Description Of Department Of Justice Efforts To Encourage Agency Compliance With The Act
During 2007, the Department of Justice, through its Office of Information and Privacy (OIP), engaged in a wide range of activities to meet the Department's responsibility to encourage agency compliance throughout the Executive Branch with the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2006), amended by OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524. Significantly, during 2007, OIP published an updated and revised version of the Department of Justice's Freedom of Information Act Guide, a comprehensive legal treatise that discusses and analyzes all aspects of the FOIA. OIP also provided comprehensive guidance and training to all agencies to assist them in meeting their obligations under Executive Order 13,392, entitled "Improving Agency Disclosure of Information." A summary description of OIP's FOIA compliance activities, which is required by subsection (e)(6) of the FOIA, 5 U.S.C. § 552(e)(6), is set forth below.
(a) Counseling and Consultations
One of the primary means by which the Department of Justice encouraged agency compliance with the FOIA during 2007 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 governmentwide, 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. While most of this counseling was conducted by telephone, other options were made available as well. The counseling services provided by OIP during the year are summarized below.
(1) OIP provided FOIA Counselor guidance to agencies on a broad range of FOIA-related subjects, including issues pertaining to implementation of Executive Order 13,392. Most of the FOIA Counselor calls received by OIP involve issues regarding 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) (2007) -- and it has found that such consultations are very valuable in ensuring agency compliance with the Act. More than 3200 requests for guidance were received by OIP and handled in this way during 2007.
(2) Sometimes a determination is made that a FOIA Counselor inquiry requires more extensive discussion and analysis by OIP attorneys, including supervisory attorneys. On such occasions OIP often convenes 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. In 2007, OIP was involved in a number of such supervisory-level discussions with other agencies, including the United States National Central Bureau of Interpol, the National Labor Relations Board, the Department of Education, the Department of Homeland Security, the Office of the Director for National Intelligence, the Department of the Treasury, and the Department of Defense.
(3) An additional counseling service provided by OIP pertains to FOIA matters in litigation, where advice and guidance are provided at the request of 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. In many such instances, OIP is asked to consult on litigation strategy and in the drafting of briefs 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 on all FOIA cases, and regarding all FOIA-related issues, that are handled by the Office of the Solicitor General. During 2007, OIP was asked to make recommendations concerning the advisability of seeking initial appellate review, rehearing en banc, or petitioning for certiorari in twenty-three FOIA cases.
(b) Policy Guidance
During 2007, the Department of Justice continued to provide comprehensive guidance to federal agencies addressing a wide range of issues related to Executive Order 13,392. The guidance was given verbally in several forums, including large agency wide conferences, as well as through individualized one-on-one consultations with agency personnel. OIP also issued a series of written guidance on the Executive Order throughout the year. The written guidance was made available to agencies and the public alike through FOIA Post, the Department's online FOIA publication.
First, OIP issued guidance to agencies on a new reporting requirement that came about as a result of a recommendation made by the Attorney General to the President contained in the second report to President made pursuant to Executive Order 13,392 on June 1, 2007. The Attorney General recommended that each agency that reported a deficiency in meeting one or more of the milestones in its FOIA Improvement Plan be required to submit to the President's Management Council (PMC) an Updated Status Report detailing the steps taken by the agency to correct the deficiency. OIP issued advice to agencies that: 1) explained how agencies were to determine whether they needed to submit the Updated Status Report; 2) detailed the required elements for the report; and 3) included a template for agencies to use in making their report so that there would be consistent reporting across the government.
Second, OIP issued guidance on an additional recommendation made by the Attorney General in his June 1, 2007 report to the President. The Attorney General recommended that any agency with a backlog of FOIA initial requests or administrative appeals as of the end of Fiscal Year 2007 be required to establish backlog reduction goals for the next three fiscal years. OIP issued guidance to agencies that: 1) defined which agencies needed to submit backlog reduction goals; 2) gave detailed advice to agencies on how to establish those backlog reduction goals; and 3) provided templates for agencies to use in calculating and reporting their backlog reduction goals for both initial requests and administrative appeals.
Third, OIP provided supplemental guidance to agencies on preparing Section XII of their annual FOIA reports. Section XII is the section of the annual FOIA report that was created to contain each agency's description of its activities under Executive Order 13,392. In 2007, OIP issued supplemental guidance to provide agencies with further detail regarding each of the required elements of Section XII that are mandated by the Executive Order. Those elements concern proper reporting of both the successes agencies achieved in implementing their FOIA Improvement Plans, as well as any failures to meet a milestone or goal set by the Plan. OIP’s guidance gave instructions to agencies on the proper reporting of the corrective steps taken, or planned to be taken, to remedy any deficiency.
