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

During 1992, 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 and Consultations

One of the primary means by which the Department encouraged agency compliance with the FOIA during 1992 was through OIP's counseling activities, which were conducted largely over the telephone by experienced OIP attorneys known to personnel at other agencies as "FOIA Counselors." Through this "FOIA Counselor" service, OIP provided information, advice and policy guidance to FOIA personnel at all federal agencies as well as other persons with questions regarding the proper interpretation or implementation of the Act. OIP has established a special telephone line to facilitate this "FOIA Counselor" service, (202) 514-FOIA (514-3642), which it publicizes widely. (OIP also receives telefaxed "FOIA Counselor" inquiries, at (202) 514-1009, and in 1992 it installed a Telecommunications Device for the Deaf (TDD) line, (202) 616-5498, which now gives it the capability to receive TDD calls from speech- or hearing-impaired persons.) 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 1992 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) (1992)--and it has been found that such consultations are of great value in encouraging agency compliance with the Act.) More than 2,500 requests for assistance were received by OIP and handled in this way during 1992, a continuing 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 1992.

(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 31 such formal consultations in 1992, including five with the general counsel of the agency involved.

(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 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 some such instances, OIP is asked to consult in the drafting of briefs or petitions to be filed in district court or in a court of appeals; OIP also is regularly consulted in FOIA matters handled by the Office of the Solicitor General before the United States Supreme Court. Most often, these consultations are provided by one or both of OIP's co-directors. There were approximately 150 such litigation consultations in 1992, including 44 involving recommendations as to the advisability of initial or further appellate court review and eleven involving the question of whether to seek or oppose certiorari in the Supreme Court.

(b) FOIA Update

OIP published its quarterly FOIA policy and newsletter publication, FOIA Update, throughout 1992. 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 each quarter, without charge.

Additionally, guidance items published in FOIA Update are used in all Department of Justice FOIA-training sessions and are made available for such programs offered by the Graduate School of the United States Department of Agriculture and 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 1992.

In 1992, FOIA Update focused attention on Senate consideration of S. 1940 (102d Cong.), the "Electronic Freedom of Information Improvement Act of 1991." In its Spring 1992 issue, it discussed the April 30 hearing held by the Senate Judiciary Committee's Subcommittee on Technology and the Law, chaired by Senator Patrick J. Leahy (D. Vt.), on the major subjects of "electronic record" FOIA issues and matters pertaining to time limits and administrative backlogs under the Act. Related to that, the Department of Justice prepared extensive written testimony discussing the subjects addressed by S. 1940's provisions, which was disseminated through FOIA Update as well.

Also published in FOIA Update during 1992 were 12 "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. A preliminary discussion of the D.C. Circuit Court of Appeals' significant Exemption 4 decision in Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc), cert. denied, 113 S. Ct. 1579 (1993), appeared in the Fall 1992 issue.

OIP published a cumulative index of items appearing in FOIA Update during the years 1979-1992, with all items indexed by both subject and type, in the Fall 1992 issue. It 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 was published in the Winter 1992 issue. Additionally, through FOIA Update, OIP provided quarterly announcements of FOIA and Privacy Act training opportunities scheduled nationwide throughout the year and also announced the inauguration of its "Freedom of Information Act Administrative Forum" training program.

(c) Research and Reference Publications

A new edition of the Freedom of Information Case List was published by OIP in September 1992. The number of access cases indexed according to specific FOIA exemptions and other topics increased to more than 3,500. This volume 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 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.

In 1992, OIP enhanced its publication services by publishing two separate annual reference volumes. In previous years, its annual Case List volume contained the "Justice Department Guide to the Freedom of Information Act," an overview discussion of the Act's exemptions and procedural aspects that has grown considerably in length and detail over the years. In order to accommodate the continued development of the "Justice Department Guide to the FOIA," OIP detached it from the Case List publication in 1992 and published it as a part of an entirely new reference volume. Entitled the Freedom of Information Act Guide & Privacy Act Overview, this new reference volume also contains an overview discussion of the provisions of the Privacy Act of 1974, prepared by OIP in coordination with the Office of Management and Budget, as well as the texts of both access statutes.

Also, OIP both expanded and updated its "Justice Department Guide to the FOIA," which now exceeds 300 pages in length. A new section of the "Guide" was added in 1992, entitled Discretionary Disclosure and Waiver, which places emphasis on the circumstances under which agencies may make a discretionary disclosure of information under the FOIA even though it falls within one or more of the Act's exemptions; it also stresses that as a matter of sound policy, agencies should be able to make discretionary FOIA disclosures without "waiving" their ability to withhold similar exempt information in the future. Additionally, the Exemption 4 section of the "Guide" was revised and reorganized in light of the D.C. Circuit's decision in Critical Mass Energy Project v. NRC, supra.

OIP distributed courtesy copies of the 1992 Freedom of Information Case List and the 1992 Freedom of Information Act Guide & Privacy Act Overview to each federal agency, to certain congressional offices, and to other interested parties. It also facilitated both volumes' wide distribution within the executive branch at a low per-copy cost and made them available without cost through the Department of Justice's FOIA-training programs. Additional copies of both the Case List and the Guide & Overview were made available to agencies and to members of the public through the Government Printing Office at costs of $17 and $15 per copy, respectively. To facilitate the placement of new bulk orders by federal agencies for these two distinct volumes in 1992, OIP issued a special advisory regarding the requirements of the Government Printing Office's requisition process. See FOIA Update, Spring 1992, at 2.

During 1992, both the "Justice Department Guide to the FOIA" and FOIA Update continued to be made available to all United States Attorney's Offices and other agencies within the federal legal community through JURIS, the Department of Justice'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.) OIP also made special arrangements in 1992 for the text of the "Guide" to be converted electronically for use by a nonsighted FOIA officer. See FOIA Update, Summer 1992, at 7.

