Office of the Inspector General 

United States Department of Justice

A REVIEW OF THE RESPONSE BY THE

DEPARTMENT OF JUSTICE TO

FREEDOM OF INFORMATION ACT REQUESTS

FOR THE WORKPLACE DIVERSITY REPORT

January 29, 2004 
A Review of the Response by the Department of Justice to 

Freedom of Information Act Requests for the Workplace Diversity Report 

I. INTRODUCTION 

 The Office of the Inspector General (OIG) conducted a review of the 

Department of Justice’s (DOJ or Department) handling of Freedom of 

Information Act (FOIA) requests for its report on diversity in the DOJ attorney 

workforce, entitled “Support for the Department in Conducting an Analysis of 

Diversity in the Attorney Workforce” (Diversity Report). The OIG review was 

initiated in response to a letter from two members of Congress.1 In particular, 

the congressmen inquired about the Department’s decision to redact material 

from the Diversity Report before releasing it. In addition, they asked about the 

process used by the Department for deciding which material to redact and 

whether the redactions that were made were in conformance with the FOIA. 

They also inquired about the delay in the Report’s release. 

 

 As part of the OIG’s review, we examined the Report in both its redacted 

and unredacted forms. We also interviewed the Department employees 

primarily involved in fashioning the Department’s response to the FOIA 

requests: a Senior Counsel in the Office of the Deputy Attorney General 

(ODAG); an Associate Deputy Attorney General (ADAG); the two individuals 

who served as Chief of Staff to the Deputy Attorney General during the relevant 

period; and the Deputy Director of the Department’s Office of Information and 

Privacy (OIP). We set forth below the results of our review. 

In sum, we found that in handling the FOIA request for the Diversity 

Report, the Department followed its usual procedures for responding to FOIA 

requests, that the decision not to release the Diversity Report in full was made 

by officials in the ODAG after consultation with the OIP Deputy Director, and 

that the decisions regarding which material could be redacted from the Report 

consistent with the FOIA were made by the OIP Deputy Director and other 

career OIP employees. We also concluded that the decision to release or redact 

the Report was a discretionary decision under applicable FOIA law, and the 

redactions do not appear to violate FOIA law. 

 1 Letter from Congressmen John Conyers, Jr. and Jerrold Nadler to Inspector General 

Glenn A. Fine dated November 3, 2003. 
II. BACKGROUND OF THE DIVERSITY REPORT 

According to a press release issued by the Department on January 16, 

2002, the study that led to the Diversity Report was commissioned by the 

Department’s Strategic Management Council (Council). The press release 

described the Council as “a board of senior Department officials chaired by [the 

Deputy Attorney General] which was established in May 2001 to provide 

direction and leadership on a wide range of Department matters.” In the press 

release, the Department announced that KPMG Consulting and Taylor Cox 

Associates had been awarded the contract to conduct the study. 

As described in the Diversity Report, KPMG and Taylor Cox were 

commissioned to “analyze [the Department’s] human resources management 

practices for their effect on the Department’s ability to recruit, hire, promote, 

retain, and utilize an attorney workforce that is diverse with respect to gender, 

race, and ethnicity.” In order to conduct this analysis, the consultants 

interviewed human resource managers, analyzed workforce data, conducted 

interviews and focus groups with Department attorneys, and administered a 

survey to the attorney workforce. The consultants also reviewed other 

organizations, both public and private, for best practices and benchmarks. 

In June 2002, KPMG and Taylor Cox delivered to the Department the 

129-page Diversity Report and its lengthy attachments. The Report contained 

explanations of the background and methodology used by the consultants; the 

raw data that had been collected, including information gleaned from the 

interviews, focus groups, and the attorney survey; and the consultants’ 

findings and recommendations. 

The ODAG Senior Counsel who was most involved with the analysis of 

the Report told the OIG that in the months following receipt of the Report, she 

was focused on reviewing its contents and making decisions regarding which of 

its recommendations should be implemented and how that should be 

accomplished. She said at this time the ODAG was not considering making the 

Report public. 

According to the Senior Counsel, the Diversity Report was part of a larger 

Department effort focusing on attorney workforce diversity. She noted that the 

Department publicly announced a new diversity program in February 2003, 

and that both the Attorney General and Deputy Attorney General spoke at the 

announcement event. In a press release issued by the Department at the time, 

the program was described as “a series of new Department initiatives aimed at 

strengthening the Department’s attorney workforce by intensifying outreach to 

individuals from different racial, ethnic, economic, and geographic 

backgrounds, and by creating incentives to enter and remain in public service.” 

