DEPARTMENT OF JUSTICE 1999 CALENDAR YEAR REPORT ON FREEDOM OF INFORMATION ACT COMPLIANCE ACTIVITIES


DESCRIPTION OF DEPARTMENT OF JUSTICE

EFFORTS TO ENCOURAGE AGENCY

COMPLIANCE WITH THE ACT

During 1999, 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. IV 1998), as amended by Electronic

Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048,

is set forth below.

(a) Counseling and Consultations

One of the primary means by which the Justice Department

encouraged agency compliance with the FOIA during 1999 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 1999 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) (1999)--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 1999, 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 1999.

(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 44 such formal consultations in 1999,

including nine with the general counsel or deputy general counsel

of the agency involved. In addition, OIP provided consultation

assistance to an Office of Independent Counsel and an Office of

Special Counsel during the year.

(4) An additional counseling service provided by OIP

involves FOIA matters in litigation, where advice and guidance

are provided at the request of, and in close coordination with,

the Justice Department's litigating divisions. This service

involves OIP reviewing issues and proposed litigation positions

in a case from both legal and policy standpoints, and then recommending

positions that promote 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 1999, including 32 involving recommendations as

to the advisability of initial or further appellate court review

and six involving the question of whether to seek or oppose certiorari

in the Supreme Court.

(b) Policy Guidance

In 1999, the Department of Justice issued a major policy

guidance memorandum on the implementation of the FOIA, as amended

by the Electronic Freedom of Information Act Amendments of 1996.

Attorney General Reno issued a memorandum to the heads of all

federal departments and agencies the followed up on the statements

of FOIA policy that previously were issued by her and by

President Clinton in 1993. Attorney General Reno's 1999 FOIA

policy memorandum reiterated the openness-in-government principles

that had been established in 1993 and asked all agencies to

renew their commitment to those principles through increased

coordination in the processes of FOIA administration. Specifically,

Attorney General Reno pointed out that meeting the major

policy objective of maximum discretionary disclosure through

application of the "foreseeable harm" standard necessarily

requires close cooperation between agency FOIA officers and

agency program personnel who have other daily missions to perform.

The Attorney General called upon all agencies to ensure

that their FOIA officers receive the cooperation needed from all

agency program personnel to achieve maximum responsible FOIA

disclosure in an efficient fashion.

At the same time, Attorney General Reno's 1999 FOIA policy

memorandum also addressed agency implementation of the Electronic

FOIA amendments. It pointed out the increased obligations placed

upon all federal agencies under the Electronic FOIA amendments

and the fact that "an agency's FOIA web site has become an essential

means by which its FOIA obligations are satisfied." In this

connection, it emphasized the vital role that agency information

resource management (IRM) personnel now must play in the processes

of FOIA administration. Accordingly, Attorney General Reno

called upon all agencies to affirmatively foster a "new partnership"

between their FOIA officers and their IRM personnel, advising that

"[i]t should be the primary mission of each agency's IRM

staff that it facilitate the prompt and accurate disclosure of

information through the agency's FOIA sites on the World Wide

Web." To further promote this FOIA/IRM partnership, Attorney

General Reno asked that this FOIA policy memorandum be disseminated

within each agency to all of its IRM (as well as its FOIA)

personnel.

Additionally, the Office of Information and Privacy provided

guidance to agencies throughout the year on such current policy

matters as the protection of critical infrastructure information,

the placement of records in agency reading rooms in accordance

with the Electronic FOIA amendments, and the disclosure of unit

pricing information in awarded government contracts under the

D.C. Circuit Court of Appeals decision in McDonnell Douglas Corp.

v. NASA, 180 F.3d 303 (D.C. Cir. 1999), reh'g en banc denied, No.

98-5251 (D.C. Cir. Oct. 6, 1999).

(c) FOIA Update

OIP published its FOIA policy newsletter, FOIA Update, in

1999. 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 cost of $10.00 per year. It had a paid circulation

of more than one thousand in 1999.

In 1999, FOIA Update featured discussions of the Attorney

General's appearance at a major Department of Justice FOIA-training program

to encourage hundreds of FOIA officers in their

administration of the Act; of the Attorney General's follow-up

FOIA policy memorandum to the heads of all federal departments

and agencies; of the use of FOIA requester negotiation techniques

by the Federal Bureau of Investigation in implementation of the

backlog-reduction provisions of the Electronic FOIA amendments;

and of Congress's enactment of two major pieces of FOIA-related

legislation, the Nazi War Crimes Disclosure Act, 5 U.S.C.A. § 552

note (West Supp. 1999), and a provision of the Office of Management

and Budget Appropriations Act for Fiscal Year 1999, Public

Law No. 105-277, that has the effect of placing under the FOIA

certain research data generated through federal grants.

Additionally, OIP established a new FOIA Update feature,

entitled "Administrative Corner," in 1999. This new column is

designed to highlight good examples of FOIA administration, on a

case-by-case basis, for the benefit of all federal agencies. It

was developed based upon a suggestion made during Attorney General Reno's

appearance at a Department of Justice training program.

The first examples highlighted in this new FOIA Update column

dealt with the efficient narrowing of FOIA requests, and the use

of sampling techniques to locate responsive records, through

cooperative efforts between agency FOIA officers and FOIA

requesters.

Also published in FOIA Update during 1999 were twelve

"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 the Supreme Court's extraordinary

action in the case of Weatherhead v. United States, 68

U.S.L.W. 3365 (U.S. Dec. 3, 1999) (No. 98-1904), the first case

in more than twenty-five years in which the Supreme Court agreed

to consider a national security issue under Exemption 1 of the

FOIA. 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

(in an expanded version) through the Justice 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 during the year.

