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

During 1993, the Department of Justice, primarily 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), consistent with the policies of President Clinton and Attorney General Reno of greater openness in government. 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 Justice Department encouraged agency compliance with the FOIA during 1993 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 it maintains a Telecommunications Device for the Deaf (TDD) line, (202) 616-5498, which 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 as well. The counseling services provided by OIP during 1993 consisted of the following:

(1) OIP continued to provide basic "FOIA Counselor" guidance over the telephone on a broad range of FOIA-related topics, including matters pertaining to overall policies of government openness. 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 Department specifies 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) (1993)--and it has been found that such consultations are very valuable in encouraging agency compliance with, and greater information disclosure under, the Act.) More than 2,500 requests for assistance were received by OIP and handled in this way during 1993, 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 325 inquiries of this nature handled in 1993.

(3) Sometimes 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 33 such formal consultations in 1993, including nine 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 then recommending positions that promote both uniform agency compliance with the Act and the principles of government openness under it. 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 1993, including 27 involving recommendations as to the advisability of initial or further appellate court review and six involving the question of whether to seek or oppose certiorari in the Supreme Court.

(b) New Policy

In 1993, the Department of Justice, together with President Clinton, issued major statements of new FOIA policy governing the Act's governmentwide administration. On October 4, in a memorandum to the heads of all federal departments and agencies, President Clinton called upon all agencies to "take a fresh look at their administration of the Act" in accordance with new standards of government openness established in an accompanying memorandum issued by Attorney General Janet Reno. Attorney General Reno's FOIA Memorandum set forth a distinctly new policy toward the Act. It explicitly rescinded the Department's 1981 "substantial legal basis" standard for determining whether to defend agency action in FOIA litigation and replaced it with new standards designed to achieve greater government openness through maximum responsible FOIA disclosure.

The essential elements of this new FOIA policy are: (1) an overall "presumption of disclosure" to be applied in FOIA decisionmaking; (2) a specific "foreseeable harm" standard governing the Department's decision on whether to defend any assertion of FOIA applicability in court; and (3) an accompanying emphasis on making "discretionary disclosures" of exempt records or information whenever possible under the Act. The Attorney General ordered a review of the merits of all pending FOIA litigation cases according to these new disclosure standards, which apply to FOIA decisionmaking at the administrative level as well as in litigation.

These statements of new FOIA policy were disseminated widely throughout the executive branch by OIP. Immediately following their issuance, OIP forwarded them to the principal FOIA officers at all federal agencies both directly and through their distribution to more than 500 agency representatives in attendance at an annual OIP training program. As a follow-up session, OIP convened a special gathering of the principal administrative FOIA officers of nearly all federal agencies at a governmentwide "FOIA Officers Conference," a mechanism newly designed by OIP for the review and discussion of matters of new FOIA policy on a governmentwide basis. See FOIA Update, Summer/Fall 1993, at 12 (also discussing formation of related "FOIA Officers Advisory Group"). In addition to administrative application of the new disclosure standards of the Attorney General's FOIA Memorandum, these sessions dealt with the compilation of information on FOIA backlogs, and backlog-reduction efforts, by federal agencies as well.

Another major area of FOIA policy addressed by OIP in 1993 concerned the standards governing the application of the "business information" exemption of the FOIA, Exemption 4, in light of the D.C. Circuit's en banc decision in Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1579 (1993). In Critical Mass, the D.C. Circuit altered the standards by which information is determined to be "confidential" under Exemption 4, doing so through a new distinction between "voluntary" and "required" information submissions that created great uncertainty about the possible new breadth of that exemption. OIP resolved this uncertainty in favor of greater information disclosure (despite previous positions by the Department to the contrary) through policy guidance issued in 1993.

Based upon a close analysis of the Critical Mass decision's rationale and surrounding circumstances, OIP issued guidance on the pivotal new "voluntary"/"required" distinction that advised agencies to interpret the decision in such a way as to limit its applicability (and thereby also the breadth of Exemption 4)--thus ensuring continued FOIA disclosure of information regarding government contracts and other programs of general public interest. This policy guidance, which OIP published in FOIA Update, was accompanied by a detailed "step-by-step" guide to Exemption 4 decisionmaking under the Critical Mass decision.

(c) FOIA Update

OIP published its quarterly FOIA policy and newsletter publication, FOIA Update, in 1993. 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. Over 4,000 copies of FOIA Update are disseminated to agency FOIA personnel throughout the government, without charge. Additionally, guidance items published in FOIA Update are used in all Justice Department FOIA-training sessions and are made available for such programs offered by the Graduate School of the U.S. 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 nominal cost of $5.00 per year. It had a paid circulation of 1,225 in 1993.

In 1993, FOIA Update focused attention on matters of new FOIA policy with a special double issue that featured several related items. The Summer/Fall issue of FOIA Update contained the full texts of both the President's FOIA Memorandum and the Attorney General's FOIA Memorandum, accompanied by a guidance discussion of their basic principles--most particularly, the "foreseeable harm" standard. Also included for the guidance of all federal agencies was a follow-up memorandum from Attorney General Reno that urged "a new institutional attitude toward FOIA administration, for purposes of backlog reduction as well as toward greater information disclosure." This double FOIA Update issue additionally contained, among other items, related policy guidance addressing agency compliance with the Act's "reasonable segregation" requirement at the margins of exemption applicability and the making of discretionary disclosures in accordance with the "foreseeable harm" standard under Exemption 7(D).

