ADMINISTRATIVE APPEALS

During 1979, there were 2,788 new administrative appeals received by the Office of Privacy and Information Appeals and 2,851 appeals were closed. With a pending caseload at the beginning of the year of 930, there were 867 cases on hand at the end of the year.

Of the 2,851 cases closed during the year, 962 involved requests under the Freedom of Information Act. The breakdown of these closings is as follows:

- Modified Action Resulting in Total Grant 7
- Reversed(1) 68
- Affirmed 431
- Modified Action Affirmed(2) 165
- Miscellaneous 291

The miscellaneous closings consist of the following:

- Failure of the component to process initial action within statutory time limit(3)

84
- Miscellaneous (e.g., individual appeal consolidated into "subject matter appeal"; judicial adjudication; all requested information had been released; appeal file erroneously opened; etc. 64
- No records 28
- Requester withdrew appeal 24

- No agency jurisdiction (appeals from state, local or other federal agency actions)

38

- Fee waivers denied

 26
- Fee waivers granted 4

- Duplicate file

23

The statutory provisions on the basis of which denials of Freedom of Information requests were predicated at the administrative appeals level are as follows:

5 U.S.C. § 552(b)(1) 149
5 U.S.C. § 552(b)(2) 24
5 U.S.C. § 552(b)(3) 54
5 U.S.C. § 552(b)(4) 6
5 U.S.C. § 552(b)(5) 47
5 U.S.C. § 552(b)(6) 63
5 U.S.C. § 552(b)(7)(A) 61
5 U.S.C. § 552(b)(7)(B) 2
5 U.S.C. § 552(b)(7)(C) 373
5 U.S.C. § 552(b)(7)(D) 298
5 U.S.C. § 552(b)(7)(E) 55
5 U.S.C. § 552(b)(7)(F) 8
5 U.S.C. § 552(b)(8) 1

Exemption 3 was asserted at the administrative appeals level in conjunction with the following statutes:

Rule 6(e), Federal Rules of Criminal Procedure 27
15 U.S.C. § 1313 7
17 U.S.C. § 102 1
18 U.S.C. § 701 1
18 U.S.C. § 798 1
18 U.S.C. § 2518 1
26 U.S.C. § 6103 7
28 U.S.C. § 534 6
42 U.S.C. § 2000e-5(b) 1
42 U.S.C. § 3771 1
50 U.S.C. § 403 2

The final actions on Freedom of Information administrative appeals involving continued denials of access to requested records were taken by the following officials:

Associate Attorney General
Michael J. Egan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Associate Attorney General
John H. Shenefield by
Quinlin J. Shea, Jr.,
Director, Office of Privacy and Information Appeals . . . . . . . . . . 218

Associate Attorney General
Michael J. Egan by
Quinlin J. Shea, Jr.,
Director, Office of Privacy and Information Appeals . . . . . . . . . . 478

Associate Attorney General
John H. Shenefield by
Richard L. Huff,
Deputy Director, Office of Privacy and Information Appeals . . . . . . . . . . 14

All miscellaneous closings were effected the Director of the Office of Privacy and Information Appeals, either in his own name or for the Associate Attorney General.

In addition to the 962 Freedom of Information administrative appeals closed this year, 1,889 "Privacy Act" (first-party request)(4) administrative appeals were also closed. The breakdown of the Privacy Act appeal closings is as follows:

Modified Action Resulting in Total Grant 6
Reversed(5) 49
Affirmed 855
Modified Action Affirmed(6) 332
Miscellaneous 647

The miscellaneous closings consist of the following:

- Failure of the component to process initial action within statutory time limit(7)

346
- Miscellaneous (e.g., individual appeal consolidated into "subject matter appeal"; judicial adjudication; all requested information had been released 64
- No records 29
- Requester withdrew appeal 20
- Requester died 1

- No agency jurisdiction (appeals from state, local or other federal agency actions)

74

- Fee waiver denied

 76
- Fee waiver granted 3
- Amendment/Expunction (2 granted, 4 denied) 6

- Duplicate file

23
- Fugitive status(8) 5

The statutory provisions on the basis of which denials of first-party requests for access were predicated at the administrative appeals level were as follows:

