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

During 1981 the Office of Information Law and Policy (OILP), a predecessor office of the newly-established Office of Information and Privacy,* conducted a number of activities to carry out the Department's responsibility to encourage agency compliance with the Freedom of Information Act (FOIA). 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

One of the primary means by which OILP encouraged agency compliance during 1981 was through its counseling services, which were conducted for the most part over the telephone by an experienced attorney known to other agency attorneys as the "FOIA Counselor." Through this "FOIA Counselor" function, OILP traditionally provided FOIA information and counseling services to any agency with a question relating to the implementation of the FOIA. While most of this counseling was conducted by telephone, other options were available for particularly significant matters. The counseling services provided by OILP during 1981 were as follows:

(1) OILP continued to provide preliminary "FOIA Counselor" telephone advice on a broad range of FOIA topics. Most of these calls involved issues raised in connection with agency responses to initial requests under the FOIA, but many were more general anticipatory inquiries regarding agency procedures and responsibilities under the Act. (The Attorney General has stated that agencies intending to deny FOIA requests should consult with OILP to the extent practicable, 28 C.F.R. § 0.23c(b) (1981), and it has been found that such consultations are of great value in encouraging agency compliance with the FOIA.) If a matter is disposed of in this preliminary way, it is termed a "summary consultation." There were approximately 950 instances in which OILP provided such preliminary advice during 1980.

(2) Occasionally, a determination was made that a matter required an in-depth analysis by OILP attorneys. This analysis is termed a "formal consultation," taking the form of a meeting between agency representatives and OILP staff at which all legal, factual, and policy issues related to a matter are fully discussed and resolved. There were nine such "formal consultations" in 1981.

(3) An additional counseling service provided by OILP involved FOIA matters in litigation, where advice or guidance was provided at the request of, and in coordination with, the Department of Justice's litigating divisions. This service involved OILP personnel reviewing the issues and proposed litigation positions and strategy in a litigation matter from both a legal and policy standpoint and developing positions promoting uniformity and agency compliance. There were an estimated 30 such litigation consultations in 1981, including 15 involving decisions regarding the advisability of initial or further appellate court review and five involving the question of whether to seek certiorari.

(b) Research, Reference and Guidance Aids

A new and expanded edition of the Freedom of Information Case List was published in September 1981. The number of cases indexed according to specific FOIA exemptions and other topics increased from 1041 to 1339. This edition also included: 1) lists of cases decided under the Privacy Act of 1974, the Federal Advisory Committee Act, and the Sunshine Act; 2) a chronological listing of relevant law review articles; and 3) an updated Topical Index of all FOIA cases listed. The Department of Justice distributed copies to each federal agency and to all DOJ components. Additionally, the Acting Director of OILP addressed the U.S. Attorneys' Conference in November 1981 and disseminated copies to all U.S. Attorneys' Offices at that time. Extra copies were made available for agencies to purchase through the Government Printing Office.

OILP also solicited, collected and analyzed information from federal agencies on seven occasions during 1981:

1. All agencies were asked to contribute recommendations for legislative changes. OILP gathered and analyzed this information, prepared charts and analyses which culminated in the Administration's proposed FOIA Improvements Act (S. 1751; H.R. 4805), introduced on October 15, 1981. OILP also prepared additional materials for use in support of these legislative efforts.

2. Nearly 100 different federal agencies were surveyed to determine the administrative costs of the Freedom of Information Act. The information obtained through this survey was analyzed and put into chart form for use in support of testimony presented to various Congressional committees.

3. Selected agencies were surveyed to determine time limit problems in an effort to explore and further substantiate the need for time limit changes as part of the legislative package.

4. Selected agencies were surveyed to determine the numbers of FOIA requests falling into various categories; the results were used in Congressional testimony.

5. All agencies were surveyed on the subject of fee regulations. The information obtained was analyzed, was put into chart form, and was published as part of a study compiled by the Administrative Conference of the United States.

6. Selected agencies were surveyed to determine the existence and status of FOIA requests for release of Transition Team documents.

7. Several agencies were surveyed on use of paralegals in FOIA work.

(c) Policy Papers

OILP published several policy memoranda for the guidance of federal agencies during 1981. The topics included: 1) Fee Waivers; 2) Exemption Six Applicability; 3) The Attorney General's Memorandum To All Agencies Concerning New Policy Directions (May 1981); 4) Release of Federal Job Data; 5) FOIA and Discovery; 6) Determining Attorney's Fees; and 7) Disclosure of Prices in Government Contracts.

(d) Training

On 35 occasions during 1981, the Acting Director or other OILP personnel appeared as speakers or participants at seminars, conferences, and similar sessions designed to improve understanding of the FOIA.

(e) Briefings

OILP conducted 14 briefings during 1981, of which 10 were conducted for representatives of foreign countries considering freedom of information acts.

(f) Congressional and Citizen Inquiries

OILP responded to 12 Congressional inquiries and to 25 citizen complaints received directly from persons who alleged that an agency had failed to comply with the FOIA. In those instances where the matter involved an allegation that an agency had failed to comply with the Act, the matter was discussed with an agency representative and, where appropriate, a recommendation was made as to the steps that should be taken by the agency to bring it into proper compliance. Additionally, OILP responded to 56 written citizen inquiries for information or materials, as well as innumerable such inquiries received by telephone.

(g) FOIA Update

OILP continued publication of its quarterly newsletter FOIA Update during 1981. This newsletter provides legal and policy guidance to federal employees nationwide whose duties include responsibility for legal and/or administrative work related to the FOIA. It also serves as a vehicle for sharing innovative ideas regarding FOIA administration. OILP polled its readership in 1981 and received excellent comments on FOIA Update. The 1981 circulation was approximately 4,000, with a paid non-federal circulation of 179.

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* The Office of Information and Privacy was established on March 4, 1982, by Department of Justice Order No. 973-82, 47 Fed. Reg. 10809, to discharge the responsibilities previously carried out by the Office of Information Law and Policy and the Office of Privacy and Information Appeals.

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