OIP's basic two-day training course, entitled "The Freedom of

Information Act for Attorneys and Access Professionals," was

conducted several times during 2000 in Columbia, South Carolina,

which is now the base location of the National Advocacy Center.

During 2000, OIP worked with the National Advocacy Center to expand

both the size and the availability of its FOIA-training programs,

including through the presentation of OIP's basic FOIA-training

course once during the year in Washington, D.C.

OIP also conducted two sessions in 2000 of its "Freedom of

Information Act Administrative Forum," a training program devoted

almost entirely to administrative matters arising under the Act --

such matters as record-retrieval practices, multi-track queue

usage, backlog management, affirmative disclosure, and automated

record processing. Designed to serve also as a regular forum for

the governmentwide exchange of ideas and information on matters of

FOIA administration, this training program brings veteran FOIA

processors from throughout the government together and encourages

them to share their experience in administering the Act on a day-to-day basis. Also conducted twice in 2000 was OIP's "Advanced

Freedom of Information Act Seminar," which featured presentations

by the Chief Counselor for Privacy in the Executive Office of the

President on the topic of "Federal Privacy Issues," and by the FOIA

Coordinator for the National Security Archive, who presented a view

of the administration of the FOIA from the perspective of a FOIA

requester.

In addition to its regular range of FOIA-training programs

that are offered in conjunction with the Justice Department's

National Advocacy Center, OIP also conducted a training seminar in

2000 that is designed for the access professional or agency official who needs only a periodic update on current FOIA case law

and policy developments. Entitled the "FOIA Guide Seminar," it was

conducted by OIP immediately after completion of the 2000 edition

of the "Justice Department Guide to the FOIA," a special prepublication copy of which was provided to all participants. This

program efficiently helps meet the consistently high demand for

FOIA training in the Washington, D.C. area. In 2000, OIP made

arrangements to conduct this program in the main auditorium of the

Ronald Reagan International Trade Center Building, where more than

500 FOIA personnel, representing nearly all federal agencies, were

able to attend.

(e) Briefings

OIP conducted a number of general or specific FOIA briefings

during 2000 for persons interested in the operation of the Act,

such as representatives of foreign governments concerned with the

implementation or potential adoption of their own government information access laws. It provided briefings and FOIA materials to

representatives of Japan, Great Britain, The Netherlands, Guatemala, Russia, China, Kyrgyzstan, and the Republic of Georgia. It

also provided such briefings to several Members of the Nigerian

National Assembly, to several Members of the Slovakian Parliament,

and to the Deputy of the Parliament of the Republic of Moldova.

Additionally, in 2000 OIP provided extensive assistance to the

District of Columbia Government in connection with the D.C.

Council's consideration of both legislative and administrative

reform of the operation of its counterpart to the Freedom of Information Act. OIP provided advice to several representatives of the

District of Columbia Government, in separate meetings with D.C.

Council staff, with supervisory staff from the D.C. Corporation

Counsel's Office, and with the Chief of Staff to the Mayor.

Similarly, OIP met with and provided advice to several visitors

from Canada, including the Chairman of the Canadian Access to

Information and Review Task Force, regarding the proposed reform of

Canada's access laws.

(f) Congressional and Public Inquiries

In 2000, OIP responded to 30 congressional inquiries pertaining to FOIA-related matters and, in its "FOIA Ombudsman" capacity,

(see FOIA Update, Vol. XIV, No. 3, at 8), it responded to twelve

complaints received directly from members of the public who were

concerned that an agency had failed to comply with the requirements

of the Act. In all such instances involving a concern of agency

noncompliance, the matter was discussed with the agency and,

wherever appropriate, a recommendation was made regarding the steps

needed to be taken by the agency in order to bring it into proper

compliance. Additionally, OIP responded to 302 written inquiries

from members of the public seeking information regarding the basic

operation of the Act or related matters, as well as to innumerable

such inquiries received by telephone.

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