Description Of Department Of Justice Efforts To Encourage Agency Compliance With The Act
During 2005, the Department of Justice, through its Office of Information and Privacy (OIP), engaged in a wide range of activities in meeting the Department's responsibility to encourage agency compliance with the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2000 & Supp. III 2003), throughout the executive branch. It also acted in furtherance of the policies and principles that were established by Executive Order 13,392, entitled "Improving Agency Disclosure of Information," during the year. A summary description of these activities, which is required by subsection (e)(5) of the Act, 5 U.S.C. § 552(e)(5), is set out below.
(a) Counseling and Consultations
One of the primary means by which the Department of Justice encouraged agency compliance with the FOIA during 2005 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 departments and 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. (This service and phone number are publicized also by some nongovernment organizations, such as the First Amendment Center of the Freedom Forum.) OIP also regularly receives telefaxed FOIA Counselor inquiries, and supporting documentation, at (202) 514-1009. While most of this counseling was conducted by telephone, other options were made available as well. In summary, the counseling services provided by OIP during the year consisted of the following:
(1) OIP provided basic FOIA Counselor guidance to agencies on a broad range of FOIA-related subjects, including emerging issues pertaining to information that is of homeland security sensitivity. Most of the FOIA Counselor calls received by OIP involve issues that are 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 Department of Justice 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) (2005) -- and it has been found that such consultations are very valuable in encouraging agency compliance with the Act.) More than 3200 requests for assistance were received by OIP and handled in this way during 2005, the largest volume of such inquiries ever received.
(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 (one of whom retired from government service near the end of the year) or its deputy director. Approximately 300 inquiries of this nature were handled in 2005.
(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 that is presented by the agency. Such a consultation involves a meeting or teleconference between agency representatives and senior OIP attorneys at which all factual, legal, and policy issues related to the matter presented are thoroughly discussed and resolved. There were seventy-one such more formal consultations in 2005, including twenty-one with the general counsel or deputy general counsel of the agency involved. In addition, OIP provided consultation assistance to the Director of the Terrorist Screening Center, the Director of the Information Security Oversight Office, the Director of Public Affairs of the Nuclear Regulatory Commission, the Chairman of the National Security Council's Coordinating Committee on Records Access and Information Security, the Chairman of the Committee of Experts on the Evaluation Mechanism for the Inter-American Convention Against Corruption, the Chief Privacy Officer of the Department of Homeland Security, the Acting Civil Liberties and Privacy Officer of the Office of the Director of National Intelligence, the Legal Counsel to the Chairman of the Joint Chiefs of Staff, the Inspector General of the General Services Administration, the Inspector General of the Department of Justice, the Acting Inspector General of the Department of Homeland Security, the Chairman of the President's Information Security Classification Appeals Panel, and the Chairman of the Interagency Working Group on European Union Legislation for Law Enforcement Data Sharing during the year.
(4) An additional counseling service provided by OIP pertains to FOIA matters in litigation, where advice and guidance are provided at the request of and in close coordination with the Department of Justice'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 and proper agency compliance with the Act. In many such instances, OIP is asked to consult on litigation strategy and in the drafting of briefs or petitions to be filed at the district court or appellate court levels. Further, OIP is consulted in all instances in which the Department of Justice must decide whether to pursue a FOIA or FOIA-related issue on appeal. OIP also is regularly consulted in all FOIA cases, and regarding all FOIA-related issues, that are handled by the Office of the Solicitor General before the United States Supreme Court. Most often, these litigation consultations were provided by one or both of OIP's co-directors. There were approximately 100 such litigation consultations in 2005, including forty-one that involved recommendations as to the advisability of initial or further appellate court review and five that involved the question of whether to seek or oppose certiorari review in the Supreme Court. In several such cases, OIP provided further consultation assistance to the Office of the Solicitor General on the FOIA or FOIA-related issues involved.
