EFFORTS TO ENCOURAGE AGENCY
COMPLIANCE WITH THE ACT
During 1999, the Department of Justice, primarily through its Office of Information and Privacy (OIP), engaged in numerous activities in discharging the Department's responsibility to encourage agency compliance with the Freedom of Information Act (FOIA), consistent with the openness-in-government policies of President Clinton and Attorney General Janet Reno. A summary description of these activities, which is required by 5 U.S.C. Â§ 552(e)(5) (1994 & Supp. IV 1998), as amended by Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048, is set forth below.
One of the primary means by which the Justice Department encouraged agency compliance with the FOIA during 1999 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 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. (OIP also receives telefaxed FOIA Counselor inquiries, at (202) 514-1009, and it maintains a Telecommunications Device for the Deaf (TDD) telephone line--(202) 616-5498--which gives it the capability of receiving TDD calls from speech- or hearing-impaired persons.) While most of this counseling was conducted by telephone, other options were made available as well. The counseling services provided by OIP during 1999 consisted of the following:
(1) OIP continued to provide basic FOIA Counselor guidance over the telephone on a broad range of FOIA-related topics, including matters pertaining to overall policies of government openness. Most of the FOIA Counselor calls received by OIP involve issues 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 Justice Department 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. Â§ 0.23a(b) (1999)--and it has been found that such consultations are very valuable in encouraging agency compliance with, and greater information disclosure under, the Act.) More than 3,000 requests for assistance were received by OIP and handled in this way during 1999, a continued increase over the numbers of such inquiries received in earlier years.
(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 or its deputy director. Approximately 250 inquiries of this nature were handled in 1999.
(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 provided by the agency. Such a consultation involves a meeting or telephone conference call between agency representatives and OIP attorneys at which all factual, legal, and policy issues related to the matter are thoroughly discussed and resolved. There were 44 such formal consultations in 1999, including nine with the general counsel or deputy general counsel of the agency involved. In addition, OIP provided consultation assistance to an Office of Independent Counsel and an Office of Special Counsel during the year.
(4) An additional counseling service provided by OIP involves FOIA matters in litigation, where advice and guidance are provided at the request of, and in close coordination with, the Justice Department'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 both uniform agency compliance with the Act and the principles of government openness under it. In some such instances, OIP is asked to consult on litigation strategy and in the drafting of briefs or petitions to be filed in district court or a court of appeals. OIP is consulted in all instances in which the Justice Department must decide whether to pursue a FOIA issue on appeal. It also is regularly consulted in all FOIA matters that are handled by the Office of the Solicitor General before the United States Supreme Court. Most often, these litigation consultations are provided by one or both of OIP's co-directors. There were approximately 125 such litigation consultations in 1999, including 32 involving recommendations as to the advisability of initial or further appellate court review and six involving the question of whether to seek or oppose certiorari in the Supreme Court.
In 1999, the Department of Justice issued a major policy guidance memorandum on the implementation of the FOIA, as amended by the Electronic Freedom of Information Act Amendments of 1996. Attorney General Reno issued a memorandum to the heads of all federal departments and agencies the followed up on the statements of FOIA policy that previously were issued by her and by President Clinton in 1993. Attorney General Reno's 1999 FOIA policy memorandum reiterated the openness-in-government principles that had been established in 1993 and asked all agencies to renew their commitment to those principles through increased coordination in the processes of FOIA administration. Specifically, Attorney General Reno pointed out that meeting the major policy objective of maximum discretionary disclosure through application of the "foreseeable harm" standard necessarily requires close cooperation between agency FOIA officers and agency program personnel who have other daily missions to perform. The Attorney General called upon all agencies to ensure that their FOIA officers receive the cooperation needed from all agency program personnel to achieve maximum responsible FOIA disclosure in an efficient fashion.
At the same time, Attorney General Reno's 1999 FOIA policy memorandum also addressed agency implementation of the Electronic FOIA amendments. It pointed out the increased obligations placed upon all federal agencies under the Electronic FOIA amendments and the fact that "an agency's FOIA web site has become an essential means by which its FOIA obligations are satisfied." In this connection, it emphasized the vital role that agency information resource management (IRM) personnel now must play in the processes of FOIA administration. Accordingly, Attorney General Reno called upon all agencies to affirmatively foster a "new partnership" between their FOIA officers and their IRM personnel, advising that "[i]t should be the primary mission of each agency's IRM staff that it facilitate the prompt and accurate disclosure of information through the agency's FOIA sites on the World Wide Web." To further promote this FOIA/IRM partnership, Attorney General Reno asked that this FOIA policy memorandum be disseminated within each agency to all of its IRM (as well as its FOIA) personnel.
