ADMINISTRATION OF THE FREEDOM OF INFORMATION ACT: CURRENT TRENDS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON INFORMATION POLICY,
CENSUS, AND NATIONAL ARCHIVES
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
MARCH 18, 2010
__________
Serial No. 111-84
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
EDOLPHUS TOWNS, New York, Chairman
PAUL E. KANJORSKI, Pennsylvania DARRELL E. ISSA, California
CAROLYN B. MALONEY, New York DAN BURTON, Indiana
ELIJAH E. CUMMINGS, Maryland JOHN L. MICA, Florida
DENNIS J. KUCINICH, Ohio MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts JOHN J. DUNCAN, Jr., Tennessee
WM. LACY CLAY, Missouri MICHAEL R. TURNER, Ohio
DIANE E. WATSON, California LYNN A. WESTMORELAND, Georgia
STEPHEN F. LYNCH, Massachusetts PATRICK T. McHENRY, North Carolina
JIM COOPER, Tennessee BRIAN P. BILBRAY, California
GERALD E. CONNOLLY, Virginia JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois JEFF FLAKE, Arizona
MARCY KAPTUR, Ohio JEFF FORTENBERRY, Nebraska
ELEANOR HOLMES NORTON, District of JASON CHAFFETZ, Utah
Columbia AARON SCHOCK, Illinois
PATRICK J. KENNEDY, Rhode Island BLAINE LUETKEMEYER, Missouri
DANNY K. DAVIS, Illinois ANH ``JOSEPH'' CAO, Louisiana
CHRIS VAN HOLLEN, Maryland
HENRY CUELLAR, Texas
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
PETER WELCH, Vermont
BILL FOSTER, Illinois
JACKIE SPEIER, California
STEVE DRIEHAUS, Ohio
JUDY CHU, California
Ron Stroman, Staff Director
Michael McCarthy, Deputy Staff Director
Carla Hultberg, Chief Clerk
Larry Brady, Minority Staff Director
Subcommittee on Information Policy, Census, and National Archives
WM. LACY CLAY, Missouri, Chairman
CAROLYN B. MALONEY, New York PATRICK T. McHENRY, North Carolina
ELEANOR HOLMES NORTON, District of LYNN A. WESTMORELAND, Georgia
Columbia JOHN L. MICA, Florida
DANNY K. DAVIS, Illinois JASON CHAFFETZ, Utah
STEVE DRIEHAUS, Ohio
HENRY CUELLAR, Texas
JUDY CHU, California
Darryl Piggee, Staff Director
C O N T E N T S
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Page
Hearing held on March 18, 2010................................... 1
Statement of:
Pustay, Melanie, Director, Office of Information Policy, U.S.
Department of Justice; Miriam Nisbet, Director, Office of
Government Information Services, U.S. National Archives and
Records Administration; Larry F. Gottesman, National
Freedom of Information Act Officer, Office of Environmental
Information, U.S. Environmental Protection Agency; and
Valerie C. Melvin, Director, Information Management and
Human Capital Issues, U.S. Government Accountability Office 16
Gottesman, Larry F....................................... 41
Melvin, Valerie C........................................ 50
Nisbet, Miriam........................................... 32
Pustay, Melanie.......................................... 16
Sobel, David, senior counsel, Electronic Frontier Foundation;
Sarah Cohen, Knight professor of journalism, Duke
University, on behalf of Sunshine in Government Initiative;
Adina H. Rosenbaum, director, freedom of information
clearinghouse, Public Citizen; David Cuillier, assistant
professor, University of Arizona School of Journalism; and
Tom Fitton, president, Judicial Watch...................... 72
Cohen, Sarah............................................. 86
Cuillier, David.......................................... 106
Fitton, Tom.............................................. 116
Rosenbaum, Adina H....................................... 98
Sobel, David............................................. 72
Letters, statements, etc., submitted for the record by:
Clay, Hon. Wm. Lacy, a Representative in Congress from the
State of Missouri:.........................................
Prepared statement of.................................... 3
Prepared statement of Mary Ellen Callahan................ 8
Cohen, Sarah, Knight professor of journalism, Duke
University, on behalf of Sunshine in Government Initiative,
prepared statement of...................................... 88
Cuillier, David, assistant professor, University of Arizona
School of Journalism, prepared statement of................ 108
Fitton, Tom, president, Judicial Watch, prepared statement of 118
Gottesman, Larry F., National Freedom of Information Act
Officer, Office of Environmental Information, U.S.
Environmental Protection Agency, prepared statement of..... 43
Melvin, Valerie C., Director, Information Management and
Human Capital Issues, U.S. Government Accountability
Office, prepared statement of.............................. 52
Nisbet, Miriam, Director, Office of Government Information
Services, U.S. National Archives and Records
Administration, prepared statement of...................... 34
Pustay, Melanie, Director, Office of Information Policy, U.S.
Department of Justice, prepared statement of............... 20
Rosenbaum, Adina H., director, freedom of information
clearinghouse, Public Citizen, prepared statement of....... 100
Sobel, David, senior counsel, Electronic Frontier Foundation,
prepared statement of...................................... 75
ADMINISTRATION OF THE FREEDOM OF INFORMATION ACT: CURRENT TRENDS
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THURSDAY, MARCH 18, 2010
House of Representatives,
Subcommittee on Information Policy, Census, and
National Archives,
Committee on Oversight and Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:43 p.m. in
room 2154, Rayburn House Office Building, Hon. Wm. Lacy Clay
(chairman of the subcommittee) presiding.
Present: Representatives Clay, Norton, Chu, and McHenry.
Staff present: Darryl Piggee, staff director/counsel;
Anthony Clark and Frank Davis, professional staff members;
Yvette Cravins, counsel; Jean Gosa, clerk; and Charisma
Williams, staff assistant; John Cuaderes, minority deputy staff
director; Rob Borden, minority general counsel; Adam Fromm,
minority chief clerk and Member liaison; Stephanie Genco,
minority press secretary and communications liaison; Mark
Marin, minority professional staff member; Charles Phillips,
minority chief counsel for policy; and Jonathan Skladany,
minority counsel.
Mr. Clay. The subcommittee will come to order.
Good afternoon and welcome to the Information Policy,
Census, and National Archives Subcommittee.
Without objection, the Chair and ranking member will have 5
minutes to make opening statements, followed by opening
statements not to exceed 3 minutes by any other Member who
seeks recognition.
Without objection, Members and witnesses may have 5
legislative days in which to submit a written statement or
extraneous material for the record.
And welcome to today's oversight hearing on the
administration of the Freedom of Information Act [FOIA], held
during Sunshine Week, which is focused on educating the public
on the importance of open government.
The purpose of today's hearing is to examine how agencies
process and respond to FOIA requests and to receive a status
report on current FOIA trends.
The FOIA is not perfect. In the 40 years since the bill's
enactment, Congress has continually reexamined and strengthened
it. This reflects the changing nature of government
information, but it also reflects the changing nature of the
public's relationship with the Government.
In his own FOIA memorandum on his first full day in office,
President Obama made it clear that executive branch agencies
should administer the FOIA with the presumption of openness,
cooperating with the public to respond to requests for
information promptly. And on Tuesday, the President reiterated
his commitment to transparency, participation and
accountability in a statement on Sunshine Week.
Another recent change also has the potential to improve the
FOIA process. In 2007, Congress created and last year President
Obama stood up the Office of Government Information Services
[OGIS] at the National Archives. OGIS's mediation and training
efforts will have a positive impact on FOIA.
We look forward to today's hearing to learning more about
the state of the FOIA and about the trends toward improving
services, increasing access, and making Government more
transparent.
I want to make it clear that this is an oversight hearing
on the administration of the FOIA and not a forum for any party
to advance a pending litigation matter. My staff has spoken
with all of the witnesses and all of the witnesses have agreed
not to discuss any matters that currently are pending before
any court. This hearing is not the appropriate venue to try to
advance your case.
Witnesses are again asked to abide by the agreement that
they made not to discuss pending court matters. I want to make
sure that there is no confusion about this issue.
I now yield to the gentlewoman from--no, I now yield to the
distinguished ranking member, Mr. McHenry of North Carolina.
Hopefully Mr. McHenry will have an opening statement.
[The prepared statement of Hon. Wm. Lacy Clay follows:]
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Mr. McHenry. I do have an opening statement. Thank you, Mr.
Chairman, and sorry for my tardiness.
Thank you all for being here today. This is certainly an
important issue the American people should be concerned about,
about access to their Government. And we want to make sure that
policies and procedures are being followed appropriately and
that openness and accountability that we all seek from our
Government is in fact taking place.
And so, Chairman Clay, I certainly appreciate your holding
this timely and very important hearing. It is the primary
responsibility of this committee to provide rigorous bipartisan
oversight of the decisionmaking and spending of our Federal
Government. And it is also the responsibility of this committee
to ensure that ordinary citizens have the access to Federal
records so that they, too, may hold our Government accountable
for its actions.
The Freedom of Information Act [FOIA], was designed to do
just that by providing our citizenry with the legal means to
access Government information. On the President's first full
day in office, he issued an official memorandum instructing
executive departments and agencies to make more information
public through FOIA as part of his administration's commitment
to ushering in ``a new era of open government.''
The President's memo also specifically directed the
Attorney General, Eric Holder, to issue new FOIA guidelines to
each agency head. But the administration's message of openness
and transparency has not translated into concrete improvements
with FOIA. The memo's guidance also does not seem to have been
communicated effectively or enforced throughout the Federal
agencies.
A report recently, on Sunday, by a private research group,
National Security Archive, found that after nearly 14 months,
only 13 of 19 agencies that were audited appear to have taken
any real steps to implement the administration's order.
Specifically, only four agencies including Holder's own Justice
Department, show both an increase in approved FOIA requests and
decrease in denials.
The audit also found ``ancient'' requests dating as far
back as 18 years that are still pending in the FOIA system.
Additionally, 35 agencies reported that they had no internal
documents showing how or whether the new FOIA policies are
being implemented. It was truly troubling to find that the
typically secretive Treasury Department and the SEC are
actually on that list. As a member of the Financial Services
Committee, just like the chairman, that is of a particular
policy concern on the Hill as well.
In light of their role in the allocation of billions of
dollars in taxpayer money through the TARP Program and the
distressed banks, and the GSEs, Fannie Mae and Freddie Mac, we
should also be very alarmed to hear this about the Treasury
Department.
While in many cases, the handling of FOIA requests has not
changed, in others it has actually gotten worse. The Associated
Press conducted its own review of FOIA reports filed by 17
major agencies and found that the use of nearly every one of
the FOIA law's nine exemptions to withhold information from the
public actually rose in the fiscal year 2009.
For example, one FOIA exemption allows the Government to
hide records that detail its internal decisionmaking. The
President specifically instructed Federal agencies to stop
using that exemption so frequently, but his message appears to
have been ignored. Major agencies cited that exemption at least
70,779 times during fiscal year 2009, up from 47,395 times
during President Bush's final year in office, according to the
annual FOIA reports filed by Federal agencies.
