2006 Compliance Report

Description Of Department of Justice Efforts To Encourage Agency Compliance With The Act

 

During 2006, the Department of Justice, through its Office of Information and Privacy (OIP), engaged in a wide range of activities to meet the Department's responsibility to encourage agency compliance with the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2000 & Supp. IV 2004), throughout the Executive Branch. Most notably, during 2006, OIP was heavily engaged in assisting agencies in meeting their obligations under the multiple new requirements imposed on them as a result of the President's issuance of Executive Order 13,392, entitled "Improving Agency Disclosure of Information." A summary description of OIP's compliance activities, which is required by subsection (e)(5) of the FOIA, 5 U.S.C. § 552(e)(5), is set forth below.

(a) Counseling and Consultations

One of the primary means by which the Department of Justice encouraged agency compliance with the FOIA during 2006 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 governmentwide, 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. (This service and phone number are publicized also by some nongovernment organizations, such as the First Amendment Center of the Freedom Forum.) While most of this counseling was conducted by telephone, other options were made available as well. In summary, the counseling services provided by OIP during the year consisted of the following:

(1) OIP provided basic FOIA Counselor guidance to agencies on a broad range of FOIA-related subjects, including issues pertaining to implementation of Executive Order 13,392. Most of the FOIA Counselor calls received by OIP involve issues that are 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 Department of Justice 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)(2006) -- and it has been found that such consultations are very valuable in ensuring agency compliance with the Act.) More than 3300 requests for assistance were received by OIP and handled in this way during 2006, the largest volume of such inquiries ever received.

(2) Sometimes a determination is made that a FOIA Counselor inquiry requires more extensive discussion and analysis by OIP attorneys, including supervisory attorneys. On such occasions OIP convenes a meeting or teleconference between agency representatives and senior OIP attorneys at which all factual, legal, and policy issues related to the matter presented are thoroughly discussed and resolved. In 2006, OIP was involved in a number of such teleconferences and meetings with, for example, the Department of Homeland Security, the Office of the Director of National Intelligence, the Department of Justice's Chief Office of Privacy and Civil Libertiesr, the Assistant General Counsel of the National Aeronautics and Space Administration, the General Services Administration, the Department of Defense, the Federal Emergency Management Agency, the Nuclear Regulatory Commission, and the Office of General Counsel for the Office of Justice Programs.

(3) An additional counseling service provided by OIP pertains to FOIA matters in litigation, where advice and guidance are provided at the request of the Department of Justice's litigating divisions. This service involves OIP reviewing issues and proposed litigation positions in a case from both legal and policy standpoints. In many such instances, OIP is asked to consult on litigation strategy and in the drafting of briefs or petitions to be filed at the district court or appellate court levels. Further, OIP is consulted in all instances in which the Department of Justice must decide whether to pursue a FOIA or FOIA-related issue on appeal. OIP also is regularly consulted in all FOIA cases, and regarding all FOIA-related issues, that are handled by the Office of the Solicitor General.

(b) Policy Guidance

During 2006, the Department of Justice issued comprehensive guidance to federal agencies addressing a wide range of issues related to Executive Order 13,392. The guidance was given verbally in several forums, including large agencywide conferences, small working group sessions, and individualized one-on-one consultations with agency personnel. OIP also issued extensive written guidance on the Executive Order. As to the written guidance, the Department used its FOIA Post online publication as its means of disseminating the guidance which addressed four major policy areas pertaining to Executive Order 13,392.

First, the guidance addressed the requirement imposed by the Executive Order that each agency conduct a review of its FOIA operations and compile a FOIA Improvement Plan. To assist agencies in their reviews and in the formulation of their FOIA Improvement Plans, OIP identified and discussed twenty-seven distinct areas of FOIA administration that agencies could consider for improvement. Examples of possible improvement areas were FOIA Web sites, automated tracking capabilities, backlog reduction, politeness and courtesy, training, and staffing.

In Part II of the guidance OIP provided a template for all agencies to use in preparing their FOIA Improvement Plans. The standard template promoted uniformity, clarity, and consistency in the plans, allowing ready comparison from one agency's plan to the next.

