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

During 1977, 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 414 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 1977, as compared to approximately 455 in 1976. As was the case in 1976, about 95 percent of the 1977 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-three such in-depth consultations are included in the total of 414 consultations for 1977. (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 completed, the consultation is cancelled and is not counted at all.)

During 1977 the Committee continued the practice, begun as a procedural experiment in 1976, of conducting a "preconsultation" in certain circumstances. A preconsultation is an early in-depth consultation 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 23 in-depth consultations referred to above, 3 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.

Of the 6 factors listed in the reports for 1975 and 1976 as affecting the Committee's procedures and workload, all but the second continued to be significant in 1977. These six factors, updated for 1977, are:

(1) The generally high volume of government-wide FOIA activity, and the strict statutory time limits on agency denials, continued in 1977.

(2) The need to prepare an Attorney General's "Blue Book" on new legislation was not a factor in 1977,(1) 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 3 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. 1977 was the first year of a new administration, and in February the Committee prepared "What Every Federal Official Should Know About the Freedom of Information Act," a 2-page briefing piece in question-and-answer form for newly appointed officials.

(5) More time is required to keep Committee members current on the growing volume of caselaw and other significant literature in this field. August 1977 saw the publication of the first full- sized legal text on Freedom of Information and other federal openness statutes, "Federal Information Disclosure" by O'Reilly.

(6) Much time is required to deal with major special problem areas pertaining to Freedom of Information. One such area which required increasing attention in 1977 was the protection of business information in agency records, including questions about the existence, scope, and exercise of agency discretion to release such information. Another area which required substantial attention was implementing the Attorney General's May 5, 1977 letter to the heads of all agencies designed to discourage the use of exemptions, especially exemption 5, if there is no sufficient prospect that actual harm to legitimate public or private interests would result from release.

In addition to the various types of consultations and activities referred to above, efforts to improve agency compliance with the Act during 1977 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 two expanded and improved FOIA Case Lists in 1977, the most recent being the July 1977 Edition, printed in pamphlet form for the first time. That edition cited 445 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. The total of 445 cases compares to 295 cases in the list issued a year earlier. The Case List is distributed to all agency General Counsels and made available to other users.

(d) On 17 occasions during 1977 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 usually arranged by the Civil Service Commission, other agencies, or by professional groups containing significant numbers of agency personnel and users of the Act.(2) It is estimated that a total of over 1,350 persons, chiefly agency executives, supervisors and lawyers, attended these 17 presentations, of which 11 were conducted in Washington and 6 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, 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) In December 1977, as an adjunct to one of the seminars referred to above, a 38-page paper entitled "A Short Guide to the Freedom of Information Act" was prepared, primarily for the use of government and other lawyers, and secondarily for the general reader. Its title page and Table of Contents are set forth below:
A SHORT GUIDE TO THE FREEDOM OF INFORMATION ACT
BY

Robert L. Saloschin, Offce of Legal Counsel, Department of Justice, and Chairman, Department of Justice Freedom of Information Committee

Thomas C. Newkirk, Office of Legal Counsel, Department of Justice, and Member, Department of Justice Freedom of Information Committee

Donald J. Gavin, Tax Division, Department of Justice, and Tax Division liaison to the Freedom of Information Committee

TABLE OF CONTENTS

I. What is the Freedom of Information Act?

II. What background factors (historical, legal and psychosocial) help explain FOIA's enactment, impact, and limitations?

III. What is the statutory structure of FOIA?

IV. What do the 9 FOIA exemptions cover?

V. What procedures must a requester follow?

VI. What procedures must the agency follow?

VII. What will happen if the matter goes to court?

VIII. How does FOIA interrelate with the Privacy Act?

IX. How does FOIA affect business information?

X. What references and services can provide further help on FOIA problems?

December 1977

(f) 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.

(g) 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 more than 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.

________________________________________

1 An insert was prepared for existing copies of the Attorney General's "Blue Book" on the 1974 FOIA Amendments to reflect the amendment of FOIA Exemption 3 by the Sunshine Act, P.L. 94-409, which became effective March 12, 1977. This insert was distributed as an Appendix to the January 1977 Edition of the FOIA Case List.

2 In addition to the 17 occasions referred to in the text, the Committee conducted three informal briefings in its offices for government officials.

Go to: Table of Contents // DOJ FOIA Page // Justice Department Home Page