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

During 1995, 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 1995 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) telephone line--(202) 616-5498--which gives it the capability of receiving 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 1995 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 Justice Department specifies that all 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) (1995)--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 3,000 requests for assistance were received by OIP and handled in this way during 1995, 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 1995.

(3) Sometimes a determination is made that a FOIA Counselor inquiry 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 51 such formal consultations in 1995, including 16 with the general counsel or deputy general counsel of the agency involved. In addition, OIP provided consultation assistance to three Offices of Independent Counsel during 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 Justice 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 is consulted in all instances in which the Justice Department must decide whether to pursue a FOIA issue on appeal. It also is regularly consulted in all FOIA matters that are handled by the Office of the Solicitor General before the United States Supreme Court. Most often, these litigation consultations are provided by one or both of OIP's co-directors. There were approximately 150 such litigation consultations in 1995, including 26 involving recommendations as to the advisability of initial or further appellate court review and three involving the question of whether to seek or oppose certiorari in the Supreme Court.

(b) FOIA Update

OIP published its quarterly FOIA policy publication, FOIA Update, in 1995. 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 dissemination of FOIA-related information within the executive branch and for the comparison of agency practices in FOIA administration. More than 4,300 copies of FOIA Update are distributed to agency FOIA personnel throughout the federal government, without charge. Additionally, guidance items published in FOIA Update are used in all Justice Department FOIA-training sessions and were made available for such programs offered by the Graduate School of the Department of Agriculture and 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 per year. It had a paid circulation of 1,318 in 1995.

In 1995, FOIA Update focused attention on the issuance of a new presidential executive order on national security classification--Executive Order 12,958, which was issued by President Clinton on April 17, 1995, and became effective on October 14--with a special double issue that featured several related items. The Spring/Summer issue of FOIA Update contained the text of the new executive order (in all respects applicable to the administration of the FOIA), accompanied by a detailed discussion of its development and its major provisions. To facilitate ready comparison of those provisions with those of the predecessor executive order, OIP prepared and published a comparison chart that contrasted the two orders. It also compiled a history of all Exemption 1 FOIA cases decided under predecessor executive orders in which courts had found agency noncompliance with their provisions, which OIP published to encourage proper agency compliance with the provisions of new Executive Order 12,958, and it addressed questions of executive order transition and applicability as well. OIP coordinated the preparation of this special FOIA Update issue with the federal office responsible for overseeing the implementation of the executive order--the Information Security Oversight Office, now part of the National Archives and Records Administration--the functions of which were described in a "FOIA Focus" feature.

Also published in FOIA Update during 1995 were 12 "Significant New Decision" discussions--which informed agencies of major FOIA case law developments at the district court and appellate court levels--as well as an expanded discussion of an unprecedented court of appeals decision pertaining to classified information and confidential law enforcement sources. Another novel FOIA decision, pertaining to the possible protection under Exemption 2 of the Act of information that if disclosed would permit the location of and potential harm to an endangered species, likewise was the subject of an expanded case discussion.

In 1995, 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 1995 FOIA Update issue. OIP also used FOIA Update as a vehicle for disseminating the Justice Department's new FOIA-related work performance standards, which were made available by the Department as a model to all other agencies, and for describing the changed FOIA status of the National Security Council in connection with pending litigation. Additionally, through FOIA Update, OIP provided announcements of FOIA and Privacy Act training opportunities scheduled nationwide throughout the year.

 

(c) Policy Memoranda

In 1995, 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 procedures that should be followed by all federal agencies in determining the scope of a FOIA request. OIP issued guidance that reiterated the Attorney General's policy goal of "maximum responsible disclosure" and emphasized the importance of including all records or record portions that are responsive to a FOIA request. First, this guidance instructed agencies to carefully read FOIA requests in full context of their surrounding circumstances and to interpret them liberally for the benefit of FOIA requesters. Second, it addressed the longstanding and difficult policy issue of the "scoping" of records found responsive to FOIA requests--i.e., determining that part of a multiple-subject record is outside the scope of a request's subject matter and should be treated separately. This guidance identified and discussed several considerations that must be borne in mind whenever an agency considers "scoping" a record, including the fact that a FOIA requester ordinarily is entirely in the dark about the nature of an agency's files and the format of its responsive records. The key consideration, the guidance emphasized, is the importance of agency communication with requesters in addressing any scope question. Accordingly, OIP instructed all agencies never to "scope" a record without giving the requester a fully informed opportunity to disagree with that action as part of the agency's administrative process and it advised that no part of a record should be "scoped" in any instance in which the requester prefers otherwise.