2
III. FOIA LAW 

The FOIA, 5 U.S.C. § 552, generally provides that individuals have a 

right, enforceable in court, to obtain access to federal agency records, except to 

the extent such records, or portions thereof, are protected from public 

disclosure by specific exemptions set forth in the statute. The statute was 

designed “to pierce the veil of administrative secrecy and to open agency action 

to the light of public scrutiny.” Department of the Air Force v. Rose, 425 U.S. 

352, 361 (1976). In accordance with this purpose and with the plain language 

of the statute, the courts apply “a strong presumption” in favor of disclosure. 

United States Department of State v. Ray, 502 U.S. 164, 173 (1991). 

Among the statute’s exemptions is one that protects material that “would 

not be available by law to a party other than an agency in litigation with the 

agency.” 5 U.S.C. § 552(b)(5). This provision, known as Exemption 5, 

incorporates several privileges, including what is commonly referred to as the 

deliberative process privilege. 

Generally, the deliberative process privilege allows the government to 

protect from disclosure information that reveals the agency’s decisionmaking 

process. The purpose of the privilege is to “prevent injury to the quality of 

agency decisions.” National Labor Relations Board v. Sears, Roebuck & Co., 

421 U.S. 132, 151 (1975). The theory behind the privilege is that forcing the 

government to reveal information related to the decisionmaking process would 

discourage open and frank discussion among government personnel and could 

thereby harm the quality of agency policy. See, e.g., First Eastern Corp. v. 

Mainwaring, 21 F.3d 465, 468 (D.C. Cir.1994) (“ [T]he privilege rests most 

fundamentally on the belief that were agencies forced to operate in a fishbowl 

. . . the frank exchange of ideas and opinions would cease and the quality of 

administrative decisions would consequently suffer.”). 

 

As interpreted by the courts, the privilege protects material that qualifies 

as deliberative (i.e., recommendations or opinions on policy matters), and not 

the underlying factual data that may have been considered. This 

factual/deliberative distinction is not, however, inviolable. Factual material 

may be withheld if its release would be tantamount to revealing the agency’s 

deliberations. For example, courts have protected factual recitations that were 

culled from a larger group of facts, finding that the very act of culling is 

deliberative in nature. See, e.g., Mapother v. Department of Justice, 3 F.3d 

1533 (D.C. Cir. 1993) (protecting factual portions of report prepared to assist 

Attorney General decision on whether to allow Kurt Waldheim to enter the 

United States). Courts also have permitted the withholding of facts that are so 

intertwined with recommendations and opinions that revealing the former 

would reveal the latter. See, e.g., Quarles v. Department of the Navy, 893 F.2d 

390, 392-93 (D.C. Cir. 1990) (protecting cost estimates prepared by Navy 

officials in connection with selection of home ports for new battleships). 

3
Although FOIA allows the government to claim the deliberative process 

privilege, nothing in the statute requires the government to assert the privilege 

in every situation in which it applies. Accordingly, the government may waive 

the privilege and release protected information. Whether to do so is left to the 

discretion of the agency. 

IV. FOIA REQUESTS FOR THE DIVERSITY REPORT 

The first FOIA request for the Diversity Report and certain related 

material was dated January 30, 2003, and was received by OIP on February 3, 

2003. Numerous other requests for the Report soon followed. For purposes of 

FOIA, the Department’s time to respond to the first of these requests – 20 

working days – began to run on the date of receipt of the first request. 

As it does with all FOIA requests for records located in the ODAG, OIP 

acted as the initial FOIA processor for these requests.2 The requests for the 

Diversity Report were handled by OIP’s Deputy Director – a career Department 

employee – and career personnel under her direction. 

In addition to its processing duties, OIP also advises other Department 

components and government agencies on questions relating to the 

interpretation and application of FOIA and handles appeals from initial FOIA 

decisions made by other Department components. OIP is staffed and headed 

by career Department employees. The Deputy Director, who is an attorney, 

has been employed in OIP since April 1983, and assumed her current position 

in April 1999. 

