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

During 1990, 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 1990 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" service, OIP provided information, advice and policy guidance to the FOIA personnel at all federal agencies having questions as to the proper interpretation or implementation of the Act. (OIP has established a special telephone line to facilitate this "FOIA Counselor" service: (FTS) 368-FOIA/(202) 514-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 1990 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 "FOIA Counselor" calls received by OIP involve issues raised in connection with proposed agency responses to initial FOIA requests or administrative appeals, but many are more general anticipatory inquiries regarding agency responsibilities and administrative practice 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) (1990) -- and it has been found that such consultations are of great value in encouraging agency compliance with the Act.) There were 2,176 requests for assistance handled by OIP in this way during 1990, a continued increase over the numbers of such requests 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 1990.

(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 attorneys at which all factual, legal and policy issues related to the matter are thoroughly discussed and resolved. There were 13 such formal consultations in 1990.

(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; in many such instances, OIP is asked to consult in the drafting of briefs or petitions filed at the trial or appellate court levels. Most often, these consultations are provided by one or both of OIP's co-directors. There were approximately 150 such litigation consultations in 1990, including 42 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 1990. 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 Act. It also serves as a vehicle for the comparison of agency practices in FOIA administration. Nearly 4,000 copies of FOIA Update are disseminated to agency FOIA personnel, without charge, governmentwide. Additionally, guidance items published in FOIA Update are used in Justice Department FOIA training sessions and are made available for such programs offered by the Office of Personnel Management nationwide. FOIA Update also is sold through the Government Printing Office to nongovernmental subscribers, at a cost of $5.00 per year. In 1990, it had a paid circulation of 1,225.

In 1990, FOIA Update served as a vehicle for the governmentwide dissemination of the "Department of Justice Report on 'Electronic Record' Issues under the Freedom of Information Act," a report of the results of a Justice Department survey of federal agency positions and practices as to these emerging FOIA issues. To facilitate wide distribution of the Department's report on this exceptional subject, OIP published a special double issue of FOIA Update, followed by another extra-length issue, presenting the report through two installments in a slightly abridged form. On another topic of growing importance to FOIA administration, the Winter 1990 issue of FOIA Update contained an "On Agency Practice" discussion of the increasing effects of budgetary constraints upon the FOIA operations of federal agencies. This article, which encouraged all agencies to maximize the utility of their FOIA resources, was reprinted by request in the leading trade publication on government information issues.

Also published in FOIA Update during 1990 were 15 "Significant New Decisions" -- which advised agencies of major FOIA case law developments at the district and appellate court levels -- as well as discussions of actions taken by the United States Supreme Court and by the D.C. Circuit Court of Appeals, sitting en banc, in two particularly significant FOIA cases. 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 1990 issue of FOIA Update. Additionally, through FOIA Update, OIP provided announcements of FOIA and Privacy Act training opportunities scheduled nationwide during the year.

(c) Research, Reference and Guidance Aids

A new edition of the Freedom of Information Case List was published by the Department in September 1990. The number of access cases indexed according to specific FOIA exemptions and other topics increased to more than 3,100. 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 as a major component of the 1990 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, 198-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 1990, OIP modified the format of the "Guide" in several respects -- including an expanded table of contents, additional subheadings and a new reference heading at the top of each page -- to improve the utility of this lengthy reference tool. (Further such modifications of the "Guide" are planned for 1991.)

OIP distributed courtesy copies of the 1990 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 and made it available without cost through the Justice Department's FOIA training programs. Additional copies were made available to agencies and to members of the public through the Government Printing Office (GPO) at $20.00 per copy. In 1990, OIP implemented new publication controls designed to ensure more timely governmentwide distribution of the Case List by GPO.

During 1990, both the "Justice Department Guide to the FOIA" and FOIA Update continued to be made available to all U.S. Attorney's Offices and 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.

(d) Policy Memoranda

In 1990, OIP devoted much attention to the subject of "electronic record" issues arising under the Freedom of Information Act -- such as the FOIA status of computer software, the format of disclosure required under the Act, and the extent of agency "search" obligations within the realm of electronic media. It concluded work on its governmentwide survey of federal agency positions and practices regarding such issues, the results of which were published in the "Department of Justice Report on 'Electronic Record' Issues under the Freedom of Information Act" (Oct. 1990). This comprehensive report, which was disseminated widely through FOIA Update and through other means, presents the survey's results in both statistical and narrative summary form. It also contains extensive background discussions of the major "electronic record" issues, together with a compilation of all related authorities and references. As such, it should serve as a firm foundation for the resolution of these exceptionally difficult and controversial FOIA issues.

OIP also issued policy guidance in 1990 on the subject of the proper treatment of "unit prices" under the Act, particularly regarding requests for the disclosure of such items in unsuccessful government contract proposals. This guidance, published in the Spring/Summer 1990 issue of FOIA Update, continues a line of such guidance issued over the years on the complex interplay of the FOIA and the Federal Acquisition Regulation (FAR) as regards "unit prices." Also published in the same issue of FOIA Update was guidance as to the preclusive impact of the D.C. Circuit's decision in Schwaner v. Department of the Air Force, 898 F.2d 793 (D.C. Cir. 1990), on an agency's ability to apply Exemption 2 to lists of names and office addresses of federal employees.

(e) Training

During 1990, OIP furnished speakers and workshop instructors for numerous seminars, conferences, individual agency training sessions and similar programs designed to improve understanding of the FOIA. Twelve different attorney and paralegal staff members of OIP gave a total of 137 training presentations during the year, including several 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 American Society of Access Professionals, the Office of Personnel Management's Government Affairs Institute, the Army Judge Advocate General's School, and the John Marshall School of Law.

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 1990, 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 consistently high demand for FOIA training; in 1990, more than 400 persons attended. Also, OIP conducted its special "Advanced FOIA Seminar" twice in 1990, featuring presentations on "FOIA From the Nongovernmental Perspective" by a former ACLU legislative counsel and by an assistant general counsel for The Washington Post.

(f) Briefings

OIP conducted several general or specific FOIA briefings during 1990 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. It briefed representatives of the governments of several nations -- Japan, Great Britain, India and Canada -- including the First Secretaries of the British and Japanese Embassies.

(g) Congressional and Public Inquiries

In 1990, OIP responded to 36 congressional inquiries regarding FOIA-related matters. In its "FOIA Ombudsman" capacity (see FOIA Update, Fall 1987, at 2), OIP responded to 19 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 485 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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