(d) Research and Reference Materials

In 1999, OIP made arrangements with the Government Printing

Office (GPO) for a new publication schedule for its major reference volume,

entitled the Freedom of Information Act Guide & Privacy Act Overview,

which contains the "Justice Department Guide

to the Freedom of Information Act." As this publication transitions to a

new biennial publication cycle, it will next be published in May 2000--no

longer at the end of the fiscal year--at

which time it is expected that GPO will be able to facilitate the

printing and governmentwide distribution of this reference volume

on a more efficient timetable than in the past. During 1999, OIP

made preparations for the Guide & Overview's May 2000 edition.

In 1999, OIP also worked together with the General Services

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

revise and update a publication entitled "Your Right to Federal

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

on access to agency information. This joint publication of

the Justice Department and the General Services Administration,

which is made available to the general public in brochure form

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

the basic questions of any person who is interested in exercising

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

of 1974. Over the years, it consistently has been one of the

Consumer Information Center's most heavily requested brochures,

and it also is made available to the public electronically

through the Justice Department's FOIA Web site (which can be

accessed at www.usdoj.gov).

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

1999 was the "Department of Justice Freedom of Information Act

Reference Guide," which was developed in accordance with the

Electronic FOIA amendments and is a model for the counterpart

reference guides that are prepared by other federal agencies.

This reference tool for potential FOIA requesters describes the

procedural aspects of making a FOIA request, specifies the different

types of records that are maintained by the Justice

Department's many components, and describes the types of records

and information that are available to the public from the Department

without the necessity of making a FOIA request. It consists

of twelve pages, plus detailed attachments, and contains much

information appropriate for use by all other federal agencies in

their FOIA reference guides. This publication was updated in

1999, with additional information included regarding the Department's

"major information systems," in accordance with a provision of the

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

In accordance with another provision of the Electronic FOIA

amendments, 5 U.S.C. § 552(e)(3), the Justice Department in 1999

established "a single electronic access point" for the consolidated

availability of the annual FOIA reports of all federal

agencies. These annual reports, beginning with those for Fiscal

Year 1998, can be accessed on the Department's FOIA web site at

www.usdoj.gov/oip/04_6.html.

Additionally, at the request of the Committee on Government

Reform of the House of Representatives, OIP assisted the Committee

in the preparation of its biennial FOIA reference publication,

A Citizen's Guide on Using the Freedom of Information Act

and the Privacy Act of 1974 to Request Government Records, H.R.

Rep. No. 50, 106th Cong., 1st Sess. (1999).

(e) Training

During 1999, 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. Nineteen professional

staff members of OIP gave a total of 118 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 Central Intelligence Agency, the Social

Security Administration, the Federal Trade Commission, the Forest

Service, and the National Institutes of Health; for the Departments of

Agriculture, Housing and Urban Development, Education,

Veterans Affairs, and the Interior; and for several individual

components of the Department of Justice. OIP training presentations also

were made to the American Bar Association, to the

National Association of Black Journalists, and at the Federal

Dispute Resolution Annual Conference. Additionally, the co-directors of OIP

gave a total of 64 presentations at various

FOIA-training programs, including those held by the American

Society of Access Professionals, the Army Judge Advocate General's School,

and the Arkansas Bar Association. One of the co-directors also spoke at a

seminar for federal agency commissioners conducted by the Washington College

of Law, and the other

addressed FOIA issues on a radio program entitled "Fedtalk."

In conjunction with the Justice Department's National Advocacy

Center (formerly the Office of Legal Education), OIP conducted a wide

range of FOIA-training programs in 1999, ranging

from half-day introductory sessions for non-FOIA personnel to

advanced programs for highly experienced FOIA personnel. OIP's

basic two-day training course, entitled "The Freedom of Information

Act for Attorneys and Access Professionals," was conducted

several times during 1999 in Columbia, South Carolina, which is

now the base location of the National Advocacy Center. During

1999, OIP worked with the National Advocacy Center to expand both

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

including through the development of new plans to conduct sessions

of OIP's basic FOIA-training course in Washington, D.C.

OIP also conducted two sessions in 1999 of its "Freedom of

Information Act Administrative Forum," a training program that 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 1999 was OIP's "Advanced Freedom of

Information Act Seminar," which featured presentations by the

Executive Director of the Reporters Committee for Freedom of the

Press and the FOIA Coordinator for the National Security Archive

on the administration of the Act from the FOIA requester's perspective.

In 1999, 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. Another new feature

added to this program in 1999 was a special presentation on the

subject of "Federal Privacy Issues" by the Chief Counselor for

Privacy in the Executive Office of the President.

(f) Briefings

OIP conducted a number of general or specific FOIA briefings

during 1999 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, Hungary,

Azerbaijan, Brazil, Taiwan, Pakistan, Turkey, and twelve nations

of French Equatorial Africa. It also provided FOIA briefings to

the staff of the House Commerce Committee, to the Chairman of the

Postal Rate Commission, to the Critical Infrastructure Assurance

Office, to the Chief Counselor for Privacy in the Executive

Office of the President, and to a Member of Congress from Paraguay.

(g) Congressional and Public Inquiries

In 1999, OIP responded to 25 congressional inquiries pertaining

to FOIA-related matters and, in its "FOIA Ombudsman"

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

to 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

287 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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