(b) Policy Guidance
During 2005, the Department of Justice issued policy and advisory discussions of FOIA issues for the guidance of all federal agencies, using its FOIA Post online publication as its primary means of policy dissemination. The major policy guidance issued during the year pertained to an issue of longstanding significance under the FOIA -- the proper treatment of FOIA requests that seek access to government contract line item prices, commonly referred to as "unit prices." This guidance addressed this policy area in light of the decision of the Court of Appeals for the District of Columbia Circuit in McDonnell Douglas Corp. v. United States Department of the Air Force, 375 F.3d 1182 (D.C. Cir. 2004), reh'g en banc denied, No. 02-5342 (D.C. Cir. Dec. 16, 2004), and it concluded that a careful examination of this decision confirms the soundness of agencies continuing their practice of following the standard submitter-notice process and, assuming that disclosure is required, creating a detailed administrative record to support their decisions in unit price cases. Most specifically, it advised agencies that the D.C. Circuit's McDonnell Douglas decision did not create a per se rule that prices in awarded government contracts must be withheld; it reminded agencies of the differences in the multiple types of prices that had been addressed in that decision; and it pointed out the applicability of recent disclosure provisions of the Federal Acquisition Regulation (FAR) to the contents of current contracts. Further, it guided agencies as to the key elements of an administrative record that should be created in such "reverse FOIA" cases, including express cognizance of the treatment that historically has been accorded contract prices under both the FOIA and the FAR.
A second major policy area addressed in 2005, one that also relates to activities begun in implementation of Executive Order 13,392, was the growing importance and impact of agencies holding annual conferences for the agencywide discussion of issues and current developments that are most applicable to the work of their FOIA personnel. Near the beginning of 2005, OIP published a discussion of this subject in FOIA Post that strongly encouraged agencies to hold such conferences as often as possible, based upon the Department of Justice's own example as well as that set by the Departments of State and Transportation, and it also offered its strong support of agency plans and programs toward that end. By the end of the year, several additional agencies -- including the Department of Energy, the Environmental Protection Agency, the Nuclear Regulatory Commission, and the National Oceanographic and Atmospheric Administration -- held such conferences with this Justice Department encouragement and support, including keynote addresses by one or both of OIP's co-directors. Also near the end of the year, OIP conducted an additional such conference for the Justice Department itself, one that focused heavily on implementation of the newly issued FOIA executive order.
Additionally, during 2005, OIP prepared policy guidance on several other subjects of both substantive and procedural significance to the current administration of the Act. Specifically, this guidance covered such areas as the extent of an agency's obligation under the FOIA to search through all of the information that is available to it electronically, such as electronic databases to which it has access; the limited circumstances in which an agency might be obligated to forward incorrectly directed FOIA requests to other agencies, or other components of the same agency, if the recipient thinks that responsive records might be located there; the circumstances in which an agency may properly "scope out," as nonresponsive, certain information within a document that is located in response to a particular request; the proper means of determining an applicable public interest in disclosure under the Act's privacy exemptions; and the proper protection of "A-76 documents" -- i.e., those pertaining to the processes of "contracting out" or "competitive sourcing" under OMB Circular A-76 -- under Exemption 5 of the FOIA. Near the end of the year, OIP also began undertaking policy development activities for the implementation of Executive Order 13,392.
(c) FOIA Post
In 2005, the Department of Justice completed its fifth year of publishing FOIA Post, its more high-tech and cost-efficient replacement for its longtime FOIA Update newsletter that now can make effective use of electronic links to referenced documents and other sources of information in a Web-based format, in keeping with the Act's growing emphasis on the disclosure of agency information to the public electronically, through use of the World Wide Web, under the provisions of the Electronic Freedom of Information Act Amendments of 1996.
During 2005, OIP disseminated a variety of different items for the assistance of federal agencies through FOIA Post. In addition to certain items of substantive and procedural policy guidance discussed above, OIP used this electronic publication portal to provide governmentwide notification of FOIA and FOIA-related training opportunities during the year, including scheduling updates necessitated by changed circumstances; to distribute some newly prepared summaries of current FOIA decisions received by OIP; to keep agencies advised of certain FOIA-related legislative developments; and to disseminate announcements about the establishment of a governmentwide award for outstanding service by a non-Justice Department FOIA officer and about the retirement of one of OIP's co-directors during the year.
Lastly, during 2005, OIP continued its use of a FOIA Post feature through which it regularly disseminates descriptions of Freedom of Information Act and Privacy Act-related positions that are available at federal agencies, in an effort to facilitate the hiring of highly qualified attorneys and access professionals to work in the FOIA and Privacy Act areas throughout the federal government. A total of eighteen such FOIA-related employment openings were publicized through fifteen such postings during the year, with continued positive results.
