department's information office director. this is 45 minutes. >> i see many of you are still enjoying our lunch up in the foyer, and we've now had a wonderful keynote to start us off and two panels, and we're now on the home stretch and then we're going to have another luncheon keynote and then two more panels this afternoon, and i have the pleasure of first just telling you one thing by way of administrative announcement of sorts. we talked about ojis this morning and ojis's website. there's another place you can go to find a lot of current information about ojis in sort of a series or sequential forum, chronologically, the collaboration on government secrecy website, cgs for short, and i can give you the long url

for that but all you have to do is go into google and put in cgs, wcl, washington college of law, and it will pop up right there. and then if you go to the table of conscience -- contents section right up front, you'll see amendment of the foia because ojis was created under the 2004 foiame whole subsection ojis. we established that as a subsection back when the law was amended and ojis advanced to the point there's so much going on it might wind up being an entire section of the cgs website when we upgrade to its non-beta form. that's administrative to take care of that. i have the pleasure of introducing our luncheon speaker who we are quite well-known to one another, because we used to work so closely together for so

many years i think we once calculated at least during one long stretch of time we spent more time with one another than with our respective spouses and debbie and karen observed that from time to time as well i'm sure. dick huff is going to speak to you or under the title "foia under the decades from ford to obama," and you'll notice there you have the dates next to his name, 1976 to 2005. well that's when he was at the department of justice. started with foia way, way back. first i should say he spent seven years on active duty with the army, and as a quons quens to that, follow-up to that he's now a retired colonel in the army reserve. he came to the department of justice in 1976, while the ford administration was still rolling

alo along and saw the transition to the carter administration the following january and he was at the justice department all the way to 2005, retired about a year before i did. he and i were the founding codirectors of the office of information privacy. he was there as an acting director of one of theceprior t that. is more intellectual than he might look upon occasion, he has a b.a. from stanford. you got into stanford? >> it was a lot easier to get into. >> back then, yes, that's when joan baez's husband -- >> if i remember correctly -- >> here we go. >> -- all of this was set out in your bios so you didn't have to read much about any of the people here. [ applause ] huh, is that right? >> well, that was for other people, not for you. you're special. am i wrong? dick is special. b.a. from stanford and master,

of st. mary's from the university of texas while in the army, j.d. from hastings law school which apparently the ranking hasn't improved tremendously since you graduated. >> it is now fully accredited. >> yes. >> from what i understand it was a touch and go thing for a while. >> provisional. >> llm from georgetown university law center. needless to say, dick and i have over the years put on the dick and dan show from time to time, and this perhaps promises to be more of the same. so i'll given that the bios are out there, i would say welcome to dick huff. >> thank you. [ applause ] what i would like to do is exercise -- first of all i'd like to thank you very much, dan, and hope that you will save your comments as the rest of you also save your comments and

rebuttal until the end. >> [ inaudible comment ]. >> exactly. i'll exercise a prerogative, dan told you what he thinks i'm going to speak with and i'm going to modify that only slightly. this is not going to be an overview of the foia from the administration of president ford through the administration of president obama, but rather a worm's eye view of, from the department of justice from 19 6 through 2005. there are many of you here who are much more knowledgeable than i and certainly more qualified than i to speak as to what has happened inside of the federal government since 2005. >> he's been active in foia since, both teaching and with other memberships and the like.

>> well -- >> you didn't just fall off the face of the earth with respect to foia, witness the fact that you're here. >> as i said, you can save the rebuttal 'til -- >> i take it. >> now to flesh out or flush out -- flesh out my background just a little more, as dan said, i came to the department in 1976, after a seven-year clerkship with the department of army at ft. leonard wood, ft. sill, ft. sam houston, walter reed, and the pentagon, and i went to the office of privacy and immigration, let's try that again, office of information and privacy appeals, where i performed duties exclusively related to the appeals of freedom of information act and privacy act requests. had congress -- >> this is the rebuttal, the

