2008 Compliance Report

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

 

During 2008, the Department of Justice, through its Office of Information Policy (OIP), engaged in a wide range of activities to meet the Department's responsibility to encourage agency compliance throughout the Executive Branch with the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2006), amended by OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524. On December 31, 2007, the "Openness Promotes Effectiveness in our National Government Act of 2007", or the "OPEN Government Act of 2007", Pub. L. No. 110-175, 121 Stat. 2524, which amended a number of the FOIA provisions, was signed into law by President Bush. As a result, during 2008, OIP provided comprehensive guidance and training to all agencies concerning the multiple new statutory requirements. During 2008, OIP also developed extensive new reporting requirements for agencies to use in compiling their Annual FOIA Reports. A summary description of OIP's FOIA compliance activities, which is required by subsection (e)(6) of the FOIA, 5 U.S.C. § 552(e)(6), is set forth below.

(a)  Policy Guidance

The primary means by which the Department of Justice encourages compliance with the FOIA is through the issuance of policy guidance. During 2008, the Department of Justice continued to provide comprehensive guidance to federal agencies addressing a wide range of issues related to the new FOIA Amendments and to Executive Order 13,392, entitled "Improving Agency Disclosure of Information." The policy guidance was provided in writing and made available to agencies and the public alike on FOIA Post, the Department's online FOIA publication. In addition, during 2008, OIP held multiple agency wide conferences to discuss the new FOIA amendments and related policy guidance.

As noted above, the new FOIA amendments were enacted on December 31, 2007, through the OPEN Government Act. In less than ten days, on January 9, 2008, OIP posted on FOIA Post an explanatory summary of the amendments. Then, on January 16, 2008, OIP held a governmentwide conference providing guidance on the FOIA amendments. At the conference the Director of OIP provided an overview and explanation of the new FOIA amendments to more than 500 FOIA professionals who were in attendance. The Director also provided a briefing on the FOIA amendments to the Council of Information Officers.

On May 22, 2008, OIP issued completely revised reporting requirements for agencies to use in preparing their Annual FOIA Reports. These new reporting requirements included both data elements required to be reported as a result of the OPEN Government Act, and data that OIP determined would be useful to have reported, such as data on the numbers of backlogged requests and appeals. The "2008 Guidelines for Agency Preparation of Annual FOIA Reports" were posted on FOIA Post. These guidelines explained the type of information to be included in the annual FOIA reports and provided directions on how to calculate the various figures within the reports. OIP's guidelines also provided an outline and a template for the agencies to use while completing their annual FOIA reports, so that they can easily be compared against each other. After issuance of the 2008 Guidelines for Annual FOIA Reports, OIP held a governmentwide conference on May 28, 2008, during which the Director of OIP discussed the new reporting requirements and answered questions.

Next, in September 2008, OIP issued written policy guidance on Section 9 of the OPEN Government Act concerning the treatment of agency records maintained for an agency by a government contractor for purposes of records management. This was followed in October 2008, by guidance on Section 12 of the OPEN Government Act concerning new requirements for segregating and marking documents for release. Both of these policies were posted on FOIA Post.

In November 2008, OIP issued its final series of policy guidance on the OPEN Government Act. In four separate articles posted on FOIA Post, OIP provided guidance to agencies on: 1) the assignment of tracking numbers for FOIA requests; 2) the new limitations on tolling the FOIA's response time; 3) the new limitations on assessing fees; and 4) the new requirement to route misdirected FOIA requests. Once again, following the issuance of its written policy guidance OIP held a governmentwide conference where the Director of OIP gave a presentation on the new requirements.

During 2008, OIP also issued guidance on the three recommendations made by the Attorney General to the President in his May 30, 2008 report to the President under Executive Order 13,392. First, the Attorney General recommended that any agency with a deficiency under their FOIA Improvement Plan that was not fully cured by the time of the filing of its 2007 Annual FOIA Report should submit an Updated Status Report to the President's Management Council by August 1, 2008. In light of this recommendation, OIP provided a template for the agencies to follow in completing their Updated Status Report. This template required the agencies to identify the deficient milestone within the agency's FOIA Improvement Plan; to describe the specific steps taken to correct the deficiency; and, if the deficiency was not yet cured, to describe additional future steps that the agency would undertake in the future to correct the deficiency. OIP then reviewed all of these Updated Status Reports prior to their submission to the Chair of the President's Management Council.

The Attorney General's second recommendation directed any agency that had a backlog of requests, and had not made progress in reducing that backlog over the last two years, to develop a backlog reduction plan and submit it to the agency's Chief FOIA Officer for approval by September 8, 2008. OIP issued written guidance on preparing backlog reduction plans. In its guidance, OIP explained that in order to achieve a backlog reduction goal, agencies' plans must include two key elements. First, each agency should create a plan that focused on reducing the overall number of backlogged requests and second, the plan should focus on reducing the age of the oldest of these backlogged requests. OIP then emphasized that, at a minimum, each agency should plan to close its ten oldest backlogged requests each year.