(d) Additional FOIA Reference Materials
In 2005, OIP made preliminary arrangements with the Government Printing Office for the next revision of its major reference volume, entitled the Freedom of Information Act Guide & Privacy Act Overview, which contains the "Justice Department Guide to the Freedom of Information Act." At the same time, it also began editorial preparations for the completion of this new edition of the "Justice Department Guide to the FOIA." Likewise, OIP also made plans with the General Services Administration (GSA) 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, so as to incorporate the provisions and full text of Executive Order 13,392. This joint publication of the Department of Justice and GSA, which is made available to the general public in brochure form through GSA's Federal Citizen 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 Federal Citizen Information Center's most heavily requested brochures, and it also is made available to the public electronically through the Department's FOIA Web site (where it can be accessed at www.usdoj.gov/oip/04_7.html).
Also made available on the Department's FOIA Web site during 2005 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 maintained 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 Department of Justice'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 fifteen pages, plus six detailed attachments, and it contains much information that is readily adaptable for use by all other federal agencies in their own FOIA reference guides. Beyond its use by the Justice Department, other agencies, and the FOIA-requester community, this guide also was used by several other nations of the world in their work on the implementation of their new Freedom of Information Act-like laws during the year. An updated version of it was issued in April 2005, and upon the issuance of Executive Order 13,392 near the end of the year a further revision process was begun in order to incorporate the provisions of that presidential directive and to facilitate the guide's re-issuance early in 2006 as a model for other federal agencies as well.
In accordance with another provision of the Electronic FOIA Amendments, 5 U.S.C. § 552(e)(3), the Justice Department in 2005 maintained "a single electronic access point" for the consolidated availability of the annual FOIA reports of all federal agencies. In furtherance of this (though not in all respects required by the Act), OIP receives a copy of each agency's annual FOIA report each year, reviews it for correctness and completeness, and then makes all such reports promptly available at its central electronic site. These annual FOIA reports, beginning with those for Fiscal Year 1998, are organized by the Justice Department and made readily accessible to the public on the Department's FOIA Web site, at www.usdoj.gov/oip/04_6.html. Based upon close coordination with the Government Accountability Office (GAO), OIP in 2005 continued its enhanced practice of reviewing all agencies' annual reports as they are sent to it for this electronic availability purpose, and then contacting individual agencies to discuss and resolve any identified question or discrepancy with them. It did so in accordance with a 2002 GAO report entitled "Update on the Implementation of the 1996 Electronic Freedom of Information Act Amendments," which encouraged such discretionary OIP review activities and found that they "have resulted in improvements to both the quality of agencies' annual reports and on-line availability of information." Id. at 62. A follow-up GAO study published in 2004 likewise found improvements in agencies' annual reporting due to OIP's governmentwide review efforts. See "Update on Freedom of Information Act Implementation Status" (Feb. 2004), at 3.
For additional reference purposes, during 2005, all issues of FOIA Update for the years 1979-2000 were made available on the Justice Department's FOIA Web site, where they were fully accessible electronically -- and keyword searchable -- as an aid to ready research. Additionally, guidance items from FOIA Update (and now also from FOIA Post) were used in all Justice Department FOIA-training programs and were made available in paper form to students through such programs offered by the Graduate School of the United States Department of Agriculture (USDA) and by the American Society of Access Professionals nationwide. Similarly, OIP made copies of the Freedom of Information Act Guide & Privacy Act Overview available to governmentwide training participants without cost through the Justice Department's FOIA-training programs, as well as to all representatives of foreign nations and other visitors who receive briefings at OIP's offices.
As well, OIP has placed the basic contents of its largest FOIA training manual, which it uses in its training program entitled "The Freedom of Information Act and Privacy Act for Attorneys and Access Professionals," into a special compilation that can be viewed and downloaded in electronic form. This now enables all FOIA personnel governmentwide to benefit from these training and guidance materials on a regular basis and allows users of the Justice Department's FOIA Web site to conduct research on FOIA issues in a highly efficient fashion. Because this compilation takes advantage of Web-based technology to include multiple links to additional reference materials within individual reference items, it permits the creation of comprehensive research packages on FOIA topics of interest, through the simple steps of linking and printing, with an efficiency and comprehensiveness never before possible.
