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FOIA Update: FOIA Counselor: Consultations Still Informal

FOIA Update
Vol. I, No. 1

FOIA Counselor

Consultations Still Informal

To provide advice and guidance to agencies on FOIA requests for access to their records is one of the principal functions of the Office of Information Law and Policy (OILP). OILP is assisted in this work by the Justice Department's Freedom of Information Committee (FOIC). When OILP was created in 1978, it took over the management of the FOIC, which now consists of 8 Justice Department lawyers who are experts in FOIA.

Douglas S. Wood, Deputy Director of OILP, is primarily responsible for OILP's counseling and monitoring activity. For several years, he performed a similar function in the Agriculture Department, while Robert Saloschin was doing this work on a government-wide basis as chairman of the Freedom of Information Committee, a post he still holds.

When To Consult OILP

OILP is available to answer general questions and to provide guidance at any stage of the processing of a FOIA request but lacks the resources to provide such assistance on all requests. Thus, except in matters of unusual difficulty or importance, agencies should wait to consult until they have tentatively determined to deny an administrative appeal. At that stage agencies are expected to consult OILP by telephone on all appeals which involve uncertain, important, or novel questions. The purposes of the consultation are to encourage compliance with the law and to reduce the number of appeal denials which ultimately might go to litigation and become poor court cases for either legal or policy reasons.

How to Get Advice

OILP provides advice on proposed FOIA denials in different ways which depend upon the difficulty and significance of the issues presented. Most advice is given by telephone in a "Summary Consultation" between Mr. Wood (or another OILP attorney) and an agency representative, usually an attorney. They discuss the nature of the request and the legal and policy issues presented and analyze whether the appeal can and should be denied. If the issues merit further consideration, the matter will be given either a "Special Consultation" or an "In-Depth Consultation."

Special Consultations

A special consultation may involve a meeting of OILP lawyers with agency representatives or a review of agency documentation by OILP followed by additional telephone contact, or a significant involvement of other Freedom of Information Committee (FOIC) members in the giving of advice. These members are all Justice Department attorneys and include, in addition to Saloschin and Wood, Donald J. Gavin, Tax Division; Frederick Hess, Criminal Division; Lynne K. Zusman, Civil Division; Leonard Schaitman, Civil Division; Stephen J. Wilkinson, Office of Legal Counsel; and Quinlan J. Shea, Jr., Director, Office of Privacy and Information Appeals.

In-Depth Consultations

An in-depth consultation is handled in one of two ways. Agency documents may be sent to all FOIC members who provide individual comments to an OILP attorney, who in turn coordinates a response to the agency. Or a complex matter may be discussed at a meeting of the FOIC, which may involve advance documentation from the agency, attendance of agency representatives at the meeting, or both.

Consultations Chiefly Advisory

The comments given to the agency under the above procedures are usually advisory only; i.e., agencies can deny appeals despite advice from OILP to release the documents. If they do so, however, the Department of Justice may decline to defend if they are sued. Such action will be taken only in rare situations, and only after consultation between OILP and the litigators. A detailed set of procedures governing this possibility has been approved by the Associate Attorney General and was distributed to each agency with the March 1979 edition of the Freedom of Information Case List. Please direct questions concerning the above procedures to Mr. Wood at 202/633-2674.

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Updated August 13, 2014