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FOIA Update: DOD's Keys to Success

January 1, 1980
FOIA Update
Vol. I, No. 4

DOD's Keys to Success

Civility is only one of the keys to the Department of Defense's treasure chest of policies and procedures for handling FOIA requests. DOD has a knack for doing the right thing at the right time to facilitate its requests.

Assistant General Counsel Robert Gilliat and his teammate, Charles W. Hinkle, program administrator, designed the Department's successful program. Their continued close rapport has resulted in an enviable achievement.

The March, 1980, report of Senate Judiciary Subcommittee on Administrative Practice and Procedure includes the evaluation of Mark Lynch, a private FOIA litigator, as follows: "The Defense Department operates very well. They are generally able to respond within the 10-day time limit. When there are delays, they explain the situation to people--often by telephone. Both the CIA and State Department witnesses raised the question of very large voluminous requests. Well, people are not unreasonable. If you will call them up and tell them that their request encompasses 100,000 documents, they will understand that obviously you are not going to be able to respond in 10 days.

"I think that is one of the most important things about the Defense Department; there is an element of civility in the way they deal with the public. From what I understand, they have very little trouble in people voluntarily consenting to extensions."

Both Gilliat and Hinkle believe the following policies and procedures contributed to DOD's favorable reputation:

• The program has the full support of the Secretary of Defense and Thomas B. Ross, the Assistant Secretary of Defense for Public Affairs. Mr. Ross oversees the program and has appellate authority. With this public affairs perspective, it is not surprising that his staff is oriented toward disclosure.

• To eliminate confusion and to narrow broad unmanageable requests, action officers negotiate with requesters. Their sympathetic attention to requests usually leads to a better understanding of the needs and activities of both parties. Even Assistant Secretary Tom Ross has been known to negotiate.

• Printed form letters are not used, although standard paragraphs and terminology are. The result is that each response is tailored to the request.

• Management emphasis assures full rationale for deletion in a document or for withholding an entire record is clearly communicated to the requester.

• Appeals receive an independent evaluation rather than a rubber stamp of the Initial Denial Authority.

• The department has had a liberal fee-waiver policy since 1975. All fees under $30 normally are waived.

• A 1977 policy admonished public affairs officers not to suggest that news media representatives resort to the FOIA since all information not exempt under the Act should be provided them without requiring a formal FOIA request. Since this policy was established, very few formal requests have been received from Washington-based correspondents.

Both Gilliat and Hinkle credited their highly skilled staff for any earned success. Both smiled at the recollection that it had been widely anticipated that the Defense Department would have the greatest difficulty complying with the 1974 amendments. "But we didn't anticipate receiving over 56,000 requests each year," Hinkle added.

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