The Attorney General's third recommendation directed agencies to conduct an internal review of their FOIA Reading Rooms and, if necessary, to address any deficiencies in their content. Here again, OIP provided written guidance on the submission of agencies certifications of compliance with FOIA's Reading Room requirements. In its guidance, OIP described the categories of records that must be contained in Reading Rooms; the requirement for Reading Room Indices; and the requirement for all records created on or after November 1, 1996, to be available by "electronic means." OIP then provided agencies with a set of specific procedures to follow while preparing their FOIA Reading Room Certifications.

(b) Counseling and Consultations

In addition to providing written policy guidance and conducting seminars on such guidance, OIP also provided direct, one-on-one counseling for agency personnel and other interested parties during 2008, as a further means of encouraging agency compliance with the FOIA. OIP's counseling activities 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. While most of this counseling was conducted by telephone, other options were made available as well. The counseling services provided by OIP during the year are summarized below.

(1) OIP provided FOIA Counselor guidance to agencies on a broad range of FOIA-related subjects, including guidance pertaining to the obligations and new reporting requirements under the OPEN Government Act. Most of the FOIA Counselor calls received by OIP involve issues regarding 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) (2008) -- and it has found that such consultations are very valuable in ensuring agency compliance with the Act. More than 2994 requests for guidance were received by OIP through its FOIA Counselor service during 2008.

(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 often convenes a meeting or teleconference between agency representatives and senior OIP staff, at which all factual, legal, and policy issues related to the matter presented are thoroughly discussed and resolved. In 2008, OIP was involved in a number of such supervisory-level discussions with other agencies, including the National Aeronautics and Space Administration, the Forest Service (Department of Agriculture), and the National Labor Relations Board. OIP conducted similar discussions within the Department of Justice as well.

(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 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 on all FOIA cases, and regarding all FOIA-related issues, that are handled by the Office of the Solicitor General. During 2008, OIP was asked to make recommendations concerning the advisability of seeking initial appellate review, rehearing en banc, or petitioning for certiorari in twenty-two FOIA cases.

(c) FOIA Post

One of the means by which OIP disseminates information concerning the FOIA to government personnel is through FOIA Post. In 2008, the Department of Justice completed its eighth year of publishing FOIA Post, an online and cost-efficient replacement for OIP’s longtime FOIA Update newsletter. FOIA Post makes use of electronic links to reference documents and other sources of information and is in keeping with the Act's emphasis on the disclosure of agency information to the public in a user-friendly format, through use of the internet.

During 2008, OIP disseminated a variety of different items to federal agencies through FOIA Post. As mentioned above, in January 2008, OIP posted an explanatory summary of the new FOIA amendments. OIP then used FOIA Post to announce a series of conferences and training sessions that were related to the implementation of these new FOIA amendments. OIP also disseminated through FOIA Post written guidance on the various provisions of the OPEN Government Act, including "2008 Guidelines for Agency Preparation of Annual FOIA Reports;" "Treatment of Agency Records Maintained for an Agency by a Government Contractor for Purposes of Records Management;" "Segregating and Marking Documents for Release in Accordance with the OPEN Government Act;" "Assigning Tracking Numbers and Providing Status Information for Requests; " "New Limitations on Tolling the FOIA's Response Time;" "New Limitations on Assessing Fees;" and "New Requirement To Route Misdirected FOIA Requests."

In addition to substantive and procedural policy guidance concerning the OPEN Government Act, OIP posted each month detailed summaries of every FOIA case decided in the United States, at both the district court and appellate levels. These summaries are made easy to review and cross-reference. For every court decision, OIP highlights each FOIA exemption and procedural or litigation-related issue that was discussed in the opinion. Because court decisions play such an important part in the interpretation of the FOIA and its proper administration, OIP provides these summaries to help ensure that all FOIA professionals have ready and current access to the most recently decided court opinions.

During 2008, OIP also posted its Summary of Annual FOIA Reports, which consisted of a compilation of the annual FOIA reports filed by all fifteen federal departments and seventy-seven agencies subject to the FOIA. The summary provided information on a variety of topics, including the number of requests received, progress in reducing backlogs, disposition of requests, administrative appeals, as well as staffing levels and costs. This summary provides both agencies and the public with an overall picture of FOIA processing governmentwide.

FOIA Post was also used to disseminate a copy of the Attorney General's May 30, 2008 Report to the President Pursuant to Executive Order 13,392. As noted above, in this Report, the Attorney General submitted three recommendations to the President. In light of these recommendations, OIP posted on FOIA Post written guidance on "Submitting Updated Status Reports to the President's Management Council;" "Submitting Certification of Agency Compliance with FOIA's Reading Room Requirements;" and "Preparing Backlog Reduction Plans."