The OIP Deputy Director told the OIG that when she received the FOIA 

request for the Diversity Report and related materials she acted in accordance 

with OIP’s regular procedure and sent a “search memo” to the ODAG. In this 

search memo, which was dated February 11, 2003, she informed the ODAG of 

the initial FOIA request and asked for assistance in locating responsive 

documents. She said that she received a copy of the Diversity Report from the 

ODAG on April 15, 2003.3 She reported that this was not an unusually long 

period of time to wait for a response to an OIP search memo from the 

leadership offices. 

The OIP Deputy Director told the OIG that after sending out the search 

memo and before she had obtained a copy of the Diversity Report, she received 

a call from the ODAG Senior Counsel. The Deputy Director said the Senior 

 2 OIP acts as the initial processor for requests for records from the following 

Department offices: Attorney General; Deputy Attorney General; Associate Attorney General; 

Legal Policy; Legislative Affairs; Intergovernmental and Public Liaison; and Public Affairs.

3 Because the requestors had since narrowed their requests to exclude the related 

materials, only the Diversity Report itself was provided by the ODAG. 

4
Counsel inquired about the requirements of FOIA and how they applied to the 

Diversity Report. The Deputy Director said that she provided the Senior 

Counsel with a general explanation of Exemption 5, telling her that purely 

factual material contained in the Report would have to be released but that 

deliberative information, such as the contractors’ conclusions and 

recommendations, could be withheld pursuant to the exemption. She also 

explained to the Senior Counsel that the Department could make a 

discretionary release of the deliberative material if it so desired. 

The OIP Deputy Director said that on April 21, 2003, after she had 

received and reviewed a copy of the Diversity Report, she, the Senior Counsel, 

and the ADAG met to discuss how to respond to the FOIA requests. The 

Deputy Director said she repeated the advice she had earlier provided to the 

Senior Counsel, including the option of making a discretionary release of the 

privileged portions of the Report. 

The Deputy Director told the OIG that the Senior Counsel and the ADAG 

expressed some concern about the effect a discretionary disclosure might have 

on the Department’s response to future requests for similar material. The 

Deputy Director said that although she assured them that a decision to make a 

discretionary release would not constitute a legally binding precedent, they 

were nevertheless concerned about the practical effect of such a disclosure. 

Specifically, they were concerned that if the Department made a discretionary 

release of the Diversity Report, but chose not to release a similar report in the 

future, it might leave the Department open to the criticism that discretion is 

exercised only when the protected material is favorable to the Department. 

Both the Deputy Director and the Senior Counsel told the OIG that the ODAG 

viewed the Diversity Report as presenting a generally favorable view of the 

Department’s efforts regarding workplace diversity. At the end of this meeting, 

however, no decision was made regarding release. 

The Deputy Director told the OIG that the Senior Counsel and the ADAG 

asked her to check OIP records for any indication of how the Department had 

handled similar FOIA requests in the past. She said that she searched OIP 

records, which go back six years, for requests for similar consultant reports, 

but she was unable to locate any comparable requests. She said she conveyed 

this information to the Senior Counsel. 

The Deputy Director said she received an electronic mail message from 

the Senior Counsel on June 9, 2003, informing her that the ODAG had decided 

against making a discretionary release. Although the e-mail message did not 

set forth the reasons for the decision, the Deputy Director said she assumed it 

was based on the concerns the Senior Counsel and the ADAG had expressed at 

the April meeting. 

5
The Deputy Director told the OIG that OIP staff then went through the 

Diversity Report to redact material that was exempt from release under 

Exemption 5. She said the redactions were made by OIP personnel under her 

direction and based on OIP's knowledge of the applicable FOIA law. She said 

that no one from the ODAG participated in the decision regarding what 

information could be redacted under Exemption 5 and what had to be released. 

The Deputy Director described the redaction process for the Diversity Report as 

being “very difficult” and said it took OIP a relatively long time to complete. 

She said that she and her staff went through several different drafts before they 

reached a final consensus. The Deputy Director reported that in accordance 

with OIP’s standard practice, she sent the Diversity Report with OIP’s 

recommended redactions to the ODAG on July 22, 2003, approximately six 

weeks after the Senior Counsel had requested that the redactions be made. 

The Deputy Director said that, in general, OIP’s approach to the 

redactions was to release all raw data (e.g., statistics regarding minority 

representation at different grade levels) while withholding the contractors’ 

findings, conclusions, and recommendations. Included in these redactions 

were any statements in which the contractor characterized the data it had 

collected (e.g., labeling a particular issue as “significant” or a particular 

element as “critical”). In addition, facts that were sufficiently intertwined with 

the findings, conclusions, and recommendations or that otherwise would reveal 

the contractors’ analyses also were redacted. 

