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

During 1982, the newly established Office of Information and Privacy (OIP*) numerous 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 OIP encouraged agency compliance with the FOIA during 1982 was through its counseling services, which were conducted for the most part over the telephone by experienced attorneys known to other agency personnel as a "FOIA Counselor." Through this "FOIA Counselor" function, OIP and its predecessor policy office provided FOIA information and counseling services to any federal agency with a question relating to the proper interpretation or implementation of the FOIA. While most of this counseling was conducted by telephone, other options were available for particularly complex matters. The counseling services provided by OIP during 1982 were as follows:

(1) OIP continued to provide preliminary "FOIA Counselor" telephone advice on a broad range of FOIA-related 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 OIP to the extent practicable -- see 28 C.F.R. § 0.23a(b) (1982) -- and it has been found that such consultations are of great value in encouraging agency compliance with the FOIA.) There were approximately 990 inquiries handled by OIP in this way during 1982.

(2) Frequently, an inquiry is of such complexity or from such a level that it warrants the involvement of OIP's supervisory personnel, often one of its two co-directors. There were approximately 150 inquiries of this nature handled in 1982.

(3) Occasionally, a determination is made that a matter requires an in-depth discussion and analysis by OIP attorneys. Such a consultation usually involves a meeting between agency representatives and OIP staff at which all legal, factual and policy issues related to a matter are fully discussed and resolved. There were approximately a dozen such formal consultations in 1982.

(4) An additional counseling service provided by OIP 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 OIP attorneys reviewing the issues and proposed litigating 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 75 such litigation consultations in 1982, including 39 involving decisions regarding the advisability of initial or further appellate court review and involving the question of whether to seek certiorari in the United States Supreme Court.

(b)FOIA Update

OIP expanded and upgraded its quarterly newsletter publication, FOIA Update, during 1982. This publication provides information 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 a comparison of agency practices in FOIA administration. Approximately 3,000 copies of FOIA Update are disseminated quarterly to agency FOIA personnel governmentwide, without charge. FOIA Update is used regularly in DOJ training sessions and is made available for sessions offered nationwide by the Office of Personnel Management. It is also sold through the Government Printing Office to nongovernmental subscribers, at a cost of $5.50 per year. In 1982, its paid circulation rose to approximately 400.

(c) Research, Reference and Guidance Aids

A new and expanded edition of the Freedom of Information Case List was published by OIP in September 1982. The number of access cases indexed according to specific FOIA exemptions and other topics increased to 1529. This edition also included:

(1) lists of cases decided under the Privacy Act of 1974, the Federal Advisory Committee Act and the Government in the Sunshine Act; (2) an "overview" FOIA case list and a list of "reverse" FOIA cases; (3) a chronological listing of relevant law review articles; (4) an updated Topical Index of all FOIA cases listed; and (5) the full texts of the four primary federal access statutes. Also included in the 1982 edition of the Case List was a completely new "Short Guide to the Freedom of Information Act," a 40-page discussion of the Act's exemptions and major procedural aspects. OIP distributed copies to each federal agency, to interested congressional offices and to all DOJ components. Additional copies were made available to agencies and members of the public through the Government Printing Office, at a cost of $6.00 per copy.

In 1982, OIP also collected and analyzed information from federal agencies on: (1) procedures followed in protecting business data; (2) procedures employed in protecting personal privacy; and (3) schedules established to collect fees under the Freedom of Information Act. The results of these surveys were summarized in FOIA Update. Through FOIA Update, OIP also published a comprehensive updated list of agency FOIA legal and administrative contacts, as well as an updated list of "Basic FOIA References."

(d) Policy Memoranda

OIP published several policy memoranda for the guidance of federal agencies during 1982. Topics included: (1) "Submitters' Rights," developed and promulgated in coordination with the presidential Task Force on Regulatory Relief; (2) "An Overview of Executive Order 12356," prepared in consultation with the Information Security Oversight Office; (3) "Discovery, the Privacy Act and FOIA," guidance on the interface of the two major access laws in the civil discovery context; (4) "Protecting 'Outside' Advice," a commentary on the status of consultants' materials under the FOIA; (5) "Privacy Protection Considerations," practical guidance on selected FOIA privacy issues; and (6) "Factoring in the 'Public Interest,'" an analysis of the process by which the public interest is balanced against privacy considerations under FOIA Exemptions 6 and 7(C). All of these policy memoranda were disseminated to federal access professionals governmentwide through FOIA Update.

In addition, OIP in 1982 inaugurated the publication in FOIA Update of a series of relatively brief question-and-answer guidance pieces on procedural and substantive FOIA matters, in a new "FOIA Counselor Q&A" feature. Topics covered were: (1) Are personal notes subject to the FOIA? (2) What are the rights of foreign nationals under the FOIA? (3) Which agency is responsible for responding to a FOIA request for a referred document? (4) To what extent can the privacy of public figures be protected under the FOrA? (5) Can the public interest ever compel nondisclosure? (6) Can FOIA privacy protection be extended to corporations? (7) Can the privacy of deceased persons be protected under the FOIA? (3) Must mailing lists be disclosed under the FOIA?

(e) Training

During 1982, OIP furnished speakers and workshop leaders for numerous seminars, conferences and similar sessions designed to improve understanding of the FOIA. Thirteen different attorney and paralegal staff members of OIP gave a total of 77 training presentations. Additionally, the two co-directors of OIP gave a total of 26 presentations at various training programs, including at the Legal Education Institute, the Attorney General's Advocacy Institute, the Government Affairs Institute's Fourth Annual Symposium on the FOIA and Privacy Act, and the American Society of Access Professionals Annual Symposium. One of the co-directors also addressed FOIA legislative issues on a local radio talk show.

In addition, through FOIA Update, OIP surveyed government access professionals to determine their FOIA and Privacy Act training needs. Based upon the results of this survey, members of the OIP staff worked with the Department of Justice's Legal Education Institute (LEI) to modify LEI's existing two-day seminar on access issues and to establish an advanced FOIA course and a separate Privacy Act course.

(f) Briefings

OIP conducted or participated in 11 briefings during 1982, including those for 7 representatives of foreign governments (i.e., Japan, Australia and Canada) concerned with the adoption and/or implementation of their own access statutes.

(g) Congressional and Citizen Inquiries

In 1982, OIP responded to 41 Congressional inquiries and to 9 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, OIP responded to approximately 75 written citizen inquiries for information or materials, as well as innumerable such inquiries received by telephone.

* 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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