In this guidance, OIP added several new reporting requirements to Section XII to make it more informative and comprehensive. The creation of these new reporting requirements was also intended to serve as an incentive to agencies to address the important area of backlog reduction. Accordingly, OIP required agencies to provide data on their ten oldest pending requests and supplied a template for doing so. Next, OIP required agencies to report on the number of consultations received from other agencies during the fiscal year; as well as the number of such consultations that were processed and the number remaining pending at the agency at the end of the fiscal year. In addition, agencies were required by OIP to report on the ten oldest consultations received from other agencies that remained pending. All this data on consultations was newly required by OIP to capture information on an often-overlooked area of FOIA administration.
(c) FOIA Post
In 2007, the Department of Justice completed its seventh year of publishing FOIA Post, an online and cost-efficient replacement for OIP’s longtime FOIA Update newsletter. Unlike the FOIA Update newsletter, FOIA Post makes use of electronic links to reference documents and other sources of information in a Web-based format. FOIA Post is in accord with the Act's emphasis on the disclosure of agency information to the public, in a user-friendly format, through use of the internet.
During 2007, OIP disseminated a variety of different items for the assistance of federal agencies through FOIA Post. In addition to the substantive and procedural policy guidance concerning Executive Order 13,392, discussed above, OIP introduced a new feature to FOIA Post in 2007. This feature involved the posting each month of a detailed summary of every FOIA case decided in the United States, at both the district court and appellate levels. The summaries are made easy to review and cross-reference. For every court decision, OIP highlights each FOIA exemption and procedural or litigation-related issue that was discussed in the opinion. Because court decisions play such an important part in the interpretation of the FOIA and its proper administration, OIP introduced this new feature to help ensure that all FOIA access professionals have ready and current access to the most recently decided court opinions.
In the Fall of 2007, starting with decisions rendered in the month of March 2007, which coincided with the March 2007 completion of the Department of Justice’s Freedom of Information Act Guide, OIP began compiling and publishing monthly case summaries. OIP published nine case summaries in the next three months, covering the time period between March and November 2007, in order to get current by the end of the year.
During 2007, OIP also resumed its practice of compiling a summary of the annual FOIA reports filed by all fifteen federal departments and seventy-seven agencies subject to the FOIA. The summary provided information on a variety of topics, including the number of requests received, progress in reducing backlogs, disposition of requests, administrative appeals, as well as staffing levels and costs. This summary provides both agencies and the public with an overall picture of FOIA processing governmentwide.
FOIA Post was also used to announce a series of training programs held by OIP that were related to agency implementation of Executive Order 13,392. Relatedly, OIP posted a copy of the Attorney General’s June 1, 2007 Report to the President Pursuant to Executive Order 13,392 on FOIA Post so that it was readily available to agency FOIA personnel.
In addition, OIP utilized FOIA Post to announce that the March 2007 edition of the Department of Justice’s Freedom of Information Act Guide was available on the Department’s FOIA Web site. OIP also provided details concerning the various governmentwide FOIA training opportunities that were available for Fiscal Year 2008. Lastly, OIP posted an article summarizing a House Subcommittee Hearing on the FOIA that was held February 14, 2007, and provided a link to the Statement given by OIP’s Director who testified at the Hearing.
(d) Additional FOIA Reference Materials
In 2007, OIP completed its revision of the Department of Justice's principal FOIA reference manual, a legal treatise on the FOIA entitled the Freedom of Information Act Guide. The Guide contains an extensive discussion of the FOIA's nine exemptions, its three exclusions, and all procedural and litigation-related issues connected with the Act. The March 2007 edition of the Freedom of Information Act Guide marks the twenty-first time the Guide has been published. It was prepared by the professional staff of OIP and was updated through March of 2007. For this newly revised edition of the Guide, OIP, among other things, added a new subsection to the Procedural Requirements Section which contains an extensive discussion of Executive Order 13,392. OIP also created a new stand-alone section which addresses the topic of attorney fees under the FOIA.
OIP distributed courtesy copies of the March 2007 Department of Justice’s Freedom of Information Act Guide to each federal agency and to other interested parties. It also facilitated the wide distribution of the Guide within the executive branch at a very low per-copy cost, and made it available without cost through the Department of Justice's FOIA training programs. The Guide was also made available to agencies and to the public through the Government Printing Office. Additionally, to afford electronic access and keyword-search capabilities, OIP also placed a copy of the Guide on the Justice Department's FOIA Web site where it can be accessed at http://www.usdoj.gov/oip/foia_guide07.htm.
