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

During 1983, the Department of Justice's Office of Information and Privacy (OIP)* conducted 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 1983 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 provided FOIA information and counseling services to all federal agencies with questions 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 1983 were as follows:

(1) OIP continued to provide basic "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 raising novel issues 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 1,075 inquiries handled by OIP in this way during 1983.

(2) Frequently, an inquiry is of such complexity or from such a level that it warrants the direct involvement of OIP's supervisory personnel, often one of its two co-directors. There were approximately 250 inquiries of this nature handled in 1983.

(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 fifteen such formal consultations in 1983.

(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 legal and policy standpoints and developing positions promoting uniformity and agency compliance. There were an estimated 80 such litigation consultations in 1983, including 43 involving decisions regarding the advisability of initial or further appellate court review and 9 involving the question of whether to seek certiorari in the United States Supreme Court.

(b) FOIA Update

OIP continued to expand and upgrade its quarterly newsletter publication, FOIA Update, during 1983. This publication provides information 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 the comparison of agency practices in FOIA administration. Approximately 3,500 copies of FOIA Update are disseminated quarterly to agency FOIA personnel government-wide, without charge. FOIA Update is used regularly in Department of Justice 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 $8.00 per year. In 1983, it had a paid circulation of approximately 400.

In 1983, OIP continued the practice established the previous year--see FOIA Update, Sept. 1982 ("Protecting Personal Privacy")--of devoting-virtually one entire issue of FOIA Update each year to a particular FOIA topic. The Fall 1983 issue of FOIA Update was devoted to the theme of "Protecting Business Information" and contained a Guest Article entitled "The Case Against National Parks," as well as several other business- related features.

(c) Research, Reference and Guidance Aids

A new and expanded edition of the Freedom of Information Case List was published by OIP in September 1983. The number of access cases indexed according to specific FOIA exemptions and other topics increased to 1,751. 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 1983 edition of the Case List was an expanded and updated "Short Guide to the Freedom of Information Act," a 64-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 Department of Justice components. Additional copies were made available to agencies and members of the public through the Government Printing Office, at a cost of $6.50 per copy.

In 1983, OIP also collected and analyzed information from federal agencies on: (1) procedures followed in protecting business data; (2) the handling of copyrighted materials; and (3) the range and availability of FOIA training. The results of these surveys were set forth in FOIA Update. Through FOIA Update, OIP also published a mid-year list of FOIA case citations, and provided quarterly updates on available FOIA and Privacy Act training opportunities.

(d) Policy Memoranda

OIP published several policy memoranda for the guidance of federal agencies during 1983. The topics were: (1) "Fee Waiver Policy Guidance," the Department of Justice's new fee waiver guidelines, issued by former Assistant Attorney General Jonathan C. Rose; (2) "Fee Waiver Procedural Considerations," a companion piece to the new fee waiver guidelines; (3) "The Privacy Act and FOIA Exemption 3," the Department's guidance on use of the Privacy Act as an Exemption 3 statute; (4) "The Effect of Prior Disclosure: Waiver of Exemptions," an analysis of the law of waiver as it has developed under the FOIA (5) "When to Expedite FOIA Requests," guidelines governing the granting of special requests for expedited FOIA access; (6) "Attorney Work-Product Protection," an analysis of the attorney work-product privilege under FOIA Exemption 5; (7) "Copyrighted Materials and the FOIA," a policy statement dealing with the status of copyrighted works under the FOIA; and (8)"Unit Prices Under Exemption 4," which superseded previous Department of Justice guidance on this subject. All of these policy memoranda were disseminated to federal access professionals government-wide through FOIA Update.

In addition, OIP in 1983 continued and expanded the publication in FOIA Update of a series of relatively brief question-and-answer guidance pieces on procedural and substantive FOIA matters, in its "FOIA Counselor Q&A" feature. Topics covered were: (1) What showing is necessary to satisfy the threshold requirement of Exemption 7? (2) Are drafts absolutely protected under Exemption 5? (3) Can a FOIA requester go to court before the completion of the administrative process? (4) To what standards are agencies generally held on "adequacy of search" issues? (5) How are minimum payment thresholds established for FOIA fees? (6) Can an agency refuse to admit the existence of records? (7) Is one agency's recommendation to another agency a final opinion? (8) Should the practice of referring requested documents be altered by the McGehee decision? (9) Can an agency deny a FOIA request which requires a burdensome search or encompasses an enormous volume of records? (10) May an agency invoke Exemption 7(D) to protect the identity of, and information provided by, a deceased informant? (11) How should an agency respond to a FOIA request for records which are subject to a court order prohibiting disclosure? (12) What action can be taken against an employee who improperly denies a FOIA request? (13) What "cutoff" practices should be followed? (14) Can Exemption 4 be applied to personal financial information? (15) Does commercial information lose its Exemption 4 status with the passage of time? (16) How should the fourth criterion of the Justice Department's fee waiver guidance be app1ied to the media? (17) Can commercial information be protected under Exemption 5? (18) Is there a "third prong" of the National Parks test?

(e) Training

During 1983, OIP furnished speakers and workshop instructors for numerous seminars, conferences, individual agency training programs and similar sessions designed to improve understanding of the FOIA. Fifteen different attorney and paralegal staff members of OIP gave a total of 72 training presentations. Additionally, the two co-directors of OIP gave a total of 36 presentations at various training programs, including at the Legal Education Institute, the Attorney General's Advocacy Institute, the Government Affairs Institute's Fifth Annual Symposium on the FOIA and Privacy Act, and the American Society of Access Professionals Annual Symposium. One of the co-directors also debated on the subject of the Department of Justice's fee waiver policy at the Columbia University School of Journalism.

In addition, based upon the results of a FOIA Update survey of government access professionals to determine their FOIA and Privacy Act training needs, members of the OIP staff worked with the Department of Justice's Legal Education Institute (LEI) to further refine LEI's existing two-day seminar on information law and to establish an advanced FOIA seminar, which was offered for the first time in December 1983.

(f) Briefings

OIP conducted or participated in 9 briefings during 1983, including those for more than a dozen representatives of foreign governments (including a Member of the British Parliament) concerned with the adoption and/or implementation of their own access statutes.

(g) Congressional and Citizen Inquiries

In 1983, OIP responded to 34 Congressional inquiries and to 7 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 145 written citizen inquiries for information or materials, as well as to 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. It is located organizationally within the Department's Office of Legal Policy. See 28 C.F.R. § 0.23a (1984). (The Department of Justice recently revised its FOIA and Privacy Act regulations, effective as of April 30, 1984. See 49 Fed. Reg. 12248-12264 (March 29, 1984).)


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