(a) Counseling
(1) OIP continued to provide basic "FOIA Counselor" guidance 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) (1988) -- and it has been
found that such consultations are of great value in encouraging agency compliance with the FOIA.)
There were 2,010 inquiries handled by OIP in this way during 1988, a continued 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 450 inquiries of this nature handled in 1988.
(3) Occasionally, a determination is made that a matter requires more extensive discussion and
analysis by OIP attorneys, including supervisory 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 21 such formal consultations in 1988.
(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 strategies
which promote uniformity and agency compliance. Most often, these consultations were provided
by one or both of OIP's co-directors; they sometimes warranted the involvement of the Assistant
Attorney General for Legal Policy. There were approximately 150 such litigation consultations in
1988, including 62 involving recommendations as to the advisability of initial or further appellate
court review and 14 involving the question of whether to seek or oppose certiorari in the United
States Supreme Court.
(b) FOIA Update
OIP continued to publish its quarterly FOIA policy and newsletter publication, FOIA Update, in
1988. 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 are 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 1988,
it had a paid circulation of 1,225.
In 1988, OIP addressed certain procedural aspects of FOIA administration through articles
published in FOIA Update, with an emphasis on legislative developments. The Winter 1988 issue
discussed congressional consideration of proposed legislation to promote U.S. competitiveness
through new FOIA protections for commercially valuable scientific and technical information
generated within government laboratories. The Summer 1988 issue was devoted largely to a
congressional oversight hearing held on the implementation of the 1986 FOIA amendments, together
with related legislative developments. The Department's extensive written testimony presented at
the oversight hearing, which also serves as a guide to FOIA implementation and guidance activities
over the course of recent years, was excerpted for publication in this issue of FOIA Update.
OIP also compiled an updated list of the principal FOIA legal and administrative contacts at all
federal agencies, which it published in the Winter 1988 issue of FOIA Update. Also published in
FOIA Update during 1988 were 24 "Significant New Decisions," which advised agency FOIA
personnel of major FOIA case law developments throughout the year, and several discussions of
FOIA cases reaching or approaching the level of the United States Supreme Court. Additionally,
through FOIA Update, OIP in 1988 provided quarterly announcements of FOIA and Privacy Act
training opportunities scheduled nationwide and also formally advised of the issuance and
availability of the "Attorney General's Memorandum on the 1986 Amendments to the Freedom of
Information Act" (Dec. 1987).
(c) Research, Reference and Guidance Aids
A new edition of the Freedom of Information Case List was published by the Department in
September 1988. The number of access cases indexed according to specific FOIA exemptions and
other topics increased to 2,878. 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 1988 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,
174-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 1988, all relevant sections
of the "Guide" were revised to incorporate references to the "Attorney General's Memorandum on
the 1986 Amendments to the Freedom of Information Act" (Dec. 1987).
OIP distributed courtesy copies of the 1988 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 $17.00 per copy.
In 1988, both the "Justice Department Guide to the FOIA" and FOIA Update continued to be
made available to all U.S. Attorney's Offices and to numerous other agencies within the federal legal
community through JURIS, the Justice Department's automated legal research system. Also made
available through JURIS in 1988, and distributed widely throughout the federal government and to
the general public at the beginning of the year, was the "Attorney General's Memorandum on the
1986 Amendments to the Freedom of Information Act" (Dec. 1987), which serves as the principal
reference guide to the implementation of the 1986 FOIA amendments.
(d) Policy Memoranda
In 1988, OIP issued a number of FOIA policy memoranda and advisory discussions for the
guidance of federal agencies, all of which were published and disseminated through FOIA Update.
The major policy guidance issued during the year, entitled "Privacy Protection in the Wake of the
Reporters Committee Decisions," discussed the complications posed by the D.C. Circuit Court of
Appeals' Reporters Committee decisions to the balancing of personal privacy and public interests
under both Exemption 6 and Exemption 7(C) of the Act; it specifically advised agencies to continue
making such balancing determinations in the traditional manner, notwithstanding the D.C. Circuit's
decisions, pending review of the case and its underlying issues by the United States Supreme Court.
A second such policy memorandum, entitled "Transition Team FOIA Issues," discussed several
substantive and procedural FOIA issues that can arise in connection with the presidential transition
process; it advised agencies of the proper resolution of such issues under applicable case law
principles. Additional policy guidance statements published in FOIA Update addressed the
appropriate treatment of "briefing materials" under Exemption 5 of the Act; the propriety and
duration of "Open America stays of proceedings" in FOIA litigation; and the FOIA applicability of
the federal tax information nondisclosure statute, 26 U.S.C. § 6103.
(e) Training
During 1988, 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 134 training presentations during the year, including several special training sessions
presented to meet the specific FOIA training needs of individual federal agencies. Additionally, the
co-directors of OIP gave a total of 42 presentations at various FOIA training programs, including
those held by the Office of Personnel Management's Government Affairs Institute, the Government
Accounting Office, and the Army Judge Advocate General's School.
In addition to its regular range of FOIA training sessions offered in conjunction with the
Department's Office of Legal Education, OIP also conducted its annual FOIA training seminar in
1988, which is 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 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; nearly 400 attorneys and access professionals attended
the session held in 1988, a record number for such a training program.
In 1988, OIP also conducted a special FOIA training program for the Offices of the Inspectors
General, under the auspices of the President's Council on Integrity and Efficiency in Government,
designed to address the particular law enforcement-related FOIA issues encountered by IG staffs.
(f) Briefings
OIP conducted several general or specific FOIA briefings during 1988 for persons interested in
the operation of the Act, such as representatives of foreign governments concerned with the adoption
and/or implementation of their own government information access statutes. Visitors were received
from seven foreign nations and included the chief access adjudication official of France's Council
of State and the Information Commissioner for the Province of Ontario.
(g) Congressional and Citizen Inquiries
In 1988, OIP responded to 48 congressional inquiries regarding FOIA-related matters. In its
"FOIA Ombudsman" capacity (see FOIA Update, Fall 1987, at 2), OIP also responded to 11 citizen
complaints received directly from persons who alleged that an agency had failed to comply with the
requirements of the FOIA; in such 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 306 written citizen inquiries for information or materials, as well as
to innumerable such inquiries received by telephone.