A second policy area addressed in 1995 was the subject of "affirmative disclosure" of agency records and information for purposes of supplementing, and potentially reducing the volume of, agency FOIA activity. OIP reminded all federal agencies of their legal and practical obligations to anticipate public demand for their records, particularly nonsensitive records, and to provide access to them as efficiently as possible. It stressed that the anticipatory satisfaction of demands for information disclosure can avoid unnecessary encumbrance of the processes of FOIA administration and enable agencies to apply their limited FOIA resources where they are most needed. OIP pointed to the use of agency "reading rooms" under subsection (a)(2) of the Act as a model for such efficient affirmative disclosure, while at the same time reminding agencies that they cannot lawfully shield any record from standard FOIA access simply through the expedient of according it "reading room" treatment. Likewise, it discussed the affirmative disclosure practices of the Justice Department's Office of Public Affairs as a model for the efficient handling of information requests that need not necessarily encumber FOIA processes. Lastly, OIP addressed the increasingly strong potential for meeting public demands for information through electronic information availability, by the placement of information on agency Internet/World Wide Web sites. In conjunction with this, it described the development of the Justice Department's own Internet/World Wide Web site and the availability of FOIA-related information there.

Another OIP guidance memorandum issued in 1995 addressed the subject of executive order applicability at the time of the succession of executive orders on national security classification, which can vary according to the exact status of a matter as of that time. To guide agencies in the transition from Executive Order 12,356 to Executive Order 12,958, OIP reviewed the history of previous such transitions in light of case law discussions of executive order applicability. From this case law, OIP distilled several basic rules of executive order transition for all agencies to follow during 1995 and in subsequent years. OIP's guidance covered classification decisionmaking for matters in litigation as well as at the administrative level--and it emphasized that agencies have the discretion to reevaluate any classification determination, regardless of when it was made, under the disclosure standards of the new executive order.

Additionally, in 1995 OIP published brief "FOIA Counselor Q&A" guidance discussions on two subjects: (1) the applicability of the deliberative process privilege after the making of the underlying agency decision, and (2) an agency's obligation to provide requesters with the best available copy of any record that is disclosed in response to a FOIA request. On the former subject, OIP reminded agencies to consider making discretionary disclosures of exempt information, in accordance with the Attorney General's FOIA Memorandum of October 4, 1993; on the latter subject, it reminded agencies of their "customer service" obligations to FOIA requesters, in accordance with the President's FOIA Memorandum of October 4, 1993.

(d) Research and Reference Publications

In 1995, OIP published its primary FOIA reference volume, the Freedom of Information Act Guide & Privacy Act Overview, which contains the "Justice Department Guide to the Freedom of Information Act," an extensive discussion of the Act's exemptions and its procedural aspects. This reference volume also contains an overview discussion of the provisions of the Privacy Act of 1974, which is 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 1995. Most significantly, it revised the Exemption 1 section of the "FOIA Guide" to incorporate the provisions of the new executive order on national security classification, Executive Order 12,958, which was issued during the year. This new executive order became effective shortly before the "FOIA Guide's" publication and distribution, so a new subsection of its Exemption 1 section was prepared to cover matters of executive order applicability in the transition from one executive order to the next. Comparable revisions were made to the "Litigation Considerations" section as well. The "FOIA Guide" reached 500 pages in length in 1995.

OIP distributed courtesy copies of the 1995 Freedom of Information Act Guide & Privacy Act Overview to each federal agency, to various congressional offices, and to other interest-ed parties. It also facilitated its 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 Guide & Overview were made available to agencies and to the public through the Government Printing Office at a cost of $25 per copy. OIP also placed the major component parts of this publication on the Justice Department's Internet/World Wide Web site to afford electronic access to them as well.