In Part III of the guidance, OIP provided supplemental guidelines for all agencies to follow in preparing their Fiscal Year 2006 and Fiscal Year 2007 FOIA annual reports. Under Executive Order 13,392, agencies are required to report their progress in implementing their FOIA Improvement Plans in their annual FOIA reports. OIP issued guidelines on how that was to be done. Specifically, OIP directed agencies to create a new Section XII in their annual FOIA reports that discussed both the progress that agencies had made, as well as any deficiencies they had encountered, in implementing their FOIA Improvement Plans. OIP established a template to be used for this new Section XII, so again a ready comparison could be made between agencies.

Lastly, Part IV of the guidance covered a broad range of questions and guidance points that pertained to the Executive Order's implementation. For example, these points included a discussion of the time limits for agency implementation activities, the consequences of failing to meet a plan milestone or goal, the types of activities that should be included in a FOIA Improvement Plan, and the mechanics of designating FOIA Requester Service Centers and FOIA Public Liaisons. This guidance is available at http://www.usdoj.gov/oip/foiapost/2006foiapost6.htm

After agencies had completed their FOIA Improvement Plans, they were compiled and posted by OIP at a single location on its FOIA Web site. The FOIA Improvement Plans are available at http://www.usdoj.gov/oip/agency_improvement.html

(c) FOIA Post

In 2006, the Department of Justice completed its sixth year of publishing FOIA Post, its more high-tech and cost-efficient replacement for its longtime FOIA Update newsletter that now can make effective use of electronic links to referenced documents and other sources of information in a Web-based format. FOIA Post is in keeping with the Act's growing emphasis on the disclosure of agency information to the public, in a user-friendly format, through use of the World Wide Web, under the provisions of the Electronic Freedom of Information Act Amendments of 1996.

During 2006, OIP disseminated a variety of different items for the assistance of federal agencies through FOIA Post. In addition to the substantive and procedural policy guidance concerning Executive Order 13,392 discussed above, OIP used this electronic publication portal to provide governmentwide notification of FOIA training opportunities and to announce the completion of agency FOIA Improvement Plans under Executive Order 13,392.

Lastly, during 2006, OIP continued its use of a FOIA Post feature through which it disseminated descriptions of Freedom of Information Act and Privacy Act-related positions that are available at federal agencies. A total of fourteen such FOIA-related employment openings were publicized through seven such postings during the year.

(d) Additional FOIA Reference Materials

In 2006, in connection with its primary role of assisting agencies with the implementation of Executive Order 13,392, OIP established two designated electronic links connected with agency-wide Executive Order activities. First, OIP compiled a list of the designated Chief FOIA Officers for each agency and posted the name and title of each Chief FOIA Officer at an easily accessible link on the Department of Justice's FOIA Web site. Second, as mentioned above, once agencies completed their FOIA Improvement Plans under the Executive Order, OIP likewise compiled them and made them available at a designated link on the Department's FOIA Web site. Each agency is listed alphabetically and by simply clicking on the name of the agency any interested person can go immediately to that agency's FOIA Improvement Plan.

Moreover, OIP posted a copy of the "Attorney General's Report to the President Pursuant to Executive Order 13,392, Entitled 'Improving Agency Disclosure of Information.'" This report on agency FOIA implementation was prepared pursuant to the requirements of the Executive Order. It contains an extensive discussion of agencies' FOIA Improvement Plans, as well as recommendations for further action.

Additionally, in 2006, OIP 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 Department of Justice and GSA, which is made available to the general public in brochure form through GSA's Federal Citizen 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 Federal Citizen Information Center's most heavily requested brochures, and it also is made available to the public electronically through the Department's FOIA Web site.

In 2006, OIP also updated the "Department of Justice Freedom of Information Act Reference Guide" and made it available on the Department's FOIA Web site. The 2006 version of the FOIA Reference Guide incorporates the provisions of Executive Order 13,392. This guide was developed in accordance with the Electronic FOIA Amendments of 1996 and is a model for the counterpart reference guides that are maintained 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 Department of Justice'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 contains much information that is readily adaptable for use by all other federal agencies in their own FOIA reference guides. Beyond its use by the Justice Department, other agencies, and the FOIA-requester community, this guide has been used by several other nations of the world in their work on the implementation of their own Freedom of Information Act-like laws.

