DESCRIPTION OF DEPARTMENT OF JUSTICE
EFFORTS TO ENCOURAGE AGENCY
COMPLIANCE WITH THE ACT

During 1998, 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), consistent with the openness-in-government policies of President Clinton and Attorney General Janet Reno. A summary description of these activities, which is required by 5 U.S.C. 552(e)(5) (1994 & Supp. II 1996), 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 1998 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 1997 consisted of the following:

(1) OIP continued to provide basic FOIA Counselor guidance over the telephone on a broad range of FOIA-related topics, including matters pertaining to overall policies of government openness. 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) (1998)--and it has been found that such consultations are very valuable in encouraging agency compliance with, and greater information disclosure under, the Act.) More than 3,000 requests for assistance were received by OIP and handled in this way during 1998, a continued increase over the numbers of such inquiries 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 1998.

(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 31 such formal consultations in 1998, including five with the general counsel or deputy general counsel of the agency involved. In addition, OIP provided consultation assistance to two Offices of Independent 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 both uniform agency compliance with the Act and the principles of government openness under it. 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. It 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 1998, including 21 involving recommendations as to the advisability of initial or further appellate court review and two involving the question of whether to seek or oppose certiorari in the Supreme Court.

(b) FOIA Update

OIP published its FOIA policy newsletter, FOIA Update, in 1998. This publication provides FOIA-related information and policy guidance to all federal employees governmentwide whose duties include responsibility for legal and/or administrative work related to the Act. It also serves as a vehicle for the dissemination of FOIA-related information within the executive branch and for the comparison of agency practices in FOIA administration. More than 4,500 copies of FOIA Update are distributed to agency FOIA personnel throughout the federal government, without charge. Additionally, guidance items published in FOIA Update are used in all Justice Department FOIA-training sessions and are made available for such programs offered by the Graduate School of the Department of Agriculture (including those formerly conducted by the Office of Personnel Management) and the American Society of Access Professionals nationwide. FOIA Update also is sold through the Government Printing Office to nongovernmental subscribers, at a nominal cost of $5.50 per year. It had a paid circulation of more than one thousand in 1998.

In 1998, FOIA Update focused attention on agency obligations and activities undertaken in implementation of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231. It discussed a congressional hearing held on the subject of Electronic FOIA amendment implementation by a subcommittee of the House of Representatives, including testimony presented on the subject by the Justice Department. On a related subject, it described a program of affirmative electronic information disclosure conducted by the Department of the Air Force, as a model for such programs by other agencies. Additionally, OIP established a new FOIA Update feature, entitled "Web Site Watch," in which it advised agencies on the most effective structure and contents of web sites now used by agencies for purposes of FOIA administration.

Also published in FOIA Update during 1998 were eleven "Significant New Decision" discussions, which informed agencies of major FOIA case law developments at the district court and appellate court levels, and a discussion of governmentwide privacy reviews that relate to FOIA administration. 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 Department's FOIA site on the World Wide Web. Additionally, through FOIA Update, OIP provided announcements of FOIA and Privacy Act training opportunities scheduled nationwide throughout the year.

(c) Policy Guidance Memoranda

In 1998, OIP issued policy memoranda and advisory discussions for the guidance of federal agencies, which were disseminated through FOIA Update. It placed primary emphasis on matters pertaining to the implementation of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231. OIP issued a compendium of guidance points on Electronic FOIA amendment implementation, covering a variety of subjects such as agency reading rooms, "electronic reading rooms," the form or format of record disclosure, electronic searches for information maintained in electronic form, the redaction of information in electronic form, the preparation of annual FOIA reports, and the applicability of implementing regulations. This guidance also was disseminated directly to several hundred agency FOIA personnel at a governmentwide training program.

A major policy area addressed by OIP in 1998 was the development of agency sites on the World Wide Web for FOIA purposes. OIP advised all agencies to maintain FOIA web sites, for purposes of overall FOIA administration as well as for implementation of the Electronic FOIA amendments, and to pay close attention to their refinement and use. It discussed several recommended aspects of agency FOIA web sites, including the maintenance of main FOIA home pages by both agencies and their major agency components; the contents of a main FOIA home page; the directness of access to an agency's main FOIA home page from its main home page; the use of links to facilitate navigation by web site users; and the importance of regularly checking and updating links and other web site contents in order to ensure continued accuracy and viability. This guidance also was discussed at a conference of the principal FOIA officers of all federal agencies that was conducted by OIP on this subject.

Additionally, in 1998 OIP addressed a number of policy questions through its "FOIA Counselor Q&A" feature in FOIA Update. The topics addressed included: the inapplicability of grand jury secrecy restrictions to agency personnel requiring access to grand jury records for FOIA administration purposes; the development of agency capability to receive and handle FOIA requests electronically through their sites on the World Wide Web; the disclosure of records in multiple existing forms upon request as a matter of administrative discretion; the use of agency FOIA web sites, rather than another form of electronic disclosure, for "electronic reading room" availability; and several matters pertaining to the preparation of annual FOIA reports.