Also published in FOIA Update during 1993 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. Most significant was the Supreme Court's decision regarding the Act's "confidential source" exemption, Exemption 7(D), in United States Dep't of Justice v. Landano, 113 S. Ct. 2014 (1993); through FOIA Update, OIP advised all federal agencies of the higher evidentiary standard established for Exemption 7(D) by that decision and of the more particularized approach and greater disclosure of information that it now requires.

In 1993, OIP compiled an updated list of the principal FOIA administrative and legal contacts at all federal agencies for the use and reference of FOIA personnel governmentwide, which was published in the Winter 1993 issue, and it also used FOIA Update for governmentwide dissemination of the Department's updated memorandum on the process of interagency consultation for White House-originated records or information. Additionally, through FOIA Update, OIP provided announcements of FOIA and Privacy Act training opportunities scheduled nationwide throughout the year.

(d) Research and Reference Publications

A new edition of the Freedom of Information Case List was published by OIP in September 1993. The number of access cases indexed according to specific FOIA exemptions and other topics increased to more than 3,600. 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 1993, OIP published a separate annual reference volume primarily containing the "Justice Department Guide to the Freedom of Information Act," a 400-page overview discussion of the Act's exemptions and procedural aspects which formerly was published as part of the Case List volume. Entitled the Freedom of Information Act Guide & Privacy Act Overview, this 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. By special arrangement made with the Government Printing Office, the 1993 edition of this volume also included as a preface the FOIA policy memoranda issued by the President and the Attorney General on October 4, 1993.

OIP both expanded and updated its "Justice Department Guide to the FOIA" in 1993. Consistent with the Attorney General's FOIA Memorandum, special attention was paid to the Discretionary Disclosure and Waiver section of the "Guide"--which outlines 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 and which also emphasizes that 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 in accordance with the Department's policy interpretation of the D.C. Circuit's decision in Critical Mass Energy Project v. NRC, supra. In 1993, OIP also converted the "Guide" to a new, more readable typeface and format in order to enhance its reference utility.

OIP distributed courtesy copies of the 1993 Freedom of Information Case List and the 1993 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's FOIA-training programs. Additional copies of both the Case List and the Guide & Overview were made available to agencies and to the public through the Government Printing Office at costs of $18 and $21 per copy, respectively.

In 1993, both the "Justice Department Guide to the FOIA" and FOIA Update continued to be made available within the federal legal community through JURIS, the Justice Department's former automated legal research system, and OIP made arrangements for the "Guide" to be made available on WESTLAW and on the Internet as well. OIP also made special arrangements for the text of the "Guide" to be converted for use by a nonsighted FOIA officer.

(e) Training

During 1993, 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. Fifteen attorney and paralegal staff members of OIP gave a total of 182 training presentations during the year, including several training sessions that were designed by OIP 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 Army Judge Advocate General's School, and the National Conference of Inspectors General. OIP's co-directors also gave presentations at annual programs celebrating "Freedom of Information Day" (March 16) that were held by the Society of Professional Journalists and the National Press Club.

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 1993, 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 the annual "Justice Department Guide to the FOIA," a special prepublication copy of which is provided to all participants. In 1993, this seminar served also as a forum for the immediate governmentwide distribution and discussion of the FOIA policy memoranda that were issued by the President and the Attorney General on the afternoon of the preceding day. More than 500 access professionals, representing nearly all federal agencies, attended this major FOIA-training session--which featured a special keynote presentation by Associate Attorney General Webster L. Hubbell emphasizing the importance of the Department's new FOIA policy.

Additionally, OIP conducted a special supplemental training session for several hundred agency employees devoted to the proper treatment of business information under the D.C. Circuit's decision in Critical Mass Energy Project v. NRC, supra, in light of its new policy guidance on that subject. OIP also conducted its "Advanced FOIA Seminar" twice in 1993, featuring presentations by staff members of the Senate Judiciary Committee on prospective FOIA legislation and by the Executive Director of the Reporters Committee for Freedom of the Press on the administration of the Act from the FOIA requester's perspective.

Also held twice during 1993 was OIP's newest FOIA-training program, the "Freedom of Information Act Administrative Forum," which 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 matters of FOIA administration, this 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.

(f) Briefings

OIP conducted a number of general or specific FOIA briefings during 1993 for persons interested in the operation of the Act, such as representatives of foreign governments concerned with the adoption or implementation of their own government information access statutes. It participated in three congressional briefings and provided briefings and FOIA materials to visitors from several nations, including Japan, Great Britain, Canada, Denmark, the Federal Republic of Germany, the Republic of South Korea, and Madagascar.

(g) Congressional and Public Inquiries

In 1993, OIP responded to 67 congressional inquiries regarding FOIA-related matters (the largest volume of such correspondence ever handled by it in a single year), and in its "FOIA Ombudsman" capacity (see FOIA Update, Summer/Fall 1993, at 8) it responded to 19 complaints received directly from members of the public concerned that an agency had failed to comply with the requirements of the Act. In all such instances involving a concern 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 523 written inquiries from members of the public seeking information or materials regarding the basic operation of Act--a considerable increase over the numbers of such inquiries received in previous years--as well as to innumerable such inquiries received by telephone.

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