OIP utilized FOIA Post to provide details concerning the various governmentwide FOIA training opportunities available for Fiscal Year 2009. Lastly, OIP also used FOIA Post to commemorate the anniversary of the birthday of James Madison and to celebrate the Freedom of Information Act.

(d) Additional FOIA Reference Materials

In addition to utilizing FOIA Post to timely disseminate policy guidance and other useful information concerning the FOIA, OIP also creates or makes available additional FOIA reference materials for agencies to use. The preeminent reference document created by OIP every two years is a legal treatise on the FOIA, entitled the Freedom of Information Act Guide. The Guide contains an extensive discussion of the case law interpreting the FOIA’s procedural requirements, its exemptions and exclusions, as well as litigation-related issues. Throughout 2008, OIP distributed courtesy copies of the March 2007 Department of Justice’s Freedom of Information Act Guide to each federal agency and to other interested parties. It also facilitated the wide distribution of the Guide within the executive branch at a very low per-copy cost, and made it available without cost through the Department of Justice's FOIA training programs. The Guide was also made available to agencies and to the public through the Government Printing Office. Additionally, to afford electronic access and keyword-search capabilities, OIP also placed a copy of the Guide on the Justice Department's FOIA website where it can be accessed at http://www.usdoj.gov/oip/foia_guide07.htm. OIP is currently working on the 2009 edition of the Guide, which is being extensively revised to reflect the new FOIA amendments and the President’s and Attorney General's Memoranda on the FOIA.

In 2008, in connection with its primary role of assisting agencies with the implementation of Executive Order 13,392, and as mentioned above, OIP posted a copy of the third and last required report from the Attorney General to the President. This report provided an overall assessment of the agencies' progress in meeting their milestones and goals under their FOIA Improvement Plans. The 2008 Attorney General's report also contained a detailed discussion of agency activities under the Executive Order, focusing on six key areas – specifically, backlog reduction, proactive disclosure of information, improved FOIA Websites, use of technology, enhanced request tracking, and improved customer service. Furthermore, this report discussed the areas where agencies had encountered difficulties in meeting their milestones or goals under their FOIA Improvement Plans. Lastly, the report also included a series of recommendations that look beyond the end of the Executive Order's implementation period to ensure that improved FOIA practices continue in the upcoming years.

Agencies are required to compile and submit to the Attorney General an annual FOIA report each year in accordance with 5 U.S.C. §552(e)(1). In 2008, for the second year in a row, OIP completed and posted, two weeks prior to the statutory deadline, the Department of Justice's own annual FOIA report. By completing and publicly posting the Department’s Annual FOIA Report early, OIP served as an example to other agencies.

In accordance with another provision of the FOIA , 5 U.S.C. § 552(e)(4), the Justice Department in 2008 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, each year OIP receives a copy of each agency's Annual FOIA Report prior to it being posted. OIP reviews each report for correctness and completeness, often contacting individual agencies to discuss and resolve any identified question or discrepancy with them. Once they are finalized, OIP makes all such reports promptly available at its central electronic site. In 2008, OIP continued this practice of reviewing all agencies' annual reports as they are sent to it for this electronic availability purpose. It did so in accordance with a 2002 GAO report 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." See "Update on the Implementation of the 1996 Electronic Freedom of Information Act Amendments," 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," at 3.

OIP’s review of other agency’s Annual FOIA Reports took on additional significance in 2008 due to the fact that the content and format of the report was extensively revised by OIP in light of the OPEN Government Act and in light of OIP’s determination that it would be useful to include additional data elements as well. As mentioned above, in May 2008, OIP issued new guidelines for the preparation of agency Annual FOIA Reports. These guidelines expanded on the type of information that must be included in the reports and provided directions on how to calculate the various figures within the reports. Given the extensive nature of these changes to the reporting requirements, OIP found that its review of agency reports frequently necessitated further revision by the agencies to conform their report to the new reporting requirements.

For additional reference purposes, OIP continued during 2008 to make available on the Justice Department's FOIA website all issues of its former newsletter FOIA Update. Those issues of the newsletter spanning the period 1979-2000 were made available on the Web, where they are fully accessible electronically and keyword searchable. OIP also continued to maintain on the Department’s FOIA website an electronic copy of its Basic FOIA Training Manual so that all FOIA personnel can benefit from easy access to these materials.

(e) Training, Public Presentations, and Briefings

As yet another method for encouraging compliance with the FOIA, OIP holds a variety of training programs. During 2008, 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.

As already mentioned, in light of the changes made to the FOIA by the OPEN Government Act, OIP hosted three governmentwide conferences to provide guidance on the new FOIA provisions and to answer questions raised by FOIA professionals. These conferences were held on January 16, May 28, and November 19, 2008. All federal employees involved with FOIA matters were encouraged to attend these events.