(d) Research and Reference Publications

A new edition of the Freedom of Information Case List was published by OIP in September 1998. The number of access cases indexed according to specific FOIA exemptions and other topics increased to more than 4,400. This volume also included: (1) lists of cases decided under the Privacy Act of 1974, the Federal Advisory Committee Act, and the Government in the Sunshine Act; (2) an "overview" FOIA case list and a list of "reverse" FOIA cases; (3) a chronological list of related law review articles; (4) an updated topical index of all FOIA cases listed; and (5) the full texts of the four major federal access statutes.

In 1998, OIP also published a separate reference volume primarily containing the "Justice Department Guide to the Freedom of Information Act," an overview discussion of the Act's exemptions and procedural aspects which formerly was published as part of the Case List volume. 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 FOIA" was updated and expanded to more than 600 pages in length in 1998, and it made comprehensive use of "electronic" citations (i.e., WESTLAW and LEXIS) in lieu of slip opinions for more convenient reference purposes.

OIP distributed courtesy copies of the 1998 Freedom of Information Case List and the 1998 Freedom of Information Act Guide & Privacy Act Overview to each federal agency, to various congressional offices, and to other interested parties. It also facilitated both volumes' wide distribution within the executive branch at a low per-copy cost and made them available without cost through the Justice Department's FOIA-training programs. Additional copies of both the Case List and the Guide & Overview were made available to agencies and to the public through the Government Printing Office at a cost of $26 and $39 per copy, respectively. OIP also placed the major component parts of the Guide & Overview on the Justice Department's World Wide Web site (which can be accessed at www.usdoj.gov) to afford electronic access to them as well.

Also made available on the Justice Department's World Wide Web site in 1998 was a relatively new reference publication, the "Department of Justice Freedom of Information Act Reference Guide," which was developed in accordance with the Electronic FOIA amendments. 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 twelve pages, plus detailed attachments, and contains information appropriate for use by other federal agencies in their FOIA reference guides.

(e) Training

During 1998, 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 170 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 Environmental Protection Agency, the Federal Deposit Insurance Corp., the Occupational Health and Safety Administration, and the National Archives and Records Administration; for the Departments of Defense, Labor, Energy, and the Air Force; and for several individual components of the Department of Justice. Additionally, the co-directors of OIP gave a total of 79 presentations at various FOIA-training programs, including those held by the American Society of Access Professionals, the Army Judge Advocate General's School, and U.S. Information Service.

In addition to its regular range of FOIA-training programs offered in conjunction with the Justice Department's National Advocacy Center (formerly the Office of Legal Education), OIP also conducted a training seminar in 1998 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 "Annual Update Seminar on the Freedom of Information Act," it was conducted by OIP immediately upon completion of the "Justice Department Guide to the FOIA," a special prepublication copy of which is provided to all participants. This program has succeeded in efficiently meeting the consistently high demand for FOIA training. In 1998, OIP this program featured introductory remarks by Attorney General Janet Reno that strongly encouraged the work of FOIA officers governmentwide. More than 600 access professionals, representing nearly all federal agencies, attended. Additionally, OIP distributed videotapes of this training program, with special attention to the Attorney General's remarks, to all federal agencies for use in their internal FOIA-training activities.

OIP also conducted two sessions in 1998 of its "Freedom of Information Act Administrative Forum," which is devoted almost entirely to administrative matters arising under the Act--such matters as record-retrieval practices, 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 1998 was OIP's "Advanced Freedom of Information Act Seminar," which features a presentation by the Executive Director of the Reporters Committee for Freedom of the Press on the administration of the Act from the FOIA requester's perspective. In 1998, this advanced training program also included an updated session entitled, "Electronic Reading Rooms," which focused on the electronic availability requirements of the Electronic FOIA amendments. Presented jointly by an OIP senior counsel and a program manager of the Justice Department's World Wide Web site, this session also addressed the technical requirements of electronic record availability.

(f) Briefings

OIP conducted a number of general or specific FOIA briefings during 1998 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 statutes. It provided briefings and FOIA materials to representatives of Japan, Great Britain, Austria, Denmark, Chile, Ireland, Moldova, and the Netherlands. Several briefings to various government and public interest groups in Japan, including interested Members of the Japanese Parliament, were provided by a co-director of OIP. Additionally, an OIP co-director testified before a subcommittee of the House of Representatives on the implementation of the Electronic FOIA amendments.

(g) Congressional and Public Inquiries

In 1998, OIP responded to 24 congressional inquiries pertaining to FOIA-related matters and, in its "FOIA Ombudsman" capacity (see FOIA Update, Summer/Fall 1993, at 8), it responded to several 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 315 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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