2000 Calendar Year Report on Department of Justice Freedom of Information Act Litigation Activities: Compliance Report
DESCRIPTION OF DEPARTMENT OF JUSTICE
EFFORTS TO ENCOURAGE AGENCY
COMPLIANCE WITH THE ACT
During 2000, 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). A summary description of these activities, which is required by 5 U.S.C. Â§ 552(e)(5) (1994 & Supp. IV 1998), 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 2000 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 2000 consisted of the following:
(1) OIP continued to provide basic FOIA Counselor guidance on a broad range of FOIA-related topics. 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. Â§ 0.23a(b) (2000) -- and it has been found that such consultations are very valuable in encouraging agency compliance with the Act.) More than 2500 requests for assistance were received by OIP and handled in this way during 2000, a continued large volume of such inquiries in comparison to those 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 250 inquiries of this nature were handled in 2000.
(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 49 such formal consultations in 2000, including eleven with the general counsel or deputy general counsel of the agency involved. In addition, OIP provided consultation assistance to an Office of Independent Counsel and an Office of Special 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 uniform agency compliance with the Act. 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. OIP 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 2000, including 31 involving recommendations as to the advisability of initial or further appellate court review and five involving the question of whether to seek or oppose certiorari in the Supreme Court. On one certiorari question, in which the Solicitor General ultimately decided to authorize the filing of a certiorari petition, OIP provided an extensive recommendation memorandum that was relied upon heavily by the Office of the Solicitor General in seeking Supreme Court review.
(b) FOIA Update/FOIA Post
During 2000, the Justice Department undertook a transition from its FOIA Update newsletter to a more high-tech and cost-efficient counterpart named FOIA Post. The Justice Department's FOIA Update newsletter was published from 1979 to 2000, in a paper format that became increasingly antiquated with the passage of time. So in 2000, the Department developed FOIA Post, a new means of disseminating Freedom of Information Act-related information to federal agencies that has now been established on the Department's FOIA Web site.
As of 2001, FOIA Post will serve as a primary means of FOIA policy dissemination and as an efficient vehicle for communicating FOIA-related information to agency FOIA personnel and others who are interested in the Act's administration. It will include the same types of FOIA guidance and information features that were disseminated in paper form through FOIA Update, but it will do so in a more efficient electronic form that also can make effective use of electronic "links" to referenced documents and other sources of information in a Web-based format.
This natural evolution to Web-based governmentwide information dissemination for the FOIA not only takes advantage of the cost-efficiencies of electronic communication, it also is in keeping with the Act's growing emphasis on the disclosure of agency information to the public electronically, through use of the Internet and the World Wide Web, under the provisions of the Electronic FOIA amendments. Just as individual agency FOIA Web sites have become a vital means by which the FOIA is administered at all federal agencies, agencies can now look to the Justice Department's FOIA Web site for the most recent postings of information regarding matters of governmentwide FOIA administration. The Department recommends that this part of its FOIA Web site (www.usdoj.gov/oip/foiapost/mainpage.htm) be electronically "bookmarked" by all agency FOIA personnel and others interested in the Act for this purpose.
All issues of FOIA Update for the years 1979-2000 have now been placed on the Department of Justice's FOIA Web site, where they are available electronically -- and are "keyword searchable" -- for ready reference purposes. Additionally, guidance items from FOIA Update (and now from FOIA Post) are used in all Justice Department FOIA-training programs and are made available for such programs offered by the Graduate School of the United States Department of Agriculture (including those formerly conducted by the Office of Personnel Management) and by the American Society of Access Professionals nationwide.
Published in FOIA Update during 2000 were eight discussions of new FOIA decisions handed down by district courts and courts of appeals, together with a more extensive discussion of the decision by the United States Supreme Court in United States v. Weatherhead, 528 U.S. 1042 (1999), to vacate and thus nullify a lower court decision that had ordered the Department of State to disclose information that had been classified on national security grounds.
OIP 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 both published in FOIA Update and made available electronically through the Justice Department's FOIA site on the World Wide Web. Through FOIA Update, OIP also provided announcements of Freedom of Information Act and Privacy Act training opportunities scheduled nationwide during the year. In future years, both of these reference items will continue to be disseminated through FOIA Post.
(c) Additional FOIA Reference Materials
In 2000, OIP completed a major updating of its principal FOIA reference volume -- which primarily contains the "Justice Department Guide to the Freedom of Information Act," an extensive discussion of the FOIA's many exemptions and procedural aspects. 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.
The "Justice Department Guide to the Freedom of Information Act" was updated and expanded to more than 650 pages in length in 2000, in an improved font style, and it made comprehensive use of electronic citations (i.e., WESTLAW and LEXIS) wherever possible, in lieu of citations to slip opinions, for more convenient reference purposes. For this revised edition of the "FOIA Guide," OIP entirely restructured and subdivided its "Procedural Requirements" Section, in accordance with expanded legal requirements under the Act, and it also added new subsections to two sections of the "FOIA Guide" in order to more comprehensively address the Act's "reasonably segregable" requirements in accordance with developing case law.
OIP distributed courtesy copies of the 2000 Freedom of Information Act Guide & Privacy Act Overview to each federal agency, to various congressional offices, and to other interested parties. OIP 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 $48 per copy. OIP also placed the major component parts of the Guide & Overview on the Justice Department's FOIA Web site to afford electronic access to them as well.
Also made available on the Department's FOIA Web site during 2000 was the "Department of Justice Freedom of Information Act Reference Guide," which was developed in accordance with the Electronic FOIA amendments and is a model for the counterpart reference guides that are prepared by other federal agencies. 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 fourteen pages, plus detailed attachments, and it contains much information appropriate for use by all other federal agencies in their FOIA reference guides. This electronically available publication was supplemented in 2000 with additional information regarding the Justice Department's "major information systems," in accordance with a provision of the Electronic FOIA amendments, 5 U.S.C. § 552(g)(1).