Additionally, OIP in 1992 worked together with the General Services Administration to update 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 any person who is interested in exercising his or her statutory rights under the Freedom of Information Act and/or the Privacy Act. Over the years, it consistently has been one of the Consumer Information Center's most heavily requested brochures.

(d) Policy Memoranda

In 1992, 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 the FOIA's "automatic" disclosure provisions, subsections (a)(1) and (a)(2) of the Act, 5 U.S.C. § 552(a)(1)-(2), which place affirmative disclosure obligations upon federal agencies separate and apart from their day-to-day responses to FOIA requests under subsection (a)(3) of the Act. With respect to agency obligations to publish general organizational and policy information under subsection (a)(1), OIP advised that such obligations should be met by agencies as frequently as possible and in no case on less than a quarterly basis; it also specifically advised agencies to publish comprehensive lists of their "field organizations," as well as lists of all local offices at which members of the public may request agency information. With respect to agency obligations to provide regular access to such items as final opinions, specific policy statements and administrative staff manuals under subsection (a)(2), the importance of affording regular "reading room" access to the public as distinguished from requested access under subsection (a)(3) was emphasized. In sum, OIP's guidance reminded all federal agencies to pay full attention to their statutory obligations under both of these lesser-known provisions of the Act.

A second policy issue addressed in 1992 was the longstanding question of the proper effect to be given under the FOIA to a nondisclosure order issued by a federal administrative law judge (ALJ). Based upon its analysis of applicable statutory and case authority, OIP advised that such orders are of no legal effect under the FOIA, all beliefs to the contrary notwithstanding. Agencies were advised that a fundamental FOIA element is their "control" over a requested record, which means that they cannot disclose a record under the FOIA if they are prohibited by court order from doing so--but that this is not the case with respect to an order issued by an ALJ because the authority of an ALJ is subordinate to that of the agency and therefore is subject to the agency's own control. In this guidance, an ALJ nondisclosure order was distinguished from an order issued by a federal district court judge--which may properly prohibit an agency from disclosing records in response to a FOIA request.

OIP also issued policy guidance regarding the timeliness with which agencies should decide whether to grant special requests for "expedited access" under the Act. It advised agencies that as a matter of sound practice they should give immediate attention to any "expedited access" request, regardless of whether that request for expedition ultimately is granted, in order to ensure that each such request is acted upon with a timeliness befitting the very nature of the request itself. (This guidance, which was published as a "FOIA Counselor Q&A" in the Summer 1992 issue of FOIA Update, formalized Department of Justice comments made with respect to a provision of S. 1940 earlier in the year.) Additionally, in 1992, OIP cautioned agencies that the transmittal of an "acknowledgment letter" in response to a FOIA request, though a worthwhile preliminary communication with a FOIA requester, does not satisfy an agency's statutory obligation to respond to a FOIA request within the time limits of the Act.

(e) Training

During 1992, OIP furnished speakers and workshop instructors for numerous seminars, conferences, individual agency training sessions and similar programs designed to improve the understanding and administration of the FOIA. Sixteen attorney and paralegal staff members of OIP gave a total of 213 training presentations during the year, including several training sessions that were presented to meet the specific FOIA-training needs of individual federal agencies. Additionally, the co-directors of OIP gave a total of 49 presentations at various FOIA-training programs, including those held by the American Society of Access Professionals, the Army Judge Advocate General's School, and the Freedom Forum of the Gannett Foundation. One of the co-directors also was the featured speaker at the Annual FOIA Conference of the National Aeronautics and Space Administration held at the Stennis Space Center.

In addition to its regular range of FOIA-training programs offered in conjunction with the Department's Office of Legal Education, OIP also conducted its annual training seminar in 1992, 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 1992, more than 600 access professionals, representing nearly all federal agencies, attended. Also, OIP conducted its "Advanced FOIA Seminar" twice in 1992, featuring presentations by two former staff members of the Senate Judiciary Committee (now the Judiciary Committee's Staff Director and an Assistant to the President) on the administration of the Act from the FOIA requester's perspective.

In 1992, OIP inaugurated its newest FOIA-training program, entitled the "Freedom of Information Act Administrative Forum," which it developed to meet the continuing training needs of experienced FOIA personnel who directly handle FOIA requests on a daily basis and have a specialized need to focus on the mechanics of the Act's administrative processes. This "FOIA Forum," which now is held twice each year, is devoted almost entirely to administrative matters arising under the Act--such matters as record-retrieval practices, backlog management, and automated record processing. Designed to serve also as a regular forum for the governmentwide exchange of ideas and information on important matters of FOIA administration (see FOIA Update, Winter 1992, at 2), this new program now brings veteran FOIA processors from throughout the government together and encourages them to share their experience in administering the Act on a day-to-day basis.

Additionally, during 1992, OIP made a further enhancement within the range of its existing FOIA-training programs. To meet the increasingly high demand for basic FOIA training, OIP increased both the frequency and the capacity of its introductory training program, entitled "Introduction to the Freedom of Information Act for Non-Specialists," making it available to more than twice as many participants as in previous years. As of 1992, this program now is offered three times per year and is held in a facility of the Department of Labor that can accommodate more than 100 participants each session.

(f) Briefings

OIP conducted a number of general or specific FOIA briefings during 1992 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 provided briefing assistance and FOIA materials to visitors from several nations, including Great Britain, Australia, Canada, Germany, and Japan.

(g) Congressional and Public Inquiries

In 1992, OIP responded to 38 congressional inquiries regarding FOIA-related matters, and in its "FOIA Ombudsman" capacity (see FOIA Update, Fall 1987, at 2) responded to six 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 483 written inquiries from members of the public seeking basic information or materials--a continuing 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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