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

During 1986, the Department of Justice's Office of Informa- tion and Privacy (OIP), located within the Department's Office of Legal Policy, engaged in numerous activities in discharging 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(e), is set forth below.

(a) Counseling

One of the primary means by which the Department encouraged agency compliance with the FOIA during 1986 was through OIP's counseling activities, which were conducted for the most part over the telephone by experienced OIP attorneys known to personnel at other agencies as a "FOIA Counselor." Through this "FOIA Counselor" function, OIP provided information, advice and counseling services to all federal agencies with questions relating to the proper interpretation or implementation of the Act. While most of this counseling was conducted by telephone, other options were made available for particularly complex matters. The counseling services provided by OIP during 1986 consisted of the following:

(1) OIP continued to provide basic "FOIA Counselor" advice over the telephone on a broad range of FOIA-related topics. Most of the calls received 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) (1986)--and it has been found that such consultations are of great value in encouraging agency compliance with the FOIA.) There were 1,744 inquiries handled by OIP in this way during 1986, which again marked a considerable increase over the numbers of such inquiries received in previous years.

(2) Frequently, a "FOIA Counselor" inquiry is of such complexity or arises at 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 1986.

(3) Occasionally, a determination is made that a matter requires 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 thoroughly discussed and resolved. There were approximately 15 such formal consultations in 1986.

(4) An additional counseling service provided by OIP involves FOIA matters in litigation, where advice and guidance is provided at the request of, and in coordination with, the Department's litigating divisions. This service involves OIP attorneys reviewing the issues and proposed litigation positions in a case from both legal and policy standpoints and developing positions and strategy which promote uniformity and agency com-pliance. Most often, these consultations are provided by one or both of OIP's co-directors; they sometimes warrant the involvement of the Assistant Attorney General for Legal Policy. There were approximately 150 such litigation consultations in 1986, including 57 involving recommendations as to the advisability of initial or further appellate court review and 11 involving the question of whether to seek or oppose certiorari in the United States Supreme Court.

(b) FOIA Update

The Department continued its expanded and upgraded quarterly policy publication, FOIA Update, during 1986. This publication provides FOIA-related information and policy guidance to all fed-eral employees governmentwide 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. More than 3,000 copies of FOIA Update were disseminated quarterly to agency FOIA personnel nationwide, without charge. Additionally, guidance items published in FOIA Update are used regularly in Justice Department FOIA training sessions and are made available for such programs 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 1986, FOIA Update had a paid circulation of approximately 1,100.

In 1986, OIP addressed certain procedural aspects of FOIA administration through articles published in FOIA Update. In the Winter 1986 issue, it reviewed the use of the FOIA by "surrogate" FOIA requesters and also stressed the importance of inter-agency coordination of related FOIA requests, in order to promote uniformity of agency action. OIP also addressed the continued availability of FOIA training programs for federal agencies, including the impact of increased budgetary constraints on such programs, in the Summer 1986 issue. Additionally, FOIA Update reported on the legislative developments leading up to the passage of the Freedom of Information Reform Act of 1986, summarized the provisions which ultimately became law, and published the President's signing statement issued upon that event.

OIP also compiled an updated list of the principal FOIA legal and administrative contacts at all federal agencies, which it published in the Spring 1986 issue of FOIA Update. Also published in FOIA Update during 1986 were 20 "Significant New Decisions," which advised agency FOIA personnel of major FOIA case law developments throughout the year. Through FOIA Update, OIP also provided quarterly announcements of FOIA and Privacy Act training opportunities scheduled nationwide.

(c) Research, Reference and Guidance Aids

A new edition of the Freedom of Information Case List was published by the Department in September 1986. The number of access cases indexed according to specific FOIA exemptions and other topics increased to 2,504. 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 principal federal access statutes. Also included in the 1986 edition of the Case List was the "Justice Department Guide to the Freedom of Information Act," an updated and expanded version of the "Short Guide to the FOIA" published previously. As expanded, the "Justice Department Guide to the FOIA" is a detailed 118-page discussion of the Act's exemptions and major procedural aspects, containing extensive references to FOIA case law authority, which OIP updates each year.

OIP distributed courtesy copies of the 1986 Case List to each federal agency, to certain congressional offices, and to other interested parties. It also facilitated the Case List's wide distribution within the executive branch at a low per copy cost. Additional copies were made available to agencies and to members of the public through the Government Printing Office at a cost of $16.00 per copy. In 1986, both the "Justice Department Guide to the FOIA" and FOIA Update continued to be made available to all U.S. Attorneys' Offices and many other agencies within the federal legal community though JURIS, the Justice Department's automated legal research system.

