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

During 1994, 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 openness-in-government policies of President Clinton and Attorney General Janet Reno. A summary description of these activities, which is required by 5 U.S.C. § 552(e) (1994), 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 1994 was through OIP's counseling activities, which were conducted large-ly over the telephone by experienced OIP attorneys known to FOIA personnel throughout the executive branch 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 to other persons with questions regarding the proper interpretation or implementation of the Act. OIP has established a special telephone line to facilitate its FOIA Counselor service--(202) 514-3642 (514-FOIA)--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 1994 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) (1994)--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 2,800 requests for assistance were received by OIP and handled in this way during 1994, 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 or its deputy director. Approximately 300 inquiries of this nature were handled in 1994.

(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 46 such formal consultations in 1994, including 12 with the general counsel of the agency involved. Additionally, OIP's co-directors and deputy director provided extensive consultation assistance to three Independent Counsels and their staffs throughout the year.

(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 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 on litigation strategy and in the drafting of briefs or petitions to be filed in district court or 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 1994, including 34 involving recommendations as to the advisability of initial or further appellate court review and 11 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, in 1994. 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 4,500 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 1994.

In 1994, FOIA Update focused attention on matters of new FOIA policy under the FOIA Memorandum of October 4, 1993 issued by President Clinton and the companion FOIA Memorandum of October 4, 1993 issued by Attorney General Janet Reno. In its Spring 1994 issue, OIP reported on Attorney General Reno's comprehensive FOIA address in celebration of "Freedom of Information Day" (March 16) at the National Press Club, which outlined the range of openness-in-government initiatives undertaken by the Justice Department, including: (1) implementation of new FOIA policy standards; (2) litigation review; (3) FOIA form review; (4) backlog-reduction efforts; (5) a new expedited access policy; and (6) a new disclosure policy for professional misconduct investigations. Through FOIA Update, the Department formally urged other agencies to follow its lead in each of these policy areas.

Throughout 1994, FOIA Update also focused on legislative consideration of S. 1782 (103d Cong.), the "Electronic Freedom of Information Improvement Act of 1993." In its Winter 1994 issue, it disseminated the text of the bill, together with an accompanying article that placed primary emphasis on its "electronic record" provisions. The Summer 1994 issue of FOIA Update described the Senate's action in passing this bill, with some modifications, but with no counterpart action in the House. In a closely related development, FOIA Update's Fall 1994 issue was devoted to the work of the Electronic Record FOIA Legislation Group of the Information Infrastructure Task Force (IITF), which was chartered to develop possible consensus legislative provisions on electronic record FOIA issues. A comprehensive set of legislative policy principles drafted by this IITF working group, with OIP's strong support, was widely circulated through FOIA Update for comment both within and outside of the executive branch.

Also published in FOIA Update during 1994 were eight "Significant New Decision" discussions--which informed agencies of major FOIA case law developments at the district court and appellate court levels--as well as a discussion of a decision by the United States Supreme Court in the first Supreme Court FOIA case to address the FOIA's interrelationship with the Privacy Act of 1974. In the area of litigation, FOIA Update also presented a compilation of litigation cases in which much additional information was disclosed by the defendant agencies under the Attorney General's new "foreseeable harm" standard; the issues in such cases either were greatly narrowed or, in many cases, were completely disposed of through the process of litigation review.

In 1994, 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 1994 issue, and it also used FOIA Update as a vehicle for describing the Department's National Performance Review activities pertaining to the FOIA. In FOIA Update, OIP emphasized, for example, that it had promoted its administrative practice of engaging in greater dialogue with FOIA requesters by including its office telephone number as part of its preprinted letterhead for all of its correspondence, thereby encouraging other federal agencies to do likewise. Additionally, through FOIA Update, OIP provided announcements of FOIA and Privacy Act training opportunities scheduled nationwide throughout the year.

(c) Policy Memoranda

In 1994, OIP issued several 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 implementation of the "foreseeable harm" standard under Attorney General Reno's FOIA Memorandum of October 4, 1993. In an extensive "OIP Guidance" memorandum, OIP discussed the application of this new standard, and its corollary emphasis on discretionary FOIA disclosure, to the FOIA's exemptions. Paying particular attention to the large potential for making discretionary disclosures under Exemption 5 of the FOIA, OIP identified numerous factors to guide such disclosures under the deliberative process, attorney work-product, and attorney-client privileges of that exemption.

A second policy issue addressed in 1994 was the question of an agency's procedural responsibility when it makes a referral of requested records to another agency that originated them. OIP advised agencies that even after making a referral of records to another agency of origination, they retain the responsibility of defending any withholding of those records in a FOIA lawsuit. OIP's guidance also specified ways in which agencies should ensure that they undertake such record referrals so as not to disadvantage any FOIA requester by the timing of that process.

