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

During 1978, the Department of Justice (DOJ) took a significant step to improve the effectiveness of its program to encourage agency compliance with the Act. After months of study, the Department reorganized its structure to provide for better coordinated legal and policy advice and guidance on Freedom of Information and related matters. A description of this step, as well as of the other efforts which constituted this program, is required by the last sentence of 5 U.S.C. § 552(d), and is set forth below:

(a) On September 27, 1978, the Attorney General signed DOJ Order No. 803-78, (copy attached as Appendix A), entitled "Establishment of the Office of Information Law and Policy." Prior to this date the Department's program of encouraging agency compliance with the Act had been carried out largely by two lawyers in the Office of Legal Counsel (OLC), one of whom had considerable other duties. They were assisted by an advisory body of DOJ officials known as the Freedom of Information Committee (FOIC) of which they were members. The Attorney General's Order transferred the function of managing an expanded and strengthened FOIC to the new Office which it created, the Office of Information Law and Policy (OILP).

OILP reports directly to the Associate Attorney General, who is the Department's top official for most of its civil functions. OILP consists of a Director, two Deputy Directors, and two administrative personnel. The clear intent of its creation was to improve the Department's effectiveness in encouraging agency compliance. See memorandum of September 21, 1978, from Kevin D. Rooney, Assistant Attorney General for Administration, with attached background and explanatory statement captioned "Information and Privacy Reorganization" (copy attached as Appendix B).

The Director of OILP also serves as Chairman of the expanded FOIC. The other members are the senior Deputy Director of OILP, the Director of the Office of Privacy and Information Appeals, and representatives of the following Department components: Civil Division (2), Tax Division, Criminal Division, and OLC. For a description of the functions assigned to the FOIC, see Appendix B (The Rooney memorandum of September 21, 1978) at page 5. As a result of the reorganization, the Committee has expanded from four to eight members; it meets at more frequent intervals (usually weekly) than in recent years; it deals with problems arising within the Department as well as those from other agencies; and it represents an increasingly valuable cadre of legal and policy experience and expertise for dealing with the many complex issues that arise under the Act.

Since efforts to encourage agency compliance were carried out during calendar year 1978 both before and after the reorganization, the figures cited below are combined totals for OLC and OILP.

(b) Building on prior experience, the OILP has developed various techniques for handling the function of advising agencies which propose to deny all or part of an appeal from the denial of an initial FOIA request. Generally the first contact is a phone call from the agency contemplating a denial to OILP (or before its organization to its predecessor). During this phone call the Director or his senior Deputy discusses the proposed denial with agency counsel. Typically this conversation will cover the identity of the requester, the nature of the records involved, the legal justifications asserted as the bases for withholding, and the policy considerations relevant to the withholding. If the question whether withholding is justified can be resolved in this conversation, the contact is recorded as a "summary consultation" and that is the end of OILP's involvement (at least for the time being). There were approximately 235 such summary consultations in 1978.

Because of its relatively large number of repetitive ap- peals, the Department of Labor uses a somewhat different form of summary consultation. It sends a "written notice" of a proposed denial to OILP. This notice contains the same categories of information which are discussed in summary consultations, and the name and telephone number of a contact. The senior Deputy Director reviews these and raises any questions with the contact. There were 126 such written notices in 1978.

If a proposed denial appears to present sufficient difficulty or importance to make handling in either of the above summary methods inappropriate, and to the extent time and resources permit, the proposed denial receives "in-depth consultation", in one of two ways. The first type of "in-depth consultation" is by a meeting at which agency representatives meet with OILP and, if appropriate, the FOIC. There may or may not be advance documentation for these meetings, but the relevant legal and policy issues are discussed in detail. At the conclusion of the discussion the agency is usually provided with specific advice. There were 8 such in-depth consultations in 1978.

The second in-depth method of providing advice on these more significant proposed denials is a "documentary consultation," a procedure in which the agency provides copies of all relevant documents (e.g., its correspondence with the requester and, usually, the record(s) or samples thereof and an explanation of its justification for withholding) to OILP, which then circulates the copies to all FOIC members. OILP may either request the members to phone in their individual evaluations, or schedule a FOIC meeting on the matter. If the latter course is followed, agency representatives are invited to attend. There were 7 documentary consultations in 1978.