In 2007, in connection with its primary role of assisting agencies with the implementation of Executive Order 13,392, and as mentioned above, OIP posted a copy of the Attorney General's Report to the President Pursuant to Executive Order 13,392. This report described the initial progress that agencies had made in the first months of implementing their FOIA Improvement Plans. It contained a discussion on agency activities, successes, and challenges, with a particular focus on twenty-five key agencies including all fifteen Cabinet Departments. The report also included a series of recommendations designed to assist agencies in achieving their FOIA improvement goals.
In 2007, for the first time, OIP completed and posted the Department of Justice’s own annual FOIA report two weeks early. Agencies are required to compile and submit to the Attorney General an annual FOIA report each year in accordance with 5 U.S.C. §552(e)(1). By completing and publicly posting the Department’s own annual FOIA report two weeks early, OIP served as an example to other agencies.
In accordance with another provision of the FOIA , 5 U.S.C. § 552(e)(4), the Justice Department in 2007 maintained "a single electronic access point" for the consolidated availability of the annual FOIA reports of all federal agencies. As part of its governmentwide guidance responsibilities, OIP receives a copy of each agency's annual FOIA report, 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. Based upon close coordination with the Government Accountability Office (GAO), OIP in 2007 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 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." See "Update on the Implementation of the 1996 Electronic Freedom of Information Act Amendments," 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," at 3.
OIP’s review of other agency’s annual FOIA reports took on additional significance in 2007 due to the inclusion in every agency’s report of an entirely new section. Section XII was added to the annual FOIA reports by OIP and was designed to capture agency activity under Executive Order 13,392. Section XII is the section in the report where each agency discusses its successes in implementing its FOIA Improvement Plan, as well as any deficiencies in meeting planned milestones and goals. Because of the new reporting requirements imposed by Executive Order 13,392, OIP found that its review of agencies’ annual FOIA reports frequently necessitated further revision by the agency involved to ensure compliance with the Executive Order.
For additional reference purposes, OIP continued during 2007 to make available on the Justice Department's FOIA Web site all issues of its former newsletter FOIA Update. Those issues of the newsletter spanning the period 1979-2000 were made available on the Web, where they are fully accessible electronically and keyword searchable. 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. OIP also continued to maintain on the Department’s FOIA Web page an electronic copy of its Basic FOIA Training Manual so that all FOIA personnel can benefit from easy access to these materials. Similarly, OIP made copies of the Freedom of Information Act Guide available to governmentwide training participants, as well as to all representatives of foreign nations and other visitors who receive briefings from OIP.
(e) Training, Public Presentations, and Briefings
During 2007, OIP furnished speakers and workshop instructors for a variety of seminars, conferences, individual agency training sessions, and similar programs conducted to promote the proper administration of the FOIA within the Executive Branch. OIP also made presentations designed to foster a greater understanding of the Act's administration outside the Executive Branch, including internationally.
In conjunction with the Justice Department's National Advocacy Center, OIP conducted a full range of FOIA-training programs in 2007, 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 five times in Washington, D.C., and once in Seattle, Washington. During 2007, OIP continued to emphasize the requirements of Executive Order 13,392 in its training programs.
OIP also conducted a session in 2007 of its "Freedom of Information Act Administrative Forum," a training program devoted almost entirely to administrative matters arising under the Act. These include such issues 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 in 2007 was OIP's "Advanced Freedom of Information Act Seminar," which was held twice during the year. This seminar provides advanced instruction on selected substantive and procedural topics under the FOIA, including up-to-date policy guidance. For 2007 these seminars included sessions on Executive Order 13,392, requirements for annual FOIA reports, recent FOIA decisions, and administrative and litigation considerations.
Twenty-three professional staff members from OIP gave a total of 207 training presentations during the year, including several training sessions designed to meet the specific FOIA-training needs of individual agencies. This represented an approximately twenty-two percent increase in such training sessions compared with last year. Such individualized training sessions were conducted for the Department of Commerce, the Department of the Treasury, the Forest Service, the Department of Education, the Department of State, the Department of Transportation, the Department of Housing and Urban Development, in addition to training provided for components of the Department of Justice. OIP training presentations were also made at seminars hosted by the American Society for Access Professionals and the Greater Boston Federal Executive Board.
Furthermore, during 2007, the Director of OIP gave a total of thirty-nine presentations at a variety of FOIA-training programs and other forums. She was a member of the U.S. delegation participating in a Transparency Dialogue at a United States Economic Development conference sponsored by the Department of Commerce and the Office of the U.S. Trade Representative in Beijing, China. She also gave a presentation at the International Conference of Information Commissioners held in Wellington, New Zealand and participated in two conferences concerning open government held in Santiago, Chile, one hosted by Chilean congressional and government officials, and the other conference hosted by Pro Access, an organization active in transparency issues. She also participated in a digital video conference with representatives from China on the topic of Open Government Information at a conference hosted by the China Law Center of Yale University.