It is clear that President Obama's instructions have been
widely disregarded, but the administration still maintains that
it has been making ``clear progress'' in turning around the
FOIA process at Federal agencies that have often been adverse
to public disclosures.
Progress may, indeed, be slow, but over a year into his
administration, the American people should be seeing more
transparency than this, especially from agencies that are the
most spendthrift with their tax dollars.
It is my hope that our witnesses in this first panel will
be able to shed some light on this over-reliance on certain
FOIA exemptions and the delay in implementing the President's
directives.
Thank you, Mr. Chairman, for your leadership of this
committee and your work across the aisle and even within your
own caucus to make sure that we have good oversight over this
administration and the Government generally.
Thank you.
Mr. Clay. Thank you, Mr. McHenry, for that opening
statement.
If there are no additional opening statements, the
subcommittee will now receive testimony from the witnesses
before us today.
I would now like to introduce our first panel, but before I
do that, I would like to also welcome our newest panel member
here, our newest committee member here, Ms. Judy Chu from the
great State of California, who took Ms. Watson's place. So
thank you for being willing to serve, Ms. Chu. I appreciate it.
Our first witness will be Ms. Melanie Pustay, Director of
the Office of Information Policy [OIP], at the U.S. Department
of Justice. Ms. Pustay started in the Department in 1983 and
became Director of OIP in 2007.
She manages the Department's responsibilities related to
FOIA, including ensuring compliance with the FOIA, adjudicating
all Department appeals from denials under the FOIA, and
handling FOIA litigation matters. She has received the Attorney
General's Distinguished Service Award for her role in providing
legal advice, guidance and assistance on records disclosure
issues.
She graduated from American University's Washington College
of Law and received her B.A. from George Mason University.
Welcome.
Our next witness is Ms. Miriam Nisbet, the Director of the
Office of Government Information Services at the National
Archives and Records Administration. She serves as the Federal
FOIA ombudsman, providing mediation services to resolve
disputes between FOIA requesters and administrative agencies.
Previously, she was Special Counsel for Information Policy
at the National Archives and Deputy Director of the Office of
Information and Privacy at the Department of Justice.
Ms. Nisbet received a B.A. degree from the University of
North Carolina at Chapel Hill and a J.D. degree from the
University's School of Law. She is a Tarheel.
Mr. McHenry. And if I may interject there, though they are
not in the NCAA tournament this year, at least they got a win
against William & Mary.
Mr. Clay. Well, the ACC is well represented. OK?
[Laughter.]
Our next witness is Ms. Mary Ellen Callahan, Chief Privacy
and FOIA Officer at the U.S. Department of Homeland Security.
She could not be with us today. Without objection, her written
statement will be entered into the record. In addition, Ms.
Callahan has agreed to respond to Members' questions for the
record.
[The prepared statement of Ms. Callahan follows:]
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Mr. Clay. And after Ms. Nisbet, we will hear from Mr. Larry
F. Gottesman, the National Freedom of Information Officer for
the U.S. Environmental Protection Agency. He is responsible for
the day to day operations of the Agency's National FOIA
Program, providing policy direction on Agency-wide FOIA
matters, and guidance to the Agency's FOIA officers and
coordinators.
During his tenure, the Agency has reduced its FOIA backlog
by more than 96 percent. Previously, he was an Attorney at the
U.S. Department of Labor, providing legal counsel and policy
advice on FOIA, the Privacy Act, Federal Records Act, Federal
Advisory Committee Act, Administrative Procedures Act, and
congressional oversight requests.
Thank you for being here.
Our next witness will be Ms. Valerie C. Melvin, Director of
Information Management and Human Capital Issues within the U.S.
Government Accountability Office's Information Technology Team.
She is primarily responsible for studies of issues concerning
health information technology, IT human capital, and access to
government information.
Ms. Melvin graduated from the University of Maryland with a
B.S. degree in business administration and a master's degree in
management information systems. And I must say that she picked
a great college.
Welcome back. She is a certified government financial
manager.
And I thank all of our witnesses for appearing today and
look forward to their testimony.
It is the policy of the Oversight and Government Reform
Committee to swear in our witnesses before they testify.
Would you all please stand and raise your right hands?
[Witnesses sworn.]
Mr. Clay. Thank you. You may be seated. And let the record
reflect that the witnesses answered in the affirmative.
I ask that each of the witnesses now give a brief summary
of their testimony. Please limit your summary to 5 minutes.
Your complete written statement will be included in the hearing
record.
Ms. Pustay, please begin with your opening statement.
STATEMENTS OF MELANIE PUSTAY, DIRECTOR, OFFICE OF INFORMATION
POLICY, U.S. DEPARTMENT OF JUSTICE; MIRIAM NISBET, DIRECTOR,
OFFICE OF GOVERNMENT INFORMATION SERVICES, U.S. NATIONAL
ARCHIVES AND RECORDS ADMINISTRATION; LARRY F. GOTTESMAN,
NATIONAL FREEDOM OF INFORMATION ACT OFFICER, OFFICE OF
ENVIRONMENTAL INFORMATION, U.S. ENVIRONMENTAL PROTECTION
AGENCY; AND VALERIE C. MELVIN, DIRECTOR, INFORMATION MANAGEMENT
AND HUMAN CAPITAL ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE
STATEMENT OF MELANIE PUSTAY
Ms. Pustay. Good afternoon, Mr. Chairman and Ranking Member
McHenry and members of the subcommittee. I am pleased to be
here this afternoon to address the subject of the Freedom of
Information Act and the efforts of the Department of Justice to
implement the President's memorandum on the FOIA, as well as
the Attorney General's FOIA guidelines.
As the lead Federal agency responsible for implementation
of the FOIA, we at the Department of Justice are especially
committed to encouraging compliance with the act by all
agencies, and to fulfilling President Obama's goal of making
his administration the most open and transparent in history.
The Attorney General issued his new FOIA guidelines 1 year
ago on March 19th during Sunshine Week. The new FOIA guidelines
address the presumption of openness that the President called
for in his FOIA memoranda, the necessity for agencies to create
and maintain an effective system for responding to requests,
and the need for agencies to proactively and promptly make
information available to the Government.
The guidelines discussed the critical role that is played
by agency Chief FOIA Officers and they stressed that improving
FOIA performance requires their active participation. The
Attorney General called on all agency Chief FOIA Officers to
review their agency's FOIA administration each year, and then
to report to the Department of Justice on the steps taken to
achieve improved transparency. These reports, which were just
completed for the very first time this week, will serve as the
means by which each agency will be fully accountable for its
FOIA administration.
My office, the Department's Office of Information Policy,
has been actively engaged in a variety of initiatives to inform
and educate the agency personnel on the new commitment to open
government. Just 2 days after the President issued his FOIA
memorandum, OIP sent initial guidance to agencies informing
them of the significance of the President's memorandum and
advising them to immediately begin applying the presumption of
disclosure to all decisions regarding the FOIA.
Then, after the Attorney General issued his FOIA
guidelines, OIP held a Government-wide training conference
which was filled to capacity with over 500 agency personnel
attending. To further assist agencies in implementing the new
guidelines, OIP issued extensive written guidance which we
posted publicly on FOIA Post. Significantly, OIP provided
agencies with concrete steps to use and approaches to follow in
applying the presumption of openness. OIP described ways to
apply the foreseeable harm standard and discussed the factors
to consider in making discretionary releases.
Now, beyond these principles of applicable to responding to
individual FOIA requests, OIP also provided guidance to
agencies on achieving transparency in new ways. Further, OIP
emphasized the need to work cooperatively with requesters and
to make timely disclosures of information.
Last, OIP discussed the key role to be played by those
agency Chief FOIA Offices and we encouraged FOIA professionals
to work closely with those officials.
OIP has also included a discussion of the President's and
Attorney General's memoranda in the 2009 edition of our
Department of Justice Guide to the FOIA. This book is a
comprehensive reference volume on the FOIA. It is compiled by
OIP every 2 years, and it is also available online. You can see
that this year we chose sunshine yellow for the cover, which we
thought was very fitting.
In addition to issuing written guidelines and guidance to
agencies, OIP has conducted numerous additional agency-specific
training sessions specifically focused on the new transparency
initiative. We regularly provide training to agency personnel
on aspects of the FOIA and those training programs now all
include sessions on the new FOIA guidelines.
OIP has also reached out to the public and to the FOIA
requester community. OIP hosted a requester roundtable over the
summer where we invited any interested members of the FOIA
requester community to meet with OIP and to share their ideas
for improving FOIA administration. There have been numerous
followup sessions and continued dialog with the requester
community, which has been very productive.
In direct response to concerns raised by the requester
community concerning difficulties they had in reaching agency
personnel, just this month on March 4th, OIP issued guidance to
all agency personnel, emphasizing the need for good
communication with FOIA requesters and requiring agencies to
provide an agency point of contact to all requesters, as well
as to take a number of other steps designed to improve
communication with requesters.
These simple steps have the potential to go a long way to
imbuing a spirit of cooperation into the FOIA process as the
President has called for. These training programs and requester
outreach activities will be ongoing in the months and years
ahead.
Now, I am pleased today to be testifying with Miriam
Nisbet, the Director of the Office of Government Information
Services. Our two offices began collaborating immediately.
Resolution of disputes before they reach litigation is a goal
shared by both our offices. Given that shared interest, OIP has
teamed with OGIS to help educate agency personnel on methods
they can employ to resolve disputes.
In upcoming months, OIP will be conducting an extensive
review of those agency Chief FOIA Officer reports that were
just completed. The items required to be addressed by each
Chief FOIA Officer are directly tied to the important
transparency principles enunciated by the President and the
Attorney General in their FOIA memoranda. OIP will make an
assessment of where agencies stand.
In keeping with the President's and the Attorney General's
call for all agencies to increase their use of technology, the
Department required Chief FOIA Officers to report on their
agency's use of technology in the administration of the FOIA.
This is the very first time such data has been collected across
the Government.
Mr. Clay. The witness' time has expired. Would you like to
sum up?
Ms. Pustay. Yes. I have lots of news to report for you.
Mr. Clay. I know.
Ms. Pustay. Looking ahead, in addition to our review of the
Chief FOIA Officer reports, we plan to continue our outreach on
the important issue of transparency, which will include
additional training and further guidance to agencies, as well
as one on one assistance and continued outreach to requesters.
As I have stated previously, we are very committed to
achieving the President's goal of improved transparency.
Thank you.
[The prepared statement of Ms. Pustay follows:]
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Mr. Clay. Thank you so much for your testimony, Ms. Pustay.
Ms. Nisbet, you are up.
STATEMENT OF MIRIAM NISBET
Ms. Nisbet. Thank you. Good afternoon, Mr. Chairman,
Ranking Member McHenry and members of the subcommittee.
