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

During 1996, 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)(5) (1994), as amended by Electronic Freedom of Informa- tion Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048, 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 1996 was through OIP's counseling activities, which were conducted largely 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 Coun- selor 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 1996 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) (1996)--and it has been found that such consultations are very valuable in encouraging agency compliance with, and greater information dis- closure under, the Act.) More than 3,000 requests for assistance were received by OIP and handled in this way during 1996, a con- tinued increase over the numbers of such inquiries received in earlier years.

(2) Frequently, a FOIA Counselor inquiry is of such com- plexity 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 1996.

(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 ordinar- ily 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 44 such formal consultations in 1996, including eight with the general counsel or deputy general counsel of the agency involved. In addition, OIP provided consultation assistance to two 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 recom- mending 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 125 such litigation consultations in 1996, including 22 involving recommendations as to the advisability of initial or further appellate court review and four involving the question of whether to seek or oppose cer- tiorari in the Supreme Court.

(b) FOIA Update

OIP published its quarterly FOIA policy publication, FOIA Update, in 1996. This publication provides FOIA-related informa- tion and policy guidance to all federal employees governmentwide whose duties include responsibility for legal and/or administra- tive work related to the Act. It also serves as a vehicle for the dissemination of FOIA-related information within the execu- tive branch and for the comparison of agency practices in FOIA administration. More than 4,300 copies of FOIA Update are dis- tributed to agency FOIA personnel throughout the federal govern- ment, 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 Department of Agriculture (including those formerly conducted by the Office of Personnel Management) nation- wide. 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 1,268 in 1996.

In 1996, FOIA Update focused attention on extensive legis- lative developments throughout the year that culminated in the enactment of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048, near the end of the year. The Spring issue of FOIA Update summarized the provisions of a legislative proposal to amend the FOIA that originated in the Senate. The Summer FOIA Update issue discussed the provi- sions of a counterpart FOIA amendment bill that was introduced in the House of Representatives, and disseminated the text of that bill, with comparisons to the provisions of the Senate bill. The Fall issue of FOIA Update was devoted to the FOIA amendment leg- islation enacted by Congress. It contained a detailed analytical discussion of the provisions that were enacted, together with a chart listing their varying effective dates, and included the full text of the Freedom of Information Act in an interlineated form showing all amendments made. This issue of FOIA Update also included the text of President Clinton's signing statement for the new legislation.

Additionally, an "On Agency Practice" article in FOIA Update discussed the development of document-imaging technology and the potential uses of automated FOIA processing by federal agencies as a means of enhancing the efficiency of FOIA administration. This article examined the electronic records systems that have been developed at the Federal Bureau of Investigation, the Cen- tral Intelligence Agency, and the Department of Energy as models for similar system development by other agencies.

In 1996, 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 1996 FOIA Update issue. OIP also used FOIA Update as a vehicle for disseminating the text of an address given by Attorney General Janet Reno at the annual convention of the American Society of Newspaper Editors on the topics of the Freedom of Information Act and openness in government. Also pub- lished in FOIA Update during 1996 were eight "Significant New Decision" discussions, which informed agencies of major FOIA case law developments at the district court and appellate court lev- els. Additionally, through FOIA Update, OIP provided quarterly announcements of FOIA and Privacy Act training opportunities scheduled nationwide throughout the year.

(c) Policy Memoranda

In 1996, OIP issued policy memoranda and advisory discus- sions for the guidance of federal agencies, which were dissem- inated through FOIA Update. The major policy memorandum issued during the year concerned the proper limits of the extraordinary response to a FOIA request known as privacy "Glomarization" under Exemption 7(C) of the Act--the position that a law enforcement agency will neither confirm nor deny the existence of any record that is responsive to a certain type of FOIA request for records on a named individual. OIP's policy guidance reviewed the con- ceptual underpinning of privacy "Glomarization"-- i.e., that law enforcement agencies must use it to avoid stigmatizing an indi- vidual's reputation with any acknowledgement that he or she is mentioned in a law enforcement file--and reiterated that it is inapplicable when the individual is deceased or has waived his or her privacy interests, or when those interests are outweighed by an exceptional public interest in disclosure. Most importantly, in this guidance OIP cautioned law enforcement agencies to employ privacy "Glomarization" only to the extent necessary in order to respond to the particular FOIA request at hand. It pointed out that some FOIA requests for records on named third parties are of such a nature that they need not receive "Glomarization" respons- es in their entireties; rather, OIP advised law enforcement agen- cies to "bifurcate" their responses to such requests, giving a convention response to a request to the fullest extent possible. Its guidance set forth a series of "bifurcation rules" for agen- cies to use for this purpose and called upon them to make sure that privacy "Glomarization" is not overused.

