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

During 1980 the Office of Information Law and Policy (OILP), with the assistance of the Department's Freedom of Information Committee (FOIC), conducted a number of activities to carry out the Department's duty to encourage agency compliance with the Freedom of Information Act (FOIA). 28 C.F.R. § 0.28 et seq. A summary description of these activities, which is required by the last sentence of 5 U.S.C. § 552(d), is set forth below:

(a) Counseling

The heart of OILP's programs to encourage agency compliance is its counseling services. It provides such services whenever an agency has a question relating to implementation of the FOIA but, because of the large number of FOIA requests, concentrates on those matters which have reached either the administrative appeal or litigation stages. In a majority of instances the counseling services are furnished in phone conversations. For more significant matters, however, various options are available. These range from a meeting between agency personnel and OILP attorneys to consideration (with appropriate advance documentation) by the FOIC. The counseling services provided by OILP during 1980 were as follows:

(1) OILP continued to provide preliminary, informal telephone advice on a broad range of FOIA topics. Many of these calls involve issues concerning agency responses to initial requests. We believe that providing this service is of significant value in encouraging agency compliance. While it is impossible for OILP with its current staff to provide guidance on all initial requests, it is desirable to catch as many unsound (for reasons of law or policy) proposed denials at this stage as is possible. There were approximately 700 instances in which OILP provided such preliminary advice during 1980.

(2) On infrequent occasions a determination will be made that a matter still in its preliminary stages requires an in-depth analysis by OILP attorneys and, when appropriate, the FOIC (or selected members thereof). This analysis is termed a "preconsultation" and consists of a meeting between agency representatives and the Justice Department personnel indicated above. At this meeting the legal, factual, and policy issues related to the matter are discussed. There were 8 preconsultations in 1980.

(3) The Attorney General has stated that agencies which intend to deny a FOIA request at the administrative appeals stage should consult OILP. (28 C.F.R. § 0.29a(b).) As a practical matter, this is not interpreted to include appeals involving simple, repetitive issues. Agency counsel are expected to identify those contemplated final denials which involve substantial difficulty or importance on which OILP should be consulted, and most agencies do. There are several agencies, however, which never consult OILP.

Normally on appeal denials, consultations consist of a telephone discussion between an OILP attorney and one at the agency. This discussion normally covers the identity of the requester, the nature of the records involved, the legal justifications (exemptions) asserted as the basis for withholding, and the policy considerations relevant to the proposed withholding. If the matter is disposed of in this phone conversation, it is termed a "summary consultation." There were 159 summary consultations in 1980.

(4) If a proposed appeal denial appears to present sufficient difficulty or importance to make handling in the above summary method inappropriate, the proposed denial will be handled in one of two ways as a "special consultation" or an "in- depth consultation." The first type is a meeting, without advance documentation, between agency representatives, OILP attorneys, and, where appropriate, various members of the FOIC. The second type is similar but always includes advance documentation and the FOIC. At these meetings, all legal and policy issues relevant to the proposed denial are discussed. There were 7 in-depth consultations and 14 special consultations during 1980.

(5) The final counseling service provided by OILP is that involving FOIA matters in litigation. The providing of advice or guidance at this stage is always coordinated with the litigating division. OILP, with the assistance of the FOIC when appropriate, reviews the issues and proposed litigation positions and strategy from both a legal and policy standpoint and develops a position which it believes will most encourage agency compliance with the FOIA. There were an estimated 64 matters involving agencies in active litigation on which there were consultations in 1980. These broke down to 4 district court cases, 48 matters at the appellate stage and 12 recommendations on the advisability of seeking certiorari.

NOTE: The FOIC met on several occasions during 1980 to consider either subjects of a general FOIA nature or matters related solely to Justice Department FOIA matters. These discussions did not relate directly to encouraging agency compliance, but did provide valuable assistance to OILP in formulating the advice and guidance it gives to agencies in furnishing the counseling services described above.

(b) Research, Reference and Guidance Aids

A new and expanded edition of the Freedom of Information Case List was published in September. The number of cases indexed as to the FOIA exemptions and other topics increased from 689 to 1041. Several of these cases involve two or more separate decisions. This edition included: (1) lists of cases involving the Privacy Act, the Federal Advisory Committee Act, and Sunshine Act; (2) a chronological listing of relevant law review articles; and (3) an updated version of A Short Guide to the Freedom of Information Act. The Department of Justice distributed copies to each federal agency and to each United States Attorney's Office. Additional copies are available for purchase from the Government Printing Office.

(c) Policy Papers

OILP promulgated 2 policy memoranda (copies attached) for the guidance of federal agencies:

1. Status of Internal Audit Reports Under FOIA (May 16, 1980).

2. Disclosures to Members of Congress in Light of Murphy (May 29, 1980).

(d) Training

On 49 occasions during 1980 the Director or other attorneys of OILP appeared as a speaker at seminars, conferences, and similar efforts designed to improve understanding of the FOIA.

(e) Briefings

OILP conducted 23 briefings during 1980 of which 19 were for foreign officials and scholars whose countries are considering freedom of information acts.

(f) Citizen Complaints

OILP responded to 26 Congressional inquiries and 85 citizen complaints directly from citizens relating to administration of the FOIA during 1980. In those instances where the matter involved an allegation that an agency had failed to comply with its requirements, the matter was discussed with an agency representative, and, where appropriate, a recommendation was made as to what steps the agency should take to bring itself into compliance with these requirements.

(g) Newsletter

OILP continued publication of FOIA Update during 1980. This quarterly newsletter provides legal and policy guidance to several thousand federal officials whose duties include responsibilities related to the administration of their agency's FOIA program. It also serves as a tool for sharing innovative ideas in administering FOIA.


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