Thank you for the opportunity to appear today during
Sunshine Week to tell you more about the Office of Government
Information Services [OGIS]. We are honored to be part of a
Government-wide effort to improve the administration of FOIA.
As you know, our Office was created through the Open
Government Act of 2007 and we opened our doors just 6 months
ago, in September 2009. Since then, we have been working to
fulfill our congressional mandates.
One of those is to review Federal agencies' FOIA policies,
procedures and compliance so that we may make policy
recommendations to Congress and the President. The second
mandate is to offer mediation services to resolve FOIA
disputes. In addition, we have been serving as a FOIA ombudsman
soliciting assistance from Federal agencies and the public to
improve the FOIA process generally.
The right of the public to access information from its
government is fundamental. FOIA is a strong mechanism allowing
citizens to exercise that right, and in the more than 40 years
since FOIA was first enacted, Congress has consistently worked
to make it stronger. We hope that OGIS will be an important
component of FOIA's strengthening process, even though we are a
somewhat small part, with a staff of six, to reach across the
entire executive branch.
The U.S. Government received more than 600,000 FOIA
requests in fiscal year 2008. We are, of course, just compiling
the numbers for fiscal year 2009. Only 1.5 percent of those
resulted in an administrative appeal and only 0.05 percent of
the total requests were litigated. By those measures, the law
works reasonably well.
But the cost of those 321 lawsuits to the requesters, to
the agencies, for the courts and passed along to the public are
significant. OGIS has been working closely with the Office of
Information Policy at the Justice Department, as well as with
other Federal agencies and FOIA requesters and advocates to
develop solutions to help FOIA work more effectively and
efficiently. For example, our experience confirms that simple
communication between a FOIA requester and an agency FOIA
professional can go a long way in preventing disputes.
To enhance communication and provide mediation services,
something that has not been done before in the administrative
process, we are taking five different paths. One has been to
work with agency FOIA public liaisons whose role it is to
resolve disputes. In fact, as Melanie mentioned, our first
dispute resolution skills training for FOIA public liaisons is
set for next Tuesday, and we had more than 60 RSVP requests in
the few hours after announcing the event to fill 30 slots. We
have 130 on our waiting list, so we know that there is a strong
interest.
Second, we are developing a pool of trained mediators who
will formally mediate cases. Third, OGIS staff members are
currently informally mediating cases and have resolved 84 of
the 110 cases brought to us since our doors opened last
September. Fourth, we are exploring whether online dispute
resolution may be a viable avenue, allowing us to use
technology in the same way as many commercial entities do.
Finally, we are utilizing existing alternative dispute
resolution programs [ADR], within agencies to work with their
FOIA professionals. Specifically, we have met with
representatives from the Departments of Defense, Interior and
Veterans Affairs, as well as the Federal Energy Regulatory
Commission who is co-hosting next Tuesday's event with OGIS and
Justice to set up pilot FOIA and ADR mediation programs.
To fulfill the second prong of the Office's mission, OGIS
is also reviewing agency FOIA policy, procedures and practice
to determine areas of the law that may need attention. As
directed by the law, we will report on agencies' compliance to
Congress and the President at the end of the fiscal year. We
are already seeing much greater attention throughout the
agencies to the importance of improving FOIA performance as a
result of the President's memoranda on openness in FOIA, the
Attorney General's efforts and OMB's Open Government Directive.
Finally, as you know, many people have referred to OGIS as
the FOIA ombudsman. That is a term that was first coined by
Senators Leahy and Cornyn. As an impartial office devoted to
FOIA, we have embraced this informal role as well. OGIS has
engaged in regular outreach through presentations, informal
meetings, press briefings and through its Web site.
Finally, there is no question but there is a role for the
Office of Government Information Services to assist Federal
agencies and members of the public, to resolve disputes, to
learn where improvement can be made, and generally to better
navigate the FOIA process. There is a lot of work ahead of us
yet, but in 6 short months, agencies and the public have
expressed a deep appreciation for the services we provide.
With all of this setting the state in the Office's early
days, we look forward to becoming instrumental in making FOIA
as strong and effective a tool in public oversight as Congress
intended.
Thank you.
[The prepared statement of Ms. Nisbet follows:]
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Mr. Clay. Thank you so much for that testimony.
Mr. Gottesman, you are up.
STATEMENT OF LARRY F. GOTTESMAN
Mr. Gottesman. Thank you. Good afternoon, Chairman Clay,
Ranking Member McHenry and members of the subcommittee. I am
pleased to appear before you today to discuss EPA's FOIA
program during Sunshine Week.
Let me assure you that EPA is committed to the letter and
spirit of the Open Government Act of 2007, the administration's
open government and transparency goals. EPA recognizes that
emerging technologies create new opportunities for improving
the FOIA processes throughout the Federal sector, and the
Agency continues to collaborate with other Federal agencies in
this regard.
Administrator Jackson issued a memorandum to all employees
on April 23, 2009 that communicated her commitment to
transparency in all of EPA's operations. The Administrator said
that, as President Obama stated, the FOIA should be
administered with a clear presumption of openness and that all
Agency personnel should ensure that this principle of openness
is applied.
Administrator Jackson also stated that in accordance with
guidance issued by Attorney General Holder, EPA offices should
exercise their discretion in favor of disclosing documents
whenever possible under FOIA and take steps to make information
publicly available on the Agency's Web site without waiting for
a request.
I would like to take a few minutes to explain how EPA is
addressing the FOIA backlog embracing the mandates of greater
transparency. First and foremost, the Agency has worked very
hard to reduce its backlog of FOIA requests. In July 2001,
there were 23,514 overdue FOIA requests. EPA formed a task
force and began aggressive steps to address the situation. The
backlog started to decrease.
In 2006, the Agency committed to reducing its backlog to
not more than 10 percent of new requests received in any fiscal
year. EPA surpassed this aggressive milestone the very next
year and continues to meet it every year thereafter. In fact,
at the end of fiscal year 2009, EPA's backlog was just 332
requests, or just slightly over 3 percent of all incoming
requests. The Agency has also significantly reduced its overdue
appeals.
The Agency embraced the mandate for greater transparency.
EPA made data bases available through its Web site because of
information frequently requested through FOIA. For example,
EPA's Office of Pesticide Programs completely redesigned its
electronic FOIA reading room to make tens of thousands of
highly sought after pesticide science and regulatory records
publicly available without the need to file a FOIA request. The
Office established a dual component electronic reading room by
making documents available on its FOIA Web site. Other parts of
the Agency are exploring opportunities to use similar
technology to proactively disclose records.
In conclusion, EPA is proud of its accomplishments and
continues to look for other opportunities to proactively
disclose information to the public and reduce the need to file
a FOIA request.
I would be pleased to answer any questions from the
subcommittee.
[The prepared statement of Mr. Gottesman follows:]
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Mr. Clay. Thank you so much for that testimony.
Ms. Melvin, you may proceed.
STATEMENT OF VALERIE C. MELVIN
Ms. Melvin. Thank you, Mr. Chairman, Ranking Member McHenry
and members of the subcommittee.
I appreciate the opportunity to participate in today's
hearing on implementation of the Freedom of Information Act. As
you have noted, this important statute establishes that Federal
agencies must provide access to Government information so that
the public can learn about Government operations and decisions.
Given its significance, the Congress included reporting
requirements in the act to allow its implementation to be
monitored. As you know, under the act, agencies are to develop
annual reports providing numerous statistics on their FOIA
processing. Since 2001, we have conducted reviews that draw on
these annual reports to describe the status of reported
implementation and any observable trends. My statement today
briefly discusses our previous work in this area, as well as
selected changes in the FOIA landscape resulting from
legislation, policy and guidance.
In our earlier work, we examined the annual reports from
major agencies, generally noting increases in FOIA requests
received and processed and impending requests carried over from
1 year to the next. We also examined agency improvement plans
developed in response to a 2005 Executive order that was aimed
at improving FOIA implementation and included a major focus on
reducing backlogs of overdue requests.
We found that the agency improvement plans under review
mostly included goals and timetables as required by the
Executive order. Also, in later reporting on agency efforts to
reduce backlogs, we found signs of progress in certain agencies
as of September 2007. However, we could not present a complete
Government-wide picture because agencies varied in how and what
they were tracking as part of their improvement plans.
The Open Government Act of 2007, which was passed in
December 2007, amended FOIA in several ways, including setting
up the FOIA Ombudsman Office within the National Archives and
Records Administration, as has already been discussed.
Regarding the statistics required in the annual reports, the
act introduced several changes, including additional statistics
on timeliness and backlog.
For instance, agencies must break down their response times
in much greater detail, that is, how many requests were
responded to within the first 20 days; how many in the next 20
days, and so on in 20-day increments up to 200 days, and in
100-day increments up to 400 days, and finally those that took
longer than 400 days. These new requirements were first
reflected in the annual reports for fiscal year 2008.
These annual reports also reflected a significant change in
guidance that the Justice Department provided to agencies on
preparing the reports. Specifically, Justice's May 2008
guidance directed agencies to omit from their statistics
Privacy Act requests which had previously been included. In a
Privacy Act request, the requester asked for information on
himself or herself. This change had a major impact on the
statistics for certain agencies such as the Social Security
Administration, whose reported requests dropped by more than 18
million in fiscal year 2008.
In the immediate, these changes to the reported statistics
make year to year comparisons with earlier years problematic.
However, in the future the increased details should help
provide a clearer picture of FOIA implementation at individual
agencies and Government-wide.
Further, this type of information will be important in
assessing the effect on FOIA processes of plans that are called
for in the recent Open Government Directive issued by OMB. Each
agency's plan, due in April, is to describe measures to
strengthen this FOIA program, including milestones for reducing
any pending backlog of outstanding FOIA requests by at least 10
percent each year.
Overall, the increased reporting requirements should allow
greater insight into FOIA program performance, which is
important for agencies, for Congress and the public to ensure
improved implementation of this important statute.
Mr. Chairman, this completes my prepared statement. I would
be pleased to respond to any questions that you or other
members of the subcommittee may have.
[The prepared statement of Ms. Melvin follows:]
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Mr. Clay. Thank you so much, Ms. Melvin.
And I thank the entire panel for their testimony.
We will begin the 5-minute questioning period with our
newest Member, Ms. Chu.
You may proceed.
Ms. Chu. Thank you, Mr. Chair.
So there were 600,000 requests of the U.S. Government,
according to Ms. Nisbet. I was wondering how many of them or
what percentage of them were denied.
Ms. Nisbet. Those were the figures for fiscal year 2008,
and in terms of the denials, I am going to ask my colleague
here, Ms. Pustay, to answer if I may, because she has the
reporting on all of those figures.
Ms. Pustay. In terms of releases of information for last
year, for 2009, we had a significant increase from 2009 to 2008
in the number of requests where information was released either
in full or in part. And that, to me, is one of our first
measures of improvement, of significant improvement across the
Government in implementing the Attorney General's FOIA
guidelines.