In conjunction with the Justice Department's National Advocacy Center, OIP conducted a full range of FOIA-training programs in 2008, 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 four times in Washington, D.C., and once in Denver, Colorado. The "Introduction to the FOIA" course was held three times.

OIP also conducted a session in 2008 of its "Freedom of Information Act Administrative Forum," a training program devoted almost entirely to administrative matters arising under the Act. These include such issues 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.

In 2008, OIP also held twice during the year its "Advanced Freedom of Information Act Seminar." This seminar provides advanced instruction on selected substantive and procedural topics under the FOIA, including up-to-date policy guidance. For 2008 these seminars included sessions on the new FOIA amendments, requirements for annual FOIA reports, recent FOIA decisions, and administrative and litigation considerations.

Twenty-three professional staff members from OIP gave a total of 252 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 State, the Department of the Treasury, the Department of Veterans Affairs, NASA, FEMA, the Social Security Administration, the Department of Housing and Urban Development, EPA, and the Department of the Army. In addition, OIP provided training for components of the Department of Justice. Further, OIP training presentations were also made at seminars hosted by the American Society for Access Professionals, an association which included members of the FOIA requester community.

During 2008, the Director of OIP gave a total of forty-five presentations at a variety of FOIA-training programs and other forums. In January 2008, she gave a televised interview with Korea Broadcast System TV on the FOIA. In June 2008, she met with a group of members of the Caribbean press to provide an overview of the FOIA and discuss transparency in government. In August 2008, she gave a presentation on transparency in the United States, in Mexico City, as part of a conference hosted by the Mexican Supreme Court. In November 2008, she gave a presentation at an international conference sponsored by the Federal District Institute of Access to Public Information, also held in Mexico City, on the protection of personal data under the FOIA. She also participated in a digital video conference with representatives from Chile on the U.S. experience with the FOIA in connection with the implementation of Chile's new open government legislation.

OIP conducted a number of other general or specific FOIA briefings during 2007 for international audiences, including representatives and journalists 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 and journalists from the Kyrgyz Republic, Indonesia, Belize, Bolivia, Columbia, Ecuador, El Salvador, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Venezuela, Pakistan, China, the Philippines, Urdu, and Mali. In addition, the Director of OIP gave a presentation to the Director for Analysis and Oversight of Government Policies and officials from the Office of Brazil's Federal Inspector General.

(f) Inter- and Intra-agency Coordination Activities

During 2008, OIP actively continued its inter- and intra-agency coordination activities centered on the implementation of the FOIA. Given its important role in assisting agencies in meeting and understanding the new requirements of the OPEN Government Act, OIP held a number of meetings and conferences providing guidance on the new FOIA amendments.

As mentioned above, OIP hosted three governmentwide conferences specifically addressing various aspects of the OPEN Government Act. All government employees specifically involved in the administration of the FOIA were encouraged to participate in these events. During its first conference, OIP provided an overview of the new FOIA amendments. OIP held the second conference in May 2008 during which it focused on the new reporting requirements for Annual FOIA Reports. In November 2008, OIP conducted its third conference during which it explained the new requirements on assigning tracking numbers and providing status information for requests; the new limitations on tolling FOIA's response time; the new limitations on assessing fees; and the new requirement to route misdirected FOIA requests. Likewise, during 2008, OIP held three separate FOIA Officer Conferences for Department of Justice components.

During 2008, OIP also continued its interagency coordination activities centered on the implementation of Executive Order 13,392. On May 30, 2008, the Attorney General submitted his third and last report to the President pursuant to Executive Order 13,392. In this report, the Attorney General provided three recommendations, relating to the filing of updated status reports to the President's Management Council, the development of backlog reduction plans, and the certification of agency FOIA Reading Rooms. To assist agencies in their implementation of the Attorney General's recommendations, OIP provided written guidance on each of these recommendations on FOIA Post.

Finally, during 2008, OIP conducted numerous reviews of draft or preliminary legislative proposals relating to the FOIA or to information policy more generally. As a result of this review OIP made 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. OIP likewise identified issues and suggested revisions to language contained in proposed legislative testimony and other legislative submissions made by agencies on FOIA-related issues as well.

(g) Congressional and Public Inquiries

In 2008, OIP responded to eight congressional inquiries pertaining to FOIA-related matters. OIP received no 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 public written inquiries has significantly decreased over the years, which may be due to the increased availability of information that is now accessible to the public through the Justice Department's FOIA website.

(h) Report on Any Disciplinary Actions

During 2008, the United States courts made no written findings pursuant to 5 U.S.C. § 552(a)(4)(F)(i). Accordingly, no notification of the Special Counsel was necessary.

 

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