ADMINISTRATIVE APPEALS

During 1984, 2046 new administrative appeals were received by the Office of Information and Privacy (OIP) and 2130 appeals were closed. Additionally, 53 previously closed appeals were reopened.(1) At the beginning of the year, the Office had a pending caseload of 859 appeals. There were 828 appeals on hand at the end of the year.

Freedom of Information Act Statistics

Of the 2103 appeals closed during the year, 793 involved requests under the Freedom of Information Act. The breakdown of these closings is as follows:
- Modified action resulting in total grant 30
- Reversed or remanded(2) 37
- Affirmed 371
- Modified action affirmed(3) 108
- Miscellaneous 247

The miscellaneous closings consisted of the following:

- Failure of the component to process initial action within statutory time limits(4)

101
- Judicial adjudication or appellant has filed suit 35

- Fee waiver denials:                                                                        26

affirmed         21
partial grant       4
full grant       1
  

- Requester withdrew appeal

28

- No records

18
-No agency jurisdiction (appeals from state, local or other federal agency actions) 17
- Duplicate file 8

- Not a valid appeal

7
- Referrals 5

- Expedited treatment denied

2

The statutory provisions upon which denials of Freedom of Information Act requests were based at the administrative appeals level were as follows:
5 U.S.C. § 552(b)(1) 125
5 U.S.C. § 552(b)(2) 88
5 U.S.C. § 552(b)(3) 50
5 U.S.C. § 552(b)(4) 9
5 U.S.C. § 552(b)(5) 57
5 U.S.C. § 552(b)(6) 66
5 U.S.C. § 552(b)(7)(A) 84
5 U.S.C. § 552(b)(7)(B) 1
5 U.S.C. § 552(b)(7)(C) 298
5 U.S.C. § 552(b)(7)(D) 211
5 U.S.C. § 552(b)(7)(E) 45
5 U.S.C. § 552(b)(7)(F) 8

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

Rule 6(e), Federal Rules of Criminal Procedure 20
8 U.S.C. § 1202(f) 4
15 U.S.C. § 18(a)(h) 1
15 U.S.C. § 57b-2(f) 1
18 U.S.C. § 2510 2
26 U.S.C. § 6103 7
28 U.S.C. § 534 16
42 U.S.C. § 2000g-2 2
50 U.S.C. § 403(d)(3), § 403g 3

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

Jonathan C. Rose
Assistant Attorney General
Office of Legal Policy by

Richard L. Huff, Co-Director
Office of Information and Privacy           37

Roger B. Clegg
Acting Assistant Attorney General
Office of Legal Policy by

Richard L. Huff, Co-Director
Office of Information and Privacy           237

All other closings were effected by Richard L. Huff, Co-Director, Office of Information and Privacy, Office of Legal Policy.

Privacy Act Statistics

In addition to the 793 Freedom of Information Act administrative appeals closed this year, 1337 "Privacy Act" (first-party request)(5) administrative appeals were also closed. (The Privacy Act was actually cited by the appellant in 560 of these 1337 appeals.) The breakdown of the Privacy Act appeal closings is as follows:
Modified action resulting in total grant 35
Reversed or remanded(6) 27
Affirmed 558
Modified action affirmed(7) 230
Miscellaneous 487

The miscellaneous closings consisted of the following:

- Failure of the component to process initial action within statutory time limits(8) 247
- Not a valid appeal 67
- Judicial adjudication 41
- No agency jurisdiction (appeals from state, local or other federal agency actions) 35
- Fee waiver denials affirmed 34
- No records 29
- Requester withdrew appeal 16
- Referrals 10
- Duplicate file 4

- Amendment and/or correction                                                                        2

granted         1
denied       1
  
- Expedited treatment denied 2

The statutory provisions upon which denials of first-party requests for access were based at the administrative appeals level were as follows: (9)

5 U.S.C. § 552a(k)(1) 10
5 U.S.C. § 552a(k)(2) 1
5 U.S.C. § 552a(k)(5) 35
5 U.S.C. § 552a(k)(6) 11
5 U.S.C. § 552(b)(1) 137
5 U.S.C. § 552(b)(2) 163
5 U.S.C. § 552(b)(3) 111
5 U.S.C. § 552(b)(4) 1
5 U.S.C. § 552(b)(5) 70
5 U.S.C. § 552(b)(6) 33
5 U.S.C. § 552(b)(7)(A) 184
5 U.S.C. § 552(b)(7)(C) 459
5 U.S.C. § 552(b)(7)(D) 362
5 U.S.C. § 552(b)(7)(E) 87
5 U.S.C. § 552(b)(7)(F) 36

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 35
Rule 32(c), Federal Rules of Criminal Procedure 61
18 U.S.C. § 5038 1
26 U.S.C. § 6103 5
28 U.S.C. § 534 9

The costs of processing administrative appeals were as follows:

Freedom of Information Act related expenses:
Services $299,243
Other 65,688
Total $364,931
Privacy Act related expenses:
Services $509,523
Other 111,846
Total $621,369




**** footnotes ****

1 Closed appeals were reopened primarily because the requester provided further information needed in order to process the appeal or remitted reproduction fees assessed, but previously unpaid, in connection with the initial request.

2 These include appeals in which the cases were remanded to the components with instructions to reprocess, or process for the first time, the requested records. Reprocessing follows a determination that the processing was initially carried out under an 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.

3 These represent modification of initial actions arrived at in the course of the appeals process by agreement between the component and OIP.

4 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 those 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 denying a requester the right to a review of an initial action on the merits.

5 Department of Justice practice is to treat requests by individuals seeking access to records about themselves, maintained in a system of records and retrievable under the individual's name or identifier, as Privacy Act requests. 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 relatively rare for actual denials of access to be based on Privacy Act nonsystemic exemptions. Such exemptions were cited in 47 of the cases adjudicated by OIP and in those cases FOIA exemptions were cited as well. Nonetheless, all first-party requests are being treated as Privacy Act requests for case count and cost allocation purposes.

6 See note 2, supra.

7 See note 3, supra.

8 See note 4, supra.

9 In seventeen instances, OIP affirmed the denial of records maintained in Department of Justice files, but which were under the control of either the legislative or judicial branches of the federal government.

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