Ms. Chu. So in other words, you are trying to get a handle
on the statistics now, but you don't know how many of them were
denied at this point?
Ms. Pustay. I don't have memorized how many were denied,
but we have done a comparison for the key agencies between
fiscal year 2008 and fiscal year 2009 and releases in full or
in part were up in this past fiscal year, which is an
indication of greater focus on transparency as a result of the
guidelines.
Ms. Chu. And a change in policy.
Ms. Pustay. Yes, exactly.
Ms. Chu. And has there been a change in the backlog? Do you
know what?
Ms. Pustay. Yes, it is another really wonderful indicator.
I think backlogs has always been a very vexing issue for
agencies and the public alike. And again, by looking at the key
agencies, backlogs have gone down almost by half. It is really
a dramatic number. This number I did write down, from 125,000
to about 69,000, so almost a 50 percent reduction in backlog
requests from 2009 versus 2008. So the idea that the focus that
we have had on backlogs and improving timeliness, again this
past year, as a result of the guidelines, has really taken hold
in agencies.
Ms. Chu. That is excellent.
Given the current presumption of openness, has the Justice
Department reviewed any agency denials of FOIA requests that
the Bush Justice Department defended in court? And are there
any cases where the Justice Department has decided to reverse
the decision on those denials?
Ms. Pustay. Once the guidelines were issued last year,
there was a review conducted and of course that has been an
ongoing process of all pending litigation cases to identify any
case where there was good potential for additional releases of
information as a result of application of the new guidelines.
And there certainly have been cases where additional
information was disclosed as a result of the re-review.
We had on Monday a Sunshine Week event at the Department of
Justice, and we had some speakers highlighting significant
accomplishments at their agencies. And the U.S. Trade
Representative was one of those speakers. And one of the
specific things they highlighted was the discretionary release
that they made in litigation after the guidelines were issued
of never before released trade negotiation documents. So it was
really, I thought, a very nice example of additional disclosure
that was made.
Ms. Chu. Very good.
Let me talk about a concern that was raised to me from the
Asian American Legal Defense and Education Fund. They had some
concerns. I mean, I think this policy of openness is great, but
they had concerns about whether private information from census
forms could be released in response to a FOIA request.
Can you assure me that there is no reason for them to be
concerned about this information coming out in a FOIA request?
Ms. Pustay. Right.
Ms. Chu. And how is the privacy of those particular forms
protected, which is an especially sensitive subject right now?
Ms. Pustay. Right at this moment in time. We just filled
out our form at home.
This is a really excellent question because the challenge
with implementing the FOIA and increasing openness is that
agencies have to take into account legitimate interests that
need protection from public disclosure, and personal privacy is
obviously at the top of the list of interest that needs
protection.
And so the key to successful implementation of FOIA is
properly balancing the public's interest in transparency, with
individuals' interests in protecting personal privacy. And that
is what agency officials do every day and that is a big part of
what we give training on is how to conduct privacy analysis and
make sure that privacy is being protected.
Now, specifically with census forms, though, in addition to
privacy protection, which would be very readily and easily
applied to the people who fill out a census form, there is also
a statute that gives protection to information gathered under
the census. So there would be an additional even stronger way
to protect that information. You have a statute that protects
it. You also have overlapping protection of a privacy
exemption. So it is very, very strongly and easily protectable.
Ms. Chu. Thank you.
Mr. Clay. Thank you so much.
Mr. McHenry.
Mr. McHenry. Thank you, Mr. Chairman.
Thank you all for your testimony. I certainly appreciate
you being here.
Ms. Pustay, how much is this decline in the backlog of FOIA
requests natural at the end of administrations?
Ms. Pustay. Oh, I don't think it is natural at all. I
think, in fact, the opposite would be true. I think that to
have a reduction in backlogs so early in a new administration
is quite remarkable. And to have a nearly 50 percent reduction
in backlog is just quite a good accomplishment. We are not done
with our work on reducing backlogs, and certainly all these
elements of transparency, especially I work with agencies to
encourage them to make improvements on. We still have work to
be done. There is no doubt about it. But to have done this much
on backlog reduction in 1 year I think is quite a big
accomplishment. And I directly tie it to our focus on this as
part of the new transparency initiatives.
Mr. McHenry. OK.
Ms. Melvin, with the GAO, has there been research on what
is sort of the natural ebb and flow of these requests?
Ms. Melvin. We have not looked at the requests recently.
Our work primarily was between 2001, for the annual reports, it
was 2002 and 2006. In that timeframe, we did see increases in
the backlogs up through 2006, although we did see a decrease,
if you will, in terms of the rate of increase in the backlogs
that were pending, the pending backlog, I should say. But since
then, we have not seen more recent numbers relative to the
actual numbers for backlog at this time.
Mr. McHenry. Ms. Nisbet, your office was created by
legislation in 2007 and you opened I believe in 2009.
Ms. Nisbet. September 2009, just about 6 months.
Mr. McHenry. OK. So we are still early.
Ms. Nisbet. Yes.
Mr. McHenry. Where are you in this process of getting up
and running?
Ms. Nisbet. Well, we now have our full complement of six
staff members, so that is great. Our sixth member arrived just
a few weeks ago. We are already handling cases and have been
handling cases for a number of months now. We are seeing quite
an increase in our backlog. I am sorry, not our backlog. Oh, we
don't have a backlog. [Laughter.]
In our caseload. We have in 2010 already more than twice as
many cases as came to us in the last few months of 2009. Now,
granted, a lot of people didn't know we existed and that is one
reason we really appreciate the attention of this subcommittee
to our office. It helps to let people know that our services
are out there and that we are available.
Mr. McHenry. So have you begun the process of mediation
yet? Or where are you in that process?
Ms. Nisbet. We are handling cases ourselves in what we
would call an informal way. We are putting together a pool of
trained mediators. They will be people who are both with the
Government and also outside the Government so that we have a
pool of neutral trained mediators to handle cases. So far, we
are doing pretty well just in using our staff, but we do know
that there will be cases that really require much more time in
terms of hours and days, and we will need to actually devote
people just to working on those cases, but we are getting ready
for that.
Mr. McHenry. OK. So when does mediation begin? Do you have
your first case?
Ms. Nisbet. We would be ready to start just about any time.
We do have a number of people who are sort of ready and
standing and ready to go, but we have not had a case yet that
really requires that.
Mr. McHenry. OK.
Ms. Nisbet. So far, we have been able to do it with our own
staff as opposed to hiring trained mediators to come in and
handle cases on an ad hoc basis.
Mr. McHenry. And in the 6-months you have been up and
running how many requests have you had?
Ms. Nisbet. We have had about 110 cases. We have resolved
84 of those. We do still have some right now that are pending
that we are working on. But so far, we have had a very good
reception from the agencies that we have worked with. And we
are finding that we are able to handle them pretty well so far.
Mr. McHenry. And who are you intending to help? Just so
people understand.
Ms. Nisbet. Well, we are intending to help both FOIA
requesters and the agencies to whom they have made requests in
overcoming obstacles that may be keeping the request from being
fulfilled in a timely fashion, or because of substantive
reasons. We have had requests mostly for help from FOIA
requesters so far, but let me tell you, we also have had some
requests for assistance from agency personnel as well who have
asked us to help intervene when they have had a particularly
difficult problem with a requester.
So our intention is to do all of that. I mentioned that we
are going to be offering starting next week dispute resolution
skills training. That is something we are doing with the
Justice Department, with the help of the Federal Energy
Regulatory Commission. They have a very good ADR, alternative
dispute resolution program.
We are doing skills training for FOIA personnel, Government
personnel, to help them better be able to work with requesters
and really just improve customer service. So in that respect,
we have some training that is going to be targeted directly for
Government personnel to help them.
Mr. McHenry. Very good. Thank you. Thank you for your
service.
Ms. Nisbet. Thank you.
Mr. Clay. Thank you, Mr. McHenry.
Ms. Melvin, do you see any trends emerging over the last
year with FOIA requests or with the agencies?
Ms. Melvin. The last time that we did a report that
actually talked about trends was in 2008. At that time, as I
mentioned earlier, we did see some increase in the pending
requests, although that increase was slowing. We also had seen
an increase in the number of requests that were being received
by the agencies, and that also was flattening out a bit.
Since then, we have not done a study. At that time, it was
at a point when the guidance was changing and we felt that we
needed to give some time to the agencies to really implement
new requirements, if you will, in terms of numbers and
statistics that they needed to really assess and report on
their progress. That being the case, I believe that we are now
in the process of actually putting together plans to try to
look at this again, but that would have been the last time that
we saw such a trend.
Mr. Clay. Thank you.
Mr. Gottesman, we don't often get to hear directly from
someone so directly involved in the FOIA process at an agency.
What are some of the misconceptions you think the public has
about the work of FOIA officers?
Mr. Gottesman. The work of FOIA officers. I think some of
the misperceptions that we see is really not necessarily our
role as a FOIA officer in helping process and helping create
policies to be more transparent. What we see more and more as
an agency is individuals who think that the open Government and
the President's policies and the Attorney General's guidelines
means everybody gets everything they want no matter what it is.
And we have seen in the beginning lots of requests that the
Agency protected information because it was confidential
business information or exemption for material. Now, can we
please have it because the President has said give us
everything.
And we see people like that who just read about it in the
newspaper and just feel that it shouldn't, just because it is
commercial business information, if it is covered by a Trade
Secrets Act, we want it; we should get it.
And the Agency has made great strides to try to work with
those requesters.
Mr. Clay. Give me an example of what the Agency has been
doing to reduce the backlog. I mean, I think it is very
impressive that you reduced it at such a dramatic rate. And how
has that improved services to requesters?
Mr. Gottesman. We looked at our process. We looked at
available data bases. A good example a little while ago is if
you want to export a car to certain foreign countries, you need
to get a certificate of conformity from EPA. It is a printout,
literally a document that is on a data base. We worked with the
office that maintains the data base and actually the data base
on our Web site so individuals who need to get this information
don't have to wait 3 or 4 days or a week or 2 weeks to get the
information. With any internet access, they can go into our
data base and within 5 or 10 seconds print out the certificates
they need. Of course, for those individuals who don't have
Internet access, of course we will still make that available to
them.
At EPA, we get a lot of requests, probably almost half the
requests we get are what we call due diligence requests, where
someone is doing a real estate transaction and they need to
know what does EPA know about my property. We are working with
our program offices and hopefully we will have it deployed next
month or so where individuals can go on our Web site, put an
address in, and find out what EPA knows about your property.
As it turns out, almost half our requests are no record
responses because people want us to have no information about
your property, no adverse information. So if you look at our
requests, half are almost no record responses, and that is what
the public wants. But instead of having to make a request, they
will be able to get that information on their own when they
want, anytime they want.
Mr. Clay. Thank you for that response.
Ms. Nisbet, I can imagine that for an individual FOIA
requester after a lengthy process of not getting access to the
information they seek, your mediation services must be very
welcome. Can you give us a sense of the impact of mediation on
agency FOIA officers? And do they view the process as positive?
