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

During 1987, the Department of Justice's Office of Information 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 1987 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. (In 1987, OIP established a special telephone line to facilitate this service, (202/FTS) 633-FOIA.) 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 1987 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) (1987)--and it has been found that such consultations are of great value in encouraging agency compliance with the FOIA.) There were 1,854 inquiries handled by OIP in this way during 1987, a continued increase over the numbers 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 450 inquiries of this nature handled in 1987.

(3) Occasionally, a determination is made that a matter requires more extensive discussion and analysis by OIP attorneys on the basis of the information provided by the agency. Such a consultation regularly 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 14 such formal consultations in 1987.

(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 close 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 compliance. 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 1987, including 55 involving recommendations as to the advisability of initial or further appellate court review and 17 involving the question of whether to seek or oppose certiorari in the United States Supreme Court.

(b) FOIA Update

The Department continued during 1987 to publish its quarterly FOIA policy publication, FOIA Update, through use of a more economical printing format developed in accordance with recent Justice Department printing regulations. This publication provides FOIA-related information and policy guidance to all federal 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 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. FOIA Update also is sold through the Government Printing Office to nongovernmental subscribers, at a cost of $5.00 per year. In 1987, it had a paid circulation of 1,225.

In 1987, OIP addressed certain procedural aspects of FOIA administration through articles published in FOIA Update. In the Winter/Spring issue, it reviewed the implementation of the fee and fee waiver provisions of the Freedom of Information Reform Act of 1986. The Summer issue disseminated the new presidential executive order governing the procedures used to protect business information requested under the FOIA, Executive Order No. 12,600 (June 23, 1987), together with an accompanying explanatory article. The Fall issue addressed the topic of alternative dispute resolution of FOIA matters, with particular focus on the "ombudsman" service provided by OIP. (In this "ombudsman" role, OIP is available to examine specific allegations of agency noncompliance with the Act that are brought to its attention by FOIA requesters or other interested persons.)

The Fall issue of FOIA Update additionally included a cumulative index of items appearing in the publication from its inception in late 1979 through the end of 1987, with all items indexed by both type and subject. Also published in FOIA Update during 1987 were 16 "Significant New Decisions," which advised agency FOIA personnel of major FOIA case law developments throughout the year, and a description of FOIA cases currently before the Supreme Court. Through FOIA Update, OIP also provided 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 1987. The number of access cases indexed according to specific FOIA exemptions and other topics increased to 2,708. 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 1987 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 in previous years. As expanded, the "Justice Department Guide to the FOIA" is a detailed 143-page discussion of the Act's exemptions and major procedural aspects, containing extensive references to FOIA case law authority, which OIP updates each year. In 1987, an entirely new section of the "Guide" was added to address the new law enforcement record "exclusions" established by the Freedom of Information Reform Act of 1986; additionally, major revisions of other portions of the "Guide" were made in accordance with this new legislation.

OIP distributed courtesy copies of the 1987 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 1987, 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.

(d) Policy Memoranda

In 1987, the Department issued major FOIA policy memoranda to guide federal agencies in their implementation of the Freedom of Information Reform Act of 1986. Most significantly, the Department issued the "Attorney General's Memorandum on the 1986 Amendments to the Freedom of Information Act," which followed in the tradition of previous such Attorney General's memoranda that were issued upon the FOIA's enactment in 1966 and at the time of the earlier major amendments to the Act in 1974. The major part of this publication consisted of detailed discussions of the law enforcement amendments enacted in 1986 -- including special procedural guidance relating to the operation of the Act's new exclusion mechanism for especially sensitive law enforcement records, in which agencies were advised to implement these new exclusion provisions with the utmost care and only in close consultation with OIP. While the primary focus of this publication was on the law enforcement amendments, it was designed to serve as the principal reference guide to the implementation of the 1986 amendments and thus contained policy guidance pertinent to all of its provisions. It was disseminated widely throughout the federal government (including through JURIS); additionally, the Government Printing Office printed more than 20,000 copies for sale to the public at $2.00 per copy.

To guide agencies in their implementation of the new fee waiver standard established by the 1986 amendments, the Assistant Attorney General for Legal Policy issued an extensive policy memorandum to the heads of all federal departments and agencies entitled, "New Fee Waiver Policy Guidance." This guidance memorandum set forth six analytical factors logically to be considered by agencies in making fee waiver determinations under the new fee waiver standard. It provided detailed discussions of each factor and encouraged agencies to consult with OIP regarding both substantive and procedural issues arising in the implementation of this new provision.

This fee waiver memorandum was additionally disseminated through its publication in , together with accompanying procedural guidance on agency implementation of the fee and fee waiver provisions of the 1986 amendments during an extraordinary "interim period" created by the amendments in early 1987. Also published in FOIA Update in 1987 was a policy guidance memorandum addressing the protection available for witness statements under the FOIA, notwithstanding their factual character, through application of the attorney work-product privilege under Exemption 5.

(e) Training

During 1987, OIP furnished speakers and workshop instructors for numerous seminars, conferences, individual agency training sessions and similar programs designed to improve understanding of the FOIA. Eighteen different attorney and paralegal staff members of OIP gave a total of 149 training presentations during the year, including several special training sessions for individual agencies. Additionally, the co-directors of OIP gave a total of 51 presentations at various FOIA programs, including those held by the Government Affairs Institute, the Army Judge Advocate General's School and the Intelligence Community Legal Conference. Also, the Assistant Attorney General for Legal Policy gave an address on FOIA issues before the American Society of Access Professionals.

In 1987, in addition to its regular range of FOIA training sessions offered in conjunction with the Department's Office of Legal Education, OIP conducted a special one-time training session specifically designed to guide law enforcement personnel in their implementation of the law enforcement provisions of the 1986 amendments. Held in the FBI's Main Auditorium at the beginning of the year, this seminar was attended by more than 250 representatives of virtually all federal law enforcement agencies and components.

OIP also continued its newest FOIA training seminar in 1987, 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," it is now conducted by OIP during the first week of October 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. This seminar has succeeded in helping to meet the extremely high demand for FOIA training; more than 300 attorneys and access professionals attended the second annual session held in 1987.

(f) Briefings

OIP conducted or participated in several briefings during 1987, such as those for representatives of foreign governments concerned with the adoption and/or implementation of their own government information access statutes. Visitors included a representative of the West German Parliament and several members of the Social and Economic Congress of Japan.

(g) Congressional and Citizen Inquiries

In 1987, OIP responded to 39 congressional inquiries and also to 6 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 236 written citizen inquiries for information or materials, as well as to innumerable such inquiries received by telephone.


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