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

During 1989, the Department of Justice, through its Office of Information and Privacy (OIP), 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 1989 was through OIP's counseling activities, which were conducted largely 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 policy guidance to all federal agencies with questions relating to the proper interpretation or implementation of the Act. (OIP has established a special telephone line to facilitate this "FOIA Counselor" 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 1989 consisted of the following:

(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) (1989) -- and it has been found that such consultations are of great value in encouraging agency compliance with the FOIA.) There were 2,041 inquiries handled by OIP in this way during 1989, 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 400 inquiries of this nature handled in 1989.

(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 ordinarily 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 16 such formal consultations in 1989.

(4) An additional counseling service provided by OIP involves FOIA matters in litigation, where advice and guidance are 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. There were approximately 150 such litigation consultations in 1989, including 47 involving recommendations as to the advisability of initial or further appellate court review and 13 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 1989. 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 3,500 copies of FOIA Update are disseminated to agency FOIA personnel, without charge, nationwide. Additionally, guidance items published in FOIA Update are used 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 1989, it had a paid circulation of 1,225.

In 1989, FOIA Update reflected a year of exceptionally heavy FOIA activity in the United States Supreme Court with a series of articles addressing both current and prospective Supreme Court developments in FOIA cases. Each of the three major FOIA decisions handed down by the Court during the year was discussed in a "Supreme Court Update" article, together with ancillary developments. Also published in FOIA Update during 1989 were 16 "Significant New Decisions," which advised agencies of major FOIA case law developments at the district and appellate court levels. Additionally, the Spring 1989 issue of FOIA Update contained an introductory discussion of "electronic record" issues under the FOIA, which were the subject of a governmentwide survey commenced by OIP in 1989. See also FOIA Update, Summer 1989, at 2.

In the Fall 1989 issue of FOIA Update, OIP marked the end of the first decade of FOIA Update's publication with a cumulative index of items appearing in it from its inception in late 1979, with all items indexed by both type and subject. OIP also compiled an updated list of the principal FOIA legal and administrative contacts at all federal agencies, for use and reference by all FOIA personnel, which it published in the Winter 1989 issue of FOIA Update. Additionally, through FOIA Update, OIP in 1989 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 1989. The number of access cases indexed according to specific FOIA exemptions and other topics increased to more than three thousand. This volume also included: (1) lists of cases decided under the Privacy Act, 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 list of related law review articles; (4) an updated topical index of all FOIA cases listed; and (5) the full texts of the four major federal access statutes.

Also included in the 1989 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, 190-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 1989, major revisions of the "Guide" were made to incorporate the principles set forth in Department of Justice v. Reporters Committee for Freedom of the Press, 109 S. Ct. 1468 (1989), the Supreme Court's landmark FOIA decision governing the protection of personal privacy interests under the Act.

OIP distributed courtesy copies of the 1989 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 (GPO) at a cost of $18.00 per copy. In 1989, OIP worked to establish new printing procedures and controls designed to ensure more timely governmentwide distribution of the Case List by GPO. See FOIA Update, Fall 1989, at 2.

In 1989, both the "Justice Department Guide to the FOIA" and FOIA Update continued to be made available to all U.S. Attorney's Offices and many other agencies within the federal legal community through JURIS, the Justice Department's automated legal research system. Also made available through JURIS 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.

Additionally, OIP in 1989 worked to update and revise the federal government's basic public information brochure on access to agency information, entitled "Your Right to Federal Records," for its issuance in a new edition. This joint publication of the Department of Justice and the General Services Administration (GSA), made available to the general public through GSA's Consumer Information Center, is designed to answer the basic questions of persons interested in exercising their statutory rights under federal access laws. It has consistently been one of the Consumer Information Center's most heavily requested brochures.

(d) Policy Memoranda

In 1989, 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 concerned the process by which agencies balance personal privacy interests against "public interest" considerations under Exemptions 6 and 7(C) of the Act -- which was greatly altered by the Supreme Court's decision in Department of Justice v. Reporters Committee for Freedom of the Press, 109 S. Ct. 1468 (1989). OIP issued an extensive analysis of both the substance and the ramifications of the five new privacy-protection principles set forth by the Supreme Court in Reporters Committee, together with a step-by-step guide to proper agency decisionmaking under Exemptions 6 and 7(C).

Another such policy memorandum, entitled "Protecting Vulnerability Assessments Through Application of Exemption Two," discussed the applicability of the "circumvention" protection of Exemption 2 to vulnerability assessments and security plans, such as those now regularly prepared by agencies under the Computer Security Act of 1987. Additional policy guidance statements published in FOIA Update addressed the proper procedural application of the privacy "Glomarization" principle under Exemption 7(C) in light of the Supreme Court's Reporters Committee decision, and discussed the growing practice of submitting FOIA requests to federal agencies via facsimile ("fax") machine.

(e) Training

During 1989, OIP furnished speakers and workshop instructors for numerous seminars, conferences, individual agency training sessions and similar programs designed to improve understanding of the FOIA. Sixteen different attorney and paralegal staff members of OIP gave a total of 152 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 53 presentations at various FOIA training programs, including those held by the Office of Personnel Management's Government Affairs Institute, the American Society of Access Professionals 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 1989, 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 annual half-day seminar has succeeded in efficiently meeting the extremely high demand for FOIA training. In 1989, in fact, the demand for this seminar was so exceptionally high that OIP presented an extra session of this seminar in order to accommodate, through two sessions, the nearly 600 persons who wished to attend. Additionally, on the second of the two days on which this seminar was held in 1989, OIP conducted a special afternoon training session devoted entirely to the holdings and ramifications of the Supreme Court's landmark Reporters Committee decision; several hundred participants attended this special training session as well.

(f) Briefings

OIP conducted several general or specific FOIA briefings during 1989 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. Eleven visitors were received from foreign nations, including members of the Bundestag of the Federal Republic of Germany and the Head of the Information Law and Privacy Division of the Canadian Ministry of Justice.

(g) Congressional and Public Inquiries

In 1989, OIP responded to 52 congressional inquiries regarding FOIA-related matters. In its "FOIA Ombudsman" capacity (see FOIA Update, Fall 1987, at 2), OIP responded to 16 complaints received directly from members of the public 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 the agency 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 504 written inquiries from members of the public seeking information or materials -- a considerable increase over the numbers of such written inquiries received in previous years -- as well as to innumerable such inquiries received by telephone.


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