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

During 1991, 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 1991 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 1991 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 practices 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) (1991) -- and it has been found that such consultations are of great value in encouraging agency compliance with the Act.) More than 2,000 inquiries were handled by OIP in this way during 1991, a continued high volume of such assistance requests.

(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 1991.

(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 17 such formal consultations in 1991.

(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 1991, including 37 involving recommendations as to the advisability of initial or further appellate court review and nine 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 1991. 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. It had a paid circulation of 1,225 in 1991.

In 1991, FOIA Update addressed the subjects of both governmentwide and agency-specific training conducted under the Act. In an "On Agency Practice" article appearing in the Spring 1991 issue of FOIA Update, OIP described several recent successful examples of specialized FOIA training conducted by or for individual federal agencies and it encouraged all federal agencies to make full use of available opportunities for training their personnel on the proper and uniform administration of the Act. On another subject of strong governmentwide interest, the Fall 1991 issue of FOIA Update was devoted to pending legislative proposals to amend the Act; it served as a vehicle for the wide dissemination of two Senate FOIA-amendment bills, together with a summary of their proposed provisions.

Also published in FOIA Update during 1991 were 19 "Significant New Decisions" -- which advised agencies of major FOIA case law developments at the district court and appellate court levels -- as well as discussions of actions taken by the United States Supreme Court in three particularly significant FOIA cases. OIP also compiled an updated list of the principal FOIA legal and administrative contacts at all federal agencies, for the use and reference of FOIA personnel governmentwide, which it published in the Winter 1991 issue of FOIA Update. Additionally, through FOIA Update, OIP provided quarterly 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 1991. The number of access cases indexed according to specific FOIA exemptions and other topics increased to more than 3,300. 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 1991 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, 280-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 1991, OIP undertook a major revision of the format of the "Guide" in order to further enhance its utility as a ready reference tool. It revised the "Guide" with an entirely new footnote format, separating all case citations from text discussions of points of procedure and substantive law, to better accommodate this lengthy treatise's continued development and expansion.

OIP distributed courtesy copies of the 1991 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 of the Case List were made available to agencies and to members of the public through the Government Printing Office at a cost of $22.00 per copy.

During 1991, 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 1991, OIP issued several 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 a series of novel procedural FOIA issues arising under the D.C. Circuit's decision in Oglesby v. Department of the Army, 920 F.2d 57 (D.C. Cir. 1990). In this guidance, OIP advised agencies on proper compliance with the statutory requirements of administrative exhaustion and requester notification as interpreted by the D.C. Circuit in Oglesby. Most significantly, this guidance also addressed the matter of an agency's fundamental obligation to make records "available" to a FOIA requester under subsection (a)(3) of the Act. Despite suggestions to the contrary in Oglesby, OIP specifically advised agencies to continue the traditional FOIA practice of affording FOIA requesters the benefit of "mail delivery" of disclosable records wherever requested under the Act.

OIP also issued policy guidance in 1991 regarding the handling of FOIA requests for records or information originating elsewhere than at the recipient federal agency; the proper procedures for record referrals and consultations between federal agencies regarding particularly sensitive law enforcement information; and the application of the term "government operations" under the Supreme Court's landmark Reporters Committee decision.

(e) Training

During 1991, OIP furnished speakers and workshop instructors for numerous seminars, conferences, individual agency training sessions and similar programs designed to improve understanding of the FOIA. Thirteen different attorney and paralegal staff members of OIP gave a total of 170 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 46 presentations at various FOIA training programs, including those held by the American Bar Association, the American Society of Access Professionals, the Army Judge Advocate General's School, and the Office of Personnel Management's Government Affairs Institute. One of the co-directors also presented the luncheon address at the National Archives' 1991 Records Administration Conference.

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 1991, 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 1991, more than 500 persons attended. Also, OIP conducted its special "Advanced FOIA Seminar" twice in 1991, featuring presentations on "FOIA From the Nongovernmental Perspective" by a former Senate staff member and by a representative of the Public Citizen Litigation Group.

In 1991, OIP also developed a new training program, entitled the "Freedom of Information Act Administrative Forum," which will be devoted almost entirely to administrative matters arising under the Act in order to meet the specialized FOIA-training needs of experienced FOIA processors throughout the federal government. Designed to serve as a regular forum for the exchange of ideas and information on matters of FOIA administration governmentwide, this new program has been developed for introduction into OIP's regular training schedule in early 1992.

(f) Briefings

OIP conducted a number of general or specific FOIA briefings during 1991 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, including a delegation of members of the national legislature of Japan.

(g) Congressional and Public Inquiries

In 1991, OIP responded to 53 congressional inquiries regarding FOIA-related matters. In its "FOIA Ombudsman" capacity (see FOIA Update, Fall 1987, at 2), OIP responded to 12 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 472 written inquiries from members of the public seeking information or materials -- a continued increase over the numbers of such inquiries received in earlier years -- as well as to innumerable such inquiries received by telephone.


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