During 1997, 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.A. § 552(e)(5) (West 1996 & Supp. 1997), as amended by Electronic Freedom of Information 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 1997 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 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 1997 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) (1997)--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 1997, a continued increase over the numbers of such inquiries received in earlier 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 1997.

(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 involves a meeting or telephone conference call 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 1997, including seven 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 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 125 such litigation consultations in 1997, including 24 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 1997. 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 4,500 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 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) and the American Society of Access Professionals nationwide. FOIA Update also is sold through the Government Printing Office to nongovernmental subscribers, at a nominal cost of $5.50 per year. It had a paid circulation of 1,268 in 1997.

In 1997, FOIA Update featured agency obligations and activities undertaken in implementation of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231. An "On Agency Practice" article in the Summer 1997 issue of FOIA Update discussed the development and use of World Wide Web sites by federal agencies, including FOIA "home pages" and electronic links, for purposes of FOIA administration. It described how agencies can use new Web sites for purposes of "electronic reading rooms" and to achieve efficient affirmative disclosure of agency information. A related FOIA Update article in the Spring issue discussed the promulgation of agency regulations and the preparation of FOIA Reference Guides in accordance with the Electronic FOIA amendments. Additional items of policy guidance regarding the implementation of the Electronic FOIA amendments were disseminated through the Winter, Spring, and Summer issues of FOIA Update as well.

Also published in FOIA Update during 1997 were ten "Significant New Decision" discussions, which informed agencies of major FOIA case law developments at the district court and appellate court levels. An additional FOIA decision, issued by the United States Supreme Court in a case involving the protection of mailing lists under Exemption 6 of the Act, was featured in an extensive case discussion. Similarly, OIP kept federal agencies advised of recent developments in the area of government contracting information with detailed discussions in two FOIA Update issues describing the adoption of a new disclosure rule for unit prices in the Federal Acquisition Regulation and the enactment of Defense Authorization Act provisions that establish novel disclosure prohibitions for contract proposals submitted to either civilian or defense agencies.

OIP published a cumulative index of items appearing in FOIA Update during the years 1979-1997, with all items indexed by both subject and type, in the Fall 1997 FOIA Update issue. It also 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 Spring 1997 issue. Additionally, through FOIA Update, OIP provided quarterly announcements of FOIA and Privacy Act training opportunities scheduled nationwide throughout the year.

(c) Policy Guidance Memoranda

In 1997, OIP issued policy memoranda and advisory discussions for the guidance of federal agencies, which were disseminated through FOIA Update. It placed primary emphasis on addressing agency implementation questions that arose concerning the provisions of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, most of which took effect as of either March 31 or October 2 of the year. More than two dozen subjects were addressed, including: agency responsibilities regarding the placement of FOIA-processed records in agency reading rooms; agency responsibilities regarding the establishment and maintenance of new "electronic reading rooms"; agency obligations regarding the disclosure of information in the particular form or format sought by a FOIA requester; agency obligations to conduct a search for information in electronic form; agency obligations to specify the location and amount of information withheld, including in electronic form; and the use of "multitrack" processing of FOIA requests by agencies and individual agency components. These new policy subjects and OIP's guidance on them also were discussed at a conference of the principal FOIA officers of all federal agencies that was conducted by OIP.

In accordance with the provisions of the Electronic FOIA amendments, OIP also issued formal guidance to all federal agencies regarding the new annual reporting requirements that began to take effect as of October 1, 1997. Entitled "Guidelines for Agency Preparation and Submission of Annual FOIA Reports," this guidance provided a uniform approach for all agencies to follow in the compilation and organization of statistics and other information in their annual reports of their administration of the FOIA, beginning with the report for fiscal year 1998. It also addressed the process by which agencies will submit their annual FOIA reports to the Department of Justice for public availability through a single World Wide Web site as of February 1999.

Additionally, in 1997 Attorney General Janet Reno sent a memorandum to the heads of all federal departments and agencies that described the major provisions of the Electronic FOIA amendments and at the same time reiterated the openness-in-government principles of the FOIA policy statements that were issued by her and by President Clinton in October 1993. This memorandum emphasized the continued importance of discretionary information disclosure in conjunction with agency implementation of the Electronic FOIA amendments. It was highlighted through FOIA Update as well.

(d) Research and Reference Publications

In 1997, OIP published its primary FOIA research and 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 1997. Most significantly, it added an entirely new "Guide" section, entitled "FOIA Reading Rooms," to address the requirements for both conventional reading rooms and "electronic reading rooms" that took effect during the year under the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231. Major revisions also were made to the "Procedural Requirements" and "Litigation Considerations" sections to incorporate other new requirements of the Electronic FOIA amendments as well. The "FOIA Guide" reached 573 pages in length in 1997, and it made extensive 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 1997 Freedom of Information Act Guide & Privacy Act Overview to each federal agency, to various congressional offices, and to other interested 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 federal agencies and to the public through the Government Printing Office at a cost of $37 per copy. OIP also placed the major component parts of this publication on the Justice Department's World Wide Web site (which can be accessed at http://www.usdoj.gov) to afford electronic access to them as well.

Also placed on the Justice Department's World Wide Web site in 1997 was a new reference publication, the "Department of Justice Freedom of Information Act Reference Guide," which was developed in accordance with the Electronic FOIA amendments. This reference tool for potential FOIA requesters describes the procedural aspects of making a FOIA request, specifies the different types of records that are maintained by the Justice Department's many components, and describes the types of records and information that are available to the public from the Department without the necessity of making a FOIA request. It consists of twelve pages, plus detailed attachments, and contains information appropriate for use by other federal agencies in their FOIA reference guides.

(e) Training

During 1997, 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. Nineteen attorney and paralegal staff members of OIP gave a total of 209 training presentations during the year, including several training sessions that were designed to meet the specific FOIA-training needs of individual federal agencies. Such individualized training sessions were conducted for NASA, the CIA, the Office of the United States Trade Representative, the United States Postal Service, and the National Archives and Records Administration; for the Departments of Defense, Agriculture, Labor, and Education; and for several individual components of the Department of Justice. Additionally, the co-directors of OIP gave a total of 69 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 President's Council on Integrity and Efficiency. OIP training presentations were also made to the D.C. Bar Association, the Wisconsin Bar Association, the Federal Geographic Data Committee, and at the Third Annual Intelligence Community Records & Information Management Conference.

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 1997, 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 consistently high demand for FOIA training. In 1997, OIP also supplemented this program with a special training session that addressed the provisions of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, distributing a compilation of the points of implementation guidance that OIP had provided during the preceding year. More than 700 access professionals, representing nearly all federal agencies, attended this program.

OIP also conducted two sessions in 1997 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 conducted twice in 1997 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 1997, OIP included 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 Department'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 1997 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 provided briefings and FOIA materials to representatives of the Nations of Japan, Great Britain, Argentina, Guatemala, Thailand, and the Republic of Korea, and to a group from more than a dozen different countries in French Equatorial Africa.

(g) Congressional and Public Inquiries

In 1997, OIP responded to 26 congressional inquiries pertaining to FOIA-related matters and, in its "FOIA Ombudsman" capacity (see FOIA Update, Summer/Fall 1993, at 8), it responded to six 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 482 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.

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