Additionally, the Office of Information and Privacy provided guidance to agencies throughout the year on such current policy matters as the protection of critical infrastructure information, the placement of records in agency reading rooms in accordance with the Electronic FOIA amendments, and the disclosure of unit pricing information in awarded government contracts under the D.C. Circuit Court of Appeals decision in McDonnell Douglas Corp. v. NASA, 180 F.3d 303 (D.C. Cir. 1999), reh'g en banc denied, No. 98-5251 (D.C. Cir. Oct. 6, 1999).
OIP published its FOIA policy newsletter, FOIA Update, in 1999. This publication provides FOIA-related information and policy guidance to all federal employees governmentwide whose duties include responsibility for legal and/or administrative work related to the Act. It also serves as a vehicle for the dissemination of FOIA-related information within the executive branch and for the comparison of agency practices in FOIA administration. More than 4,500 copies of FOIA Update are distributed to agency FOIA personnel throughout the federal government, without charge. Additionally, guidance items published in FOIA Update are used in all Justice Department FOIA-training sessions and are made available for such programs offered by the Graduate School of the Department of Agriculture (including those formerly conducted by the Office of Personnel Management) and the American Society of Access Professionals nationwide. FOIA Update also is sold through the Government Printing Office to nongovernmental subscribers, at a cost of $10.00 per year. It had a paid circulation of more than one thousand in 1999.
In 1999, FOIA Update featured discussions of the Attorney General's appearance at a major Department of Justice FOIA-training program to encourage hundreds of FOIA officers in their administration of the Act; of the Attorney General's follow-up FOIA policy memorandum to the heads of all federal departments and agencies; of the use of FOIA requester negotiation techniques by the Federal Bureau of Investigation in implementation of the backlog-reduction provisions of the Electronic FOIA amendments; and of Congress's enactment of two major pieces of FOIA-related legislation, the Nazi War Crimes Disclosure Act, 5 U.S.C.A. Â§ 552 note (West Supp. 1999), and a provision of the Office of Management and Budget Appropriations Act for Fiscal Year 1999, Public Law No. 105-277, that has the effect of placing under the FOIA certain research data generated through federal grants.
Additionally, OIP established a new FOIA Update feature, entitled "Administrative Corner," in 1999. This new column is designed to highlight good examples of FOIA administration, on a case-by-case basis, for the benefit of all federal agencies. It was developed based upon a suggestion made during Attorney General Reno's appearance at a Department of Justice training program. The first examples highlighted in this new FOIA Update column dealt with the efficient narrowing of FOIA requests, and the use of sampling techniques to locate responsive records, through cooperative efforts between agency FOIA officers and FOIA requesters.
Also published in FOIA Update during 1999 were twelve "Significant New Decision" discussions, which informed agencies of major FOIA case law developments at the district court and appellate court levels, and a discussion of the Supreme Court's extraordinary action in the case of Weatherhead v. United States, 68 U.S.L.W. 3365 (U.S. Dec. 3, 1999) (No. 98-1904), the first case in more than twenty-five years in which the Supreme Court agreed to consider a national security issue under Exemption 1 of the FOIA. OIP also compiled an updated list of the principal FOIA administrative and legal contacts at all federal agencies for the use and reference of FOIA personnel governmentwide, which was both published in FOIA Update and made available electronically (in an expanded version) through the Justice Department's FOIA site on the World Wide Web. Additionally, through FOIA Update, OIP provided announcements of FOIA and Privacy Act training opportunities scheduled nationwide during the year.
In 1999, OIP made arrangements with the Government Printing Office (GPO) for a new publication schedule for 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." As this publication transitions to a new biennial publication cycle, it will next be published in May 2000--no longer at the end of the fiscal year--at which time it is expected that GPO will be able to facilitate the printing and governmentwide distribution of this reference volume on a more efficient timetable than in the past. During 1999, OIP made preparations for the Guide & Overview's May 2000 edition.
In 1999, OIP also worked together with the General Services Administration (GSA) and the Office of Management and Budget to revise and update a publication entitled "Your Right to Federal Records," the federal government's basic public information brochure on access to agency information. This joint publication of the Justice Department and the General Services Administration, which is made available to the general public in brochure form through GSA's Consumer 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. Over the years, it consistently has been one of the Consumer Information Center's most heavily requested brochures, and it also is made available to the public electronically through the Justice Department's FOIA Web site (which can be accessed at www.usdoj.gov).