Thus, there were 376 total consultations with Federal agencies concerning proposed final denials of FOIA requests in 1978. There were approximately 414 such consultations in 1977. This decrease, which is less than 10 percent, is not viewed as resulting from any falling off of FOIC activity among these agencies, but rather from a variety of possible factors: increasing confidence in the ability of agency counsel to handle routine or repetitive appeals without such consultation; and increasing time spent by OILP on selected problems of greater difficulty. Some consultations may also have not occurred because of failure to accomplish telephone discussions with sufficient speed, but it is expected that under the reorganization this will be increasingly rare.

OILP also developed in 1978 a set of internal Procedures and Standards on Refusals to Defend FOIA Suits. This paper, with the approval of the Associate Attorney General, will be distributed in 1979 to the general counsels (or solicitors) of all agencies for which the Department of Justice provides representation in FOIA suits. One of its purposes is to encourage more timely consultation between these agencies and OILP on proposed final administrative denials of FOIA requests by assuring the agencies that, absent a significant change in either the law or the known factual circumstances, the Department will defend denials which OILP has reviewed without expressing misgivings. The paper also embodies an improved system for the review of complaints in recently filed FOIA suits. This will aid in reducing Government expenditure of time and money (as well as the burden on the public), of defending FOIA suits when the records should have been released under the four criteria set forth in Attorney General Bell's letter of May 5, 1977, to the heads of all agencies (copy attached as Appendix C).

(c) The FOIC continued the practice of conducting a "preconsultation" in certain circumstances. A preconsultation is an in-depth consultation conducted before the agency has reached a decision that it wishes finally to deny all or part of an FOIA request. Agency representatives meet with the FOIC (or selected members thereof) and discuss the nature of the records involved, as well as the legal and policy considerations for and against release. There were 3 preconsultations in 1978.

(d) OILP continued the service of providing preliminary, informal telephone advice on a broad range of FOIA topics. Prior to OILP's creation this function was performed primarily by the Chairman of the FOIC. It is now performed principally by the senior Deputy Director of OILP. In some instances the matter may be discussed with another member of the FOIC. No statistics were kept of these "preliminary inquiries and advice" prior to February 24, 1978. From that date through December 31, there were 291 recorded instances of the giving of such advice. Many of them involve issues at the initial determination stage. We believe that the providing of this service is of significant value in encouraging agency compliance. If withholding records is unsound legally or policywise, it is better for both the requester and the agency if such unsoundness is recognized at the initial rather than at the administrative appeal stage.

(e) Two expanded and improved editions of the FOI Case List were published in 1978 (the more recent one in August). The Case List now cites 592 court cases in which one or more court decisions with written opinions were rendered. This total compares with 447 in 1977. Each of these decisions is indexed as to the exemptions and other FOIA topics involved. The Department of Justice distributes copies of the Case List to all agencies and United States Attorneys. Beginning in August, 1978, copies were made available for purchase from the Government Printing Office.

(f) On 31 occasions during 1978 the Chairman or other members of the FOIC appeared as speakers at seminars, conferences, briefings and similar presentations designed to improve understanding and administration of the Act. It is estimated that over 1,200 persons, chiefly agency executives, supervisors and attorneys attended these presentations.

(g) Complaints were received from citizens, lawyers, and business firms (in some cases via their Congressman or Senator), about how agencies were administering the Act. In more than a dozen instances, where it appeared that the agency might be acting illegally or negligently, or where it appeared that the proper handling of an FOIA issue could otherwise be assisted, appropriate guidance was given to the agency or to the requester.

(h) On December 11, 1978 Attorney General Bell wrote to the heads of all Federal departments and agencies soliciting their cooperation in a study of how the Act is being administered (copy attached as Appendix D). One of the purposes of this study is to identify possible improvements in the administration of the Act. The public and press were also invited to comment on these matters (copy attached as Appendix E).

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