In accordance with another provision of the Electronic FOIA Amendments, 5 U.S.C. § 552(e)(3), the Justice Department in 2006 maintained "a single electronic access point" for the consolidated availability of the annual FOIA reports of all federal agencies. As part of its governmentwide guidance responsibilities, OIP receives a copy of each agency's annual FOIA report, reviews it for correctness and completeness, and then makes all such reports promptly available at its central electronic site. These annual FOIA reports, beginning with those for Fiscal Year 1998, are organized by the Justice Department and made readily accessible to the public on the Department's FOIA Web site. Based upon close coordination with the Government Accountability Office (GAO), OIP in 2006 continued its enhanced practice of reviewing all agencies' annual reports as they are sent to it for this electronic availability purpose, and then contacting individual agencies to discuss and resolve any identified question or discrepancy with them. It did so in accordance with a 2002 GAO report entitled "Update on the Implementation of the 1996 Electronic Freedom of Information Act Amendments," which encouraged such discretionary OIP review activities and found that they "have resulted in improvements to both the quality of agencies' annual reports and on-line availability of information." Id. at 62. A follow-up GAO study published in 2004 likewise found improvements in agencies' annual reporting due to OIP's governmentwide review efforts. See "Update on Freedom of Information Act Implementation Status" (Feb. 2004), at 3.

For additional reference purposes, during 2006, all issues of FOIA Update for the years 1979-2000 were made available on the Justice Department's FOIA Web site, where they are fully accessible electronically -- and keyword searchable -- as an aid to research. Additionally, guidance items from FOIA Update (and now also from FOIA Post) were used in all Justice Department FOIA-training programs and were made available in paper form to students through such programs offered by the Graduate School of the United States Department of Agriculture (USDA) and by the American Society of Access Professionals nationwide. Similarly, OIP made copies of the Freedom of Information Act Guide & Privacy Act Overview available to governmentwide training participants through the Justice Department's FOIA-training programs, as well as to all representatives of foreign nations and other visitors who receive briefings at OIP's offices.

OIP has also placed the basic contents of its largest FOIA training manual, which it uses in its training program entitled "The Freedom of Information Act and Privacy Act for Attorneys and Access Professionals," into a special compilation that can be viewed and downloaded in electronic form. This enables all FOIA personnel governmentwide to benefit from these training and guidance materials on a regular basis and allows users of the Justice Department's FOIA Web site to conduct research on FOIA issues in a highly efficient fashion.

Lastly, in 2006 OIP began working on the next revision of its major reference volume, entitled the Freedom of Information Act Guide, which contains an extensive discussion of all aspects of the FOIA. (The newly updated March 2007 edition of the FOIA Guide is now complete. It is currently at the printer and is being coded for electronic posting.)

(e) Training, Public Presentations, and Briefings

During 2006, OIP furnished speakers and workshop instructors for a variety of seminars, conferences, individual agency training sessions, and similar programs conducted to promote the proper administration of the FOIA within the Executive Branch. OIP also made presentations designed to foster a greater understanding of the Act's administration outside the Executive Branch, including internationally.

In conjunction with the Justice Department's National Advocacy Center, OIP conducted a wide range of FOIA-training programs in 2006, 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 during 2006 in Columbia, South Carolina (the base location of the National Advocacy Center), in Washington, D.C., and in Phoenix, Arizona. During 2006, OIP continued to make adjustments to this program based upon changing circumstances; in addition to scheduling more such programs in other locations, OIP adjusted this program's workshop schedules to accommodate more participants as well as to address Executive Order 13,392.

OIP also conducted a session in 2006 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 forum for the governmentwide exchange of ideas and information on all matters of FOIA administration, this program regularly brings together veteran FOIA processors from throughout the government and encourages them to share their experience in administering the Act on a daily basis. Also conducted in 2006 was OIP's "Advanced Freedom of Information Act Seminar," which provides advanced instruction on selected substantive and procedural topics under the FOIA, including up-to-date policy guidance. This seminar includes sessions on such topics as recent FOIA decisions, selected procedural issues, FOIA from the nongovernment perspective, administrative and litigation considerations, and current policy issues.