Also made available on the Department's FOIA Web site during 1999 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 prepared 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 Justice Department'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 twelve pages, plus detailed attachments, and contains much information appropriate for use by all other federal agencies in their FOIA reference guides. This publication was updated in 1999, with additional information included regarding the Department's "major information systems," in accordance with a provision of the Electronic FOIA amendments, 5 U.S.C. Â§ 552(g)(1).
In accordance with another provision of the Electronic FOIA amendments, 5 U.S.C. Â§ 552(e)(3), the Justice Department in 1999 established "a single electronic access point" for the consolidated availability of the annual FOIA reports of all federal agencies. These annual reports, beginning with those for Fiscal Year 1998, can be accessed on the Department's FOIA web site at www.usdoj.gov/oip/04_6.html.
Additionally, at the request of the Committee on Government Reform of the House of Representatives, OIP assisted the Committee in the preparation of its biennial FOIA reference publication, A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, H.R. Rep. No. 50, 106th Cong., 1st Sess. (1999).
During 1999, OIP furnished speakers and workshop instructors for a variety of seminars, conferences, individual agency training sessions, and similar programs designed to improve the understanding and administration of the FOIA. Nineteen professional staff members of OIP gave a total of 118 training presentations during the year, including several training sessions that were designed to meet the specific FOIA-training needs of individual federal agencies. Such individualized training sessions were conducted for NASA, the Central Intelligence Agency, the Social Security Administration, the Federal Trade Commission, the Forest Service, and the National Institutes of Health; for the Departments of Agriculture, Housing and Urban Development, Education, Veterans Affairs, and the Interior; and for several individual components of the Department of Justice. OIP training presentations also were made to the American Bar Association, to the National Association of Black Journalists, and at the Federal Dispute Resolution Annual Conference. Additionally, the co-directors of OIP gave a total of 64 presentations at various FOIA-training programs, including those held by the American Society of Access Professionals, the Army Judge Advocate General's School, and the Arkansas Bar Association. One of the co-directors also spoke at a seminar for federal agency commissioners conducted by the Washington College of Law, and the other addressed FOIA issues on a radio program entitled "Fedtalk."
In conjunction with the Justice Department's National Advocacy Center (formerly the Office of Legal Education), OIP conducted a wide range of FOIA-training programs in 1999, 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 several times during 1999 in Columbia, South Carolina, which is now the base location of the National Advocacy Center. During 1999, OIP worked with the National Advocacy Center to expand both the size and the availability of its FOIA-training programs, including through the development of new plans to conduct sessions of OIP's basic FOIA-training course in Washington, D.C.
OIP also conducted two sessions in 1999 of its "Freedom of Information Act Administrative Forum," a training program that is devoted almost entirely to administrative matters arising under the Act--such matters as record-retrieval practices, queue usage, backlog management, affirmative disclosure, and automated record processing. Designed to serve also as a regular forum for the governmentwide exchange of ideas and information on matters of FOIA administration, this training program brings veteran FOIA processors from throughout the government together and encourages them to share their experience in administering the Act on a day-to-day basis.
Also conducted twice in 1999 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 the FOIA Coordinator for the National Security Archive on the administration of the Act from the FOIA requester's perspective. In 1999, this advanced training program also included an updated session entitled "Electronic Reading Rooms," which focused on the electronic availability requirements of the Electronic FOIA amendments. Presented jointly by an OIP senior counsel and a program manager of the Justice Department's World Wide Web site, this session also addressed the technical requirements of electronic record availability. Another new feature added to this program in 1999 was a special presentation on the subject of "Federal Privacy Issues" by the Chief Counselor for Privacy in the Executive Office of the President.
OIP conducted a number of general or specific FOIA briefings during 1999 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 statutes. It provided briefings and FOIA materials to representatives of Japan, Great Britain, Hungary, Azerbaijan, Brazil, Taiwan, Pakistan, Turkey, and twelve nations of French Equatorial Africa. It also provided FOIA briefings to the staff of the House Commerce Committee, to the Chairman of the Postal Rate Commission, to the Critical Infrastructure Assurance Office, to the Chief Counselor for Privacy in the Executive Office of the President, and to a Member of Congress from Paraguay.
In 1999, OIP responded to 25 congressional inquiries pertaining to FOIA-related matters and, in its "FOIA Ombudsman" capacity (see FOIA Update, Vol. XIV, No. 3, at 8), it responded to several complaints received directly 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 287 written inquiries from members of the public seeking information regarding the basic operation of the Act or related matters, as well as to innumerable such inquiries received by telephone.