Ms. Nisbet. Mr. Chairman, I will go with the end of your
question first because I would like to reiterate that we have
gotten a really good strong response from agencies who seem to
really welcome our services.
One way that the 2007 amendments to FOIA envisioned not
only that mediation would be provided not only by our office,
but there would be a statutorily recognized role for the FOIA
public liaisons at the agencies to resolve disputes. We believe
that with that added specific responsibility for the FOIA
public liaisons throughout the agencies, working with us,
working with the Justice Department, emphasizing the importance
of preventing disputes, to head them off, to improve
communication and to have good FOIA customer service from the
very beginning, that will definitely have an impact.
Thank you.
Mr. Clay. Let me also ask you, one of OGIS's
responsibilities is to recommend policy changes to Congress and
the President to improve the administration of FOIA. When do
you think you will have enough experience and data to make your
initial recommendations to us?
Ms. Nisbet. We believe, sir, that we will be able to make
at least a report on what we are seeing within the first year,
by the end of fiscal year 2010. So we are aiming for having a
report to you all by the end of September this year with at
least what we are seeing now, and some recommendations.
Mr. Clay. Very good. I look forward to receiving it. Thank
you.
Ms. Nisbet. Thank you.
Mr. Clay. Ms. Pustay, the Sunshine in Government initiative
has found that agencies have cited at least 250 statutes on the
books to deny information under exemption three of the FOIA
which prohibits release of information that is specifically
exempted from disclosure by another statute.
A recent American University study concluded that just 153
statutes qualify under exemption three, suggesting that 40
percent of the statutes claimed by agencies are invalid. To
avoid further litigation, what else could the administration
and Congress do to rein in the use of this exemption? Do you
have any opinions about that?
Ms. Pustay. I have actually a couple of reactions to it.
First of all, I think to put transparency on this issue, in
fact we have compiled a chart of all exemption three statutes
that have been found to qualify by the courts as exemption
three statutes, and have published that on our Web site so that
agencies have a ready spot to go to see statutes that have been
found to qualify.
But I guess I would question part of the premise of that
question because until a court rules on the validity of an
exemption three statute, all you have is presumption or guess
as to whether something is a proper exemption through statute
or not. Ultimately, a court decides what is a proper statute.
That is why what we have done is compile the statutes that
courts have found to qualify.
And then, of course, the FOIA was just recently amended to
require that any statute passed by Congress that is an attempt
to be an exemption three statute specifically says that is what
it is, and cites to exemption three. So that should make it a
lot easier for agencies to spot these statutes in the future.
Mr. Clay. Thank you for that response.
We have no further questions for this panel. Let me thank
you all for your indulgence, for your time today, and this
panel is dismissed. Thank you.
I now would like to introduce our second panel. And our
first witness will be Mr. David Sobel, senior counsel at the
Electronic Frontier Foundation, which he directs the FOIA
Litigation for Accountable Government Project. He has handled
numerous cases seeking the disclosure of Government documents
on privacy. In 2006, Mr. Sobel was inducted into the First
Amendment Center's National FOIA Hall of Fame.
He was formerly counsel to the National Security Archive
and co-founder of the Electronic Privacy Information Center. He
is a graduate of the University of Michigan and the University
of Florida College of Law.
Welcome.
Our next witness is Ms. Sarah Cohen, the Knight Professor
of Journalism at the Sanford School, Duke University. Ms. Cohen
worked for 15 years as a reporter and editor, most recently for
the Washington Post. She shared the 2002 Pulitzer Prize for
investigative reporting for the Post series, the District's
Lost Children, and that was quite a series, which uncovered
failures by child welfare agencies that contributed to dozens
of children's deaths.
She has taught journalism courses at the University of
Maryland and is the author of Numbers in the Newsroom: Using
Math and Statistics in News.
Ms. Cohen earned her undergraduate degree in economics at
the University of North Carolina-Chapel Hill, and her master's
degree in journalism at the University of Maryland.
Does that make you a Terp or a Tarheel?
Ms. Cohen. Tarheel, of course.
Mr. Clay. OK. [Laughter.]
After Ms. Cohen, we will hear from Ms. Adina Rosenbaum, an
attorney at Public Citizen Litigation Group. Many of her cases
involve access to records under the FOIA. She also serves as
the director of the Freedom of Information Clearinghouse,
providing assistance to journalists, academic organizations and
others seeking information from the Government under FOIA and
other open government laws.
Ms. Rosenbaum received her J.D. from New York University
School of Law and her undergraduate degree from Harvard
University.
And welcome.
Our next witness will be Dr. David Cuillier, an assistant
professor at the University of Arizona School of Journalism. He
is chairman of the Society of Professional Journalists'
National Freedom of Information Committee. He gathered public
records as a government reporter and city editor for a dozen
years at daily newspapers in the Pacific Northwest.
Mr. Cuillier was awarded the 2007 Nafziger White
Dissertation Award by the Association for Education in
Journalism and Mass Communication for the top dissertation in
the field. He received his B.A. from Western Washington
University and his M.A. and Ph.D. from Washington State
University.
And welcome to the committee.
Our final witness today will be Mr. Thomas Fitton, the
President of Judicial Watch, a conservative nonpartisan
educational foundation that promotes transparency,
accountability and integrity in government, politics and the
law. He has 20 years of experience in conservative public
policy. Previously, he worked for America's Voice, National
Empowerment Television, and was a talk radio and television
host and analyst.
And welcome, Mr. Fitton.
And let me thank all of our witnesses for appearing today.
I look forward to their testimony.
It is the policy of the subcommittee to swear in all
witnesses before they testify. Would you please stand and raise
your right hands?
[Witnesses sworn.]
Mr. Clay. Thank you, and you may be seated.
Let the record reflect that the witnesses answered in the
affirmative.
And before we go to the witnesses' testimony, I want to
reiterate that we will hold the witnesses to their agreements
not to discuss any pending court matters. And I ask that each
of the witnesses now give a brief summary of their testimony.
Please limit your summary to 5 minutes. Your complete written
statement will be included in the hearing record.
Mr. Sobel, please begin with your opening statement.
STATEMENTS OF DAVID SOBEL, SENIOR COUNSEL, ELECTRONIC FRONTIER
FOUNDATION; SARAH COHEN, KNIGHT PROFESSOR OF JOURNALISM, DUKE
UNIVERSITY, ON BEHALF OF SUNSHINE IN GOVERNMENT INITIATIVE;
ADINA H. ROSENBAUM, DIRECTOR, FREEDOM OF INFORMATION
CLEARINGHOUSE, PUBLIC CITIZEN; DAVID CUILLIER, ASSISTANT
PROFESSOR, UNIVERSITY OF ARIZONA SCHOOL OF JOURNALISM; AND TOM
FITTON, PRESIDENT, JUDICIAL WATCH
STATEMENT OF DAVID SOBEL
Mr. Sobel. I would like to thank you, Mr. Chairman and the
ranking committee member, Mr. McHenry, for granting me the
opportunity to appear before the subcommittee and share my
views on implementation of Freedom of Information Act policy
throughout the Government.
As senior counsel to the Electronic Frontier Foundation, I
am engaged in submitting and litigating requests for
information dealing with a fairly wide range of agency
information concerning technology policy and how Government use
of new technologies potentially impacts individual rights.
In addition to my work on behalf of EFF, I also serve on
the Steering Committee of the OpenTheGovernment.org Coalition,
and I have also represented a fairly wide variety of public
interest and news media organizations during the course of 25
years of litigating cases.
Given that time span, I have had experience litigating
cases challenging withholding under both Democratic and
Republican administrations, so I feel that I have a fairly
broad view of the issue, and I would like to emphasize the fact
that I have never seen this as a partisan issue. I think we
have seen some of the rhetoric from different administrations
kind of ebb and flow, but primarily the issue is one of
bureaucratic culture and limited resources. And I think those
are the two really most significant factors in how, from the
requester perspective, the Freedom of Information Act actually
works.
Certainly in assessing trends over the past year, I think
everyone must acknowledge the very positive statements that
have emanated from the highest levels of the administration,
starting with the President on January 21st of last year,
Attorney General Holder's memorandum which was issued a year
ago tomorrow, and as Ms. Pustay referenced, the more specific
policy guidance that was issued by her office, the Office of
Information Policy. I think all of those statements have been
very positive and there is not much to fault in any of the
things that have been said. I think the right message has been
conveyed.
The problem is that for one reason or another that message
does not seem to have filtered down to the front lines. I know
that the whole panel is going to speak about issues that the
requester confronts. I would like to speak specifically about
issues that arise in the litigation context. And for that
reason, I would like to focus on experiences that I have had
that indicate that front line litigating attorneys in the
Department of Justice have not received the message that there
is a new pro-transparency policy.
At the time that the President took office, EFF had about a
half dozen pending cases in the Federal courts. These cases had
arisen first under the Bush administration, and I thought that
these cases were interesting opportunities to see what effect,
if any, the newly articulated policy might have. In all of
those cases, once the President made his statement and the
Attorney General issued his memorandum, we suggested to the DOJ
attorneys handling the cases that perhaps the cases should be
stayed to give the agencies an opportunity to consider whether
the new policy would have an impact on the disclosures at issue
in that case.
Not only did the DOJ attorneys in all but one of those
cases reject the suggestion, but they actively opposed motions
that we filed with the courts to stay the cases to allow for
that reconsideration.
Once the policies were in fact considered to whatever
extent they were, we were able to discern no real difference,
which is to say that despite the emphasis that the President
and Attorney General put on agencies making discretionary
releases of information, we saw virtually no additional
information released in our cases after the new policy went
into effect.
I have cited in my written testimony one specific example
in one of our cases of information that was withheld, in that
case by the FBI, under circumstances where we were subsequently
able to look at the actual information that was withheld,
comparing a released version of the documents with the withheld
version. And I would refer you to my testimony for the details
of that, which is detailed on my organization's Web site with a
side by side comparison of documents.
I think on this point, in terms of litigation posture, it
is important to emphasize that one of the key points of
Attorney General Holder's memo was the claim that the Justice
Department's position with respect to litigating and defending
cases was going to change. He specifically rescinded the policy
that had previously been established by Attorney General
Ashcroft and suggested that the Justice Department was going to
be taking a harder look at cases when it came to deciding
whether or not to defend.
As I say, I have not seen any change, but we would like to
be in a position where we can really specifically quantify
whether there has been a change. So we have suggested to top
Justice Department officials that the Department consider
releasing a list of cases that they have declined to defend.
This would give us concrete information. This would be the
transparent way to see whether that policy is in effect having
an impact.
Mr. Clay. You can go ahead and summarize.
Mr. Sobel. The Justice Department has refused that request,
and I would urge the committee to consider asking the
Department for that information, a list of cases that they have
declined to defend under the Holder policy.