Upon the enactment near year's end of the Freedom of Information Reform Act amendments as part of the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, §§ 1801-1804, 100 Stat. 3207, 3207-48 (1986), OIP prepared a revised text of the Act, interlineated to show exactly the changes made by the amendments, which it distributed to all federal agencies and which was distributed further throughout the federal legal community in an administrative law publication of the Federal Bar Association. OIP also published this revised statutory text, together with information regarding effective dates, in FOIA Update.

(d) Policy Memoranda

The Department issued a number of FOIA policy memoranda for the guidance of federal agencies in 1986, all published and disseminated through FOIA Update. The major policy statement of 1986 was the supplemental fee waiver guidance memorandum issued by the Assistant Attorney General for Legal Policy, which addressed fee waiver requests made by libraries and other record repositories and was disseminated through the Summer 1986 issue of FOIA Update. Other major policy statements addressed the application of the "neither confirm nor deny" response (known colloquially as "Glomarization") to third-party requests for law enforcement files (Winter 1986) and the protection of federal personnel lists under Exemptions 2 and 6 of the FOIA (Summer 1986).

In addition, OIP in 1986 continued the publication in FOIA Update of a series of comparatively 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) Should a first-party access request which cites only the Privacy Act be processed under the Freedom of Information Act as well? (2) Is an agency compelled to release all portions of an awarded government contract under the FOIA? (3) Are the names of individuals who write letters to government officials protectible under Exemptions 6 and/or 7(C) of the FOIA? (4) Can the "Glomarization" defense be used to protect the privacy of persons mentioned in records other than those compiled for law enforcement purposes? (5) When a requester fails to pay properly assessed search and/or duplication fees, despite his previous commitment to pay such an amount, may the agency refuse to process subsequent requests until that outstanding balance is paid? (6) Does a draft document have to differ from a final document to be protectible under Exemption 5? (7) Does the Trade Secrets Act, 18 U.S.C. § 1905, qualify as a nondisclosure statute under Exemption 3 of the FOIA? (8) Is an agency required to provide a Vaughn index at the administrative level? (9) Can factual information be protected under the deliberative process privilege of Exemption 5?

(e) Training

During 1986, OIP furnished speakers and workshop instructors for numerous seminars, conferences, individual agency training sessions and similar programs designed to improve understanding of the FOIA. Seventeen different attorney and paralegal staff members of OIP gave a total of 121 training presentations during the year, with an increased emphasis placed on special training sessions for individual agencies in 1986. Additionally, the co-directors of OIP gave a total of 37 presentations at various FOIA programs, including those held by the Federal Bar Association, the American Bar Association, the Government Affairs Institute, the Army Judge Advocate General's School, and the American Society of Access Professionals. Also, the Assistant Attorney General for Legal Policy gave a major address on FOIA issues at OPM's Eighth Annual Symposium on the FOIA and the Privacy Act.

In 1986, OIP also undertook a major adjustment of the Department's FOIA training responsibilities due to the inability of the Department's Legal Education Institute to continue its organizational role in governmentwide FOIA training. In order to ensure that such training would remain available at a high level, OIP assumed organizational as well as substantive responsibility for both the introductory and the advanced FOIA seminars, which it presented in 1986 under its own auspices. Also, a new arrangement was established by OIP with the Department's Office of Legal Education, allowing the timely continuation of the Department's two-day FOIA training program, "The Freedom of Information Act for Attorneys and Access Professionals," which became the object of unprecedented demand in 1986.

OIP also inaugurated a new FOIA training seminar in 1986, one designed for the access professional or agency official who needs only a periodic update on current FOIA case law and policy developments. Entitled the "Annual Update Seminar on the FOIA," this new training session will now be conducted at the end of September each year, immediately upon completion of work on the annual "Justice Department Guide to the FOIA," a special prepublication copy of which is provided to all participants. More than 225 attorneys and access professionals from almost all federal agencies attended the inaugural session.

(f) Briefings

OIP conducted or participated in several briefings during 1986, such as those for representatives of several foreign governments concerned with the adoption and/or implementation of their own government information access statutes. Visitors were received from Japan, Israel, Malawi, Wales, Taiwan and Ireland, and also included delegations of members of the Canadian Parliament and the Bundestag of the Federal Republic of Germany.

(g) Congressional and Citizen Inquiries

In 1986, OIP responded to 37 congressional inquiries and also to a dozen citizen complaints received directly from persons who alleged that an agency had failed to comply with the FOIA. In those instances involving an allegation of agency noncompliance, the matter was discussed with an agency representative and, where appropriate, a recommendation was made as to the steps needed to be taken by the agency to bring it into proper compliance. Additionally, OIP responded to 219 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