Vol. IV, No. 3
FOIA Focus: Maj. Michael E. Schneider
It has long been recognized that the effective implementation of the Freedom of Information Act requires a firm commitment to training to keep agency employees up-to-date in FOIA matters. While a smattering of basic FOIA classes were available in the early 1970s, an enormous growth in FOIA training followed the enactment of the 1974 amendments. Today, comprehensive FOIA training programs at the Justice Department's Legal Education Institute, the USDA Graduate School, and through the Office of Personnel Management, are well established and flourishing. Additionally, many agencies offer advanced or specialized training for personnel who for the most part deal with only one or two exemptions or who need to understand the operation of the FOIA in a unique context. The Department of the Army, for example, trains its military lawyers in a formal academic program where the FOIA is a standard part of the curriculum.
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"The laws are the same for everybody," says Major Michael E. Schneider, who teaches the FOIA courses at the Army's Judge Advocate General's School in Charlottesville, Va. "What we have is the situation of taking the same laws as every other federal agency and applying them to a unique setting."
Approximately 3,200 military lawyers annually come to the Judge Advocate General's School to learn how to apply law to the military's special circumstances. Two hundred or more are recent law school graduates who come through one of the three basic courses offered yearly at the JAG School. Many others are career military lawyers who return to the JAG School after several years for an intensive nine-month graduate law course. Others take one of the many short courses offered at the school.
Maj. Schneider -- a West Pointer, former infantry officer, and aviator -- came to the JAG School originally in 1970, as a new graduate of Marquette University School of Law. "At that time, we had only an hour or two on what we called 'Government Information Practices.' By the time I came back for the graduate course in 1980, we had eight hours of instruction on the FOIA, with a six-hour session on the Privacy Act, followed by a seminar."
Although a criminal lawyer up until 1980, Maj. Schneider stayed on after his graduate year to teach in the JAG School's Administrative/Civil Law Division, with the FOIA as his specialty.
"Before you ever teach," he says, "you develop your own material, your own outline, your own teaching methods and you put your course together and present it to a review panel. We call it the 'murder board.' You come out well critiqued."
Today, Maj. Schneider teaches a generalized approach to the FOIA in the basic course. While most FOIA requests to Army installations are handled by an experienced FOIA/PA coordinator, the "admin lawyer" on the post -- who could be the newest attorney just out of this basic course -- will be brought into cases when the co-ordinator seeks legal advice. Though this legal officer is not the initial denial authority, he is relied upon to make recommendations at that point. The legal officer may be involved again at the litigation stage if required to gather materials or prepare affidavits.
The FOIA elective for graduate students is a 16-hour session run on a seminar basis. "We sit down and hash out current FOIA problems. We want to raise the issues. To say to the students,'These are the current issues in FOIA law, these are the questions you need to think about.' We try to guide them to the current sources and lead them through a proper analysis."
Students begin their graduate work with a discussion outline and casebook updated yearly by Maj. Schneider and Maj. John Joyce, who specializes in the Privacy Act. The casebook has civil cases, Judge Advocate opinions, DoD and Army regulations, Defense Privacy Board opinions and citations to other FOIA resources.
"The main difference between FOIA for the military and for the nonmilitary is essentially the types of information we generate," Maj. Schneider notes. "For example, we have little Exemption 7 material of the type that might be found in FBI files. We do other kinds of investigations, such as aircraft safety investigations and investigations into lost property. These often involve Exemption 5 material."
Troublesome questions frequently brought up in the graduate class involve the areas of procurement and "contracting out." "With the new emphasis on 'contracting out' wherever possible," says Maj. Schneider, "there's a lot of activity by bidders seeking the Army's internal bid information -- essentially an Exemption 5 problem." Moreover, the procurement process can quickly pose Exemption 4 issues for the military attorney when businesses seek the information submitted by one another. The complexities of handling FOIA matters in these areas have led the Army to develop a two-hour specialized session entitled "FOIA for the Contracting Attorney."
Besides investigations, national security material, "contracting out," and procurement problems, the military attorney should also expect to deal with Exemption 6. It is in that area that Maj. Schneider has seen a policy shift develop. "At first," he says, "rosters were always given out. Our regulations even stated that they shall be released . . . . But it just tears up commanders to have to release this kind of information to commercial enterprises and then turn around and see the mailrooms flooded with material resulting from the release." It's a hot topic in Maj. Schneider's classes.
A final facet of Maj. Schneider's duties is to serve as a FOIA counselor for legal officers in the field. As such, he and Maj. Joyce handle several calls a week. These may be calls for more material on access laws or calls for advice. "In either event," he says, "we try to guide them to the best and most up-to-date source of authority."
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