office of privacy and information appeals? >> oipa, office of information and privacy appeals. >> you remember? >> oipa, i'm pretty sure that was what it was. >> okay. >> okay. >> i'm not sure what i just called it, but that's what i've got written down, which is not necessarily the same, i realize that. had congress not overridden president ford's veto of the 2000 -- of the 1974 foia amendments, i certainly wouldn't have had -- the fbi wouldn't have had the thousands of requests it got per year, and the deputy attorney general's office of which oipi was a part of would not have had the hundreds of administrative appeals it had per year. so i thank the congress in that respect for overriding the veto. now dan, on the other hand, came

to the department of justice, he had been there, he served two clerkships before he got there. as an attorney. he then served a judicial clerkship with judge oliver gash and then he came to the department i believe it was just shortly after i got there, somewhere in that general area. >> '77. >> and dan worked in the civil division, specializing in foia litigation. as he said in 1982, the office of information and privacy was formally created, and it brought together the prior appeals office and the prior policy office, and dan and i served as the two co-directors. he suggested my primary responsibility should be administrative appeals and budget, and his would be foiia policy and litigation, and i agreed. that same year, dan suggested

that we update the freedom of information act short guide, which was then only about 30 pages long and publish it in the foia case list. i agreed. subsequently the department's legal education institute established a government wide two-day training class on foia, and dan suggested that our staff should be the primary instruc r instructors. i agreed. later that year, dan suggested we include two new features in our quarterly publication, foia update. the first would be foia counselor q&as which consisted of short responses to the more routine, frequently asked foia questions. the second was a foia focus where we would profile someone active in the foia community. i agreed with both of these suggestions here. i note that the, one problem we had with foia focus is that we

did once feature the hud foia officer, who four years later pled guilty to falsifying federal mortgage documents. >> that was not under indictment at the time we published it. >> exactly, and if he was being investigated, it hadn't been shared with us. all right, in 1984, dan suggested publishing guidance on congressional access to agency records under the foia, exemption 7-8 and personal records and i agree. due to the expansive growth of the short guide to the freedom of information act, the federal trade comission told us it was false advertising to continue to call it the short guide, so in 1986, dan suggested it be called just the department of justice guide to the foia, and i agreed. in 1986, the legal education institute was no longer able to

continue teaching these two-day foia classes, so dan suggested oip handle it all by ourselves and while we're at it, add two new courses, one for advanced foia personnel and another one of the one that dan referenced earlier, the dick and dan show, where the two of us once a year would go out and we would talk about all of the new cases of significance that would come out during the past year. well, this started out with about 200 people, and it grew up to slightly over 600 folks coming to attend. i was never sure exactly why the popularity grew so much, but i had a feeling, it might have been for two reasons. one, it was actually a half day class, and we never publicized it as such but i thought an awful lot of the people took off at, you know, right after we were gone, and their agency never knew that it was a half day program.

>> the anecdotal evidence was strong. >> the other reason, though, and this is one i think dan has learned this less son well is i think that the people came because we gave away free coffee and doughnuts and i notice, doughnuts, heck, you're giving out danishes up there and lunches. you are really working to bring the people in here, dan. and i think that is a point dan has learned quite well. >> i cannot take credit. well before i arrived, wcl it was known stands for we cater lunch. there's food all over this place. [ laughter ] >> all right, that's your side of the story. in 19 -- later that year, foia reform legislation was passed. dan was instrumental in negotiating its provisions on behalf of the government. i don't remember agreeing to that one way or the other. subsequently, though, he suggested that he draft a

memorandum on the '86 amendments, which he proudly presented to the attorney general for his signature. i don't remember agreeing to this one way or the other either. all right. that's the meece memorandum. >> did you agree when meece changed one word which was misspelled so it was a good change. >> in 1987 dan recommended we propose an executive order on the proper steps that an agency should take to give notice to a submitter of business records, when the agency receives a foia request for those records. i agreed. dan drafted it. president reagan signed executive order 12600. in 1989 the government prevailed on the reporter's committee case in the supreme court. dan suggested that we draft and publish a policy piece explaining all of its nuances. i agreed. in 1991, recognizing a need

unfilled by the office of management and budget, dan suggested we publish along with the department of justice's freedom of information act guide an overview of the privacy act of 1974. i agreed. in 1992, dan suggested that he write and we publish an article on the automatic disclosure provisions of a1 and a2 of the foia, mistakingly believing this would be one of the most exciting topics ever to be addressed in foia update, i agreed. in 1993, dan suggested that he draft a new discretionary disclosure mem row for attorney general reno. i agreed but there was a bit of a delay, because attorney general reno's draft memo was shortened a bit when president clinton lifted some of dan's text verbatim and placed it into the first ever presidential memo on the foia.