The Deputy Director said that, after sending the proposed redactions to 

ODAG, she had one meeting with the Senior Counsel regarding OIP’s 

recommended redactions. According to the Deputy Director, this meeting was 

prompted by the Senior Counsel’s concerns regarding several specific proposed 

redactions. The Deputy Director told the OIG that the Senior Counsel wanted 

to be sure that these redactions were based on a consistent application of 

Exemption 5 law and that no information was being redacted solely because it 

could be perceived as unfavorable to the Department. The Deputy Director 

said that she was able to explain to the Senior Counsel the Exemption 5 basis 

for the recommended redactions and to assure her that in making its 

recommendations OIP did not consider whether the information was favorable 

or unfavorable to the Department. 

The Deputy Director told the OIG that on September 10, 2003, she 

received a memorandum from the ODAG concurring in OIP’s recommended 

redactions. No changes to the redactions were requested by the ODAG or made 

by OIP. The redacted version of the Diversity Report was posted on the 

Department’s website on October 9, 2003, approximately 8 months after 

receipt of the first FOIA request. The Report was posted pursuant to the FOIA 

6
requirement that agencies make frequently requested records available in their 

electronic reading rooms. 5 U.S.C. § 552(a)(2)(D).4 

The ODAG Senior Counsel confirmed the OIP Deputy Director’s 

description of events. She told the OIG that after learning of the initial FOIA 

request from OIP, she discussed the matter with the OIP Deputy Director, who 

advised her that factual material from the Report would have to be released but 

that conclusions and recommendations could be withheld pursuant to 

Exemption 5. She said the Deputy Director also told her about the option of 

making a discretionary release of the privileged material. She confirmed that 

she, the OIP Deputy Director, and the ADAG met to discuss how to respond to 

the FOIA requests and that they discussed potential future ramifications of 

making a discretionary release. 

The Senior Counsel told the OIG that throughout the process she and 

the other ODAG personnel involved were aware that their decision regarding 

discretionary release could set a customary, if not a legal, precedent for future 

requests. She said that she did not want to do anything that might discourage 

future Department officials from commissioning the type of consultants’ study 

that led to the Diversity Report for fear that all of the information gathered 

would have to be released publicly. She said that she believed consultants on 

future projects might not be as forthcoming as possible if they thought that 

their recommendations and analyses would become public automatically. She 

stated, however, that this concern was not based on any specific discussions 

with the contractors who produced the Diversity Report, but on her general 

knowledge that contractors often voice concerns about divulging information to 

competitors. 

The ADAG – a career Department attorney who joined the Department in 

1965 and has served as an ADAG since1993 – also described events consistent 

with the OIP Deputy Director and the Senior Counsel. He described himself to 

the OIG as a “strong advocate” for invoking the deliberative process privilege. 

He said that he had advised against making a discretionary disclosure of the 

privileged portions of the Diversity Report because, in his view, it is difficult to 

make principled distinctions between documents. He believes that once a 

decision is made to make a discretionary release for one report, it is difficult for 

the Department to refuse to make similar releases in the future. He confirmed 

that he expressed the concern that if the Department made a discretionary 

 4

 Because of a technical mistake in the Department’s initial web posting of the Diversity 

Report, a website called thememoryhole.org was able to unmask the redactions from the 

electronic version posted on the Department’s website and reconstruct the full, unredacted 

Report. The memoryhole.org then posted the full, unredacted Report on its site. When the

Department became aware of this, it pulled the original posting from its website and replaced it 

with a version that could not be similarly “unredacted.” The Department has since replaced 

the redacted version with a full, unredacted version of the Report. 

7
release of the Diversity Report it could be subject to criticism in the future if it 

decided not to exercise such discretion with regard to similar documents. 

As noted above, the Senior Counsel told the OIG that the general view in 

the ODAG was that the Diversity Report reflected well on the Department. In 

her words, she thought that the Report showed the Department to be “ahead of 

the curve” in the area of workforce diversity. She said it was always 

understood that the Report would highlight some problem areas and show 

room for improvement, and that shedding light on these areas was the reason 

the study was commissioned in the first place. But she said the ODAG’s 

overall view was that the Diversity Report presented a favorable view of the 

Department’s diversity efforts. 

