ADMINISTRATIVE APPEALS

During 1996, 3770 new administrative appeals were received by the Office of Information and Privacy (OIP) and 3783 appeals were closed. Additionally, 5 previously closed appeals were reopened.(1) At the beginning of the year, the Office had a pending caseload of 1555 appeals. There were 1547 appeals on hand at the end of the year.

Freedom of Information Act Statistics

Of the 3783 appeals closed during the year, 1140 involved requests under the Freedom of Information Act. The breakdown of these closings is as follows:
- Modified action resulting in total grant 29
- Reversed or remanded(2) 279
- Affirmed 386
- Modified action affirmed(3) 118
- Miscellaneous 328

The miscellaneous closings consisted of the following:

- Failure of the component to process initial action within statutory time limits(4)

64

- No records

155

- No agency jurisdiction (appeals from state, local or other federal agency actions)

21

- Fee waivers:                                                                                                                        6

affirmed        6
remanded       0
  

- Not a valid appeal

19
- Judicial adjudication or appellant has filed suit 23
- Requester withdrew appeal 12
- Referrals 4
- Duplicate file 5
- Expedited treatment                                                                                                         19
denied            18
granted           1
 

The statutory provisions upon which denials of Freedom of Information Act requests were based at the administrative appeals level were as follows:
5 U.S.C. § 552(b)(1) 59
5 U.S.C. § 552(b)(2) 84
5 U.S.C. § 552(b)(3) 31
5 U.S.C. § 552(b)(4) 4
5 U.S.C. § 552(b)(5) 25
5 U.S.C. § 552(b)(6) 103
5 U.S.C. § 552(b)(7)(A) 48
5 U.S.C. § 552(b)(7)(C) 320
5 U.S.C. § 552(b)(7)(D) 89
5 U.S.C. § 552(b)(7)(E) 12
5 U.S.C. § 552(b)(7)(F) 19

Exemption 3 was asserted at the administrative appeals level in conjunction with the following statutes:

Rule 6(e), Federal Rules of Criminal Procedure 14
8 U.S.C. § 1255(c)(5) 3
8 U.S.C. § 1160(b)(6) 1
8 U.S.C. § 1202(f) 2
15 U.S.C. § 18(a)(h) 1
15 U.S.C. § 1314(g) 1
15 U.S.C. § 4305d 1
18 U.S.C. § 2510 1
18 U.S.C. § 2517 2
26 U.S.C. § 6103 4
42 U.S.C. § 2000g-2 1

The final actions on Freedom of Information Act administra- tive appeals involving continued denials of access to requested records were taken by Richard L. Huff, Co-Director of the Office of Information and Privacy, in all 747 cases.

Privacy Act Statistics

In addition to the 1140 Freedom of Information Act adminis- trative appeals closed this year, 2643 "Privacy Act" (first-party request)(5) administrative appeals were also closed. (The Privacy Act was actually cited by the appellant in 337 of these 2643 appeals.) The breakdown of the Privacy Act appeal closings is as follows:

Modified action resulting in total grant 93
Reversed or remanded(6) 736
Affirmed 577
Modified action affirmed(7) 335
Miscellaneous 902

The miscellaneous closings consisted of the following:

- Failure of the component to process initial action within statutory time limits(8) 175
- Requester withdrew appeal 26
- Not a valid appeal 57
- No records 495
- No agency jurisdiction (appeals from state, local or other federal agency actions) 29
- Fee waiver denials affirmed 28
- Judicial adjudication 45
- Referrals 4
- Duplicate file 15
- Expedited treatment                                                                                             28
denied           28
granted           0
  

The statutory provisions upon which denials of first-party requests for access were based at the administrative appeals level were as follows:

5 U.S.C. § 552(b)(1) 38
5 U.S.C. § 552(b)(2) 191
5 U.S.C. § 552(b)(3) 56
5 U.S.C. § 552(b)(4) 1
5 U.S.C. § 552(b)(5) 85
5 U.S.C. § 552(b)(6) 49
5 U.S.C. § 552(b)(7)(A) 98
5 U.S.C. § 552(b)(7)(C) 704
5 U.S.C. § 552(b)(7)(D) 257
5 U.S.C. § 552(b)(7)(E) 57
5 U.S.C. § 552(b)(7)(F) 143

Exemption 3 of the Freedom of Information Act was asserted at the administrative appeals level in conjunction with the following statutes:

Rule 6(e), Federal Rules of Criminal Procedure 44
8 U.S.C. § 1160(b)(6) 1
18 U.S.C. § 2510 1
18 U.S.C. § 2516 1
18 U.S.C. § 2517 6
18 U.S.C. § 5038(a) 1
26 U.S.C. § 6103 2

The final actions on Privacy Act administrative appeals involving continued denials of access to requested records were taken by Richard L. Huff, Co-Director of the Office of Information and Privacy, in all 1638 cases.

The costs of processing administrative appeals were as follows:

Freedom of Information Act related expenses:
Services $622,677
Other 155,669
Total $778,346
Privacy Act related expenses:
Services $1,452,913
Other 363,228
Total $1,816,141




**** footnotes ****

1 Closed appeals were reopened primarily because the request- er provided further information needed in order to process the appeal or remitted reproduction fees assessed, but previously unpaid, in connection with the initial request.

2 These include appeals in which the cases were remanded to the components with instructions to reprocess, or process for the first time, the requested records. Reprocessing follows a deter- mination that the processing was initially carried out under an erroneous standard. A remand for processing results from a determination that a refusal to process requested records, or to confirm or deny their existence, was erroneous. Additionally, some cases in which no records were initially located are remanded for the component to conduct an additional search.

3 These represent modification of initial actions arrived at in the course of the appeals process by agreement between the component and OIP which result in additional record disclosures.

4 Upon receipt of an appeal based on the component's failure to locate and process requested records within the statutory time limits, OIP informs the component of the appeal, but advises the requester that it lacks the personnel resources to conduct the comprehensive record reviews necessary to make initial deter- minations on requested records. OIP also advises the requester that if he or she is dissatisfied with the component's ultimate substantive action on the request, an appeal on the merits will be opened. The requester is also informed that he or she may treat this notification as a denial of the appeal and bring suit in an appropriate federal court. It has been OIP's experience that a significant number of appeals based on actual denials of access (as opposed to those based on a component's failure to respond) considerably narrow the volume of records and issues that must be considered. Accordingly, this approach contributes to the efficient operation of the overall appeals process, without ever denying a requester the right to a review of an initial action on the merits.

5 Department of Justice practice is to treat requests by individuals seeking access to records about themselves, maintained in a system of records and retrievable under the individual's name or identifier, as Privacy Act requests. In fact, however, given the nature of the records requested and the system of records within which they are maintained (most of which have been exempted from Privacy Act access pursuant to 5 U.S.C. § 552a(j)(2)), it is relatively rare for actual denials of access to be based on Privacy Act nonsystemic exemptions. Such exemptions were cited in 75 of the cases adjudicated by OIP and in those cases FOIA exemptions were cited as well. Nonetheless, all first-party requests are treated as Privacy Act requests for case-count and cost-allocation purposes.

6 See note 2, supra.

7 See note 3, supra.

8 See note 4, supra.


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