three years later, following over six years of on and off work by dan, congress enacted the electronic foia amendments. >> you negotiated part of that, so you're partly to blame. >> no, i negotiated -- >> i was out of town that summer, remember? >> actually dan is exactly wrong. [ laughter ] the part, the little piece i was to negotiate i failed miserably on and that part got left in. if negotiations can include unsuccessful negotiation, i did it. [ laughter ] but dan was doing all of the heavy lifting over there. so what happened with the electronic amendments was he then immediately suggested that he draft numerous policy articles for foia update, explaining the legislation, and i agreed. in 1998, congress decided to hold oversight hearings on this

new legislation. dan suggested that i should be the one to testify on behalf of the department at these hearings, even though he had all of the background knowledge in the area. for the life of me, i do not remember why i agreed to that. but two years later, the house committee on government reform delivered a subpoena to the department, seeking testimony in an upcoming hearing entitled "felonies and favors: a friend of the attorney general gathers information from the justice department." i suggested to dan, that since i testified the last time, he might want to enjoy the experience this time. he explained that since i was the one who released the information on appeal at issue, and that i did such a great job testifying last time. >> yes. >> and finally because the

subpoena was written, was in my name, i ought to be the one who testifies before chairman dan burton. whoa. although i had non-refundable air tickets for a summer vacation in idaho, for the hearing's scheduled date, dan told me i had to come back. that hearing -- >> you were subpoenaed. >> that hearing was no fun. all right. in march 2001, dan suggested we leap into the 21st century by dropping our paper foia update and publish foia post electronically instead. although i was not even sure how to work my e-mail account, i agreed. later in 2001, dan suggested that he draft a new discretionary disclosure memo for attorney general ashcroft in the belief that, if we did not put such a draft forward, what would result without it would be even worse.

i agreed, but only very small portions of the memo were adopted. >> actually that's not true. the entirety of it, except for that little paragraph that the white house took in, believe it or not. >> oh, no. see, this is another thing, i agreed to these things but dan doesn't tell me about them. >> you knew. >> or he does tell me about them but it's 20 years later. >> you knew that at the time. nice try. >> all right, well, all right. well the way i said it i think makes a better story. it protects your integrity just slightly more than i've already beaten it up. >> dick, truth it truth, right? >> all right, well, perhaps so. in 2003, due to the fact that it seemed that we had already addressed almost all significant issues, dan could only suggest that we discuss the, in foia update agencies rely on a wide range of exemption three statutes. so i think dan is directly behind the fact that you were

going to have a panel later on this afternoon discussing those wide range of exemption three statutes. >> there is a thread, yes. >> in 2005 dan suggested we publish an article explaining the int ka cassies of responding to unit prices in an agency contract. i agreed and i remember reading the eighth screen of a ten-korean article. it was really dense, and it was really well written, but right in that eighth screen, i fell straight down joen to my desk and had a bloody nose and what that told me is i knew i had to retire. and i did in 2005. so what went well during my time at oip? i adjudicated some 70,000 administrative appeals. i taught close to about 300 classes. dan formulated and distributed an excellent policy guidance.

we produced an outstanding reference volume on both the foia and the privacy act, and most significantly, i >> well, first thing is you probably want to at least mention what you would commonly say when anyone visited the office and say how many people work here? >> about two third of them. [ laughter ] >> miriam, was that right? about two third? >> i remember it differently. you'd say "about half." absolutely. well, thank you for that. i'm going to exercise my prerogative of asking the first question because we have time and i know you're willing. dick, by the way, likes lots of

hard questions. not the easy ones. >> say again? >> if you have an easy one in mind, give someone else a chance, okay? but if you have a hard one or two, definitely please line up on the side. having started way back in the ford administration and being able to see the character of the ford administration back then and how it changed in the carter administration, then ford to reagan one, reagan two, bush 41, clinton one, clinton two, bush 43 part one, bush 43 part two, okay, which administration do you think was the most effective and forthcoming and successful with respect to foia administration? >> sure. most effective and forthcoming was head and shoulders the

