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

During 1984, the Department of Justice's Office of Information and Privacy (OIP)* engaged in 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 1984 was through its counseling activities, 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 1984 were as follows:

(1) OIP continued to provide basic "FOIA Counselor" telephone advice on a broad range of FOlA-related topics. Most of these calls involve issues raised in connection with agency responses to initial requests under the FOIA, but many are 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) (1984)--and it has been found that such consultations are of great value in encouraging agency compliance with the FOIA.) There were approximately 1,270 inquiries handled by OIP in this way during 1984, a marked increase over the number of such inquiries received in previous years.

(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 or both of its co-directors. There were approximately 300 inquiries of this nature handled in 1984.

(3) Occasionally, a determination is made that a matter requires a more extensive discussion and analysis by OIP attorneys. Such a consultation usually involves a meeting between agency representatives and OIP personnel at which all legal, factual and policy issues related to the matter are fully discussed and resolved. There were approximately fifteen such formal consultations in 1984.

(4) An additional counseling service provided by OIP involves FOIA matters in litigation, where advice or guidance is provided at the request of, and in coordination with, the Department of Justice's litigating divisions. This service involves 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 100 such litigation consultations in 1984, including 48 involving recommendations as to the advisability of initial or further appellate court review and 8 involving the question of whether to seek or oppose certiorari in the United States Supreme Court.

(b) FOIA Update

OIP continued to expand and upgrade its quarterly newsletter publication, FOIA Update, during 1984. This publication provides FOIA-related 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 2,500 copies of FOIA Update are disseminated quarterly to agency FOIA personnel governmentwide, without charge. Additionally, 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 also is sold through the Government Printing Office to nongovernmental subscribers, at a cost of $10.00 per year. In 1984, FOIA Update had a paid circulation of approximately 350.

In 1984, OIP continued the practice established in previous years of devoting virtually an entire issue of FOIA Update each year to a particular FOIA topic. The Spring 1984 issue of FOIA Update was devoted to the theme of "Protecting Law Enforcement Data" and contained a guest article entitled "The Privacy Act as an Exemption Three Statute," as well as several other law enforcement-related features. Additionally, the Winter 1984 issue contained an index to all major items appearing in FOIA Update during its first four years of publication, and the Summer 1984 issue contained an updated directory of the administrative and legal FOIA officers at all federal agencies. Through FOIA Update, OIP also provided quarterly announcements of FOIA and Privacy Act training opportunities available nationwide.

(c) Research, Reference and Guidance Aids

A new and expanded edition of the Freedom of Information Case List was published by OIP in September 1984. The number of access cases indexed according to specific FOIA exemptions and other topics increased to 2,035. 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 1984 edition of the Case List was an expanded and updated "Short Guide to the Freedom Information Act," a detailed 83-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 $9.00 per copy.

In 1984, OIP also made arrangements to have its annual "Short Guide to the Freedom of Information Act," as well as all issues of FOIA Update, available for retrieval on the Department of Justice's JURIS ("Justice Retrieval and Inquiry System") system, the automated legal research system maintained by the Justice Department for use in its litigation activities. These FOIA guidance publications are now available through JURIS in all U.S. Attorney's Offices and at many agencies within the federal legal community.

Additionally, OIP in 1984 substantively revised the government's basic public information brochure on access to federal agency information, entitled "Your Right to Federal Records." This joint publication of the Department of Justice and the General Services Administration, available through GSA's Consumer Information Center, has consistently been one of GSA's most heavily requested public information brochures.

(d) Policy Memoranda

OIP published a number of major policy memoranda for the guidance of federal agencies during 1984. The topics addressed were: (1) "Congressional Access Under FOIA," an extensive policy statement on the propriety and practical ramifications of affording special congressional access to federal agency information: (2) "The Unique Protection of Exemption 2," an examination of the special protection available under that exemption: (3) "The 'Generic' Aspect of Exemption 7(A)," a discussion of the special evidentiary standards governing the protection of certain law enforcement information: (4) "'Agency Records' vs. 'Personal Records,'" practical guidance on determining whether certain documents are subject to the FOIA: and (5) "The Breadth of Work-product Protection," an analysis of the Exemption 5 protection available under recent Supreme Court decisions. Each of these policy memoranda was disseminated to agency FOIA officers governmentwide through FOIA Update.

