DESCRIPTION OF DEPARTMENT OF JUSTICE
EFFORTS TO ENCOURAGE AGENCY
COMPLIANCE WITH THE ACT
During 1985, 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 1985 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 1985 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 involve issues raised in connection with agency responses
to initial requests or administrative appeals 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) (1985)--and it has been
found that such consultations are of great value in encouraging
agency compliance with the FOIA.) There were 1,403 inquiries
handled by OIP in this way during 1985, a considerable 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 350 inquiries of this nature handled in
1985.
(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 15 such formal consultations
in 1985.
(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 litigation 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 1985, including 51 involving recommendations as
to the advisability of initial or further appellate court review
and 9 involving the question of whether to seek or oppose
certiorari in the United States Supreme Court.
(b) FOIA Update
OIP continued its expanded and upgraded quarterly policy
publication, FOIA Update, during 1985. 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 2,300 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 1985, FOIA Update had a paid circulation of
approximately 1,100.
In 1985, OIP canvassed various procedural aspects of FOIA
administration through "On Agency Practice" articles published in
FOIA Update. The topics addressed were the protection of national
security information under the FOIA (Winter 1985 issue), the
coordination of FOIA litigation (Summer 1985 issue), and the
mechanics of processing records under the FOIA (Fall 1985 issue).
Additionally, the Spring 1985 issue of FOIA Update presented a
comprehensive history of FOIA litigation at the Supreme Court
level, including a chart of all such decisions. 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 edition of the Freedom of Information Case List was
published by OIP in September 1985. The number of access cases
indexed according to specific FOIA exemptions and other topics
increased to 2,278. 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 1985 edition of the Case List was an expanded and updated
"Short Guide to the Freedom of Information Act," a detailed 101-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 1985, OIP also continued 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.
(d) Policy Memoranda
OIP published a number of major policy memoranda for the guidance
of federal agencies during 1985. The topics addressed were: (1)
"Protecting Intrinsic Commercial Value," an analysis of the basis
for obtaining novel protection of a submitted record's intrinsic
worth under FOIA Exemption 4; (2) "The Attorney-Client
Privilege," a discussion of that traditional privilege as it can
be applied under FOIA Exemption 5; (3) "Discretionary Disclosure
and Exemption 4," practical guidance on the logical relation of
Exemption 4 and the Trade Secrets Act, 18 U.S.C. § 1905; (4)
"'preclusion' Doctrines Under the FOIA," an examination of the
legal doctrines of res judicata and collateral estoppel in FOIA
litigation; and (5) "Protecting Settlement Negotiations," a
statement of Department of Justice policy on the protection of
settlement negotiation information under various FOIA exemptions.
Each of these policy memoranda was disseminated to agency FOIA
officers governmentwide through FOIA Update.
In addition, OIP in 1985 continued the 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. The topics covered
were: (1) Can an agency supplement its rationale for denying a
fee waiver request after the requester brings suit? (2) Can the
identities of FOIA requesters be withheld under the FOIA? (3) Can
a federal agency ever make a FOIA request for the records of
another agency? (4) Are FOIA lawsuits routinely entitled to
priority in court over other civil actions? (5) Can a FOIA
requester require an agency to make "automatic" releases of its
records as they are created? (6) Can the deliberative process
privilege under Exemption 5 be invoked to withhold the identities
of authors of predecisional documents? (7) May a requester
involved in ongoing litigation use the FOIA as a collateral
method of discovery? (8) Can a document which constitutes or
incorporates an agency's final decision not to proceed any
further with ongoing litigation be protected by the attorney
work-product privilege under Exemption 5? (9) Are the protections
afforded by Exemptions 6 and 7(C) limited to United States
citizens? (10) Is an agency obligated to process documents and
make them available for viewing by a requester without the
assessment of a duplication fee? (11) Are records of federal
employment background investigations "investigatory records
compiled for law enforcement purposes" under Exemption 7? (12)
Can any harm ever result from an agency's failure to notify a
FOIA requester of his administrative appeal rights?
(e) Training
During 1985, OIP furnished speakers and workshop instructors for
numerous seminars, conferences, individual agency training
programs and similar sessions designed to improve understanding
of the FOIA. Sixteen different attorney and paralegal staff
members of OIP gave a total of 116 training presentations in
1985. Additionally, the co-directors of OIP gave a total of 47
presentations at various training programs, including at the
Legal Education Institute, the Attorney General's Advocacy
Institute, the Government Affairs Institute's Seventh 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 a nationwide gathering of NASA access
professionals on FOIA and Privacy Act matters.
In addition, OIP's training officer continued to work extensively
with the Department of Justice's Legal Education Institute on the
presentation of free seminars for government access professionals
on the Freedom of Information Act. Due to the continuing
popularity of these courses, OIP conducted a successful
experiment in October 1985 using video equipment to meet an
overflow demand for the basic two-day seminar; OIP also presented
its new half-day introductory FOIA session twice in 1985 to
further meet this high demand. Further, OIP's training officer
supervised the revision of the FOIA seminar taught at the U.S.
Department of Agriculture Graduate School to focus on
administrative aspects of the Act and to avoid substantial
duplication of the Department of Justice's course offerings on
the FOIA.
(f) Briefings
OIP conducted or participated in 10 briefings during 1985, such
as those for representatives of several foreign governments
concerned with the adoption and/or implementation of their own
government information access statutes, including the Deputy
Attorney General of Brazil.
(g) Congressional and Citizen Inquiries
In 1985, OIP responded to 43 congressional inquiries and also to
14 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
342 written citizen inquiries for information or materials, as
well as to innumerable such inquiries received by telephone.
Go to: Table
of Contents // DOJ FOIA Page // Justice
Department Home Page