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. § 0.28et 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:
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.