In addition, OIP in 1984 continued the development and publication in FOIA Update of a series of relatively brief question-and-answer guidance discussions of selected procedural and substantive FOIA issues, through its "FOIA Counselor Q&A" feature. Topics covered were: (1) How should an agency charge applicable search fees when it has more than one request for the same records? (2) How far does an agency have to extend its review efforts to make sure that requested information withholdable under the FOIA has not previously been made public? (3) Do agencies have a duty under the FOIA to answer written questions? (4) Can an agency withhold under Exemption 7(E) investigative techniques and procedures that are not completely secret? (5) Can the identities of law enforcement personnel always be withheld under Exemption 7(C)? (6) Can Exemption 7 be invoked for information not initially compiled for law enforcement purposes? (7) Can the information given to an agency by a confidential source be protected under Exemption 7(D) even if the source ultimately testifies? (8) Can Exemption 7(A) be used to protect the records of closed or dormant investigations? (9) Can Exemption 7 be invoked for records compiled by the federal government in connection with a non-federal investigation? (10) Can Exemption 5 be invoked for criminal law enforcement records? (11) Can one federal agency ever be treated as a "confidential source" of another federal agency? (12) How does the D.C. Circuit's recent Bartel decision affect agency disclosure of personal information? (13) When an agency cannot locate any record responsive to a FOIA request, must it advise the requester of a right to file an administrative appeal? (14) Can Exemption 7 continue to be applicable to an investigatory file even if the underlying investigation does not ultimately lead to an enforcement proceeding? (15) What is the status of the legal position that the Privacy Act can serve as an Exemption 3 statute under the FOIA? (16) Does the new Federal Acquisition Regulation affect the possible applicability of Exemption 4 to unit prices contained in government contracts?

(e) Training

During 1984, OIP furnished speakers and workshop instructors for numerous seminars, conferences, individual agency training programs and similar sessions designed to improve understanding of the FOIA. Nineteen different attorney and paralegal staff members of OIP gave a total of 169 training presentations in 1984. Additionally, the co-directors of OIP gave a total of 49 presentations at various training programs, including at the Legal Education Institute, the Attorney General's Advocacy Institute, the Government Affairs Institute's Sixth Annual Symposium on the FOIA and the Privacy Act, and the American Society of Access Professionals Annual Symposium. One of the co-directors also addressed the annual conference of Veterans Administration attorneys on FOIA and Privacy Act matters.

In addition, OIP's senior staff attorney was designated as its training officer and worked extensively with the Department of Justice's Legal Education Institute (LEI) to further refine LEI's existing two-day seminar on information law and with the U.S. Department of Agriculture Graduate School to upgrade its information law training program. Due to the extremely heavy demand for FOIA training in 1984, OIP made special arrangements to expand the July 1984 session of LEI's two-day FOIA seminar to accommodate nearly 200 students, and additionally it designed a half-day introductory FOIA training session which was offered through LEI for the first time in September 1984. Through LEI, alP also offered its new advanced FOIA seminar twice in 1984.

(f) Briefings

OIP conducted or participated in 10 briefings during 1984, including those for more than a dozen representatives of 6 foreign governments concerned with the adoption and/or implementation of their own government information access statutes.

(g) Congressional and Citizen Inquiries

In 1984, OIP responded to 67 congressional inquiries and also to 8 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 275 written citizen inquiries for information or materials, as well as to innumerable such inquiries received by telephone.

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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. It is located organizationally within the Department's Office of Legal Policy. See 28 C.F.R. § 0.23a (1984). (In 1984, the Department of Justice 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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