DEPARTMENT OF JUSTICE 1998 CALENDAR YEAR REPORT ON FREEDOM OF INFORMATION ACT COMPLIANCE ACTIVITIES


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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