I just want to emphasize one point that hasn't been raised
yet today. I would like to note that in the Senate the other
day, Senators Leahy and Cornyn introduced new legislation, the
Faster FOIA Act, to establish an advisory committee to look at
the problem of FOIA processing delays. I think it is past time
that issue be studied and I would urge this subcommittee to
look at that issue as well.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Sobel follows:]
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Mr. Clay. Thank you for your testimony and suggestions.
Ms. Cohen, you may proceed, 5 minutes.
STATEMENT OF SARAH COHEN
Ms. Cohen. Thank you, Chairman Clay, Ranking Member McHenry
and members of the subcommittee. I also want to thank you for
the opportunity to talk about FOIA today on behalf of the
Sunshine in Government Initiative. And I would also like to
thank you for your continued interest in the ability of the
public to access important Federal records and information.
In 15 years as an investigative reporter and editor, mainly
at the Washington Post, I frequently depended on the law to
gain access to important administrative and program records.
Last year, I joined the faculty of Duke University as its
Knight Chair in journalism. And while I am still close to daily
journalism, I am now more free to report on my own experiences
and those of colleagues who are still in the business.
Mr. Chairman, we have seen some improvements in
transparency in government, but in general, the FOIA process
has remained largely unchanged. President Obama's day one
transparency initiative raised the hopes of those who depend on
FOIA to inform citizens of the activities of Government taken
in the public's name and with the public's money.
There have been some improvements, starting with the
President's decision to voluntarily release White House visitor
logs, largely as a sign to other agencies and to ease the path
to requesting financial disclosures. Some reporters are saying
that some agencies, in particular EPA, are opening up records
without requiring FOIAs anymore. But based on my own experience
and reports from other journalists and others who work with
public records, transparency for the purpose of Government
accountability has changed very little.
I would like to suggest four areas in which the FOIA
doesn't work the way it was intended, and hasn't for the
generation in which I have been a reporter. The first is that
delays seriously inhibit FOIA's promise of disclosure. The
ability to wait out a FOIA request remains the most glaring
power imbalance between requesters and agencies and releases
are often irrelevant by the time they are completed.
One reporter in Texas recently has not received documents
promised from an agency for more than a year. And I would like
to mention that I have never received a FOIA request in the
time required by law.
In 1996, Congress recognized that administrative records
held in electronic form had become one of the most difficult
sticking points in the law, and enacted several changes, but
few agencies have kept the promise of those reforms. Agencies
are required to post online frequently requested records, yet
the correspondence of Treasury Secretary Geithner, details on
reconstruction spending in Iraq and Afghanistan, and original
nursing home inspection reports often can't be accessed on the
Web.
In addition, the required tools to help requesters, such as
indexes of information systems, are obsolete or poorly
documented. And finally, a growing number of agencies are
refusing to release information in the requested data form,
even though the 1996 amendments require agencies to make them
available in the form requested when they exist that way.
Third, when Congress mandates transparency, agencies only
sometimes comply. Congress has enacted law to ensure release of
important records on a timely basis, but those laws are
sometimes twisted to do just the opposite, and I detail several
examples of those in my written testimony.
And finally, requesters don't know where to turn when FOIAs
have stalled. Few agencies make the job of Chief FOIA Officer a
primary function and few requesters are aware of OGIS. Last
year, for example, a reporter requested of an agency all
correspondence regarding human trafficking. Several months
later, he received a letter with a cost estimate to reproduce
700 responsive documents, but he could never tell anyone how to
proceed. Numerous phone calls and emails were never answered
and his story eventually ran without the information that might
have been provided in those documents. A phone call to OGIS
might have helped, but the Office can't be expected to resolve
every case.
Congress could do several things to help. First, it could
clarify the definitions of frequently requested records and ask
agencies to review FOIA logs at least once a year for classes
of records that should be proactively disclosed.
Second, Congress could also build transparency into new
laws and new computer systems. And third, Congress could
encourage agencies to proactively release information of
interest to the public such as agency correspondence,
calendars, lists of political appointees, and grant audits.
Journalists expect that the needs for records and
transparency will sometimes conflict with other priorities such
as personal privacy and national security, but I think most
reporters would be happy to disagree on those substantive
matters if the Government readily released common documents,
reduced delays and offered a more effective path to resolution.
Thanks for the opportunity to present these views on the
state of FOIA.
[The prepared statement of Ms. Cohen follows:]
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Mr. Clay. Thank you so much, Ms. Cohen.
Ms. Rosenbaum.
STATEMENT OF ADINA H. ROSENBAUM
Ms. Rosenbaum. Thank you, Mr. Chairman, Ranking Member
McHenry and members of the subcommittee for inviting me to
testify today. I am an attorney at Public Citizen, a nonprofit
consumer advocacy organization, and director of Public
Citizen's Freedom of Information Clearinghouse.
Since its inception, Public Citizen has worked to promote
Government transparency. Through the Clearinghouse and our
Public Interest FOIA Clinic, we provide assistance to
individuals and organizations seeking information under open
Government laws. My comments today are based primarily on
trends in processing FOIA requests that we have noticed in our
own experience and through conversations with FOIA requesters
over the past year.
As has been noted already, from his first full day in
office, President Obama has expressed a commitment to creating
an unprecedented level of openness in Government and emphasized
that a presumption of disclosure should apply to FOIA. We
applaud President Obama's new policies in favor of
transparency.
But the administration has often focused more on
affirmative disclosure and tools for interaction between
Government and the public than on FOIA itself, and I don't want
to downplay the importance of proactive disclosure of records
and particularly the usefulness of making records available on
agency Web sites.
At the same time, though, FOIA's request and response
process plays an important role in ensuring that the public is
informed about the Government's activities, and we have found
FOIA processing to be inconsistent.
Although I have spoken to requesters who have had better
experiences with FOIA in the past year than in previous years,
I have also spoken to many requesters who have faced serious
problems accessing records. And I want to focus today on four
categories of problems faced by requesters: persistent delays,
communication misunderstandings, problems due to interagency
referrals, and over-withholdings.
First, the problem that requesters mention to us the most
is the long amount of time it takes agencies to respond to
requests. Although FOIA requires agencies to respond within 20
business days, agencies often take months or even years to
respond. Just yesterday, for example, I received a record in
response to a FOIA request I made in July 2006.
These sorts of delays both keep requesters from being able
to use the records as effectively as possible, but also
engender mistrust in the Government. Most requesters I talk to
assume that a long delay indicates that the agency is trying to
hide something.
As Mr. Sobel mentioned, earlier this week, Senators Leahy
and Cornyn introduced the Faster FOIA Act, which would
establish a commission to study and make recommendations about
methods to reduce delays, and we support the establishment of
such a commission.
Congress should also consider creating incentives for
agencies to improve response times, such as the loss of the
right to claim that records are exempt under the deliberative
process privilege if the agency has not timely processed them.
Another problem we see is breakdowns in communication
between requesters and agencies. Over the past year, we have
seen increased efforts by agencies to communicate with
requesters, which is a step in the right direction. Too often,
though, requesters in these conversations feel that they are
being pressured into narrowing their requests. They get asked
questions like, what is it you really want, when they feel that
they have already stated what they really want. They want the
records listed in their FOIA request.
We have also heard a number of stories about FOIA requests
being rejected based on technicalities and of organizations
being asked to provide a burdensome amount of details to
justify their fee waiver requests.
In addition, interagency referrals sometimes create
problems. When agencies have responsive records that originated
with another agency, they generally refer those records to the
other agency for processing. From the FOIA requester
perspective, these records are essentially sent into a black
hole.
For example, last June Public Citizen sent a request to the
U.S. Trade Representative, which released some records, but
referred others to the Federal Reserve and the Departments of
Treasury, Commerce, Transportation and State, some of which
further transferred the records to sub-agencies. At each stage,
the responsible staff member and tracking number would change
without Public Citizen being kept up to date of those changes.
Requesters should be able to track a referred request and
know who in the new agency is responsible for the request.
Agencies also should be required to process and return referred
records quickly so as not to multiply delays. An interagency
committee devoted to referrals should be established to develop
mechanisms that would reduce delay and allow requesters to be
able to follow their referred requests.
Finally, problems persist even after agencies respond. Too
often, records are redacted or withheld when no exemption
applies or when no foreseeable harm would result from release.
Continued training and emphasis on the presumption of
disclosure is needed to combat these problems.
Further, targeted FOIA amendments would promote Government
transparency. For example, we believe that exemption five
should include a presumption that older records are not
protected under the deliberative process privilege. Targeted
changes could make an important difference in allowing the
public to understand its Government's activities.
Thank you very much, and I am happy to respond to
questions.
[The prepared statement of Ms. Rosenbaum follows:]
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Mr. Clay. Thank you very much, Ms. Rosenbaum.
Professor Cuillier, you are recognized.
STATEMENT OF DAVID CUILLIER
Mr. Cuillier. Good afternoon, Chairman Clay, Ranking Member
McHenry and members of the subcommittee. I appreciate the
opportunity to address you today. I think what you are doing
here is extremely important. And I would like to talk, if I
may, a little about how requesters view FOIA, developing
cultures of openness, and some ideas for maybe enhancing
transparency.
First, the state of FOIA today. The past year has been
refreshing, like everybody said: the President's Executive
order, the Holder memo, the Open Government Directive, the
initial work of OGIS has been outstanding, dispute resolution
we hear today. That is great.
However, like some of the others, I think the perception of
requesters is that we are not quite there yet, and the
administration acknowledged this just a few days ago even. In
my written testimony, I cited dozens of studies documenting the
problems. We have backlogs, delays, redactions that are
extreme, exemptions applied broadly, a variety of strategies
used to skirt FOIA, such as the state secrets privilege,
Presidential Records Act, Privacy Act, Family Educational
Rights and Privacy Act.
Most journalists, frankly, don't use FOIA because of the
frequent delays and denials. And I keep asking, but I haven't
heard from journalists that this changed much in the past year.
Perhaps it has, but our perception is that it hasn't yet. If
the President were in my class, I would give him an A for
effort, but probably a C for execution.
However, I have to say it is unfair to expect immediate
change. These things take time. So that is where we come to
agency culture. As a former journalist and as a researcher in
freedom of information at the University of Arizona, I have
found that accessing records is often more about people than
the law. If an agency embraces openness, then FOIA tends to
work. If it embraces secrecy, then FOIA doesn't work.
It is this human factor that leads me to teach journalists
the interpersonal dynamics of accessing records. It led me to
co-write with Charles Davis the book, the Art of Access,
because the problems with the FOIA process, requesters are
forced to be adept at what I call psychological warfare. It is
a cat and mouse game. And it shouldn't be that way, but it is.
And it really helps no one, not requesters, not agencies, not
taxpayers. And that is why I think it is imperative to fix the
laws and develop a culture of openness in Government.