(e) Training and Public Presentations
During 2005, OIP furnished speakers and workshop instructors for a variety of seminars, conferences, individual agency training sessions, public forums, and similar programs conducted to promote the proper administration of the FOIA within the executive branch and/or a greater understanding of the Act's administration outside the executive branch, including internationally. Seventeen professional staff members of OIP gave a total of 142 training presentations during the year, including at several training sessions designed to meet the specific FOIA-training needs of individual agencies. Such individualized training sessions were conducted for the National Aeronautics and Space Administration, the Merit Systems Protection Board, the Defense Intelligence Agency, and the Environmental Protection Agency; for the Departments of the Treasury, Labor, State, Energy, and of the Army; and for several individual components of the Department of Justice, including the Federal Bureau of Investigation. OIP training presentations also were made at the annual Business Information Training Day program of the American Society of Access Professionals and at an international transparency training program conducted in London, England. OIP's deputy director also participated in the Sixth Global Forum on Reinventing Government, in Seoul, Korea, regarding international transparency issues.
Additionally, the co-directors of OIP gave a total of 107 presentations at a variety of FOIA-training programs and other forums for the discussion of government information policies and practices, including those held by the National Academy of Public Administration, the Freedom Forum, the Foreign Press Center, the American Society of Access Professionals, Cardozo School of Law, and the Army Judge Advocate General's School. They made key presentations at the Third International Conference of Information Commissioners; at the Annual Freedom of Information Day Celebration at the Freedom Forum; at the Annual Conference of the National Freedom of Information Coalition; at the Mexican State Government Conference; at the Annual Symposium, the Western Regional Training Conference, and the Summer Training Program of the American Society of Access Professionals; at the Twentieth Annual Federal Dispute Resolution Conference; at NASA's Annual FOIA Conference as well as such annual FOIA conferences conducted by several other agencies; and at a conference conducted for the principal FOIA officers of the Department of Justice. During the year, one of OIP's co-directors also debated a media representative on the subject of the professionalism of government FOIA officers at the Heritage Foundation, addressed all statutorily appointed inspectors general at the White House Conference Center, and represented the U.S. in a formal presentation made to the Group of States Against Corruption (GRECO) of the Council of Europe.
During 2005, OIP provided an exceptional degree of training support also to the governments of other nations, in coordination with the Department of State. As a follow-up for such assistance previously provided in Buenos Aires, OIP's deputy director was requested by the Nation of Argentina to provide further extensive, on-site training support of its ongoing efforts to implement a government transparency regime there. Likewise, she also provided consultation assistance in China, through the auspices of the China Law Center of the Yale Law School, and traveled to Chile for such purposes as well. Similarly, OIP conducted a week-long training program in the Dominican Republic at the special request of that government and the State Department during the year.
In conjunction with the Justice Department's National Advocacy Center, OIP conducted a wide range of FOIA-training programs in 2005, 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 during 2005 in Columbia, South Carolina (the base location of the National Advocacy Center), and in Washington, D.C. as well. During 2005, OIP continued to make adjustments to this program based upon changing circumstances; in addition to scheduling more such programs in other locations, OIP adjusted this program's workshop schedules to accommodate more participants as well as an enhanced policy session addressing the new FOIA executive order.
OIP also conducted two sessions in 2005 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 forum for the governmentwide exchange of ideas and information on all matters of FOIA administration, this program regularly brings together veteran FOIA processors from throughout the government and encourages them to share their experience in administering the Act on a daily basis. Also conducted twice in 2005 was OIP's "Advanced Freedom of Information Act Seminar," which featured presentations by the Executive Director of the Reporters Committee for Freedom of the Press and by the former Freedom of Information Act Coordinator of the National Security Archive on the administration of the FOIA from the perspective of FOIA requesters. In 2005, this latter program also contained a new session entitled "FOIA From the Legislative Perspective" featuring a senior staff member of the Senate Judiciary Committee, as well as a newly designed session on the subject of Executive Order 13,392.
Lastly, as is referenced above, OIP also held a FOIA Officers Conference for the principal FOIA officers of the Department of Justice during 2005, at which a variety of FOIA-related matters that are of particular significance to the Justice Department's forty components (most particularly the intra-agency implementation of Executive Order 13,392) were reviewed and discussed. In so doing, it not only served as a model for its continuing efforts to encourage other federal agencies to conduct such agencywide gatherings and FOIA conferences on a regular basis, it also set a strong example for holding such gatherings for purposes of the new FOIA executive order's implementation inasmuch as it was held on December 15, immediately after the executive order's issuance.