Twenty-two professional staff members from OIP gave a total of 169 training presentations during the year, including several training sessions designed to meet the specific FOIA-training needs of individual agencies. Such individualized training sessions were conducted for the Department of the Navy; for the National Oceanic and Atmospheric Administration; for the Small Business Administration; for the Department of Agriculture; and for a component of the Department of Justice. One such specialized FOIA training, the session at the Small Business Administration, was done to fulfill a specific goal made by that agency in its FOIA Improvement Plan developed under Executive Order 13,392, which specified that OIP provide a special training session to its senior personnel.

OIP training presentations also were made at the American Society for Access Professionals, at the Governmental Intellectual Property Law Association, at the American Bar Association, and for the Annual Freedom of Information Day Celebration at the Freedom Forum. In addition to its regular range of FOIA-training programs offered in conjunction with the Department of Justice's Office of Legal Education, OIP also conducted its training entitled "Freedom of Information Act Guide Seminar." This seminar is designed for access professionals and agency officials who need periodic updates on current FOIA case law and policy developments. This seminar was attended by more than 400 access professionals, representing nearly all federal agencies.

Furthermore, during 2006, the then-Director of OIP gave a total of forty presentations at a variety of FOIA-training programs and other forums. He was also the keynote speaker at the FOI Live 2006 Conference sponsored by the British Government's Department of Constitutional Affairs in London, England, and participated in the Fourth International FOIA Commissioner's Conference in Manchester, England. OIP's then-Deputy Director was a guest speaker at the Annual Access to Information and Privacy Seminar sponsored by the Department of Justice of Canada in Ottawa, Canada. She also participated in a program held by the Organization of America States, entitled "Access to Information/What Can Other Countries Do."

OIP conducted a number of other general or specific FOIA briefings during 2006 for international audiences, including representatives of foreign governments concerned with the implementation or potential adoption of their own government information access laws. OIP provided briefings and FOIA materials to representatives of the U.S. Permanent Mission to the Organization of American States, to the Public Affairs Section of the American Embassy in Ukraine, as well as to representatives from Chile, Brazil, Mexico, China, and a delegation from Latin America.

Lastly, OIP held a FOIA Officers Conference for the principal FOIA officers of the Department of Justice on November 29, 2006, at which a variety of FOIA-related matters that are of particular significance to the Justice Department's forty components were reviewed and discussed. In particular, special emphasis was placed on the Department's ongoing implementation of Executive Order 13,392. OIP advised the representatives from the Department's components of the requirements imposed by the Executive Order for creation of the new Section XII of the Department's annual FOIA report. The FOIA officers were given concrete deadlines for submitting their new sections for the annual report, and OIP personnel discussed any questions that they had. By holding this FOIA Officers Conference, the Department continued to serve as a model in its ongoing efforts to encourage other federal agencies to conduct such agencywide gatherings and FOIA conferences on a regular basis.

(f) Interagency Coordination Activities

During 2006, OIP engaged in interagency coordination activities primarily centered around the implementation of Executive Order 13,392. Given its important role in assisting agencies in meeting the requirements of the Executive Order, OIP held a number of meetings and conferences emphasizing the importance of this Presidential initiative and providing detailed discussions of the Order's provisions and implementation requirements.

In early January 2006, soon after the issuance of Executive Order 13,392, the Department of Justice disseminated it throughout the Executive branch to the heads of all departments and agencies, as well as to all key FOIA personnel directly and provided preliminary guidance to agencies regarding it. The Department of Justice's guidance memorandum comprehensively discussed Executive Order 13,392's provisions, including its mandate that a Chief FOIA Officer be appointed at each agency by January 13, 2006.