Also placed on the Justice Department's Internet/World Wide Web site in 1995 was "Your Right to Federal Records," the federal government's basic public information brochure on access to agency information. This joint publication of the Justice Department and the General Services Administration (GSA), which is made available to the general public in brochure form 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 FOIA and/or the Privacy Act. Over the years, it consistently has been one of the Consumer Information Center's most heavily requested brochures and now it is made available to the public by the Justice Department in electronic form through "on-line" access as well. See FOIA Update, Winter 1995, at 2.

In 1995, OIP completed a conversion process for its research and reference publications that it initiated four years earlier. In 1991, OIP had converted the format of its "Justice Department Guide to the Freedom of Information Act" (published at that time as part of its Freedom of Information Case List publication) to a more readable, footnote-based format; it subsequently detached the reformatted "FOIA Guide" from the Freedom of Information Case List, combined it with its newly developed "Overview of the Privacy Act of 1974," and began publishing two separate annual reference volumes. See FOIA Update, Spring 1992, at 2. In 1995, in furtherance of the Justice Department's "reinvention of government" efforts through the National Performance Review, OIP established a new publication cycle for its Freedom of Information Case List volume. As of 1995, OIP now publishes the Case List on a biennial cycle and continues to publish its Guide & Overview publication, which has become the primary FOIA reference volume, annually. OIP advised all federal agencies of this change in publication schedule in 1995 and noted that it would continue to compile decisions for its Case List publication throughout its new two-year cycle. See FOIA Update, Spring/Summer 1995, at 2.

Additionally, OIP provided assistance to the Committee on Government Reform and Oversight of the House of Representatives in connection with the issuance of its biennial publication, A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, H.R. Rep. No. 156, 104th Cong., 1st Sess. (1995).

(e) Training

During 1995, OIP furnished speakers and workshop instructors for a variety of seminars, conferences, individual agency training sessions, and similar programs designed to improve the understanding and administration of the FOIA. Fourteen attorney and paralegal staff members of OIP gave a total of 169 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 CIA, the Navy, the Office of Personnel Management, the Federal Aviation Administration, the Nuclear Regulatory Commission, the Small Business Administration, and the Environmental Protection Agency; for the Departments of Defense, Energy, Agriculture, and the Interior; and for several individual components of the Department of Justice. Additionally, the co-directors of OIP gave a total of 47 presentations at various FOIA-training programs, including those held by the American Society of Access Professionals and the Army Judge Advocate General's School, and they provided technical assistance on FOIA-related issues to the Interagency Working Group on Guatemala Human Rights Issues under the auspices of the National Security Council.

In addition to its regular range of FOIA-training programs offered in conjunction with the Justice Department's Office of Legal Education, OIP also conducted its annual training seminar in 1995, 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 Freedom of Information Act," 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 1995, more than 500 access professionals, representing nearly all federal agencies, attended.

OIP also conducted two sessions in 1995 of its 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, affirmative disclosure, 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 training 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. Also regularly conducted twice each year is OIP's "Advanced Freedom of Information Act Seminar," which includes a presentation 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 and in 1995 also included presentations on the FOIA customer-service activities that have been undertaken by individual components of the Justice Department under the auspices of the National Performance Review.

(f) Briefings

OIP conducted a number of general or specific FOIA briefings during 1995 for persons interested in the operation of the Act, most particularly representatives of foreign governments concerned with the implementation or potential adoption of their own government information access statutes. Visitors were received from the Nations of Japan, Great Britain, Australia, New Zealand, South Africa, Brazil, Ecuador, and Burundi, and included a Member of the Australian Parliament.

(g) Congressional and Public Inquiries

In 1995, OIP responded to 36 congressional inquiries pertaining to FOIA-related matters and, in its "FOIA Ombudsman" capacity (see FOIA Update, Summer/Fall 1993, at 8), it responded to 21 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 regarding the steps needed to be taken by the agency in order to bring it into proper compliance.

Additionally, OIP responded to 435 written inquiries from members of the public seeking information regarding the basic operation of the Act or related matters, as well as to innumerable such inquiries received by telephone. OIP's telephone service to the public continued without interruption during the government shutdown.


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