(f) Briefings and Interagency Coordination Activities
OIP conducted a number of general or specific FOIA briefings during 2005 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. OIP provided briefings and FOIA materials in more than twenty-five such sessions held in its offices for representatives of such nations as Indonesia, Russia, Mexico, Canada, Turkey, Pakistan, Bulgaria, Japan, Ghana, Bolivia, China, Kenya, Venezuela, Guatemala, and the Ukraine, in conjunction with such organizations as the International Law Association and the National Academy of Public Administration (NAPA). It also provided such briefings to an Undersecretary-General of the United Nations; the President of the Chilean Chamber of Deputies; a delegation of Nigerian Supreme and High Court judges; and the Director of Public Affairs for the Supreme Court of Panama. Further, as noted above, one of OIP's co-directors represented the U.S. at the Third International Conference of Information Commissioners in Mexico and, in coordination with the State Department, OIP's deputy director traveled to China to engage in several days of additional discussions of openness-in-government principles with both national and provincial officials there, likewise spent several days in Chile promoting openness in government at an international conference there, and also traveled to Argentina to provide a further training in support of the implementation of its relatively new government openness regime. In sum, 2005 saw a record volume of international briefing activity by OIP, both in Washington, D.C. and overseas.
Additionally, in 2005 OIP conducted an editorial review of two FOIA-related publications for the Section of Administrative Law of the American Bar Association; it conducted an interagency meeting on the subject of the proper protection of Witness Security Program information; it hosted an interagency meeting on the safeguarding of homeland security-sensitive information; it provided FOIA briefings to GAO and to the staff of a House subcommittee; it provided consultation assistance to the Global Leadership Consortium established jointly by NAPA and the Graduate School of the USDA; it advised the Office of Government Ethics and State Department on freedom-of-information issues pertaining to anti-corruption activities proposed by the Organization of American States in Central and South America; it provided extensive, comprehensive, and proactive assistance to the newly created Office of the Director of National Intelligence regarding its FOIA and Privacy Act-related responsibilities; and it promptly began the process of interagency coordination of governmentwide implementation of Executive Order 13,392 near the end of the year. Also during the year, one of OIP's co-directors served on the Governance Board of the Business Gateway Initiative, a governmentwide "E-Government" program conducted under the auspices of OMB.
During 2005, OIP also engaged in other interagency coordination activities in FOIA-related areas. As an outgrowth of the FOIA Officers Conference that it conducted on the subject of homeland security in 2003, and to serve the need for continuing governmentwide coordination in this area of growing importance, OIP formed an interagency working group on homeland security-related FOIA issues that was very active during 2005. This FOIA Officers Homeland Security Information Group (FOHSIG) now is comprised of representatives of more than a dozen agencies who gather regularly at meetings hosted by OIP to exchange information and discuss upcoming matters pertaining to homeland security-related information policies and practices. The FOHSIG met four times during 2005 and continues to meet quarterly. Another significant interagency coordination activity engaged in by OIP in 2005 was its review of proposed legislation and other matters pertaining to congressional activity. During the year, OIP conducted numerous reviews of draft or preliminary legislative proposals relating to either the FOIA or information policy more generally, making corrective recommendations in many instances, most frequently in connection with the technical sufficiency of proposed statutory nondisclosure provisions intended to serve as "Exemption 3 statutes" under the Act. It likewise identified such revisions made in proposed legislative testimony and other legislative submissions by agencies on FOIA-related issues as well.
(g) Congressional and Public Inquiries
In 2005, OIP responded to fifteen congressional inquiries pertaining to FOIA-related matters and, in its "FOIA Ombudsman" capacity, see FOIA Update, Vol. XIV, No. 3, at 8, it handled a half dozen complaints received 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 more than 150 written inquiries from members of the public seeking information regarding the basic operation of the Act or related matters during the year, as well as to innumerable such inquiries received by telephone. The number of written inquiries received during 2005 continued to be smaller than in previous years, largely due to the increased availability of information that is now accessible to the public through the Justice Department's FOIA Web site.