administration all eight years of janet reno. >> oh. and there is the cheer leader right there. that's carl stern. he did one heck of a fine job of holding both dick's feet and dan's feet to the fire saying, wait a minute, you got to release this. the privacy exact went let us, there's criminal sangs involved. cart would say nobody ever get prosecutednd that. i know people in the criminal division. bont worry about that. >> that's funny but it's also

true. carl was fronting for the attorney general on the that. the attorney general coming from florida where they had a s sunshine statute with exemptions. they practically protected nothing under the privacy protections in florida and that was what she was used to working in. so she'd go over there and start giving carl the business and he'd have to give us the business. you know, that was the way it worked. i'd say it was easily janet reno. yes, ma'am. >> i'm a student here. i have a two-part question for you. the first is do you recommend this area of law as a good area of specialization for graduating

law students? and secondly, i know the next panel is going to go over legislative activity but in your opinion do you think that foia should be amended in connection with the milner decision last year? >> i'll do the last one first. the answer is yes. i think milner was probably was appropriately decided, although i sure understood what justice breyer said, let sleeping laws lie. it had been the law for 35 years, 30 years and america worked seemingly pretty well. i understand what the majority did and how that worked. but i think particularly some of the folks with dod and some of the other areas that i'm familiar with where we have, as dan mentioned, vulnerability studies and things of that nature, we've got also some of

materials that are high, too, for the military that just really are very difficult or can't be protected. dealing with that one first. with your first question no. i think you shouldn't go into foia. i think you should go and be an investment banker. that's what i would have done if i would have been able to do a little bit better. if i would have been somebody who was on law review like metcalf, instead of somebody -- i only knew one person on law review the hastings and i didn't know him very well. that was the sort of thing that i certainly would have gone into investment banking. >> but, dick, not to put too fine a point on it, the question is for a law student today.

no someone deciding which grad stool to go to. a law student should go into investment banking? >> you should become an attorney, learn all you can about investment law and corporate banking. there's a lot of big money in private practice. tom is an example of that right there. formerly. formerly. you work for the -- >> ngo. >> tom, do you have a question? >> yeah, tom sussman. formerly a lawyer. >> recovering attorney. >> and dick, not dan. one of the things from your chronology that you didn't mention is that in the early 90s there was a proposal being developed by the administrative conference for an alternative dispute resolution mechanism that came into ultimate fruition with oegis 20 years later. the justice department and your office opposed that vigorously,

among other things saying "we do that already." i had a few occasions over the years trying to get your office to do it and i didn't succeed. i want you to explain to us, was this really something your office actively pursued? why is it that so few people knew about it? >> do you remember what i said i did during my 35 years? that was not one of my 70,000 appeals or 300 classes i taught. i think that sounds more like policy, on dan's side policy work and i'll bet we've got an answer for that. >> obviously it fell in between the cracks. that's the answer to my question. >> when was that, in the -- >> yeah. no, dick, what happened, we had about a handful to a dozen of what we call foia-type matter

that we handled every year. we tried to advertise that puppy up the waz u. we advertised it as much as possible. it really was advertised more than you remember, tom. but as a practical matter, we could only take the cases that came in. miriam, on the other hand, has more cases than she could deal with. but we really did try do that back then. truly. >> we also, tom, had one other difficulty and that is one that miriam suffers under at her agency. and that is it is not a class a misdemeanor not to follow the advice of the office of information and privacy when we tell you you're going to have to disclose that information. when we're talking to somebody outside the department. we can say and the huge share of the time when we would talk to another agency on an issue like that, the huge share of the time an agency would do what we told

them when we were aware of a problem that way. i want to tell you there were a couple of them, one of which initials i shouldn't say the name of it but its initials were epa -- [ laughter ] -- that we just once had a terrible problem with saying can you not do that and we ended up telling them about three different levels and they had a political person who said, yeah, we're going to. as soon as the organization was then sued, finally the third entity in the department of justice, they had asked us, the criminal division -- why criminal division was not at all clear and then the ausa told them i ain't going to defend that. that was one where they had to write attorneys fees for the cost of a complaint. there was just no way we could enforce that in the exceptionally rare case where that happened. >> wasn't their attorney general's directive at some