OIP conducted a number of other general or specific FOIA briefings during 2007 for international audiences, including representatives and journalists of foreign governments concerned with the implementation or potential adoption of their own government information access laws. OIP provided briefings and FOIA materials to representatives and journalists of Slovenia, Nepal, Albania, Morocco, the Kyrgyz Republic, India, Azerbaijan, Romania, Nigeria, Bangladesh, and China. In addition, the Director of OIP gave a presentation to a multi-regional group of twenty-five professionals visiting from around the world.
Lastly, OIP held a FOIA Officers Conference for the principal FOIA officers of the Department of Justice on October 23, 2007, at which a variety of FOIA-related matters that are of particular significance to the Justice Department's forty components were reviewed and discussed. At this conference special emphasis was placed on the Department's ongoing implementation of Executive Order 13,392. In addition, during the conference, OIP addressed the expansion of its FOIA liaison program, which is designed to address the individualized needs of each of the Department’s many components. By holding this FOIA Officers Conference, the Department continued to serve as a model in its ongoing efforts to encourage other federal agencies to conduct such agencywide gatherings and FOIA conferences on a regular basis.
(f) Inter- and Intra-agency Coordination Activities
During 2007, OIP actively continued its interagency coordination activities centered around the implementation of Executive Order 13,392. Given its important role in assisting agencies in meeting the requirements of the Executive Order, OIP held a number of meetings and conferences emphasizing the importance of this Presidential initiative and its implementation.
On June 1, 2007, the Attorney General submitted his second report to the President pursuant to Executive Order 13,392. In this second report, the Attorney General recommended that the Department of Justice conduct a series of conferences and training sessions. Specifically, he recommended the convening of a third Chief FOIA Officers Conference, and two specialized training sessions for government personnel. Additionally, the Attorney General recommended a follow-up meeting of the Inter-Agency Working Group on Technology.
Pursuant to the Attorney General's recommendations, on October 4, 2007, OIP hosted a follow-up meeting of the Inter-agency Working Group on Technology. This meeting was attended by both FOIA personnel and information technology professionals. During this meeting, the attendees discussed various technological approaches to FOIA administration with the goal of achieving the means to process FOIA requests in a more efficient and timely fashion.
On October 18, 2007, OIP held a third Chief FOIA Officers Conference during which the importance of agency implementation activities under the Executive Order was emphasized. This meeting was attended by agency Chief FOIA Officers and agency principal FOIA contacts. On the same day, OIP conducted a training session for FOIA Public Liaisons. During this training session, OIP reiterated the many responsibilities of these FOIA supervisory officials in both the administration of the FOIA and the implementation of the Executive Order.
Lastly, on December 6, 2007, OIP held a FOIA Website training session. This training session was designed to address two areas. First, OIP crafted the session as a primer on all the required elements of agency FOIA Web sites that are required by the FOIA itself. Examples and guidance were provided and agencies were encouraged to review their existing FOIA Web sites to ensure that they are in compliance with the statutory requirements for electronic Reading Rooms. Second, this training session addressed the potential these sites hold in enabling agencies to meet many of their Executive Order goals and to improve their overall FOIA administration.
Another significant interagency coordination activity engaged in by OIP in 2007 was its review of proposed legislation pertaining to the FOIA. During 2007, proposed legislation to amend the FOIA was circulated in Congress. The FOIA had not been amended significantly in more than a decade. On February 14, 2007, OIP's Director testified before the House of Representatives Subcommittee on Information Policy, Census, and National Archives, Committee on Oversight and Government Reform. Following this hearing and through 2007 OIP's Director participated in a number of briefings for Hill staff. On December 31, 2007, the "Openness Promotes Effectiveness in our National Government Act of 2007", or the "OPEN Government Act of 2007", Pub. L. No. 110-175, 121 Stat. 2524, which amends a number of the FOIA provisions, was signed into law by the President.
Finally, during 2007 OIP conducted numerous reviews of draft or preliminary legislative proposals relating to the FOIA or to information policy more generally. As a result of this review OIP made 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. OIP likewise identified issues and suggested revisions to language contained in proposed legislative testimony and other legislative submissions made by agencies on FOIA-related issues as well.
(g) Congressional and Public Inquiries
In 2007, OIP responded to eighteen congressional inquiries pertaining to FOIA-related matters and it received one complaint from a member of the public who was concerned about an agency’s response to her FOIA request. Additionally, OIP responded to twenty-nine written inquiries from members of the public seeking information regarding the basic operation of the Act or related matters during the year. The number of written inquiries received during 2007 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 user-friendly FOIA Web site.