To facilitate the review of FOIA operations mandated by the Executive Order, as well as the subsequent development of individual agency FOIA Improvement Plans, the Department of Justice and OMB conducted a conference for all Chief FOIA Officers and accompanying key FOIA personnel on March 8, 2006. The conference was keynoted by the Associate Attorney General, who is also the Chief FOIA Officer for the Department of Justice, and OMB's Deputy Director for Management. Their remarks were followed by detailed discussions of the Executive Order's provisions and implementation requirements to ensure that Chief FOIA officers would understand fully their responsibilities.

As mentioned above, in April 2006, OIP issued extensive written guidance to all agencies concerning a wide range of issues connected with the Executive Order. Then, as agencies advanced further in their ongoing reviews and planning, OIP conducted follow-up programs for all agencies, one each month until the June 14, 2006 deadline date for the submission of the agencies' FOIA Improvement Plans.

As the June 14, 2006 deadline approached, OIP worked closely with many individual agencies in order to facilitate their timely and comprehensive completion of their FOIA Improvement Plans. OIP designated a special two-person Executive Order implementation team that worked extensively with agency personnel to address all of their questions concerning the Executive Order's implementation.

Subsequently, on July 11, 2006, OIP conducted a special training conference for approximately 150 FOIA Public Liaisons in order to review and emphasize their responsibilities under the Executive Order. At this conference, OIP discussed the explicit roles of FOIA Public Liaisons under the Order, e.g., serving as supervisory officials in relation to agency FOIA Requester Service Centers, assisting in reducing delays, increasing transparency of the status of FOIA requests, and resolving disputes. In addition, OIP emphasized the important roles that FOIA Public Liaisons can perform in support of their agency's Chief FOIA Officer regarding improvement plan implementation and related activities. Special emphasis was placed upon the importance of current implementation efforts and the timely reporting by all agencies in accordance with the Order's February 1, 2007 reporting deadline for the fiscal year 2006 annual FOIA report.

After the Attorney General submitted his report to the President concerning agency implementation activities in the Fall of 2006, the Department convened a second Chief FOIA Officers Conference, which was held on November 9, 2006. This conference had been specifically recommended in the Attorney General's report. Once again, the Associate Attorney General was the keynote speaker; he emphasized the continuing importance of agency compliance with the Executive Order. Agencies were briefed on their upcoming obligations under the Order and given an opportunity to ask questions.

OIP continued to work with agencies as the year ended and as agency personnel increasingly focused on completing their first stage of FOIA Improvement Plan activities. OIP's Executive Order implementation team provided extensive assistance to agency personnel during this period.

During 2006, OIP also engaged in other interagency coordination activities in FOIA-related areas. As an outgrowth of the FOIA Officers Conference that OIP conducted on the subject of homeland security in 2003, and to serve the need for continuing governmentwide coordination in this area of importance, OIP formed an interagency working group on homeland security-related FOIA issues that was active during 2006. This FOIA Officers Homeland Security Information Group (FOHSIG) now is comprised of representatives of more than a dozen agencies who gather regularly at meetings hosted by OIP to exchange information and discuss upcoming matters pertaining to homeland security-related information policies and practices. The FOHSIG met three times during 2006 and continues to meet regularly.

Finally, another significant interagency coordination activity engaged in by OIP in 2006 was its review of proposed legislation and other matters pertaining to congressional activity. During the year, OIP conducted numerous reviews of draft or preliminary legislative proposals relating to either the FOIA or information policy more generally, making corrective recommendations in many instances, most frequently in connection with the technical sufficiency of proposed statutory nondisclosure provisions intended to serve as "Exemption 3 statutes" under the Act. It likewise identified such revisions made in proposed legislative testimony and other legislative submissions by agencies on FOIA-related issues as well.

(g) Congressional and Public Inquiries

In 2006, OIP responded to seven congressional inquiries pertaining to FOIA-related matters and, in its "FOIA Ombudsman" capacity, see FOIA Update, Vol. XIV, No. 3, at 8, it handled a dozen complaints received 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 fifty-two written inquiries from members of the public seeking information regarding the basic operation of the Act or related matters during the year. The number of written inquiries received during 2006 continued to be smaller than in previous years, largely due to the increased availability of information that is now accessible to the public through the Justice Department's user-friendly FOIA Web site.

 

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