The Senior Counsel said that she and the ADAG, in consultation with the 

OIP Deputy Director, made the decision not to make a discretionary release of 

the privileged material in the Diversity Report. She said that she also 

consulted with the individual who was then serving as the ODAG Chief of Staff 

about release of the Report. The Chief of Staff confirmed to the OIG that he 

discussed the issue of how to respond to the FOIA requests with the Senior 

Counsel and the ADAG. He stated that he deferred to the ADAG’s view that the 

Department should claim the applicable deliberative process exemption. He 

also told the OIG that he did not discuss the issue with the Deputy Attorney 

General. 

The Senior Counsel told the OIG that the decision not to make a 

discretionary disclosure was based on the concerns regarding precedent 

discussed above. She confirmed that she conveyed the decision to the OIP 

Deputy Director and asked the Deputy Director to make the redactions 

consistent with the requirements of Exemption 5. 

The Senior Counsel also confirmed that OIP provided her with a copy of 

the Diversity Report showing OIP’s proposed redactions and that she met with 

the OIP Deputy Director to ensure that the Department was taking consistent 

positions regarding the redactions. She said the Deputy Director was able to 

allay her concerns about several specific redactions by explaining that the 

redactions were based not on whether the information was favorable or 

unfavorable, but on whether it revealed the consultants’ recommendations or 

thought processes. She said once the Deputy Director assuaged her concerns 

that redactions were being made on a principled basis according to the law, the 

ODAG concurred in OIP’s redactions and the Report was released. She also 

told the OIG that even with the redactions, she believed useful information was 

being conveyed. In her view, the statistical information that was released 

would allow the public to gain insight into the state of diversity at the 

Department. 

8
By the time the ODAG gave final approval to OIP’s recommended 

redactions in September 2003, a different individual had become the ODAG 

Chief of Staff. He told the OIG that he recalled receiving the memorandum 

from the OIP Deputy Director with OIP’s recommended redactions, discussing 

the issue with the Senior Counsel and the ADAG, and thereafter signing off on 

OIP’s recommendations. He said he did not discuss the matter with the 

Deputy Attorney General before approving OIP’s recommended redactions. 

V. OIG CONCLUSIONS 

The OIG’s review revealed that the FOIA requests for the Diversity Report 

were handled in conformance with the Department’s normal FOIA process. 

OIP, the office charged with responding to requests directed to the leadership 

offices, advised the ODAG regarding the applicable law. OIP’s advice was that 

while the purely factual portions of the Diversity Report had to be released, the 

deliberative portions (i.e., the findings, conclusions, and recommendations of 

the consultants), including any factual material that revealed these findings, 

conclusions, and recommendations, could be withheld pursuant to FOIA 

Exemption 5. OIP also told the ODAG that it could make a discretionary 

release of the privileged material. 

After consulting with OIP, ODAG officials decided against a discretionary 

release based on their concerns regarding the effect such a release might have 

on the Department’s willingness and ability to conduct similar studies in the 

future. Accordingly, the ODAG instructed OIP to redact the Diversity Report 

consistent with Exemption 5. Career OIP personnel made the decisions 

regarding which portions of the Report qualified for the exemption, and these 

decisions were not modified by ODAG personnel. 

The OIG had an attorney from its Office of General Counsel – who 

handles FOIA issues for the OIG and who has considerable experience in 

FOIA – review OIP’s redactions to the Diversity Report. The OIG attorney 

concluded that the redactions taken by the Department did not appear to be 

inconsistent with Exemption 5 law in that the underlying factual data collected 

by the consultants was released while information reflecting their conclusions 

and recommendations, including their characterizations of the data, was 

redacted. While one could debate a particular redaction within the Report, 

generally the redactions appear to be consistent with the framework applied by 

the OIP staff to only redact material that fit within Exemption 5. The OIG 

attorney also concluded that the redactions did not appear to be based on an 

assessment of whether the information was favorable or unfavorable to the 

Department, but rather on whether it could be characterized properly as 

deliberative. 

Finally, in this report we did not assess the competing policy 

considerations regarding the Department’s discretionary decision to redact this 

9
material. Rather, our review focused on the process used by the Department in 

handling the FOIA requests. We determined that the Department followed its 

normal process in reaching its discretionary decision, and that decision did not 

appear to violate FOIA law. 

10