Additionally, in 1996 OIP disseminated policy guidance through its analysis and discussions of the provisions of the Electronic Freedom of Information Act Amendments of 1996 in the Fall 1996 issue of FOIA Update shortly after the amendments were enacted. It addressed both substantive and procedural aspects of the amendments' implementation, as well as the varying implemen- tation timetables for the amendments' different provisions. Most significantly, OIP strongly urged all federal agencies, small as well as large, to develop World Wide Web sites as the most effi- cient means of meeting the amendments' prospective electronic availability requirements.

(d) Research and Reference Publications

A new edition of the Freedom of Information Case List was published by OIP in September 1996. The number of access cases indexed according to specific FOIA exemptions and other topics increased to more than 4,000. 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 1996, OIP also published a separate annual reference vol- ume 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 Informa- tion 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 stat- utes. The "Justice Department Guide to the FOIA" was updated and expanded to more than 500 pages in length in 1996, and it made comprehensive use of "electronic" citations (i.e., WESTLAW and LEXIS) in lieu of slip opinions for more convenient reference purposes.

OIP distributed courtesy copies of the 1996 Freedom of Information Case List and the 1996 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 Justice 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 a cost of $24 and $34 per copy, respectively. OIP also placed the major component parts of the Guide & Overview 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 was "Your Right to Federal Records," the federal govern- ment's basic public information brochure on access to agency information, which was revised and updated in 1996. 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 Cen- ter, 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.

(e) Training

During 1996, OIP furnished speakers and workshop instructors for a variety of seminars, conferences, individual agency train- ing sessions, and similar programs designed to improve the under- standing and administration of the FOIA. Sixteen attorney and paralegal staff members of OIP gave a total of 217 training pre- sentations during the year, including several training sessions that were designed to meet the specific FOIA-training needs of individual federal agencies. Such individualized training ses- sions were conducted for NASA, the CIA, the Social Security Administration, the Small Business Administration, the Food and Drug Administration, the National Archives and Records Adminis- tration, and the Agency for International Development; for the Departments of Defense, Agriculture, Education, and Health and Human Services; 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 pro- grams, including those held by the American Society of Access Professionals, the Army Judge Advocate General's School, the Freedom Forum of the Gannett Foundation, and the President's Council on Integrity and Efficiency. One of the co-directors also appeared on a World Net television program that was broad- cast to consular locations worldwide by the U.S. Information Agency.

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 1996, 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 program has succeeded in efficiently meeting the con- sistently high demand for FOIA training. In 1996, OIP also sup- plemented this program with a special training session that addressed the newly enacted provisions of the Electronic Freedom of Information Act Amendments of 1996, distributing both the amended statutory text and an outline of the amendments' provi- sions. More than 600 access professionals, representing nearly all federal agencies, attended this program.

OIP also conducted two sessions in 1996 of its newest FOIA- training program, the "Freedom of Information Act Administrative Forum," which is devoted almost entirely to administrative mat- ters arising under the Act--such matters as record-retrieval practices, queue usage, backlog management, affirmative disclo- sure, 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 pro- gram brings veteran FOIA processors from throughout the govern- ment together and encourages them to share their experience in administering the Act on a day-to-day basis.

Also conducted twice in 1996 was 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. In 1996, OIP developed a new session for this advanced training program, entitled "Electronic Reading Rooms," which focused on the new electronic availability requirements of the Electronic FOIA Amendments of 1996. Presented jointly by an OIP co-director and the program manager of the Justice Depart- ment's World Wide Web site, this session also addressed the technical requirements of electronic record availability.

(f) Briefings

OIP conducted a number of general or specific FOIA briefings during 1996 for persons interested in the operation of the Act, such as representatives of foreign governments concerned with the implementation or potential adoption of their own government information access statutes. It participated in several con- gressional briefings, provided a briefing to the staff of the Commission on Protecting and Reducing Government Secrecy, and provided briefings and/or FOIA materials to representatives of the Nations of Japan, Indonesia, Hong Kong, Australia, Canada, Chile, Denmark, Sweden, Norway, and the Slovak Republic.

(g) Congressional and Public Inquiries

In 1996, OIP responded to 34 congressional inquiries per- taining to FOIA-related matters and, in its "FOIA Ombudsman" capacity (see FOIA Update, Summer/Fall 1993, at 8), it responded to seven 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 con- cern 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 457 written inquiries from members of the public seeking information regarding the basic operation of the Act or related matters, as well as to innumer- able such inquiries received by telephone. OIP's telephone serv- ice to the public continued without interruption during the gov- ernment shutdown that occurred in 1996.


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