Changing people is a lot harder than changing laws, but it
can be done. It is a state of mind grounded in one's psyche,
and it can be learned. So how do we do this? Well, there are a
couple of different ways, and I am sure others have great
ideas. But first, I would think that we need harsher penalties
for noncompliance. We see this at the State level and the
effectiveness it has. Some of the most transparent States in
this country, Florida, Texas and others, have provisions for
jail time or fines against agencies or individuals who act in
bad faith, who knowingly break the law. I think we need that in
FOIA as well.
We need more assistance for requesters. We have this
wonderful new office, OGIS, but we can do more. We need more
staffers for OGIS, apparently, and I agree with them. It is
unreasonable to expect an average citizen to take the time and
money to sue the Government for information. Just figuring out
what the information is to ask for is a challenge.
We need online accountability. FOIA performance for all
agencies should be made clear in one place, perhaps on the new
Open Government Dashboard. Quantifiable benchmarks should be
set and agencies graded, much like restaurant inspections or
school standardized testing. When it comes to FOIA, I would
like to know, is an agency passing? Is it exceptional? Or is it
failing?
We need more funding and rewards for agencies, carrots. It
is unfair to require agencies to be more transparent, but not
provide them the resources to do it. We need more staffing to
reduce backlogs. We need prizes and monetary awards for doing a
good job.
And finally, training of values. We need training of all
Federal employees, not just FOIA officers, on the fundamental
principles of open Government. There are States that do this,
and I think it is effective. I had to take this training once
as a State employee, why it matters, government accountability,
economic innovation, an informed electorate, building public
trust.
Too often, training is limited to FOIA officers and they
are focused on the application of exemptions, how to keep
things secret. If we are going to have a culture of openness,
then that means truly internalizing the societal benefits of
transparency.
So in conclusion, I am pleased with what we have seen this
past year so far as a starting point. There are still a lot of
problems that need to be fixed, but change takes time and if
this administration stays on track, I am hopeful this country
can develop a strong Freedom of Information Act and a lasting
culture of openness.
Thank you, sir.
[The prepared statement of Mr. Cuillier follows:]
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Mr. Clay. Thank you so much, Professor.
Mr. Fitton, you have 5 minutes.
STATEMENT OF TOM FITTON
Mr. Fitton. Thank you, Mr. Chairman, Mr. Vice Chairman, and
thank you for inviting me to this important hearing.
Essential to Judicial Watch's anti-corruption watchdog
mission is the Freedom of Information Act. Judicial Watch uses
this tool effectively to root out corruption. We have used it
to root out corruption in the Clinton administration and we
took on the Bush administration's penchant for improper
secrecy.
We have nearly 16 years of experience in using FOIA to
advance the public interest, and we are perhaps the most active
FOIA requester and litigator operating today.
The American people were promised a new era of transparency
by the Obama administration. Unfortunately, this promise has
not been kept. To be clear, the Obama administration is less
transparent, in our experience, than the Bush administration.
We have well over 340 FOIA requests pending with the Obama
administration, and we have filed over 20 FOIA lawsuits in
Federal court against this administration.
Administratively, agencies have put in place additional
hurdles and stonewalled even the most basic FOIA requests. The
Bush administration was tough and tricky, but the Obama
administration is tougher and trickier. The Obama
administration continues to fight us tooth and nail in court.
The Obama administration's approach to FOIA is exactly the same
as the Bush administration's, so one can imagine that we don't
have an easy time litigating these issues in court against the
Obama Justice Department.
Now, in my written testimony, I detail some of the legal
wrangling we are involved in, but generally as a policy matter
the Obama administration has decided to wall off, for instance,
the Fannie and Freddie records now controlled, in our view, by
the Federal Housing Finance Administration. $400 billion in
taxpayer funds are now at least committed to these two
entities, and yet their argument is that we can't have access
to that. Unfortunately, we are now disputing that in court and
people can see details of that in my written testimony.
And in addition to the problem of walling off FHFA's
control of our Nation's mortgage market through Fannie and
Freddie from public accountability, the Obama Treasury
Department is a black hole for basic information requests on
the various Government bailouts.
So I can't quite fathom how some can laud a new era of
transparency while over $1 trillion in Government spending is
shielded from practical oversight and scrutiny by the American
people.
And the subcommittee might also be interested to learn
about some of the background related to the release of the
White House visitor logs. Those logs are being released at the
sole discretion of the Obama White House. And they are making
the argument, and we are fighting with them in court, but the
policy dispute is over whether or not these logs are subject to
the Freedom of Information Act. And to echo David's point
earlier, the Bush administration made this point in court
recently at the end of its administration. The Obama
administration has continued to argue they are not subject to
FOIA. So we are in a fight with them on that key issue that
they are using in terms of their public pronouncements on
extolling their own openness.
So on two major transparency issues, and people can read
the details of that in my written testimony. I know you don't
want to go into the details of litigation. But two transparency
issues relate to policy. This a policy debate as well, on the
bailouts and White House access. The Obama administration has
come down on the side of secrecy.
Releasing high value data sets from Government
bureaucracies is meaningless in the face of key decisions to
keep politically explosive material out of the public domain.
So we give them an F on transparency.
Let me end by saying the Founding Fathers understood why
transparency is important. Let me quote John Adams, and we can
all agree on John Adams, I think: ``Liberty cannot be preserved
without a general knowledge among the people. They have a
right, an indisputable, inalienable and indefeasible divine
right, to that most dreaded and envied kind of knowledge, I
mean of the characters and conduct of their rulers.''
Thank you for your time, and I am happy to submit to
questioning.
[The prepared statement of Mr. Fitton follows:]
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Mr. Clay. Thank you so much for your testimony.
I guess this is a panel-wide question. Have any of the
witnesses noticed improvement in responses from agencies under
the Obama administration as compared to the Bush
administration? For instance, Ms. Rosenbaum got a response from
a 4-year old request, and could it be because the culture has
changed at the agency that you requested it?
Ms. Rosenbaum. There is still a long delay in that
particular request within this administration. We have seen
some improvements. We are seeing some of our requests acted on
quicker than we might have expected beforehand. As I said, we
have seen some improvements in communication where it is a
little bit easier. There will be more sort of interim responses
letting people know a little bit more about what is happening
with their request while it is in the process of being
processed.
Mr. Clay. OK, that is one that says they have seen
improvement.
Mr. Sobel. Mr. Chairman, I honestly have not really noticed
a great deal of difference at the agency level. But in
fairness, I have to say I tend to deal with the difficult
agencies. I mean, where the culture is a real problem, agencies
like the FBI and various components of the Department of
Homeland Security where the law enforcement culture in those
agencies just tends to be resistant to the concept of opening
things up.
Mr. Clay. So you still see stonewalling?
Mr. Sobel. Yes, I do. And to underscore what I said
earlier, I think the point of contact where the
administration's stated policy could have an impact is when
agencies like that get sued, they should be told by Justice
Department lawyers, we are not going to defend this. And that
is how you send the message, and I don't see that happening. So
I think we need to find ways where the rhetoric can get
translated into reality, and those are the things that I am
really looking for.
Mr. Clay. That is a very good point.
Ms. Cohen, any difference in the administrations?
Ms. Cohen. I think what a lot of people are seeing is a lot
more politeness from the people that they are dealing with,
kind of not quite as much of a confrontational initial stance,
but sadly, not a whole lot of difference in the results in the
end. So that is kind of what we are hearing. It is agency by
agency, though, and some appear to be making a much more
serious effort than others.
Mr. Clay. Thank you for that response.
Professor, any difference?
Mr. Cuillier. Well, no. I haven't heard any, but then most
journalists don't cover it any more. They are so fed up with
it. So I am doing a survey in a couple of months. I am asking
800 journalists that exact question, so I will get back to you.
Mr. Clay. Thank you.
Mr. Fitton.
Mr. Fitton. Obviously, I think they are a little bit worse.
Believe it or not, we are actually quite flexible working with
agencies on focusing and narrowing requests, but there is not
too much difference. And at the legal level, that is where the
rubber meets the road and it is the same as the Bush
administration as a problem.
Mr. Clay. So it is the same amount of suits, litigation.
Mr. Fitton. Well, the Government is doing, respectfully, a
lot more these days so we are asking a lot more questions. So
as a result, we have a few more lawsuits.
But their position in the lawsuits are not only problematic
in terms of traditional FOIA, but the key provision of the new
FOIA law related to awarding attorney's fees and costs as an
incentive to agencies to get the documents out. David as a
lawyer may have more insight on this than me. They are trying
to read that out of the law, practically speaking, saying that
just because you file a lawsuit doesn't mean you should get
costs if the documents come out as a result.
So the lawyers are the problem. How is that for a summary
response?
Mr. Clay. Well, we better make sure we take care of the
lawyers. [Laughter.]
Mr. Sobel, let me ask you, there are those who say the
administration has not done enough in the last year to improve
the FOIA process. Others say that after many years of
Government secrecy, it takes time to turn things around. Before
I ask you about the process itself, I would like to ask how
important you think it has been and will continue to be that
the President has issued clear and unambiguous guidance that
the presumption of the administration is to disclose rather
than to withhold?
Mr. Sobel. I think it is important, but the question, as I
indicated a couple of minutes ago, is how do you make that
filter down to the front lines where these decisions are being
made by over-burdened FOIA personnel every day. And I agree
that incentives and disincentives is an important concept.
One of the points I raise in my written testimony is that
the Civil Service performance evaluation process probably ought
to be taking into account performance with respect to
transparency obligations. Agencies should think about or OPM
should think about making transparency work a critical element
in job performance.
I think all of the incentives are to withhold. I mean, the
average employee feels like they can be disciplined for
releasing something improperly, but they don't have the same
concern about withholding something improperly. And I think we
need to change that. So it is very much at the level of the
FOIA Office that the change needs to occur.
Mr. Clay. And under your evaluation system, do you think
that would curb the use of exemption three?
Mr. Sobel. I think exemption three, talk about an agency by
agency proposition. I mean, exemption three really exemplifies
that, that every agency has their own exemption three statutes
that they either are permitted to use or are inclined to use.
But I certainly think with respect to some of the agencies that
have access to most of those exemption three statutes, yes. I
mean, more of a sense of penalty improper withholding would go
a long way. Yes.
Mr. Clay. Thank you for that response.
Mr. McHenry.
Mr. McHenry. Thank you, Mr. Chairman.
Mr. Fitton, now, the chairman and I both serve on the
Financial Services Committee as well, and obviously we have an
interest in the GSEs and the Federal Home Loan Finance Agency,
and the receivership that Fannie Mae and Freddie Mac are
currently under. In essence, they are in my view functioning as
a Government agency.
You made a Freedom of Information request of documents from
FHFA. Now, coming to light that the Government basically took
over Fannie Mae and Freddie Mac and their hundreds of billions
worth of debt, what was their justification? Now, they rejected
your Freedom of Information request. Is that correct?
Mr. Fitton. That is right. They believe that these are not
agency records under FOIA and they cite their precedent and
obviously we cite our precedent back. But you know, from a
practical non-legal perspective, they seized control of these
agencies. They control their operations down to the greatest
minor detail. They control the appointment of the Board of
Directors and all their communications. They have control of
the records. They can search for them. But they have obviously
decided to wall them off.