Additionally, OIP issued an internal Department policy memorandum that implemented the Attorney General's establishment of a policy affording expedited FOIA access where (1) there exists widespread and exceptional media interest, and (2) the information sought involves possible questions about government integrity which affect public confidence. Under this new policy and its implementing procedures, such determinations are made by the Department's Director of Public Affairs. While this new policy applies to the Department most directly, it was disseminated through FOIA Update for potential use by other agencies as well.

(d) Research and Reference Publications

A new edition of the Freedom of Information Case List was published by OIP in September 1994. The number of access cases indexed according to specific FOIA exemptions and other topics increased to more than 3,800. 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 1994, OIP published a separate annual reference volume primarily containing the "Justice Department Guide to the Freedom of Information Act," an 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.

OIP both expanded and updated its "Justice Department Guide to the FOIA" in 1994. Most significantly, it explicitly incorporated the principles of the President's and Attorney General's FOIA Memoranda of October 4, 1993 (which had been issued subsequent to publication of the Guide the previous year) into all sections of the Guide. A new subsection was added to the Exemption 5 section of the Guide to address the making of discretionary disclosures of information falling within that exemption. Also, special attention was paid to the Discretionary Disclosure and Waiver section of the Guide, which is specifically referenced in the Attorney General's FOIA Memorandum and which emphasizes that agencies should be able to make discretionary disclosures without "waiving" their ability to withhold similar exempt information in the future. The Guide reached 450 pages in length in 1994.

OIP distributed courtesy copies of the 1994 Freedom of Information Case List and the 1994 Freedom of Information Act Guide & Privacy Act Overview to each federal agency, to various 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 $23 per copy, respectively. OIP made arrangements for the component parts of the Guide & Overview to be made available on the Internet as well.

(e) Training

During 1994, 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 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. Such individualized training sessions were conducted for NASA, the Defense Logistics Agency, the Coast Guard, the Navy, the Small Business Administration, and the Federal Aviation Administration; for the Departments of State, Energy, Defense, Agriculture, and the Interior; and for several individual components of the Department of Justice.

Additionally, the co-directors of OIP gave a total of 56 presentations at various FOIA-training programs, including those held by the American Society of Access Professionals, the Army Judge Advocate General's School, the National Freedom of Information Coalition, and the Association of Investigative Reporters and Editors. OIP's co-directors also conducted a teleconference training session for the legal and FOIA staffs of EPA's ten regional offices; made FOIA-policy presentations at a Department of Transportation-sponsored training session conducted for the regional personnel of all agencies with an audio hookup that reached an audience of more than 1,000 persons nationwide, including in Alaska and Hawaii; and participated with the Attorney General in her keynote presentation in celebration of "Freedom of Information Day" at the National Press Club, broadcast on C-SPAN. In addition, the Department's Director of Public Affairs addressed the Annual Symposium of the American Society of Access Professionals on the Department's expedited access policies, and OIP's deputy director addressed the Judicial Conference of the United States' Committee on the Judicial Branch on FOIA-related issues.

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 1994, 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. This annual session has succeeded in efficiently meeting the consistently high demand for FOIA training; in 1994, more than 550 access professionals, representing nearly all federal agencies, attended. OIP also conducted its "Advanced FOIA Seminar" twice in 1994, featuring presentations by a staff member 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 1994 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, queue usage, 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 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 and Conferences

OIP conducted a number of general or specific FOIA briefings during 1994 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. OIP provided briefings and FOIA materials to visitors from several nations--including the nations of Japan, Australia, New Zealand, Canada, Ireland, Taiwan, and South Africa--as well as to the Director of the European Parliament.

During 1994, OIP also conducted governmentwide briefings and discussion sessions on matters of new FOIA policy under President Clinton's and Attorney General Reno's FOIA Memoranda of October 4, 1993. Twice during the year, OIP convened a gathering of the principal administrative FOIA officers of nearly all federal agencies at a conference to discuss a range of both substantive and procedural policy matters. Such topics were covered also in a luncheon presentation made by OIP's co-directors to the American Society of Access Professionals. Additionally, OIP conducted a "FOIA Community Conference" for more than two dozen representatives of public interest and FOIA-requester groups to review matters of new FOIA policy; it facilitated a counterpart session for representatives of "reverse" FOIA submitters of business information; it provided FOIA briefings and advice to the Human Radiation Interagency Working Group; it co-chaired a governmentwide FOIA legislation meeting with the Office of Management and Budget; and it held or participated in several FOIA-related briefings for representatives of news media organizations.

(g) Congressional and Public Inquiries

In 1994, OIP responded to 54 congressional inquiries regarding FOIA-related matters (the second-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 49 complaints received directly from members of the public who were 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, wherever 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 548 written inquiries from members of the public seeking information regarding the basic operation of the Act--a continued increase over the numbers of such inquiries received in previous years--as well as to innumerable such inquiries received by telephone.

Go to: Table of Contents // DOJ FOIA Page // Justice Department Home Page