In accordance with another provision of the Electronic FOIA amendments, 5 U.S.C. Â§ 552(e)(3), the Justice Department in 2000 maintained "a single electronic access point" for the consolidated availability of the annual FOIA reports of all federal agencies. In furtherance of this, OIP receives copies of each agency's annual FOIA report each year and makes these reports promptly available at its centralized electronic site. These annual reports, beginning with those for fiscal year 1998, can be readily accessed by the public on the Department's FOIA Web. Additionally, in 2000 OIP initiated a process of reviewing all agencies' annual reports as they are sent to it for this purpose, and then contacting individual agencies to discuss and resolve any identified question or discrepancy with them. OIP plans to continue to do this in future years, within an even broader framework of scrutiny.
In 2000, OIP also worked together with the General Services Administration (GSA) and the Office of Management and Budget to publish an updated edition of a publication entitled "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, 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 of 1974 to seek access to records maintained by any federal agency. Over the years, it consistently has been one of the Consumer Information Center's most heavily requested brochures, and it also is made available to the public electronically through the Justice Department's FOIA Web site.
During 2000, 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. Sixteen professional staff members of OIP gave a total of 102 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 Library of Congress, the Securities and Exchange Commission, the Agency for International Development, the Defense Nuclear Facilities Safety Board, and the new Court Services and Offender Supervision Agency; for the Departments of Transportation, Health and Human Services, Energy, and the Navy; and for several individual components of the Department of Justice, including the Federal Bureau of Investigation. OIP also conducted a special session on Exemption 4 of the FOIA and "reverse FOIA" cases for the agencies that regularly deal with procurement-related FOIA issues, including several sub-agencies of the Department of Defense. OIP training presentations also were made at the National Freedom of Information Coalition's Annual Convention, at a forum sponsored by the Business Information Subcommittee of the American Bar Association, and at the Graduate School of the United States Department of Agriculture.
Additionally, the co-directors of OIP gave a total of 80 presentations at various FOIA-training programs, including those held by the American Society of Access Professionals, the Army Judge Advocate General's School, the Federal Dispute Resolution Conference, Inc., the Public Administration Forum, and the American Library Association. Both co-directors also participated in a videoconference conducted with several Members of the European Parliament, together with the Chairman of the House Subcommittee on Government Management, Information, and Technology, and one appeared on "Ceska Televize" (Czech Television) in connection with the implementation of the Czech counterpart to the Freedom of Information Act.
In conjunction with the Justice Department's National Advocacy Center, OIP conducted a wide range of FOIA-training programs in 2000, ranging from half-day introductory sessions for non-FOIA personnel to advanced programs for highly experienced FOIA personnel. OIP's basic two-day training course, entitled "The Freedom of Information Act for Attorneys and Access Professionals," was conducted several times during 2000 in Columbia, South Carolina, which is now the base location of the National Advocacy Center. During 2000, OIP worked with the National Advocacy Center to expand both the size and the availability of its FOIA-training programs, including through the presentation of OIP's basic FOIA-training course once during the year in Washington, D.C.
OIP also conducted two sessions in 2000 of its "Freedom of Information Act Administrative Forum," a training program devoted almost entirely to administrative matters arising under the Act -- such matters as record-retrieval practices, multi-track 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 2000 was OIP's "Advanced Freedom of Information Act Seminar," which featured presentations by the Chief Counselor for Privacy in the Executive Office of the President on the topic of "Federal Privacy Issues," and by the FOIA Coordinator for the National Security Archive, who presented a view of the administration of the FOIA from the perspective of a FOIA requester.
In addition to its regular range of FOIA-training programs that are offered in conjunction with the Justice Department's National Advocacy Center, OIP also conducted a training seminar in 2000 that 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 "FOIA Guide Seminar," it was conducted by OIP immediately after completion of the 2000 edition of the "Justice Department Guide to the FOIA," a special prepublication copy of which was provided to all participants. This program efficiently helps meet the consistently high demand for FOIA training in the Washington, D.C. area. In 2000, OIP made arrangements to conduct this program in the main auditorium of the Ronald Reagan International Trade Center Building, where more than 500 FOIA personnel, representing nearly all federal agencies, were able to attend.
OIP conducted a number of general or specific FOIA briefings during 2000 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 laws. It provided briefings and FOIA materials to representatives of Japan, Great Britain, The Netherlands, Guatemala, Russia, China, Kyrgyzstan, and the Republic of Georgia. It also provided such briefings to several Members of the Nigerian National Assembly, to several Members of the Slovakian Parliament, and to the Deputy of the Parliament of the Republic of Moldova.
Additionally, in 2000 OIP provided extensive assistance to the District of Columbia Government in connection with the D.C. Council's consideration of both legislative and administrative reform of the operation of its counterpart to the Freedom of Information Act. OIP provided advice to several representatives of the District of Columbia Government, in separate meetings with D.C. Council staff, with supervisory staff from the D.C. Corporation Counsel's Office, and with the Chief of Staff to the Mayor. Similarly, OIP met with and provided advice to several visitors from Canada, including the Chairman of the Canadian Access to Information and Review Task Force, regarding the proposed reform of Canada's access laws.
(f) Congressional and Public Inquiries
In 2000, OIP responded to 30 congressional inquiries pertaining to FOIA-related matters and, in its "FOIA Ombudsman" capacity, (see FOIA Update, Vol. XIV, No. 3, at 8), it responded to twelve 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 302 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.