That is a decision, in my view, that is not made lightly by
the administration. This is a significant issue and the
decision to wall Fannie and Freddie from FOIA scrutiny is the
result of the Government taking it over. It is a decision that
I suspect was not made lightly and indicative of the
administration's position on a key transparency issue.
Mr. McHenry. So they simply rejected it?
Mr. Fitton. That is right. No one who wants to ask anything
about Fannie and Freddie through the FHFA under the Freedom of
Information Act, it will be responded to under their view of
the law.
Mr. McHenry. Have other groups experienced this? Anybody
else in a similar situation with FHFA?
Now, so the justification is that they are not a Government
agency. Correct?
Mr. Fitton. They are not a Government agency. They are a
private corporation temporarily being held by the Government.
Mr. McHenry. Well, is this emblematic of your experience
with other agencies?
Mr. Fitton. Well, it raises an interesting issue with the
Treasury Department's running of General Motors. We haven't
gotten necessarily into that fight specifically, I don't
believe legally, but if the Government is running General
Motors, if all General Motors, some of General Motors'
operations' documents, for instance their hiring of lobbyists
using taxpayer money, does that become subject to FOIA?
On Treasury generally, they are terrible. They just ignore
FOIAs. They grant themselves extra time.
The Federal Reserve, a new area that everyone seems to be
interested in these days. We are just asking for Ben Bernanke's
visitor logs. We are not getting anywhere on it. Our interest
there is obvious. There is a lot of money and power and
sensitivity to the use of that money in power, given the
financial crisis. And walling all of that off from effective
disclosure and scrutiny, to me, is, that to me is the story of
FOIA under the Obama administration.
Mr. McHenry. How many FOIA requests did Judicial Watch, how
many FOIA requests did you have in 2009?
Mr. Fitton. In 2009? Over 300.
Mr. McHenry. OK.
Ms. Rosenbaum, Public Citizen, how many FOIA requests did
you have in 2009?
Ms. Rosenbaum. I actually don't know the number of requests
that we have made.
Mr. McHenry. OK. All right.
Well, Mr. Sobel, you mentioned that certain agencies are
just consistently bad.
Mr. Sobel. Yes, I think that is a fair characterization.
Mr. McHenry. Now, the sort of broader general question, is
it the political appointees or is it the agency? There has been
a shift, and thankfully the President said the right things.
Unfortunately, we haven't seen implementation, and I think the
panel in essence agrees that we have seen maybe in terms of
courtesy a little more positive than the last administration,
but in terms of results, it is basically the same or in some
cases worse.
What agencies, would you say it is the political appointees
or the agency culture?
Mr. Sobel. Well, with respect to that question, I think an
interesting example, and an agency that happens to be near the
top of my list in terms of bad agencies is the FBI. The FBI is
an agency where you would assume that political appointees
don't really play that much of a role because you have Director
Muller who really is not a political person. I mean, he has now
been there for a while. He has a 10-year term.
I mean, if any agency you would assume is immune from
political influence, we would like to think it is the FBI, and
that is an agency that has historically had the worst backlogs.
I cite in my testimony the fact that in one of our cases, the
FBI asked for a 6-year stay in a court case to allow it to
complete processing of a FOIA request.
And then once they finally do get around to processing a
request, they tend to withhold to an extent that I don't think
it justified. And again, in my written testimony, we cite a
specific example of material that was withheld by the FBI 3
years after that very fact was revealed in a Department of
Justice Inspector General report.
So I think that is an example where it is culture because I
do believe that the FBI, to a large extent, is immune to
political trends one way or another.
Mr. McHenry. My time has expired, but Ms. Cohen, Professor,
if you could touch on this as well?
Ms. Cohen. Yes, to me it is less agency by agency than it
is kind of unpredictable on what appears to requesters to
sometimes seem capricious. That if you can make the argument
that it is in the agency's almost political interest to release
something, you can get some records released, where somebody
who doesn't make as good an argument that it is in their
interest will get the same records denied.
And for reporters, David is right. Very few reporters will
go through the process. They would rather just get leaked
documents at that point. So that is one effect of not having an
effective one is that people look for other avenues a way
around it.
Mr. Cuillier. Yes, I don't have much to add. I think there
are so many factors involved with whether you get records or
not that it is hard to pinpoint one particular thing or one
agency. But I think the type of records you ask for is probably
a major factor, and there is research that shows that who you
are affects whether you will get it or not. Journalists and
politically sensitive requesters tend to not get things, or get
delays, for example.
Mr. McHenry. Thank you, Mr. Chairman, and thank you all for
testifying.
Mr. Clay. Thank you, Mr. McHenry.
Ms. Cohen, can you expand upon your suggestion that
Congress should build transparency into the oversight of new
information systems?
Ms. Cohen. Yes, I was a reporter in Florida in the 1990's,
and at that time the State instituted, and I don't know if it
was a legal institution or just a practice, that when new
information systems, new data bases were being designed, say, a
new email system was being implemented, or, say, a new system
to catalog inspections, that part of the certification of that
system was that the public parts of it could be made public,
could be easily extracted, and that it would not be mixed up
with proprietary and private information, and it really did
make a big difference there.
Mr. Clay. Thank you for that response.
Ms. Rosenbaum, in your written statement, you mention
problems contacting FOIA public liaisons. Can you expand on
this issue and give us a sense of what you expect from public
liaisons?
Ms. Rosenbaum. We have found that sometimes agencies are
just very hard to get a hold of. I think the example I gave in
my testimony was of trying to contact a public liaison and
finding that he didn't tend to be at his desk and didn't have
voice mail. So we just called, and when I would call the phone
would ring and ring, and that was that.
So I think it is important that the public liaisons be
available to the requesters in order for them to have a sense
of what is happening with their request and be able to have
contact with the agencies about what is happening with those
requests.
Mr. Sobel. And Mr. Chairman, if I can just jump in on that.
Mr. Clay. Sure.
Mr. Sobel. I have had experiences where the phone number
and the name of the employee listed on an agency Web site just
appears to be wrong, where you dial the phone number and you
get the voice mail for some other employee, and that is sort of
the dead end that you hit.
Mr. Clay. Doesn't sound like much priority is placed on
that.
Mr. Sobel. No, and as a litigator, what is frustrating is I
will usually make a very good faith effort to attempt to
resolve an issue before taking it to court. And often those
efforts are frustrated just by the inability to reach an adult
in an agency to bring this matter to their attention.
Mr. Clay. Thank you.
Professor, what, in your opinion, is the single greatest
point of misunderstanding between agencies and requesters?
Mr. Cuillier. Well, I think often it is what the person is
after. There is a lot of disconnect. A person wants X records
and an agency thinks it is something else. And then that
creates a problem. And the agency denies it outright, and then
they start getting confrontational. They start digging in.
And so I think that is where the human--we have a lot of
problems with not just FOIA, but State public records, all that
sort of things, because of that. People can't figure out what
to ask for. Sometimes an agency won't help them figure out what
to ask for. And so we get into this cycle of fighting.
And so I like what I heard from Ms. Nisbet today about
trying to figure out ways to get agencies to help requesters
figure out what they are after. Unfortunately, I think
sometimes when they are after something the agency doesn't want
them to get, they help them not find the record. It can be a
problem.
Mr. Clay. Do you believe that the process in terms of
legislation, regulation and policy is as good as it gets? And
that requesters need to rely on strategy to improve their
chances?
Mr. Cuillier. Well, right now they do. Right now, they have
to know a lot more than the law to get what they want. That is
just the reality. That is why we wrote our book because we saw
so many requesters running into problems.
They think they can just say, here's the law; I would like
to get this record, please. And it doesn't work that way. So I
think it is really important that we figure out a way to make
this work.
Mr. Clay. OK. Thank you for the response.
Representative McHenry.
Mr. McHenry. Thank you, Mr. Chairman.
Just very brief, but I would like everyone if you could
just very briefly, not elaborate, but what are the top line
things we can do in terms of policy, so that the public has
more access rather than less? And this is not one
administration. It is not one agency. It is the policy that we,
here on the Hill, should legislate and ensure, and the reason
why we have these hearings is to make sure the law as written
is being followed. What kind of policy changes can we make in
order to open this up?
And we will just start with Mr. Fitton and just move on
down the line.
Mr. Fitton. I don't have an exact piece of advice on this
issue. But the most abused exemption is the internal
deliberative process withholdings that are made, and figuring
out when and how that is appropriate, maybe legislating a way
to allow requesters better access to that and giving the
agencies less discretion in the seemingly arbitrary way they
withhold documents in that regard.
Mr. McHenry. OK. Thank you.
Mr. Cuillier. Again, I would say penalties, and I would say
some carrots. And I would look at some of the best State laws
out there. There are some really good laws out there, and there
are some States doing some incredibly good things in this way.
Perhaps we can take a look at that. I think a lot of
journalists, in particular, much prefer their State law to
FOIA.
Mr. McHenry. OK.
Ms. Rosenbaum. The most recent FOIA amendments have tended
to focus on process, which is very important because people
need to actually be able to get responses and have their
requests processed to get records. But I think that Congress
should also consider more substantive amendments to the FOIA
exemptions themselves.
We think that Congress should include consideration of the
public interest in disclosure in the exemptions, in more of the
exemptions. That is not considered right now in determining
whether records are exempt under various of the exemptions.
Mr. McHenry. OK.
Ms. Cohen. I think that giving the same priority to
disclosure as we give to other priorities in Government
throughout a lot of different laws, not just the FOIA law,
would make a big difference. And also somehow, and I don't have
a specific example of this, but to change the power balance
between the requester and the agency. Right now, there is only
one power there and that is the agencies, then there is really
nothing that a requester can do.
Mr. Sobel. First, I would agree with Adina that we need to
take a look at the substance of the exemptions and build in a
public interest component to a greater extent than is currently
the case.
And second, and this is not a very satisfactory
recommendation because nobody wants another study commission,
but I do think that the Faster FOIA Act idea of finally
examining in depth the delay problem is really a necessary
step. And if that had been done several years ago when this
idea first came up and actually passed the Senate Judiciary
Committee, we would be sitting here today with some real
information and some real recommendations. So I think we
finally do need to get that process started.
Mr. McHenry. OK. Thank you so much. This is very helpful
because so much of what we talk about here is the problem, not
the solution. So just to pivot and give us some thought
process, give us food for thought on how to approach this.
And I certainly appreciate you all being here and the
interests that you are trying to carry out on behalf of the
people.
Thank you.
Mr. Clay. Thank you.
Let me also thank this panel and the previous panel for
your participation in this hearing that kind of highlights
Sunshine Week, and it is so important that we improve upon FOIA
and how the Federal Government interacts with the public,
especially the requester community. I think your testimony has
been invaluable.
And without objection, this hearing is adjourned.
[Whereupon, at 4:37 p.m., the subcommittee was adjourned.]
