ADMINISTRATIVE APPEALS

During 1982, there were 1982 new administrative appeals received by the Office of Information and Privacy (OIP) and 1842 appeals were closed. At the beginning of the year, the Office had a pending caseload of 743 appeals. There were 883 appeals on hand at the end of the year.

Freedom of Information Act Statistics

Of the 1842 cases closed during the year, 800 involved requests under the Freedom of Information Act. The breakdown of these closings is as follows:
- Modified Action Resulting in Total Grant 4
- Reversed or Remanded(1) 24
- Affirmed 318
- Modified Action Affirmed(2) 62
- Miscellaneous 392

The miscellaneous closings consist of the following:

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

228

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

39

- Fee waivers:                                                                             31

denied         24
partial         6
granted         1
  
- Requester withdrew appeal 26

- No records

21
- Referral 10
- Judicial adjudication 10
- Duplicate file 9
- Need further information 18
- Expedited treatment denied 5

- Not a valid appeal

5

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) 105
5 U.S.C. § 552(b)(2) 45
5 U.S.C. § 552(b)(3) 52
5 U.S.C. § 552(b)(4) 6
5 U.S.C. § 552(b)(5) 44
5 U.S.C. § 552(b)(6) 45
5 U.S.C. § 552(b)(7)(A) 40
5 U.S.C. § 552(b)(7)(B) 0
5 U.S.C. § 552(b)(7)(C) 251
5 U.S.C. § 552(b)(7)(D) 181
5 U.S.C. § 552(b)(7)(E) 34
5 U.S.C. § 552(b)(7)(F) 5

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

Rule 6(e), Federal Rules of Criminal Procedure 24
8 U.S.C. § 1304 1
15 U.S.C. § 18(a)(h) 2
15 U.S.C. § 1313(c), 1314(g) 1
18 U.S.C. § 5038 1
26 U.S.C. § 6103 1
28 U.S.C. § 534 17
50 U.S.C. § 403(d)(3), § 403g 5

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

Assistant Attorney General
Office of Legal Policy

Jonathan C. Rose by
Richard L. Huff, Co-Director
Office of Information and Privacy                 383

Assistant Attorney General
Office of Legal Policy

Jonathan C. Rose by
Daniel J. Metcalfe, Co-Director
Office of Information and Privacy                 1

Assistant Attorney General
Office of Legal Policy

Jonathan C. Rose by
Jean K. FitzSimon, Acting Director
Office of Information and Privacy                 20

All miscellaneous closings were effected the Co-Directors or Acting Director of the Office of Information and Privacy, either in their own names or for the Assistant Attorney General, Office of Legal Policy.

Privacy Act Statistics

In addition to the 800 Freedom of Information administrative appeals closed this year, 1042 "Privacy Act" (first-party request)(4) administrative appeals were also closed. The Privacy Act was actually cited by the appellant in 486 of these 1182 appeals. The breakdown of the Privacy Act appeal closings is as follows:
Modified Action Resulting in Total Grant 2
Reversed or Remanded(5) 15
Affirmed 431
Modified Action Affirmed(6) 171
Miscellaneous 477

The miscellaneous closings consist of the following:

- Failure of the component to process initial action within statutory time limit(7) 288
- No agency jurisdiction (appeals from state, local or other federal agency actions) 34
- Need further information 30
- Not a valid appeal 7

- Fee waivers:                                                                        25

denied         25
 
- No records 21
- Referral 17
- Duplicate file 16
- Requester withdrew appeal 8

- Amendment and/or correction                                                                5

granted         1
denied       4
-Unable to locate appellant 3
- Judicial adjudication 2
- Expeditd treatment denied 1

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(k)(1) 4
5 U.S.C. § 552a(k)(5) 4
5 U.S.C. § 552(b)(1) 186
5 U.S.C. § 552(b)(2) 82
5 U.S.C. § 552(b)(3) 28
5 U.S.C. § 552(b)(4) 0
5 U.S.C. § 552(b)(5) 40
5 U.S.C. § 552(b)(6) 23
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) 386
5 U.S.C. § 552(b)(7)(D) 308
5 U.S.C. § 552(b)(7)(E) 68
5 U.S.C. § 552(b)(7)(F) 14
5 U.S.C. § 552(b)(9) 1

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 22
18 U.S.C. § 2510 1
26 U.S.C. § 6103 1
28 U.S.C. § 534 2
28 U.S.C. § 592 (b)(3), (d)(2) 1
50 U.S.C. § 403(d)(3), 403g 2

The costs of processing administrative appeals were as follows:

Freedom of Information Act related expenses:
Services $371,993
Other 81,657
Total $453,650
Privacy Act related expenses:
Services $493,107
Other 108,243
Total $601,350




**** footnotes ****

1 This includes 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 OIP.

3 Upon receipt of an appeal based on the component's failure to locate and process requested records within the statutory time limits, OIP 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. OIP also advises the requester that, if he or she is dissatisfied with the component's ultimate 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 as a denial of the appeal and bring suit in an appropriate federal court. It has been OIP's experience 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, 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 denial of access to be predicated on specific Privacy Act exemptions. Such exemptions were cited in approximately 8 of the cases adjudicated by OIP and, in most of those cases, FOIA exemptions were cited as well. Nonetheless, all first-party requests are being treated as Privacy Act requests for purposes of case count and cost allocation.

5 See note 1, supra.

6 See note 2, supra.

7 See note 3, supra.


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