5 U.S.C. § 552a(d)(5) 1
5 U.S.C. § 552a(j)(2) 5
5 U.S.C. § 552a(k)(1) 17
5 U.S.C. § 552a(k)(2) 5
5 U.S.C. § 552a(k)(5) 34
5 U.S.C. § 552(b)(1) 414
5 U.S.C. § 552(b)(2) 86
5 U.S.C. § 552(b)(3) 81
5 U.S.C. § 552(b)(4) 1
5 U.S.C. § 552(b)(5) 51
5 U.S.C. § 552(b)(6) 35
5 U.S.C. § 552(b)(7)(A) 87
5 U.S.C. § 552(b)(7)(B) 1
5 U.S.C. § 552(b)(7)(C) 947
5 U.S.C. § 552(b)(7)(D) 814
5 U.S.C. § 552(b)(7)(E) 186
5 U.S.C. § 552(b)(7)(F) 53

Exemption 3 of the Freedom of Information Act was asserted at the administrative appeals level in conjunction with the following statutes:

Rule 6(e), Federal Rules of Criminal Procedure 45
18 U.S.C. § 2518 8
26 U.S.C. § 6103 3
28 U.S.C. § 534 2
50 U.S.C. § 403 4

The final actions on Privacy Act administrative appeals involving continued denials of access to requested records were taken by the following officials:

Associate Attorney General
John H. Shenefield . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Associate Attorney General
Michael J. Egan. . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Associate Attorney General
John H. Shenefield by
Quinlin J. Shea, Jr.,
Director, Office of Privacy and Information Appeals . . . . . . . . . .. . . . . . . . . 441

Associate Attorney General
Michael J. Egan by
Quinlin J. Shea, Jr.,
Director, Office of Privacy and Information Appeals . . . . . . . . . .. . . . . . . . . 1,025

Associate Attorney General
John H. Shenefield by
Richard L. Huff,
Deputy Director, Office of Privacy and Information Appeals . . . . . . . . . .. . . . . 49

All miscellaneous closings were effected the Director of the Office of Privacy and Information Appeals, either in his own name or for the Deputy Attorney General or the Associate Attorney General.

The costs of processing administrative appeals are as follows: (9)

Freedom of Information Act related expenses:
Services $578,984
Other 85,750
Total $664,734
Privacy Act related expenses:
Services $11,816
Other 1,750
Total $13,566




**** footnotes ****

1 This includes 66 appeals in which the cases were remanded to the components with instructions to reprocess, or process, the relevant records. Reprocessing follows a determination that the processing was initially carried out under a significantly erroneous standard. A remand for processing results from a determination that a refusal to process requested records, or to confirm or deny their existence, was erroneous.

2 These represent modifications of initial actions arrived at in the course of the appeals process, by agreement between the component and the appeals office.

3 Upon receipt of an appeal based on the component's failure to locate and process requested records within the statutory time limits, the appeals office informs the component of the appeal, but advises the requester that it lacks the personnel resources to conduct the comprehensive record reviews necessary to make initial determinations on requested records. The appeals office also advises the requester that, if he or she is dissatisfied with the component's substantive action on the request, an appeal on the merits will be opened. The requester is also informed that he or she may treat this notification from the appeals office as a denial of the appeal and bring suit in an appropriate federal court. It has been the experience of the appeals office that a significant number of appeals based on actual denials of access, as opposed to appeals based on a component's failure to respond, considerably narrow the volume of records and issues that must be considered. Accordingly, this approach contributes to the efficient operation of the overall appeals process, without ever actually denying a requester the right to a review of an initial action on the merits.

4 In conformity with Department of Justice regulations, all requests by individuals seeking access to records about themselves are, to the extent possible, treated as Privacy Act requests. 28 C.F.R. 16.57. In fact, however, given the nature of the records requested and the systems of records within which they are maintained (most of which have been exempted from Privacy Act access pursuant to 5 U.S.C. § 552a(j)(2)), it is quite rare for actual denials of access to be predicated on specific Privacy Act exemptions. Such exemptions were cited in approximately 3% of the cases adjudicated by the appeals office and, in most of those cases, FOIA exemptions were cited as well. Nonetheless, all first-party requests are being treated as Privacy Act for purposes of case count. For purposes of cost allocation, however, only 2% are being allocated to the Privacy Act.

5 See note 1, supra. All 49 cases were remanded.

6 See note 2, supra.

7 See note 3, supra.

8 The Departmrnt of Justice does not process requests for materials which are submitted by individuals who are fugitives from justice. Such an individual will not be considered to have perfected his request until he regularizes his legal status. This policy is curently being challenged in Doyle v. Department of Justice, Civil Action No. 79-2733 (D.D.C., filed October 12, 1979).

9 See note 4, supra.


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