During 1976, the Justice Department, in the face of significant continuing needs for guidance to federal agencies, maintained an active program of encouraging compliance with the Act. A "description of the efforts" which constituted this program is required by the last sentence of U.S.C. 552(d), and is set forth as follows:
(a) Approximately 455 consultations between the Department's Freedom of Information Committee and representatives of other agencies concerning contemplated final denials by such agencies of requests under the Act were conducted in 1976, as compared to approximately 450 in 1975 and approximately 220 in 1974. As was the case in 1975, about 95 per cent of the 1976 consultations were "summary", typically involving a telephone discussion between agency counsel and the Chairman of the Committee. These summary consultations, in addition to furnishing agencies with legal advice and encouragement toward improved compliance, helped to identify those contemplated final denials by agencies which, because of their apparent difficulty or importance, were regarded as calling for "in-depth" consultation. (An "in-depth" consultation is one involving several members of the Committee who meet with agency representatives, or review documentation from the agency, or both.) Twenty-one such in-depth consultations are included in the total of 455 consultations for 1976. (In these figures, a telephone discussion which led to an in-depth consultation is counted only once, as the latter. If the agency changes its mind and decides to release the requested records before the consultation is complete, the consultation is cancelled and is not counted at all.)
During 1976, the Committee began a procedural experiment, the "preconsultation." which is designed for more efficient utilization of the Committee's capabilities and to better adapt the Committee's work to the statutory time limits. Of the 21 in-depth consultations referred to above, 9 were preconsultations. In a preconsultation, the Committee gives timely and in-depth consideration to contemplated agency denials even though the agency's final denial is not imminent, provided a fair likelihood is perceived of significant confrontations soon between the agency and requesters if the agency follows a contemplated course of action. Preconsultations may be appropriate, e.g., where an agency plans to commit itself by contract or regulation not to release material to requesters, or where there are recurrent similar denials, especially ones that are common to more than one agency.
Of the 6 factors listed in last year's report as explaining the 1975 shift in the Committee's practice toward more summary consultations with fewer and selected in-depth consultations, all but the second continued to be significant in 1976. These six factors, updated for 1976, are:
(1) The generally higher volume of government-wide FOIA activity experienced in 1975, and the strict statutory time limits on agency denials, continued during 1976.
(2) The need to prepare the Attorney General's "Blue Book" on the 1974 FOI Amendments was not a factor in 1976, but increased efforts were required to maintain and improve the "FOI Case List" as discussed in paragraph (c) below.
(3) Agencies continued to seek guidance at earlier stages in the processing of those requests (or expected requests) which they regard as of possible difficulty or importance. In addition to the 9 in-depth Committee "preconsultations" referred to above, these early-stage needs of the agencies were met by informal, expedited preliminary telephone advice by the Chairman or another member of the Committee. During the year, as in prior years, there were several hundred of these "PI&A's" (preliminary inquiry and advice), and although they are not included in the above figures as any type of "consultation," they involve substantial Committee effort and are considered of significant value in encouraging agency compliance.
(4) There was growing expertise among some agency personnel in handling their workload under the Act, especially the somewhat repetitive portions, where the justification for the denial may chiefly depend upon factual issues of types previously discussed with the Committee. This growth of expertise is limited by turnover of agency personnel, development of new caselaw, and new problems presented by requesters.
(5) More time is required to keep Committee members current on the growing volume of caselaw and other significant literature in this field.
(6) Much time is required to deal with major special problems pertaining to Freedom of Information, such as emerging issues about the impact of FOI on the large field of government procurement, and the problems of interagency coordination in the processing of requests in which two or more agencies have interests in the records sought, conformably with the time limits and other provisions of the Act.
In addition to the various types of consultations and activities referred to above, efforts to improve agency compliance with the Act during 1976 included the following:
(b) Assistance was given to Civil Service Commission representatives in planning and executing programs for training agency executives and lawyers on Freedom of Information and Privacy.
(c) The Committee issued an expanded and improved "FOI Case List --June 1976 Edition," citing 295 court cases under the Act in which one or more court decisions with written opinions were rendered, with notations as to the exemptions and other provisions involved in each. It is distributed to all agency General Counsels and made available to other users. New features in 1976 were a Topical Index to the cases, and an Overview List of suggested reading. As the year ended, a Supplement to this list was in preparation.
(d) On 24 occasions during 1976 the Chairman or other members of the Committee appeared as speakers at seminars, conferences, briefings and similar efforts designed to improve understanding and administration of the Act. These presentations, which usually included questions from the floor, were arranged by the Civil Service Commission, other agencies, or by professional groups containing significant numbers of agency personnel and users of the Act. It is estimated that a total of over 1,700 persons, chiefly agency executives, supervisors and lawyers, attended these 24 presentations, of which 13 were conducted in Washington and 11 in other cities. In addition, speakers for similar presentations were furnished by the Information and Privacy Section of the Civil Division, the Office of Privacy and Information Appeals in the Deputy Attorney General's Office, the Administrative Counsel of the Office of Management and Finance, and the Special Litigation Unit of the Tax Division, all of which have generally supported efforts to encourage improved agency compliance with the Act.
(e) Complaints in recently filed Freedom of Information suits were reviewed by the Committee, and in appropriate instances comments thereon were made to the Civil Division.
(f) Complaints by letter or telephone about how agencies administered the Act were received from citizens, lawyers, and business firms, in some cases through the office of a legislator. In about a dozen instances, where it appeared the agency might be acting illegally or negligently, or that the proper handling of a request could otherwise be assisted, appropriate guidance was given to the agency or to the requester.
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